P L D 1962 (W (PLP)

ANWARUL HAQ, J.‑This is a petition by Colonel K. M. Sana, Assistant Director (Medical), Provincial Health Directorate, Lahore, praying for the issuance of an appropriate writ, directing the Government of West Pakistan to withdraw their Notification No SOI‑22‑1/56, dated the 31st of October 1960, whereby the petitioner has been transferred to Jhelum as District Health Officer. A further prayer is that the respondent‑Government be directed to allow the petitioner to continue to bold his present appointment in the Directorate of Health Services and also to honour in every detail the decision already taken to employ him as Deputy Director of Health Services.

2. The facts giving rise to the petition may be stated: ‑ Colonel K. M. Sana joined the Indian Medical Service in 1939 and rose to the rank of a full Colonel by March 1952 in the Pakistan Army Medical Corps (P.A.M.C.). On the 3rd of September 1954, he was seconded for service in a civil capacity as Director Health Services under the Government of the former Bahawalpur State. His pay was fixed at Rs. 2,305 p.m. plus free furnished residential accommodation and free transport. Initially, the period of secondment or deputation was one year but, in view of the impending integration of the various States and Provinces of West Pakistan, it was extended till the forma tion of One Unit (vide Annexure R/1 on page 87, which is a copy of Letter No. 12861 dated the 10th of September 1955, from the Chief Secretary, Bahawalpur Government, to the Secretary Education and Health Departments of that Government). On the 13th of October 1955, another letter was sent by the Chief Secretary of the Bahawalpur Government to Colonel K. M. Sana, intimating that consequent on the integration of the Bahawalpur State into the Province of West Pakistan, the post of Director of Health Services will cease to exist on 14th October 1955, and the services of Colonel K. M. Sana will not be required by the State Government beyond 13th October 1955 afternoon. The petitioner was further advised by this letter to refer his case for further orders to the Chief Secretary to Government of West Pakistan at Lahore (A copy of this letter bearing No. 14949 Is at Annexure R/2‑page 89).

3. On the 19th of September 1955, the Chief Secretary to the Bahawalpur Government had addressed a letter to the Secretary to the Government of Pakistan in the Ministry of States and Frontier Regions, Karachi, requesting that the sanction of the Ministry of Defence of the Government of Pakistan may be obtained for the extension of the deputation of Colonel K. M. Sana until the formation of One Unit, and in case that was not possible, the officer may be retired from service by the Defence Department. In the body of this letter, It was observed that the Director‑designate of Health Services, West Pakistan, had written to say that Colonel Sana's services would be very useful in the One Unit set‑up. This officer wrote another letter on the 20th of September 1955 to the Secretary, Council for Administration of West Pakistan, giving information about the appointments held by Colonel K. M. Sana and one other Medical Officer under the State Government, and requesting that these may kindly be kept in view for the purposes of absorption of these officers in the One Unit set‑up. (Office copy of this letter is at page 56 in Bahawalpur Government file No. 41‑92 of 1954). On the 10th of October 1955, the Ministry of Defence addressed letter No. F. 3962/33/D.G.M.S.I(B) to the Ministry of States and Frontier Regions, regretting its inability to grant extension of the services of Colonel Sana with the Bahawalpur State, but stating that in view of the provision made in para. 4 of the secondment letter, the Ministry would be prepared to consider Colonel Sana's application for voluntary retirement from the Army, and it was added that the officer may be asked to submit an application. It appears that Colonel Sana applied for retirement from the Army. In the meantime, the One Unit came into existence and Colonel Sana continued working at Bahawalpur as an Officer of the West Pakistan Government for the purpose of making arrangements for the establishment of a Medical School at that place.

4. On the 3rd of January 1956, the Secretary to Govern ment of West Pakistan in the Health Department wrote letter No. 13‑H (Adm.)‑56/19 to the Ministry of Defence, Government of Pakistan (copy at Annexure P. 2 page 17), stating that the Government of West Pakistan were very short of senior Medical Officers with administrative experience and were accordingly willing to offer Colonel Sana regular Class I employment as soon as he was permitted to retire. It was added that the officer bad been working on an ad hoc basis for the West Pakistan Government in Bahawalpur since his release by the State Government on the afternoon of the 13th of October 1955. It was requested that his retirement from the P.A M.C. should take effect from the morning of the 14th of Octob4''1955. A second letter was then written by the Health Secretary to the Govern ment of West Pakistan to the Secretary to the Government of Pakistan in the Ministry of Defence on the 24th of January 1956 (bearing No. 392‑H(Adm.)‑56/521), stating that "the short point in this case is that this Government understand that Colonel Sana's services can be spared from the Army without too much inconvenience, and we in the Civil do most urgently require the services of a man with his proven capabilities, administrative experience and background. Since therefore we are working for a common object, I am directed to express the hope that this can be straightened out quickly and that you will be able to see your way to allowing Colonel Sana to retire and lake up civil service in the West Pakistan Health Services Department. As our need is urgent, I am to state that if necessary I shall be prepared to visit Rawalpindi for a meeting if such a course will be likely to achieve a quick decision." These official requests for the services of Colonel K. M. Sana were followed up by a D. O. letter written on the 4th of February 1956 by the then Chief Minister, Mr. Abdul Hamid Khan Dasti, to the Hon'ble Prime Minister of Pakistan. In response to these requests, the Ministry of Defence issued letter No. 3962/33 D G.M.S.1(B), dated the 13th of March 1956 (copy at Annexure P. 3 page 19), according sanction to the retirement of Colonel K. M. Sana from the Army for regular Class I employ ment by the West Pakistan Government. This is one of the important documents in this case, and may be reproduced here with advantage :‑ "Subject :‑Retirement of Col. K. M. Sana (PAMC) (PA‑100018) from the Army. With reference to your letter No. 13‑H‑Adm. 56/19, dated the 3rd January 1956 and the D. O. letter dated the 4th February 1956, from the honourable Mr. Abdul Hamid Khan Dasti, to H. P. M., I am directed to say that the Government of Pakistan have approved the retirement of Col. K. M. Sana from the Army for regular Class I employment by the West Pakistan Government in continuation of his deputation to the Bahawalpur State Government. The officer has been relieved on request from and in the interest of West Pakistan Government. (2) A detailed letter giving pensionary benefits, leave admissible and the Army Rank to be retained by the officer will be issued later. That letter will also give the exact date of retirement, which will not be earlier than 17‑2‑56 but may be later if leave 9s admissible to the officer. In any case there should be no break in the officer's service between his retirement from the Army and employment by the West Pakistan Government. (3) The officer may please be instructed to return his service Identity Card to the DMS (Army), General Headquarters, Rawalpindi."

