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Civil Appeals Nos. 35 and 46 of 1959, decided on 20th January 1960.

(On appeal from the judgment and order of the High Court of West Pakistan, Karachi Bench, Karachi, dated the 3rd of April, 1959, in Writ Petitions Nos. 159 of 1956 and 11 of 1957).

Government servant-Temporary post alternating between Chief Engineer's office and subordinate office-Service in Chief Engineer's office over long period-Confers no lien or vested right -Reversion on promotion to temporary Assistant, to subordinate office-No violation of natural justice ar denial of vested right-No reduction in rank involved--No case for writ-Constitution of Pakistan (1956), Arts. 170, 181.

Civil Appeal No. 35 of 1959

Nazir Ahmad Khan, Attorney-General of Pakistan, Abdul Haque, Advocate Supreme Court, with him), instructed by Iftikharuddin Ahmad, Attorney for Appellant.

Riaz Hashmi, Advocate Supreme Court, instructed by S. A. Majeed, Attorney for Respondent No. 1.

Civil Appeal No. 46 of 1959

Nazir Ahmad Khan, Attorney-General of Pakistan, (Abdul Haque, Advocate Supreme Court, with him), instructed by Iftikharuddin, Attorney, for Appellant.

Riaz Hashmi, Advocate Supreme Court, instructed by M. Majeed, Attorney for Respondent No. 1.

Respondents No. 2 & 3 not represented.

Dates of hearing : 12th and 13th November 1959.

.-These are two appeals by special leave from a consolidated judgment of the High Court of West Pakistan, Karachi Bench, in two cases, passed in Writ jurisdic tion. The appellant in each case is Pakistan, through the Secretary to the Ministry of Works, Karachi, and the two contes ting respondents, who were petitioners before the High Court, are Hasan Ali Jafari and Manzoor Hasan Rizvi. Both the respondents had been reverted from temporary posts of Assis tants in the office of the Chief Engineer, Central P. W. D., Karachi to posts of Upper Division Clerks in Circle Offices. The operative part of the order of the High Court reads as follows :-----

"Under the circumstances, we consider that the orders of the respondents reverting petitioner Rizvi to the Superintending Engineer's office and also removing him from the Chief Engineer's office from the post of an Assistant are illegal and cannot be upheld. We, therefore, order that he will be reins tated to the post of an Assistant in the Chief Engineer's Office on one of the nine posts on which he bad a lien. In case these posts are at any time abolished in a bona fide manner, then he will be reverted to his substantive post in the Chief Engineer's Office. We entirely agree with the contention of the learned counsel for the petitioner that if he could be accommod ated in another office in case the posts of Assistants are abolished in the Chief Engineer's office, then the Department should consider it favourably and should accommodate him if it can possibly be done, but this cannot be claimed as of right.

So far as petitioner Jafari is concerned, he has not claimed any relief about his restoration to the post of an Assistant in the Chief Engineer's office. He has only claimed that the order of reversion to the Superintending Engineer's office is illegal and bad. We, therefore, declare that his order of reversion to the Superintending Engineer's office is illegal and ultra vires and he should be restored to his permanent post in the office of the Chief Engineer, Central P. W. D.

For the reasons mentioned above, we allow the petitions and order that writs containing the above mentioned directions be issued to the respondents. We further order the respondents to bear the costs of the two petitioners".

It will be noticed that the learned Judges made a distinction in respect of relief between the cases of Rizvi and Jafari, although identical reliefs had been asked for by them in their petitions. The High Court erroneously assumed that Jafari had not asked for his restoration to the post of an Assistant in the Chief Engineer's office. Jafari, however, has not cared to appeal on the ground of this discrimination between the two petitioners, by the Court. .

In order to appreciate the circumstances, which led to the grant of the writs in question, it is necessary to set out the history of service of the two respondents.

