P L D 1963 (W (PLP)

Rs. 625‑40‑1,025‑50‑1,

275. Lecturer Rs. 375‑30‑525‑40‑

925. Workshop Supdt. Same as that of Lecturer. Demonstrator. Rs.250. By order of the Governor of Sind. (Sd.) for (Muhammad Moosa) Secretary to Government Public Works Department. 12‑10‑55." Another resolution bearing the same date was passed which directed amongst other things that each of the members of the teaching staff of the N. E. D. Government Engineering College working against the marginally noted post (this included the professors) should be allowed an increase of 15 per cent of the pay drawn by them on 31st August 1952, in their existing scale.

3. These resolutions were passed on the eve of integration which took effect on 14th October 1955, by virtue of the Establish ment of West Pakistan Act. The Government of West Pakistan did not give effect to the said resolutions. However, the Governor of West Pakistan was pleased to direct that the prescribed pay scales of the teaching staff of the Engineering College be added to Schedule I annexed to the West Pakistan (Gazetted) Civil Service Pay Revision Rules, 1957. This direction is contained in the Government of West Pakistan Finance Department Notifica tion No. 644 FPR‑57, dated 3rd July 1957. According to this the pay scale of Professor of Engineering College was prescribed at Rs. 1,250‑50‑1,500 plus rent‑free house or 10yo of pay in lieu thereof. There is provision in this notification also for the other members of the teaching staff of Engineering College with which we are not concerned. Annexture C is the copy of the said notification. This notification contained a note at the foot of it which reads as follows :‑ "In case any of the existing incumbents does not satisfy the basic qualification and experience to be laid down by the Administrative Department, he should continue in his old scale and would not be eligible for the prescribed scale." This pay scale, as restricted in its application by the note appended thereto, Was not acceptable to the petitioner firstly, because it was lower than the pay scale fixed by the Sind Government Resolution dated 12th October 1955, viz., Rs. 1,600‑100‑2,000 and secondly because, according to the petitioner, the note appended to the said prescribed pay scale rendered its benefit nugatory leaving, the incumbents to the mercy of the Administrative Department. The petitioner, therefore, gave a notice under section 80, C. P. C. on 11th January 1958, in reply to which it was said by the Government of West Pakistan that it did not consider the orders of the former Government of Sind issued in their resolutions dated 12th October 1955, (referred to above) as they were technically defective and not sustainable, and though the staff of the N. E. D. Engineering College had a case in equity they had no case in law. The petitioner after further correspondence eventually filed the present writ petition. In the prayer clause the petitioner asked for a writ of mandamus ordering the Govern ment of West Pakistan to give effect to the two resolutions of the Sind Government dated 12th October 1955, with retrospective effect from the date of such resolution and a writ of certiorari quashing the note appended to the notification dated 3rd July 1957, (Annexure C). However, at the hearing Mr. Lari, the learned counsel for the petitioner, only pressed the petitioner's claim in respect of the resolution (Annexure B) wherein the revised pay scale of the petitioner was fixed at Rs. 1,600‑100‑2,000 and alternatively he claimed benefit of the revised pay scale contained in the notification dated 3rd July 1957, minus the note appended thereto.

4. The petitioner's claim was resisted on the following grounds which were pressed by Mr. Khalid Ishaq, the learned Additional Advocate‑General; firstly, that the two resolutions were defective and ultra vires; secondly, that the claim for the enforcement of the two notifications in substance amounted to a claim for payment of a certain salary and this could not be the subject of a writ of mandamus ; and thirdly, that under Art. 8 (3) of the Establishment of West Pakistan Act, 1955, as from the appointed date the petitioner was to be deemed to be 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 might determine with this proviso that such terms and conditions were not to be less favour able than the terms and conditions admissible to him immediately before the 10th day of August 1955. It was, therefore, contended that in so far as the Governor of West Pakistan had determined the terms and conditions of the petitioner, amongst others by the revised pay scale as contained in the notification dated 3rd July 1957, and these terms and conditions were not less favourable than what was admissible to the petitioner immediately before the 3rd day of August 1955, the resolution of the Government of Sind with regard to the future pay scale of the petitioner even if initially valid was rendered ineffective in view of the aforeasaid provision.

