P L D 1959 (W (PLP)

QADEERUDDIN AHMED, J.‑The petitioner was appointed as a Deputy Secretary, Constituent Assembly of Pakistan and was on the 4th February 1950, promoted to the post of Joint Secretary. He continued to hold the office in a temporary capacity until superannuation. He was to reach the age of superannuation on the 18th of August, 1957; therefore the question of extending the period of his service was considered in advance. It appears that the Secretary of the National Assembly was opposed to the idea of granting him extension on the ground that he used to interview the Speaker directly without the permission of the Secretary, but the Speaker did not attach importance to this objection, thought that there was no reason for the Secretary to be annoyed on this account, and recommended to the Prime Minister that his services should be retained after superannuation, in public interest, by granting an extension of three years. The Prime Minister, namely, Mr. H. S. Suhrawardy considered that he should respect the views of the Speaker and ordered on the 9th April, 1957 as follows :‑ "I therefore agree that Mr. Ali Afzal should be granted extension for three years." Information of this order was communicated orally to the petitioner by the Speaker as well as the Prime Minister. The petitioner, therefore, continued to occupy the post of a Joint Secretary after completing on the 18th of August, 1957, the age of 55 years, He applied for a loan, and a certain amount repayable in 24 monthly instalments was sanctioned in October, 1957. At about the same time he applied for leave which was not granted because his services were needed at Delhi in connection with the Pakistan Parliamentary Delegation to the Commonwealth Parliamentary Conference. He actually attended the conference and drew his pay in India and Ceylon in pursuance of a special sanction granted by the President on the 12th of November, 1957, for this purpose. The A. G. P. R. raised an objection by his letter dated the 10th of December 1957, addressed to the Secretary, National Assembly of Pakistan, as follows:‑ ". . . . . . . The payment of his monthly salary for 19‑8‑1957 to 31‑10‑1957 has ;been made to him provisionally on the presumption that the Government orders granting him exten sion in his service beyond the date of superannuation may be under transmission. It is requested that formal orders of Government in connection with the extension . . . . . may please be furnished to this office at an early date in the absence of the same it will not be possible to allow him any further provisional payments of his pay and allowances beyond 31st October, 1957." The petitioner continued to occupy his office and attended the Dacca Session of the National Assembly, where he was informed by the Speaker that he had issued orders to the office to notify the extension of three years and that a telegram was sent to the Secretary, National Assembly, Karachi, in which the Secretary was requested to show to the new Prime Minister the Speaker's order that the extension be notified. A copy of the telegram has been produced by the respondents and reads as follows :‑ "M. B. Ahmed, Parliament, Karachi. Reference your wire eleventh regarding Ali Afzal Joint Secretary" stop please show to Prime Minister my drders issued in August last asking you to issue Notification for three years extension service to Ali A fzal . which was given by Prime Minister Suhrawardy whose orders in original are with me at Karachi. Also show him this wire stop papers regarding his pay not with me." Mr. Suhrawardy passed the order on the 9th of April, 1957, but surprisingly enough no notification was issued by the office in pursuance of the order ether before or after the above telegram in spite of repeated orders of the Speaker to do so. We may note here that the omission was destined to become one of the chief defences of the respondents in this Writ Petition. Instead of the notification ordered by the Speaker a different notification was issued on the 5th of May, 1958, and came to the notice of the petitioner. The notification is as follows :‑ "Mr. K. Ali Afzal, a temporary Joint Secretary in the Parliament Secretariat, has, after attaining the age of superannuation on 19th August, 1957, been granted an extension of service for one year only i.e., up to the 18th August 1958." The petitioner therefore made a representation against it to the Speaker and was informed in reply that the question of further extension was under consideration. He therefore made another representation on the ground that there was no question of further extension and that the only question which needed attention was of a formal notification of the extension of his service up to the 18th August, 1960. No answer to this representation was received by him and therefore he submitted another representation which was addressed to the President. In reply to it the petitioner received a note from the Secretary, National Assembly on the 9th of August, 1958, informing him that he was to retire on the 18th of August, 1958, and should therefore clear all "arrears" before that date. On receipt of this categorical reply he filed the present writ petition on the 13th of August, 1958, on the following grounds:‑ (1) That the notification by which one year's extension has been given is a nullity in law because the order of Mr. Suhrawardy granting the, extension of three years was final because it was passed by an authority empowered to do so and could not be revised by his successors in office, and (2) that reduction of the period of his service without giving an opportunity to show cause against it contravened the provisions of Articles 180 and 181 of the Constitution. Along