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Writ Petition No. 35 of 1957.
‑Appointment to post--- Until further orders --‑ Possibility of a subsequent modifying order not ruled out‑Constitution of Pakistan, Art. 181.
A person was appointed Officiating Postmaster General with effect from a certain date "until further orders".
Held, that keeping in view the words "until further orders" and the word "officiating" it cannot be said that the possibility of another order modifying the same was ruled out.
Such an appointment could be set aside but after a show -cause notice.
R. 2. Rangachari v. Secy. of State A I R 1937 P C 27 disting.
, Art. 181 (2) ‑ Officiating appointment in higher permanent vacancy‑Reversion to lower rank‑Show‑cause notice necessary even if reversion was not by way of penalty or punishment.
The petitioner was appointed Officiating Postmaster General on 13th August 1956, on two considerations
(1) that the petitioner was to retire on 31st December, 1957, and
(2) that he was :not to get any extension of service after 31st December 1957. After some time he was reverted and posted as Assistant Director General, a post lower in rank to Postmaster General.
Held, that the reversion to a lower rank without a show -cause notice was against the mandatory provisions of Article 181 (2) of the Constitution.
It was ordered that the petitioner be restored to the post of Postmaster General or an equivalent post.
No limitation can be put upon the words "reduction in rank" if once the Court is to find as a matter of fact that there was a reduction in rank.
Reduction in rank may be as a result of punishment or penalty, but it does not follow that where reduction in rank is arbitrary, the provision of Article 181 of the Constitution is not attracted. In fact, the Constitution seems to have provided a safeguard under Article 181 against arbitrary decisions and actions of the Executive by providing that one cannot be reduced in rank without being given a reasonable opportunity to show cause.
Shyamlall v. State of U. P. A I R 1954 S C 369 examined.
O. N. Chauhan A I R 1955 All. 528 ; G. K. Sinhz A I R 1957 All. 152 ; M. Vichorey A I R 1952 Nag. 288 ; clatindra Nath Biswas A I R 1954 Cal. 383 and Shri Ram Piari A I R 1956 Punjab 220 dissented from.
Article 181 (2) was therefore attracted even if reversion was not by way of penalty or punishment.
Reversion of a person promoted to officiate in a permanent vacancy is not the usual thing. A distinction must be made between persons who are simply to officiate in a higher rank and persons who are promoted to a higher rank. A person who is promoted to a higher rank, though to officiate, is intended ordinarily to be confirmed in that post.
The expression "officiating capacity" in relation to a person promoted in a clear vacancy only implies that the person will be confirmed if his work is found to be satis factory.
"Reduction in rank" is a mixed question of fact and law. It would depend upon facts and circumstances of each case whether there was reduction in rank or not. It is not possible to lay down any hard and fast rule for the determination of this question person, for instance who is asked to officiate in a higher post but in a leave vacancy, say, for a week, cannot be said to be reduced in rank if he is reverted to his post on relief. On the other hand, it would be a case of reduction in rank if a person is promoted to a high rank in a permanent vacancy, though to officiate, when he is asked to revert to his original post (lower post). In the absence of any specific condition a person promoted to officiate in a permanent vacancy is supposed to be confirmed in that post. On the analysis of the situation it would appear that in the former case there was no other implication in the employment except this that after the leave vacancy he would revert to his original post, while in the latter case the implications are that he would be reverted only on the ground of inefficiency or unsuitability or any other similar ground ; otherwise he would be confirmed.
It would be against the rule of construction to read the words "as a result of punishment or penalty" after the words "dismissed or removed from service or reduced in rank". To read any such words in clause (2) of Article 181 would be putting a limitation upon the words "dismissal, removal or reduction in rank". Moreover any such construction would amount to putting a premium on the arbitrary action of the Executive.
Muhammad Afzal Khan v. Federation of Pakistan P L D 1957 Lah. 17 and Manzoor Hasan Rizvi v. Pakistan P L D 1957 Kar.804 ref.
Sajjad Ahmed Khan v. Secy Ministry of Communications P L D 1957 Kar. 685 distinguished.
‑Technical legislation to be given technical meaning if it has acquired one, otherwise ordinary meaning‑Literal construction where words plain Words involving different interpretations‑dust, reasonable, sensible interpretation to be adopted.
A. K. Brohi for Petitioner.
Faiyaz Ali, Attorney‑General for Respondents.
