P L D 1968 Supreme Court 1 (PLP)

HAMOODUR RAHMAN, J.

‑This appeal, by special leave, arises out of the judgment of a Division Bench of the High Court of West Pakistan at Karachi in a writ petition filed by the appellants herein under clause 4 of the Laws (Continuance in Force) Order, 1958, to challenge the validity of a decision of the Government of West Pakistan, Services and General Administra tion Department, made on the 4th August 1959, relating to the determination of integrated seniority of Forest Officers. The relevant portion of this decision reads as follows :‑

"As already pointed out in Services and General Administra tion Department unofficial reference No. Integ‑10/2‑58, dated the 13th January 1958, the Forest Officers of the former Sind Province belonged to an unclassified gazetted Service. The integrated seniority list will, therefore, be prepared on the basis of "comparable grades". The grade of Sub -Divisional Forest Officers of the former Sind Province is comparable to that of Class II Officers belonging to the former Punjab and N.‑W.F.P. The Sub‑Divisional Forest Officers and Class II Officers should, therefore, be taken together for purposes of integrated seniority. In view of this clear position it is not considered necessary to hold any meeting. Action may please be taken accordingly." The appellants were originally appointed to the Sind Forest Service between the years 1943 and 1948. Now it appears that before 1945 the Sind Forest Service was divided into two classes, namely, Class I and Class II, but in that year the Sind Forest Service, it is claimed, was reorganized by the Government of Sind and the Class II service was abolished. Thereafter, the Sind Forest Service was brought into line with the Sind Service of Engineers which was a Class I service. Thus Divisional Forest Officers were, it is said, equated with Executive Engineers and were placed in the senior scale while the Sub‑Divisional Forest Officers were equated with Assistant Executive Engineers and given the junior scale of pay. Thus, it is claimed on behalf of the appellants that at the time of integration the appellants belonged to a Class I service and should, after integration have been treated as members of the Class I service and integrated accordingly. Their seniority should also have been fixed according to the instructions contained in the circular letter issued by the Chief Secretary to the Govern ment of West Pakistan, being No. 871‑Integ. 55/4471, dated the 25th November 1955. The relevant portions of the instructions, which are contained in paragraphs 14 and 16 thereof, are as follows :

. "

14. For the purposes of integration, the seniority of all pre‑unification officers will be determined with reference to the date of continuous appointment, substantive or otherwise, to the grade as defined to paragraph 16 below. In case two officers are bracketed together, owing to their appointments taking effect from the same date, the older officer will be given seniority over the other. The orders in this paragraph are subject to the proviso that the inter se seniority of officers belonging to the same integrating unit will not be altered. Thus if in the former Punjab an officer was placed above another officer with longer continuous officiation in the grade, the former will be placed first on the integrated list with reference to the date of his continuous officiation. The latter officer will be placed immediately below him. The same rule will apply if the former officer had been placed in the Punjab above more than one officer with longer continuous officiation. In that case these officers would go immediately below him in the integrated list as a group and in the same order.

