P L D 1969 Supreme Court 407 (PLP)

SAJJAD AHMAD, J.‑The Government of Pakistan has preferred this appeal, by special leave, against the decision of a Division Bench of the High Court of West Pakistan, Karachi, made in writ jurisdiction, whereby the order of the President of Pakistan dated the 26th of August 1962, withdrawing his earlier order of the 1st of October 1959, made in favour of the respon dent Muhammad Himayatullah Farukhi (now dead and re presented by his legal heirs), fixing his basic salary at Rs. 1,000 per mensem with effect from the 8th of June 1948, was held to be without lawful authority. The brief facts are as follows:‑ Mr. Himayatullah Farukhi who was a permanent member of the Madras Civil Service, on migration to Pakistan, was appointed in the General Administrative Reserve (abbreviatively called G. A. R.) He joined service in the Ministry of Economic Affairs on the 8th of June 1948, on the assurance allegedly given to him that he would get a starting salary of Rs. 1,000 per mensem in the time scale applicable to the G. A. R. Service. Subsequently, a formal office order was issued on the 6th of November 1948, fixing his initial pay at Rs. 620 per mensem in the scale of Rs. 550‑35‑900‑40‑1100 with a specific mention that it was without prejudice to his representation for the fixation of his initial pay at a higher level. His representation was turned down by the Prime Minister of Pakistan on the 11th of April 1958, except that he was given the benefit of doubt for the loosely- worded order of his reversion at one stage as Under‑Secretary and it was directed that he was to be treated as Deputy Secretary during the period of his reversion as Under‑Secretary. Himayat ullah Farukhi, however, continued to press his representation which was finally accepted by the President of Pakistan on the 1st of October 1959. A communication was issued by Mr. Q. U. Shahab, Secretary, to the President, conveying the President's .:order as follows:‑ Subject ‑Representation of Mr. Md. H. Farukhi, for re -fixation of his pay. President's Secretariat (President's House). Agreeing with the views of the Communications Ministry, the President has accepted the appeal of Mr. M. H. Farukhi for re‑fixation of his basic pay in G. A. R. at Rs. 1,000 p. m. effective from 8‑6‑1948 including payment of arrears and has directed that further necessary action may be taken by the Ministry of Railways and Communications (C & T Division) in direct consultation with the Ministry of Finance." The communication was endorsed by the President's Secretariat to the Secretary, Railways and Communications, who, in turn, endorsed it to the Deputy Secretary, Establishment. The photostat copy of the communication at page 13 of the record, shows that it bears the signatures of Mr. Farukhi which he appended on it on the 7th of October 1959, in token of the receipt or information of that communication. The Ministries concerned failed to implement this order which led the respondent to file a writ petition in the High Court which was met with the plea that the President had on the 26th of August 1962, withdrawn his order of the 1st of October 1959. As already stated above, the High Court has found the subsequent order to be without lawful authority, on the main ground that it was passed without affording an opportunity to the respondent Himyatullah Farukhi, of being heard, although as alleged by ‑the Government, the decision of the President was based on question of fact and circumstances, including certain questions relating to the grant of Provident Fund and fixation of his pension on account of his past services in Madras. A further direction was made in the judgment of the High Court that it was up to the Central Government to give a hearing to the petitioner if it still intended to rescind the order passed on the 1st of October 1959. Special leave to appeal was granted by this Court on the 28th of March 1966, to consider the contention of the Government that the order of the 1st of October 1959, did not create any ‑vested right in the respondent as it had never been communicated to him. Mr. Shah Jamil Alam, the learned counsel for the appellant, has urged before us that the order of the President dated the 1st of October 1959, had not become effective as it was not duly communicated to Mr. Himayatullah Farukhi. It was also argued that the President's order fixing the respondent's salary at its. 1,000 per mensem suffered from a flaw as it had not been passed in previous consultation with the Ministry of Finance, in terms of rule 10 of the Rules of Business of the Government of Pakistan (1950), although the action directly affected the‑‑finances of the Federation. The first contention has to be rejected outright in view of the facts already mentioned. The order of the President as conveyed by his Secretary was forwarded by the Establishment Secretariat to the Ministry of Communications and Railways which, in due course, was received by the respon dent as per his signatures on that order. We cannot accept the suggestion of the learned counsel for the appellant that the respondent somehow surreptitiously managed. to sign this communication which was received in the Ministry of Communications in token of its receipt by him. The argument of Mr. Shah Jamil Alam, that since the order of the President was not communicated to the respondent "locus poenitentiae", i.e., the power of receding was available to the President to revoke the order, was based on two decisions of this Court from which he sought to derive support. The first is the case of Shahbaz v. The State (P L D 1956 F C 46) in which the Government had ordered the remission of the prison sentence of Shahbaz with: effect from the 14th of August 1954, but before the order was acted upon, it was rescinded on the 13th of August 1954. It: was held that the order cancelling the remission was not open to any objection. In the case of Lt.‑Col. G. L. Bhattacharya v. The State and 2 others (P L D 1964 S C 501), which was also a case of remission of sentence under section 401 of the Criminal Procedure Code, it was held that the remission of sentence becomes effective when duly communicated to the Superintendent of Jail, who is duty bound to give effect to it in accordance with the Prisoners' Act. There can hardly be any dispute with the rule as laid down, in these cases that apart from the provisions of section 21 of the General Clauses Act, locus poenitentiae, i.e., the power of receding till a decisive step is taken, is available to the Government or the relevant authorities. In fact, the existence of such a power is necessary in the case of all authorities empowered to pass orders to retrace the wrong steps taken by them. The authority that has the power to make an order has also the power to undo it. But this is subject to the exception that where the order has taken legal effect, and in pursuance thereof certain rights have been created in favour of any individual, such a order cannot be withdrawn or rescinded to the detriment of those rights. In the present case, the order fixing the basic. salary of Rs. 1,000 per mensem for the respondent Himayatullah. Farukhi was made by the President on the 1st of October 1959; when the 1956‑Constitution had been abrogated and the country was governed: by the Laws (Continuance in Force) Order, 1958. Under clause (11) of Article 6 of that Order, which was introduced by the Laws (Continuance in Force) (Six Amendment), Order, 1960, it was provided that nothing in that Article or in. any rule or enactment relating to conditions of service, shall be construed to limit or abridge the power of the President or a Governor to deal with the case of any person in the service of Pakistan in such manner as may appear to him to be just and equitable, provided that where anything in this Article or in any such rule or enactment is applicable to the case of any person,, the case,, shall not be dealt with in any manner less favourable to his that provided by this Article or the rule or enactment. Acting under this provision the President in the exercise of hiss supra‑constitutional powers fixed the salary of the respondent at Rs. 1,000 per mensem, notwithstanding the fact that his earlier representation for the same purpose had been rejected by the Prime Minister of Pakistan. The order of the President was duly com municated to the Ministry of Communications and the respondent and its implementation thus ensured became a part of the terms and conditions of the service of the latter (Himayatullah Farukhi) relating to his remuneration. By the time that the President made the second order on the 26th of August 1962, revoking the earlier one, the Constitution of the Islamic Republic of Pakistan, 1962, had been enforced which contained a protective provision in Article 178 thereof, that the terms and conditions of service of a person in the service of Pakistan as regards his remunera tion and age, shall not be varied to his disadvantage. The President's subsequent order was, therefore, void on that basis. The second contention of Mr. Shah Jamil Alam that the first order of the President suffered from the infirmity of not having been made in consultation with the Ministry