with the petition he submitted an application for interim injunction for the maintenance of status quo pending the disposal of the petition. An ex parte order of injunction was granted by Inamullah and Munshi, JJ. on the 15th of August, 1958. The respondents came to know of the order through a report published in the Dawn and applied, two days after it, that the injunction be discharged. It was an elaborate application on which the parties were heard, but the order of injunction was not vacated, nor was the application decided because it involved the determination of those very questions on which the writ petition was based. It was ordered that the application as well as the main petition be heard and disposed of together, at an early date. The respondents have submitted a lengthy reply to the petition in which they have relied on the statements of facts and pleas of law which they had taken in their application and have further submitted para‑wise replies to the allegations made in the writ petition. The learned Attorney‑General has addressed lengthy arguments to us and opposed the petition on the following grounds :‑ (1) The alleged order of Mr. Suhrawardy extending the period of service of the petitioner by three years was not an order but a mere `note' made by him on the file during the progress of the procedure which must be followed until com pleted for making a binding order. The "order", to be binding, must have been authenticated by a proper officer empowered to do so under Rule 7 (2) of the Rules of Business which has the force of law under Article 41 (2) read with Article 224 of the Constitution. Moreover, extension of the period of service, being a subject which falls within the functions of the Establish ment Division, .ought to have been dealt with in accordance with Schedule 11 made under Rule 3 of the Rules of Business, by the Cabinet Secretariat and not by the Secretariat of the National Assmebly. (2) If the above contentions are not accepted by the Court and if the `note' of Mr. Suhrawardy is held to be a valid and binding `order' then it is of no effect because it was modified by the succeeding Prime Minister namely Mr. Feroze Khan Noon and could be revised by the Cabinet which is empowered by virtue of its Collective Responsibility arising from clause (5) of Article 37 of the Constitution and under rule 6 of the Rules of Business, read with sub‑rule (2) of rule 12 of the Rules of Business under which the Prime Minister is entitled to put up a case before the Cabinet for its decision. (3) The notification by which one year's extension has been given to the petitioner fulfils the requirements of clause (2) of Article 41 of the Constitution read with sub‑rule (2) of rule 7 of the Rules of Business and should be taken to be the final order of the Government, because in virtue of the Constitutional prohibition contained in clause (2) of Article 37 of the Constitution the, Court is not entitled to go behind it. (4) Article 180 of the Constitution does hot help the petitioner, nor can the petitioner contend that any rights granted to him by Article 181 of the Constitution have been infringed because the alleged curtailment of the period of his service is not the consequence of any disciplinary action and no blame is imputed to his conduct as a Government servant. We may mention here that he raised two more objections during his address which he gave up later, one of them was that the writ petition was not maintainable because another adequate remedy by way of suit was available to the petitioner, and the other was that the note or order written by Mr. Suhrawardy was not expressed to be in the name of .the President as required by clause (1) of Article 41 of the Constitution. While giving up the second contention he conceded that judicial opinion in favour of this clause being a directory one was so overwhelming that it was not worthwhile for him to take a stand contrary to it. He wanted to argue that clause (a) of sub‑rule (1) of Rule 56 tin, of the Fundamental Rules which permits the Government to retain the services of a superannuated employee upto the age of 60 years, was subject to the restriction contained in clause (c) of regulation 459 of the Civil Services Regulations, and that therefore no extension for more than a year at a time could be granted. The `note' of Mr. Suhrawardy, even if it was an order, was therefore invalid in law according to him. We pointed out to him that this plea was not taken in the counter‑affidavit submitted on behalf of the respondents and that it should be raised, if it had to be raised, in precise language by applying for A an amendment so that the petitioner may have the opportunity of understanding it fully and contesting it. We declined to allow him to raise this plea by the way and without an amendment of the written pleas. He asked for time until the lunch hour to apply in writing for amendment but informed us when the Court re‑assembled after lunch that he did not wish to raise the plea and would be content with pointing out that clause (c) of Regulation 459 of the Civil Services Regulations could have been one of the reasons which induced the new Prime Minister to put up the note of Mr. Suhrawardy for re‑consideration before the Cabinet. There was another plea which the learned Attorney‑General wished to raise during his arguments but was disallowed by us to raise it during his arguments. He wanted to argue that the Cabinet validly revised the decision of Mr. Suhrawardy under clause (c) of Article 42 of the Constitution. This plea in terms of the clause involved in it the allegation that the President had required the Cabinet to re‑consider the decision made by Mr. Suhrawardy. This allegation of