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Petition No. 257 of 1967, decided on 17th October 1157.

, Art. 177(1)(a)‑Government servant‑Promotion /appointment on ad hoc basis, purely as stop‑gap arrangement‑‑Cannot be equated to promotion/appointment "on probation"‑Promotion/appointment "on probation" a prelimi nary step to permanent appointment‑Ad hoc appointee/promotee cannot claim, lien or right to continue in higher post‑Mere fact that persons junior to petitioner were allowed to continue in higher post‑Not a sufficient reason to compel Government to let petitioner also to continue in such higher post‑Reversion to sub stantive post due to exigency does not operate, as "reduction in rank" so as to be actionable in Court.

Pakistan v: Hasan Ali Jafri P L D 1960 S C (Pak.) 140 and The Province of East Pakistan v. Muhammad Abdu Miah P L D 1959 S C (Pak.) 276 rel.

, Art. 178‑Plenary powers of Governor or his nominee to make appointments‑Subject only to express provisions of Constitution and Law‑Instructions/executive orders merely directory anti not mandatory‑‑Cannot abridge plenary powers of Governor or' his nominee‑Such Instructions/ executive orders do not establish any legal right and do not constitute terms and conditions within meaning of proviso (a) to S. 8 (3), Establishment of West Pakistan Act, 1955‑Expression "terms and conditions admissible to him immediately before the prescribed date" ‑ Applicable only in matters of pay, seniority etc.‑For fetched matters as prospective promotion not covered by such terms and conditions‑Variation made by Government in ratio of promotion‑Does not constitute violation of guarantee under .Establishment of .West Pakistan Act, 1955, S. 8(8), proviso. (a).

Government of West Pakistan v. Fida Muhammad Khan P L D 1960 S C (Pak.) 45; Government of West Pakistan v. Fateh Ullah Khan P L D 1960 S C 105; The Province of West Pakistan v. Hamid Akbar P 1., D 1962 S C 428 and Manzur Ahmad v. Muhammad Ishaq P L D 1964 S C 17 ref.

.‑The petitioner joined service as Overseer to the Public Works Department of the former Province of Sind in 1949 and was confirmed in that post in 1955. After the establishment, of the Province of West Pakistan, he was appointed Sub‑Divisional Officer as from 14th September 1963. The order of his appointment read as follows:‑---

"The Governor of West Pakistan is pleased to promote the following permanent Overseers as . . . . . officiating S. D. Os. on purely temporary basis . . . . . .

St. Name and Designation. Posts against which

No. posted.

1. .

2.

3. Mr. Zawar Hussain Overseer, Posted as Ogg. S. D. O.

B. & R. Southern Region, against the vacancy caused

Hyderabad on account of promotion

of Mr. Ghulam Abbas

Khokhar as Offg. XEN.

(1) The above promotions are purely temporary as a stop gap arrangement for 6‑months and the officials are liable to reversion on the availability of qualified engineers at any time without assigning any cause therefore. The continuation of the officials beyond six months is further subject to the approval of the West Pakistan Public Service Commission.

(2) The above promotions do not further confer the right of seniority on the above officials over their seniors who have not so fat' been promoted."

2. The petitioner continued to work as Sub‑Divisional Officer on the above terms when he was reverted to his substantive post, namely, that of Overseer by means of Order No. SOE‑II-13/2‑64 dated 16th May 1965. This order appertains to as many as forty‑four Overseers who were officiating a' Sub‑Divisional officers in the circumstances somewhat similar to those of the petitioner but were reverted either for want of vacancy in the higher cadre or for not passing the departmental examination. In the case of the petitioner, it was stated that he was being reverted for want of vacancy.

3. Aggrieved by the above order of his reversion, the petitioner has moved this writ petition under Article 98 of the Constitution for quashing the order of reversion on the ground of its illegality, being violative of the Constitutional provisions.

4. The learned counsel for the petitioner made the following submissions, namely:‑

(i) that the petitioner having worked as Sub‑Divisional officer for more than four years apparently to the satisfaction of his superior authorities must be deemed to have successfully completed his probationary period and, therefore, was not liable to reversion;

(ii) that in the former Province of Sind, the ratio of promotion to the post of Assistant Engineer/Sub‑Divisional officers was 1 : 1 as between the promotees and direct appointees and in the face of this ratio the petitioner's reversion constitutes a breach of guarantee in proviso (a) to subsection (3) of section 8 of the. Establishment of West Pakistan Act, 1955;

(iii) that the petitioner was appointed against a clear vacancy which is still available and therefore he could not be reverted for any reason other than his misconduct; and

(iv) that persons junior to the petitioner have been allowed to officiate as Sub‑Divisional Officers and, therefore, too, his reversion is questionable.

5. As to the first contention, it proceeds entirely on a wrong premise. It is clear from the letter of 14th September 1963 as set out in the beginning, as also from the report called from the respondent, that the petitioner along with some others was promoted ad hoc, purely a stop‑gap arrangement till qualified Engineers would become available to fill the posts of Sub -Divisional Officers. It is wrong to equate the petitioner's appointment as an appointment "on probation" which is a preliminary step to permanent appointment to a higher post and the person concerned remains on test during the period of his probation. It was emphasized in the letter of his appointment that the continuation of the petitioner for any period beyond six months would be subject to the approval of the Public Service Commission and even that approval would be limited to his appointment ad hoc: The report from the respondent further makes it clear that the Public Service Commission merely approved the petitioner s rid hoc appointment and not on any other basis.

