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Case No. 546/276 of 1974, decided on 4th June, 1979.

‑ Ss. 4, proviso (b) & 8‑Appeal under S. 8‑Lies on issues involved in proceedings pending before civil Court‑Not control by proviso (b) to S. 4‑Decree of civil Court making civil servant entitled to a post (Superintendent) besides his claim of seniority in lower grade challenged by appeal in higher Court by Government Appeal of Government on abatement presented to Service Tribunal Contention that question involving fitness or title to hold particular post being hit by proviso (b) of S. 4 could not be entertained by Service Tribunal even in appeal under S. 8‑Contention rejected‑Appeal under S. 8, held, not controlled by proviso (b) of S. 4 and shall lie on issues involved in abated proceedings.

-----Mala fide‑Question of‑Allegation against authority taking impugned action must be proved‑Mere allegation without evidence to establish same‑Not sufficient.

P L D 1974 S C 151 rel.

-----S. 8‑Decree of civil Court appealed against before higher civil Court‑Appeal on abatement presented before Service Tribunal Decree making civil servant entitled to promotion against higher grade‑Such relief not warranted by pleadings of parties nor subject‑matter of any issue framed before civil Court‑Decree of civil Court to that extent set aside by Service Tribunal.

In this Government appeal the respondent joined as Assistant Clerk on 29‑11‑1945 in the Jhelum Sub‑Division of 5th Provincial Circle and was confirmed on 24‑7‑1954 in the aforesaid capacity. He was promoted as Sub‑Divisional Clerk on 25‑7‑1954 and as Accounts Clerk on 28‑7‑1954. Vide Superintending Engineer Bahawalpur Provincial Circle order dated 12.1‑1962 in the aforesaid capacities from the date of his respective appointment. After integration of West Pakistan one of the Divisions of 5th Provincial Circle, Bahawalpur was detached and attached with 2nd Lahore Provincial Circle. In 1957 a Temporary Department namely Social Welfare Organization in the B/R Branch of P. W. D. was created, and the respondent opted to serve in this new Department. However his lien remained in the Provincial Circle, Bahawalpur. On 23‑11‑1957 he was promoted as Head Clerk while he was working in the Social Welfare Organisation. On 1‑8‑1961 as a result of further re‑organization the Social Welfare Department was abolished and instead Public Health Department was created on temporary basis. However in 1965 the Public Health Department was made as permanent Department which was mostly manned by persons from B/R Branch of the Public Works Department. As such the necessity arose to allocate the individuals to the Public Health Department. Vide order dated 2‑2‑1967 (Exh. P. 2) passed by the Superintending Engineer, Public Health Circle, Lahore the respondent was confirmed as Head Clerk with effect from 1‑6‑1965. It appears that subsequently the Chief Engineer, Public Health Engineering Department, Lahore allocated the services of the respondent to the Superintending Engineer, Public Health Circle, Lyallpur (a temporary Circle) and under the advice of the Chief Engineer Public Health Engineering, the Superintending Engineer. Public Health Circle, Lahore deconfirmed the respondent in the capacity of Head Clerk vide order dated 7‑8‑1968. The Superintending Engineer, Public Health Circle, Lyallpur ordered the confirmation of the respondent as Head Clerk with his order dated 4‑6‑1969. The assignment of the actual date of confirmation was kept pending till the decision as to the termination of the lien of respondent in the 5th Provincial Circle as confirmed Accounts Clerk. The respondent aggrieved by the aforesaid treatment instituted a civil suit on 25‑5‑1969 in the Civil Court, Lahore claiming therein that his reconfirmation as Head Clerk with effect from 1‑6‑1965 was illegal, ultra vires and without jurisdiction. The suit was decreed by the civil Court on 30‑1‑1974 with the following observation:

"and the plaintiff with effect from 23‑2‑67 is Circle Superintendent and is also entitled to fixation of seniority and pay accordingly."

This decree and judgment was appealed against by the Government before the Additional District Judge, Lahore but on the establishment of this Tribunal on 22‑7‑1974 the same was declared to have abated some time thereafter. Finally the present appeal was instituted before us on 16‑10‑1974: The counsel for the respondent raise a preliminary issue that the present appeal filed under section 8 of the Punjab Service Tribunals Act, 1974 was not competent inasmuch as the case involved the issue as to the fitness of the respondent to hold the post which was barred by the proviso