5. On receipt of the sanction of the Central Government in the Ministry of Defence to the retirement of the petitioner, the Government of West Pakistan issued orders for his appoint ment to West Pakistan Health Service Class I "with effect from the date he reports for duty subject to the approval of the Public Service Commission." It was stipulated in these orders that his pay and seniority will be fixed later (vide letter No. H(Adm)‑22/1‑56, dated the 27th of March 1956 Annexure R/4 on page 93). It may be stated here that before the issue of these orders, Colonel Sana had already taken over on the 14th of March 1956 at Lahore as Principal Officer of Medical Stores and Supplies.

6. When the matter was referred to the Public Service Commission, they raised several objections to the appointment of Colonel K. M. Sana as a regular member of the West Pakistan Health Service Class

1. It is not necessary to state these objections here, and suffice it to say that after detailed examination of the matter the Government came to the conclusion that Colonel Sana should be employed on contract basis. This decision was approved by the then Governor, Mr. Akhtar Husain, on the 25th of January 1959 (vide his Minute at para. 168 of the noting portion of the VI part of file bearing the heading S & GAD No. S.O. III‑16/20‑57).

7. Considerable delay took place in implementing this decision of the Governor of West Pakistan, and ultimately it was decided to convene a meeting of the officers concerned so as to finalise the terms on which Colonel K. M. Sana was to be employed This meeting was held in the office of the Chief Secretary to Government of West Pakistan on the 18th of May 1959, and was attended by the Chief Secretary, the Finance Secretary, the Law Secretary, the Health Secretary and the Director of Health Services. This high‑powered meeting took the following decisions on the case: ‑ "(a) It was agreed that Col. K. M. Sana was not in Health Service of the Bahawalpur Government on 14‑10‑55 but merely on deputation from the Defence Department. He could not claim the right of integration in the Health Services of West Pakistan as he retired from the Army on 3rd June 1956. (b) In view of the promise made by the Health Department vide their letter to the Ministry of Defence, the Department had given an assurance that Col. K. M. Sana would be absorbed in WPHS (I) w. e. f. the date of his retirement. However, if he is taken into service from that date he will be placed junior to all officers who were in that Class on 2nd June 1956. (c) Col. K. M. Sana should be re‑employed on contract for a period from the date of his retirement from the Army till he reaches the age of superannuation. He will be employed as Deputy Director, Health Services on pay and terms etc., to be settled in consultation with the Finance Department. (d) Rules for appointment to the post of D. H. S. West Pakistan and to that of the post of D. Ds. H. S. West Pakistan should be so framed that appointments to these posts be made either by promotion from the service or from outside. The Department will frame these rules in consultation with the Law and S. & G. A. D. Departments. The case is forwarded to the Law Department to confirm that the above‑mentioned decisions are as far as possible legally correct." (Vide para. 73 of Part IV of the noting portion of file No. S. O. 1. 22/1‑56, a copy is at Annexure P. 4, of page 21 of the petition).

8. It is stated in the petition that at the conclusion of the meeting referred to in the preceding paragraph the petitioner was called in and an offer of employment as Deputy Director of Health Services in terms of the decisions of the meeting was made to him and he finally accepted it. This seems to be the correct position, as would appear from endorsement No. Special/ D.H.S. dated the 22nd July 1959, under which the Director Health Services sent to Colonel K. M. Sana a copy of the Minutes of the meeting of the 18th of May 1959, (Annexure P. 5 page 23). The decisions of the meeting were scrutinised by the Law Department, as required by the last paragraph of the Minutes, and that Department advised that "the necessary agreement may be drawn up by the Administrative Department with the concurrence of the officer concerned in regard to matters like tenure. status, right of promotion and emoluments, and such other terms and conditions to which the parties may agree. The draft agreement may then be sent to the Law Department for necessary vetting." (Para. 77 of the noting portion of the file referred to in para. 7 of this judgment).

9. The case was then submitted to the Governor of West Pakistan (Mr. Akhtar Husain), who accorded his approval to these decisions on the 4th of June 1959 (vide para. 81 of the above‑mentioned file).

10. The Director of Health Services was directed by the Government of West Pakistan (vide their letter No. S. O. L‑22/ 1‑56, dated the 18th of July 1959 Annexure P. 5 on page 23) to draw up the agreement as desired by the Law Department, and in reply thereto the Director submitted his proposals under his letter No. Special/D. H. S., dated the 24th of July 1959, (Annexure P. 7 on page 33 of the petition). A copy of the draft agreement enclosed with the letter of the Director Health Services is at Annexure P. 6 (page 25 of the petition). This draft agreement was subjected to a prolonged examination by the Health Department and the Finance Department, of the Govern ment of West Pakistan, and before formal orders could issue in the matter, the Governor of West Pakistan received a letter from the Minister for Health and Social Welfare, Government of Pakistan, on the 28th of September 1959, which was to change the whole complexion of the case. This letter bears D. O. No. 2084 HM/59 and is dated the 23rd of September 1959, (vide page 89 of the correspondence portion of Part 11 of file No. S. O. 1. 22/1‑56). It is to the following effect "I understand that draft contract terms in connection with the employment of Col. Sana as Deputy Director Health Services, West Pakistan, are being considered by your Govern ment. The terms and conditions being offered to him appear to be quite out of the way, more so as I understand that this officer was not even confirmed in his present post by the Federal Public Service Commission. I am further informed that these draft contract terms have not been shown to the Federal Public Service Commission in spite of a request from the Chairman of the Commission. This officer has served under me in the Army Medical Corps. From my personal knowledge of the individual and his professional capabilities I am of the opinion that this appointment will be a step in the wrong direction and would not be conducive to the efficient and smooth working of the health organisation of the Province. I would, therefore, request you to look into the matter and stop this retrograde step from being taken."

