P L D 1961 Supreme Court 166 (PLP)

Muhammad Iqbal Hussain, Advocate Supreme Court, instructed by Ijaz Ali, Attorney for Respondent No.

1. M. Ismail Bhatti, Advocate Supreme Court, instructed by M. A. Rahman, Attorney for Respondents Nos. 2 and

3. Date of hearing : 9th January 1961. CORNEILUS, C. J.‑This appeal by special leave involves a question as to the correct order of seniority of three members of the West Pakistan Forest Service Class I, namely, the appellant, Manzur Ahmad, and the respondent‑officers, Muhammad Ihsanur Rehman Khan, and Muhammad Rafi. The question was raised in the High Court in the form of a petition for a writ of mend emus or any other appropriate writ to establish that Manzur Ahmad was entitled to be placed above the other two officers in the seniority list. The claim was laid on the foundation of a rule in the Punjab Government Service (War) Amendment Rules, 1943, namely, rule

6. To determine questions of seniority is ordinarily not a purpose for which a writ of mandamaus can be regarded as B suitable. Service conditions of Government service is are require by the Constitution to be made the subject of express rules, and it is in fact the case that there are sets of rules applicable to all Services including the Provincial Forest Service Class I. It was provided by the late Government of India Act of 1935 that the Governor in respect of a Provincial Service had power to deal with the case of any officer subject to the rules, as to him may seem fit in accordance with justice and equity, provided that the office should not be treated less favourably than the rules in terms required. That may, and in the opinion of the Court, should be interpreted as a provision reserving to the Governor the power o final application of the rules, so that it would be only in a tar case that the assistance or intervention of the Courts should be required, for such application. The present is a case which is specialised in this respect by the circumstance that at different times, the Provincial Government has given contrary decision affecting the seniority of these three contesting officers, and conse quently the occasion is a proper one for the provision of assistance by the Courts in giving a definitive interpretation of the relevant instruments. The relevant facts may be briefly stated as follows. The appellant Manzur Ahmad was born on the 12th March 1920. He entered 'the service of the then Punjab Government as an Agricultural Assistant and was holding that position when on the 16th October 1943, he joined the Army as a Second Lieutenant. At that time the Punjab Government Service (War) Amendment Rules, 1943, had already been promulgated. These Rules were made by the Punjab Government under power derived from section 241 of the Government of India Act, 1935, and are there fore Rules of the highest statutory validity. It will be necessary in the course of this decision to examine in some detail a number of these Rules. At the present stage it would be sufficient to say that their main purpose was to ensure to persons who were sacrific ing their prospects of securing service under Government on the civil side, in order to assist actively in the war effort, that they would not be forfeiting their chances of Government employment, but on the contrary, they would be given allowances in respect of age and qualifications, besides being given preference over other candidates, when their services were no longer required for the purposes of the war. Mr. Manzur Ahmad obtained release from his war duties on the 24th March 1946, when the total war service to his credit was two years, five months and nine days. By a letter dated the 22nd January 1946, he had been selected along with three other Military Officers for training for entry into the Service in question. He duly underwent the training, which was shortened from a normal two years and six months to about 21 months in his case, and was appointed to the Service on the 5th January 1948. Later, an order was made confirming him with effect from the same date, and this is a clear indication that on the 5th January 1948, there was available a permanent post in the Punjab Forest Service, Class I, to which he as an officer of the Service could be appointed. Messrs Muhammad Ihsanur Rehman Khan and Muhammad Rafi were selected for training for the same service in October 1943, and on completion of their training, they were appointed to temporary posts in the Punjab Forest Service Class I on the 1st April 1946. The appointment was expressly made temporarily for period of two years. Subsequently by express orders, they were confirmed in their posts, which were posts in the cadre of the Punjab Forest Service Class I with effect from the 1st April 1948. It was conceded before us on their behalf that there were no posts in that cadre in which these two officers could have been confirmed on an earlier date than the 1st April 1948. It is admitted that they had received intimation from the Government to that effect, when they had asked that their‑confirmation should be ante‑dated. That request was made on the basis which, on the face of it seems reasonable enough, namely, that while