This is a petition under Article 170 of the Constitution, and, shortly put, arises under the following circumstances :‑
The petitioner, Mr. Hikmat Husain, has put in about thirty years of service in various positions of trust and responsibility in the Posts and Telegraphs Department of the Governments of India and Pakistan, and is due to retire in December. The petitioner was appointed as officiating Post Master General with effect from 7th July 1956, Southern Circle, West Pakistan, Karachi. A notification to this effect was issued on 13th August 1956. The Government, it was urged, while appointing him as officiating Post Master General had taken into consideration the fact that he was about to retire in December 1957, and had given him to understand that he would not get any extension of service after superannuation. Reliance was placed on a letter dated 24th/26th July 1956.
Though the petitioner was performing his duties to the satisfaction of all concerned, he received an order on 20th December 1956 that he was transferred and posted as Assistant Director General, which is lower in rank to that of Post Master General without being called upon to show cause. The petitioner, it is alleged, would suffer pecuniary loss as he would be getting only Rs. 1,100 per month instead of Rs. 1,640 per month as Post Master General.
It is further contended that the previous order appointing the petitioner as officiating Post Master General having been passed by a competent authority and bona fide, and having been acted upon, the same could not be set aside by another administrative order. The second order reverting the petitioner from the office of the Post Master General to that of Assistant Director General was a nullity.
The petitioner, under the circumstances set forth above, has prayed for a writ in the nature of certiorari quashing the order reducing the petitioner in rank and a writ in the nature of mandamus ordering the respondent to restore the petitioner to the office of the Post Master General or any other appropriate writ.
A reply to the petition had been filed on behalf of the respondent‑1. Pakistan, in the form of an affidavit by Mr. Nazir Ahmed, Director of Postal Training, Government of Pakistan Shortly put, the objections are as under :‑
The petitioner is not entitled to any writ of certiorari as the order complained against is an administrative order. The petitioner is also not entitled to a writ of mandamus inasmuch as he has no legal or statutory right ; nor does there exist legal duty on the part of the respondent, the performance of which could be claimed by the petitioner as a matter of right.
The petitioner's reversion from his officiating post did not amount to reduction in rank in order to attract the provisions of Article 181 of the Constitution. It is admitted in para 5 (ii) that there were three clear vacancies, two on the postal side and one on the Engineering side, and three persons were selected by the Selection Board to fill these vacancies. Under the rules of business the papers had to pass through the Minister concerned to the Prime Minister for his approval. The Minister for communications, Mr. M. R. Kayani, disagreed with the recommendation of the Selection Board, and recommended that the name of the petitioner may also be considered, with the result that the Prime Minister sent back the papers for reconsideration to the Selection Board. In the meantime, another vacancy in the post of Post Master General occurred on the death of Mr. Sayed Mahmood, Post Master General, Northern Circle, Lahore. On reconsideration the Selection Board maintained its previous recommendation, and recommended the name of Mr. K. A. Rahman, respondent‑2 in the vacancy that had occurred on the death of Mr. Sayed Mahmood, Post Master General.
Mr. M. R. Kayani, the Minister concerned, again dis agreed with the views of the Selection Board and recommended that the petitioner may be selected in place of Mr. K. A. Rahman, who was to retire in 1966, while the petitioner was to retire in December 1957. In this recommendation he had also taken into consideration the excellent record of the petitioner and also thought that it would encourage the services if a person who has arisen from ranks is posted as Post Master General. Mr. Kayani took the file to Mr. Chundrigar, who was performing the duties of the Prime Minister. Mr. Chundrigar agreed with the views of the Communications Minister, with the result that the petitioner was promoted as officiating Post Master General in place of Mr. Rahman, respondent‑2.
Representations were received from seven officers who were aggrieved against the order selecting the, petitioner as post Master General. The matter was then considered by the Prime Minister, Mr. H. S. Suhrawardy, who passed the following order oil 14th December, 1956, as reproduced in the affidavit of Mr. Nazir Ahmed para. 5 (viii) on behalf of respondent‑1.
"In my opinion the rules must be observed and the recommendation of the Selection Board based on seniority and merit must be upheld. I am sorry that Mr. Hikmat Husain has to revert after having enjoyed the office for six months but I cannot reconcile myself to such a serious departure from the rules although Mr. Hikmat Husain may be filling the post adequately."