6. There is no force in the second contention either. For one thing, the petitioner's allegation that there existed a rule which regulated promotion to the post of Assistant Engineer/Sub- Divisional Officers in the ratio of 1 : 1 between the promotees and appointees has not been admitted in the report. Assuming for the sake of argument that there was in existence any such rule or instruction, that must in the very nature of things be treated as merely directory and not mandatory in its effect. The Constitution confers plenary powers on the President or, as the case may be the Governor or, his nominee .to make appointments to the Central and the Provincial Services; (See Act 178). This power is subject only to the express provisions of the Constitution and the law and is unqualified in other respects. It is impossible to suggest that any instruction or a, memorandum issued by the former Government of Sind abridged the plenary power of the Governor or his nominee to make appointments in the relevant field. To give mandatory effect to any such instruction would be repugnant to the provisions of the Constitution. It would also impair public interests for it would frustrate the appointment of the best available persons to higher posts which is governed purely by selection, seniority in the cadre not being the determining factor, except when there is equality of merits in other respect.

7. Besides, the petitioner cannot possibly establish, any legal right on such instructions, even if issued by the former Province of Sind, .for that did not constitute his terms and conditions of service within the meaning of proviso (a) to subsection (3) of section 8 of the Establishment of West Pakistan Act, 1955. It was held by 'the Supreme. Court in Government of West Pakistan v. Fida Muhammad Khan (PLD1960SC45) and Government of West Pakistan v. Mr. Fateh Ullah Khan (PLD1960SC105), that expression "terms and conditions admissible to him immediately before the prescribed date" in the above Constitutional provision must be understood in the restricted sense as applicable to the person concerned in the matter of his pay, seniority etc. on the appointed day, and that this expression cannot possibly include such far‑fetched matters as prospective promotion to a higher post or into a higher service. Therefore, assuming for the sake oft argument that the Government of West Pakistan has varied the ratio of promotion to the post of Assistant Engineer Sub-Divisional Officers to the disadvantage of the petitioner if he had continued in service in the former Province of Sind that would not constitute a violation of guarantee under the aforesaid provision. The same view, was reiterated in two later cases in The Province of West 'Pakistan v. Hamid Akbar (PLD1962SC428) and Manzur Ahmad v. Muhammad Ishaq (PLD1964SC17). In the face of this chain of authorities of highest validity, the second contention is plainly misconceived.

8. The last two contentions are equally devoid of substance. The departmental report snakes it clear that the petitioner has been reverted because qualified Engineers have now become available to fill the posts of Assistant Engineer-Sub‑Divisional Officers. The fact that some Overseers junior to the petitioner in the cadre have been allowed to continue in the higher post cannot be a sufficient reason to compel the Government to let o the petitioner also to continue in such post. On no discoverable principle can the petitioner claim a lien or right to continue in the higher post to which he was never substantively appointed: his appointment as Sub‑Divisional Officer remained throughout ad hoc. In Pakistan v. Hasan Ali Jafri (P L D 1960 S C 140), reversion of an officiating Assistant in the attached Department where he had better prospects of promotion and even-better scale of pay, to a subordinate office, as against a number of other Assistants who although junior to him, in the cadre were nevertheless retained in the attached department and therefore ex facie were' given preferential treatment, was held to be unquestionable.

9. It is note controverted that besides the "petitioner, a number of other persons have also been reverted in similar circumstances. In Pakistan and another v. Qazi Syed Hikmat Hussain (P L D 1959 S C 107), it was held that the Government can at any time terminate an officiating appointment and revert the person holding such appointment to his original position. The petitioner's appointment was even more precarious and stood at lower footing than officiating appointment which as pointed out already generally leads to confirmation, to; which the petitioner cannot possibly lay any claim, so long as he remains an ad hoc appointee moreover his reversion is entirely due to exigencies of service which does not operate as "reduction in rank" so as to be actionable in Court. In a case in‑ which the confirmation tit a Government servant in a higher post was set aside to an appeal by a rival candidate and the order of de-confirmation was quashed by the High Court as operating as reduction in rank, the Supreme Court observed as follows in The Province of East Pakistan v. Muhammad Abdu Miah (P L D 1959 S C (Pak.) 276).

"There is a presumption that official acts have been regularly performed, i.e., with due regard to the relevant formalities and within the relevant powers. A conclusion of excess and irregularity is therefore not to be lightly reached. And in matters affecting the Public service, results deleterious to the public interest can readily follow if questions of application of service rules are approached as it the duty is merely to assert rights vested in the public servant who is the complainant. The paramount purpose and principle in these matters, applicable to the complainant as to all his colleagues and to the section of the administration in which they serve; is that the integrity and efficiency of that section shall be maintained; in the interests of the public service and of the public generally. The due dispensation' of justice in respect of claim of an individual public servant is possible only if the question of his private right is approached from the point of view of larger public interest of which, such private right forms only a small part.

11. For the foregoing reasons, the writ petition is wholly misconceived and is dismissed in limine.

A. E. Petition dismissed in limine.

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