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Second Appeal No. 424 of 1956, decided on 22nd January 1958, from the decree of the Court of Zia Ullah Khan, Senior Civil Judge, Lahore, dated the 31st March 1956, affirming that of Muhammad Dastgir, Civil Judge, IV Class, Lahore, dated the 12th August 1954.
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Reduction in rank-‑What amounts to‑Reversion without show‑cause notice‑Not lawful unless for administrative reasons.
Where the vacancy for which a person was appointed came to an end or the total vacancies that remained were only such as were filled by those senior to him.
Held, there was no reduction in rank if such person was reverted after he had completed the period contemplated by his officiating appointment.
Where a person is appointed temporarily to a senior post and he is reverted not because of administrative reasons but because of misconduct or unfitness:
Held, that it was a case of reduction in rank.
Where a person appointed to a particular post in an officiating or temporary capacity is reverted on account of his misconduct or unfitness the period contemplated by the order of his appointment not having come to an end and it is as a punishment that he is reverted:
Held, that reduction could not take place unless there was a notice to show cause.
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Transfer of Head mistress as Assistant‑mistress on account of unfitness‑Reduction in pay‑Reduction in rank.
Held, that where the transfer of a Headmistress as an Assistant‑mistress came as a punishment, or as a consequence of proved or assumed unfitness, there was reduction in rank and the Education Department could not claim the privilege of administrative reasons.
Held, further, that in a case where pay is increased on account of some additional duties there is a reduction ill pay when the employee is reverted to a post which does not carry the same special pay and therefore the transfer of a Headmistress as an Assistant‑mistress is accompanied with reduction in pay as there is a special pay of Rs. 50 for every Head‑mistress.
Word "permanent", in certificate Interpretation and scope of.
Where the word "permanent," in a certificate, which was issued to an Assistant‑mistress temporarily appointed as Headmistress, was not entered in the same column where she was described as a Headmistress and it was contended by her that the word "permanent" referred to the post which she was holding and not to the permanent character of her service
Held; that the word "permanent" only meant that she was a permanent employee and not necessarily that she was a permanent Headmistress.
Amir Ahmad for Appellant.
V. Hussain Naqvi for Respondent.
Dates of hearing: 12th and 13th December 1957.
This is an appeal by Begum Wasim Intizar whose suit for a declaration that her reduction in rank is illegal and void has been dismissed by both the lower Courts.
2. On the 19th of October 1948, the appellant was recruited in Class II of the Subordinate Education Service in the grade of Rs. 150‑10‑190/10‑220 and was on the same date appointed Head Mistress of the Government Girls High School, Muzaffargarh, on probation for a period of one year, and she actually assumed charge on the 25th of November 1948. About a month later, she was transferred from Muzaffar garh to Gojra as Headmistress of the Government High School, Gojra. On the 17th of February 1951, she proceeded on maternity leave and remained on leave up to the 21st of July 1951. During her absence there were some complaints against her to the Inspectress of Schools, Multan Division, and as a result she was transferred to Gujranwala as Assistant- mistress. She made several representations against this order but it does not appear that she was granted a hearing though she was told that this was in fact no reduction in rank at all. The present suit was filed on the 9th of November 1951, challenging her demotion. It was stated in the plaint that the plaintiff had applied for and had been appointed as a Head Mistress and that she had been reduced to the rank of Assistant Mistress without any notice to show cause. The defendant, which is in this case the Punjab Province, pleaded that the appellant had applied for appointment as Assistant- Mistress and had been accepted in the Subordinate Education Service in the grade of Rs. 150/220, though she was put in charge of a school as she claimed. It was stated that she was as yet on probation and had not been confirmed even in the grade in which she had been appointed. It was alleged further that she had earned bad reports while working as Head Mistress and had been found unfit for running the school administration properly. She had, therefore, to be transferred from Gojra and appointed Assistant Mistress. It was con tended that under the circumstances there was no reduction in rank. The learned Civil judge, who tried the suit, framed the following issues:‑
(1) Had the plaintiff a locus standi to institute the suit and is the suit competent
(2) Was plaintiff appointed as Head Mistress and had the appointment been lawfully confirmed
(3) Does the order posting the plaintiff as Assistant Mistress amount to a reduction in grade or rank and what is its effect
On issue No. 1 the learned trial judge found that the plaintiff had locus standi to institute the suit. On issue No. 2 he found that she was a member of the Subordinate Education Service, Class II, and had been posted as Head Mistress but had not been confirmed up to the date of the institution of the suit. On issue No. 3 he came to the conclusion that there was no reduction in rank. On these findings he dismissed the suit. On appeal, the learned Senior Civil judge was of the opinion that the appellant should be deemed to have been confirmed though not as a Head Mistress but only in the grade to which she was appointed. He was of the opinion too that under the circumstances there could be no reduction in rank.