16. For the purpose of the two preceding paragraphs, `GRADE' may be defined, broadly, as consisting of a number of posts of the same category in the same class of service; carrying the same duties and responsibilities and in a common scale of pay or, in case of officers belonging to different integrating units, in comparable scales of pay." This principle, it is alleged, has not been followed in the directive issued on the 4th August 1959, and it was to have this principle affirmed that the appellants presented their petition in the High Court on the 29th June 1960, praying for a certiorari to quash the impugned directive and for a mandamus prohibiting the implementation thereof, impleading only the Province of West Pakistan and the Secretary to the Government of West Pakistan, Agriculture Department, as respondents. Subsequently, however, they applied to implead the respon dents herein whose seniority was likely to be affected in the event of their writ petition succeeding. Notices were issued to them on the 17th of April 1962, and an order allowing their addition as respondents was made on the 11th May 1962. Again, on the 27th September 1963, the appellants amended their writ petition by introducing paragraphs 13(a) and 13(b) therein as also prayed for a further relief by way of a declaration to the effect that the impugned directive was illegal being in violation of the statutory guarantee contained in proviso (a) to section 8(3) of the Estab lishment of West Pakistan Act, 1955. These amendments were allowed subject to any objection that may be raised by the respondents. The learned Judges of the Division Bench in the High Court disagreed inter se as to the merits of the claims of the appellants but agreed that the petition should be dismissed. One of the learned Judges was of the opinion that there had been no violation of any rule of law or principle of equity in fixing the seniority of the appellants by what had been done by the Government. The other learned Judge, on the other hand, came to the conclusion that the departmental authorities had wrongly graded the appellants as Class II Officers for determining their seniority vis‑a- vis the other officers of the other integrating units, both under the principles laid down in the Chief Secretary's circular letter of the 25th November 1955, as well as upon accepted principles governing Government service. Nevertheless, he too agreed with the order dismissing the petition, as he thought that interference by re‑opening the cases of such a large number of public servants which had long been settled would cause undue hardship. He was also doubtful as to the competency of the Court to issue a writ touching the question of seniority after the coming into force of the present Constitution, as the hearing of the writ petition took place after this and the orders of the Court were announced on the 25th of February 1964. Before I proceed to deal with the appeal on merits I propose to dispose of the point relating to the competency of the petition as against the added respondents. Their contention is that since they were impleaded as parties on the 11th May 1962, and the prayer for declaring the directive of 4th August 1959, void was added only on the 27th September 1963, after the present Con stitution came into force, the proceedings against them commenced from the latter date. Under Article 98(3)(6) of the Constitution, therefore, no order could be passed in respect of a condition of service not specified in the Constitution itself. The writ petition was thus bound to fail. Learned counsel for the appellants, however, contends that the law which will govern their petition will be the law prevailing on the date that the respondents were added as parties. Notices were served on them on the 7th April 1962, and they were formally impleaded on the 11th of May 1962, before the present Constitution came into force on the 8th of June 1962. The case even against the added respondents was thus filed before the coming into force of the Constitution and would be governed by the law then prevailing by reason of the provisions of Article 250 of the Constitution. In support of this contention learned counsel has also relied upon a decision of this Court in the case of Ch. Sir Muhammad Zafrullah Khan and others v. Custodian of Evacuee Property and others (P L D 1964 S C 865) where it was held that in a case where special leave to appeal had been granted prior to the coming into force of the present Constitution the appeal, even if heard after that date, would be dealt with in accordance with the law prevailing on the date the petition for special leave to appeal was filed. I am of the opinion that this objection must fail, for, in the' absence of any provision in the present Constitution for the abatement of pending proceedings the rule of decision must be according to the law prevailing at the time the proceedings were commenced. There can be no doubt that even on the date the added respondents were impleaded the High Court was not debarred from issuing writs with regard to matters relating to the fixation of the proper seniority of public servants. The power that the High Court was, in the present case, called upon to exercise was under the Laws (Continuance in Force) Order, 1958, and not under Article 98 of the present Constitution. That power remained unaffected with regard to pending proceedings, for, the Constitution itself by Article 250 preserved that power notwithstanding the repeal of the Laws (Continuance in Force) Order, 1958. The fact that a further prayer was added subsequently did not mean that a new case was started on that day, for, a Court is always entitled to give such relief as the justice of the case demands. The prayer for a mandamus was already there and the new relief added was only in the nature of a consequential relief. Coming now to the merits of the case it appears that origi nally when Sind was a part of the Bombay Province, there was one service, called the Bombay Forest Service, and this service was, under the Bombay Civil Services Recruitment Rules, 1929, divided into two classes, namely, Class I and Class II. The appointments to Class I were made (a) by nomination from amongst Graduates of more than 24 years of age at the time of selection who had gained an Honours Degree in Science or similar high distinction of a recognised University and (b) by the promo tion of members of Class II of the service of proved merit and efficiency. Appointments to Class II, under these rules, were to be made by the promotion of Rangers of proved merit and efficiency who after completing the prescribed course had either obtained a Ranger's certificate from the Poona Science College or the Rangers Higher Certificate (or its equivalent) from the Forest Research Institute or other recognised institution and had rendered not less than 8 years' service as Rangers. After the coming into force of the Government of India Act of 1935, though Sind became a separate Province, yet by the concurrence of the Governments of Sind and Bombay certain services continued to have joint cadres for both the Provinces. As such, the old Bombay Government Rules continued to apply even after the separation of the Province. The division of the Forest Service into Class I and Class II, it appears, also continued certainly till 1944. On the 26th of October 1944, the Government of Sind actually created two further temporary posts of Sub -Divisional Forest Officers in Class II of the Sind Forest Service in the scale of Rs. 235‑15‑400‑20‑500 for a period of six months. On the 19th of May 1945, however, the Government of Sind by its Resolution No. R‑8076‑Hib)/3, it is contended on behalf of the appellants, decided to do away with the differentiation in the scales of pay of Class I and Class II officers of the Sind Forest Service, to revise the scales of pay and to bring them into line with those applying to Executive Engineers and Assistant Executive Engineers in the Sind Public Works Department. Since strong reliance has been placed on this resolution it will be useful to quote it here in extenso along with the revised scale of pay:‑

