P L D 1970 Supreme Court 279 (PLP)

SAJIAD AHMAD, J.

The Inspector-General of Police, West Pakistan, has brought this appeal by special leave, against the decision of a Division Bench of the High Court, Peshawar Seat, made on a writ petition filed by the respondent Muhammad Idris Khan, an officiating S. I. Police, under Article 98 of the 1962 Constitution, hereinafter described as the Constitution, directing that he (respondent) was entitled to be confirmed as a Sub Inspector and that his seniority was to be back-dated with effect from the 29th of August 1955, i.e. the date on which his name was entered on "E" List as an A. S. I. maintained by the Department for eligibility for promotion to the substantive rank of a Sub-Inspector. The short point on which leave was granted to the appellant by this Court was whether the High Court was right in granting this relief to the respondent despite the constitutional bar as contained in Article 98(3)(b) of-the Constitution. In his writ petition the respondent contended that he was governed by the N: W. F. P. Police Rules and continued to be so governed as a matter of option exercised by him after the integration of West Pakistan. He had joined as a Foot Constable in 1937 in the Police Force of the former Frontier Province and was promoted as an A. S. I. in 1951 after he had passed the Rangu Police Training Course which had cleared his way for promotion as a substantive Sub-Inspector, subject to seniority, efficiency and honesty as provided by rule 13.1 of the N: W. F. P. Police. Rules. In 1958, the appellant (I: G. Police, West Pakistan) ordered that for promotion and confirmation as a Sub-Inspector it was obligatory for the A. S. Is. to pass the Upper School Course at Sihala which the respondent did not attend and his confirmation was, therefore, withheld and persons junior to him who did pass the Sthala course were promoted over his bead. His grievance in essence in the High Court was that the appellant's direction that he should pass the Sihala course for his confirmation as a Sub-Inspector and the withholding of a confirmation for not having done so and his consequent relega tion to a junior position, were without lawful authority. Assuming that according to the respondent's terms and conditions of service as ordained in the N.-W. F. P. Police Service Rules which governed his case, the passing of the Sihala course by him was not a necessary pre-requisie for his confirmation, a point which need not be decided here the question is: Has the High Court acted within its lawful authority in issuing a writ in the respondent's favour to enforce his confirmation and seniority to its writ jurisdiction under Article 98 aforesaid? Article 98(3)(b) reads as follows :- "An order shall not be made under clause (2) of this Article- (b) on application made by or in relation to any other person in the service of Pakistan in respect of his terms and conditions of service, except a term or condition of service that is specified in this Constitution." Peer Masoom Shah, the learned counsel for respondent No. 1, frankly conceded that it is not possible to bring the respondent's case for his promotion, confirmation and seniority within the ambit of Article 98 as the respondent's terms and conditions of service relating to these matters are nowhere specified in the Constitution. As held by this Court in the case of Dr. Muhammad Amin Durrani v. The Government of West Pakistan and another (P L D 1966 S C 99), Article 98 of the Constitution confines the jurisdiction of the High Court as regards the enforcement of conditions of service of public servants only to those terms and conditions which are specified in the Constitution. Specification of such terms and conditions is found in scattered Articles. Article 178 in subsection (2) requires that the terms and conditions of public servants shall be as prescribed by rules, except in they case of persons whose terms and conditions of service are, specified in the Constitution itself. By subsection (3) of the same Article, the Constitution requires that such rules should provide that once appointed, the terms and conditions of the service of a public servant are not varied to his disadvantage in so far as they relate to remuneration or age fixed for superannuation, and this may possibly be regarded as specification for the purpose of Article 98." The same view was affirmed in a subsequent decision by this Court reported as Muhammad Akhtar Hussain v. Govern ment of West Pakistan (P L D 1970 S C 146) wherein it was held that in the case of a public servant whose terms and conditions of service are not specified in the Constitution, only those that relate to remunera tion or age of superannuation are guaranteed under Article 178 of the Constitution and that other terms and conditions may be varied by rules made by the competent authorities. To cross this legal hurdle, the learned counsel for the respondent submitted that the action of the appellant in withholding the respondent's confirmation, to which he was legally entitled, has also affected his remuneration, because without confirmation the respondent is being deprived of his scale of pay as a substantive Sub-Inspector which carries a special grade with a ceiling at Rs. 350 and annual increment of Rs. 15 as against the grade of an unconfirmed Sub -Inspector, which begins at Rs. 175 with an increment of Rs. 10 per annum up to Rs. 215 with an annual increase of Rs. 15 thereafter and a ceiling at Rs.

315. The argument though specious, is without substance. So long as the respondent is not a confirmed Sub-Inspector, he cannot lay claim to the' emoluments of that post. His remuneration is legally guaranteed only for the post which he is holding and not the one to which He may in future be promoted. As he cannot enforce his promotion or confirmation through writ jurisdiction, that being not a term and condition of his service which is either specified in the Constitution or guaranteed by the rules made under the Constitution, it is futile to contend that he can enforce a claim to his remuneration in writ jurisdiction to which he may become entitled in case of his promotion. As the reliefs given by the High Court in this case to the respon dent fell outside its writ jurisdiction as contained in Article 98 of the Constitution, this appeal has to be accepted and the writ issued by the High Court is hereby recalled. There shall, however, be no order as to costs. It may, however, be observed that the respondent has filed an application in this Court, stating that certain persons have been promoted as substantive Sub-Inspector, although like him, they have not passed the Sihala Upper School Course. If that is so, it is only fair that the authorities concerned should re-examine the respondent's case on the same plane so as to avoid any feeling of unfair discrimination. K. B. A. Appeal accepted.