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Writ Petition No. 199 of 1961, decided on 28th November 1962.

Administrative Control of Department (Petroleum Planning under Ministry of Industries) transferred to Ministry of Fuel, Power and Natural Resources-Superintendent (Ministry of Industries) on transfer remains a Superintendent, Ministry of .Fuel etc.-Orders of demotion passed by, Directorate in Administrative Control in Ministry of Industries not effective in relation to new situation in Ministry of Fuel etc.-Government unable to implement its own earlier orders-Government servant continuing to work as Superintendent in Ministry of Fuel- Order of demotion, held, ineffective- Cabinet Secretariat Office Memorandum No. 6/15/48-ME, dated 31-3-1951-Writ-Constitu tion of Pakistan (1956), Art. 170.

S. A. Ashfaq for Petitioner.

A. A. Fazeel for Respondents.

Date of hearing : 28th November 1962.

In this writ petition the petitioner seeks a writ of certiorari quashing the orders dated the 17th June 1959 and 5th January 1960, and a writ of mandamus directing the respondent to treat the petitioner as a Superintendent with effect from 1st January 1960 entitling him to his remunerations as such. In the alternative it is also prayed that a writ of mandamus may issue directing respondent No. 1 to dispose of the petitioner's appeal in accordance with law.

2. The case of the petitioner is that he joined service in the Government of India in 1940 as a third division clerk. He was promoted to the second division in 1942 and thereafter, in 1944, to the post of an Assistant. After Partition, the petitioner was posted in the Directorate of Iron and Steel Control with the rank of Assistant-in-Charge, and on the 21st February 1955, was promoted to act as Superintendent with effect from that date. The petitioner worked in that position in the office of Iron and Steel Control until August 1957, whereafter he left for the United Kingdom and Belgium for training in the Iron and Steel Industry. He returned in January 1958 and joined duty in February 1958. He was then posted in the Petroleum Planning Section under the Directorate General Supply and Development in the Ministry of Industries, Government of Pakistan, Karachi as a Superintendent. The petitioner was transferred on or about the 2nd May 1958 to the Department of Petroleum Mineral Concessions as Superintendent in a permanent capacity in the Ministry of Industries, having no lien on the Department of Supply and Development and no concern with that Department.

It is contended that, by virtue of the Cabinet Secretariat Office Memorandum No. 6/15/48-ME, dated 31st March 1951, the petitioner bad no lien in the Supply and Development Department from where he was transferred to the above post. On the 17th June 1959 the petitioner was re-transferred to the Petroleum Purchase Section of Supply and Development Department vice one S. Habib Ahmad, but this transfer was merely on paper since he was not in fact posted in the Supply and Development as Habib Ahmad, who had to take over charge from the petitioner, continued to work as Superintendent of the Petroleum Purchase Section of the Supply and Development Wing. On 1st September 1959 the Petroleum Planning Section, where the petitioner con tinued to work, was transferred to the office of the Controller General Prices and Supplies, entirely a distinct and separate office from that of the Director-General Supply and Development, and although his assignment on paper was with the Petroleum Purchase Section, he was actually posted in the Petroleum Plan ning Section as a Superintendent in which capacity he continued to work up to the 17th May 1960, when the Petroleum Section was transferred to the Ministry of Fuel, Power and Natural Resources by an order of that date. In the meantime, the petitioner learnt that he had been reverted to the post of an Assistant in the Petroleum Purchase Section in consequence of an order passed by the Director-General Supply and Development on 5th January 1960. The contention is that the Director-General Supply and Development had nothing to do with the petitioner at the time, he having ceased to have any connection with that Department as on and from the 13/19th August 1958, and that that was an illegal order. The petitioner continued to work as a full-fledged Superintendent up to the 4th June 1960, and since on and from 17th May 1960 the Petroleum Planning Section was transferred to the Ministry of Fuel, Power and Natural Resources and the petitioner went along with it, the order was clearly illegal. The Ministry of Industries gave a clear order that, although orders for the petitioner's reversion as an Assistant had been issued by the Department of Supply and Development, they had failed to provide a substitute to the Petroleum Planning Section in the place of the petitioner who was allowed to continue as Superin tendent in the Petroleum Planning Section. It is further con tended that, in spite of the order of the Ministry of Industries which was approved of by the Cabinet Secretariat, he was offered the salary of an Assistant, which he refused to accept. Habib Ahmed, who had been transferred to the Petroleum Planning Section, did not take over from the petitioner in the Petroleum Planning Section, and he had been working all along in the Supply and Development Department ; whilst the petitioner had been working in the Directorate of Petroleum Planning. On the 29th June 1960, the petitioner wrote to Mr. Niaz Hussain, Assistant Director in the Directorate of Supply and Development clearly stating that he was a Superintendent until the 4th June 1960 but it was ordered that the petitioner be treated as demoted from that date. The petitioner then made representations to the Secretary, Ministry of Industries against this order of demotion on 13th January 1960, to no result. Another repre sentation made by him that he should be given the salary of a Superintendent and not of an Assistant also went by the Board: Further representations were made, and on the 14th September 1960, the petitioner was informed that his representation was under consideration. It is the petitioner's case that thereafter his representations have met with cold response and he was, therefore, forced to send a notice through his counsel and there after seek redress in this Court. In particular the petitioner's complaint is against the order dated the 17th June 1959 and that of the 5th January 1960, the former transferring the petitioner from the Petroleum Planning Section of the Department of Supply and Development to the Petroleum Purchase Section, and the latter reverting him from the post of an officiating Superinten dent to his substantive post of an Assistant in the Department of Supply and Development by the Director-General of Supply and Development.

