P L D 1966 (W (PLP)

WAHIDUDDIN AHMAD, J.‑

This writ petition was filed under President's (Post‑Proclamation) Order No. 1 of 1958 to challenge the orders of Government of West Pakistan dated 12th January, 1962 and 30th January, 1962, whereby the petitioner's seniority in the Forest Department of the Province of West Pakistan has been materially affected.

2. The facts leading to this petition may be briefly stated. The petitioner was selected in June, 1948 by the Sind Public Service Commission for the post of Range Forest Officer. On selection he joined Rangers College Upper Top a Murree and after completing the training reported for duty in the office of the then Chief Conservator of Forests on 3rd May, 1950 and was posted as Range Forest Officer at Mirpurkhas. In 1952, the petitioner being a war service candidate made representation to the Government that as he was selected against a War reserved vacancy he was entitled to certain concession under the War Recruitment Rules. On 11th March, 1953, the then Government of Sind rejected his representation on the ground that he was not taken up in War reserved vacancy. Thereupon, the petitioner made further representation for his absorption in one of the War reserved vacancies in the said Department. The Chief Conservator of Forest recommended his case along with the case of one Dost Muhammad Paracha for favourable con sideration to the Government, which found favour with it. At that time two posts of Range Forest Officers reserved for War service candidate were lying unfilled. These posts were created much before the petitioner's appointment. The Government gave the benefit of these posts to the petitioner and one Dost Muhammad Paracha and adjusted them in the above war vacancies by order dated 11th April, 1955. In consequence of this, the petitioner got benefit of three years War Service and his date of appointment was counted from 3rd May, 1947 and seniority was also determined on that basis.

3. After the integration of West Pakistan, Muhammad Aslam Memon Respondent No. 3, who was appointed on 12th November 1947, as Forest Ranger challenged this order in Departmental Appeal. He is alleged to have been appointed on temporary basis and was confirmed in. 1960 by respondent No. 1 from the date of his posting. His appeal was rejected on 6th December, 1958 on the ground that no such representation was pending before .the defunct Government of Sind at the time of integration nor was it a case where the Government had taken a decision shortly before integration. But on further consideration, the respondent No. 1 Government by an order dated 30th January, 1962, set aside the order passed by its predecessor Government dated 11th April, 1955 on the ground that by Resolution No. 1231‑GA/47(III), dated 2nd March, 1953, the Government had dereserved war vacancies in the former Province of Sind and the Petitioner was not entitled and could not be given any benefit of appointment in 1955 against a war reserved vacancy. The above‑mentioned orders are reproduced below: "Consequent upon the orders contained in the Government of West Pakistan, Agriculture Department's Memorandum No. S: O. A. H. III. II (26)/59, dated 30th March, 1961 and No. S. O. FT. 1‑3(40)‑57 dated 12th January, 1962 in the appeal case of Mr. Muhammad Aslam Memon against the seniority assigned to Mr. I. H. Warsi in the Cadre of Range Forest Officers of Group Sub‑cadre B' the seniority of Mr. I. H. Warsi in the cadre of Range Forest Officers of Group Sub‑cadre `B' and the integrated provincial seniority list of Forest Rangers of West Pakistan, is hereby fixed below Mr. A. A. Abbasi and above Mr. Afaq Muhammad Khan. His date of actual appointment to the class of Forest Rangers is 3rd May, 1950 and the seniority has been fixed accordingly after excluding the benefit of three years War Service awarded to him by the defunct Government of Sind in their order No. S‑24‑2‑24‑H/52 dated 11th April, 1955, by which his assumed date of appointment was taken as 3rd May, 1947. Necessary corrections in all the connected documents should be made accordingly." The order of the Government dated 30th March, 1961, referred in the above order was to the following effect: "Your attention is invited to the former Sind Government Regulation No. 1231‑GA/47(iii), dated the 2nd March, 1953, under which the War Reserve Vacancies were de‑reserved in 1953. In view of this fact Mr. Warsi could not be given the benefit of appointment against a War Reserved Vacancy in 1955. Action may, therefore, please be taken with due con sideration so far as cases of other officials are concerned." The Petitioner has challenged these orders in, this writ petition.