Manzur Ahmad only commenced his training for the Service, probably on the 24th March 1946, these two officers were then at the end of their training period, and were actually appointed to posts in the Service on the 1st April, 1946, only a week later. In other words, for nearly the whole of the period that Manzur Ahmad spent under training, these two officers were actually working in posts in the Punjab Forest Service Class 1, and that should give at any rate a superficial ground for a claim that they should be treated as senior to Manzur Ahmad. But it is also clear that they were only appointed temporarily to temporary posts which had been specially created. Manzur Ahmad when he was appointed on the 5th January, 1948, was appointed in an existing vacancy in the P. F. S Class 1, and some time later he was confirmed in that vacancy with effect from that date. That is a point of material difference which has not received sufficient attention in the judgment of the High Court, rejecting Manzur Ahmad's petition, against which he was granted special leave to appeal. The correct approach to the case which was one of evaluating the extent of preference which a war service candidate was entitled under the Statutory Rules of 1943 to receive, against the rights of non‑war service candidates, could only be achieved upon an appreciation of the expressed purpose of the Government, and there was on the record sufficient material for gaining such an appreciation. Reference may first be made to the Rules them selves, which are expressly made applicable "to all services under the rule making control of the Punjab Government." War service was widely defined to include not only active service, but even service in ancillary capacities, as for instance, service "involving subjection to naval, military or air force law", and "whole time service in any civil defence organisation." There was, however, an order of preference, in which such ancilary service was places last. By rule 3, which has been the subject of some contraversy, it was provided that from the 18th September, 1943, when the Rules came into force, direct recruitment on a substantive basis to all posts under the Punjab Government was to be suspended except with the sanction of the Provincial Government of Punjab for special reasons to be stated by the administrative department concerned. This was not to affect the filling of vacancies by promotion or confirmation of candidates accepted before the 1st April, 1940, and actually taken into the service before the 18th September, 1943. All vacancies in the service of the Punjab Government which it was necessary in the public interest to fill after the 18th September, 1943, were to be filled on a temporary basis, if the existing rules required that they should be filled by direct recruitment. A direction was given in the rule that each department should maintain a list of all vacancies which had been either left unfilled or had been filled on a temporary basis in accordance with the rules, and these vacancies were reserved for recruitment from among persons with war service to their credit, in compliance with rule

4. Rule 5 provided for computing the age at the time of appointment of a person with war service appointed to a post in the Punjab Service. Such a person was entitled to exclude the period of his war service in computing his age, and was allowed a further concession (not relevant here) in case of having been invalided from war service. Rule 6 is of special importance in the present case, and may be reproduced in full :‑ "Every candidate with war service who is appointed to a Punjab Government service shall be assigned a place in the cadre of such service which shall be fixed with due regard to his age and the period allowed to be deducted under rule 5, and shall, as nearly as may be, correspond with the place which he would have had if the war had not intervened and he had qualified in the normal way. The seniority inter se of all candidates so appointed to a cadre shall be determined by their ages irrespective of the class of war service rendered by each of them." It is important to note that the rule is not confined in its applica tion to persons who had been appointed to war reserved vacancies, i.e., vacancies which appear upon the list maintained in accordance with rule

3. The worth are altogether general, viz., "Every candidate‑who is appointed to a Punjab Government service." Rules 7 and 8 are similarly, worded generally, so that their applica tion is not restricted in terms to persons appointed in war reserved vacancies. By rule 7 a war service candidate was made eligible for appointment to any service irrespective of whether he possessed the educational or other qualifications prescribed in the special rules for such service. It would be sufficient in his case if the appointing authority could certify that he possessed "technical qualifications equivalent to those prescribed in the said special rules." In the case of non‑technical services and posts, it would be sufficient for the appointing authority to certify that the candidate had, by experience or otherwise, "acquired the necessary qualifications." Rule 8 took the