P L D 1959 (W (PLP)

SHABIR AHMAD, J.

‑Mr. Zafar‑ul‑Ahsan who was taken in the ; Indian Civil Service in 1936 by the Secretary of State for India, but was subsequently taken in the Pakistan Administrative Service and then in the Civil Service of Pakistan has presented this petition praying for a writ of mandamus or any other appropriate writ, order or direction so that the effect of the order recently passed placing him under compulsory retirement be nullified.

2. The order which is attacked by this petition was passed under Article 6 of the Laws (Continuance in Force) Order, 1958 as amended by the Laws (Continuance in Force) (Amend ment) Orders, 1958 and 1959. To cross the hurdle placed in his way by that part of Article 6 of the Order which says that orders mentioned in that Article shall not be called in question in any Court, Mr. Mahmud Ali, the learned counsel for the petitioner, raised the following three contentions :‑ (i) That as the petitioner, at the time of joining the Indian Civil Service in 1936, entered into a covenant, his service was governed by the covenant and his conditions of service could not be altered without his consent: (ii) that the breach of terms contained in the covenant of service entered into by the petitioner offended against Inter national Law, and (iii) that the order had not been passed by the authority that appointed him to service and consequently not being an order passed under clause 5 read with clause 3 of Article 6 did not enjoy the immunity from scrutiny by Courts conferred on orders passed under that Article.

3. It is true that the conditions of service of persons appointed by the Secretary of State for India were guaranteed at the time of the Partition of British India in 1947, but it can hardly be doubted that those conditions could be changed in accordance with laws made by the Constituent Assembly envisaged by the Indian Independence Act, 1947. The conditions A of service of persons appointed by the Secretary of State for India were changed from time to time before the Constitution of the Islamic Republic of Pakistan was enforced on the 23rd of March 1956 as well as by that Constitution and were more recently altered by the Laws (Continuance in Force) (Amend ment) Orders, 1958 and 1959, which Orders have as great force as a constitutional enactment passed by an assembly of the chosen representatives of the people of Pakistan as was laid down by the Supreme Court shortly after the abrogation of the Constitution of the Islamic Republic of Pakistan in the case reported as The State v. Dosso (P L R 1959 W. P. 849=P L D 1958 S C (Pak.) 533) Mr. Mahmud Ali urged that as Dosso's case did not deal with the precise question that arises in this case, the decision of the Supreme Court should not be taken to apply to the present case. In State v. Dosso the Supreme Court held that the Fundamental Rights granted by the Constitution of the Islamic Republic of Pakistan were no longer a part of the legal order as the Constitution of 1956 had been expressly excluded from the list in the President's Order. Now, if the Fundamental Rights given to 80 million citizens of Pakistan could be taken away by the President, I feel to see on what principle of law, justice, equity or common sense it should b held that the rights of the servants of the State could not b altered by the Laws (Continuance in Force) Order, 1958 as amended. The principles of International Law were sought to be introduced into the case by the learned counsel for the peti tioner by saying that because the Government of Pakistan had given a pledge to the British Government that servants of the British Indian Government who chose to remain in service in Pakistan will continue to be employed on the same terms and conditions on which they were employed in the time of the British Government. There was an agreement between two nations. I do not see how International Law can be invoked in Courts of a country in proceedings in which relations of a Government and its servants are concerned. As regards the contention that the appointing authority, in the case of the Indian Civil Service people like the petitioner, being the Secretary of State for India only that authority could terminate the service of the petitioner, I need only say that the laws in force in Pakistan do not support this contention because the British Government left this place about twelve years ago and is no longer interested in or competent to deal with cases of its former servants who chose to become servants of Pakistan. At any rate, the Head of the State of an independent country has the highest authority in the country in the Executive and Administrative spheres of the country and it is not open to anyone to say that the President of Pakistan is an authority subordinate to the Secretary of State for India and it is, therefore, clear that the impugned order cannot be said to offend against clause (3) of Article 5 of the Laws (Continuance 'in Force) Order, 1958, as amended. Moreover, it is manifest that the petitioner was taken in the Civil Service of Pakistan by the Governor‑General of Pakistan and as the Governor‑General has in this regard been replaced by the President of Pakistan, the impugned order was passed by the authority that had appointed the petitioner.

4. An attempt was made to show that the order was not justified and if the petitioner had been given an adequate opportunity he could have convinced the executive authorities of his innocence. If the petitioner was not afforded an adequate opportunity, his remedy lies in an administrative appeal or representation and not by these proceedings. I am clear in my mind that if the order was not justified on merits the remedy could be sought from the administrative authorities and not from a Court of law even if the jurisdiction of Courts in the matter has not been taken away.

5. It was next contended that as the petitioner was not heard by the President of Pakistan before the petitioner's appeal against the recommendations of the Screening Committee was disposed of, the law had not been followed and the order did not have any efficacy. No provision which gave the peti tioner a right to be heard by the President was cited, but reliance was placed on two decisions of the Supreme Court of Pakistan, namely, The Federation of Pakistan and‑ others v. Sardar Ali and others (P L D 1959 S C (Pak.) 25) and Chief Commissioner Karachi sand another v. Mrs. Dina Sohrab Katrak (P L D 1959 S C (Pak.) 45), some remarks in each of which cases support the contention raised. Though couched in general terms the remarks that where a statute grants a right of appeal it is presumed to have granted a right of being heard also were, in my opinion, clearly intended to apply to cases dealt with, i.e., cases of a judicial or quasi judicial nature and could not have been intended to apply to departmental or administrative cases which have from times immemorial been governed by rules different than those obtain ing in cases of judicial or quasi judicial nature. At any rate, the right of appeal was given by rules and not by Article 6 of the Laws (Conti nuance in Force) Order, which has the force of a statutory provision of law that applies to the matter, and even if Courts had jurisdiction in the matter, the right of being heard could not be enforced by action and would not be enforced by a writ.

6. In view of what has been said above, I do not find it necessary to issue a notice to the opposite party and there fore, reject the petition. When the order was announced at the close of the lengthy arguments of the learned counsel for the petitioner, an oral application was made that the case be certified to be a fit one for appeal to the Supreme Court and that application is granted. MASUD AHMAD, J.

‑I agree. K. B. A./A. H. Petition dismissed.