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Writ Petition No. 239 of 1961, decided on 25th June 1962.
Government servant (Railway)
Promotion by authority com petent to promote temporarily‑Promotee unaware of restricted character of such authority‑Order reverting Railway servant set aside in circumstances of case‑Law of agency and estoppel-Constitution of Pakistan (1956), Art. 170.
Hamidul Huq Chowdhury and Humayun Kabir Chowdhury for Petitioner.
Syed A. B. M. Hussain and Md. June Alam for Respondents.
Dates of hearing: 30th and 31st May and 25th June, 1962.
Petitioner, Abdul Majid Sardar, joined the Railway Service on 3‑11‑51 in the Eastern Bengal Railway as a Tally Clerk on a scale of pay of Rs. 60‑2‑80 after passing the Matriculation Examination. After he bad worked as such for a number of years, the District, Traffic Superintendent, Pahartali, Chittagong, by an order, being No. ES‑2 (G)/P11, dated 13‑1‑59, promoted him to the rank of Ticket Collector on a scale of pay of Rs. ba‑4‑100‑EB‑5‑120. Upon such promotion he joined his duties as Ticket Collector on 19‑1‑59, and has since then been working in that capacity and has obtained a number of increments as well. The order by which the petitioner was so promoted, reads as follows: --‑
"Office Order Eastern Bengal D. T. S's Office,
Railway. Pahartali.
13‑1‑59.
The following transfer, posting and promotion are ordered with immediate effect on their pay and grades and to the station as noted against each. 3 days joining time is allowed where there are changes of stations. Staff concerned should obtain transfer passes if required at on once. No appeal will be entertained.
| SI. No. | Designation Name and station. | Posted to. | Pay and Scale. |
| 16. | Mr. Abdul MazidSardar. Gr. 11/LRm. |
| VRTYC/CDR.TC. Rs. 72‑(60‑120) vice vacancy. |
The aforesaid order was communicated to the petitioner, who, in pursuance thereof, joined as Ticket Collector and in this position worked till 27‑11‑61. He was thus allowed to continue in the post of Ticket Collector for near about three years. He had earned, at least, two increments since his appointment as Ticket Collector.
2. However, on 27‑11‑61 the petitioner, along with some other persons, was reverted to the post of Tally Clerk on a scale of pay of R. 60‑2‑80. The order by which the petitioner was thus reverted, was also communicated to him.
3. The petitioner's contention is that, having substantively promoted to the post of Ticket Collector against a vacancy, it was no longer open to the District Traffic Superintendent, Pahartali, or to the Railway Authorities to order him to "revert" to an appointment which he had held initially, namely, that of a Tally Clerk. The petitioner has challenged the aforesaid order, being No. ES/II(G)TC/PIII, dated 27‑11‑61, on the ground that it amounts to demotion, i.e. an order which has reduced him in rank, or to a removal from the above‑mentioned post. Inasmuch as admittedly the petitioner has been given no opportunity to show cause against such a reduction in rank and/or removal it is contended on his behalf that the impugned order is illegal, void and of no effect. The petitioner has prayed for the issue of a writ of mandamus directing the respondents to cancel the impugned order and has obtained a Rule nisi from this Court accordingly.
5. (sic.) The respondents have filed an affidavit‑in‑opposition which was sworn by respondent No. 2 (The District Traffic Superintendent, Pakistan Eastern Railway, Pahartali, Chittagong). l It is admitted that the petitioner was appointed in the Railway ‑service as a Tally Clerk. It is also admitted that the respondent No. 2 issued orders promoting the petitioner to the rank of Ticket Collector. In paragraph 7 of the said affidavit‑in‑opposi tion the respondents have stated as follows :‑
"That as regards statements in paragraph 7 of the petition, I beg to state that it is correct that District Traffic Superin tendent, P. E. Railway Pahartali issued orders promoting him as Ticket Collector at Laksam where he joined on 20‑1‑59".