11. Mr. Akhtar Husain replied to this letter by means of his D. O. No. 6110‑GS(B)‑59/662, dated the 8th of December (vide page 92 of the correspondence file mentioned above), apprising the Central Minister for Health and Social Welfare of the circumstances under which Col. Sana's retirement from the Army was sanctioned by the Government of Pakistan, and observing that "in view of the definite commitment referred to above, I think you will agree that we have no option but to employ Colonel Sana, and to regularise his appointment with effect from the 15th October 1955. If you still feel strongly that he is not suitable for appointment as Deputy Director, he could be appointed to his present post in the Health Directorate on suitable emoluments." The Governor also remarked in this letter that as Colonel Sana's appointment was under the Provincial Government, the Federal Public Service Commission was not concerned with it.

12. The Central Minister for Health and Social Welfare, Lt. General W. A. Burki, thereupon addressed a letter to the Governor of West Pakistan on the 23rd of December 1959, (vide pages 96‑98 of the file), pointing out that under the existing terms and conditions of service an Army Medical Corps Officer could not ask for secondment to the Civil, and if such an officer wished to seek a job outside the Army, it was his own responsi bility as an individual, and his corps or the Ministry of Defence could not be made a party to it. The Minister also enclosed with his letter a copy of letter No. 3548/58/DMS‑1(a), dated the 20th of August 1956, which was issued by the G. H. Q. Medical Directorate, after obtaining the agreement of the Ministry of Defence to explain the details of the officer's retirement. The Minister concluded by saying that the officer does not merit being appointed as a Deputy Director Health, but the Minister would have no objection if the Provincial Government wished to retain his services as a Class I Officer outside the Directorate/ Secretariat.

13. The case was re‑examined in the light of the views expressed by the Central Minister for Health and Social Welfare in his letter of the 23rd of December 1959, and the Health Secretary proposed on the 30th of January 1960, that Colonel Sana could be appointed to the post of Administrative Officer in the Lahore Mental Hospital and his pay would be fixed according to the formula laid down by G. H. Q. for such officers. This proposal was approved by the Governor on the 1st of February 1960 (vide paragraph 149 and 150 of Part IV of the noting portion of file No. S.O.I.22/1‑56). In other words, the Governor now reversed his earlier decision of the 4th of June 1959 to appoint the petitioner as Deputy Director Health Services.

14. However, this second decision was also not implemented, in view of fresh instructions given by the Minister for Health and Social Welfare, as conveyed by Colonel B. H. Sayed, Director Health Services, West Pakistan, by means of his D. O. No. 113/ D H. S., dated the 25th of February 1960, addressed to Mr. M. Masuood, Health Secretary to the Government of West Pakistan (vide page 106 of the correspondence file referred to above). This is a brief document and may be reproduced here with advantage "This morning the Minister for Health and Social Welfare again repeated that he desired to see the case of Col. Sana's employment some time back but he has not received it. However, he asked Col. Sana about his case and after hearing him he gave the following decisions which he directed me to com municate to you: ‑ (1) He did not agree that Col. Sana should be given the post of Deputy Director Health Services. (2) He agreed that he may continue in his present appoint ment as Assistant Director (Medical) and draw the pay whatever Government has decided as a special case on contract basis. I hope this will facilitate the Government now to reach a decision and issue orders accordingly."

15. On the receipt of this letter, Mr. M. Masuood, the Health Secretary, noted on its margin as follows on the 29th of February 1960: ‑ "As at "A" may be approved" and marked it to the Governor. The Governor recorded his approval on the margin of this very letter on the same day. The "A" in the Health Secretary's note referred to para. 2 of the letter as reproduced above. This then was the third decision on the case of the petitioner.

16. After the Governor of West Pakistan had passed orders on the 29th of February 1960, approving the appointment of the petitioner as Assistant Director (Medical), in deference to the wishes of the Central Minister for Health and Social Welfare, the question of the fixation of the petitioner's emoluments once again came under examination and was still being debated between the Finance Department and the Health Department, when an order was issued on the 24th of September 1960, directing the petitioner to proceed to Vehari in the Multan District to take over as Officer on Special Duty, in connection with the bifurcation of Multan District into two districts (vide Annexure P. 8 on page 37 of the petition). This order was, however, later withdrawn and instead a fresh order was issued on the 8th of October 1960 (vide Annexure P. 9 on page 45) followed by a Notification No. SOI‑22‑1/56, dated the 31st of October 1960 (Annexure P. 10 on page 47), directing the petitioner to proceed to Jhelum as District Health Officer.

17. The present writ petition was filed on the 2nd of November 1960. Normally, it should not be necessary to take note of subsequent happenings, but in view of tie peculiar circumstances of the case it may be well to complete the record up‑to‑date. On the 4th of November 1960, we suspended the operation of the impugned order, transferring the petitioner to Jhelum as District Health Officer. On the 8th of February 1961, we adjourned the case for about five weeks, with the following observations :‑ "As ultimate decision of the case may in some manner depend on the emoluments of the petitioner fixed in accor dance with the order of the Governor dated the 29th February 1960, noted on the margin of the letter from D. H. S. to S. H , we consider it expedient to adjourn this case to the 14th of March 1961, to enable the Government to fix emolu ments of the petitioner. In the meantime if the Government considers it expedient, the petitioner may be transferred to the post of an Assistant Director outside Lahore." It may be added that the last part of the order reproduced above was passed on a representation made on behalf of the respondent --Government that certain inquiries were pending against the petitioner and it may, therefore, be necessary to post him out of Lahore.