fact clearly contradicts the stand taken by the respondents in para. 3 (c) of the first part of their application which they made for getting the interim injunction discharged. The facts stated in the application which are supported by an affidavit, are that the question of giving three years' extension was an incomplete stage of finalization and t at the question came up before the first successor in office of Mr. H. S. Suhrawardy, namely, Mr. Chundrigar, and then before the second successor in office, namely, Mr. Malik Feroze Khan Noon, "who ordered it to be put up before the Central Cabinet for a final decision". This statement of fact is inconsistent with the plea that the President required the reconsideration of a final decision. There is no allegation at all in application or in the counter‑affidavit of the respondents submitted in reply to tile main petition that the President had required the submission of the decision of Mr. Suhrawardy before the Cabinet, As against the stand taken by the respondents, the Attorney‑General offered to place on record the relevant files of all the departments concerned and of the proceedings of the Cabinet to substantiate the allegation of fact that the President had taken action under clause (c) of Article 42 of the Constitution provided we desired him to do so, but we had no mind on bur part to inquire as to how and when the case came to the President's notice and was referred by him to the Cabinet, if it was actually so referred. In fact, we did not desire that the :respondents should place on record any facts beyond what they themselves chose to place before us. The Attorney‑General was free to support the case as it stood with the help of any documents he liked to produce. We may mention here that the petitioner had applied for the production of three documents including the recommendations of the Speaker to the Prime Minister as well as the order of the Prime Minister and the respondent objected to their production on the basis of Article 37 (2) of the Constitution and further stated that the National Assembly's Secretariat did not even have in their possession the original file containing the recommen dations of the Speaker to Mr. Suhrawardy for granting extension of three years. We did not order the respondents to produce the recommendations but the Attorney‑General managed and chose to produce them during the course of his arguments. In support Jo the plea that the President had required the reconsideration of Mr. Suhrawardy's decision by the Cabinet, he did not produce any documents. He did not even raise this plea properly by amending the inconsistent written plea of the respondents. The learned counsel for the petitioner has contended in support of the petition that Mr. Suhrawardy was empowered under Rule 30 read with Rule 29 of the Rules of Business to pass the order without reference to the President, that the order was communicated to the petitioner as well as to the office, that it was acted upon inasmuch as the petitioner was allowed to remain in office and to perform his routine and other duties specially assigned to him and that he was treated as an employee because a loan was granted to him and his application for leave was rejected. The A. G. P. R did demand a formal order to be able to continue to pay salary to the petitioner but that was because the rules which he had to follow required it. The only part of the procedure which in this case could be said to have been neglected is nothing more than this that the order of Mr. Suhrawardy was not sent to the Cabinet Secretariat to be given a formal shape and notified in the Gazette. The Attorney General has conceded that notification in the Gazette is not a necessary part of the procedure and therefore all that remained undone was that the order was not given by the Cabinet Secretariat the form which is the subject‑matter of Rule 7 (2) of the Rules of Business and Article 41 (2) of the Constitution. If the form required by these provisions had been adopted, then the question as to whether the Assembly Secretariat or the Cabinet Secretariat performed the duty would have been immaterial. Strictly speaking, the argument that the Cabinet Secretariat should have dealt with the petitioner's case, and not the Secretariat of the National Assembly, is itself of a doubtful character because according to the foot‑note which appears under Schedule II of the Rules of Business the Assembly Secretariat is not a Division of the Government. The notification, on which the respondents rely (Annexure D to the application of the respondents under Order XXXIX, rule 1 and section 151, C. P. C.) and by which one year's extension was given to the petitioner was itself issued by the Parliament Secretariat and not by the Cabinet Secretariat. The essence of the objection of the Attorney‑General is, therefore, nothing more than that sub‑rule (2) of rule 7 of the Rules of Business and clause (2) of Article 41 of the Constitution have not been followed. Sub‑rule (2) of Rule 7 of the Rules of Business has been framed under Article 41 (2) of the Constitution and, therefore, this provision or any other provision made in substitution or modification of it, including the Resolution bearing No. 99/Cord/47 dated 6‑12‑1947, a copy of which has been submitted by the respondents, derives its force from that Article. Thus the consequence of the violation of the sub‑rule or the Resolution cannot be more serious than the violation of Article 41 (2) of the Constitution. We agree with the learned counsel for the petitioner that the consequence of such violation must be determined by the inter pretation of clause (2) of Article 41 of the Constitution, which is as follows :‑ "The President