P L D 1962 Supreme Court 409 (PLP)

CORNELIUS, C. J.‑

This judgment deals with Civil Appeals No. 96 of 1960 and Nos. 1, 2 and 3 of 1961, all of which arise out of the judgment delivered by the High Court of West Pakistan in Writ Petition No. 236 of 1958. The petitioners before the High Court were Messrs A. P. Hassumani and A. R. Malik and 13 others, all Senior Service Officers of the Military Accounts Department of the Pakistan Government. They cited as respondents the Government of Pakistan and nine officers of the same Department whose names need not be detailed since in respect of the points arising in the case, these officer‑respondents, as they will be described in this judgment, all stand in the same position vis‑a‑vis the petitioners. The complaint in the petition was that the Government of Pakistan had "absorbed" the officer‑respondents in the cadre of Superior Service Officers of the Military Accounts Department and in doing so had given them places in the seniority list above each one of the petitioners. The petitioners claimed precedence over the officer‑respondents on the ground that they themselves had been inducted into the Military Accounts Department by direct recruitment as the result of open competitive examinations, and this circumstance entitled them to a claim of precedence over persons who were "absorbed" in the Regular Cadre, as it is called, on dates subsequent to those upon which the petitioners or any of them were themselves admitted to that Grade. The relevant dates are briefly as follows. Messrs A. P. Hassumani and A. R. Malik took the competitive examination in 1947, but they commenced work as probationer officers in the Military Accounts Department on the 1st of February, and 1st of March respectively in the year 1949. The probation was for a period of two years, but once they were duly confirmed, under the rules the date of their entry into the Military Accounts Department was related back to the date upon which they joined the Department as probationers. The remaining 13 petitioners took the examinations of the years 1949, 1950, 1951 and 1952, and the earliest date upon which any of them joined the Military Accounts Department is the 7th of December 1949. Each of the petitioners was thus deemed a permanent member of the integrated and encadred service known as the Military Accounts Department, from the date on which he joined as a probationer and the earliest of these dates are the 1st of February, 1st of March and the 7th of December in the year 1949. The nine officer‑respondents became members of the Military Accounts Department on dates much earlier than 1949. Three of them joined in the year 1943, four in the year 1944, and the remaining two in 1945, but they entered the Department, not by direct recruitment to the "Regular Grade", but under certain special sanctions issued by the Government of undivided India In the year 1940, whereby an Emergency Cadre of 16 temporary Superior Service Officers in the Military Accounts Department was created. The orders on the subject are contained in Annexure `D' to the petition. They show that at the time there were 59 Superior Service Officers of the Regular Cadre, to which by the sanction, were added In a separate cadre styled the "Emergency Cadre", 16 temporary Superior Service Officers. These persons were to be appointed for the period of the war then 1n progress, and to the end of the second complete financial year thereafter. This period is, as it happens, of ago importance in the case, as the retention In service of these officers continued after the lapse of that period, which ended in March 1946, and shortly after they were, as it is said, "absorbed" in the Regular Cadre. The letter of 1940 stated that recruitment to the Military Accounts Department on the regular side was to continue as before namely, by direct recruitment as to two‑thirds and by promotion from the Departmental service as to one‑third. The letter also specified the categories of persons, who could be inducted into the Emergency Cadre, and it went on to say in paragraph 4 that one post of Military Accountant‑General, four posts of Command Controllers, 6 Class I posts, and as many Class II posts as were sanctioned were "to be held by officers of either the above two Cadres" of the Military Accounts Depart ment. This last point is of importance as it establishes that, as between officers of the Regular Cadre and officers of the Emergency Cadre, there was no difference of degree, as of superior and subordinate, but all were equally entitled to claim appointment to the sanctioned posts in the Department right up to the Headship of the Department, namely, the post of Military Accountant‑General. There was a difference of kind no doubt, but as to the status of each of. these officers, there seems no reason whatsoever to doubt that they were all members of the Military Accounts Department holding posts as Superior Service officers. The Emergency Cadre officers were, of course, temporary officers, liable to removal by notice, whose period was subject to determination upon expiry of two complete financial years after the termination of the war. But while they held their posts, they were not treated as inferior in any way to officers of the Regular Cadre holding equivalent posts. The salary scales appear to have been the same for both categories of officers, viz. Rs. 250‑25‑600‑35‑950, with this difference that the officers in the Regular Cadre could not draw Rs. 300 or over until they had passed their probationary period. No attempt appears to have been made until the year 1956 to settle the seniority of the Emergency Cadre officers, vis‑a‑vis the officers In the Regular Cadre, for the simple reason that the two sets of officers were not ranked in the same cadre, but In two separate cadres. The lists which have been placed upon the record in connection with this case appear to indicate that up to the year 1956, when the seniority list was settled to which the petitioners took exception, all the petitioners as well as all the respondent‑officers were still in the junior grade in Class II of the Pakistan Military Accounts Service, that being the name by which the Military Accounts Department had come to be designated by that time. In other words, the question of any contest between any of the petitioners, being in the Regular Grade, and any of the officer‑respondents, being in the Emergency Cadre, for promotion into the Senior Grade of Class II had not arisen up to that time. Accordingly, the two cadres were separately maintained and the seniority lists of the petitioners inter se and of the officer‑respondents ,inter se were distinct from ca ph other. The two complete financial years following the termination of the war came to an end in early 1948, and there is on the record a letter (Annexure `1' to the written statement filed on behalf of the officer‑respondents) dated the 31st