matter even further in providing that where selection for a service involved a competitive examina tion including a written test, such written test would not be obligatory for a war service candidate, and it would be sufficient if the Public Service Commission was satisfied that he had "sufficient knowledge to carry on the duties of his office efficiently." The extent of the advantage given to war service candidates appears with plainness from these Rules. The period spent on war service was not to be taken into account in determining whether they were of age for the appointment, and presumably because it was felt that their time had been employed equally usefully in war service, they were excused from having the full educational and technical qualifications which civilian candidates for direct recruitment were required to possess. Even the requirement of a written test was excused, but it was provided that their seniority should be fixed as closely as possible to correspond with the place in the cadre of the service which they would have had if the war had not inter vened, and they had qualified in the normal way. In each case this was to be done "with due regard" to his age and the period of his war service, not precisely in accordance with the ascertained age, after deduction of the period of war service. The approximation had to be to the place which the person would probably have had if he had qualified in the normal way. That condition by itself, in point of age leaves a margin of two whole years. for the minimum age for admission for training to be an officer in the Punjab Forest Service Class 1 was 21 years and the maximum was 23 years. It is plain that by rule 6, a certain amplitude of discretion was conferred upon the Punjab Government, to be exercised in relation to a number of factors, including, no doubt, the question of interfering with the rights of other members of the service, as little as possible. At the same time, the Government made no secret of the fact that the intention was that war service candidates would be given preference not only in relation to appointments, but also in respect of seniority as against civilian candidates directly recruited. There is a letter on the record by the Chief Secretary to the Punjab Government to all Heads of Departments dated the 12th November 1945, at a time when the war had already ended. The letter states that "hostilities have ended and demobilisation has started", and proceeds to deal with the question of the rights of civilian can didates who had been appointed on a temporary basis, upon which there had been a proposal that 30 percent. of the total number of available vacancies should be reserved for being permanently filled by such officers. The proposal was rejected by the Govern ment in the following terms :‑ "The proposal for the reservation of a certain percentage of vacancies for the staff recruited on a temporary basis will definitely affect adversely the interest and prospects of the persons who have done war service and it will amount to a breach of faith with them if the number of vacancies reserved for them are reduced at the time when they required them most and the vacancies actually exist. It has, therefore, been decided that all the vacancies that have been filled temporarily during the war should be reserved for candidates with war service. The claims of those holding the posts temporarily can be considered only if no candidate with war service is available for the posts concerned after having made every effort to find one." Reference may also be made at this point to an instruction which had been issued by the Provincial Public Service Commission to all candidates seeking appointment by selection to Punjab Govern ment Service. Instruction 13 informs such candidates that the Punjab Government had decided that war service candidates would be assigned "seniority with respect to their ages and periods of war service", and warned other candidates appointed permanently that "they are likely to find later that war service candidates are assigned places senior to them." Instruction 14 related to the then North West Frontier Province and noted that the Governor of that Province had decided that any young man who was ambitious to enter the public service "should if he prefers first to serve in the Army during the war be given some consideration in matter of seniority if he is later appointed to a civil post." The exact date of this instruction does not appear on the record, but it was undoubtedly issued in connection with and probably at about the same time as the Rules of 1943. Then there is a letter from the Chief Secretary Government dated the 5th March 1946, com municating to all Departments that it had been decided that rule 3 of the Rules should terminate with effect from the 1st January 1946, so that from that date onwards there would be no longer reservation of vacancies to be filled by war service candidate's. In other words, war reserved vacancies were to cease to be catalogued as from the 1st January 1946. At the same time, however, the Government gave the following direction, viz. "It is, however, considered that war candidates should be given