As a result of this order the petitioner was reverted. It is not necessary for the disposal of the present petition to go into the comparative merits of the petitioner and the respondent‑2, Mr. Rahman, as detailed in the affidavit of Mr. Nazir Ahmed. It may however be noted that the respondent‑1 has not denied the fact that the Government had taken into consideration while appointing the petitioner as Post Master General that he was to retire in 1957 and on condition that no extension of service would be given after lie attained the age of superannuation.
The petitioner's reversion does not amount to reduction within the meaning of Article 781 of the Constitution, and "further, as it was not by way of punishment and misbehaviour or unsatisfactory conduct, there was no reason or occasion to call upon him to show cause against the said reversion. In fact, in the circumstances of the case, there was nothing which the petitioner could be called upon to show cause or explain." The Prime Minister, Mr. Suhrawardy, it is urged, had every right to pass the order that he passed in December 1956 as a result of the representations made by various people against the propriety and validity of the appointment of the petitioner. Moreover, the order appointing the petitioner as officiating Post Master General "until further orders" itself implied that an order of the nature that has been passed by the Prime Minister, Mr. Suhrawardy, could be passed. On these grounds, it is urged, the petition should be dismissed.
Mr. Brohi, the learned advocate for the petitioner, on the facts stated above raised two‑fold contentions before us. He contended in the first place that the order appointing the petitioner as officiating Post Master General having been passed by a competent authority and bona fide, the successor- in‑office of that authority, after the decision had been acted upon and was in effective operation, could not set aside the same. In the next place it was urged that the petitioner, as a result of the notification dated the 19th December 1956 was reduced in rank within the meaning of Article 181 of the Constitution, as he was to work as Assistant Director General, p & T. Directorate, instead of officiating Post Master General, and therefore was entitled to show‑cause notice.
Mr. Brohi in support of his first contention that the second order passed by the Prime Minister in December 1956 was a nullity, relied upon the well‑known case of Ranga chari, (A I R 1937 P C 27). The facts of the case before the Privy Council were :‑
A Sub‑inspector of Police was charged for some irregular and improper conduct in the execution of his duties as a police‑officer and the same was enquired by an A. S. P. The inquiry was completed, and in the meantime the Sub inspector applied for an invalid pension. The Sub‑inspector was allowed by the S. P. to go on invalid pension After some time the S. P. who had passed the order, was transferred and his successor‑in‑office looked into the report of the A. S. P. who had enquired into the conduct of the Sub‑inspector with the result that he ordered the pension of the Sub inspector to be suspended and later on he ordered his removal from service. Their Lordships of the Privy Council, on the facts stated, held as under :‑
"In these circumstances the case becomes a case in which after Government officials duly competent and duly authorized in that behalf have arrived honestly at one decision, their successors‑in‑office, after the decision has been acted upon and is in effective operation, purport to enter upon a reconsideration of the matter and to arrive at another and totally different decision. It seems to require no demonstration that an order purporting to remove the appellant from the service at a time when, as Their Lordships hold, he had for some months duly and properly ceased to be in the service, was a mere nullity and cannot be sustained."
I have underlined the last sentence in the observations of Their Lordships of the Privy Council in order to emphasize as to why Their Lordships in that case held that the second order was a nullity. As a result of a valid order passed by a competent authority bona fide the Sub‑inspector having been granted pension had ceased to be in service and therefore he could not be dismissed. The question is, can the same be said about the notification dated 13th August 1956. The relevant portion of the notification reads as under :‑
"The following transfers and appointments were made in the interest of service and until further orders, with effect from the 7th July 1956 (F. N.) :‑
(1) Mr. Hamidullah . . . . . . . . . . .
(2) Mr. H. B. Kazi . . . . . . . . . . .
(3) Mr. Q. S. Hikmat Husain Officiating Post Master General, Southern (West Pakistan) to be Officiating Post Master General, Southern Circle, Karachi."
Reading the above order as such and keeping in view the words "until further orders" and the word "officiating" it A cannot be said that the possibility of another order modifying the same was ruled out. It could be set aside after show cause notice. The order before the Privy Council was a final and an absolute order and the same cannot be said about the order in question.