May 1948, from the Deputy Auditor‑General of Pakistan to the Military Accountant‑General referring to an earlier letter of the 14th May 1948, and saying that the Selection Board of the Government of Pakistan had decided to interview Superior Service officers of the Emergency Cadre of the Military Accounts Department on the 14th June 1948. The names of the officers concerned are detailed and include each one of the nine officer‑respondents. The purpose of the interview was to decide upon the suitability of these temporary officers for retention in permanent Class I Service. This clearly shows that the question of the retention of the officer‑respondents as Superior Service officers was attended to very soon after the commencement of the third financial year after the termination of the war. The Selection Board's meeting was held on the 14th June, 1948, and approved 8 of them namely, all except the first named officer‑respondent in the petition, Mr. Shahid Ahmad, who had already been interviewed and approved for retention as a Superior Service officer before the Partition by the Indian Federal Public Service Commission. Certain delays followed mainly on account of the necessity of obtaining final approval of the Federal Public Service Commission of Pakistan. This was accorded on the 18th July, 1949 and on the 30th August, 1949, the Ministry of Finance (Military) at Karachi issued an instruction to the Military Accountant‑General in Rawalpindi directing that all the 9 officer‑respondents should " be placed in the Regular Cadre of the Superior Service Military Accounts (as temporary S.S. Os)". The words within brackets were clearly otiose and without meaning. The induction of these temporary officers into the Regular Cadre after interview by a Selection Board and approval by the Public Service Commission, If it had any purpose at all, had the effect of making them permanent officers of the Depart ment. The approval of the Public Service Commission clearly brings out this point by the use of the following language, viz.:

"I am directed to say that the Pakistan Public Service Commission agrees to the Permanent retention in Class I Service of the Pakistan Audit Deptt. of the following officers of the emergency cadre of the Military Accounts Department " The case is therefore wholly unaffected by the unnecessary and mistaken addition in the letter from the Ministry of Finance (Military) to the Military Accountant‑General of the words in brackets, viz. as "temporary (S. S. Os."). As a consequence of the decision to retain the officer respondents permanently in the cadre of Superior Service officers of the Military Accounts Department, it became necessary for the Government to make orders confirming them in their posts. The first order of this kind was not made until the 4th of August, 1952, when a notification was issued which included the name pf each one of the officer‑respondents, and set out that they had been confirmed in the junior grade of the Superior Service of Military Accounts Department with effect from the 1st July 1949. This notification was modified by a subsequent notifica tion of the 4th October 1955, 9n which these 9 officers were again shown as having been confirmed in the Junior grade in Class 11 of the Pakistan Military Accounts Service (the change in nomenclature having taken effect by this date) but with effect from the date of the partition, namely, the 15th August 1947. The list of 1952 did not contain the name of any of the petitioners, although many of them bad by this date completed their periods of probation, and were entitled to be regarded as permanent Officers from the dates on which they commenced their probation. The reason for the omission of their names probably is that they bad no need to be confirmed in the Military Accounts Department by this notification, their confirmation having been duly notified when ft took place. Moreover, the 1952 notification bears a note to the effect that the question of seniority of Superior Service officers was under consideration, and the confirmations were "therefore without prejudice to seniority". In the notification of 1955, however, the names of Messrs A. P. Hassumani and A. R. Malik appear at the bottom of the list, and the dates of their confirmation, namely, the 1st February and the 1st March 1949, are also noted. If the confirmations of the officer‑respondents could validly be made from the 15th August 1947, then of course, Messrs A. P. Hassumani and A. R. Malik could have no cause for complaint, any more than the other petitioners. They complained however against the fixation of the date 15th August 1947 as the date of con firmation of the officer‑respondents as being an arbitrary act in excess of the powers of the Government in respect of the Service in question, by which act their position in the service and their prospects etc. have been prejudiced. The case for the officer‑respondents on the other band is that they also were inducted, although into the Emergency Cadre, as a result of competitive examination, and from the date of their entry into the Service in the years 1943, 1944 and 1945, all superior appointments in the Military Accounts Department had been open to them. They went to the length of saying that after independence, there was no integrated, Military Accounts Service in Pakistan, and "the respondents like the petitioners had their appointments on an ad hoc basis". They claimed that the decision to retain them on a permanent basis was taken by the Government In June 1948. As to the fixation of the dates of their confirmation, they explained that eventually 9n 1955, the Government reached a decision as to "the cadre strength of the Pakistan Military Accounts Service for the period from 15‑8‑47 to 30‑6‑1949" and there being a sufficient number of appointments available with effect from the 15th August 1947 in which the officer‑respondents who were actually serving in the Military Accounts Department on that date, could be confirmed, the Government had made an order confirming them in those appointments with effect from the earlier date, viz. the 15th August 1947. The order of 1952 had fixed the date of con firmation as the 1st July 1949 because, by 1952, the Government had only been able to fix the cadre strength of the Pakistan Military Accounts Service retrospectively up to the 1st July 1949. The further questions, what number of posts had actually been in existence after the 15th August 1947 and up to the 30th June 1949, and whether these posts had been actually filled, were investigated and decided between the years 1952 and 1955. In other words the plea was that these dates, viz. the 1st July 1949 and the 15th August 1947 were not dates arbitrarily chosen but were specified in relation to the actual position on those dates. It was emphasised that each one of the officer‑respondents was actually serving 1n a Superior Service