"Resolution.‑Government have had under consideration for some time past the question of the revision of the present scales of pay of the Sind Forest Service. Government considering that the present differentiation of the scales of pay for Class I and Class II Officers holding a divisional charge should be abolished, have decided that the present scale be revised to grant the same scales of pay to all officers holding a divisional charge. They further consider that the present scales of pay are not such as to attract the right type of candidates required for an expanding Forest Service, and brought into line with those sanctioned by the Government for the Executive Engineers and Assistant Executive Engineers in the Sind P. W. D. vide Government Resolution, P. W. D. No. 4190/E, dated the 5th September 1942. The revised scales are as under:‑

Year of Sub‑ D. F. Os. Year of Sub‑ D. F. Os. service D. F. Os. service D. F. Os.

1st 300 ... 16th 675 790 2nd 325 ... 17th 700 820 3rd 350 ... 18th ... 850 4th 375 475 19th ... 880 5th 400 500 20th ... 910 6th 425 525 21st ... 940 7th 450 550 22nd ... 970 8th 475 575 23rd ... 1,000 9th 500 600 over ... 10th 525 625 Grade 1,050 By 11th 550 650 1,100 annual 12th 575 675 1,150 incre - 13th 600 700 1,200 ment of 14th 625 730 1,250) Rs. 50." 15th 650 760 E‑

Bar Selection E‑

Bar

This resolution was further amplified on the 22nd of November 1945, as follows :‑-- "Resolution.‑In amplification of the orders contained in Government Resolution, Revenue Department, No. R‑8076 H (b)/III, dated the 19th May 1945, as amended by Corrigendum of even number, dated 20th June 1945, Govern ment are pleased to direct that :‑ (a) When a person from the subordinate service is promoted to the post of Sub‑Divisional Forest Officer, he should be allowed to draw at initial pay in that post the minimum of the pay scale sanctioned for it ; or, if his pay in the subordinate service is equal to or more than that minimum then the pay equal to the stage next above his pay in the subordinate service ; and (b) When a Sub‑Divisional Officer is promoted to the post of a Divisional Forest Officer he should be allowed to draw pay in that scale at the stage corresponding to his stage in the scale of Sub‑Divisional Officer according to the year of his service. (2) Government are further pleased to direct that the option to retain the old scale of pay in term of Sind Civil Service Rule 44, allowed to Sind Forest Service, Class I, Officers should be extended to the officers, both permanent and officiating, in the Sind Forest Service Class II as well. (3) All the officers of Classes I and II who wish to exercise the option of retaining old scales of pay should communicate their decision to the Comptroller, Sind, within two months of the date of this order, failing which the Comptroller should assume that the new scales of pay would be applicable." This amplification has been relied upon by the respondents to show that even this contemplated that a Sub‑Divisional Forest Officer would have to be promoted to the cadre of Divisional Forest Officers and, therefore, there were still two classes in this service, though a running grade was prescribed. On the other hand, the appellants argue that the word "promotion" in this context merely means passing from one grade to the other. On the 20th of July 1946, the Government of Sind again introduced a revised pay scale for the Sind Forest Service under which a Sub‑Divisional Forest Officer was to start from Rs. 360 and end at Rs.