3. The case of the respondents appears to be that the petitioner was in fact promoted as a Superintendent but on a purely temporary basis with effect from the 2nd February 1952. Thereafter the petitioner went abroad on his own account and as a private candidate for his own benefit. The Ministry of Commerce and Industries, in their letter dated the 1st May 1958 made it clear that the division of the Directorate General Supply and Development into Directorate General (Supply) and the Directorate General (Development) and the transfer of some officials to the office of the Chief Controller of Imports and Exports and Controller General of Prices and Supplies was being done on as-you-were' basis ; that is, those officers who were doing a particular work on the 10th April 1958, when the Ministry of Supply was created, should continue to do so under the new administrative arrangement, and that., for the time being, there would be no splitting of the cadre and no fresh cadres would be created under the new Ministry to which ofoials of the posts would be transferred. It was also stipulated that after the new arrangement had taken effect, the Government would take up the question with a view to ensure that junior officials do not get a fortuitous advantage over their seniors by laying claims to permanent posts simply because they were doing the work assigned to the permanent posts on the day of their transfer. The contention further is that the transfers of the staff of the Petroleum Planning Directorate from the Department of Supply and Development were not irrevocable but in themselves ab initio provisional. Consequently, final orders were issued by the Ministry of Industries on 2nd August 1961. Proceeding further, the contention is that the orders of transfer of the petitioner as Superintendent from the Department of Supply and Development to the Department of Petroleum and Minerals were withdrawn on the 20th April 1959, and since owing to adminis trative difficulties, the staff could be transferred only from 1st June 1959, the petitioner was not ordered to be transferred by the Secretary of Ministry of Industries, he was not transferred from the Department of Supply and Development by the Director -General of Supply and Development. It was admitted that the petitioner was transferred from the Petroleum Planning Section to the Petroleum Purchase Section in place of Habib Ahmed, but that the petitioner's continued over-stay in the Petroleum Planning Directorate after the orders dated the 1st of June 1959, was unauthorised. It was further admitted that the petitioner was shown as a Superintendent in the Ministry of Industries' letter dated the 17th May 1960, which letter, in turn, was superseded by that Ministry's letter dated the 2nd august 196l wherein he was permanently transferred as an Assistant to the Bureau of Mineral Resources. Thereafter, the petitioner applied for leave to the Director-General Supply and Development indicating that he accepted the position of being on the rolls of that Department. It is denied that there was any change in the conditions of service of the petitioner and that the question of compliance with the provisions of Article 118 of the Constitution arose. Habib Ahmed was borne on the rolls of the Petroleum Planning Directorate as a Superintendent and drew his salary regularly from that Directorate, and the name of the petitioner continued to be on the rolls of the Directorate General Supply and Development from where he drew his pay till the 30th April 1960 and from the Directorate General Supply and Development till December 1959, but he refused his pay for the months of January to April 1960 in spite of his being offered to him. It is denied that the petitioner had severed his connections with the Directorate General Supply and Development till the 30th April 1960. The over-all position according to the respondents vis-a-vis the petitioner is that his appointment as Superintendent in the Department of Supply and Development was officiating on a purely temporary basis subject to reversion to his substantive post : that being his position as Superintendent in the Depart ment of Supply and Development he was transferred to the Petroleum Directorate on grounds of administrative convenience. It was not intended to alter the terms and conditions of appoint ment of those who were transferred from one office to another as "the Government is one entity and a mere transfer cannot have the effect of altering the conditions of service of the incumbents" The petitioner was a purely temporary Superin tendent liable to be reverted to his substantive post, that Government took such action and in doing so, had not violated any rules or disregarded the provisions of the Constitution of 1956.