4. In support of the petition Mr. S. M. Raza, the learned counsel for the Petitioner has urged four fold points. Firstly, that the Petitioner having approved War Service, was selected against a permanent and pensionable post of Rangers reserved for war service candidates. Secondly, that at least one post of Range Forest Officer reserved for War Service candidate was laying vacant from the time the Petitioner was selected. He applied within the prescribed time viz. on 31st December, 1952, for absorption in this vacancy after the Government had decided to give benefit to refugee ex‑servicemen under the War Service Rules. The fact that the Government decided the case of the petitioner on 11th April 1955, cannot invalidate its order. The petitioner was rightly absorbed against this vacancy in the year 1955. Thirdly, that in law it was .not open to the successor Government to pass any order prejudicial to the petitioner in violation of the statutory guarantees given under Article 8 of the Establishment of West Pakistan Act, 1955. The impugned order being based on a resolution which has no bearing on the petitioner's case is unlawful and of no legal effect; and fourthly, that in any case the petitioner was appointed against a permanent post in 1950, and respondent No. 3 was appointed only against a temporary post. He having not been confirmed till 1960 could not be given preference over the petitioner in respect of seniority. We propose to deal with these points separately.

5. In order to appreciate the contentions of the parties, it will be proper at this stage to mention that like other Provinces is prenartition India, the Government of Sind on 18th June, 1943, in exercise of the powers conferred by clause (b) of sub section (1) of section 241 of the Government of India Act, 1935, promulgated Sind Civil Services (War Service Personnel) Recruitment Rules, 1943. These rules were amended from time to time. The effect of these rules was that ten per cent. of all substantive vacancies in the Provincial and Subordinate Service occurring on or after 24th March, 1943, which were to be filled by direct recruitment and not by promotion was reserved and to be filled substantively after the end of the War by appointment of Sind his (including those domiciled in Sind), who had rendered approved War service. Under these rules candidates with approved war service on recruitment to reserved vacancies were to be assigned placed in the cadre of the services with regard to their ages and period of approved war service. The amended rules further provided that the Provincial and Subordinate Services (except inferior services) occurring on or after 28th July, 1944, which were to be filled by direct recruitment and not by promotion shall be filled substantively until the number of such vacancies in each service including those which might have been already reserved under the existing orders,‑ reached ten per cent. of the total number of permanent posts in these services. Besides for appointment other than reserved War Services a direction was issued that a general preference shall be given ceteris paribus (all things being equal) to candidates with approved War Service. It will, however, be noticed that the benefit of these rules was conferred only on Sindhis (including those domiciled in Sind), who had rendered approved War Service. . Communal ratio was also fixed for such recruitment. Seventy per cent seats were allotted to Muslims and thirty per cent to non‑muslims.

6. In 1951, the then Government of Sind by resolution dated 31st October, 1951, threw open the 30 per rent. War reserved vacancies hitherto meant for non‑muslims in accordance with the communal ratio to those refugee ex‑servicemen with War Service, who fulfilled the conditions of one year's residence in Sind (excluding the Karachi Administration Area). useful to reproduce the Resolution as it has an important on the facts of the present case: "In modification of the orders mentioned in the preamble of this Resolution Government is pleased to direct that 30 per cent. War Reserved Vacancies hitherto meant for non‑muslims in accordance with the Communal ratio orders vide Government Resolution Political Services and General Administration Department (General Administration)'No. 878‑M./42 dated 20th May, ,1947, should be thrown open to refugee ex‑servicemen with approved war service, who fulfil the conditions of one year's residence in Sind (excluding the Karachi Administration Area). The conditions of one year's residence in Sind shall not apply to those who are already employed in the office of Government of Sind stationed in the Karachi Administration Area and to their dependants living with them in Karachi. (2) On appointment to reserved vacancies in question the refugee ex‑servicemen shall be eligible to the concessions men tioned in Government Notification Political and Miscellaneous Department (M) No. 728‑M/41, dated 18th June, 1943, as amended by Notification of even number dated 21st May, 1945. (3) As regards initial pay and seniority the orders which will be issued for other war service candidates appointed to permanent posts will apply. In the meanwhile the minimum of scale of pay will be allowed. The question. of granting advance increments in specially hard cases should be con sidered on their merits in consultation with the Political Service and General Administration Department. (4) The appointing authority should be requested to take the necessary steps immediately to advertise and (sic) as required by the recruitment rules for each particular post, all the vacancies reserved for non‑muslims by appointing refugee ex‑servicemen with. approved War Service who fulfil the domicile condition mentioned in paragraph 1 (supra) and report compliance through their Administrative Department in the Secretariate to Government in the Political Services and General Administration Department." In the year 1952, the Government of Sind by Resolution dated 6th March, 1952, framed rules regarding the fixation of initial pay ‑ and seniority and counting of increments of War Service candidates appointed to War Reserved Vacancies. Under the proviso to para. (IV) General it was provided as under: "Provided that in the case of refugee ex‑servicemen with approved War' Service appointed to reserved vacancies under Government Resolution (attached) Political Services General Administration Department No. 728‑M/41, (IV) dated 31st October, 1951, their first appointment in Sind shall be treated . as their First Appointment for the purpose of the condition." It is in this background that the case of the parties has to be considered.

