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Civil Appeal No. 24 of 1959, decided on 23rd December, 1959.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 1st May 1958, in Writ Petition No. 686 of 1957).

Government servant-Promotion-From Class II to Class I temporarily, of officer originally recommended by Public Service Commission for Class I but failing to get post in that class for lack of vacancy-Reversion from Class 1 on representation of Senior Officers of Class II-Held, proper-No case for writ-- Government of India Act, 1935, S. 240.

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

Mahmud Ali, Senior Advocate Supreme Court, (Rafiq Ahmad, Advocate Supreme Court with him) instructed by Messrs Siddiq & Company, Attorneys for Respondent.

Date of hearing : 10th December 1959.

.---This appeal by special leave is brought before the Court by the Provincial Government of West Pakistan to call in question a decision of the High Court of West Pakistan granting to the respondent, Mr. Akram Wasti, an officer holding a substantive post in Class II Service of the P. W. D. Electricity Department, relief in the following terms :-----

"We, therefore, accept this petition and setting aside the order of the petitioner's reversion, direct that he be re-appointed to 4 Class I post,"

The facts are simple. On the 13th October, 1955, the then Punjab Government made an order in the following terms :---

"Government have decided that M/s Shahid All and Akram Wasti may be temporarily promoted to P. S. E. Class I (Junior against the departmental vacancies. This will however be subject to their being accepted by the Public Service Com mission in the normal way. It is understood that there are a number of vacancies in the department at present, 50% of which can be filled up by departmental promotions and the rest by open competition by the Public Service Commission."

At that time Mr. Akram Wasti was the junior most among the Class II officers who were thirteen in number. The reasons for his promotion were, at the time, given as follows. In January 1953, when the Public Service Commission interviewe a large number of candidates for direct recruitment to Class I Service in the P. W. D. Electricity Department, they recommended 13 of those persons for II posts which had been advertised of which eventually only 9 were filled as only so many posts were available. Mr. Akram Wasti's name was placed at No. 11 in order of merit by the Public Service Commission and consequently he failed to obtain a post in Class I Service, while continuing to be a member of the Class II Service. In 1954, five new vacancies occurred in Class I Service, and for these vacancies three officers were recommended by the Depart ment from among the departmental candidates, but two names viz., those of Shahid Ali and Akram Wasti who were already serving in the Department in Class II Service were sent up to the Public Service Commission, along with the other three names, but with the separate recommendation that the names of these two officers should be approved against posts "for which separate requisitions have been sent to them." What exactly was meant by the phrase quoted is not clear, but the result eventually was that the Commission approved the promo tion of the three departmental candidates, but as to Messrs Shahid Ali and Akram Wasti they stated, firstly, that it was not possible for them to recommend these officers on the basis of their previous recommendation, and secondly, that the vacant posts should be advertised, and subject to being within the age limit, these two officers could be promoted, if they applied for them, i.e., on the basis of direct recruitment. As it happened, both these officers had exceeded the age limit of 25 years, and since that limit has never been relaxed in their favour by the Govern ment, the only avenue of promotion to Class I service in the Department left to them was by the method of departmental pro motion. It is agreed that-the principle of seniority-cum-efficiency governs the promotion of officers from Class II Service to Class I Service in the P. W. D. Electricity Department.

Within the Department, a feeling had grown up that Messrs Shahid Ali and Akram Wasti had suffered some kind of injustice through their failure to obtain posts in consequence of their being favourably placed in the Public Service Commission's list of January 1953. The nothing within the Department on this point has been detailed in the judgment of the High Court, and will be referred to later. The eventual order was passed upon a direction by the Minister in the Department concerned, approving the promotion of Messrs Shahid Ali and Akram Wasti on the departmental side, upon the following grounds, viz :----

"as they were already once selected by the Public Service Com mission in 1953, against direct recruitment in open competition and have also worked in the posts against Class I (Junior) in the Department for 2 years and 8 months respectively."

The result of this direction was that the order quoted at the com mencement of this judgment was issued.