Hasan Ali Jafari was first appointed to a temporary post of a clerk in the scale of Rs. 40-5-/2-90 (EB at Rs. 75) in the combined Central P. W. D. office of the Government of India, New Delhi, with effect from 24-10-41, vide Exh. "A" at pages 73-74 of his paper book. That combined office comprised in itself the office of the Chief Engineer, Central P. W. D. and the offices of the various Superintending Engineers, which are described as Circle Offices and are subordinate to the Chief Engineer's Office. Jafari was promoted as a III Division Clerk on the Attached-Office Scale of pay, with effect from 1-4-44, as is evidenced by Exh. "B", at pages 74 and 75 of the paper book and his own affidavit in the High Court. The Central P. W. D. office of the Government of India was not an Attached-Office of the Secretariat in those days, but the concession of Attached-- Office scale of pay was apparently extended, as a war measure, to all officials serving in the Chief Engineer's Office, to the exclu sion of those working in the Superintending Engineer's Offices, by virtue of orders conveyed by the Labour Department Memor andum No. E-33, dated the 7th June 1944, Exh. "K" (pages 88-92 et seq). The scale of Rs. 60-2-80-EB-3-125 was sanctioned for II Division Clerks according to the Annexure to this Memor andum. These posts were, however, still temporary.

The document (Exh. "G'.') printed at page 76 of the paper book shows that Hasan Ali Jafari was appointed an officiating Assistant with effect from the 7th of December 1944, on a pay of Rs. 100 p.m. in the scale of Rs. 100-5-150-10-200, from the 7th December 1944 to the 26th January 1945, the vacancy having been created by one, Mr. Hari Chand, officiating Assistant, going on leave. Again, from the 27th January 1945 onwards; Muhammad Niaz Khan, officiating Assistant, being appointed as Petrol Inspector, Hasan Ali Jafari was continued in that vacancy.

The parties are at issue as to whether this post was in the office of the Chief Engineer or in that of a Superintending Engineer which was then part of the Central P. W. D. Office.

A unified scale seems to have been enforced for all clerical staff in the Government of India Secretariat and Hasan Ali Jafari too opted for that scale and was fixed in the Grade B unified scale of pay of Rs. 60-5-100-EB-10-120 from 1-9-44 to 6-12-44, by order, dated the 7th of December 1945 (Exh. "D") at page 77. Exhibit "A/2" is an Office Memorandum of the Central P. W. D. of the Government of India, dated the 8th March, 1946, (page 95), to which is appended a statement, inter alia showing that Hasan Ali Jafari's pay as Assistant was fixed at Rs. 100 p.m. with effect from the 7th December 1944 in the unified scale of pay. This unified scale appears from Exh. "A/3", printed at pages 97 to 99 of the paper book, being Memorandum No. E-6, dated the 7th of June 1945, of the Labour Department, Government of India. This Memorandum draws a distinction between posts in the Central office of the Central P. W. D. which were on Attached-Office scales of pay, as sanctioned in the Labour Department Memorandum No. E-33, dated the 7th June, 1944, and other posts in the Central and other offices of the Central P. W. D. not on those scales. In category "A", there is mentioned a class of officials designated as Assistants I Division, Grade "A" whose scale of pay was Rs. 100-140-10-280-EB-10 310-15-400, while III Division Grade B Clerks, are assigned the scale of Rs. 60-2-80-3-125 (EB after 95). In category "B", there is another class of Grade "A" Assistants shown in the scale of Rs. 100-5-150-EB-10-200. It is clear that the respondent, Jafari, was fixed up in-this scale of Assistants in category "B".

