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Civil Appeal No. K‑44 of 1964, decided on 22nd February 1965.
(On appeal from the judgment and order of the High Court of West Pakistan, Karachi Bench, dated 15th January 1960, in First Appeal No. 13 of 1957).
S. 240 (3)‑Constitution of Pakistan (1962), Art. 177‑Government servant‑Termination of service‑Constitutional protection of show‑cause notice‑Extends to persons in temporary service of‑indefinite duration.
A person was appointed as Engineer by Railway Board. His original appointment was made "subject to 3 months' notice of discharge in order to enable candidates with war service to be permanently appointed in the service should that course be necessary." During his service of 10 years he gained increments and promotions and was allowed to cross the efficiency bar. He was also considered by the Federal Public Service Commission as suitable for confirmation. In other words he was treated as a permanent employee: In these circumstances it was held that termination of such an employee by notice must be regarded as removal within meaning of section 240, Government of India Act, 1935 and he was entitled to the constitutional guarantee enjoyed by permanent employees.
Abdul Majid Sheikh v. Mushajje Ahmad and another Civil Appeal No. 34 of 1964 ; Ghulam Sarwar v. Pakistan P L D 1962 S C 142 and Noor‑ul‑Hassan v. Federation of Pakistan P L D 1956 S C (Pak.) 331 ref.
M. I. Mahmud, Advocate Supreme Court instructed by S. M. Hanif, Attorney for Appellant.
This certificated appeal arises out of a suit filed by the appellant herein for a declaration that the letter No. JDE/SCM/53, dated 19th August 1953, which purported to terminate the appellant's services was illegal, void and inoperative and that notwithstanding the said letter the appellant still continues as Executive Engineer in the Pakistan Western Railways.
The facts briefly are as follows;
In November 1942, the appellant appeared in the competitive examination held in New Delhi by the Federal Public Service Commission for recruitment of Engineers in the Indian Railway Service. By his letter dated 28th August 1943, the Director Railway Board offered the appellant an appointment as a probationer in the Indian Railway Service of Engineers on the following terms and conditions
"New Delhi, dated the 28th August 1943
To
M. B. Khalfay, Esq.,
Kasba Sangameshwar, Distt. Ratnagiri.
Dear Sir,
Recruitment to the Indian Railway Service of Engineers. I am directed to say that as a result of the competitive examination held by the Federal Public Service Commission in November 1942, you have been selected for appointment as a probationer in the Indian Railway Service of Engineers on the terms and conditions laid down in the rules for recruitment to this service published with the Railway Department (Railway Board) Notification No. E‑43RR2, dated the 14th May 1943 (copy attached).
2. The appointment will be made on a temporary basis subject to three months' notice of discharge in order to enable candidates with war service to be permanently appointed in the service should that, course be necessary. This condition over rides all conditions contained in the rules referred to in para. 1 above. If you accept this offer, you should intimate your acceptance as early as possible to this office and to the General Manager, B. B. and C. I. Railway and report yourself for orders to the latter authority ;
D. A. as referred to. Yours faithfully,
(Sd.) Illegible
Director Railway Board."
On his accepting the above offer he was appointed on 7th September 1943 as a probationer in the B.B and Railway for a period of three years. On 14th July 1944, the Railway Board issued the following circular to all the State‑Manages railways:
"Terms of service for gazetted staff appointed temporarily against permanent and provisionally permanent vacancies ,:
The Railway Board have had under consideration the terms' of service which should apply to candidates who have been recruited to the various departments of the Superior State' Railway Services during the war through the Federal Public' Service Commission and who were specifically warned that" their appointment were made on a temporary basis subject to three month's notice of discharge in order to enable candidates with war service to be permanently appointed in the service should that course be necessary. The Governor‑General‑in Council has decided that candidates recruited to the Superior State Railway Services on the above condition should on completion of the period of probation and passing the final examination laid down in the Recruitment Rules, be appointed, in a temporary capacity, against working posts on the revised scale of pay of the Department concerned, but that they should be treated as permanent staff for purposes of pay, leave, provident fund and special contribution, passes etc. The existing conditions that they are not eligible for confirmation and that the period of notice for termination of their services will be only three months, will however, continue to apply."