posts on the 15th August 1947. In the High Court, a number of preliminary objections were taken as to the competence of the writ, and as to the propriety of issuing a writ of mandamus as desired by the petitioners, and finally as to whether the Pakistan Government was competent to pass an executive order fixing seniority at Its discretion in the absence of statutory rules. The learned Judges found that a petition for a writ was competent and that in passing the order fixing the seniority of the officers in question the Government had performed "a public duty and if that duty was not performed in the manner required by law, a writ of mandamus can be issued". As to the absence of statutory rules, the learned Judges held that the various orders regulating seniority which the Government had passed from time to time would have same force as statutory rules and would be binding upon the Govern ment. They were referring to an Instruction issued by the Government of undivided India as far back as 1943, (Annexure 'C' to the petition) laying down that "in the absence of special rules to the contrary, the officer's seniority in any grade should be determined by the date of his permanent appointment fn that grade". Upon the facts of the case before them, the learned Judges opined that the question for decision before them was whether the Pakistan Government was competent to validate the appointments of the officer‑respondents from dates prior either to (a) the 4th August 1952, when the first notification of their confirmation was issued, or (b) to the 30th August 1949 "when the final decision was taken to absorb them in this Department". They concluded that the effective date in the case was the 30th August 1949, in other words that regardless of the date upon which the notification confirming these officer respondents was issued, their dates of confirmation cannot be placed earlier than the 30th August 1949. The effect of this decision went in favour of Messrs A. P. Hassumani and A. R. Malik whose appointments took effect from the 1st February and the 1st March of the year 1949. All the other petitioners got their permanent appointments from dates subsequent to the 30th August 1949. Upon this basis, the learned Judges issued a writ of mandamus to the Government to revise the orders of appointments so as to show Messrs A. P. Hassumani and A. R. Malik as senior to all the officer‑respondents. The remaining 13 petitioners were to continue to be shown as junior to the officer‑respondents according to the seniority list already Issued. Against this decision, the Government of Pakistan has appealed in Civil Appeal No. 96 of 1960. Five of the officer respondents have appealed in Civil Appeal No. 1 of 1961, six of the petitioners in Civil Appeal No. 2 of 1961, and the remaining four officer‑respondents in Civil Appeal No. 3 of 1961. We have heard elaborate arguments from learned and distinguished counsel on both side. On a careful examination of the documents in the case, and paying particular attention to the comparison of status as between the petitioners and the officer‑respondents I have come to the conclusion that the decision of the Govern ment taken in the year 1948 was not a decision to absorb the officer‑respondents In the service. That could only be said correctly if they were not already members of the Service known as the Military Accounts Department. It Is perfectly clear that they were from the start members of that Service, but were placed in a separate compartment within the Service entitled the Emergency Cadre, and from that time namely, from dates prior to the partition, they have continued to serve in the Department, under the condition that all the superior posts In the Department were to be open to them equally with those who were recruited into the Department and placed in the Regular Grade. The action of the Pakistan Government In the year 1948 was in my opinion in the nature of amalgamation or merger of the two groups or compartments within the same Service. It was not a question of lifting the officer‑respondents from subordinate service into a superior service, or into the Military Accounts Department from some other equivalent service. A decision had already been taken, and although the actual date does not appear upon the record, it seems it was taken before the termination of the appointments of the officer‑respondents under the term applicable to their original appointment, that they were to be retained in permanent service, and this involved a process of merges, as It were, a reconstitution within the service itself. Such an action is permissible to the Government in its general and plenary power to constitute Service. Once a Service is constituted by integration and encadrement, the rights of those within the service begin to take shape as against persons who are not within the Service, and the rights of the members of a Service inter se also assume a definite character, by the act of the Government in constituting the Service. If the petitioners could say, in justice, that the officer‑respondents were being pushed into a Service to which they i.e., the officer‑respondents did not belong, and in which the petitioners already had their defined places, there would be a case for considering whether the Government had acted to the detriment of rights vested In the petitioners In respect of such a Service. But the fact is otherwise. Both sets of officers were members of the same service working in parallel posts, and the officer‑respondents had clearly been working many years longer In these posts than the petitioners. The petitioners had been clearly warned, by a paragraph in their original letters of appointment that their "appointment and terms of service" were subject to the orders of Government, from time to time, as to "further changes in the Constitution of Pakistan Audit and Accounts Service" and that they would "have no claim for compensation in consequence of such changes". Having decided that the officer‑respondents should also become permanent members of the Service, and this decision having apparently been taken before it could be said that the appointments of the officer respondents had come to an end within the terms of their contract, the rest was merely a matter of reconstructing the Service, by merger of its two branches and as has been seen, this engaged the attention of the Government from, the year 1948 up to the year 1956, when a final decision to the encadrement of the officers of both categories, namely, those who were permanent from the start of their service, ands, those who became permanant by decision in August 1949, in a single seniority list was taken. It was proper for the Government in making this decision to take into account the number oil posts and the dates from which they were available for giving effect to the permanency which was being granted to the Emergency Cadre