It was inevitable in view of Mr. Akram Wasti's lack of seniority, that Class II officers senior to him should appeal against this promotion and after the necessary enquiries their appeal was accepted and on the 20th March, 1957, an order was made by the Government that the ground of departmental promotions being seniority-cum-efficiency, Mr. Akram Wasti should be reverted to the Class II Service, but should not be deprived of the extra pay he had already drawn in Class I Service. Recommendations for departmental promotion from among the eligible officers were asked for. It was against this order of the 20th March, 1957, that Mr. Akram Wasti moved the High Court by means of a petition for "a writ of mandamus or any other appropriate writ, order or direction-to set aside the order of the Additional Chief Engineer, Electricity Branch, Government of West Pakistan, Lahore contained in his order No. 13/G, dated 22-3-57, and the said respondents be directed to restore the petitioner- as Assistant Executive Engineer". The High Court granted relief to Mr. Akram Wasti in the terms already reproduced, upon the grounds appearing from their judgment in the extract quoted below :----

"It is the right of Government to promote an officer from Class II to Class I and provided that the seniority of officers, which is one of the determining factors for promotion, is not ignored, the decision of Government to promote a junior officer over his seniors will not be regarded as having been taken arbitrarily. We are told that in December 1952, when Mr. Shahid Ali and Mr. Akram Wasti were placed at No. 10 and 11, respectively, of the approved list for the eleven adver tised posts in Class I, they had been selected out of a number which included those officers who had subsequently appealed against the promotion of the petitioner on a departmental basis. It is obvious, therefore, that the Public Service Com mission regarded Mr. Shahid Ali and Mr. Akram Wasti as possessing superior merit to other officers in the Class 11 Service. The Government did no more than to recognize the merit of this selection by promoting Messrs Shahid Ali and Akram Wasti on the ground that they had been selected by the Com mission also. They were alive to the fact that other officers senior to them in Class II Service were being superseded. A decision once taken in full cognizance of all the circumstances and not taken in an arbitrary manner must not be altered lightly, particularly if effect has been given to it. If the first decision was taken properly and we are of the opinion that it had been taken properly then the second decision would be improper and there would be danger of its being regarded arbitrary."

It is contended on behalf of the appellant Government that these grounds are not sound. They are based on misapprehension regarding the nature of the recommendations of the Public Service Commission in relation to direct recruitments, and the nature of similar recommendations made when departmental promotions are proposed. These two forms of recruitment to the superior service are different in category to the extent that it is wholly incorrect to say that any person in Class II Service who is recom mended for direct appointment to a Class I post is necessarily certified to possess "superior merit to other officers in the Class II Service." Even if some "superior merit" may be spelt out of such recommendation, it can never be regarded as superior merit for the purpose of promotion out of the Class II Service into Class I Service. The noting which led up to the order of pro motion dated the 13th October, 1955, clearly shows that the major factor operating on the mind of the authorities who dealt with the case was that Messrs Shahid Ali and Akram Wasti had suffered an injustice through not having been given, up to that time, the appointments for which they were recommended by the Public Service Commission in January 1953. Their cases had not been examined side by side with those of their seniors for the application of the governing principle of seniority-cum-efficiency, subject to which promotions are required to be made to Class I Service.

The requisites for direct recruitment to a higher service, and for departmental promotion from the next below service, are entirely different. Direct recruits are usually taken at a compara tively young age which is regarded as the proper age for induction into the higher branches of service. They are required to possess a high general education, supplemented by a high level of technical education as well. If persons possessing these three qualifications happen to be in departmental service in a lower grade, and are permitted to apply for direct recruitment, the departmental experi ence which they have gained in actual service may place them at an advantage compared with candidates who do not possess such experience. But once the age limit has been passed, an officer in Class II Service can only hope to enter the higher service by the method of promotion as a departmental candidate. Ex-hypothesis, if he is within the age limit for recruitment to the higher service, he must be a very junior person in the lower service, and consequently his length of experience would not compare favorably with those of his seniors. Nor would he have enjoyed the same opportunity in which to establish a foundation for promotion on the basis of approved work, as his seniors have been afforded. In the application of the rule of seniority-cum-efficiency, such a candidate for promotion out of the Department, must necessarily be at a disadvantage. Therefore, the recommendation obtained by Mr. Akram Wasti from the Public Service Commission in, January 1953, cannot be regarded as a valid recommendation for promotion out of the Class II Service, and such merit as was' recognised by the earlier recommendation was not relevant to the question of deciding whether he should be promoted department ally. The learned Judges have held that the Government "were alive to the fact that other officers senior to them in Class 11 Service were being superseded", but reference to the nothing does not bear out this conclusion. The later action of the Government clearly shows that the first time when the authorities concerned became "alive" to the principle of seniority-cum-efficiency was after the appeals of many seniors of Mr. Akram Wasti had been received. Therefore, the decision of October 1955, cannot be thought, as the learned Judges have declared, to have been "taken in full cognizance of all the circumstances and not taken in an arbitrary manner." Where an authority is required by the rules governing its action, to take action in the light of certain conside rations and such authority is found to have taken its action in ignorance of or without taking into account a relevant consideration of an important nature, that action cannot but be regarded as arbitrary. It can by no means be thought to have been taken in full cognizance of all the relevant circumstances. The learned Judges considered that the first decision was taken properly, and in the light of the facts, it would appear that this conclusion is plainly incorrect. Therefore, the correct action taken by means of the second order could by no means be regarded as improper.