800. The scale prescribed for a Divisional. Forest Officer was from Rs. 600 to 1,

250. The old scale for the Sub -Divisional Forest Officer was Rs. 300‑25‑700 and for a Divisional Forest Officer Rs. 475‑25‑1,

250. But on the 5th of August 1946, the revised pay scales introduced on the 20th July 1946, were, by a circular of the Sind Government, held in abeyance until further orders. This circular reads thus:‑- "Circular of Government.‑The orders issued in Government Resolution, Finance Department No. 1311‑B, dated 20th July . . . . regarding the general revision of pay scales as amended further, shall be held in abeyance until further orders." The appellants also rely upon certain statements contained in the introductory notes written by one Mr. D. R. C. Halford, Finance Secretary to the Government of Sind, on the 2nd of May 1947, wherein he appears to have stated that "in the Forest Department there is no Class II, as the leave and training reserve for Class I almost fully absorbs all the posts which would other wise be filled by Class II Officers." Again, it is pointed out that on the 30th of April 1947, the order of suspension issued on the 5th August 1946, was itself cancelled in the following terms:‑ "Resolution.‑Government is pleased to cancel retrospectively the orders issued in Government Circular, Finance Department No. 1539‑B, dated 5th August 1946, holding the orders in the above‑mentioned Resolution in abeyance." Learned counsel appearing on behalf of the appellants has also relied on the Sind Civil Services Classification and Recruit ment Rules, 1952, and Sind Civil Services Revision of Pay Rules, 1953, to support his contention that the Sind Forest Service was, at any rate, in the years 1952‑53 not shown in these rules as classified into Class I and Class II, though it was divided into two branches; namely, (a) Divisional Forest Officers and (b) Sub-Divisional Forest Officers. Under these rules, however, recruit ment to the posts of Divisional Forest Officers was only to be by "promotion" of Sub‑Divisional Forest Officers. It further appears that in the Sind Civil Services Classification and Recruitment Rules, 1952, wherever a particular service is classified into Class I and Class II, it is shown as such in these Rules as in the cases of the Sind Education Service, the Sind Medical Service, the Sind Agriculture Service, etc., etc. In the Sind Civil list for the year 1945 the Bombay Forest Service is shown as divided into Class I and Class II and a similar classification is made in the Civil list of 1946. But in the Civil list of 1949 under the heading "Deputy and Assistant Conser vators" there is a combined seniority list of Divisional and Sub -Divisional Forest Officers. From all this it is argued that at the time of integration in 1955 the Sind Forest Service was not classified into Class I and Class II but was a class I service and the pay scale of Sub- Divisional Forest Officers was even higher than that of Class I Officers in other integrating units. Thus in the former Province of Punjab the prescribed scale for the Class I forest service was Rs. 300‑25‑1,000 and for Class II forest officers it was only Rs. 250‑

750. In Baluchistan similarly the pay of Class I Officers was Rs. 300‑1,000 and those of Class II was Rs. 250‑

750. In N.‑W. F. P. Class I Officers were in the scale of Rs. 300‑1,000 and Class II Officers Rs. 250‑750, whereas in Sind the prescribed scale of pay of a Sub‑Divisional Forest Officer was Rs. 350‑850 and of a Divisional Forest Officer Rs. 600‑1,

