1972 PLP 525 (PLC)

1 3 Forestors 35 21 6 15 4 Clerks 13 8 5 3 5 Forest Guards 9 5 5 -- ('This No includes two candidates under training at the Forest Ranger College, Upper Topa in 1949‑51 Course.)

3. Efforts will be made to fill up the remaining vacancies shown in column No. 6 of the above table among the War Service Candidates. (Sd) Allah Bakhsh, Chief Conservator of Forests. Office Notice.‑Two Forest Ranagers of 1949‑51 Course with War Service at this credit: (1) Muhammad Anwar Qureshi, 1949‑51 Course; (2) Mr. Nazir Ahmad 1949‑51 Course."

4. Since the stand taken in the "history of the Case" apparently did not appear to be correct, therefore, time was given to learned counsel for the Government to look into the matter in the light of the letter contents of which have been reproduced earlier and the public notice ibid.

5. Mr. Bhandari, Advocate then filed in Court another note of the Chief Conservator of Forests in which the stand now taken is as follows :‑ "Subject.‑‑Writ Petition No. 1398/63‑Mr. Saeed Ahmad, Forest Ranger (now P. F. S. II) v. The Province of West Pakistan. The above‑noted writ petition carne up for hearing on 16‑12‑1971. During the course of hearing Mr. Saeed Ahmad, F. R. (now P. F. S. II) presented a copy of letter No. 8390/B. 446 dated 1‑3‑1950 from the then Chief Conservator of Forests. Punjab, to the Chief Secretary, Government of the Punjab (copy placed at Appendix I) showing the availability of 3 War reserved vancancies of Forest Rangers at that time and claimed that he had offered his services against one of the above‑mentioned War reserved vacancy." Para. 4 of the "Information for candidates" advertised by the Panjab & N.‑W. F. P. Joint Public Service Commission, Lahore, `page 8 of the folder attached as Appendix II) indicates the existence of 3 War reserved posts out of the total ten number. The application of Mr. Saeed Ahmad, submitted by him at the time of selection by the Punjab & N.‑W.F.P. Joint Public Service Commission, Lahore also reveals that Mr. Saeed Ahmad had applied for as a .War service candidate (para. 24 of the applica tion form available in folder at Appendix II). However, office note at page 16 of the folder indicates that according to verbal instructions from the Superintendents, the Commission resummoned Mr. Saeed Ahmad‑a war service candidate‑who was interviewed on 13th June 1950, for interview on 14th June 1950. for selection of 7 stipendiary probationers for the post of Forest Rangers in the Punjab to be sent for training for the 1950‑52 Course at the Pakistan Forest College. Thus it would be observed that the selection of the appellant was never made as a war service candidate against a war reserved post. Furthermore the perusal of office note available at page 29‑D in file No. B. 446, Vol. III (copy at Appendix III) reveals that against the 3 war reserved vacancies, mentioned in letter No. 8390/B.446 dated 1‑3‑1950 the cases of the following 3 Forests Rangers were being considered for grant of war service benefits, who have also war service at their credit, and who have been appointed during the year 1948. A copy of printed seniority list of F. Rs., as it stood on 1‑7‑1971 is available to Appendix IV :‑ Serial No. Name of the Forest Actual date of appointment in the Forest Department Assumed date of appointment after granting benefits of war service 1 Mr. Muhammad Saeed Qureshi. 6‑1‑1948 8‑3‑1942 2 Mr. Muhammad Hafiz Khan. 6‑1‑1948 28‑6‑1944 3 Mr. Khizar Hayat Khan. 9‑1‑1948 9‑11‑1943 The above‑mentioned three Forest Rangers were given the benefits of war service and their assume dates of appointments " were fixed as noted against each in para. supra under the following office orders :‑ (1) No. 27/CCF dated 10‑5‑1952 (page b7 of file No. B‑446, Volume III). (2) No. 172/CCF dated 28‑2‑53 page 129 of file No. B‑446, Volume III). (3) No. 219/CCRWP dated 26‑1‑1959 (page 89 of correspon dence file). From the above it would kindly be observed that no war reserved. vacancy was available in the grade of Forest Rangers in the Punjab Forest Department during the year 1950 i.e.. the year during which Mr. Saeed Ahmad, was selected to undergo 2 years' training. (Sd.) Chief Conservator of Forests, Lahore Region."