I would now proceed with the second contention of Mr. Brohi which was his main contention. In order to appreciate this that the petitioner was entitled to show cause notice within the meaning of Article 181 of the Constitution, it would be convenient to set out the relevant provisions of the Constitution :‑
180. Except as expressly provided by situation‑
(a) Every person who is a member of a defence service, or of a civil service of the Federation, or of an All Pakistan Service, or holds any post connected with defence, or a civil post in connection with the affairs of the Federation, shall hold office during the pleasure of the President ; and
(b) every person who is a member of a civil service of a Province or holds any civil post in connection with the affairs of a Province, other than a person mentioned in paragraph (a) of this Article, shall hold office during the pleasure of the Governor.
181. (1) No person who is a member of a civil service of the Federation or of a Province, or of an All Pakistan Service, or holds a civil post in connection with the affairs of the Federation, or of a Province, shall be dismissed or removed from service, or reduced in rank, by an authority subordinate to that by which he was appointed.
(2) No such person as aforesaid shall be dismissed or removed from service, or reduced in rank, until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him Provided that this clause shall not apply‑
(a) Where a person is dismissed or removed from service or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge ;
(b) where an authority empowered to dismiss or remove from service a person, or to reduce him in rank, is satisfied that for some reason, to be recorded by that authority, it is not reasonably practicable to give that person an opportunity of showing cause ; or
(c) where the President or the Governor, as the case may be, is satisfied, for reasons to be recorded by him, that in the interest of the security of Pakistan or any part thereof, it is not expedient to give to that person such an opportunity."
The provision contained in Article 180 corresponds to the English rule that all service under the Crown is held at the pleasure of the Crown. In our Constitution, however, this general rule is qualified by the words "except as expressly provided by the Constitution". Article 181 of the Constitu tion lay down two conditions under which that pleasure may be exercised and disciplinary action taken as against one class of public officers, i.e. those who hold any civil office under the authority of the Federation or of the Provinces. These con ditions are :‑
(i) that such an employee shall not be dismissed or removed by any authority subordinate to that by which he was appointed ;
(ii) that such an employee shall not be dismissed, removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.
There are certain exceptions to the show‑cause notice when the same may be dispensed with these are three in number and have already been reproduced above under the proviso of Article 181 of the Constitution.
The object underlying Article 181 is clearly to afford some protection to a class of public servants who hold their office at the pleasure of the President or the Governor. Prior to Government of India Act, 1919, there was no statutory provision controlling the pleasure of the Crown in the matter of termination of the services of a civil servant in India. The English Common Law doctrine applied in all respects. Section 96B of the Government of India Act, 1919, for the first tune made some statutory provision relating to this matter. The only safeguard that it gave to the civil servants was that they could not be dismissed by any authority sub ordinate to that by which they were appointed. Government of India Act, 1935, however, made more elaborate and explicit provision which was contained in section 240 of the same Act. This section for the first time laid down a procedural statutory safeguard in the interest of the civil servant by providing "a reasonable opportunity of showing cause against the action proposed to be taken" against him. Article 181 of the Constitution is substantially the same except for the addition of the word "removed" in clause (2) of Article 181 and (c) to the proviso of the said clause. This Constitutional safeguard looked at in this historical background is a definite advance on the Common Law right of the civil servant.
Mr. Brohi relying on this absolute nature of the con stitutional safeguard provided under Article 181 contended that the petitioner having been promoted to officiate as Post Master General was reduced in rank by being reverted to the post of Assistant Director General and was, therefore, entitled to a show‑cause notice. The learned Attorney General, who appears for the respondents, met this con tention in two‑fold ways (1) that the notification ordering the petitioner to revert as Assistant Director General was passed in the normal course and therefore it was not a case of reduction in rank ;
(2) that the provision of Article 181 was not attracted as the said order was not passed as a result of punishment.
The learned Attorney‑General, however, conceded that the provision of Article 181 of the Constitution would be attracted even in the case of officiating appointments, provided the reversion is not in the usual course of things and provided that it is also as a result of punishment.
Mr. Brohi candidly stated that so far as the decisions of Indian Courts interpreting "reduction in rank" under Article 311 of the Indian Constitution, which is substantially the same as Article 181 of our Constitution, are concerned, they lay down that reduction in rank involves two elements
(i) a reduction in the physical sense ; (ii) such degradation or demotion must be by way of penalty.
In the light of the contentions and concessions made by the learned advocates for the parties, two questions arise for consideration : (1) whether there was any reduction in rank ;
(2) if so, what is its effect if it was not as a result of punish ment I propose to consider these questions separately.