7. The plea of the petitioner that he was appointed to a War Reserved Vacancy has not much force. It is not disputed that the Petitioner is a War Service Candidate and was entitled to get the benefits of the rules framed above. His case is covered by them. It is also correct that on 28th May, 1947, the Conservator of Forests informed the Regional Employment Exchange that one of the posts was reserved for War candidates in the vacancies of Rangers post. But there is ample evidence on the record to show that the Petitioner on his first appointment was not appointed against any of the War service reserved posts. He was recruited in response to an advertisement dated 4th March, 1948 of the Sind Public Service Commission. Under it applications were invited from Sindhis including bona fide refugees for eight posts of Range Forest Officers in the Sind subordinate Forest Service, which were permanent and pensionable. Out of them six were reserved for muslims and two for non‑muslims. The only concession that was given to the War Service candidates was in respect of the raising of the maximum limit of 25 years by number of completed years of War Service subject to the condition that no candidate shall have passed the 31st birth day on April 1, 1948. The minimum qualification for such candidates was Matriculation or Indian Army Certificate of Education with preference to those who obtained good marks (at least 50 per cent.) in English. From the appointment order of the Petitioner dated 11th May, 1948 (R/3) it is quite clear to us that his selection was made alongwith four persons in five seats out of the eight notified by the then Sind Public Service Commission. Neither in the advertisement nor otherwise is there any evidence to establish that any of the posts filled in by the then Sind Public Service Commission at that time was in respect of War reserved vacancy. The decision of the Government dated 11th March, 1953, communicated to him leaves no doubt in our mind that the Petitioner was not taken up in War reserved vacancies. The petitioner was also conscious of this difficulty. It was for this reason that he later on made representation to the Government ‑that being a refugee ex‑serviceman he should be given benefit of 34 per cent. seats reserved for non‑muslims under Government Resolution No. 728‑M/41 (IV) dated 31st October, 1951. We have, therefore, no hesitation in holding that the Petitioner was not selected against any war reserved vacancy but was only granted certain concessions as a War Service candidate.

8. The next question for consideration is whether the defunct Government of Sind validly absorbed the petitioner in the War reserved vacancy in 1955. The relevant order in this connection has been reproduced earlier. Both Mr. Zari and Mr. Chandnani the learned counsel for the contesting respondents have urged before us that in 1948, when the petitioner was recruited by the then Sind Public Service Commission he was not entitled to have any benefit under the War Recruitment Services Rules framed by the Government of Sind in 1943. This contention appears to be well founded. A1 the material time the benefit of the War Service Rules was only available to those Sindhis (including those domiciled in Sind), who had rendered approved War Service. For the first time it was only on 31st October, 1951 that certain concessions were granted to refugee ex‑servicemen with approved War Service This too was made available against thirty per cent. war reserved . vacancies meant for non‑muslims in accordance with the communal ratio fixed by Government Resolution Political Service; and General Administration Department (General Administration) No. 878‑M/42, dated 20th May, 1947. It was contended by Mr. Zari that the concession granted under this Resolution was not available to the petitioner because (i) that at the time when he was appointed no such concession was available to the refugee ex‑servicemen; (ii) that the then Government of Sind by Resolution No. 1231‑GA/47 (III) dated the 2nd March, 1953, had dereserved the War reserved vacancies; and (iii) that in any case recruitment under the War Service Rules was banned under the Circular No. 985‑M/45 (1) dated 25th July, 1947 (R/1) by the Government. These submissions have received our anxious consideration. In our view the mere fact that under the Sind War Service Vacancies Rules no benefit was available to a candidate at the time of his first appointment would not make such difference. In the case of refugee ex‑serviceman it is clearly provided in the rules referred to earlier that on his appointment to War reserved vacancy his appointment in Sind shall be treated as his first appointment for getting the advantage of the concessions granted under them. This seems to be the reason why the Respondent No. I Government set aside the order passed by its predecessor in 1955 only on the ground that the petitioner was not entitled to any benefit of War Reserved vacancies on the assumption' that these had been dereserved in 1953.