6. From what has been reproduced above, it will be evident that though earlier the case put in Court by the Government was that no vacancy after 31‑12‑1945 was to be considered as a war service vacancy, the position later on adopted was that there were three vacancies shown in letter. dated 1‑3‑1950 as (still to be filled as) war reserved vacancies, but they were given to three other persons, namely, Muhammad Saeed Qureshi, Muhammad Hafeez Khan and M. Muhammad Khizar Hayat Khan who had been recruited in January 1948, and orders in that behalf were passed in their cases on 10‑5‑52, 28‑2‑1953 and 26‑1‑1959 respectively, and as such, the petitioners could not be absorbed even against the aforesaid vacancies. Another position adopted was that in the public notice (Le., the advertisement) it was indicated that there were ten posts, seven for outsiders and three for war service candidates. But the petitioner's selection, it was averred, was never made as a war service candidate or against a war reserved post; because h: was interviewed by the Provincial Public Service Commission first as a war service candidate on 13‑6‑1950 and was again resummoned for interview the next day on 14‑6‑50 when selection for outsiders was to be made. I have heard learned counsel for the parties and also sent for the Chief Conservator of Forests to appear in Court to explain his two contradictory reports. Case was fixed for 3‑2‑1972. On the said date, the Chief Conservator of Forests did not appear but sent his P. A. Mr. Muhammad Shamim, D. F. O. (Direction) who appeared and submitted that the three Posts referred to in the second note were not absorbed in the three war reserved vacancies mentioned in the letter, dated 1‑3‑50, but had already been absorbed in earlier vacancies. In this respect, he offered an apology tax behalf of the Chief Conservator of Forests. Statement of Mc. Muhammad Shamim, D. F. O. (Direction) as recorded in Court arrows that there were war reserved vacancies even much after 1945.

7. I have given my careful consideration to the facts and circumstances of the case and have reached the conclusion that the plea that the petitioner was not recruited against a war reserved vacancy or as a war service candidate is not correct. Firstly, in the public notice, dated 9‑5-1950, (i.e., the advertise ment in the newspaper hereinbefore reproduced), it was clearly written that there were three Posts reserved for war service candidates and now it is not the case of the Government that the said public notice was not factually correct. Secondly, the petitioner's original application was also in that capacity and for that post. Thirdly, the record shows that the petitioner's date of birth was of year 1924 and according to public notice (i.e., advertisement, the candidates should not have been more than twenty‑five years on 1‑5‑

50. From the point of view of his date of birth, the petitioner was evidently beyond twenty five years, on the relevant date. This age condition reliable up to thirty years only in favour of war service candidates. The fact that the petitioner was selected is a pointer of the position that he was treated and selected as a war service candidate because otherwise he was over age. Fourthly, the initial plea that there were no war reserved vacancies after 1945, has turned out to be incorrect inasmuch as, the letter, dated 1‑3‑1950, dearly falsified it and apart from that the P. A. to Chief Conservator conceded this point. He placed certain documents and letters or record which were marked as Annexs. R/1, R/2. R/3. R/4, R/5 and R/6. Since the point is now be in, conceded and even otherwise has also the support of the material tendered by Mr. Muhammad Shamim, P. A. to the Chief Conservator of Forests, I need not enter into i.e details of that material and need not take this matter any further. Fifthly, the position that against three tear reserved vacancies, indicated in letter, dated 1‑3‑50, three other persons were absoabed bas also been conceded as incorrect. Even otherwise, the creation of any particular to the of vacancies in a Province was, according to the relevant provision of the then Constitution, in the power of the Governor (or Provincial Government) and the number of such vacancies could always be increased by the aforesaid authorities, expressly or impliedly. The recruitment of the petitioner as a war service candidate, (after extending age), implied the creation of at least one more vacancy of that character and from another point of view implied a decision to extend the benefits of war service to him. Sixthly, having once considered him as a war service candidate, for the purpose of extension of age, it is inconsistent and incompetent on the part of the Government to later ‑ on take up the position that the petitioner was not 'a War service candidate on principle of focus poenitenriae as propounded in Shahbaz v. The State (PLD 1956 FC 46), Lt.‑Col. G. L. Bharhacharya v. The State and 2 others (PLD 1964 SC 503) and Pakistan v. Muhammad Ramayatullah Faruki (PLD 1969 SC 407). Seventhly, in the history of the case (hereinbefore referred to) another plea taken was that the petitioner had applied for claiming war service benefit late. The relevant date for claiming such benefits was allegedly, 31‑3‑1953, whereas the petitioner allegedly applied in that respect an 7‑11‑1957. This plea appears to be a mere excuse and had no merit inas much as, the benefit of war service had already been claimed by the petitioner in his original application filed in year 1950 for recruitment as a war service candidate and had, in fact, been granted to him by selecting him and to ignore that application or selection, at this stage is to ignore the realities. Moreover, Annexures R/2, R/3, R/4, R/5 and R/6 clearly show that the petitioner was already being considered as a war service candidate and any plea to the contrary now is not just and fair. Annex. R/2 is a letter, dated 5‑10‑1953 from the Secretary to Government, Punjab, Agriculture and Forest Department to the Chief Conservator of Forests, Punjab and states that the war service vacancies should be filled by suitable war service candidates and the target date for filling such vacancies had as a special case been relaxed by the Government. Annex. R/3 is a list of war service employees which, if read with Annexs. R/4 and R/6, (which is a letter from the Conservator of Forests, Rawalpindi Circle to the Chief Conservator of Forests, Punjab, Lahore), shows that the petitioner's name did appear in that list. Annex. R/5 is a letter .from the Chief Conservator of Forests, Punjab, Lahore to the Secretary to Government of Punjab, Agriculture and Forest Department, dated 31‑5‑1954, which shows that out of three vacancies mentioned in the letter, dated 1‑3‑1950, one vacancy had been filled up and the two were still available. This also points to the fact that the plea of the petitioner that he was recruited against one of the three vacancies mentioned in the letter, dated 1‑3‑1950, and advertised in the public notice In newspapers, as hereinbefore mentioned, is quite plausible and there being no rebuttal must be given effect to. This finding I am giving without scrutinizing the dates pleaded in the "history of the case" in this respect aid the question of correctness of the various dates averred therein is being left open.