officers, and this was accomplished in two sets, namely, with retrospective effect to the 1st July 1949, and secondly, with respect to even an earlier date namely, the 15th August 1947. There was no contravention of any applicable rule and no excess of power involved in declaring that officers who had been continuously working in posts which were found to be available permanently with effect from the 15th August 1947. although they themselves held temporary appointments up to' the making of the declaration, should be made permanent in their appointments with effect from the dates upon which the permanent vacancies became available. This is in fact a regular practice of the Government. Accordingly, in my view the order dated the 30th August 1949 from the Ministry of Finance (Military) does not In any, way determine the starting point of the permanent incumbency, in a permanent capacity, of posts in the Service, by any of the officer‑respondents. Consequently, I am unable to support they view of the High Court that the 30th August 1949 determined, the date upon which, at the earliest, and any of the officer respondents can be deemed to have gained permanency. This is the foundation upon which the learned Judges have allowed seniority to Messrs A. P. Hassumani and A. R. Malik. I think it is also fair to say that the dates 1st February 1949 and the 1st March 1949 from which, under the rules, the confirmation of these two officers took effect, are to this extent notional, even as against the date, the 30th August 1949, on which the decision to make the officer‑respondents permanent members of the Service was taken, that upon the latter date, Messrs A. P. Hassumani and A. R. Malik were still undergoing a period of probation and there was no certainty that they would actually pass that period successfully. In other words, the decision that each of the officer‑respondents was to become a permanent officer was taken long before it was decided that Messrs A. P. Hassumani and A. R. Malik were to become permanent officers. But, as I have already said, the 30th August 1949, is not a binding date in regard to the power of the Government to make a temporary officer permanent in relation to a permanent post which became available from a date In the past. It is open to the Government in such a case to date the permanency of the officer from the date of the availability of the permanent appointment. For these reasons, I would allow the appeal of the Pakistan Government, and direct that the writ issued by the High Court should be withdrawn, the effect being that the seniority of the contesting officers on the two sides will continue to be as shown in the roster of 1956. Appeals Nos. 1 and 3 of 1961 which are by the officer‑respondents are similarly entitled to succeed; but Appeal No. 2 of 1961 by a number of the petitioners must be disallowed, I would leave the parties to bear their own costs. S. A. RAHMAN, J.‑

These are four appeals, brought by special leave, from a judgment of the High Court of West Pakistan, dated the 28th March 1960, passed in writ juris diction. The petitioners in the High Court were 15 persons, belong ing to the regular cadre of Pakistan Military Accounts Service. Pakistan, through the Secretary, Ministry of Finance, was cited as the first _ respondent to the petition in the High Court, the remaining nine respondents being officers of the Emergency Cadre of the Military Accounts Department, who had been absorbed in the permanent cadre and had been given seniority above the petitioners. The writ petition challenged this absorption of the respondents into the service as illegal and, in any event, it was claimed that the petitioners were entitled to seniority above them in service. The conclusions reached by the High Court were that there was nothing improper in the induction of respondents Nos. 2 to 10 as permanent members of the Pakistan Military Accounts Service, but that they could not be given seniority above the first two petitioners, namely, Messrs A. P. Hassumani and Abdur Rahsid Malik, who had been appointed, on a permanent basis, in the Department, prior to the order by which the respondents were taken into the permanent cadre. The remaining petitioners, having joined the Department after the relevant order in favour of the respondents, it was held that they could not object to being ranked junior to the respon dents. A writ of mandamus was, therefore, issued to the first respondent, directing revision of the orders of appointment of respondents Nos. 2 to 10 so as to show them below the first two petitioners In the seniority list. The petition qua the remaining petitioners, was dismissed. Civil Appeal No. 96 of 1960 has been preferred by the Government of Pakistan to call in question the writ issued by the High Court, in respect of Mr. A. P. Hassumani and Mr. Abdur Rahsid Malik. In Civil Appeal No. 1 of 1961, the appellants are Mr. Shahid Ahmad, Mr. C. Muniruddin, Mr. M. Yaqub, Mr. S. S. Iqbal Hussain and Mr. O. V. Abdullah, who were the 2nd, fifth. sixth, eighth and tenth respondents, respectively, in the High Court. These appellants also pray for the vacation of the order, passed by the High Court and the recalling of the writ issued. The appellants in Civil Appeal No. 2 of 1961 were the third, fourth, fifth sixth, seventh and twelth petitioners before the High Court. The respondents in the petition before the High Court are respondents to this appeal and the dismissal of the petition qua these appellants is challenged before us. In Civil Appeal No. 3 of 1961, the third; fourth, seventh and nine respondents before the High Court, are the appellants, while Pakistan and Mr. A. P. Hassumant and Mr. Abdur Rashid Malik are the respondents. The appellants attack the order of the High Court in so far as it favours the 2nd and 3rd respondents to this appeal. It will thus be seen that three of the appeals are directed against the order of the High Court, by which seniority was secured to Mr. A. P. Hassumani and Abdur Rashid Malik, while the fourth appeal, namely, Civil Appeal No. 2 of 1961, reiterates the claim of the petitioners other than these two, to seniority above the respondents before the High Court. Instead of referring in this judgment to the various appellants and respondents in the four appeals, it would be convenient to discuss the questions raised, with reference to the petitioners and the respondents in the writ petition in the High Court. References to the Record hereinafter made, mean references to Vol. (11) thereof. The petitioners were appointed to the Regular Cadre of the Pakistan Military Accounts service on various dates between the years 1949 and 1952 in pursuance of results of competitive examinations. The first two petitioners were successful in the competition, held in India in 1947, though their appointments were made only on the 1st February 1949 and 1st of March 1949, respectively, by the