of Finance as B required by rule 10 of the Business Rules (1950), is without any practical effect. There is no reason to think that when the President made the first order, he was not fully posted with the facts of the case, including the circumstance that the Prime Minister had already rejected the respondent's representation. If in spite of that the President accepted the respondent's representation, obviously he did so, consciously. But even if the Finance Ministry had not been consulted, it did not have any effect on the validity of the President's order. For the reasons stated above, we are in agreement with the High Court that the order of the President dated the 26th of August 1962, reversing 'his earlier order trade in favour of Himayatullah was without lawful authority. It has been pointed out at the Bar that Himayatullah who died on the 17th of November 1967, had retired from service on the 1st of September 1965. He had during the period of his service starting from. 8‑6‑48 while officiating as Deputy Secretary from 3‑9‑52 to 4‑11‑53 and again when on deputation with the United Nations from the 25th of January 1954 to the 1st of January 1956, drawn his salary equivalent to or more than his time scale salary at the basic pay of Rs. 1,000 per mensem. It would be for the relevant authorities to work out the amount of arrears due to him or unpaid to him, which will now be realizable by his legal heirs, by giving effect to the President's order of the 1st of October 1959, and disregarding that made on the 26th of August 1962, the latter being without lawful authority. The appeal is dismissed with no order as to costs. HAMOODUR RAHMAN, J.‑‑I agree. MUHAMMAD YAQUB ALI, J.‑I agree ABDUS SATTAR. J.‑I agree. M.R. KHAN. J.‑I concur the order proposed by my learned brother Sajjad Ahmad, J. to be made in this appeal, but my reasons in support of that order are somewhat different. For a proper appreciation of the reasons I want to give, it is necessary to state the facts of the case briefly. The respondent Muhammad Himayatullah Farukhi (since deceased) formerly belonged to the Madras Civil Service. On his application for appointment to the General Administrative Reserve, shortly called G. A. R., the Establishment Branch of the Cabinet Secretariat of the Government of Pakistan issued the following office memoradum on the 7th ‑June 1948 :‑ "With reference to his application for appointment to the G. A. R. the undersigned is directed to say that, pending a formal offer being made, Mr. M. H. Farukhi has been posted as Under‑Secretary in the Ministry of Economic Affairs. He is therefore, requested to report for duty in that Ministry, Block' No. 44, near the Assembly Building on 8th June 1948 at 10 a. m." In pursuance of that office memorandum, Mr. Farukhi joined his appointment the next day. In terms of the said office memo randum, a formal Office Order settling the terms and conditions of his appointment was made on the 6th November 1948 as follows:‑ "Office Order No. 79/ADMN. Mr. Md. Himayatullah Farukhi, M. A. (lions.) has been appointed as Under‑Secretary to the Government of Pakistan, Ministry of Economic Affairs, with effect from 8th June 1948, on the terms and conditions specified in O. M. No. 4 (5) E. O./48, dated the 19th October 1948. As stated therein:‑ (1) His initial pay will be Rs. 620 in the scale or Rs. 550‑35‑900‑40‑1100. He will also be entitled to a special pay of Rs. 100 in addition to the scale pay. This is, however, without prejudice to his representation to the Cabinet Secretariat for fixation of his initial pay at a higher level in this stage. (2) He will be entitled to usual dearness allowance and to become a subsecriber to a Provident Fund (to which Government will also contribute on his behalf). (Sd.) Nazir Ahmad, Joint Secretary. Copy to:‑ (1) The Accountant‑General, Pakistan Revenues, Karachi (Reference Notification No. 9(7)EA/Admn/48, dated 6‑11‑1948). (2) Md. H. Farukhi, Esquire, M. A. (lions.), Under‑Secretary to the Government of Pakistan, Ministry of Economic Affairs. (3) Cashier, Ministry of Economic Affairs. By order etc. (Sd.) K. Mushtaq Illahi, Assistant Secretary to the Government of Pakistan." Undisputedly, this formal Office Order was issued with the concurrence of the Ministry of Finance of the Government of Pakistan. The right to make representation for fixation of his initial salary at a higher level having been conceded in the said formal Office Order, Mr. Farukhi went on making such re presentations, but did not succeed. His representation to the then Prime Minister for fixation of his initial salary at Rs. 1,000 