5. It was the case of the respondent that the petitioner did not qualify for the prescribed pay scale of the Professor on the basis laid down by the Administrative Department inasmuch as he was not the holder of a first class honours degree and, therefore, the benefit of the said scale contained in the notification dated 3rd July 1957, was not given to him and according to the note appended to that notification he should continue in his old scale which would be what he was actually getting.

6. With regard to the first point the contention of the learned A. A.‑G. was based upon his interpretation of the Sind Government Rules of Business. He drew our attention to rule 28 (m). Rule 28 provides that certain cases which are stated therein shall be brought before the Council of Ministers. Sub rule (m) reads as follows "28(m)‑The following cases when the Ministers concerned are in agreement but the Finance Department does not agree to the proposal :‑ (i) cases involving budgeted expenditure of more than Rs. 10,000 per annum ; (ii) cases involving new expenditure of any kind ; (iii) cases in which any departure is to be made from the existing rules or policy." It was pointed out that under rule 6 (2) the Secretary is the official head of a department and as in this case the Secretary, Finance, of the Government of Sind had not agreed to the revision of pay of the staff of the N. E. D. Engineering College, the matter could only have been decided after it was brought before the Council of Ministers. In reply it was urged that under the scheme of the rules it was the Minister‑in‑charge of a depart ment who was primarily responsible for tendering to the Government advice regarding the disposal of business pertaining to that department. Attention was drawn to rule 8 and reliance was further placed on sub‑clause (g) of rule 28 which reads as follows :‑ "(g) all proposals affecting the finance of the Province, includ ing proposals for re‑appropriation within a grant, in which the Minister‑in‑charge of the Finance Department has not concurred." It was urged that admittedly the advice in this case was given by Mr. M. A. Khoro who was the Finance Minister of the Govern ment of Sind and also the Chief Minister, and that being so, the disagreement of the Finance Secretary, assumining but not admitting that his note dated 8th October 1955, amounted to a disagreement, did not render it necessary that the matter should be brought before the Council of Ministers. It was argued that under the scheme of the rules it is the Minister who is in charge of the department and if he overrules the Secretary, rule 28 (m) does not come into operation. It was further pointed out that there was a presumption of the validity of an order such as the one in question under section 59 of the Government of India Act, 1935, and that such presumption had not been rebutted in the present case.

7. For the purposes of the present case we will assume that the resolution in question fixing the pay scale of the Professor at Rs. 1,600‑100‑2,000 was a valid resolution. But that would not entitle us to issue a writ because of the fact that the Governor of West Pakistan has determined the terms and conditions of the service of the persons including the petitioner by prescribing the scale as contained in the notification dated 3rd July 1957, and this brings us at once to the consideration of ground No. 3 urged by the learned A. A.‑G. as stated above. The learned A. A.‑G. contended that at the time of integra tion the petitioner like others was entering the service of a new employer and this employer under Article 8 (3) of the Establish ment of West Pakistan Act, 1955, which was an Act of a constitutional nature, was given the power to determine the terms and conditions of the service of such persons‑the condition however, being that such terms and conditions as determined by him could not be less favourable than the terms and conditions, admissible to such persons immediately before the 10th day of August 1955. In the present case, such terms and conditions of the petitioner had been fixed under the notification dated 3rd July 1957. We agree that the Governor having prescribed the pay scale of teaching staff of the Engineering College, which includes the petitioner, the latter could only challenge it if such terms and conditions were less favourable than the terms and conditions admissible to him immediately before the 10th day of August 1955. But this does not conclude the matter.