18. The case of the petitioner was once again examined by the Government in the light of the observation made by us on the 8th of February 1961, and (vide paragraphs 250 to 253 of the noting portion of the file referred to in the preceding paragraphs) the then Secretary of the Health and Social Welfare Department (Mr. Inayatullah) in his Minute dated 8‑3‑61 proposed that a con tract may be drawn up between the Government and Lt. Colonel Sana on the following terms and conditions: ‑ "(i) That his pay will be fixed at Rs. 1,150 p.m. (the maximum of the pay scale of W. P. H. S.‑I) or pay last drawn by him in the Army (Rs. 1,650) minus pension to which he is entitled from the Army, whichever is less ; (ii) That he shall continue as Assistant Director, Health Services, till he reaches the age of 55 ; (iii) That his continuance as a re‑employed officer on contract basis will be subject to the rules relating to physical fitness, efficiency and disciplinary action applicable to the officer of his status ; (iv) During the period of contract, Col. Sana will be entitled to such medical facilities as are allowed by Government to officers of his status ; (v) That during the period of contract he will be liable to be transferred anywhere in the Province of West Pakistan."

19. This proposal was scrutinized by the present Governor (Malik Amir Muhammad Khan), and he recorded a detailed note on the 10th of March 1961, ordering certain modifications in the proposed terms and conditions of the contract. He considered that it would be unfair to fix Colonel Sana's salary at anything less than Rs. 1,700 per mensem, that the retirement age should be fixed at 60 instead of 55 (presumably because of the general increase in the age of superannuation of Government servants) and that clause (ii) of the proposed contract should be suitably redrafted in accordance with the decision of the committee taken on 18‑5‑59, and approved by his predecessor on 4‑6‑59 so as to make Colonel Sana eligible for promotion to the post of Deputy Director and Director Health Services, and not to keep him as an Assistant Director for all time to come until he reaches the age of superannuation. The Governor's note is at paragraphs 254 to 257 of the file. The Health Secretary then passed on the case to the Finance Secretary with certain observa tions, and in his Minute dated the 14th of March 1961 (para graphs 260 to 265 of the file) the Finance Secretary, among other things, brought out the point that the last pay drawn by Colonel Sana in the Army was Rs. 1,650 and that this figure may be agreed to by the Governor. On the 16th of March 1961, (vide paragraph 266 of the file) the Governor noted as follows :‑ "I agree with F. S. throughout. Action accordingly." This was the 4th time that the Governor of West Pakistan had given a ` final" decision on the terms and conditions which were to govern the employment of the petitioner under the Government of West Pakistan. ,

20. Unfortunately, however, a new development took place at this stage. The learned Advocate‑General, West Pakistan (Mr. M. Anwar) sent a note on the 1st of April 1961, to the Health Secretary seeking certain clarifications in the case (vide paragraphs 267 to 269 of the relevant file). The relevant portions of this note are as follows: ‑ "Instructions had been given to me in Writ Petition No. 880 of 1961 filed by Colonel K. M. Sana, P. M. O. in the Provincial Health Directorate at Lahore to say that no completed contract having come into existence as between Colonel Sana and the Government of West Pakistan, it was not open to him to contend that he bad been appointed as Assistant Director and that he was, therefore, not liable to transfer outside Lahore. On the case coming up for hearing before the High Court, one of the contentions that I raised was that the post that Colonel Sana was presently occupying was equivalent to that of a D. H. O. and on that account, therefore, he was liable to transfer to any part of Pakistan‑ The tenor of the order (that is the one finally passed by the Governor on 16‑3‑61) clearly is that Colonel Sana shall continue as an Assistant Director for the present, that he shall serve up to the age of superannuation and that the Recruitment Rules would be so amended as to permit contract officers being con sidered for further promotion in higher posts. This, it will be observed, will have the effect of making Colonel Sana an Assistant Director in a non‑transferable post, and will naturally, therefore, embarrass the defence of the writ petition. It is, there fore, desirable that orders consistent with the instructions given earlier and incorporated in the written statement should be passed. Clear instructions are, therefore, solicited on the following points: ‑ (1) Is Colonel K. M. Sana to be posted as an Assistant Director in a non‑transferable post with a salary of Rs. 1,650 p.m. which is almost equivalent to the salary of a Deputy Director and which might legitimately raise the argument that to Colonel Sana a pest higher in status than that of an Assistant Director or D. H. O. is being offered? (2) Is he to have a contract of service up to the age of superannuation at this stage when a prosecution under the Prevention of Corruption Act on charges of misconduct is pending against him ? (3) Is it contemplated that the Rules of Service should be so amended as to affect the rights of other members of the regular cadre of WPHS Class I ?

21. The Health Secretary (Mr. M. Masuood), who had by this time (re‑joined the Department), submitted the case for orders to the Governor. From the Health Secretary's note dated 5‑4‑61 (vide paragraph 271 of the file) it appears that the matter was discussed by the Governor with the Health Secretary, the Law Secretary and the Advocate‑General, and it was directed that the Director Health Services should seek further clarification from the Health Minister as to "his precise orders about Colonel Sana's employment". In pursuance of this directive the Health Secretary addressed a D. O. letter to the Central Minister for Health, Labour and Social Welfare on the 14th of April 1961, vide page 176 of the correspondence portion No. 2 of file SOI‑22/1‑56). The Minister's reply to this letter is contained in his D. O. No. Dy 1768‑H/61, dated the 14th of April 1961 (vide page 177 of the correspondence file just mentioned). This letter is as follows: ‑ "Reference your D. O. letter No. Nil, dated 14th April, 1961, regarding the case of Colonel Sana. My views regarding this officer have been expressed in detail in my D. O. letter No. 6304 dated 25th December 1959 to Mr. Akhtar Husain , the then Governor, wherein I had indicated that the officer should be moved out of the Directorate/Secretariat, and be employed in any Class I post outside. I am afraid that I have been mis‑quoted by the Director Health Services in his D. O. letter No. 113/D. H. S. of 25th February 1960, adressed to you. All that I said was that I had no objection to Sana staying in service. These remarks of mine seem to have been twisted and given a complexion contrary to the concluding portion of my letter of 25th December, which is very clear on the subject. So far as the question of the emoluments of this officer is concerned, all that can be said is that his last pay in the Army cannot be any basis for his salary being fixed at Rs. 1,650 per month, as he is a retired officer who is seeking new employment. It would however be desirable that usual rules in his case also may be observed without making any special case for enhanced emoluments over and above Class I pay‑scale."