per mensem was rejected by the Prime Minister on the 11th April 1958. Thereafter, Mr. Farukhi made a representation to the President of Pakistan on the 10th June 1958, for the same purpose. On this representation, the President was pleased to ,make the following order on the 1st October 1959:‑ "Agreeing with the views of the Communication Ministry the President has accepted the appeal of Mr. M. H. Farukhi for re‑fixation of his basic pay in G. A. R. at Rs. 1,000 per month effective from 8‑6‑1948, including payment of arrears and has directed that further necessary action may be taken by the Ministry of Railways and Communication (C & T Division) direct consultation with the Ministry of Finance." In the implementation stage of this order of the President. the Ministry of Finance took an ojection and referred back the matter to the President for reconsideration. Thereupon the President withdrew his earlier order made on the representation of Mr. Farukhi. Mr. Farukhi then made a writ petition in the High Court of West Pakistan, Lahore, calling in question the validity of the President's subsequent order recalling his earlier order fixing his initial salary at Rs. 1,000 per mensem. The High Court allowed the writ petition and held the impugned order to be without lawful authority and of no legal effect as the same was passed without giving Mr. Farukhi an opportunity of being heard. On the petition of the Government of Pakistan, leave was granted in this case to consider if the President's order of the 1st October 1959, created any vested right entitling Mr. Farukhi to get an initial salary of Rs. 1,000 per mensem. Before I proceed to consider this question, it would be useful to examine the state of law obtaining at the material time, namely, the 1st October 1959, on which date the President accepted the representation of Mr. Farukhi. Pursuant to the Martial Law Proclamation of the 27th October 1958, the President made the Laws (Continuance in Force) Order, 1958. By Article 4 of this Order, all laws and rules in force before the abrogation of the 1956‑Constitution, other than the ones excepted in that Article, were kept alive. Thus, the Rules of Business as in operation before the abrogation of the 1956‑Constitution continued to remain in force. Neither the Laws (Continuance in Force) Order, 1958, nor the Constitution of 1956 conferred upon the President any plenary power to deal with the case of any person in the service of Pakistan in the manner appearing to him to be just and equitable. Such plenary power was available to the Governor. General and Governors under section 241 (5) of the Government of India Act, 1935, which was as follows:‑ "241 (5). No rules made under this section and no Act of any Legislature in India shall be construed to limit or abridge the power of the Governor‑General or a Governor to deal with the case of any person serving His Majesty in a civil capacity in India in such manner as may appear to him to be just and equitable: Provided that, where any such rule or Act is applicable to, the case of any person, the case shall not be dealt with in any manner less favourable to him than that provided by that rule or Act." A provision, like the provision of the said section 241 (5), was incorporated in the Laws (Continuance in Force) Order, 1958, for the first time on the 25th October 1960, by an amendment of the said Order. By that amendment, clause (11) was added to Article 6 of the Laws (Continuance in Force) Order. The added clause (11) read thus: "Nothing in this Article or in any rule or enactment relating to conditions of service shall be construed to limit or abridge the power of the President or a Governor to deal with the case of any person in the service of Pakistan in such manner as may appear to him to be just and equitable: Provided that where anything in this Article or in any such rule or enactment is applicable to the case of any person, the case shall not be dealt with in any manner less favourable to him than that provided by this Article or the rule or enactment." As the said clause (11) was introduced by an amendment. on the 25th October 1960, the power under that clause was no available to the President when he made an order on the 1st October 1959, fixing the salary of Mr. Farukhi at Rs. 1,000 p. m. The President, however, had power that time to deal with the F case of a Government servant in the exercise of his executive authority conferred by Article 41 of the 1956‑Constitution, but that power was exercisable in accordance with the provisions of the Rules of Business. Rule 10 of the Rules of Business, as was