3. The first point to determine is as to whether the appellant is a confirmed employee or is as yet on probation. Under the rules, on the expiry of the period of probation, which in this case expired on the 25th of November 1949, the authority that was entitled to appoint had to make an order either confirming the employee, or refusing to confirm, or ex tending the period of her probation. No order extending the period of probation of the appellant has been produced. Mrs. R. M. Durani, Deputy Directress of Schools, was put in the witness‑box by the appellant herself and later she was pro duced as a witness by the defendant‑respondent but she did not, on either of these occasions, refer to any order passed by the Department extending the period of pro bation of the appellant. Miss K. Qureshi, the Divisional Inspectress of Schools, had also been produced by the appel lant and she too did not refer to any such order. In fact Miss Qureshi was questioned as to whether she had not her self recommended the appellant for confirmation and she stated that she did not remember. A large number of docu ments had been summoned by the appellant from the Education Department relating to the orders passed in respect of her, including documents relating to her confirmation. The Education Department chose to claim a privilege in respect of all these documents and with respect to some of these docu ments the objection was maintained by the Court. As a result, there are no documents on the file relating to her confirmation. Assuming that the Department was entitled to with‑hold the documents an inference is available that if produced they would not support the Department. However, even quite apart this inference there is sufficient material on the file to hold that the appellant has been confirmed. The appellant has produced a certificate (Ex. P. 25) signed by the Inspect ress of Schools which had been granted to her when she was travelling to India and in which she is described as "permanent". An explanation has been given that the word "permanent" refers to the post which she was holding and not to her, own status. I have no hesitation in rejecting this explanation. In that certificate it appears entirely irrelevant to state whether the post she was holding was permanent or not: Even apart from this certificate there is a circumstance which is almost conclusive of the matter and that is this. The appellant was, in 1954 when she made her, statement in the witness‑box, drawing Rs. 240 per mensem as her pay. She made a statement to that effect. This statement was not contradicted by the defendant and I have myself, on a perusal of her personal file, verified that she was in fact drawing that pay and that ever since then she has been getting increments. Now, there was an efficiency bar at Rs. 200. (The revised grade is 130‑10‑200/10‑250) I asked learned counsel for the respondent to explain how she should have crossed the efficiency bar if she was not con firmed. The only reply he could give was that her state ment as to her drawing Rs. 240 was not true. Not only was this statement not contradicted but, as stated above, it is supported by the personal file of the appellant which has been shown to me by learned counsel and I have no doubt that it is true. Then there is the important fact that although the Senior Civil judge declared her to be a permanent employee, no appeal was filed against that decision by the defendant. She had been employed nine years ago and it seems rather strange that by this time she should have neither been confirmed nor refused confirmation. In view of all that is stated above, there can be little doubt that Mst. Wasim Intizar is a permanent employee.
4. This, however, does not settle the question as to whether she is a Head Mistress. I have not an order of confir mation before me and am only making an inference from certain facts, particularly the crossing of the efficiency bar. But this crossing of the efficiency bar, though it may be conclusive as to confirmation in her own grade, is insufficient for proving that she is a Head Mistress and the same may be said of the other facts which point to her confirmation. She had been accepted in Subordinate Education Service, Class II, and could be posted, in accordance with the rules, either as an Assistant Mistress or as a Head Mistress. Not having been confirmed as a Head Mistress and having been confirmed in her own grade she obviously is a confirmed Assistant Mistress and that is all. It is true that in the certificate (Ex. P. 25) to which) I have referred, she is described as a Head Mistress and the word 'permanent', though not in the same column, is entered there. The word 'permanent' only means that she is al permanent employee and not necessarily that she is a permanent Head Mistress.