22. On the receipt of this letter the Health Secretary again submitted the case to the Governor on the 15th of April 1961 proposing that the following reply may be given to the Advocate- General's note of 1‑4‑61 :‑ (1) Colonel Sana is to be posted to a Class I P. H. S. post. (2) His pay will be fixed according to the above‑mentioned formula (the formula mentioned in the earlier part of his note being that Colonel Sana will receive pay last drawn in the Army that is Rs. 1,650 less pension of the maximum of the pay‑scale that is 600‑1,150 per mensem, whichever is less). (3) His proposed pay will not equate to the pay of a Deputy Director. These proposals were initialed by the Governor the same day. These proposals implied certain changes in the terms and conditions which had previously been approved finally by the Governor of West Pakistan on the 16th of March 1961. This was, therefore, the 5th decision in the case by the Governor of West Pakistan. A fresh contract was then drawn up by the Secretariat and for warded to the petitioner for his consent through the Director Health Services. In the meantime the case was adjourned by this Court from time to time on the representation of the Govern ment that the case would soon be finalised. The petitioner, however, refused to give his consent to the new draft agreement forwarded to him by the Government as, according to him it Included several new clauses which were derogatory of rights which had already accrued to him. Apart from the clause dealing with his emoluments, it was brought to our notice that a new clause was introduced providing for the termination of his services on three months' notice, whereas according to all previous decisions he was to continue in service until the date of superannuation, subject of course to the application of the normal disciplinary rules applicable to officers of his status. There is no indication on the relevant file that the Governor bad agreed to the introduc tion of any such clause, but the learned Advocate‑General informed us that the contract now offered to the petitioner was on the lines of a model contract, which had been approved by Government to serve as a pattern in such cases.

23. On behalf of the petitioner, Khawaja Abdul Rahim has raised the following major contentions :‑ (1) That at the time of the establishment of the Province of West Pakistan the petitioner was holding the appointment of the Director of Health Services, Bahawalpur State, which is one of the specified territories, and as such his terms and conditions of service were protected by proviso (a) to subsection (3) of section 8 of the Establishment of West Pakistan Act, 1955. (2) That a complete and final contract came into existence between the petitioner and the Government as a result of the decisions taken by the high‑powered committee on the 18th of May 1959 and approved by the Governor on the 4th of June 1959, to which the consent of the petitioner had been obtained by the committee at its meeting. It is contended, therefore, that the petitioner must be regarded as occupying the post of Deputy Director Health Services, and the post of a District Health Officer being lower in rank than that of a Deputy Director, the impugned order amounts to a reduction in rank in violation of Article 181 of the Constitution. (3) That the Governor of West Pakistan had no power to unilaterally vary the terms of the contract which had already come into existence between the petitioner and the Government on the 4th of June 1959, appointing the petitioner to tale post of Deputy Director Health Services, (4) That the Central Minister for Health and Social Welfare had no power or authority to issue directions to the Provincial Governor in particular cases and accordingly the decisions taken from time to time by the Provincial Governor on receipt of directives from the Central Minister were invalid in law.

24. As regards the first contention that the petitioner is entitled to protection under proviso (a) to subsection (3) of section 8 of the Establishment of West Pakistan Act, 1955, it is sufficient to say that this protection is available only to persons who were holding civil posts under the Governments of the integrating units on the appointed day, i.e., the 14th of October 1955, and such persons would be deemed to be persons serving the Crown in connection with the affairs of the Province of West Pakistan. The proviso to subsection (3) contemplates that the terms and conditions of such persons shall not be less favourable than those admissible to them immediately before the 10th day of August 1955. The petitioner was informed on the 13th of October 1955, that his services will not be required by the Govern ment of Bahawalpur beyond the afternoon of that date. The result, therefore, is that on the appointed day, i.e., the 14th of October 1955, the petitioner was not a person serving the Govern ment of Bahawalpur State, and could not, therefore, be automatically deemed to be a person serving the Province of West Pakistan. This being so he is not covered by the terms of subsection (3) of section 8 of the Establishment of West Pakistan Act, 1955, and is, accordingly, not entitled to the protection con tained in proviso (a) to the said subsection. He had to settle his own terms with the new Government.

25. Before dealing with the second and third contentions raised by the learned counsel for the petitioner, which in fact provide the foundation for his case, we would like to dispose of the last contention concerning the power of interference or direction vesting in the Central Minister, vis‑a‑vis the Provincial Governor. We consider that it is not necessary to examine this question for the reason that, although the decision originally taken by the Provincial Governor on the 4th of June 1959 was reversed due to the intervention of the Central Minister for Health and Social Welfare, and although subsequent decisions were also modified for the same reason, all the five decisions in the case were in fact taken by the Provincial Governor. Mr. Abdur Rahim strenuously contended that the perusal of the relevant files clearly shows that the Provincial Governor had ceased to exercise his own discretion and judgment in this case, and was being guided solely by the wishes of the Central Minister. As would appear from the history of the case narrated in the earlier part of this judgment, this contention of the learned counsel is not without substance, but we are of the view that the fact remains that all the successive orders have in fact been passed by the Provincial Governor, and the question whether the Governor allowed himself to be influenced by the wishes of the Central Minister or not, has no bearing on the legal validity of those orders.

26. The main and perhaps the only question for determina tion in this case is whether a completed contract came into existence between the parties as a result of the decision taken by the Governor of West Pakistan on the 4th of June 1959, and if so whether the terms then approved could be varied unilaterally by the Governor at a subsequent date. It has already been stated that the petitioner was called in at the meeting of the Secretaries held on the 18th of May 1959 at which it was decided to appoint him as a Deputy Director of Health Services, with prospects of promotion to the post of Director, and that he gave his consent to this offer. As far as the petitioner was concerned, there was nothing more to be done. The decisions of the meeting were approved by the Provincial Governor on the 4th of June 1959 as he was the authority competent to make the appointment in question. The formal contract, however, remained to be executed in which the various terms and conditions of service applicable to the petitioner were to be included.