shall by rules specify the manner in which orders and other instruments made and executed in his name shall be authenticated, and the validity of any order or instrument so authenticated shall not be questioned in any Court on the ground that it was not made or executed by the President". If, therefore, an order or instrument is expressed to be in the name of the President and is duly authenticated, then it cannot be called in question in any Court on the ground that it is not made or executed by the President. There is no other consequence of the formality. It can be questioned on other grounds such as the non‑fulfillment of a condition precedent, (See King Emperor v. Sibnath (A I R 1945 P C 156), because conformity to the form gives immunity against one ground of attack only. If the requirements are not fulfilled then the protection is lost but the omission does not nullify the order or instrument. A Division Bench of this Court, to which one of us was a party, held in an unreported case, Abdul Aziz v. Pakistan (Writ Petition No. 356 of 1956). "The proper objection against an order or instrument on account of the non‑observance of the provisions of Article 41 of the Constitution, is that such order or instrument, made or executed as an executive action of the Federal Government, cannot be presumed to have been made or executed by the President. If such objection was raised by the petitioner then, presuming that the order in question was an executive action of the Federal Government, the Government would have had to prove that it was really made by the President. There is no other consequence of the non‑observance of the pro visions of Article 41 ". Spens. C. J. of the Federal Court of undivided India made a like observation in J. K. Gas Plant Manufacturing Co. (Rampur) Ltd. and others v. Emperor (A I R 1947 F C 38), regarding section 40 (1) of the Old Government of India Act, as it was set out in the 9th Schedule of the Government of India Act, 1935. That section dealt with the same subject‑matter as that of Article 41 of the Constitution. The learned Judge applied the relevant general principles of interpretation which are set out by Maxwell in his well known book on the Interpretation of Statutes, and came to the conclusion that he was not compelled "to put either mandatory or directory construction on the provision in question" and then considered the ordinary meaning of the subsection and the context in which it was found. The following observations made by him are of importance for the present purpose: "In the first place, it must be noticed, dealing with sub section (1) of section 40 alone, that the provision that all orders of the Governor‑General‑in‑Council are to be expressed to be made by the Governor‑General‑in‑Council does not define how orders are to be made but only how they are to be expressed. It appears to imply that the process of making an order precedes, or is somthing different from, the expression of it. Further, "Lastly, there is the result indicated in the last words of the subsection that, if the previous directions, either both the direction as to the expressing of orders and proceedings and that as to signature or the latter as to signature only (whichever be the true construction) are complied with, the orders and proceedings shall not be called into question in a Court of law on one ground only. All these points in the subsection itself indicate that it is not a subsection prescribing a manner and form in which orders of the Governor‑General must be made to be valid." S. R. Das, J. has also held in Dattatraya Moreshwar v. The State of Bombay and others (A I R 1952 SC 181), that‑ "Strict compliance with the requirements of Article 166 gives an immunity to the order in that it cannot be challenged on the ground that it is not an order made by the Governor. If therefore, the requirements of that Article are not complied with, the resulting immunity cannot be claimed by the State. This, however, does not vitiate the order itself." Article 166 of the Indian Constitution and Article 41 of our Constitution are essentially alike. The Attorney‑General has tried to distinguish the Federal Court's judgment from the present case on two grounds. Firstly, that under subsection (2) of section 40 the Governor General was not bound to make rules for the transaction of business, as has been pointed out by Spens, C. J. himself, while under clause (2) of Article 41 of the Constitution the President is bound to frame rules. Secondly, that Spens, C. J. did not take into consideration subsection (4) of section 10 of the Government of India Act, 1935, by which the Courts are debarred from inquiring into whether any, and if so, what advice was tendered by the Ministers because that part of the Act was not in force in India. But a corresponding provision made by clause (2) of Article 37 of the Constitution has been operative and the Courts of Pakistan are debarred from making such enquiry. He has argued that the Courts being debarred from inquiring into what transpired before an order was made, it would be futile for them to try to examine the circumstances in which such order was passed and they should simply declare an order which is not in conformity with Article 41 (2) to be invalid. This is the Constitutional reason which, according to him, led the framers of the Constitution to impose a duty on the President to frame rules and not to leave him free as the Governor‑General was free under section 40 (2) to make rules or not. His argument in short is that under the Constitution there must be rules, they must be observed and any order which is not in conformity with them must be declared to be invalid‑for otherwise the Courts will find themselves