150. It will thus be seen that while the starting salary of a Sub‑Divisional Forest Officer in Sind was higher than that of even a Class I Officer in any of the other integrating units, the maximum was slightly less. This difference in the maximum of the grade, it is urged, was due to the fact that since promotion to the post of Divisional Forest Officers was from the ranks of Sub‑Divisional Forest Officers the maximum was not of much significance. No one was recruited directly as a Divisional Forest Officer after the distinction between Class I and Class II was done away with. It may be pertinent to mention here that even as late as the 17th January 1953, the Finance Department of the Government of Sind issued a Notification No. 2057‑B (1) prescribing the Sind Civil Services (Revision of Pay) Rules, 1953, whereby it was, inter alia, provided that:‑

"10(a) Officers of the Sind Forest Service and Sind Service of Engineers, Class I, shall on appointment to Senior Scale posts in these Services, be entitled to draw pay in the prescribed Senior Scale in the eighth year of service. If a Junior Scale officer of either of the above‑mentioned Services is appointed in a Senior Scale post before the eighth year of service, he shall draw the minimum of the scale but the next increment in that scale shall not accrue to him until he enters the ninth year of service. (b) Where a Class II Officer is promoted to a Class I post of a service, for which both the Junior and Senior Scales are pres cribed, his pay shall be fixed in the Junior Scale at next higher stage above the pay in Class II. The pay in the Senior Scale should be allowed either according to pay stage in the Senior Scale corresponding to the pay stage in the Junior Scale or by taking into account half the period of his Class II Service, and adding full service rendered by him in Class I and thereafter allowing pay appropriate to the total years of service so arrived at, whichever is more beneficial." After integration, however, in the West Pakistan (Gazetted) Civil Services Pay Revision Rules, 1957, an "unclassified post" was defined as "a gazetted post which is not declared by Govern ment to belong either to Class I or Class II", and the West Pakistan Forest Service was under Schedule 1 thereof described as consisting of two classes, namely, class I, carrying pay scales of Rs. 350‑1,000, and Class II, with a pay scale of Rs. 250‑‑

750. The question, therefore, that then arose was as to in which class the Sub‑Divisional Forest Officers of former Sind were to be placed. According to the scale of pay, applicable to them, they were comparable with the scale of pay prescribed for Class I Forest Service and, therefore, under Paragraph 16 of the Chief Secre tary's circular of November 1955, they were clearly required to be placed in the integrated seniority list with reference to their respective dates of continuous appointment, substantive or other wise, in the grade of Class I Officers. A "grade" under the said paragraph 16 is defined as "consisting of a number of posts of the same category in the same class of service, carrying the same duties and responsibilities and in a common scale of pay or, in the case of officers belonging to different integrated units, in comparable scales of pay.". If this be the correct criterion then one is clearly led to a conclusion which supports the contention of the appellants. Alternatively, it is argued, that even if in terms of the Pay Revision Rules of 1957 the Sind Forest Service is to be treated as an "unclassified" service, then under rule 8 (iii) thereof "any unclassified post shall be deemed to be a Class I post if the maximum of the pay scale prescribed for the post is Rs. 850 or more. "All other unclassified gazetted posts were to be deemed to be Class II posts. The scale prescribed for Sub‑Divisional Forest Officers under the Sind Civil Services (Revision of Pay) Rules, 1953, was Rs. 350‑