After completion of his probationary period the appellant was appointed as Assistant Engineer and in that capacity he served at various stations in Central India. In 1946 he was informed by the Railway Board that he was eligible for selection to the 30 % quota of war time vacancies reserved for Central Government Servants and in that connection he also appeared before the Federal Public Service Commission at New Delhi on 11th December 1946.
On the partition of India he opted for Pakistan and was posted as Assistant Engineer (Project and Design) in North Western Railway. On 29th October 1948., he was informed by the Divisional Superintendent that as a result of his interview with the Federal Public Service Commission (India) in early 1947 he was declared as "suitable for confirmation against 30 % war time vacancies reserved for temporary officers" and that it had been decided in consultation with the Cabinet Secretariat that he "may be confirmed in permanent vacancies as and when they arise or existing vacancies in due course after the ban on confirmation has been removed subject to having passed : the prescribed departmental examination". .
In 1951 he was appointed for some time to officiate as Divisional Engineer. After passing the Departmental Examination in 1953, he was declared fit to cross the efficiency bar.
On 10th April 1953 he received an order of transfer to the East Bengal Railway. His request for postponement of the transfer was rejected by the General Manager of the North Western Railway and his appeal to the Director General of the Railway also met with the same fate. He was then asked to hand over charge on 5th June 1953 and proceed to Karachi o; 10th June 1953 enroute to East Bengal. On reaching Karachi he received a letter from the Divisional Personnel Officer direction him not to proceed to East Bengal and to await further orders After about two and a half months, that is, on 19th August 1953 he received the following order from the Director‑General Railways, terminating his services
dated the 19th August 195:
Karachi.
As your services are no longer required by the Governor. General with effect from the forenoon of 1st September 1953, you are hereby given three months' pay in lieu of notice in terms of para. 1 of Appendix 'V to Rules for the recruitment to the Indian Railway Service of Engineers published under Railway Department (Railway Board) Notification No. E43RR2, dated 14th May 1943.
The General Manager, N. W. Railway, has been advised to make necessary arrangement for the payment of your pay in lieu of notice after making recoveries, if any, due from you.
(Sd.) A. S. Mahmood, for Director‑General, Railway."
Para. 1 of Appendix V of the Rules for recruitment of Indian Railway Service of Engineers referred to in the above letter may be set out here
"1. Candidates selected for appointment under rule 3 (i) will be appointed as probationary officers for a period of three years. They shall undergo practical training for the first two years. Those favorably reported on at the end of two years' training will be given charge of a working post during the third year of their probationary period on commencing pay of Rs. 350 at the end of this period they will be confirmed in the Indian Railway Service of Engineers, provided they have passed all the prescribed departmental examinations and are considered fit for permanent appointment. On confirmation their agreement will be continued subject to their service being terminable on six months' notice on either side."
The above para. 1 of Appendix V provides for 6 months' notice whereas the appellant was given three months' pay in lieu of notice. Apparently mention of three month's notice in terms of para. I of Appendix V was a mistake and the Authority really purported to terminate his service after three months' notice as provided in paragraph 2 of the letter dated 28th August 1943, by which he was offered appointment in the Railways.
On receipt of the above letter he sought an interview with the Director‑General of Railways but his prayer was refused. He also did not get any reply to his appeal to the governor General of Pakistan.
After serving notice under section 80 of the Code of Civil Procedure on the General Manager of North Western Railway he filed a suit against the federation of Pakistan in the Chief court of Sind at Karachi for a declaration that his removal from service was illegal and that he still continued in the service.
The appellant's case was that he being a permanent employee was entitled to the protection of subsection (3) of section 240 of the Government of India Act, 1935.The defendant contested the suit on the ground that the plaintiff was never confirmed in a permanent vacancy and as such the provisions of section 240 were not attracted to his case.
The Subordinate Judge, 3rd Court, Karachi to whom the suit was transferred upheld the contention of the appellant and decreed the suit.
On appeal by the defendant the High Court found that the plaintiff being a temporary employee, the Administration was entitled to dispense with his service by giving him three months' notice. In this view of the matter it reversed the decision of the Subordinate Judge and dismissed the suit.
The only question for determination in this appeal is: whether the appellant was entitled to the protection of subsection (3) of section 240 of the Government of India Act, 1935.