preference in filling future vacancies and should be allowed the concession in regard to age granted by Rule 5 of the Punjab Government Services (War) Amendment Rules, 1943." Special instructions were issued also with respect to vacancies arising after the 1st January, 1946. In implementation of this letter, on the 11th June, 1946, the Punjab Government issued a notification under section 241 of the Government of India Act, 1935, ordering "that the operation of rule 3 of the Punjab Government Services (War) Amendment Rules, 1943; shall terminate with effect from the 1st January 1915". Following this action, on the 11th December 1946, a further letter was issued by the Chief Secretary to the Punjab Government to all Departments from which the following passage may be quoted :‑ "Seniority.‑The seniority of war service candidates appointed to any post shall be in accordance with the provisions (unless they prove impracticable) of rule 6 of the Punjab Government' Service (War) Amendment Rules, 1943, published with Punjab Government Notification No. 5011‑G‑43/59012, dated the 18th September, 1943." The reference to the applicability of rule 6 in the letter of the 5th March, 1946, and of rule 6 in the letter of the 14th December, 1946, are clearly not to be regarded as having the effect of giving validity to these Rules, for the documents on the record make it quite clear that the Rules as a whole were never revoked, but only rule 3 was brought to an end with effect from the 1st of January,; 1946. All the other rules in the set continued to have force, and we consider that it is probably due to a misconception in this respect that the learned Judges in the High Court were led to take the view which they did. This will appear from the following passages in the judgment. With reference to the letter of the 5th March, 1946, the observation of the learned Judges is that the Heads of Departments:‑ "were further told that although vacancies occurring after the 1st January, 1946, will not be reserved for war service candidates they were to be given preference in filling them and `should be allowed the concession in regard to age granted by rule 5 of the Punjab Government Service (War) Amendment Rules, 1943.' Rule 5 was thus made applicable as a matter of policy, not by way of having any statutory force." A little further, the learned Judges considered the letter of the 11th December 1946, which, as has been seen above, provided that seniority was to be determined in accordance with rule 6 and they observed as follows: "In doing so Government lost sight of the fact that rule 6 was then without statutory force in relation to vacancies prising after the 1st January, 1946, and that its application injured the rights of those non‑war service officers who had been recruited after that date." We are in no doubt whatsoever that the impression of the learned Judges, clearly conveyed in these passages, that the Rules had ceased to have statutory effect after the 1st January. 1946, is without foundation. The Rules as a whole are, to the best of our information, still in force, but the provisions requiring reservation of vacancies arising after the 18th September, 1943, for war service candidates was brought to an end on the 1st January, 1946. Thereafter, the instructions issued by the Government, read with the remaining provisions of the Rules of 1943, made it clear that war service candidates were not only eligible for appointment for any vacancies that might arise in the Punjab Government Services after the 1st January, 1946, but that they would be given preference in relation to such vacancies, and that their rights as to age, qualifications, and seniority, would remain as had been provided by the Rules. Mr. Bhatti for the respondent‑officers attempted to argue that by the cancellation of rule 3, the entire set of Rules was rendered void of all effect. We find ourselves entirely unable to entertain the argument. The Rules are statutory Rules made under the Constitutional Act of the time, and must be interpreted according to their terms. Rule 6 as is noted by the learned Judges of the High Court in their judgment was expressed in general terms to apply to all candidates with war service who were appointed to a Punjab Government service, and that clearly embraces the case of such a person as Manzur Ahmad. It remains to consider what place belongs to Manzur Ahmad in the cadre of the Punjab Forest Service Class I, within the contemplation of the Rules. As has been seen, rule 6 gives a wide discretion to the appointing authority in regard to the fixation of the seniority, and if the facts‑showed that the place given to him had been fixed with due consideration to the various factor enumerated in rule 6, we imagine that the scope for interference by a Court would have been reduced to nothing. But that is clearly not the case. What actually happened was this. Some three years after the issues of the last instructions of 1946, on the 16th February, 1949, the Punjab Government issued a fresh instruction to the Departments which purported to clarify "some confusion in the matter of concession admissible to ex‑service‑men on their appointment to civil