Pakistan Government, after Partition. The appointment of the other petitioners took place between December 1949 and December 1952, in a similar capacity. Respondents 2 to 10 in the High Court were originally appointed as temporary officers In the Emergency Cadre of the Service in India, after they had qualified for the service in the competitive examination held in 1942 and 1944. Though they had obtained the minimum qualifying marks, they had not been selected for permanent appointments. It appears that the fourth, seventh and ninth respondents were previously serving the Military Accounts Department in other capacities and their services were lent for appointment in the Emergency Cadre. The remaining respondents accepted service on a contract basis, but the contract, after the first two years, was of indefinite duration, terminable at the option of the Government. All these respondents, on the Partition of India opted for Pakistan and, after having served in the Temporary Cadre in Pakistan, they were absorbed in the Regular Cadre. The question of their permanent appointment had apparently been mooted from the time of Partition. Eventually, by a notification, dated the 4th August 1952, appear ing at p. 18 of the record, these respondents were confirmed in the junior grade of the Superior Service Military Accounts Department with effect from the 1st July 1949. By a notification, dated the 4th October, 1955, the date of confirmation was taken back to the 15th of August 1947, thus giving them seniority over all the petitioners. It would be useful to advert to the intentions of Government, with regard to the temporary officers of the Emergency Cadre, as they developed from time to time. The Government of India, Home Department, issued an Office Memorandum, dated 8th of September 1948, by which definite percentages of were fixed for war service candidates with temporary service. The decision was that 70% of vacancies in all services under the administrative control of the Central Government, not filled permanently during the war, should be reserved for war service candidates, while the remaining 30% should be filled permanently after the war, from among candidates who had held them on a temporary basis during the war and who were otherwise found suitable and eligible for appointment, vide p.

166. This position was apparently reviewed from time to time and, on the 16th of August 1946, a Home Department Office Memorandum was issued (pp 102‑105), directing that permanent vacancies arising in 1946 and 1947 would be distributed between different categories of candidates as follows :‑ (a) Civilian candidates within the normal age limits. (b) Man in the Forces within the normal limits. (c) Temporary Government employees other than persons whose employment qualifies as "War Service". (d) "War service" candidates eligible for war‑reserved vacancies and not eligible under (b) above". Apparently, the temporary officers of the Emergency Cadre in the Military Accounts Service fell within clause (d) above. It was mentioned in the Memorandum that the Federal Public Service Commission had already taken steps to invite applications from temporary Government employees, in connection with their appointment to the 30% of war‑reserved vacancies. While making selection, the Commission was directed to prepare a list of candidates, suitable to be appointed to the vacancies, occurring in 1946 and 1947 also, under this Memorandum p. 102 et seq. By orders, dated the 22nd of August 1946, the Home Department notified that service rendered by temporary employees of the Military Accounts Department, who were paid from Defence Estimates, would be deemed to be war‑service for the purposes of recruitment to vacancies reserved for war‑service candidates in services and posts under rule‑making control of the Governor‑General‑in‑Council (p. 136). Under this notifica tion, therefore, apparently, the respondents became eligible for the 70% war‑service vacancies. It seems that Mr. Shahid Ahmad, the second respondent in the High Court, had been selected for one of the vacancies under the 30%, quota in India but no actual appointment order had been issued in his case, till the 15th of August, 1947. Then came the Partition. The Government of Pakistan, Cabinet Secretariat, issued an office Memorandum on the 26th of August, 1947, placing a ban on fresh recruitment to all Ministries, in view of their contemplated reorganisation (p. 114). The parties are not agreed as to the effect of this Memorandum, the petitioners being of the view that this ban applied only to the posts in the Ministerial Secretariats and not to other Departments under the Ministries, whereas the respondents' case is that this was a comprehensive ban, applying to all Departments. This document may be left out of consideration as it does not affect the main question falling for determination in this case. It is brought to our notice, though the document in question has not been included in the record, that on the 5th June 1948, Government decided that those who had been selected in India for the 30% category of the permanent posts, should be absorbed in permanent vacancies, without any further test or formality. This would place Shahid Ahmad in a favoured position. The remaining respondents were to be interviewed by the Public Service Commission for selection. Accordingly, on the 14th June 1948, these nine respondents appeared before a selection Board which included the Chairman of the Federal Public Service Commission (apparently the only Member of the Commission then existing) and they were all approved for permanent appointments (pages 115 to 117, read with office Memorandum of the Cabinet Secretariat, dated the 5th June 1948, pp. 34 and 35). Formal approval of the Pakistan Federal Public Service Commission was later sought for their permanent absorption in the posts by letter, dated the 11th January 1949, by the Cabinet Secretariat (p. 118). A reminder was issued to the Commission on the 2nd of April 1949 (p. 120). After the Federal Public Service Commission had duly accorded their approval, the Ministry of Finance forwarded the relevant orders to the Military Accountant General for information, on the 30th of August 1949 (p. 122). By these orders, it was clarified that the question of confirmation of the respondents was being pursued separately and pending decision on that case, the direction was given that they be placed in the Regular Cadre of the Superior Service Military Accounts as temporary S. S. Os. The 30th of August 1949 has been accepted by the High Court as the crucial date in this case. It was held by the learned Judges that the respondents' appointment could not be ante dated prior to this date. This view is criticised, on behalf of the petitioners, on the ground that even on this date, the respondents were merely given temporary posts in the cadre and not permanent ones. The