It was pressed before us on behalf of the respondent that by reverting Mr. Akram Wasti, the Government have in fact reduced him in rank, and as they did this without notice to him as required by the relevant Constitutional statutes, the action is bad in law. We are not impressed by this argument. The order which Mr. Akram Wasti regards as the legal and proper order made in his favour is one by which he was "temporarily promoted." The order also directed that the temporary promotion was subject to its being "accepted by the Public Service Commission in the normal way." By this direction, it was meant that the case should be sent to the Public Service Commission for their approval, and it was admitted at the Bar that this necessarily involved an examination by that Commission of the question whether in making the recommendation for departmental promotion out of Class II Service, the Government had borne in mind the principle of seniority-cum-efficiency to be applied to all officers in Class II Service. In other words, the action which the Government took in March 1957, was one which the Public Service Commission would necessarily have required them to take in consequence of the Government's own order of the 13th October, 1955. As it happens no reference was made to the Public Service Commis sion, presumably because the order was challenged inside the Department by means of the aforementioned appeals. By an order of "temporary promotion" made subject to such a condi tion as that of consultation with the Public Service Commission, in circumstances where the main principle applicable to the selection had been completely ignored, no substantial rank of any kind in the higher service can be assumed to have been con ferred upon Mr. Akram Wasti of which he can be thought to have been deprived by the making of the order correctly applic able to his case. By the use of the expression "temporarily promoted" the impression is clearly gained that at the very least, Government retained the power at their discretion to cancel the promotion, and to restore Mr. Akram Wasti to his substantive rank in the lower service. There is no question here of the reversion being ordered as an act of punishment. The case of persons holding temporary appointments of indefinite duration in temporary Departments also of indefinite duration is note comparable to that of an officer who has expressly been "tem porarily promoted." The following passage from the judgment of the learned Judges Is relevant to this question :-----

"The word temporarily' should be explained to make no difference because admittedly all appointments are being made on a temporary basis until certain draft rules which have been in existence now quite for a number of years are approved finally."

This observation is addressed to temporary appointments, and is not directly relevant to the interpretation of the expression "temporarily promoted," in the context of the question whether by the cancellation of such an order of promotion, any reduction in rank is involved to attract the provisions of section 240 of the Government of India Act, 1935. In our opinion, by the cancella tion of the order of temporary promotion made in Mr. Akram Wasti's favour, Government did not deprive him of any rank to which he had any vested right, since it had only been conferred upon him temporarily, to be terminated or continued at the will of the Government.

We consider that Mr. Akram Wasti was rightly reverted in consequence of the appeals of his seniors in Class II Service, on the basis that their rights on the basis of seniority-cum-efficiency had not been taken into account in appointing Mr. Akram Wasti to Class I Service over their heads. The order of the Government of March 1957 is correct in so far as it directs that the selection to fill the vacancy caused by Mr. Akram Wasti's reversion should be filled from among the eligible officers on the basis of seniority and examination of their working records.

We accordingly allow this appeal and direct that the writ issued by the High Court should be recalled. In view of the inconsistency of attitude displayed by the Government at different times, we leave the parties to bear their own costs.

K. M. A./A. H. Appeal allowed.

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