posts". The clarification was expressed in the following terms :‑ "War service candidates appointed to war reserved vacancies shall he entitled to the concession of age, educational qualifica tions, pay, seniority and pension, while war service candidates appointed to non‑reserved vacancies shall be entitled to con cessions of age, educational qualifications, pay and pension only." In, the High Court, the learned Judges thought that by this "clarification" a mistake had been corrected which they found to lie in the instructions of the 11th December 1946, viz., that the Government had lost sight of two facts‑(1) that rule 6 was no longer of statutory force and (2) that the application of rule 6 injured the rights of those non‑war service officers who had been recruited after that date. With respect to the views of the learned Judges, we cannot see that any such mistakes appear from the printed papers. The reference to rule 6 is to be construed not as having the effect of giving validity to it, but merely as a reminder of its existence and that it possessed statutory force. As for the rights of persons appointed from among civilians to vacancies arising after the 1st January, 1946, as against those which had been assured to war service candidates at the time, when they offered their services to the armed forces, those were expressly saved by the references in the instructions of the 12th November 1945, and the 5th March 1946, where it is stated in express, terms that "all the vacancies that have been filled tempo rarily during the war should be reserved for candidates with war service" and later that war candidates should be given preference in filling future vacancies. The warning notice issued by the Provincial Public Service Commission is also in unequivocal terms, that is to say, it made no reference to a war reserved vacancy. Reference may also be made at this point to a memorandum issued in the Department of Revenue with reference to vacancies in the Punjab Forest Services Class I and II which appears as Appendix XIV. It is stated in this memorandum that no vacancies in this Service were reserved for war service candidates, but that preference is being given to such candidates. It follows from the foregoing discussion that the letter of the Chief Secretary dated the 16th February, 1949, conveyed an instruction which contravened the provisions of the statutory Rules of 1943, which were then and are still in force. The concession of seniority which was by this letter withdrawn from "war service candidates appointed to non‑reserved vacancies" wag one which was provided for them by the statutory Rules o 1943, and could not be withdrawn by a mere instruction. If the Government had desired to make the change, they could only have done so by a‑mending the Rules or making a fresh rule, and the question might then have been raised whether the withdrawal of a concession could be made with respect to persons already in service with retrospective effect. But in the present case, even after the issue of the instruction of the 16th February, 1949, the Government of the Punjab for a considerable period, allowed that Mr. Manzur Ahmad was senior to the two contesting respondent‑officers. In an official order fixing seniority issued on the 15th July 1949, his date of appoint ment to the Forest Service was shown as the 27th July, 1945, i.e., after deducting the period of his war service, while those of the two contesting officers was shown as the 1st April, 1946. Against' this, the latter officers made representations, which were rejected by the Government by express orders in 1950 and 1953. The order of 1950 supported the Government's decision by the argument that the earlier decision to reserve vacancies at the Dehra Dun Forest College (where these three officers received their training) for any qualified ex‑soldiers who might be available, was in itself conclusive proof that Manzur Ahmad was recruited against a de facto war service vacancy. The order of 1953, is in the following terms :‑ Government have thoroughly considered the question of determination of the seniority between Messrs Manzur Ahmad and Ihsanur Rahman Khan P. F. S. Class I Officers and find no justification for altering the decision communicated in their memo. No. 2264‑D.(F.), dated the 7th July 1950, (copy enclosed). In view of this, the seniority claim for Mr. Manzur Ahmad stands established." Thereafter, further representations were made by the contesting officers, and these proved successful when, on the 2nd November, 1954, the following order was made "In supersession of all previous orders on the subject, the Governor of Punjab is pleased to accept the memorials of Messrs Muhammad Ihsanur Rehman Khan and Muhammad Rafi and to fix their seniority in P. F. S. Class I over the War Service candidate Mr. Manzur Ahmad." When Manzur Ahmad represented against this order, he received a reply dated the 14th June 1955, from the Secretary in the Agriculture Department, in the following terms :‑ "Government have decided that no new fact has been brought on which necessitates re‑opening of this case. The represen tation of Manzur Ahmad, P. F. S. I., has accordingly been filed.