criticism is not without force. The position of the Military Accounts Service seems to have been somewhat fluid immediately after the Partition. As a result of the option exercised by Government Servants, Pakistan had inherited from India, certain officers holding permanent posts in the Military Accounts Service and others who were occupying temporary pasts in the Emergency Cadre. While the question of these temporary officers' absorption into the Regular Cadre was being discussed, recruitment to the Regular Cadre was also going on side by side, and, for that purpose, competitive examinations were held by the Public Service Commission. The Cadre strength, however, had not yet been finally fixed and apparently, while making appointments to the Regular Cadre, a warning was issued to all appointees in the following terms :‑ "You should clearly understand that your appointment and terms of service are subject to such further charges in the constitution of Pakistan Audit and Accounts Service which the Central Government may order from time to time and you will have no claim for compensation in consequence of such changes." This warning is contained in a copy of the Ministry of Finance letter, dated the 16th December 1948, issued to Mr. A. P. Hassumani, while offering him an appointment in the Cadre (pp. 133‑134). It is not denied that similar letters were issued to others recruited on the same basis. By orders, dated the 19th June 1950, issued by the Cabinet Secretariat, it was directed that 60% of the isolated or miscellaneous posts sanctioned on a temporary basis in the various Ministries and Divisions, higher in status than the post of Assistant Secretary In the Secretariat, and posts of corresponding rank in Attached Departments and Subordinate Offices, should be placed on a permanent footing and sixty per cent. of the posts outside the time‑scales of the regularly‑constituted service be made permanent. In the case of regularly‑constituted services, 60% of the posts, borne on their cadre, were placed on a permanent footing, pending the finalisation of the cadre‑strengths of the services. It was decided, however, that officers who were permanent in undivided India (including officers recruited on a permanent basis in the P. A. S. and P. A. & A. S. in Pakistan) would be confirmed, irrespective of the mentioned percentages. The confirmation of individuals fn posts which were placed on a permanent footing, were made only if the officers concerned, had been recruited in accordance with the relevant recruitment rules, had completed their probation satisfactorily and had passed the prescribed departmental examinations. Confirmations were permitted to be made with retrospective effect from the 15th of August 1947. The advice was also given that Cadre Committees should be appointed, where this had not already been done, to determine the permanent requirements of the various services and to finalise their cadre‑strengths. These orders will be found at pages 50 to 52 of the record. On the 1st of April 1955, the Government of Pakistan, issued a notification in exercise of the powers conferred by sub‑rule (2) of Rule 32 of the Civil Services (Classification Control and Appeal) Rules, declaring that the Governor‑General had been pleased to order that for the period from the 15th of August 1947 to the 30th June 1949, the strength, including the number and character of the posts of the Pakistan Military Accounts Service, shall be as specified in the notification. In this notifica tion 23 posts for duty were shown and 6 posts were mentioned against " Deputation Reserve" (p 53). It is stated that a number of these posts were held by the respondents. It seems that earlier, on the 20th of January 1951, the sanction of the Governor General was accorded to the fixation of "temporary cadre" of officers in the Military Accounts Department at 140 posts, consisting of 51 posts of Superior Service Officers and 89 posts of Deputy Assistant Controllers. In the last paragraph of the letter which appears at p. 129, it was mentioned that the case, regarding the fixation of the permanent cadre of Gazetted Staff of the Military Accounts Department, was separately under con sideration. In order to understand why a separate notification was Issued in 1955, fixing cadre‑strength from the 15th August 1947 to the 30th of June 1949, reference has to be made to a Government letter, appearing at page 286 of the record, dated the 23rd of June 1949. Under orders, conveyed by this letter, the Government of Pakistan abandoned the temporary arrangements by which the Audit and Accounts were amalgamated on the Railways and in the Military Accounts Department, under the control of the Auditor‑General of Pakistan. Henceforth both the Accounts Departments were placed under the control of the Ministry of Finance, with effect from the 1st July 1949, though, on the technical side, the Auditor‑General was still to be respon sible for the audit of accounts of these departments, except that the check of revenues receipts on the Railways was, for the present, to be excluded from the purview of his powers. Appa rently, on this date, a bifurcation took place between the Railway Audit and Accounts Service and the Military Accounts Service. It also explains why the notification, dated the 4th August 1952 (p. 18) first fixed the date of confirmation of the respondents as the 1st of July 1949 and then on the 4th of October 1955, vide the notification at page, 19, this date was pushed back to the 15th of August 1947. The confirmations made by the notification in 1952 were "without prejudice to seniority", the matter being separately under consideration. On that question, apparently, the Public Service Commission was consulted and the advice tendered by it Is to be found at page 75 of the record. This was to the effect that all these Superior Service Officers (Emergency Cadre), who had qualified in the examination held by the Federal Public Service Commission (India) and were not approved by that body against the 30% quota, but, on having opted for Pakistan, were approved by the Public Service Commission for permanent retention, may be given the same seniority as was assigned to them by the Federal Public Service Commission (India) at their respec tive examinations, and they may have seniority over all other Superior Service Officers who were recruited in Pakistan, on a regular basis, on the results of competitive examinations. This advice is dated the 4th April 1953. In pursuance of this advice, the Government appears to have laid down the principles govern ing seniority. By orders dated the 26th June 1953 (pp. 42 and 43), a draft seniority list was drawn up in 1953, in accordance with these principles. Objections to the seniority roster were invited from the officers concerned and these objections were duly con sidered and disposed of in a letter, dated the 22nd November 1954 issued from the office of the M. A. G. Pakistan, vide pages 83 to