But their contention is that the petitioner could not have been permanently appointed or promoted as Ticket Collector. Various rules and procedures of the Railway service have been pointed out to us in order to show that the petitioner's appointment to the post of a Ticket Collector could not have been of a permanent nature. In these circumstances, it was claimed that the petitioner's promotion being purely of a temporary nature, the order directing reversion of the petitioner to his former appointment as a Tally Clerk does not in law amount to a reduction in rank. Along with the affidavit‑in‑opposi tion copies of a few pages from the Service Book of the petitioner have been appended, bearing an endorsement to the effect that the petitioner was promoted temporarily to the post of Ticket Collector, We were shown the original of these sheets of paper which have been described as "Service Book". The said papers do not inspire much confidence in us as it does not appear that entries have been regularly made therein. For instance. admittedly the petitioner has enjoyed at least two increments but the same does not appear to w have been shown in the papers which have been annexed to the affidavit‑in‑opposition. However, this document would not be of much assistance to us in the context of the case presented to us.
6. At the hearing of this Rule the arguments addressed to us resolved themselves into a simple issue, namely, whether the petitioner was substantively promoted to the post of Ticket Collector If he was so appointed, then admittedly his "reversion" to his former post amounted to a reduction in rank and/removal from a post which he had a right to hold. The impugned order would, therefore, be illegal and void as no opportunity was given to the petitioner to show cause against such removal or reduction in rank. If the petitioner's promotion was temporary, he had no right to the post to which he was so promoted and the impugned order could not be challenged as invalid.
7. It has been contended on behalf of the petitioner that this Court has to construe the letter by which the petitioner was promoted to the post of Ticket Collector against a vacancy. The promotion was not qualified to indicate that it was a tempo rary appointment. In the absence of such qualifying words the order of appointment cannot but be construed to mean that the petitioner was offered a substantive appointment by way of promotion as Ticket Collector against a permanent vacancy. The petitioner, upon accepting such offer, joined his duties as a Ticket Collector. Thus the petitioner having been appointed to a substantive post, the impugned order cannot but amount to his removal and/or reduction of rank within the mischief of the late Constitution as well as that of the Constitution which has now come into existence.
8. On behalf of the respondents, it was contended, drawing our attention to some rules of the Railway service, that respondent No. 2 (The District Traffic Superintendent, Pakistan Eastern Railway, Pahartali, Chittagong) had in fact, no direct authority to make an appointment as a Ticket Collector, an appointment which was required to be made by selection and was not a normal avenue of promotion available to the petitioner. From the records produced before us on behalf of the respondents it was also contended that, in fact, the direction which was given to the said respondent No. 2 was that the aforesaid appointment had got to be of a temporary nature. It has to be seen what was the exact nature of the offer made to the petitioner and accepted by him. From the order of appointment or promotion, as quoted above, there can be no manner of doubt whatsoever that it purports to be a promotion to a substantive appointment against a vacancy. It was argued that the word "substantive" or "permanent" has nowhere been used in the letter of appoint meat and, therefore, it should be deemed to be temporary. The term "substantive" or "permanent appointment" is well‑under stood. It means such an appointment which will endure till the normal tenure of such service and is terminable at the age fixed for superannuation. When an appointment is made without any qualification that it is a temporary appoint rent, it must necessarily mean that it is a substantive appointment in aforesaid sense. On a ‑ construction of Annexure 'A', which is the letter by which the petitioner was promoted to the post of Ticket Collector, we hold that the petitioner was so appointed substantively to the said post against a vacancy. We will have to see whether the limitation of the authority of respondent No. 2 to make such a promotion will affect the case of the petitioner before us.
As we have seen above, it was argued on behalf of The respondents that the petitioner's appointment as Ticket Collector could not have been but temporary inasmuch as respondent No. 2 (The District Traffic Superintendent Pakistan Eastern Railway, Pahartali, Chittagong) was not competent to make a permanent appointment. This argument was sought to be developed in the following manner Normally respondent No. 2 is not competent to make an appointment to the post of Ticket Collector which is an appointment by selection in the sense that it is made upon a recommendation of a Selection Committee. It was also contended that the avenue of promotion available to a Tally Clerk does not allow such a promotion. Our attention was drawn to Annexure 4 appended to affidavit‑in opposition, which shows the different avenues of promotion, which are available to different classes of employees of the Railway.