2. This officer has already gained so many other advantages that it would not be equitable to put him above the Officers who are senior to him in Service until and unless he were recruited specifically against a war reserved vacancy occurring before Ist January 1946.

3. The case already stands finally decided hence no represen tation should be entertained thereon as already ordered in Punjab Government latter No. 2729‑54/Gaz. dated the 23rd September 1954, from Chief Secretary to Government Punjab, to all Heads of Departments which should please be observed carefully in future." The writ petition was moved on the 15th July, 1956, and an argument was raised as to delay in seeking the relief, but‑ the correct position is that the writ jurisdiction of the High Court was only restored by the Constituent Assembly in October 1955, and we cannot see that there was inordinate delay in applying some nine months later. It is clear however that during a period of four years and nine months after the issue of the instruction M of the 16th February 1949, the Punjab Government itself did not apply it in terms to Manzur Ahmad's case. In the last order on his representation, reference is made to equity, on the basis of w "many other advantages" gained by Manzur Ahmad, but we have not been shown what such other advantages were, over and above those to which the Rules relating to war service candidates clearly entitled him. In our view, the simple fact that he writ confirmed on the 5th January, 1948, in an existing vacancy, and that the other two officers could not be confirmed in such vacancies until the 1st April, 1948, is in itself sufficient to give him permanent seniority over them. Mr. Bhatti attempted to argue on the basis of the Service Rules relating to the Provincial Forest Service Class I that seniority of the contesting officers should relate back to the date of their first appointment, but he had to admit that these Rules only favoured appointment on probation to the Service, which must necessarily mean to an existing vacancy in the cadre of the Service, whereas the contesting officers were appointed to temporary posts specially created which were outside the cadre of the Service, and they were appointed to these posts, not one probation, but purely temporarily. Therefore, in terms the rule referred to does not assist the contesting respondents. At various stages of the argument, Mr. Bhatti raised the question that on the date, namely, the 22nd January, 1946, when the appellant was selected to undergo training for appointment to the Service in question, he was over 25 years of age, and even on the date on which he joined the Army, viz., the 16th October, 1943, he was over 23 years of age, and as such disqualified under the Rules for appointment to the Service. He further argued that even allowing the appellant his full period of war service in relation to the date 22nd January 1946, he was still over age for entry into the Service. This is an argument which ignores the power possessed by the Government to condone a disqualification in respect of age, and it is in any case out of place to raise it in a petition which merely requires the laying down of a correct principle upon which the seniority inter se of three officers who were confirmed in the Government service some 13 years ago can be appropriately settled. We are not asked in the case to consider whether Mr. Manzur Ahmad is properly a member of the Service in question at all. The case has proceeded through out on the, basis that the question for decision was the order of seniority as between three confirmed Government officers. Some argument was addressed on the question of the place which Manzur Ahmad would have had in the Service "if the war had not intervened and he had qualified in the normal way". On the basis of his date of birth, it is argued that he could never have qualified in the normal way, and at the best, he should be treated as if he had been selected for the Service on the 16th October, 1943, which was the date on which he joined the Army. As we have said, we are not concerned with the question of whether in point of age Manzur Ahmad was at all qualified to be appointed to the Service which he at present holds, and to which he was appointed permanently some 13 years ago. But, even assuming for the sake of argument that Manzur Ahmad's selection for the appointment is to be dated notionally on the 16th October 1943, allowing for a period of two years and six months of training, which is the prescribed period, his date of appointment would not be any later than that of the contesting officers, and he could certainly claim the advantage of age. For these reasons, we allow this appeal and award the appel lant a writ of mandamus directing the Government of West Pakistan to give him seniority in the cadre of the Provincial Forest Service Class I on the basis that the ascertained date of his appointment to, the Service is the 27th July 1945. In view of the fact that the whole litigation is the result of variation in the instructions issued and specific orders made by the Province, of West Pakistan and its predecessors from time to time, we direct that the entire costs in both Courts, of the appellant as well as of the two contesting respondent‑officers, should be borne by the Province of West Pakistan. A. H. Appeal allowed.