90. In relation to the seniority‑question of the parties before us, the objection, that services rendered as S. S. Os. (Emergency Cadre) should not count for seniority as it did not qualify for the purposes of pay, was rejected. It was pointed out that seniority and pay were governed by different sets of rules and the case regarding fixation of seniority of directly‑recruited S. S. Os. (Emergency Cadre) had been under consideration of the Govern ment and that a specific decision had been reached in their case. The respondents having been recruited in India on the basis of the results of the Federal Public Service Commission Competitive Examination, It was ruled that their seniority would be governed with reference to their positions in the examination, as was the general practice in such cases. They had since been approved for permanent retention by the Pakistan Public Service Commission. The view was also expressed that the rights of the probationers, directly recruited in Pakistan on the basis of the Pakistan Public service Commission Competitive Examination, were not prejudiced, because when these people were recruited the question of seniority of permanently recruited. S. S. Os. (E. C.) was sub judice. The first contention raised before us is that the writ petition in the High Court merited dismissal on the short ground of laches, on the part of the petitioners. The writ petition had been filed in the High Court on the 13th of March 1958, whereas the seniority‑question had been practically settled in 1954, except that the seniority of four persons concerned was determined in 1956. It appears, however, that during all this time representations were being made by the; petitioners to Government and till the date of the petition in the High Court, a appeal submitted to the Pre sident of Pakistan bad remained undisposed of. In the circum stances, the plea of laches on the part of tile petitioners is without any substance. On the point of seniority, the petitioners relied on a decision of the Home Department of the Government of India, dated the 24th April 1943, Annexure `C' at p. 15 of the record. This lays down that, In the absence of special rules to the contrary, an Officer's seniority In any grade should b;, determined by the date of his permanent appointment in that grade. If two officers are appointed permanently to a particular grade the same day, then seniority in that grade is to be determined with reference to the dates on which they began to officiate continuously in that grade. That this Is in conformity with ordinary practice in normal times was not controverted on behalf of Government but it was averred that a special decision was necessitated in the circumstances of this case. The respondents emphasised the special conditions that prevailed in the wake of Independence and suggested that the constitution of the service itself was in a state of flux. Strong reliance was placed by them on the decision of the Government of Pakistan, dated the 26th June 1953, p. 42 et seq which followed the advice of the Pakistan Public Service Commission in this case. This letter was issued with the concurrence of the Cabinet secretariat, vide p. 81 and under rule 9 of the Rules of Business, 1950, framed under the Constitution Act then in force, conditions of service could be changed in a Division of the Government of Pakistan, after consultation with the Cabinet Secretariat. These rules assigned the business of service rules to the Establishment Division of the Cabinet Secretariat, vide p. 24, Item 8 of section 4 of Sch. II to the Rules. It is argued on behalf of the Government and the respondents that the situation was not governed by any statutory rules and the High Court was not right in treating the various orders of Government as having statutory force. It was stated that Instructions were issued by Government from time to time for guidance of the Administrative Departments but they did not confer any vested rights on any of the petitioners as the matter was still left within the discretion of the Government. In any event, it was urged that the Government was under no public duty under any statute or rule to fix the seniority on a particular basis There being no violation of any law or statutory rule involved it the fixation of seniority in this case, the competency of the High Court to issue a mandamus, as it did, to Government, was assailed as non‑existent in law. The question of legality of the Induction of the respondents into the permanent service was raised in the High Court and has also been reiterated in the Concise Statements on behalf of the petitioners. It appears, however, that no exception could be taken to this step on the legal plane as the relevant recruitment Rules of 1941 permitted the appointment of persons to the Indian audit and Accounts Service from another service or department, in accordance with Part III of those Rules (vide p. 91 et seq). These Rules were apparently changed from year to year bull remained the same in substance. The respondents' appointments took place in conformity with the provisions of Part III of the Rules, inasmuch as they qualified at a competitive examination and they were taken into the service In consultation with the Public Service Commission. The objection seems to have been based on a misapprehension of the correct position. In this respect, the High Court apparently thought that even if these Rules had been contravened, as the appointing authority deliber ately and consciously took a decision, this process implied a valid amendment of the Rules. I do not think it necessary to express an opinion on this aspect of the argument adopted by the High Court, as, in my view, no contravention of the Rules was involved in making the Impugned appointments. The main ground of the attack against the seniority accorded to the respondents, is that it was not open to Government to give retrospective effect to the permanent appointment of these respondents in the Regular Cadre, to the prejudice of the petitioners who had been appointed on a permanent basis prior to the orders in question. Two broad factors, however, stand out prominently In the history of the service, which seem to have a bearing on this question. The first factor is that all the petitioners were warned that the constitution of the service may be revised with consequent changes in the terms of service of individual incumbents (p. 134) and in case that happened, they could not be heard to say that their rights had been prejudiced, or that they were entitled to any compensation. This warning has to be invested with some significance. Merely saying that a similar warning formed part of the appointment orders issued by Government even subseq uently, would not suffice for holding that this was a meaningless formula. The suggestion, on behalf of the respondents