850. In any view of the matter, there fore, whether the service is treated as a Class I service or as an unclassified service the appellants should have been treated as being in Class I and their seniority in the integrated list should have been fixed accordingly. Learned counsel for the respondents, on the other hand, contend that the matter is not free from difficulty, for, it is not clear from the various resolutions of the Sind Government as to whether the classification of the Sind Forest Service in two classes was ever done away with or whether the suspension of the resolution of the 20th of July 1945, had ever been cancelled, as contended by the appellants, by the resolution of the 30th of April, 1947. They refer in this connection to an extract from the Sind Gazette of the 12th December, 1945, whereby applications were invited for posts in the Sind Forest Service, Class II, and to the bonds executed by some of the present appellants at the time of their respective appointments even in 1946, 1947 and 1948 whereby they appear to have agreed to serve in the Sind Forest Service Class II. Reliance is also placed on the fact that even under rule 26 of the Sind Recruitment and Classification Rules 1952, recruitment to the post of Divisional Forest Officers is to be by "promotion" from Sub‑Divisional Forest Officers. If Divisional Forest Officers and Sub‑Divisional Forest Officers were in the same class then, it is urged, no question of promotion could have possibly arisen. It is also pointed out that under these very rules recruitments to the posts of Sub‑Divisional Forest Officers were to be partly direct and partly by promotion from the rank of Rangers who were only Class III officers. In these circumstances, it is suggested, it would be difficult to impute to the Chief Secretary the intention of placing even a promoted Ranger of Sind in a higher position than a Class II Forest Officer from the other integrating units merely because he was serving as a Sub‑Divisional Forest Officer at the time of integration. Learned counsel for the respondents have also referred to the Bombay Forest Manual to show that the responsibilities of a Sind Sub‑Divisional Forest Officer were not the same as that of a Class I Forest Officer in the other integrating units. So far as the revision of pay scales made in 1957 is concerned it is said that rule 8 (iii) does not assist the appellants, for, the prescribed scale there means the scale prescribed in column 2 of the Schedule appended thereto. The scale of Rs. 350‑850 was the existing scale for Sind Sub‑Divisional Forest Officer and not, therefore, the prescribed scale within the meaning of this rule. Having given my anxious consideration to the contentions advanced on both sides and examined the various resolutions of the former Sind Government I have come to the conclusion that the Resolution No. R‑8076‑H(b)`3 of the 19th of May 1945, did not, as contended by the appellants, do away with the division of the Forest Service into Class I and Class II. All that it purported to do was to revise the pay scales and grant officers holding a divisional charge the same scales of pay, whether they were Class I officers or Class II officers. This is not the same thing as saying that the distinction between the two classes was altogether done away with. Sub‑Divisional Forest Officers were not officers holding divisional charge and this resolution of the Government could not, therefore, have applied to them, as is now sought to be contended. If there was any doubt as to this it was resolved by the amplification issued on the 22nd November 1945, which clearly accepted that there still was a Sind Forest Service Class II and when an officer of that class is promoted to the post of a Divisional Forest Officer in the Class I Service he should be allowed to draw pay in that scale at the stage corresponding to his stage in the scale of Sub‑Divisional Officer according to the year of his service. Again, the observations made by Mr. Halford in his notes of the 2nd May 1947, do not also support the contention of the appellants, for, when he says that "the leave and training reserve for Class I almost fully absorbs all the posts which would otherwise be filled by Class II officers" he clearly accepts that there is still a Class II cadre in the Sind Forest Service. The mere fact, therefore, that the Civil list of 1949 shows both Divisional Forest Officers and the Sub‑Divisional Forest Officers in a combined list does not establish that the Class II Service had by then been merged into the Class I of the service, for, the Sind Civil Services Classification and Recruitment Rules, 1952, and the Sind Civil Services Revision of Pay Rules, 1953, show the Sind Forest Service as an unclassified service. The contention advanced on behalf of the respondents that it was, by no means, clear that the Sub‑Divisional Forest Officers of the former Sind Province were holding class I posts or that merely because time scales, which merged into one another at a given stage, had been provided for both Divisional Forest Officers and Sub‑Divisional Forest Officers, the two really formed one class of service, is not entirely without substance. If that had been so, there would have been no question of promotion from one branch to the other, as provided for in the Sind Civil Services Classification and Recruitment Rules, 1952. All that emerges from an examination of these documents, therefore, is that the Sind Forest Service was at best in 1952 an "unclassified service". The question that has then to be considered is as to how it should have been integrated. If the criterion laid down by the Chief Secretary in the policy circular of 1955 had to be followed then for the purpose of fixing the grade of officers belonging to different integrated units the comparable scales of pay had to be taken into consideration. Upon this basis there can be no manner of doubt that the Sub‑Divisional Forest Officers of Sind compared more proximately with Class I Officers of other integrating units rather than with Class II Officers of those units. The Sind Sub‑Divisional Forest Officer started on a higher initial pay than a Class I Officer of any of the other units, though the maximum of the grade was lower. The grade of the Sitid Sub‑Divisional Forest Officers was, in no way, comparable with those of the Class II Officers of the other units, who were all in the scale of Rs. 250 to