in a blind alley. The argument exaggerates the effect of Articles 41 and 37 of the Constitution. As to Article 37 we may point out that the function of the Cabinet is twofold according to clause (1) of Article 37 of the Constitution, namely to `aid' and `advise', and the Courts are debarred from inquiring into "whether any and, if so, what advice" was tendered by the Cabinet to the President. There is no bar to an inquiry into the factum, nature and scope of `aid' rendered by the Cabinet to the President. All that is accomplished by the Cabinet itself should fall under the head `aid' as compared with suggestions and opinions given to the President which should fall in the class of `advice'. When the Cabinet acts in aid to the President as distinguished from tendering advice it accomplishes its own undertakings, and, as pointed out in para. 4 of Gursewak Singh Harnam Singh v. The State (A I R 1954 Pepsu 129), the President is not even informed of its deeds and decisions though they are described or expressed to be in the name of the President. The order in question was admittedly one of those which fall entirely within the competence of the Prime Minister under rule 30 of the Rules of Business. It was a step‑in‑aid and not an advice to the President, and the Courts are not debarred from inquiring whether anything and, if so, what was done before passing the order. The Attorney‑General informed that distinction between `aid' and `advice' had never been drawn hitherto and contended that all acts of the Cabinet are advice, for aid should mean nothing more than `aid by advice'. He gave no explanation as to why two words namely, aid and advice, are used in Article 37 (1) and only one of them, namely, advice, is repeated in Article 37 (2) of the Constitution. He next canvassed that prohibition against making enquiry includes the prohibition against taking into consideration the fact relating to the tendering of advice even if they are brought to the notice of the Courts without their inquiry. In this case, the order passed by Mr. Suhrawardy has been produced by the Attorney‑General himself, yet he contended that we could not take it into consideration. In support of this contention he has relied on the observations made in M. A. Khuhro v. The Federation of Pakistan (P L D 1950 Kar. 49) by Agha, J. at page

57. That is a Single Bench judgment and the passage relied upon does not support the contention of the Attorney‑General as the following two sentences would show:‑ "In my opinion, the question whether the Governor did or did not act on the advice of his Ministers, cannot be directly or indirectly considered by the Court. Even if I had held that this question can be gone into by the Court, the objection must fall on the ground mentioned above, namely, that a Governor's act would only be against constitutional convention and not against any statutory obligation ; it cannot therefore affect the legality of the Ordinance." This is a different question. We find support for our view in Qazi Syed Hikmat Husain v. Pakistan and another (P L D 1958 Kar. 1), in which Inamullah and Wahiduddin, JJ. have observed at page 15 "It is not necessary to make any comments on the contention of the learned Attorney‑General that this Court cannot inquire into as to what advice has been tendered by a Minister. We have not made any enquiry. We have considered in coming to our decisions only those facts which were deposed to on behalf of the respondent‑1." The Attorney‑General went further in following up his line of argument and contended that no notice could be issued by this Court to the respondents on the present writ petition because the question involved in it was as to what advice had been tendered before the final order was gazetted on the 5th of May 1958. The order to issue notice, according to him, amounted to the commencement of an inquiry in violation of Article 37 (2) of the Constitution. The argument is not correct because the question involved in this petition does not relate to an advice to the President but to an act performed by Mr. Suhrawardy himself. It is true that the Court did not know when notice was ordered as to whether `aid' or `advice' was in dispute, but the Court could not determine that aid and not advice was in dispute without giving notice to the respondents. Moreover. the mere issue of notice did not mean commencement of inquiry regarding advice, because the respondents could withhold the disclosure of facts until the decision of their objection, but they have admitted all material facts alleged by the petitioner irrespective of whether the order of Mr. Suhrawardy was an `aid' or `advice', and we think that we can now take them into consideration. The Attorney‑General has contended that We cannot do so, and in support of his contention produced a copy of the judgment of the Supreme Court in Civil Appeal No. 55 of 1957 Pakistan v. Ahmed Said Kirmani and others (P L D 1958 S C (Pak.)397). That is a judgment on Article 89 of the Constitution, but the Attorney‑General has argued that on the analogy of the interpretation of the words : "Validity . . . . . shall not be questioned in any Court", which occur in clause (1) of Article 89, the jurisdiction of this Court to Judge the validity of the orders which have been produced before us is barred. He did not refer to any passage or observation in the judgment which supports him. We have ourselves read the judgment out of our respect to the Supreme Court and found that essentially it proceeds on lines which are not relevant to the contentions raised by the Attorney‑General in this case and deals with provisions which are very different from Article 37 (2). He pointed out that the prohibitory expression used