9. The sole question, therefore, for consideration is whether the respondent Government's conclusion that the War Reserved Vacanies had been dereserved in 1953 is based on proper appreciation of facts. In order to appreciate this point it will be necessary to refer to the Resolution dated 2nd March 1953 of the Sind Government on which the Respondent No. 1 Govern ment has based its decision. It was to the following effect: "Resolution.‑In accordance with paragraph 3 (a) of the Sind Civil Service (War Services Personnel) Recruitment Rules, 1943, 10 per cent. of all substantive vacancies in the Provincial sub ordinates Services occurring on or after 24th March, 1942 were reserved for appointment of those war service candidates who were born in Sind or domiciled in Sind on or before the date of their enrolement in the Military Department. According to the communal ratio orders in force then, only 70 per cent. of these vacancies were to be filled by Muslim War Service candidates. It has been ascertained by Government that some such vacancies still remain unfilled for want of candidates in some Departments/offices as shown in the accompanying statement. In modification of the orders mentioned in the preamble of this Resolution Government is pleased to direct that such vacancies should now be dereserved and filled in the ordinary way." It will thus be noticed that it refers only to 70 per cent. of those vacancies which were to be filled by Muslim War Service candi dates. These instructions were issued because it was noticed that some of these vacancies were still unfilled for want of candidates in some Departments/offices as disclosed in the accom panying statement and for that reason they were dereserved for recruitment in the ordinary way. After going through the contents of the above Resolution, we are satisfied that the Respondent No. I Government was not justified in relying on it for setting aside the order passed by the Sind Government on 11th April, 1955. This resolution has nothing to do with the remaining 30 per cent. seats reserved for non‑Muslims which were later on thrown open to the refugee War Service personnel. Mr. Zari was unable to draw our attention to any other resolu tion of the defunct Government of Sind which would show that 30 per cent. seats reserved for non‑Muslims out of the War reserved vacancies had also been dereserved.

10. Mr. Zari, however, contended that even if this view is taken, the petitioner should not have been given any benefit of this concession in 1955 in view of the Government Circular dated 25th July, 1947 (R/1). It reads as under: "No. 985M/45 (1). With reference to Government Political Services and General Administration Branch Circular No. 985‑M/45 (I) dated 8th November, 1946, the appointing authorities are informed that as demobilisation of the Armed Forces is now nearly complete, all reserved vacancies in the services under their control which are not yet filled up may be filled up forthwith in accordance with the usual procedure." Mr. Zari contended that in 1947, the Government had decided that as demobilisation of the Armed Forces was nearly complete, all reserved vacancies in the services under their control which were not filled up by that time may be filled up forthwith in accordance with usual procedure. According to him the words "usual procedure" means the "ordinary procedure". The con tention of the learned counsel has not impressed us because these words must be considered in their context and given its proper meaning. In our view they meant nothing else but that recruitment to such vacancies should be made according to the rules applicable to them. It is needless to mention that one of the meanings of "usual" is "customary". If the intention of the Government had been different it would not have used the word "usual procedure" but "ordinary procedure". The various resolutions produced on the record also support this conclusion. It is significant to note that in 1953 when the Government of Sind dereserved 70 per cent. seats for Muslim War Servicemen, in the instructions issued for this purpose it was clearly stated that they should be filled up in the ordinary way. The following extract of the resolution would make it perfectly clear: "In modification of the orders mentioned in the preamble of this Resolution Government is pleased to direct that such vacancies should now be dereserved and filled in the ordinary wary." On the contrary in our view the resolution of 1947 is in the nature of emphasising the immediate necessity of filling the vacancies of War Service candidates so that the Army personnel which had been demobilized‑ might not have to wait for long. The anxiety of the Government was to absorb such personnel at the earliest ‑and it was for this purpose that instructions for providing proper facilities were issued to the Departments. If this was not the intention of the Government, it is difficult for us to appreciate as to why the Government in 1951 threw open 30 per cent. non‑muslim reserved seats for refugees armed personnel and in 1953 dereserved 70 per cent. muslim reserved seats. We would, therefore, hold that Respondent No. 1 Government committed ad error in setting aside the order of its predecessor Government passed on 11th April, 1955. The ground on which it was set aside has no valid basis and for that reason the impugned order is illegal and has no validity or effect in the eye of law.