Reduction in rank" is a mixed question of fact and law. It would depend upon facts and circumstances of each case whether there was reduction in rank or not. It is not possible to lay down any hard and fast rule for the determination of this question. A person, for instance, who is asked to officiate in a higher post but in a leave vacancy, say, for a week, cannot be said to be reduced in rank if he is reverted to his post on relief. On the other hand, it would be a case of reduction in rank if a person is promoted to a high rank in a permanent vacancy, though to officiate, when he is asked to revert to his original post (lower post). In the u absence of any specific condition a person promoted to officiate in a permanent vacancy is supposed to be confirmed in that post. On the analysis of the situation it would appear that in the former case there was no other implication in the employment except this that after the leave vacancy he would revert to his original post, while in the latter case the implications are that he would be reverted only on the ground of inefficiency or unsuitability or any other similar ground ; otherwise he would be confirmed. In the present case also, all those who have been promoted to officiate, as Post Masters General would be confirmed in the usual course of things. The learned Attorney‑General did not contend otherwise.
The learned Attorney‑General, however, very strenuously contended that, under the circumstances of the present case, the reversion of the petitioner was in the usual course of things, and, therefore, it did not amount to a reduction in rank. In support of his argument he relied on three facts as disclosed in the affidavit filed by Mr. Nazir Ahmad, Director. Postal Training, Ministry of Communications, on 14th September 1957. These facts are disclosed in paragraphs 4, 5 and 6 of the affidavit of Mr. Nazir Ahmad. The grounds relied upon, shortly put, come to this :‑
(i) that the order reverting the petitioner was passed on the representation of respondent 2 and other senior officers ;
(ii) that the petitioner having been appointed only in an officiating capacity and until further orders, the order reverting him to his original post was in the usual course of things ;
(iii) that the petitioner not having been confirmed in the post had acquired no right, and, therefore, could be reverted in the normal course.
He contended that under the circumstances disclosed above, the reversion of the petitioner could be said to be only in the "usual course" of things.
I have given my careful consideration to the above grounds urged by the learned Attorney‑General, and I have come to the conclusion that the order reverting the petitioner on these grounds cannot be said to be "in the usual course" or "in the normal course" of things. The question is, as to what is to be understood from the expressions " in the normal course" or "in the usual course" of things. If a thing is likely to happen in a given set of circumstances, one would say that "it was in the normal course of things". The question before me is very simple. Are these persons who have been appointed as Post Masters General on the recom mendation of the Selection Board ordinarily expected to revert to their original posts (lower rank). or whether they were likely to be confirmed in all probability In my opinion, when persons have been selected by the Government on the ground of their merit and seniority for promotion to higher ranks, they are more likely to be confirmed than to revert to their original posts. The Selection Board selects persons for promotion to a higher rank only in clear vacancies. This fact was not denied by the learned Attorney‑General. All that was urged was that somebody had a lien on one of the posts of the Post Masters General. It may be that someone had a lien but that does not mean that he was likely to revert. More over, if that person in fact did revert, it could perhaps be said that the reversion of the petitioner was in the normal course. But that is not what has happened in this case.
I would now consider the question whether under the circumstances relied upon, the reversion of the petitioner was in the usual course. It is admitted by the respondents that the post of the Post Master General is a selection post and that the appointment to a selection post is not appealable. The representations, therefore, made by persons aggrieved against the selection of any person to the post of the Post Master General cannot be said to be in the usual course of things. Any result, therefore, that may follow on such representations also cannot be said to be in the usual.
The expression "officiating capacity" in relation to a person promoted in a clear vacancy only implies that the person will be confirmed if his work is found to be satisfactory.
Any order passed either on representations of persons aggrieved or on the protest of the Selection Board cannot be said to be in the normal course. No rule or law has been shown under which persons aggrieved against a promotion can make representations. Similarly no provision of law or rule has been shown under which the Selection Board can protest against any decision that may have been taken by the Government promoting someone to a higher rank. In the absence of any such rule or law, representations by aggrieved persons or protests of the Selection Board that its decision was not accepted would be unusual and therefore any order passed thereon cannot be said to be in the normal course of things.
Reversion of a person promoted to officiate in a permanent vacancy is not the usual thing. A distinction must be made between persons who are simply to officiate in a higher rank and persons who are promoted to a higher rank. A person who is promoted to a higher rank, though to officiate, is intended ordinarily to be confirmed in that post.