On the Partition of India, the respondent Jafari opted for Pakistan. He was first posted to the Chief Engineer's office in the Pakistan P. W. D., by Office Memorandum, dated the 28th July 1948 (Exh. "E") at page 78 et seq. Hasan Ali Jafari was declared to be a substantive holder of the post of an Assistant in the grade of Rs. 100-10-200 and he was then temporarily sent to the office of the Superintending Engineer, Construction Circle. He appears to have been re-transferred to the Chief Engineer's office with effect from the 20th November 1948, vide Exh. "F" (page 81). His pay was fixed at Rs. 160 p.m. on completion of one year's duty in the scale of Rs. 100-10-250 EB-15-400, in pursuance of orders contained in the Office Memorandum Exh. "G", dated the 16th November 1949, (pages 82 to 83). By orders, dated the 24th June 1953, conveyed by Memorandum Exh. "H" (pages 83-84), he was declared to be a substantive holder of a temporary post of an Assistant, with effect from the 5th November 1948. He was confirmed provi sionally as an Assistant, with effect from the 21st January 1954, vide statement appended to the office Memorandum "1" (at pages 84 and 86). The warning was added to this office Memor andum in paragraph 5 that these confirmations were "subject to revision on the disclosure of facts which may have escaped notice." At the same time, he was also shown as a Confirmed Lower Division Clerk with effect from .the 15th August 1947, vide Statement III attached to the above Office Memorandum. In the column of remarks, it was mentioned that he had been confirmed provisionally as an Assistant.

He was reverted by order, dated the 3rd of November 1956, as an Upper Division Clerk in the Refugee Works Circle of the Pakistan P. W. D., Karachi, vide Exh. "1" (at p. 87). The reason assigned for the reversion was that Jafari, along with others, was found to have come from the Superintending Engineer's Office in excess of the quota reserved for such offices in accord ance with the orders, contained in para. 13 of the Labour Department, Government of India letter No. E-33, dated the 7th June (Exh. "K"), at pp. 88 to 92 et seq.

Coming now to the case of Manzoor Husain Rizvi, we find that he was given a purely officiating appointment as a "C" Division Clerk in the scale of Rs. 40-5/2-90, in the Government of India, Central P. W. D. as is shown by Office Memorandum "A/ 1", dated the 9th February 1942 (at p. 87) of his paper book). He took charge of his post on the 10th February 1942, vide p. 88. Two of the conditions of service set out in "A/ 1" were that his services were liable to termination at any time, without notice, and that he was liable to serve in any part of India where the Central Public Works Department had an organisation. Presum ably the same conditions were applicable to Jafari's case when initially appointed. Exhibit "A/4" at page 90 et seq is a letter from the Government of India, Labour Division, dated the 7th of June 1944, which corresponds to Exh. "K" of Jafari's paper book, and by which the staff of the Central Office of the Central P. W. D. (excluding the staff employed on the work of the Superintending Engineers in that office), were granted, for the duration of the war, higher scales of pay applicable to the staff of Attached Offices of the Government of India. By virtue of these orders, Rizvi was appointed a III Division Clerk in the Attached-Office scale of pay, Its. 60-2-80-3-125, vide Exh. "A", dated the 16th of June 1944 (pages 77 to 79). In consequence Manzoor Husain Rizvi was shown as a III Division Clerk drawing Rs. 60 p.m. in this scale, in Statement II, attached to Office Memorandum "A-7", dated the 16th July 1945 (pages 104 and 105) in a unified scale of Rs. 60-5-100-EB-10-120. By orders, dated the 27th February 1946, Exh. "A-8" (pages 105 to 107), Rizvi was appointed Assistant drawing Rs. 100 p. m. in the scale of Rs. 100-5-150-EB-10-200, subject to application of the unified scale of pay, in the Central Office of the Central P. W. D., from 5-5-45 to 19-7-45 and again from 20-7-45 to 14-1-46, in conseq uence of certain Assistants being appointed as I Division Assist ants. This was clearly an appointment of an Assistant Grade A, in Category B of posts in the Central Office, which were not on Attached-Office scales of pay, as is clear from a reference to page 101 of the paper book. This contains a statement of posts to which unified scale of pay was applied by Memorandum No. E-6, dated the 7th June 1945 (Exh. "A-6") printed at page 100 et seq.