5. The next question to consider is whether, even if she had not been confirmed as a Head Mistress, her transfer to Gujranwala as Assistant Mistress was not a reduction in rank. Even if a person is appointed to a particular post in an offi ciating or temporary capacity, he cannot be reverted to a lower post without a notice to show cause unless that becomes necessary for administrative reasons. If, for instance, the vacancy for which a person was appointed came to an end or the total vacancies that remained were only such as were filled by those senior to him, it could not be said that there was a reduction in rank but in a case where a person is appointed temporarily to a senior post and he is reverted not because of administrative reasons but because of mis conduct or unfitness, that is a case of reduction in rank. I will state here what I regard as logical distinctions between the two kinds of cases. Prima facie, every case in which a person holding a higher post is reverted to a lower post is reduction in rank, but just as there can be no dismissal if the services of a person are terminated because he has completed the period contemplated by the order of his appointment there can be no reduction if a person is reverted after he has completed the period contemplated by his officiating appointment. This period may be fixed before hand or its duration may depend on a contingency. If a person were appointed in an officiating capacity for a period of six months, then after expiry of those six months, there is no reduction in rank, for the period of his appointment has come to an end. In cases where a person is not appointed for a fixed period, it is an implied term of his officiating appoint ment that if the vacancy in which he is appointed ceases to exist or the number of connected vacancies is so reduced that the one which he is filling has to be filled by some one senior to him, he is to revert to his substantive post and if he reverts to his post under such circumstances there is no reduction in rank, for the period of his appointment has terminated in accordance with the order of his appointment. Where, however, a person is reverted on account of his misconduct or unfitness, the period contemplated by the order of his appointment 'has not come to an end but it is as a punishment that he is being reverted. Thus reduction cannot take place unless there is a notice to show cause.
6. On behalf of the defendant a circular letter of the year 1945 issued by the Deputy Director of Education has been relied upon in support of the proposition that in the Education Department the appointment of a Head Mistress as an Assistant Mistress is not regarded as a reduction in rank, for such transfers are normal. It will be convenient to reproduce the whole of the letter:‑
"To
The Divisional Inspectors of Schools in the Punjab
and the Principal Central Training College. Lahore.
Memorandum No. 9868‑E, dated 12th April 1945.
Transfer of Head Masters of Government of Schools to subordinate capacity.
Recently a Head Master of a Government School was transferred as 2nd Master in the interest of public service, without reducing his pay and grade. He represented against the orders of his transfer and pleaded that it was not a transfer but a reduction in status and as such he should have been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him, under rule 14.13 (1) of Civil Services Rules (Punjab), Volume 1, Part I.
The peculiarity of the Subordinate Education Service is that no grade has been allocated for any class of officials. Head Master, 2nd and English Masters, District and Assistant District Inspectors of Schools, Lecturers in Colleges etc., are working in all the three grades of the Anglo‑Vernacular branch of the Service. The officials in the Subordinate Educa tional Service are employed where, in the opinion of the Department, they can be most useful. Transfer of a Head Master or District Inspector of a School as 2nd Master, English Master, Assistant District Inspector of Schools is normal and no appeal lies unless the transfer is accompanied with reduction in pay or grade.
(Sd.) K. C. KHANNA,
Deputy Director, for Director of Public Instruction, Punjab.
There are a number of reasons why this letter will not help the respondent. The first is that even assuming that the transfer of a Head Master as a 2nd Master on account of the exigencies of service is not a reduction in rank, it should be reduction in a case where such appointment is due to the fact the employee is regarded unfit for holding the senior post. It may possibly be argued that for administrative reason the Department is forced to appoint a Headmaster as for instance an English Master. It is possible that for the post of an English Master no other suitable person is available than a particular person who is acting as a Head Master and it may be urged that in those cases the question of reduction in rank does not arise unless there is reduction in pay, for the Department never undertakes when it passes orders of appointment as Head Master that it will not, for exigencies of the service, post him as a 2nd Master or the English Master. But this consideration cannot apply to a case where the transfer comes as a punishment, or as a consequence of proved or assumed unfitness. The second reason why this fetter is inapplicable is that there is reduction in the present case in the pay of the appellant. It is true that her ordinary pay whether she is posted as a Head Mistress or an Assistant Mistress is the pay of her own grade, but there is a special pay of Rs. 50 for every Head Mistress and it is admitted that this special pay is also part of pay. This pay is granted because of the additional administrative duties performed by a Head Mistress, but even in a case where a pay is increased on account of some additional duties there is a reduction in pay when the employee is reverted to a post which does not carry the same special pay.
7. The gist of the matter is that the appellant had been appointed to a post which was carrying a higher pay and which is certainly superior in status and she has admittedly, on account of alleged unfitness, been transferred to an inferior post. This is obviously a reduction in rank.
This appeal is accepted and the order appointing her as Assistant Mistress is declared void for want of proper notice to show cause. The appellant shall have her costs in all Courts.
Z. A. S. Appeal accepted.
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