in clause (1) of Article 89 of the Constitution occurs in Articles 32 (3), 56 (1), 142 (5) and Article 222 (5) also. It is so, but this fact does not add any strength to his arguments on Article 37 (2). As pointed out above, the Attorney‑General has used clause (2) of Article 37 for two purposes‑to show that the Court has no jurisdiction to entertain this petition and to show that the operation of the clause indirectly makes the provisions of Article 41 (2) mandatory: Additionally he has relied on con siderations of expediency in support of his contention that Article 41 (2) is mandatory. He argued that, if judicial interpretation whittled down the necessity of strict conformity to the rules which specify the manner in which orders and instru ments should be made and executed, then there will be no limit to the disregard of their form and as a result of this laxity the work of the Government will come to a standstill, because oral orders will be passed, oral commitments will be made and oral amendments and cancellations will take place. We may here note that the Attorney‑General of India had advanced arguments directly in the opposite direction before the Supreme Court of India and had succeeded in inducing that Court to observe in Dattatraya Moreshwar v. The State of Bombay and others (A I R 1952 S C 181), as follows :‑ "The learned Attorney‑General points out that there is a distinction between the taking of an executive decision and giving formal expression to the decision so taken. Usually, executive decision is taken on the office files by way of notings or endorsements made by the appropriate Minister or officer. If every executive decision has to be given a formal expression the whole governmental machinery, he contends, will be brought to a standstill. "I agree that every executive decision need not to formally expressed and this is particularly so when one superior officer directs his subordinates to act or forbear from acting in a particular way, but when the executive decision affects an out sider or is required to be officially notified or to be communicated it should normally be expressed in the form mentioned in Article 166 (1), i.e., in the name of the Governor." In support of the conclusion of the Supreme Court of India we may add that the Attorney‑General has produced and relied upon some documents in these proceedings which themselves contravene the requirements of Art. 41 (2). They are Annexures A, A‑1, B, C and D attached to the application of the respondents made by them under Order XXXIX r. 1, section 151 C. P. C. They have neither been expressed nor authenticated according to the provisions on which the Attorney‑General has taken his stand. The Supreme Court of India has expressed its views equally strongly against the practicability of uniformly observing the prescribed form of Government contracts in Chatturbhuj Vithaldas Moreshwar Parashram and others (A I R 1954 S C 236). It observed " It would, in our opinion, be disastrous to hold hundreds of Government officers who have a variety of contracts, often of a petty nature, and in an emergency, cannot contract orally or through correspon dence and that every petty contract must be effected by a ponderous legal document couched in a particular form." As against this extreme view, the danger of uncertainty, imprecise ness and possible utter confusion which can result from all disregard to form is obvious, but the fear of the work of the Government coming to a standstill for this reason or that, is not the basic criterion for declaring a provision to be directory or mandatory. The basic principles are those which have been set out by Maxwell and have been applied by Spens, C. J., in Gas Plant Manufacturing Company's case to section 40 (1). There should, nevertheless, be no reason for feeling embarrased if Article 41 (2) is held to be merely directory because this character of the provision does not obliterate it and does not mean a licence to forget and violate it. In the words of Maxwell: " The general rule is that an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially." In this case, the order of Mr. Suhrawardy does not sub stantially conform to Article 41 (2) of the Constitution, If we were merely concerned with the directory nature of this law then we would have emphasised this aspect, but we have explained above that the provision does not deal with the validity or otherwise of an order or instrument and when it is not fulfilled merely the scope of controversy relating to such orders and instruments is enlarged. The order passed by Mr. Suhrawardy was not a note but an order passed by the final authority. As pointed out by Spens, C. J., in Gas Plant Manufacturing Company's case, there is a difference between making an order and expressing it in a B certain form. The Attorney‑General has conceded that the question of giving the proper form to an order arises at the time of issuing it, but according to him every order passed by the Prime Minister must be issued because r. 30 (1) of the Rules of Business speaks of the approval of the Prime Minister " before the issue of orders ".. This amounts to misreading the sub‑rule which lays emphasis on the approval of orders and does not contain a direction that orders must be issued. The importance of form is therefore not very great. The next important question is whether the order of Mr. Suhrawardy could be revised. The Attorney‑General has relied on the Collective Responsibility of the Cabinet as the source of the revisional powers of the Cabinet over orders passed by individual Ministers. Sub‑rule (2) of r. 12 of the Rules of Business does provide that the Prime Minister can bring a " case " before the Cabinet for its " discussion ", but Collective Responsi bility itself does not contain in its ambit the idea of supervisory or revisional authority, On the contrary, it binds the Cabinet even when a Minister acts on his own, just as it binds the indivi dual Ministers to obey and carry out the decisions and policies of the Cabinet. Bringing up a case before the Cabinet for decision is also different from getting a decision revised. I he expression " case "used in the sub‑rule is clarified in r. 2 of the Rules of Business. It means a matter " under consideration ", and not a decided question. The Attorney‑General again relied on practical difficulties to oppose this point of view and wanted to enlarge his contention by giving illustrations to show that a decision once made by a Minister should be open to reconsidera tion for otherwise the wheels of the Government will be jammed. His fear, however, did not appear to be well founded to us because in this case we are concerned with the petitioner's claim for the finality of a decision which was given by the final authority, which purports to directly create certain rights of the petitioner of which he/ was informed and the benefit of which has also been given to him. In other matters, the Ministers may be entirely free to adjust their views. The Attorney‑General pointed out that there can be stubborn Ministers who would take their stand on technicalities, and wanted to elucidate his proposi tion by giving illustrations. We are, however, not concerned with conflicts within the Cabinet because their dominant character is political and if they arise, then they might be dealt with by the Prime Minister with political weapons. These methods have nothing to do with the rights of private individuals. Against their claims there exists for the protection of the Government the wall of Official Secrecy. It separates the Government interests from private interests. Its protection is pleasant and valuable on the official side, though on the public side it can be dreadfully blank and dead. The petitioner committed no breach of official secrecy and if two of the highest dignitaries of the Government informed him that the term of his service had been extended by three years and enabled him to take his stand on the information, then we are induced to conclude that the decision which was communicated to him was meant to be final. Actually it was not disturbed for about 8 months. The Attorney‑General drew our attention to the oath of secrecy of the Prime Minister con tained in the Second Schedule to the Constitution but could not explain as to how it could be used against the petitioner. He has contended that the decision of Mr. Suhrawardy should not be deemed to have been acted upon, because the period of 8 months after superannuation during which the petitioner occupied the office of a Joint Secretary, owing to the order of extension for 3 years, was less than one year for which term his service has been lastly extended. The argument was apparently founded on the principle of locus poenitentiae and is untenable even as such. He cited Shahbaz v. The Crown (P L D 1956 F C 46) in which their Lordships have approved the view of the High Court " that a locus poenitentiae will be left only if the order has not been carried into effect ", and urged, that the petitioner was allowed to serve after superannuation, not because his service was extended beyond superannuation but because the question of the extension of his service was under consideration. On the facts before us we cannot accept this explanation as true. Moreover, we cannot accept that he remained in service and occupied the high post of a Joint Secretary without any positive order in his favour, and merely because the question of extension was under considera tion; unless we could be induced by the Attorney‑General to believe that complete rot had set in the administration at the secretarial level. Lastly the Attorney‑General has argued that the reduction of three years' period of extension to one year does not entitle the petitioner to seek a remedy from the Court, because his rights under Article 181 of the Constitution have not been affected, inasmuch as mere reduction of the period of service is not protected by that Article unless the curtailment of the tenure of service amounted to dismissal or removal from service. The petitioner has admittedly not been dismissed from service, nor could he be said to have been removed from service because remo val also means dismissal. If, therefore, there has been a variation in the tenure of his service, then such variation is permissible without notice. In support of this proposition he relied on the observa tions of Rahman, C. J. in The Federation of Pakistan v. Fayyaz Ahmed (P L D 1958 Lah. 500) made in para. 8 of his judgment. Counsel for the petitioner did not attempt to question the proposition as to whether the word " removal " means in essence what the word " dismissal " means, but confronted the Attorney‑General with a judgment which is very much in his favour, namely, The Province of the Punjab v. Ch. Nazir Hussain (P L D 1956 Lah. 556) and the Privy Council's judg ment in R. Venkata Rao v. Secretary of State (A I R 1937 P C 31) and the observa tions of Rahman, C. J. contained in paragraph 12 of his judgment in Fayyaz Ahmed's case. We reproduce here paragraph 12 itself because it contains a full statement of the proposition on which the learned counsel has relied: " It was argued on behalf of the respondents that sub section (3) of section 240 of the old Constitution Act was not confined to cases of termination of service or reduction in rank for misconduct or by way of penalty. It was contended that even an arbitrary or capricious removal or