Exhibit "B" at pages 79 to 82 is the document containing orders of the Central P. W. D., New Delhi, dated the 8th August 1947, transferring the staff mentioned in the enclosed statement to Pakistan, consequent to the partition. Hasan Ali Jafari and Manzoor Hasan Rizvi figure at Nos. 2 and 11 in the list of A Grade clerks thus transferred. They were obviously then temporary Assistants.

Rizvi was first appointed as "A" Grade Clerk, category B, in the Chief Engineer's Office, Central P. W. D. Karachi. In July 1948, he was transferred as category "A" Clerk to the Superin tending Engineer's Office (Construction Circle, Karachi) and remained there till 3-2-49. In February, 1949, again, he was sent to the Chief Engineer's Office as an officiating Assistant in the grade of Rs. 160-10-250-15-400. On the 24th of October, 1951, orders, contained in Exh. "C", (pages 82 to 85), were issued confirming substantively or provisionally officials relating to various categories of staff as shown in the appended statements. In paragraph 6 of this Office Memorandum it was made clear that the confirmations were subject to revision of disclosure of facts that may have escaped notice inadvertently. Manzoor Hasan Rizvi was one of those persons who was confirmed provisionally as an Upper Division Clerk with effect from 5-8-1950 and then substan tively with effect from 19-8-50.

The Government of Pakistan, Ministry of Health and Works intimated to the Chief Engineer, Pak. P. W. D. by letter (Exh. "B/3") at p. 121, dated the 22nd July 1953, that it had been provisionally decided to reduce nine Assistants, 2 Upper Division Clerks and 20 Lower Division Clerks from the existing strength of his office. This was followed by further orders from the Establishment Division of the Cabinet Secretariat (Exh. B/4), dated the 17th August 1953. Detailed directions were given in this Office Memorandum as to how reversions were to take place in pursuance of economy measures. In Exh. "B/5", an Office Memorandum issued from the Cabinet Secretariat to the Ministry of Health and Works, dated the 31st of May 1954 (pages 126 to 127), it was mentioned that Manzoor Hasan Rizvi, among others, had been rendered surplus in the grade in which he had opted. It was observed that these persons had continued in their existing grades for a period of 61 years since Partition. Their reversion to lower grades, it was stated, would cause real hardship to them and was likely to affect adversely their morale and efficiency. It had, therefore, been decided that they might be absorbed against alternative appointments in their existing grade, in relaxation of the normal rules and that they should be treated as supernu meraries so long as they were not absorbed. It appears that in consequence of adjustments made accordingly. Manzoor Hasan Rizvi was sent as an Assistant to the Directorate-General of Health. His appointment as such was withdrawn by orders contained in Exh. "D", dated the 14th November 1955 (p. 85) and he was then reverted as an Upper Division Clerk in the office of the Superintending Engineer, Central Circle, Pak. P. W. D., Karachi, with effect from the 14th November 1955. This dated was altered to the 12th November, 1955, by Exhibit "B", dated the 17th of November 1955, page 86.

The High Court has reproduced in its judgment all the official correspondence bearing on the issues raised, in extenso and this makes the judgment (we say so with all respect) some what confusing. The contention appears to have been raised on behalf of Rizvi in the High Court that he was holding the post of an Assistant (also called "A" grade clerk or First Division Clerk) continuously since 1945 and that it was immaterial that he had not been confirmed in that grade as his promotion to the Assistant's grade was for an indefinite period. It was claimed that the provisions of subsection (3) of section 240, Government of India Act, 1935, were attracted to the case as his reversion from such a post would involve reduction in rank, and that, in any case, his reversion was not justified because several persons junior to him had been retained or re-appointed as temporary Assistants. It was urged that retrenchment or reversion on the ground of being supernumerary should commence from the bottom, namely, with the junior most incumbent. It was a part of his case that he was in the Attached-Office pay scale since the 1st of April 1944 and was, therefore, entitled to be retained in service in its counter part in Pakistan, namely, the office of the Chief Engineer, Pak. P. W. D. or in some other Attached Office of the Government of Pakistan, whereas the Circle Office to which he had been transferred was a subordinate office. There were no posts of Assistants in Rs. 100-400 in that subord inate office and consequently his transfer as an Upper Division Clerk to that office would debar him from re-promotion to the grade of an Assistant in the pay scale of Rs. 160-400, thus marring his future career.