750. It is difficult, therefore, to appreciate how they were by the impugned decision of 1959 integrated with Class II Officers of the other units. If the policy of the circular of 25th November 1955, had to be adopted then, in my opinion, the appellants' contention should have prevailed and they should have been more appropriately integrated with Class I Officers from the Forest Services of other integrating units. I see further more no justification for departing from this policy, which has not only received the approval of this Court in the case of Province of West Pakistan v. Md. Akhtar Qureshi and others (P L D 1962 S C 428) but has also the effect of preserving rather thank destroying the guarantee given to public servants by section 8(3) of the Establishment of West Pakistan Act, 1955. It is not with out significance that even the impugned decision of 1959 starts by saying that the "integrated seniority list" will be prepared on the basis of "comparable grades" but then goes on to equate the grade of the Sind Sub‑Divisional Forest Officers with the grade of Class II Officers of the other units without noticing that under; the policy circular of 1955 the "grade" itself should have been determined on the basis of "comparable scales of pay". I have also not been able to find any such great difference between the duties and responsibilities of the Sind Sub‑Divisional Officers and Class I Officers of other units as would entitle one to hold that to equate the former with the latter would be clearly unjust. I am also, with respect, unable to agree with the learned Judge (Waheeduddin Ahmad, J), who declined to interfere on the ground that it would upset the seniority of many of other officers, even though he came to the conclusion that the Sind Sub Divisional Officers should have been equated with Class I Officers of the other units. In my opinion, this could hardly be a sufficient ground for allowing an injustice to be perpetuated if the Court was convinced that an injustice had in fact been committed. The only question here is of placing the appellants in their proper place in the integrated seniority list and I see no reason why this cannot be done. The argument that this would upset the promotions made during the pendency of the proceedings in the High Court does not appeal to me. As far as I have been able to gather promotions to the posts of Deputy Conservators and Conservators of Forests are by selection and not by seniority alone, although seniority is one of the matters to be taken into consideration. But this is not the sole factor upon which promo tions to selection posts depend. No great injustice will, therefore, in my opinion, be caused if the higher promotions, if any made, during the pendency of the proceedings in the High Court are now revised. If the persons, who have already been promoted, are still found more suitable for promotion, notwithstanding that in the newly prepared seniority list they are junior to the present appellants, there is no reason why their promotions should be disturbed. On the other hand, if taking all other factors into consideration they are no better than the appellants herein then it would be obviously unjust to deprive the appellants of their right to future promotion by classifying them as Class II. For the reasons given above I would, therefore, allow this appeal and issue a direction in the nature of a mandamus calling upon the Province of West Pakistan to fix the seniority of the appellants in accordance with the principles contained in the policy circular of the 25th of November 1955, which has clearly been violated and departed from by the impugned directive of 1959, but would make no order as to costs. A. R. CORNELIUS, C. J.‑I agree. FAZLB‑AKBAR, J.‑‑I agree. M. YAQUB ALI, J.‑I agree. S. A. RAHMAN, J.‑I agree with the order proposed to be passed in this case by my learned brother Hamoodur Rahman, J. I would like to add a few words as to the relative position of the parties in the service. The contention of the appellants that right from 18th May 1945, when the Government of Sind in the Revenue Department passed Resolution No. R‑8076‑H(b) III, they were in Class I of the Forest Service, is not borne out by the documents on record. As has been pointed out by my learned brother, this Resolution itself does not, in express words, declare that henceforth, the Class II and Class I Services of the Forest Service, are to be amalgamated. All that was decided therein was that Sub -Divisional Officers, when they were holding charge of the posts of Divisional Forest Officers should draw the same pay as the directly recruited Divisional Forest Officers. The Government of Sind, Finance Department Resolution No. 1311‑B, dated the 20th July 1946, merely revised the grades of Sub‑Divisional Forest Officers and Divisional Forest Officers with effect from 1‑4‑1944. The Sub‑Divisional Forest Officers were henceforth to be in the grade of Rs. 350‑