27. Khawaja Abdur Rahim contended that the contract between the parties had come into existence from the date of the Governor's approval, namely, the 4th of June 1959, and the mere fact that a formal agreement had yet to be drawn up had no bearing on the binding nature of that contract. He referred us to section 4 of the Contract Act which prescribes that the communi cation of a proposal is complete when it comes to the knowledge of the person to whom it is made, and the communication of an acceptance is complete as against the proposer, when it is put in a course of transmission to him, so as to be out of the power of the acceptor. It was contended that in the present case the proposal was made on behalf of the Government at the high powered meeting, presided over by the Chief Secretary, and the acceptance of the petitioner was obtained at that very meeting. The Governor, who was the final authority on behalf of the Government, having accorded his approval on the 4th of June 1959 the contract was complete.

28. At this stage we might refer to the contention of the learned Advocate‑General that whatever the effect of the non execution of the formal agreement or contract, the decisions of the committee taken on the 18th of May 1959 and approved by the Governor on the 4th of June 1959 were hit by section 29 of the Contract Act for the reason that they were ambiguous inasmuch as the question of the salary to be paid to the petitioner was left undecided and was subject to examination at a later stage. According to the learned Advocate‑General, this was the most important question in the case and, therefore, the decisions relied upon by the petitioner suffered from uncertainty and were not capable of being made certain and were, therefore, void. It seems to us, however, that the contention is without force. The Governor had clearly agreed to appoint the petitioner as Deputy Director of Health Services, and it is not denied that the emoluments of that post are capable of ascertainment with reference to the rules of the service, and in fact the committee which included the Finance Secretary, the Health Secretary, as well as the Director Health Services can reasonably be presumed to know the salary of this post, namely, Rs. 1,

700. In our view the present case is clearly covered by illustration (e) to section 29 of the Contract Act. This Illustration is to the following effect: ‑ "A agrees to sell to B `one thousand maunds of rice at a price to be fixed by C'. As the price is capable of being made certain there is no uncertainty here to make the agreement void." In the present case, as we have already said, the decision of the Governor of West Pakistan was to appoint the petitioner as Deputy Director of Health Services, and the pay of that post being clearly capable of being made certain by a reference to the relevant pay rules, the contract did not suffer from uncertainty such as would make it void within the meaning of section 29 of the Contract Act.

29. A large number of authorities were cited by the learned counsel on both sides to establish the principles which should be applied in the present case to determine whether or not a completed contract came into existence between the parties. These may be briefly noticed.

30. In Harichand Mancharam v. Govind Luxman Gokhale (AIR 1923 P C 47) their Lordships observed that, "whether an agreement is a completed bargain or merely a provisional arrangement depends on the intention of the parties as deducible from the language used by the parties on the occasion when the negotiations take a concrete shape. As observed by the Lord Chancellor (Lord Cranworth) in Ridgway v. Walton, the fact of a subsequent agreement being prepared may be evidence that the previous negotiation did not amount to an agreement, but the mere fact that persons wish to have a formal agreement drawn up does not establish the proposition that they cannot be bound by a previous agreement."

31. In Amritlal Maganlal v. Harkisandas Khandas (A I R 1946 Bom. 149) It was laid down that, "if the document relied upon as constituting a contract contemplates the execution of a further document between the parties, it is always a question of construction whether the execution of the further contract is a condition or term of the bargain or whether it is a mere expression of the desire of the parties as to the manner in which the transaction already agreed to will in fact go through. In the former case there is no enforce able contract either because the condition is unfulfilled or because the law does not recognize a contract to enter into a contract. In the latter case there is a binding contract, and the reference to the more formal document may be ignored." The same principle was affirmed in Bijoya Kanta Lahiry Chowdhary v. Kallash Chandra Bhowrnik and others (A I R 1919 Cal. 369).

32. The learned Advocate‑General contended that under Article 135 of the Constitution read with rule 7 of the Rules of Business of the Government of West Pakistan, the contract in the present case had to be in writing, and unless it was reduced into writing it had no legal force. He relied upon Devi Prasad Sri Krishna Prasad Ltd. and another v. Secretary of State (A I R 1941 All. 377). It was observed in that case that the provisions of section 30 of the Government of India Act, 1915 as amended in 1919 were mandatory and for a contract to be enforceable by or against the Secretary of State its terms must be complied with. An oral contract is not within the purview of this section and subsection (2) of this section implies execution of a document and excludes oral contracts. But a contract to satisfy the condition of section 30 need not be incorporated in a formal deed or be under seal; it may well be entered into by correspondence and by less formal documents." In that very case it was further observed that "it is a question of construction whether the execution of the further contract is a condition or term of the bargain or whether it is a mere expression of the desire of the parties as to the manner in which the transaction already agreed to will In fact go through." Again in the Municipal Corporation of the City of Bombay v. The Secretary of State for India‑ in‑Council (I L R 29 Bom. 580) It was observed that "a disposition of Crown lands by the Governor‑in‑Council was dependent for its validity on an adherence to the forms prescribed in 22, 23 Vic. C. 41, and therefore the Resolution was not a valid disposition of the property for the interest claimed " However, the learned Judges proceeded to observe that "the Municipality, having, under an expectation created and encouraged by the Government that a certain interest would be granted, taken possession of the land with the consent of Government, and upon the faith of such promise or expectation and with the knowledge of and without objection by Government, laid out money upon the land, had an equitable right to have such expectation realised, and the Crown came within the range of that equity."

33. The next case relied upon by the learned Advocate‑General was Kessoram Poddar & Co. v. Secretary of State for India (19261 L R 54 Cal. 969) in which it was held that "in order that a contract may be binding upon the Secretary of State for India‑in‑Council, it must be made in strict conformity with the provisions laid down in the statute governing the matter. If it Is not so made, it is not valid as against him. "When, therefore, a statute lays down certain mandatory provisions in regard to the framing of contract between the Secretary of State‑in‑Council and a private individual, it is no answer to say that because the provisions were ignored on particular occasions and payments were made on contracts which were not in conformity with the statute, that that should be taken as a precedent which will be binding upon the Secretary of State in every case." Their Lordships were interpreting section 30 of the Government of India Act of 1915.