In the case of Hasan Ali Jafari also, the argument was advanced that he had come from the Central Office of the Central P. W. D., to Pakistan, that he had been confirmed as a Lower Division Clerk in the Chief Engineer's Office and that, therefore, his reversion could only be to the Chief Engineer's office, Central P. W. D.

It was conceded on behalf of the Government of Pakistan that both the respondents, after Partition, were absorbed in the Chief Engineer's office, Pak. P. W. D. and had been declared at one time the substantive holders of temporary Assistants' posts in that office. It was, however, pointed out that the position had been misconceived in the absence of proper scrutiny or non- availability of official records and that they had really been trans ferred to the Pakistan P. W. D. as "A" grade clerks in Category "B" which pertained to the office of a Superintending Engineer. A mistake had been made in absorbing them in the Chief Engineer's office. The substantive post of Rizvi was that of an Upper Division Clerk and of Jafari that of a Lower Division Clerk in a subordinate office and, therefore, their reversions to the Superintending Engineer's office could not be taken exception to, as it merely meant revision of previous orders on disclosure of the correct facts. Other persons, who were affected, had made representations to Government, which were found to have substance. It was further added that these persons were over and above the 20 per cent. quota reserved for departmental promotions to the post of Assistants in the Central office. The respondents were not the only officials who had thus suffered reversion.

The learned Judges have observed in the course of their judgment that the sole question on which the decision of the writ petitions rested was whether the petitioners at the time of the Partition were working as temporary Assistants in the Sub ordinate Offices of the Central P. W. D., New Delhi, and were in the scale of pay of in Assistant pertaining to the office of an S. E. The learned Judges found that both the petitioners had been appointed III Division Clerks in the Attached-Office scale of pay in the Central Office of the Central P. W. D. in India prior to the partition. They pointed out that the Attached-Office scale of pay was not applicable to the staff pertaining to the Superintending Engineer's offices which were at that time part of the Central P. W. D. office in India. As members of the Chief Engineer's staff, they received benefit of the unified scale of pay. They were further of the opinion that the document (Exh. A-6) in Rizvi's case, which corresponds to Exhibit "K" (at page 88 of Jafari's paper book), "contained not the slightest indication" that the scale of pay of temporary clerical personnel in this particular department, particularly Assistants, was in any way connected with persons holding such posts in a Superintend ing Engineer's office. From the fact that Rizvi's pay was fixed at Rs. 100 p.m. in his capacity as an Assistant in India, the learned Judges drew the conclusion that Assistants in grade "A" Rs. 100-200 of category "B" and I Division Assistants of category "A" belonged to the same office of the Chief Engineer. They further remarked that they had not the slightest doubt in their minds that Rizvi had been working as an Assistant in the Chief Engineer's office in the Central P. W. D. till Partition, that he was appointed in that office initially and that he was promoted in that office. A similar finding was given in Hasan Ali Jaffari's case on identical grounds. The learned Judges were not inclined to attach importance to the fact that for some time at least, the petitioners had been transferred to Superintending Engineers' offices in Pakistan. Since both the respondents had been declared as substantive holders of temporary posts of Assistants in the Chief Engineer's office and both of them had been confirmed as Upper Division Clerk and lower Division Clerk, respectively, in that office, there was, in the learned Judges' view, no justification for their being detached from there and sent to subordinate offices with which they bad nothing to do. These reversions, according to the learned Judges, were contrary to the terms and conditions of their service. They expressed their disapproval of the method adopted by Government in getting rid of certain persons on the ground of abolition of posts and then appointing some junior members of the staff to the same posts in the guise of creating new posts. It was held that the impugned orders could not be sustained, as they not only violated the principles of natural justice but also the provisions of Article 181 of the late Constitution and since they had not been given reasonable and sufficient opportunity of showing cause against the action proposed to be taken in regard to them, they regarded Government action as tantamount to reducing the two respondents in rank.