8. It is the contention of the petitioner that the note at the foot of the Government of West Pakistan Finance Department's Notification dated 3rd July 1957, making his eligibility for the revised pay scale of a Professor dependent on his satisfying "the basic qualification and experience to be laid down by the Administrative Department" is invalid and, therefore, the revised pay scale, as notified in the said notification, must be given effect to and the note must be disregarded. The argument in support of this contention is two‑fold. Firstly, that under Article 8 (3) of the Establishment of West Pakistan Act, 1955, power is given only to the Governor of the Province of West Pakistan to determine the terms and conditions of the persons in the service of the Crown serving in connection with the affairs of the Specified Territory and that this power could not be delegated to the "Administrative Department" which is the effect of the note appended to the notification in question. Secondly, that the petitioner had been appointed as Professor Class I by the Governor of Sind after he had satisfied the Sind Public Service Commission in regard to his basic qualification, for the post of a Professor Class I of the Engineering College and the petitioner had been confirmed in that post. It is pointed out that the proper occasion for the determination whether a person possesses the basic qualifications for a post is at the time of his appointment to the post and that a revision of pay scale for a class of posts is made in consideration of the responsibilities and duties attached to that class of posts and of the changed economic conditions ; that an incumbent lawfully appointed to a post and confirmed therein and continuing to hold that post when the general revision of pay scales takes place, is entitled as a matter of course to the benefit of the revised pay scale of the post which he holds without, the imposition of any condition relating to his eligibility for the revised pay scale.

9. After giving anxious consideration to the above conten tions we have reached the conclusion that the note appended to the notification must be declared as ultra vires and inoperative. It was the case of the respondents as we have set out above, that even if the Sind Government Resolution fixing the future scale of pay was valid it was rendered ineffective in view of the provision of Article 8 (3) of the Establishment of West Pakistan Act. We have accepted that contention. Under Article 8 (3) the powers to determine the terms and conditions of service are given to the Governor and he has not been given any further power to delegate this authority to any Administrative Department. In this respect there is an express provision of the Establishment of West Pakistan Act and to that extent the exception contained in the opening part of Article 182 of the late Constitution must apply. The Governor of the Province of West Pakistan could, not, therefore, delegate his power with regard to the determination of terms and conditions of service to the "Administrative Depart ment" which is what has been done in effect by the note appended to the notification. Such "basic qualifications and experience." which were left to be laid down by the Administrative Department by the said note even if it has been laid down has not been published. It is impossible not to sympathise with the grievance of the petitioner that though having been duly approved by the Sind Public Service Commission in 1951 and having served as a professor ever since, his "basic qualifications and experience" should now be left to be determined by the Administrative Department of the Government. Why ? Even the reply of the Government to the petitioner's notice under section 80, C. P. C. recognized the equity in favour of the petitioner. We also recognize the force of the argument advanced before us that the note in question leaves room for capricious and discriminative action by the Administrative Department. The note in question, therefore, must be quashed as being ultra vires of the powers' of the Governor.

10. We shall now briefly advert to the second point which was urged by the learned A. A.‑G. and which is contained in para. 4, above. It was contended that the enforcement of the two notifications dated 12th October 1955, (Annexures A & B) in substance amounted for a claim for payment of a certain salary and this could not be the subject‑matter of a writ of mandamus. As far as the notification, Annexture A, relating to the past emolument of the petitioner is concerned we have already said that this claim was not pressed by the learned counsel for the petitioner. With regard to the second resolution also we are' not ordering its enforcement by a writ of mandamus. What'~ we propose to do is to direct that the revised pay scale of the Professor of the Engineering College as contained in the notification dated 3rd July 1957, be given effect to in the case oil the petitioner minus the foot‑note which appended to it. A writ of mandamus in a somewhat similar situation was granted by this High Court in the case of Muhammad A. Hayat and this was upheld by the Supreme Court, whose judgment is reported in Pakistan v. Muhammad A. Hayat (PLD 1962 SC 28).

11. For the reasons given above we grant the petitioner a writ of mandamus and direct the respondents that the revised pay scale of Professor as contained in the notification dated 3rd July 1957, (No. 644 FPR‑57) shall be applied to him and that the note appended to the said notification shall be disregarded. The petitioner shall have his costs of this petition from the respondent. K. B. A. Petitioner accepted.