is that the Government all along Intended to provide posts for the Emergency Cadre Officers in the regular service. The decision took time, after the Partition, as all aspects of the problem had to be carefully considered and it was not known at that time what strength this particular service should have, though the Department was functioning, as best it could, for the time being. The constitution of service would include the cadre‑strength, as well as the question whether temporary officers should be absorbed permanently into the service and from which date. The second important factor calling for consideration is that cadre‑strengths were fixed in this service with retrospective effect from the 15th August 1947. The intention could not have been merely to fix the cadre strength at the number of posts held by those who had been taken into service on a regular basis, either, in India or in Pakistan. The number of such posts was determinable easily. Apparently the number of posts thus fixed retrospectively was intended to cover the posts held temporarily by the Emergency Cadre Officers who were working in senior, posts all along and from whom some of the petitioners are stated to have received their training. The effect of the Government orders seems to be that the temporary posts held by the respon dents are to be regarded as having become part of the regular cadre, on a permanent footing, from the 15th August 1947, and this explains why Government ordered their confirmations from that date. If Government had taken a decision to induct these temporary officers on a permanent basis into the Service, before appointing the petitioners, the latter could have had no excuse for a grievance. Merely because that decision had to be post poned for a variety of administrative reasons, it does not follow that the Government was prevented from reconstituting the Service with effect from an earlier date. A fair warning had been conveyed to the now appointees, namely, the petitioners, that this was within the Government's contemplation. On this view, I am of the opinion that the Government orders, giving precedence to the respondents in seniority over the petitioners could not be taken exception to. On the view that I am inclined to take In this case, It seems unnecessary to deal with the question whether the principles, governing the Service, could be described as statutory rules or not. The petitioners' case would fail, on the merits, in the special circumstances discussed above. I would, therefore, allow Appeals No. 96 of 1960, No. 1 of 1961 and No. 3 of 1961 and dismiss Appeal No. 2 of 1961, and would direct that the writ issued by the High Court be recalled. In view of the circumstances of the case, I would leave the parties to bear their own costs. B. Z. KAIKAUS, J.‑

I am generally in agreement with the views expressed by the Chief Justice and brother S. A. Rahman, but would like to add a few words. The decision of these appeals appears to me to turn on an interpretation of what is contained In the order by which the petitioners in the High Court (herein after called the petitioners), that is, A. P. Hassumani and A. R. Malik, were appointed. The Government fixed the strength of the regular cadre with effect from 1st August 1947. It is said that the Government could not interfere with the vested right of the peti tioners. I agree that if the petitioners had any vested rights they could not be interfered with. But had they any vested rights? If the Government had already at the time of appointment of the petitioners told them that the cadre's strength could be fixed with retrospective effect, then it could not be said that they had any vested rights. So, the matter could be determined on a consideration of the question. Was the Government by what was contained in the order of appoint ment conveying a warning that the cadre's strength may be fixed with retrospective effect? If that order contained such a warning then the petitioners have no case and no reasonable interpretation of what was contained in the order has been suggested by Mr. Brohi which would exclude such a warning. All that Mr. Brohi has urged is that In some other orders too similar words occur. I do not see how this fact could help the petitioners In any way. If such words exist in some other orders their effect in these orders could be the same and in those cases too the appointments would be subject to retrospective fixing of the strength of the cadre. With respect to fixing the strength the warning was obviously there in the order. The warning could not relate to mere prospective fixing of strength because that could not affect In any way the status of the peti tioners. If a warning was conveyed it could only mean that the cadre's strength may be fixed with retrospective effect. If the Government were considering what place they should give to the respondents in the High Court (hereinafter called the respondents) in the regular cadre and, if for administrative reasons, they were unable to take a decision with respect to this matter by the time that the petitioners were appointed, and considering that they may have to place the respondents above the petitioners in the list of seniority, the Government gave to the petitioners a warning then surely the petitioners have no grievance. This is what appears to me to have happened In the present case. The Government were contemplating the transfer of the respondents to the regular cadre. They may have passed the order of appointment of the respondents in the regular cadre before the petitioners were appointed, but for some reason or the other the Government could not decide the strength of the regular cadre before the appointment of the petitioners and therefore it took no decision with respect to the respondents. However, it told the petitioners that the matter was under consideration and may affect their position. Mr. Brohi relied upon the word "compensation" used in the order to show that it did not relate to seniority. It 1s to be remembered that even a regular permanent employee of the Government whose dismissal is wholly illegal is not entitled to any compensation and, therefore, reference to compensation had really no relevancy in that document. What the writer intended to convey was only that the party affected would have no legal claim or legal grievance. I would, therefore, allow Civil Appeals No. 96 of 1960, No. 1 of 1961 and No. 3 of 1961; and dismiss Civil Appeal No. 2 of 1961 ; and would direct that the writ issued by the High Court be recalled. In view of the circumstances of the case, I would leave the parties to bear their own costs. We direct that Civil Appeals No. 96 of 1960, No. 1 and No. 3 of 1961 should be allowed and the writ issued by the High Court should be recalled, and that Civil Appeal No. 2 of 1961, should be dismissed. We leave the parties to bear their own costs. A.H. Order accordingly.