reduction in rank, would be covered by this subsection and in . support, reliance was placed on Punjab Province v. Ch. Nazir Hussain P L D 1956 Lah. 556, Kazi Hikmat Husain v. Pakistan P L D 1956 Kar. 1, decided by a D. B. of the Karachi Bench on the 17th of October 1957 and my observations contained in the judgment in Civil Miscellaneous. No. 574 of 1955, decided on the 3rd of January 1956. In the first of these cases, Chaudhri Nazir Husain was appointed on contract for three years as a Member of the Public Service Commission and it was held that the period of his contract could not be arbitrarily curtailed by a unilateral decision of the Government. In Kazi Hikmat Husain's case, the officer had been promoted to a higher post but was latter sought to be reverted to his old appointment for reasons unconnected with his personal conduct. This was found to be reduction in rank, within the meaning of the subsection. I am disposed to agree with the contention that a wholly arbitrary or capricious removal from service, without reference to any term in a contract, would in all probability, be hit by this subsection, but I find it difficult to accept the broad proposition that a discharge in accordance with the term in a contract of service, would amount to such arbitrary removal or dismissal." Chaudhri Nazir Husain's appointment is described in the above passage as a contract, although it was made by a notification in the official Gazette and was not in conformity with the techni calities required of Government contract by section 175 of the Government of India Act, 1935. In the same sense the exten sion of the petitioner's term of service is a contract‑an assurance and a commitment which has been made by the Government. The expectations created by it must be respected. We may also mention that the sentence underlined by us in the passage repro duced above is a modified version of the following observation on section 97‑B of the Government of India Act, 1919, made by the Privy Council in Venkata Rao's case " They (their Lordships) regard the terms of the section as containing a statutory and solemn assurance that the tenure of office though at pleasure will not be subject to capricious or arbitrary action but will be regulated by rule." The Attorney‑General sought to make use of the word " wholly " which occurs in the underlined sentence of Rahman, C. J. in the above‑quoted passage, and contended that in the present case the curtailment of the tenure of service was not wholly arbitrary because the reason for curtailing extended period of service from three years to one year might have been the restriction of one year which is to be found in clause (c). Regulation 459 of Civil Service Regulations. In this context he also relied on Annexures A, B and XII submitted by the respondents. They are instruc tions which were issued in 1953 and 1958 by the Establishment Division of the Cabinet Secretariat and are meant to minimize the instances of extension of service after superannuation. The instructions which were issued in 1958 were issued after the extension of the petitioner's service, and do not apply to him. We do not attach importance to any of these instructions or rules, as the Attorney‑General described them, because apparently they were not meant to be uniformly followed and were not respected and observed by the Government departments. The petitioner has given instances of two years' extension of service given to several employees in October and November 1957 and February 1958. These instances are mentioned in Annexure‑E filed by the petitioner along with his petition. The respondents have not denied or distinguished them and on our pointed enquiry from the Attorney‑General he replied that the cases of those employees were not before the Court and ,that instances of the violation of a ` rule ' do not detract any force from the legality of the rule. We think that the application of a departmental rule is arbitrary if it is applied to some persons only and is broken openly and without compunction in other cases. Such a rule is not a rule, but a handicap artificially created to the detriment of a few persons. We need not specifically consider the effect of Regulation 459 (c) of the Civil Service Regulations because the Attorney‑General made clear to us, as has been noted above, that he did not rely on it. Lastly we may add that the notification by which the peti tioner's service has been admittedly extended by one year, suffers from all the faults, except one, which have been found on behalf of the respondents in the order of Mr. Suhrawardy it was not issued by the Cabinet Secretariat, nor expressed to be in the name of the President nor authenticated. It was signed by a Deputy Secretary of the Parliament Secretariat and issued, presumably after being made by a competent authority on an official file. Strictly speaking, the protection afforded by Article 41 (2) of the Constitution does not avail for it and therefore on the face of it, it is less authentic as an order passed by a competent authority than the order of Mr. Suhrawardy. We are satisfied on the whole that the order of Mr. Subrawardy dated the 9th of April 1957 extending the service of the petitioner for three years is binding on the parties. We, therefore, quash the notification dated the 6th of May, 1958, which purports to extend the term of his service for one year and order the respondents not to interfere with the rights of the plaintiff as an employee of the Government for the remaining period of .his service accord ing to the order of Mr. Suhrawardy. [The order of the Bench was pronounced by Kayani, C. J. as the Judges constituting the Bench were out of station.‑Ed]. A. H. Petition accepted.