34. In case Chatturbhuj Vithaldas Jasani v. Moreshwar Parashram and others (A I R 1954 S C 236) when dealing with Article 299 (1) of the Constitution of India, their Lordships observed that "the provisions of this Article were not inserted for the sake of mere form. They are there to safeguard Government against un authorised contracts. If in fact a contract is unauthorised or in excess of authority it is right that Government should be safe guarded. On the other hand, an officer entering into a contract on behalf of Government can always safeguard himself by having recourse to the proper form. In between is a large class of contracts probably by far the greatest in number, which, though authorised are for one reason or other not in proper form. It is only right that an innocent contracting party should not suffer because of this and if there is no other defect or objection Govern ment will always accept the responsibility." In that case their Lordships went on to observe further that the only flaw in the contracts under their consideration was that they were not in proper form and so, because of this purely technical defect, the principal could not have been sued, but that was just the kind of case that section 230 (3) of the Contract Act was designed to meet. They went on to add that "it would be disastrous to hold that the hundreds of Government Officers who have daily to enter into a variety of contracts, often of a petty nature, and sometimes in an emergency, cannot contract orally or through correspondence and that every petty contract must be effected by a ponderous legal document couched in a particular form. It may be that Govern ment will not be bound by the contract in that case, but that is a very different thing from saying that the contracts as such are void and of no effect."

35. The last authority which needs to be noticed is Ibrahim v. Mst. Rajji and others (P L D 1956 Lah. 609). In that case their Lordships were dealing with subsection (3) of section 175 of the Government of India Act, 1935, and they observed as follows: ‑ "Unless subsection (3) of section 175 expressly or impliedly purports to repeal all other laws to the contrary, the authority of the Government to enter into oral contracts of sale shall not be deemed to have been taken away. In the language employed in subsection (3) we have found no evidence of that Intention. In fact, by dropping the words "and if so executed may be enforced by or against the Secretary of State‑in‑Council for the time being" which existed In old section 30 (2) of the former Act of 1919, the Parliament expressed its intention to the contrary, . . And if it is contemplated by the parties that the sale shall be also evidenced by a formal deed, then the manner in which that deed is to be executed shall be governed by relevant provisions of section 175 (3) of the Government of India Act, 1935, which may be executed at any time after the completion of the sale."

36. It will be seen that on the question whether a completed contract did come into existence between the parties or not, the authorities are agreed that "it is a question of construction whether the execution of the further contract is a condition or term of the bargain or whether it is a mere expression of the desire of the parties as to the manner in which the transaction already agreed to will in fact go through." Now, what was the intention of the parties in this case ? The petitioner bad been at the disposal of the Government of West Pakistan since the 14th of October 1955, and for nearly four years the terms and conditions of his employment had not been finalised. At last on the 18th of May 1959 he was summoned to a high‑powered meeting presided over by the Chief Secretary and attended by all the Secretaries concerned as well as the Head of the Department in which the petitioner was serving. This Committee had taken certain decision as regards the appointment to be offered to the petitioner, namely, that of Deputy Director Health Services, and when this offer was made to the petitioner he accepted the same. The decisions were then approved by the Governor of West Pakistan on the 4th of June 1959. The petitioner was already in the service of the Government, and once the Governor approved the decisions of the high‑powered meeting held on the 18th of May 1959, to all intents and purposes the matter stood finalised and was not dependent for its completion on the execution of a formal document between the parties. The details which were to be embodied in the formal contract to be drawn up as a result of the approval given by the Governor on the 4th of June 1959 were subsidiary details of service con ditions, which were not to affect the basic decision to appoint the petitioner as Deputy Director of Health Services. It will be remembered that the delay in finalising the case was due to the fact that the Public Service Commission had objected to the absorption of the petitioner in the regular cadre of the West Pakistan Health Services Class I, and Government was endea vouring to discover a way out of this difficulty, which would enable it to meet the commitment entered into at the time of obtaining the release of the officer from the Army. Once the decision was taken to employ Colonel K. M. Sana on a contract basis, and once the further decision was taken and approved by the Governor that the appointment to be offered to Colonel Sana was to be that of a Deputy Director Health Services, there was nothing more to be settled between the parties, except the sub sidiary terms and conditions of service which were not seriously in dispute. The salary of the post of Deputy Director of Health Services, namely, Rs. 1,700 was known to the participants of the meeting on the 18th of May 1959. It seems to us, therefore, that in the present case the completion of the contract between the parties was not dependent on the execution of a formal document or contract of service. The petitioner having given his consent, and the Governor having approved the decision of the 18th of May 1959, we must hold that a completed con tract came into existence between the petitioner and the Government.

37. The next question is whether in the presence of Article 135 of the late Constitution of Pakistan, the contract which came Into existence between the petitioner and the Govern ment of West Pakistan can be acted upon. As already stated, the main objection on behalf of the Government is that as no formal document has been drawn up between the parties, which would meet the requirements of Article 135 of the Constitution, it is not open to the petitioner to enforce the contract through a Court of Law.

38. Article 135 of the Constitution is as follows: ‑ "135.‑(1) All the contracts made in the exercise of the executive authority of the Federation or of a Province shall be expressed to be made by the President or the Governor of the Province, as the case may be, and all such contracts and all assurances of property made in the exercise of that authority, shall be executed on behalf of the President, or the Governor, by such person and in such manner as be may direct or authorize. (2) Neither the President nor the Governor shall be perso nally liable in respect of any contract or assurance made or executed in pursuance of any provision of the Constitution, or of any Federal or Provincial law, nor shall any person making or executing any such contract or assurance on behalf of any of them be personally liable in respect thereof Provided that nothing in this clause shall be construed as restricting the right of any person to bring appropriate pro ceedings against the Federal Government or the Government of a Province."

39. This Article prescribes the following requirements for a valid contract with the Government. (a) That it should be expressed to be made by the President or the Governor, as the case may be, (b) that it should be executed on behalf of the President or the Governor, (c) that it should be executed by such person and in such manner as may be authorised by the President or the Governor.