There are other circumstances also which may be con sidered in this connection that the reversion of the petitioner could not be in the ordinary course of things. The petitioner was promoted to fill this vacancy on certain considerations. Mr. M. M. Hussain, from the office of the Director General, Posts and Telegraphs, wrote a letter on 29th July 1956, conveying on behalf of the Government that the petitioner was selected to the grade of Post Master General on two considerations (1) that the petitioner was to retire on 31st December 1957, and (2) that the petitioner was not to get any extension of service after 31st December 1957. The respondents have not denied the contents of this letter. All that has been said in respect of these considerations for the appointment of the petitioner is as under
That the considerations for the appointment of the petitioner as set out in Para 7 of the petition are irrelevant and extraneous.
From a perusal of this letter of Mr. M. M. Husain the Government's point of view is quite clear that the petitioner in the usual course of things was to hold the appointment till 31st December 1957.
I have no doubt for the reasons given above that the reversion of the petitioner was not in the normal course of things.
The question that now remains for consideration is as to what is the effect if a person is not reverted to his original post as a result of penalty or punishment. The learned Attorney General contended that where a person was reverted to the lower rank, but not as a result of penalty or punishment it would not amount to "reduction in rank" within the meaning of Article 181 of the Constitution. In support of his contention he relied on these cases :
O. N. Chauhan (A I R 1955 All. 528). G. K. Sinha (A I R 1957 All. 152), M. Vichorey (A I R 1952 Nag, 288), Jatindra Nath Biswas (A I R 1954 Cal. 383), Shri Ram Piari (A I R 1956 Punj. 220).
The substance of the decisions relied upon by the learned Attorney General comes to this that there is no reduction in rank unless the reversion is as a result of punishment or penalty. These authorities have not given any reasons as to how the words "as a result of penalty or punishment" have to be read after the words "reduced in rank" in Clause (2) of Article 311 of the Indian Constitution. Clause (2) of Article 311 reads as under :‑
No such person as aforesaid shall be dismissed or reduced in rank until he has been given a reasonable opportunity of showing cause . . . .
Reduction in rank may be as a result of punishment or penalty, but it does not follow that where reduction in rank is arbitrary, the provision of Article 181 of the Constitution is not attracted. In fact, the Constitution seems to have p provided a safeguard under Article 181 against arbitrary decisions and actions of the Executive by providing that one cannot be reduced in rank without being given a reasonable opportunity to show cause.
The basis of the Indian decisions mentioned above under Article 311 of the Indian Constitution appears to be the principle laid down in the case of Shyamlall, (A I R 1954 S C 369). Though the Supreme Court of India in the case of Shyamlall was interpreting the words "removal" and "dismissal", but the same test seems to have been applied in the case of "redaction in rank" also : (c. f. A I R 1957 All. 152, at p. 153, para 6). It would, therefore, be necessary to examine this case as to whether it lays down any principle as to how any limitation can be put upon the words "removal" and "dismissal". Dass, J., at page 374, observed :
There can be no doubt that removal‑I am using the term synonymously with dismissal‑generally implies that the officer is regarded as in some manner blameworthy or deficient, that is to say, that he has been guilty of some misconduct or is lacking in ability or capacity or the will to discharge his duties as he should do. The action of removal taken against him in such circumstances is thus founded and justified on some ground personal to the Officer. Such grounds, therefore, involve the levelling of some imputation or charge against the officer which may conceivably be controverted or explained by the officer.
I have carefully gone through this judgment. I do not find any discussion as to how any limitation can be put on the words "removal" and "dismissal" by the Court. If once the Court comes to the conclusion that a person has been removed or dismissed from service which is a question of fact, the question as to why he has been removed is immaterial so far as Article 181 of the Constitution is con cerned.