The position of the respondents prior to the Partition in India is a fact of crucial importance which would determine the justification or otherwise of Government action taken in these two cases. From the details set out above, it ought to be clear that the initial appointment of the two respondents was in a combined office of the Central P. W. D., which included the Chief Engineer's office and the Superintending Engineers' offices. The posts of clerks offered to them were temporary in character. The service was terminable at any time without notice and there was a distinct liability to serve in any part of India wherever the Central P. W. D. might have an organisation. This would seem to militate against the contention that the Government of India was bound to retain these two officials in the Central office of the Chief Engineer, P. W. D. The next step in their promotion, appears to bear out that they were both appointed as III Division Clerks in the Chief Engineer's office, as distinct from the subordinate offices of the Superintending Engineers. This is plain from a consideration of the document Exh. "A/4", dated the 7th June 1944, and Exh. "A/6", dated the 7th June 1945, in Rizvi's case, to which *'K" and "A/3" in Jafari's case correspond. These III Division clerks were in category "A" to which Attached-Office scales of pay were made applicable a benefit from which Circle Office staff was excluded. The position apparently, however, was regarded as fluid and when the time for the promotion of the respondents to temporary posts of Assistant came, they were assigned to the Superintending Engineers' offices and not to the Chief Engineer's office. We are unable to share the opinion expressed by the High Court that these documents contained no indication about the posts of Assistants to which these respondents were appointed, being in the Circle offices, rather than in the Chief Engineer's office. On the contrary, we find that these documents lay substantial foundation for the view taken by the Pakistan Government' in this respect. The documents "A/4" and "K", dated the 7th June 1944, start by saying that the staff of the Central office of the Central P. W. D. (excluding the staff employed on the work of the Superintending Engineers in that office) were to be granted, for the duration of the war, higher scales of pay applicable to the staff in the attached offices of the Government of India. The Annexure to these documents refer to Assistants in the grade of Rs. 140-400, but there is no class of Assistants in the grade of Rs. 100-200 mentioned therein. Incidentally, III Division Clerks in the grade of Rs. 60-120 figure in the Annexure. When we come to "A/6" (in Rizvi's case) and "A/3" (in Jafari's case), the position becomes further clarified. The category "A" posts specified in these documents are characterised as those which are on the attached-Office scales of pay, as sanctioned in the Memorandum dated the 7th June 1944. These included the Assistants I Division Grade "A", in the grade of Rs. 100-400 and III Division Clerks. There is another category "B" of posts in the Central office which are clearly not on the Attached-Office scales of pay. Under this heading, we find Grade "A" Assistants, having a pay scale of Rs. 100-200. Consequently, we see a good deal of force in the contention raised on behalf of Government that the two respondents, when they were promoted as temporary Assistants were placed in the subordinate Circle Offices and not in the Chief Engineer's office.

It was at this stage that they were transferred to Pakistan on Partition.