40. In the present case it is not in dispute that the final approval was given by the Governor of West Pakistan on the 4th of June 1959, and the same was communicated to the petitioner through the Director Health Services by the Health Secretary, as is evident by a copy of the Health Secretary's letter dated the 18th July 1959 at Annexure P. 5 of the petition. The Secretary to the Government of West Pakistan in the Department concerned was clearly an officer authorised to act on behalf of the Governor in the present constitutional set up in the Province of West Pakistan. The Director Health Services communicated these decisions to the petitioner under his endorsement No. SPL/DHS, dated the 22nd of July 1959 on the letter Annexure P.

5. There was thus a formal communication in writing made to the petitioner on behalf of the Governor after the latter had approved the terms of the contract between the Government and the petitioner. The question is whether this communication can be regarded as fulfilling the requirements of Article 135 of the Con stitution, even though a formal document bearing the signatures of both the parties has not been drawn up.

41. We have already referred to the view taken by a Division Bench of this Court, of which one of us (Yaqub Ali, J.) was a member, in P L D 1956 Lab. 609, in which it was observed, with reference to section 175 (3) of the Government of India Act of 1935, that this section did not take away from Government authority to enter into oral contracts of sale, and execution of a sale‑deed was, therefore, not necessary to complete the sale. The present Article 135 of the Constitution of the Republic of Pakistan is analogous in terms to section 175 (3) of the Government of India Act, 1935 and the same interpretation can be applied to the present Article, It would, therefore, is appear that the execution of a written agreement is not essential for the completion of the contract even under Article 135 of the late Constitution of Pakistan.

42. Apart from that, the authorities cited above clearly show that a contract can be entered into with Government by correspondence, and the drawing up of a formal deed is not an essential requirement. In the present case we have already referred to the communication which was addressed to the peti tioner on behalf of the Government, conveying to him the decisions of the meeting held on the 18th of May 1959, after they had been approved by the Governor. In other words, even if it is considered that a writing was necessary to evidence the terms of the contract between the Government of West Pakistan and the petitioner, such a writing exists in the form of letter No. SOI‑22/1‑56, dated the 18th July 1959, from the Secretary to Government of West Pakistan Health Department, Lahore, to the Director Health Services West Pakistan, a copy of which was sent to the petitioner by the Director Health Services on the 22nd of July 1959. This communication was made by an officer authorised to authenticate orders of the Governor and was made after the latter had approved the decisions on the 4th of July 1959. This very communication shows that the concurrence of the petitioner had already been obtained verbally. We would hold, therefore, that the requirements of Article 135 have been complied with in the present case, even though the formal agreement has not been drawn up and signed between the parties.

43. Another point which might be mentioned is that the petitioner is not asking us to enforce the contract in question as against the Government. All he is asking us is to hold that a completed contract has come into existence between him and the Government, and in view of the existence of that contract, his transfer to the post of a District Health Officer amounts to a reduction in rank. The learned Advocate‑General rightly pointed out that a writ should not issue to enforce a contract, and that the proper remedy for the enforcement of a contract would be by way of a regular suit in a Civil Court. The learned Advocate- General added further that the petitioner could only succeed if he were to show that there has been a violation of Article 181 of the late Constitution of Pakistan. We entirely agree with this view.

44. When we passed our interim order on the 8th of February 1961, which has been reproduced in paragraph 17 of this judgment, we considered that the matter might perhaps be settled with reference to the order of the Governor dated the 29th of February 1960, which modified the original decision taken by the Governor in this case on the 4th of June 1959. However, after an exhaustive examination of the claim of the petitioner, we are left in no doubt that a completed contract did come into existence between him and the Government of West Pakistan on the 4th of June 1959, in terms of the decisions of the high powered meeting of the 18th of May 1959, as approved by the Governor on the 4th of June 1959. The Governor had no power to unilaterally vary the terms of that contract so as to reduce the status of the appointment on which the petitioner was to be employed.

45. The petitioner must, therefore, be deemed to be holding the appointment of Deputy Director of Health Services under the West Pakistan Government on a contract basis from the date of his retirement from the Army till he reaches the age of superannuation, irrespective of the fact that he has not been actually allowed to occupy this post so far. He must further be held to be eligible for promotion to the higher post of Director.

46. Such being the case, any order which seeks to appoint the petitioner to a post lower in rank, status and emoluments than that of a Deputy Director Health Services would amount to a reduction in rank within the meaning of Article 181 of the late Constitution of Pakistan. And if such an order is not passed in accordance with the procedure prescribed in that Article, it will clearly be illegal and inoperative. Now, in accordance with the West Pakistan (Gazetted) Civil Services Pay Revision Rules, 1957, the salary prescribed for a District Health Officer is Rs. 600‑1150, whereas according to Schedule II of the same Rules the salary for a Deputy Director of Health Services is Rs. 1,

700. We can also take judicial notice of the fact that a Deputy Director is an officer of a superior rank whose functions include the supervision of the working of District Health Officers. There is thus no doubt that the appointment of the petitioner, woo is to be deemed to be occupying the post of a Deputy Director Health Services, to the post of a District Health Officer, constitutes a reduction in rank ; and as there is no averment that the procedure prescribed in Article 181 was complied with before passing the Impugned order, the same must be held to be illegal and inoperative. The contention of the learned Advocate General that there is no reduction in rank as the peti4oner has not so far actually occupied the post of .a Deputy Director or even an Assistant Director of Health Services and as his present C, post, viz., that of Principal Medical Officer Stores and Supplies, is equivalent to that of a District Health Officer, has no substance, in view of our finding that whatever the present post occupied by the petitioner, he is to be deemed to be Deputy Director of Health Services by virtue of the contract which came into exis tence on the 4th of June 1959.

47. For all these reasons, we would quash the Govern ment of West Pakistan Notification No. SOI‑22‑1/56, dated the 31st of October 1960, transferring the petitioner to Jhelum as District Health Officer. The petition is accepted with costs. A. H. Petition accepted.