11. Mr. Zari further contended that there were no War reserved vacancies available in 1955 and the petitioner could not be absorbed in any such vacancy. This argument has also not impressed us. The petitioner has produced before us a copy of the memorandum of the then Chief Conservator of Forests Sind, dated 3rd September, 1953 (Exh. B/8). It shows that two posts of Range Forest Officers were kept reserved for war re served candidates vide G. R. Political Administration Services and General Administration Department (General Administra tion Branch) No. 728‑M (IV), dated 26th May, 1950. It further shows that at the time when the petitioner was selected by the Sind Public Service' Commission for Rangers course 1948‑50 one post for War Service candidate was lying vacant. It was for this reason that the officer concerned in his recommendatory letter stated as under: "It is, therefore, quite reasonable and fair, if Mr. Warsi is appointed against this vacancy. Consequently it is recom mended that he would be treated as War Service candidate and adjusted against War reserved vacancy with occurring benefits." Neither the respondent Government nor respondent No. 3 has placed any document on the record to contradict the factual position that existed in 1953 in respect of such vacancies. Having regard to the fact that there was no ban in 1955 to make appointment against the 30 per cent. War reserved vacan cies. It is not possible for us to hold that the Sind Govern ment Resolution dated 11th April, 1955 reproduced below violat ed any rule or resolution: "I am to inform you that Messrs Dost Muhammad Paracha and Izharul Hasan Warsi should be allowed the con cession given in Government Resolution Political Service and General Administration Department (General Administration) No. 728‑M/41 dated 6th March, 1952, against the two War reserved vacancies of Range Forest Officers."

12. Apart from this. Mr. S. M. Raza's contention that the respondent No.

1. Government was not competent to set aside the aforesaid order in view of Article 8 of the Establishment of the West Pakistan Act, 1955, has also good‑deal of force. The petitioner had acquired a vested right at the time of integ ration in respect of his terms ‑and conditions of service. There was no appeal pending before the Government of Sind before or at the time of integration against the above‑mentioned order. It was, therefore, not open to the Government of West Pakistan to sit in judgment against an order which was passed by a competent authority after due consideration. For this reason also we consider that the impugned order is illegal and cannot in any way affect the right of the petitioner.

13. On the view that we have taken of the matter it is un necessary to discuss the question whether the petitioner can other wise rank senior to the Respondent No. 3. 14 Ordinarily this Court is reluctant to determine the questions of seniority. In this case, however, the Government has given contrary decisions on questions affecting the seniority of the contesting officers. In view of the Supreme Court deci sion in Manzoor Ahmad v. The Province of West Pakistan (PLD 1961 SC 166), we consider this as a fit case for interference by this Court. Accordingly we would quash the orders dated 30th March, 1961, 12th January, 1962 and 30th January, 1962 passed by respondent No. 1 Government and issue a writ of mandamus directing respondents Nos. 1 and 2 to fix the seniority of the petitioner in the cadre of Range Forest Officers on the basis of the order of the defunct Government of Sind dated 11th April, 1958

15. In the result subject to the above remarks, the petition is allowed. Respondents Nos. 1 and 2 will bear the costs of these proceedings. S.Q. Petition allowed.