4. We have now heard Mr. S. A. Ashfaq for the petitioner and Mr. Ali Ahmed Fazeel appearing for the respondents. Mr. Ali Ahmed Fazeel has admitted at the Bar that all along the petitioner had worked without a break in the Petroleum Planning Section wherever it went, but his contention is that the petitioner nevertheless continued to be under the administrative control of the Director-General Supply and Development in the Ministry of Industries to the Government of Pakistan, Karachi. Reliance was sought to be placed on Annexure R-6 (p. 185 of P. B.), which is a letter dated the 20th June by the petitioner addressed to the Director (Admn. and Co-ord.), Department of Supply and Development, referring to an application addressed by the petitioner to the Ministry of Finance stating that he would abide by the leave rules and draw his monthly salary in France in Pak. currency and would not claim any foreign exchange for purposes of going abroad for training, and on another letter by the petitioner addressed to the same officer in the Department of Supply and Development, dated the 31st July 1959. All these letters, according to Mr. Ali Ahmed Fazeel, established that, in spite of the case of the petitioner now made out by him in regard to the various orders of transfer etc, passed, he continued to acknowledge the Director-General in the Department of Supply and Development as his superior officer. It was, there fore, urged that the petitioner was estopped from now urging in view of these letters and the fact that for a time he had drawn his salary from the Supply and Development Department, that he was not subject to their control.

5. In assessing the case of the petitioner it is necessary to refer in some detail to the various orders passed by the various departments concerned. On the 21st February 1955 the petitioner was appointed as an officiating Superintendent in the Department of Supply and Development with effect from 2nd February 1955. On the same date be was transferred to the Petroleum Planning Section of the Supply and Development Department, and on the 1st May 1958 the Ministry of Industries and Commerce to the Government of Pakistan took a policy decision that the division of the Directorate General Supply and Development into Directorate General (Supply) and the Directorate General (Development) and the transfer of some officials to the Chief Controller of Imports and Exports and the Controller General, Prices and Supplies, was being done on the as-you-were' basis, i.e., officers doing a particular work on the 10th April 1958 when the Ministry of Supply was created, should continue to do the same work under the new administrative arrangement; that there would be no splitting of the cadres and no fresh cadres would be created, and that after the new arrange ment takes effect, the affecting questions would be taken up and decided by Government. By a letter dated the 13/19th August 1958 addressed by the Ministry of Commerce and Industries to the Director-General, Supply and Development Department, sanction was conveyed of the President to the formal transfer of the work pertaining to planning and pricing of the petroleum oil lubricants from the Department of Supply and Development to the Department of Petroleum and Minerals with effect from the 2nd May 1958. It was stated in paragraph 2 that the rights and privileges in all spheres of service of the incumbents of the posts concerned affected by the transfer to the Department of Petroleum and Minerals would be governed by the instructions contained, in the Cabinet Secretariat memo randum dated the 31st August 1951, and further that as the Department of Supply and Development and Petroleum and Minerals were attached organisations, there would be no change in the status, pay scales, etc. of the staff so transferred. It is admitted by Mr. Ali Ahmed Fazeel that the details of this letter, viz. dated the 13/19th August 1958 were not implemented till the 1st June 1959. On the 10th February 1959, much before the implementation of the letter dated the 1.3/19th August 1958 the petitioner addressed a letter to the Director (Admn. and Co-ord.), Department of Supply and Development, referring to his transfer from the Directorate General Supply and Development to the Department of Petroleum and Minerals under the letter dated the 13/19th August 1958 and stating that as he found his interests safer with the Department of Supply and Development he may be kept on the regular strength of the Directorate General Supply and Development. In consequence of the letter dated the 20th April 1959 issued addressed to the Director-General Supply and Development in partial modification of the letter dated the 13/19th August 1958 whereby Lie name of the peti tioner continued to be amongst the incumbents of the Depart ment of Supply and Development and in consequence thereof one S. Habib Ahmed was to be transferred to the Department of Petroleum and Minerals in the position of a Superintendent. On the 17th June 1959 the Department of Supply and Develop ment ordered the petitioner to be transferred from the Petroleum Planning Section to the Petroleum Purchase Section, Fuels Directorate which had continued to be under the Department of Supply and Development. By another letter dated the 1st September 1959 the Government of Pakistan in the Ministry of Industries addressed to the A. G. P. R., Karachi, to the effect that the President of Pakistan was pleased to transfer with immediate effect the work pertaining to import pricing and Petroleum, Oil and Lubricants Planning from the Department bf Petroleum and Minerals to the Controller General of Prices and Supplies under the Ministry of Industries. On the 5th January 1960 the Government of Pakistan in the Department of Supply and Development, consequent on the re-organization of the Department of Supply and Development, reverted the peti tioner (No. 19) to the post of Assistant-in-Charge with effect from 31st December 1959. This order, together with that of the 17th June 1959, is the order with which the petitioner is aggrieved. On the 30th April 1960 the petitioner was transferred from the Department of Supply and Development, Administrative Wing, to the Petroleum Planning Section under the Controller General, Prices and Supplies, Ministry of Industries, with effect from that date. The petitioner, together with three others, was directed to report for duty forthwith to the Directorate of Petroleum Planning. The next document is an office memorandum dated the 17th May 1960 by the Government of Pakistan in the Ministry of Industries by which the Government had decided to transfer the work pertaining to price and distribution controls over petroleum, oil and lubricants from the Ministry of Industries to the then new Ministry of Fuel, Power and Natural Resources. .The administrative control of the Directorate of Petroleum Planning was, therefore, transferred from the Ministry of Indus tries to the Ministry of Fuel, Power and Natural Resources with immediate effect. A list of the names of the officers and staff borne on the strength of the Petroleum Planning Directorate, which was enclosed, included the name of the petitioner, and it A was further stated that the transfer of the staff would be governed by the instructions contained in the Establishment Division's office order dated the 31st March 1951. In paragraph 3 it was 'further stated that the staff of the Petroleum Planning Directorate 'would draw their pay for the month of May 1960 and subsequent months from the Ministry of Industries. On the 19th May the Petroleum Planning Section was merged into the Bureau of Mineral Resources under the Ministry of Fuel, Power and Natural Resources, and on the 2nd August 1961 the Government of Pakistan in the. Ministry of Industries passed a final order transferring the petitioner to the Bureau of Mineral Resources. Ministry of Fuel, Power and Natural Resources.