(b) to section 4. We do not feel impressed by the objection of the respondent. The provisions of proviso (b) to section 4 do not control the appeal under section 8 which explicitly provides that appeal shall lie on the issue involved in proceedings pending before the other Courts. A Since this was an issue decided and involved before the Court therefor the appeal is competent under section 8. In fact the respondent ha nothing to suggest that issue in question did not arise from the judgment under appeal. The learned counsel for the appellant argued that the respondent was assigned to the Office of Superintending Engineer Public Health Circle Lyallpur vide order dated 23‑2‑1967 by the Government and thus he could not be confirmed in the office of Superintending Engineer, Public Health Circle, Lahore to which place he was never assigned by the competent authority. The Government Pleader however extended the assurance that the respondent will be confirmed as Head Clerk from 1‑6‑1965 the date of confirmation assigned to the respondent by Superintending Engineer Public Health Engineering Circle, Lahore. Thus according to Government Pleader the respondent was not going to be a sufferer so far as his date of confirmation as Head Clerk was concerned. The principal objection of the Government Pleader to the decree and judgment passed by the civil Court was as to the observation that the respondent was a Circle Superintendent and was entitled to continue as such. It was submitted by him that there was no such issue nor the parties led any evidence on that point and as such the relief granted by the civil Court traveled beyond the scope of the suit and the pleading of the parties. He thus argued that the impugned judgment and decree passed by the civil Court could not be maintained to that extent and he pressed for the acceptance of the appeal in this behalf. The counsel for the respondent on the other hand argued that there were no rules for the recruitment of Sub-Divisional Clerks and the Accounts Clerks in the B/R Branch of the Public Works Department. The respondent opted to serve in Public Health Department and was eventually confirmed as Head Clerk with effect from 1‑6‑65. It was thus contended that after the order of confirmation dated 2‑2‑67 the appellant severed all his relations with the B/R Branch of P. W. D.. and for that purpose he became the permanent employee of the Public Health Department. Thus the subsequent allocation of his service to P. H. E. Circle, Lahore was uncalled for and consequently the deconfirmation of the respondent be ordered. He further argued that he had secured vested right in the pout of Head Clerk as permanent employee and the authorities have no locus poenitentia to recall the comfirmation order and he relied in this behalf upon the authorities reported as P L D 1969 S C 407 and P L D 1965 S C 671. He further argued that he had in fact earned promotion to the post of Superintendent vide Exh. 13 on ad hoc basis with effect from 7‑6‑1966 as he was the senior most Head Clerk in WeFt Pakistan in the Public Health Department. He alleged mala fide against the authorities inasmuch as Riaz Ali Shah who had proceeded on L. P. R. in Public Health Circle Lyallpur and was senior to the respondent was recalled simply to revert the respondent. The respondent further alleged that this device was resorted to for accommodating Zafar Ali Qureshi, a nephew of Mr. A. R. Qureshi the then Chief Engineer as Superintendent in Public Health Circle, Lahore who was junior to the respondent. It was also argued that these allegations of the respondent have gone unrepudiated and has to be deemed as correct as laid down by rules 2 and 3 of Order XII of Civil Procedure Code. The respondent also relied upon the provisions of Public Health Department (Ministerial Services) Rules which came into force on 19‑10‑1966 and relying upon the same argued that the benefits to the appellant under the aforesaid rules could not be taken away by the Executive Order dated 23‑2‑1967 retrospectively allocating him to the Office of Superintending Engineer Public Heath Circle, Lyallpur.

After hearing both the parties we are of the view that the controversy is in a very narrow space. So far as the apprehension of the respondent with regard to deconfirmation as Head clare with effect from 1‑6‑1965 was concern ed, the same has been allayed by the assurance by the Government Pleader that he will be given the same date. We, therefore, do not think that any interference is called for with the judgment and decree of the civil Court in this behalf. However the declaration with regard to the promotion of the respondent as Superintendent and his entitlement to continue as such was not warranted neither by the pleadings of the parties nor was there any issue framed to that effect we find considerable merit and force in the contention 8 of the Government Pleader that the civil Court was not justified in granting the relief in this behalf. The respondent failed to show to us that there was any such controversy involved before the Court, either in fact or in substance. We provided ample opportunity to Mr. F. K. Qureshi, the learned counsel for the respondent to controvert the above contention: He has placed on record a number of documents but it is a common case that no evidence was led in this behalf. The arguments of the respondent as to the mala fide on the part of the departmental authorities to reduce him from the post of Superintendent is equally of no avail in this case as the services of appellant were allocated to Public Health Circle (Lyallpur), Faisal abad under the orders of Government dated 23‑2‑67 who was the competent authority in such matters. Since there was no allegation levelled or evidence led to establish the plea of mala fide against the Government therefore, the plea could not be held to have been, proved. The law is well settled that the allegation of mala fide has to be proved against the authority taking the action. The following passage from P L D 1974 S C 151 occurring at page 170 may be cited with advantage:‑

". . It is necessary, therefore, for a person alleging that an action has been taken mala fide to show that the person responsible for taking the action has been motivated by any one of the consider ations mentioned above."

We are therefore of the view that the plea had no merit and could not be allowed to prevail. The findings of the civil Court in this behalf could not be allowed sustained and are accordingly set aside. We therefore accept the plea of the appellant and direct that the decree and judgment of the civil Court to the extent it entitles the respondent to the promotion as Superintendent from a particular date, viz. 23‑2‑67 and declaration that he is entitled to continue as such is hereby set aside. Thus the appeal succeeds partially. There will be no order as to costs.

Appeal partly accepted.

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