It is true that the appellant was expressly appointed on a temporary basis "subject to 3 month's notice of discharge in order to enable candidates with war service to be permanently appointed in the service should that course be necessary". The circular letter No. E‑44 RC 110 dated 14th July 1944 shows that though he was appointed in a temporary capacity, he was to be treated as permanent staff for purposes of pay, leave, provident fund and special contribution, passes etc. He was also declared as suitable for confirmation against 30 % war time' vacancies reserved for temporary officers'. It is clear from the above that his appointment was against a permanent vacancy for an indefinite duration.
Now whether protection given by subsection (3) of section 240 of the Government of India Act, 1935 would extend to persons in temporary service of indefinite duration was considered in a number of decisions of this Court. It will suffice to refer to the recent decision of this Court in Civil Appeal No. 34 of 1964 Abdul Majid Sheikh v. Mushajfe Ahmed and another (not yet reported) where the previous decisions of this Court have also been considered. In the above case the Government discharged Abdul Majid, Senior Scientific Officer‑in‑Charge, Pakistan Naval Dockyard Laboratory, Karachi after giving 14 days' notice. His writ petition before the High Court challenging the impugned order was dismissed on a single ground, namely, that the service of the petitioner in the post in question was expressly appeal to this Court.
This Court while allowing the appeal observed "
We are in no doubt that the law requires, for the removal of the appellant from his office, a procedure altogether more elaborate and thorough than the mere issue of a notice of discharge. This Court has held, in the case of Ghulam Sarwar v. Pakistan P L D 1962 S C 142 that the termination of a railway employee's employment, by notice purporting to issue under a term in his contract of employment, where the facts showed that he had incurred the displeasure of his superior officers, but without a show‑cause notice, was a violation of the guarantee of employment conveyed by section 240 (3) of the Act of 1935. The employment in that case was permanent, but in this respect, an employee holding an appointment indefinite in duration, although not in a substantive capacity, but expressly described as temporary, is in no worse case, as was held in the case of Noor‑ul‑Hassan v. Federation of Pakistan P L D 1956 S C (Pak.) 331. It is in the sense of these propositions of law that the appellant's appointment until further orders' to his last post must be understood. There has been a violation of a constitutional guarantee available to the appellant, and we find him to be clearly entitled to the relief he claimed."
The above observations would apply to the instant case with greater force. Here the appellant was appointed against a permanent vacancy. During his service of 10 years he gained increments and promotion, and was also allowed to cross the efficiency bar after passing the departmental examination. He also officiated for sometime as Divisional Engineer and was considered by the Federal Public Service Commission as suitable for confirmation. From the above it is clear that he was treated as a permanent employee. A termination of service of such an employee by notice must be regarded as removal within the meaning of section 240 of Government of India Act, 1935. In these circumstances we hold that he is entitled to the Constitutional guarantee enjoyed by permanent employees.
The impermanency which might be inferred from his original appointment being made "subject to 3 months' notice of discharge in order to enable candidates with war service to be permanently appointed in the service, should that course be necessary" was clearly brought to an end by the orders of 1946 and 1948 declaring him (1) eligible for one of the "war‑time vacancies" which were reserved for Central Government Servants and (2) eligible for confirmation in a permanent vacancy, after the ban on confirmation should have been removed, subject to the condition of having passed an examination. After these orders, the bar to his becoming a permanent employee rested, not upon anything personal to himself, but in two circumstances external to himself, vie. (1) the removal of the ban on confirmation and (2) the occurrence of a permanent vacancy. He is shown to have passed the Departmental Examination.
He was thus to be regarded as a member of an established service, who was holding a post in that service without limit of time, while he awaited confirmation in a permanent vacancy. In that aspect, his case is indistinguishable from that of Abdul Majid Sheikh (cited above). The Director‑General, Railways however purported to terminate his services under the Recruitment Rules of the (Indian) Railway Service of Engineers, which provided for termination of service of a confirmed employee, on six months' notice. (In the order of removal, three months' notice was mentioned). If the case be regarded in this light, it is fully covered by the decision of this Court in the case of Ghulam Sarwar (cited above).
For the reasons stated above we set aside the judgment and decree of the High Court and restore that of the trial Court. The appellant will be entitled to the costs in all the Courts.
Appeal accepted.
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