800. These orders were suspended by Govern ment of Sind, Finance Department Circular No. 1539‑B, dated 5‑8‑1946. But the suspension orders were themselves cancelled by the Finance Department's Resolution No. 1311‑B, dated 30‑4‑1947. In none of these Resolutions or Circulars is there any mention of the express abolition of Class II Service. On the contrary, indications are available in the official documents of the relevant period, showing that Class II service still existed. Reference may be made in this connection to letter No. 38‑1/1189, dated Karachi the 19th May 1945, from the Conservator of Forests, Sind, to the Secretary to Government, Revenue Department, Karachi. This specifically mentions the existence of Class II Service. It is also of interest to note that there was a common Public Service Commission of Sind and Bombay from 1937 onwards, vide Annexure C/1, dated 15‑5‑1937, at page 378 of the Paper Book. There was a joint cadre of Forest Services in the two Provinces and this continued till 1946. On the 12th December 1945 (Annexure VIII) the Bombay‑Sind Public Service Commission invited applications for selection of three candidates for training in Forestry at the Indian Forest College, Dehra Dun, from the Sind Province. The advertisement states that after completing their training, the candidates would be appointed to the permanent and pensionable posts of Assistant Conservator of Forests in the Sind Forest Service, Class II, on probation for three years. Probably in pursuance of this advertisement, Riazur Rahman, appellant, and two others, executed service agreements appearing at pages 300 and 303 of the record, on the 20th of March 1946, which mention that they were in Sind Forest Service, Class II. There was a similar recital in the agreement dated the 22th April 1948, executed by Ghous Bakhsh Muhammad Budhal Shaikh, vide Page 327 of the record. The correspondence between the Public Service Commission located at Bombay and Sind authorities vide Annexures VI and VII at pages 350 and 351 of the record, further lands support to this fact. Annexure IV appearing at Page 246 of the record regarding reorganization of the Forest Department in Sind, also expressly refers to two Classes of Forest Service namely, Class I and Class II and this Resolution is dated the 22nd November 1945. There is another letter from the Sind‑Bombay Public Service Commission dated 13th April 1946 (Annexure IX at Page 354) to the Secretary to the Government of Sind Revenue Department, Karachi which again refers to Forest Service Class II, existing in Sind. This position does not appear to be altered by the intro ductory note recorded by the Finance Secretary, vide Pages 217 to 225 of the record. As my learned brother has held, this note of the Finance Secretary does not also justify the conclusion that Class II had been abolished altogether. For the first time, it seems, an integrated Forest Service with Senior and Junior Scales of pay, finds express mention in the Sind Civil Services (Revision of Pay) Rules, 1953 which were gazetted in 1953. The posts held by the appellants are still in the old scale of Rs. 350‑800 and consequently, if they are regarded as unclassified posts, they cannot be deemed to be Class I posts under the West Pakistan (Gazetted) Civil Service Pay Revision Rules, 1957. Rule 8, sub‑rule (iii), of these rules provides that "any unclassified post shall be deemed to be a Class I post if the maximum of the pay scale prescribed for the post is Rs. 850 or more". All other unclassified Gazetted posts were to be deemed to be Class II posts, under these rules. In terms, therefore, this rule too does not avail the appellants. The question therefore, is one of interpretation of the Chief Secretary's letter on which reliance has been placed on behalf of the appellants and determination of the status of the appellants has to be done on the basis of comparison of grades. I agree with my learned brother that on this footing the appellants' salary would entitle them to be placed, on integration of the Province of West Pakistan, with the Class I Servants of the Forest Service. S. A. H. Appeal allowed.