in force at the material time i.e. the 1st October 1959, was as follows:‑ "No Division shall, without previous consultation with the Ministry of Finance, authorise any orders, other than orders. fn pursuance of any general or special delegation made by the Ministry of Finance, which will affect directly or indirectly, the finances of the Federation . . . . . " This rule required consultation with the Ministry of Finance before settling the terms and conditions of service of a Government servant if such terms and conditions were to affect the finances of the Federation. This was the state of law at they relevant time. Referring to the said rule 10 of the Rules of Business, Mr. Shah Jamil Alain, learned counsel for the Government of Pakistan (appellant) submits that, in the instant case, the Ministry of Finance was not consulted in the matter of fixation of Mr. Farukhi's salary and, as such, the President's order allowing Mr. Farukhi's appeal did not confer on him any right to get an initial u salary of Rs. 1,000 p. m. Although consultation with the Minister of Finance is obligatory under rule 10 of the Rules of Business in a case involving financial implication, the said rule, in the facts of the present case, does not appear to stand in the way of Mr. Farukhi's right to get an initial salary of Rs. 1,000 p. m. as allowed by the President. As already stated, Office Order No. 79/ Admn., dated the 6th November 1948, fixing the initial salary of Mr. Farukhi at Rs. 620 p. m. in the scale of Rs. 550‑‑35‑900‑40‑1100 was issued with the concurrence of the Ministry of Finance. In that Office Order, it was clearly stated that the fixation of pay as above was "without prejudice to his representation to the Cabinet Secretariat for fixation of his initial pay at a higher level in the stage". Thus the said Office Order issued with the concurrence of the Ministry of Finance, permitted K Mr. Farukhi to get his initial salary fixed by representation to the Cabinet Secretariat. Mr. Farukhi made a representation to the President who, besides being the executive head, was the head of the Cabinet Secretariat. Thus the representation made by Mr. Farukhi to the President, the head of the Cabinet Secretariat was entirely in accordance with the clearance given to him in the Office Order No. 79/Admn., dated the 6th November 1948, issued with the concurrence of the Ministry of Finance. That being so, the Ministry of Finance could not turn round and say that the President's order should be recalled as that Ministry had not been consulted. As. Mr. Farukhi's representation to the President for fixation of salary at a higher level was just in accordance with the aforesaid Office Order issued with the concurrence of the Ministry of Finance, it can be reason ably said that this was sufficient compliance with the require ment of rule 10 of the Rules of Business in the instant case. The Order of the President fixing Mr. Farukhi's salary at Rs. 1,000 p. m. was, in fact, communicated to him and he signed the order as shown to him by the Secretary of his Department. In these facts and circumstances, Mr. Farukhi acquired a right to an initial salary of Rs. 1,000 p. m. with the passing of the order of the President on his representation. I entirely agree with the contention of Mr. Shah Jamil At am that whenever a case involves expenditure from the Central Finances, consultation with the Ministry of Finance is obligatory under rule 10 of the Rules of Business. If that be not so, the Central finances might be adversely affected by an order of any officer of any rank who is empowered under the Rules of Business to issue orders in the name of the President. Rule 10 of the Rules of Business is a safeguard against such risk. in the present case, however, the question of non‑compliance with rule 10 of the Rules of Business does not arise inasmuch as Mr. Farukhi moved the head of the Cabinet Secretariat exactly in accordance with the concurrence of the Ministry of Finance. Rule 10 of the Rules of Business thus having been complied with in the instant case, the President's order sanctioning higher initial salary to Mr. Farukhi conferred a right on him to get such salary. This right was protected by Article 234 of the 1962‑Constitution and that right, in view of Article 178 (3) of the said. Constitution, was not liable to be varied to his disadvantage. It is for these reasons that I agree that the impugned order recalling the President's order, dated the 1st October 1959, fixing. Mr. Farukhi's salary at Rs. 1,000 per mensem is without lawful authority and of no legal effect. K. B. A. Appeal dismissed.