The first and most elementary rule of construction is that it is to be assumed that the words and phrases of technical legislation are used in their technical meaning, if they have acquired one, and otherwise, in their ordinary meaning, and secondly, that the phrases and sentences are to be construed according to the rules of grammar : (Maxwell on Interpreta tion of Statutes, Edn. X, page 3). It is but a corollary to the general rule of literal construction that nothing is to be added to or taken from a statute unless there are similar adequate grounds to justify the inference that the legislature intended which it omitted to express : (Maxwell, page 12). It is clear that if the precise words used are plain and unambiguous, we are bound to construe them in their ordinary sense, even though it does lead to an absurdity or manifest injustice. Words may be modified or varied where their import is doubtful or obscure, but we assume the functions of legislators when we depart from the ordinary meaning of the precise words used, merely because we see, or fancy we see, an absurdity or manifest injustice from an adherence to their literal meaning. The mere fact that the results of a statute may be unjust or absurd does not entitle this Court to refuse to give it effect, but if there are two different interpretations 1 of the words in an Act, the Court will adopt that which is just, reasonable and sensible rather than that which is none of those things : (Craies on Statute Law, 5th Edn. page 82). Viscount Simon in an appeal from India said : "again and again this Board has insisted that in construing enacted words we are not concerned with the policy involved or with the results, injurious or otherwise, which may follow from giving effect to the language used. (Craies, page 83). This rule was thus expressed by Jessel, M. R. : "Anyone who contends that a section of an Act of Parliament is not to be read literally must be able to show one of two things‑either that there is some other section which cuts down its meaning, or else that the section itself (if read literally) is repugnant to the general purview of the Act." (Craies, page 84). Where the language is explicit, its consequences are for Parliament, and not for the Courts, to consider. In such a case the suffering citizen must appeal for relief to the law‑giver and not to the lawyer . . . . . . . In considering the true con struction of an Act, I am not so much effected as some judges are by consequences which may arise from different construc tions. (Craies, page 85).
The words of Article 181 must be read in the background of the rule of construction of statutes reproduced above. Clause (2) of Article 181, which has already been reproduced, must be interpreted in the light of the above rule of construc tion.
It would be against the rule of construction to read the words "as a result of punishment or penalty" after the words 'H "dismissed or removed from service or reduced in rank". To read any such words in clause (2) of Article 181 would be putting a limitation upon the words "dismissal, removal or reduction in rank". Moreover any such constitution would amount to putting a premium oil the arbitrary action of the Executive. This would be to deprive a class of civil servants of the safeguard that has been provided under clause (2) of the Constitution.
The learned Attorney General has also relied upon a case of this Court Sajjad Ahmad Khan (P L D 1957 Kar. 685). I have carefully read this case. The question whether punishment was a necessary ingredient of "reduction in rank" was not raised in that case, and therefore no decision was given on that point.
Mr. Brohi, the learned advocate who appears for the petitioner cited two cases in support of his contention that if the Court found as a matter of fact that there was reduction in rank it was sufficient to attract the provisions of Article 181 of the Constitution. He relied on Muhammad Afzal Khan v. Federation of Pakistan (P L D 1957 Lah. 17) Kayani, J., while considering the provision of Article 181 of the Constitution observed :
Removal, it is argued, necessarily results from mis conduct, and if the notice does not allege misconduct, Article 181 is not attracted. Removal, dismissal and reduc tion, we are told, are 'technical' words. For my part I am not inclined to confine these terms to cases of misconduct.
Mr. Brohi also relied upon a case of this Court, Manzoor Hasan Rizvi Writ Petition No. 159 of 1976 (P L D 1957 Kar. 804). In that case my brother, Wahiduddin, J., considering the provision of Article 181 observed :
Once it is found that the petitioner's rank in service has been reduced, the question for determination would always be whether it was made after giving reasonable and sufficient opportunity of showing cause against the action proposed to be taken . . . .
He further observed :
In our judgment it is the duty of the Department con cerned to give a reasonable opportunity to show cause to a person if they intend to reduce his rank, whether as an administrative measure or by way of penalty.
The learned Attorney General has not cited any case of this Court in which this question may have been directly considered. I have after giving my careful consideration to this aspect of the question come to the conclusion that no limitation can be put upon the words "reduction in rank" if once the Court was to find as a matter of fact that there was a reduction in rank. I would hold that the respondent has failed to observe the mandatory provision of clause (2) of B Article 181 of the Constitution.
Lastly, it was contended by the learned Attorney General that there was no legal right available to the petitioner and corresponding obligation cast on the respondent‑1. There is no force in this contention in view of our finding that under the circumstances of the present case clause (2). of Article 181 of the Constitution applies.
It is not necessary to make any comments on the conten tion of the learned Attorney General that this Court cannot inquire into as to what advice has been tendered by a Minister. We have not made any enquiry. We have considered in coming to our decisions only those facts which were deposed to on behalf of the respondent‑1.
We would, for the reasons given above, accept the petition, and order that the petitioner be restored to the post of Post Master General or its equivalent post. We would also award the costs of the petition to the petitioner.
A. H. Petition accepted.
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