In the Initial stages of their postings in Pakistan, it appears to have been wrongly assumed by Government that the posts of Assistants occupied by the respondents in India pertained to the Chief Engineer's office. When the facts were, however, later discovered, on the basis of entries in the Service Books of the respondents, Government rectified the position. It is undoubtedly true that in the meantime, orders had been passed making the respondents substantive holders of temporary posts, but that, according to the Fundamental Rules, merely implies that the temporary posts were expected to last for at least three years reference to Government decision No. (2) under the definition of "Temporary Post" in F. R. 9 (30) makes this clear. The various orders, moreover, confirming the two respondents provisionally or substantively in certain posts, were also subject to a warning conveyed by Government that these orders were liable to revision in the light of facts that may have escaped notice. There was no finality about them such as could have created a vested right in any of the respondents to claim that the setting aside of the order would involve either a reduction in rank or variations in the terms of service, governing them. Rizvi appears to have been confirmed as an Upper Division Clerk, but it was pointed out on behalf of Government that the consolidated list, confirming Upper Division Clerks in Exh. "C/3", dated the 15th December 1954, at page 135 of the paper book, omits his name and this implied a revision of the previous orders by Government. An affidavit by Mr. Akbar Kabir, the Adminis trative Officer of the Chief Engineer's office, Central P. W. D., submitted in the High Court makes an explicit averment to that effect in paragraph 11, thereof. In the list of Assistants con firmed provisionally, appended to Exh. "C/3", however, the name of Jafari appears, but that again was subject to disclosure of facts which might have been inadvertently ignored. In the circumstances, it cannot be said that the action taken by Govern ment in reverting the two respondents to substantive posts in Circle offices had no justification in facts. The reversions were ordered in consequence of the abolition of 9 posts of Assistants. On such reversion, they could not as a matter of legal right claim to be placed in the Chief Engineer's office as they held no lien on any post in that office while serving in India. Their appointments alternate between the Chief Engineer's office and subordinate offices and were all along of a temporary character and their last posting was in S. Es' offices. The order of reversion was not an arbitrary or capricious order and, con sequently, the supervisory writ jurisdiction of the High Court could not have been invoked successfully, either on principles of natural justice or on the basis of an alleged legal right inhering in the respondents.

There can be no question of any of the respondents having a lien on any of the nine posts of Assistants that were abolished by Government, as the High Court seems to have erroneously assumed. This was conceded at the Bar by Mr. Hashmi, learned counsel for Rizvi. In this connection, the High Court's direction,

therefore, clearly rests on no legal basis. In effect it amounted to a direction to Government to create a new post for the benefit of Rizvi. Such a direction would be clearly unsustain able in law.

In the circumstances of this case, there was no occasion for the view that found favour with the High Court that reversion from a higher post in which the reverted servant was officiating for an indefinite period, involved reduction in rank within the meaning of Article 181 of the late Constitution. Temporary posts such as were held by the respondents could be abolished by Government at any time. The selection of the specific 9 posts to be retrenched by Government, could not be interfered with, in assertion of a supposed right to continue in two of the posts, by the respondents. The position is not affected by the circumstance that some officials, junior to the reverted servants, have been continued or reappointed by subsequent orders, in higher posts. The matter rests in the unfetterred discretion of Government, which cannot be controlled by orders passed in writ jurisdiction.

It was sought to be argued on behalf of the respondents that their prospects of promotion to the posts of Assistants, would be adversely affected by their assignment to Circle Offices as compared with officials in the Chief Engineer's office. It appears that 50% of the vacancies among Assistants are available to officials, working in the Chief Engineer's office and only 20 / are earmarked for those in the subordinate offices of the Superintending Engineers. The argument of hardship in this connection, however, cannot be pleaded in bar of Government action when no vested legal right is involved. These are the incidents of service and, although Government may ex gratia decide to take into consideration the fact that the two respon dents had worked in the Chief Engineer's office for a long time before reversion, while making their future postings, they are not bound, in law, to do so.

In these circumstances, we are constrained to find that no case had been made out by the respondents, for interference with the Government's Order, by the High Court, in writ jurisdiction. We, therefore, allow these two appeals and recall the writs issued by the High Court. In view of the circumstances of the case we would leave the parties to bear their own costs throughout.

A. H. Appeals allowed.

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