8. When confronted with the above situation, learned counsel for the Provincial Government has argued that under Article 98 of the Constitution of 1962, a writ petition can be filed only about such terms and conditions of a Civil Servant as were specified in the said Constitution. He submitted that in reality what the petitioner in the instant case was agitating was his "seniority" : which was not a subject specified in the Constitution and, as such, the writ petition was not maintainable. He further submitted that for settling the seniority of Provincial Employees, there existed what is known as Civil Services (Appellate Tribunal) (hereinafter called the Tribunal) ads up under the West Pakistan Civil Services (Appellate Tribunals) Ordinance No. XXVIII of 1969, and that the petitioner should be asked to go to that Tribunal and the present writ petition, as such, should be dismissed. The contentions have no farce. The Constitution so far as relevant for the purposes of the present case has guaranteed two things. One is that the terms and conditions of a civil employee are to be regulated by rules (sea Article 178 read with Articles 234 and 225), and the second is a guarantee about remuneration and age of superannuation (sea Article 178 which is to be read to the same manner along with the other Articles mentioned earlier). In the present case, there are involved both the aforesaid Constitutional guarantees. Punjab Government Service (War) Amendment Rules, 1943, being there in the field, refusal of the Government to apply those rules to the petitioner tantamounts to violate Articles 178, 234 and 225 which say that the terms and conditions of an employee are to be regulated by relevant rules and if there were old rules in that respect, then they were to continue. Similarly, by the refusal on the part of the Govern ment to apply the relevant rules to the petitioner, there is bound to take place an adverse effect on his remuneration, pension and age for various types of superannuations. Thai present writ petition, which has an aim to safeguard these guarantees, and prays for reliefs in that behalf, is thus quite in the four corners of Article 98 ibid and the pleas taken with by the learned counsel for the petitioner in Para. 2 of this judgment fully justified its maintainability. As regards the Services Appellate Tribunal, it is necessary to note that no such Tribunal or the law under which it now functions, existed at the time when the present writ petition was filed. The writ petition, which was competent in all respects, when it was filed, cannot be thrown out by the aforesaid type of plea which is being advanced at this late stage. Moreover, a writ petition which is otherwise competent cannot be rejected simply because along with the other relevant and competent matters, one allied matter is that of seniority. It is well settled that it is always the, pith and substance of a case which is to be seen for the purpose of examining, its maintainability and not matters which arise incidentally or in an allied manner.

9. The next point argued by the learned counsel for the Government was that since the present case involved disputed questions of fact, therefore, this Court should not go into the matters arising herein. The contention has no force. The question involved herein is not of a "disputed nature" in that sense of the term but is of such a nature in which the true facts were either withheld or were not correctly presented. After the facts were correctly stated, there turned out to be no dispute, inasmuch as, learned counsel for the Government and the representative of the Chief Conservator of Forests themselves stated that on their own part they were not in a position to take any firm stand as to whether the petitioner was or was not a war service candidate. The peti tioner's contention, it will thus appear was not "a disputed question of fact" in that sense in which the term "disputed question of fact" is generally understood. Moreover, the plea under consideration was being raised by the learned counsel for the Government for the purpose of contending that the petitioner should either file a civil suit or go to the Services Appellate Tribunal. To ask the petitioner to file a civil suit after his writ petition has remained pending in this Court for the last eight years, is not justified. As regards the plea of going to the Services Appellate Tribunal, I have already given my views in that respect.

10. The upshot of the above discussion is that the writ petition is accepted. Refusal on the part of the Provincial Government to consider the petitioner as a war service candidate or selected against a war service vacancy is hereby declared to be without lawful authority and of no legal effect against the petitioner, and it is hereby further declared that he was a war service candidate recruited against a War Service vacancy and is eligible to be so treated in all relevant matters of his service. There will be no order as to costs. Petition accepted.