6. The point, therefore, amongst others, that emerges for clarification is that the Department of Supply and Development, as originally constituted, broke up into subsections or sections as follows

7. It is clear to us on going through the various documents referred to and the contentions of the parties and their counsel and, indeed, as admitted by Mr. Ali Ahmed Fazeel that the orders dated the 17th of June 1959 and the 5th of January 1960 respecting the petitioner were not given effect to, and that the petitioner continued to work in the Petroleum Planning Section wherever it happened to be transferred from time to time for administrative purposes and exigencies up to the 2nd August 1961. His order of demotion, definite and consequential, was only passed on that date. Government cannot take advantage of the situation that when they were unable to implement their own order and, admittedly, when the petitioner was working continuously in a certain position, he should not enjoy the benefits of emoluments of that position. The responsibilities and obligations of the respondents are clear in view of the letter of the Cabinet Secretariat, dated the 31st March 1951 ; for there is no doubt that the petitioner continued to work as Superintendent with all the responsibilities of that post. Mr. Ali Ahmed Fazeel referred to Muhammad Athar v. Pakistan (P L D 1962 S C 367) ; Pakistan v. Naseem Ahmed (P L D 1961 S C 445) and Province of West Pakistan v. Bashir Armed (P L D 1959 S C (Pak.) 93), but these authorities are of no help to the case of the respon dents or to the defence that they have put up to the petition. The petitioner's case is not that he was reverted from an officiating post to his permanent post and that involved a reduc tion in his rank, or that he seeks to be re-instated to his original post from which he has been removed. We are clearly of the view that, until the 2nd August 1961, no definite orders were passed against the petitioner, and that, even if previous order had been passed, these were neither implemented nor was any attempt made to give effect to them, and that since the petitioner continued to retain his position as Superintendent up to the 2nd August 1961 in the Petroleum Planning Section, he is entitled to the pay, emoluments, etc. pertaining to that post.

8. In consequence, therefore, we allow the petition partly to the extent already indicated.

A. H.

Petition allowed.

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