9. It was next argued that respondent No. 2 (The District Traffic Superintendent, Pakistan Eastern Railway, Pahartali, Chittagong) was only authorised to make such appointment temporarily subject to the approval of the appropriate authority. It is upon the aforesaid limitation to the authority of respondent No. 2 to make such appointments that the entire case on behalf of the respondents as argued before us rests. The answer to such a line of argument is, that respondent No. 2 (The District Traffic Superintendent, Pakistan Eastern Railway, Pahartali, Chittagong) having been allowed to promote the petitioner without specifying to the petitioner that such promotion was temporary and the General Manager, Pakistan Eastern Railway, Chittagong having allowed the petiti.3net to continue in such appointment, respondent No. 2 was constituted. by implication, as an agent of the Railway Administration or the General‑Manager having the authority to make such an appointment. It has not bean shown that the petitioner was apprised of that limited authority of respondent No. 2 to make such an appointment. The fact that respondent No. 2 did promote the petitioner to the post of Ticket Collector as also the further fact that the Railway Administration allowed the petitioner to continue in that post amounts in law to a representation that the said respondent No. 2 had such authority. The promotion having been made, the petitioner acted upon the same and joined as a Ticket Collector.
10. The limitation upon the authority of respondent No. 2 (The District Traffic Superintendent, Pakistan Eastern Railway, Pahartali, Chittagong if not made‑ known, either specifically or otherwise, to the petitioner at the time when he was so promoted, the Railway Administration would be bound by the act of the said respondent No. 2. Nowhere it has been shown that the petitioner was informed of the limitations upon the authority of respondent No. 2 or that the fact of such limitation of authority was made known to the petitioner. In these circumstances, the petitioner could and, as it appears, did act upon the footing that the respondent No. 2 had validly, under a lawful authority, passed the order of promotion incorporated in the order, dated 13‑1‑59. The following results emerged from the facts established before us:
(a) Respondent No. 2, by implication, was constituted as an agent of the Railway Administration or of the General Manager to make a substantive appointment to the post of a Ticket Collector. (6) It has not been proved that at the time when the petitioner was promoted to the post of Ticket Collector it was made known to him, or that he was otherwise aware that respondent No. 2 had only a limited authority to make a temporary appointment. (c.) The conduct of the respondents, by implication, amounts to a representation that respondent No. 21 (The District Traffic Superintendent, Pakistan Eastern Railway, Pahartali, Chittagong) had the authority to promote the) petitioner as Ticket Collector and the petitioner having acted; upon such an order of promotion, the respondents are estopped from denying that the respondent No. 2, in fact, had the authority to make the said order unless such limitation of the respondent No. 2's authority was communicated to the petitioner or otherwise made known to him at the time of his appointment as Ticket Collector by promotion. Thus on the basis of the law of agency and of estoppel, the respondents cannot be allowed to resoled from the position which the respondent No. 2 had taken, by necessary implication, in passing the order by which the petitioner joined in the post of a Ticket Collector to which he was promoted. It is true that the records of the Railway Administration wi1P show the limited authority of respondent No. 2, but, as this was not brought to the notice of the petitioner or otherwise made known to him at the relevant time, namely, when he was promoted to the post of Ticket Collector, the petitioner cannot be bound by such limitation of authority to which respondent No. 2 may have, in fact, been restricted. The petitioner is, therefore, entitled to urge that he was substantively appointed to the post of Ticket Collector. The impugned order is, there fore, illegal and invalid.
11. For the reasons stated above, the Rule is made absolute. The respondents are directed to cancel the impugned order, being No. ES/II (G) TC/PIII, dated 27‑11‑61, passed by the District Traffic Superintendent, Pakistan Eastern Railway. Pahartali, Chittagong, in so far as it relates to the petitioner.
12. The petitioner is entitled to the costs of this application which we assess at seven Gold Mohurs.
SALAHUDDIN AHMED, J
.----‑I agree.
S. B./A. H.
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