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Civil Appeal No. 2 of 1959, decided on 1st December 1959.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 12th February, 1957, in Writ Petition No. 508 of 1956 : P L D 1957 Lah. 316).

Establishment of West Pakistan Act, 1955, S. 8 (3)"Terms and conditions admissible immediately before" prescribed date-Do not include 'far fetched" prospects of promotion to a different or higher service : [Fida Muhammad Khan v. Government of West Pakistan P L D 1957 Lah. 316 reversed.]

Held, that in evaluating the expression "terms and conditions admissible to him immediately before the 10th day of August, 1955", in relation to a particular person, it would be clearly impossible to include such far-fetched matters as his prospective promotion into a higher service upon the assumption that he might attain a status in his present service and earn the degree of approbation necessary for such promotion.

Before integration of the Province of Sind into the Province of West Pakistan, the respondent was serving as an officiating Superintendent in the Civil Secretariat, Sind. After integration it was found possible to reduce the number of posts in various categories, and the respondent became surplus to requirements in the Secretariat of the new Provincial Government. He was therefore provided with a post of Superintendent in the office of the Rehabilitation Commissioner of West Pakistan, a second class office, and from which transfer to the Secretariat and consequently eligibility for advancement within the Secretariat were no longer open to him. The respondent's grievance was that the terms and conditions of his service had thus become "less favourable" in his case.

Held, that the true construction of the words "terms and conditions admissible to him immediately before the 10th day of August 1955", in relation to the case of the respondent, would seem to justify his being given in the newly-constituted Secretariat, a post equivalent to that of Senior Assistant in the abolished Sind Secretariat, and no more. By the use of the words "admissible to him immediately before" the prescribed date, the Legislature made it clear that the terms and conditions to which they were referring were to be understood in a restricted sense.

When transferring respondent as Superintendent in a sub ordinate office, the Provincial Government provided him with the same salary etc. as he was drawing in the capacity of officiating Superintendent in the Sind Secretariat. They could not be required to do more.

Whereas, the respondent was a member of the subordinate service, the posts of Assistant Secretary and Under Secretary belonged to a different and much higher service, the latter being earned, under the rules, by "distinguished merit and ability". Upon the facts of the respondent's career it was altogether premature for him to be aspiring for the post of Assistant Secretary and beyond that to the post of Under Secretary.

The writ issued by the High Court was recalled.

Fida Muhammad Khan v. Government of West Pakistan P L D 1957 Lah. 316 reversed.

Jamil Hussain Rizvi, Advocate-General, West Pakistan (Nasim Hasan Shah, Advocate Supreme Court, with him), instructed by Ijaz Ali, Attorney for Appellant.

Respondent :-Ex-parte.

Dates of hearing : 26th November 1959 and 1st December 1959.

-This appeal by the West Pakistan Government is brought on the basis of a certificate granted by the High Court of West Pakistan and calls in question a writ issued by that High Court in favour of the respondent Fida Muhammad Khan, which is expressed in the following terms :-----

" We, therefore, hold that by this order of the Chief Secretary, dated the 29th September, 1956, the conditions of the peti tioner's service have become less favourable than they were in Sind and direct that, wheresoever placed, he should be treated as belonging to the Civil Secretariat, so that his prospects of promotion to the posts of Assistant Secretary and Under Secretary are not closed to him."

At the hearing of the appeal, we were informed that Fida Muhammad Khan has been "screened out" from the service of the Provincial Government, and that is by itself a sufficient ground for recalling the writ which has been issued in his favour. It is desirable however that we should express our opinion in respect of the grounds upon which the learned Judges found it possible to issue a direction to that Government of the nature appearing from their order quoted above.

The status of Fida Muhammad Khan was, prior to the integration of the Provinces of West Pakistan into a single Province, that of a Senior Assistant in the Secretariat of the Sind Government. He was eligible for promotion as a Superintendent in that Secretariat, and from the 21st October 1953, until the integration which took place in October, 1955, he had been officiating as a Superintendent. In consequence of the integration, it was found possible to reduce the number of posts in various categories, and it appears that Fida Muhammad Khan became surplus to requirements in the Secretariat of the new Provincial Government. He was therefore provided with a post of Superintendent in the office of the Rehabilitation Commissioner of West Pakistan, which is a second class office, and from which transfer to the Secretariat and consequently eligibility for advance ment within the Secretariat were no longer open to him.

Such rights in law as Fida Muhammad Khan could claim contained in section 8 (3) of the Establishment of West Pakistan Act 1955. As a result of that provision, he became a person "serving the Crown in connection with the affairs of the Province of West Pakistan on such terms and conditions as the Governor of the Province of West Pakistan may determine" and it was further provided that "such terms and conditions shall not be less favourable than the terms and conditions admissible to (him) immediately before the 10th day of August, 1955". From the terms of the writ issued in Fida Muhammad Khan's favour by the learned Judges, it appears that they were inclined to construe the expression "terms and conditions admissible to (him) immediately before the 10th day of August, 1955" as if they included his chances of promotion into a different and much higher service. The post of Assistant Secretary in the Sind Secretariat was to be filled by promotion of a suitable Superin tendent from the Department in question or from another Depart ment. Moreover the post of Assistant Secretary is carried on the cadre of the Provincial Service, whereas Fida Muhammad Khan was a member of a Subordinate Service. Promotion to the post of Under Secretary which is also mentioned by the learned Judges is earned under the rules by "distinguished merit and ability". We consider that upon the facts of Mr. Fida Muhammad Khan's career, it was altogether premature for him to be aspiring for the post of Assistant Secretary and beyond that to the post of Under Secretary, and that consequently the order issued by the learned Judges was, speaking with respect, wholly inappropriate to a man of his type. The opinion held by the Government regarding Mr. Fida Muhammad Khan, which is stated by them in the course of the case appears clearly from the following averment which is quoted in the judgment of the learned Judges, that the Government "had superseded the petitioner in Sind because of the latter's consistently bad service record." It is difficult to see how a person who had a "consistently bad service record" could possibly be thought of as "a suitable Superintendent", long before he had been even confirmed as a Superintendent, for the purpose of being promoted out of the Subordinate Service to the Provincial Service. An act of assump tion into a higher order of service was required, and it is clear that situated as he was, Fida Muhammad Khan could not even pretend that he was a suitable subject for such an elevation. The reference to the post of Under Secretary, in the direction of the learned Judges, for promotion to which "distinguished merit and ability" is necessary, presumably in a person who has already gained promotion to the post of Assistant Secretary, is very difficult to understand.

The true construction of the words "terms and conditions admissible to him immediately before the 10th day of August 1955", in relation to the case of Fida Muhammad Khan, would seem to justify his being given in the newly-constituted Secretariat, a post equivalent to that of Senior Assistant in the abolished Sind Secretariat, and no more. By the use of the words "admissible to him immediately before" the prescribed date, the Legislature made it clear that the terms and conditions to which they were referring were to be understood in a restricted sense, and therefore in evaluating the expression in relation to a particular person, it would be clearly impossible to include such, far-fetched matters as his prospective promotion into a higher service upon the assumption that he might attain a status in his present service and earn the degree of approbation necessary for such promotion. When transferring Mr. Fida Muhammad Khan as Superintendent in a subordinate office, the Provincial Govern ment were careful to see that he was provided with the same salary etc., as he was drawing in the capacity of officiating Superintendent in the Sind Secretariat. They could not be required to do more than what they actually did.

For these reasons, we allow this appeal and direct that the writ issued by the High Court should be recalled. We make no order as to costs.

A.H. Appeal allowed.

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