P L D 1965 Supreme Court 106 (PLP)

S. A. RAHMAN, J.‑This is an appeal by special leave from an order of the High Court of West Pakistan, passed on a petition of the respondents, in writ jurisdiction. The respondents succeeded in obtaining the direction they had asked for from the High Court and the Government of West Pakistan and the Accountant‑General, West Pakistan, were granted leave to appeal as the case involved interpretation of certain Service Rules and as the decision in this case was likely to affect a large number of servants of the Provincial Government. The High Court had declined to grant a certificate for an appeal on the view that the order in question was almost a consent order. Five of the respondents were appointed and confirmed in the Provincial Service of Engineers, Class II, and promoted to officiate as Executive Engineers on the dates mentioned in Annexure "A" to their petition in the High Court. The remaining seven respondents entered service as temporary Assistant Engineers in the same scale of pay as appertained to the Class 11 service of Engineers, on dates mentioned in column 3 of the same annexure. They too received appointments as officiating Executive Engineers on the dates specified in that annexure. They were subsequently confirmed as temporary Assistant Engineers. All the respondents, when appointed to officiate as Executive Engineers, received the minimum of the scale of pay applying to Class I Engineers, namely, Rs. 600 per month. They claimed that they were entitled to annual increment at the rate of Rs.40 in the senior time‑scale of the Punjab Service of Engineers, Class I, but the Accountant‑General, West Pakistan, ruled that this claim was not tenable in view of the interpretation placed on certain rules by the Government. Reliance was, in this connection, placed on rules 8, 11 and 11‑A of the Punjab (Gazetted) Civil Services (Revision of Pay) Rules, 1951, read with certain circular letters issued by the Provincial Government, namely, those appearing at pages 24, 42, 47 and 93 of the record. The respondents' case, on the contrary, was that none of these rules was applicable to them and that the matter fell to be decided under rules 4.7 and 4.9 of the Civil Service Rules (Punjab), Vol. I, Part I, which were the general provisions governing the situation. It appears that a statement was filed on behalf of the appellants‑ in the High Court in answer to the writ petition in which it was conceded that rules 8, 11 and 11‑A were, in terms, not applicable to the case of the respondents and this was also conceded at the time of arguments by learned counsel who appeared for the appellants in the High Court. The plea of the respondents therefore that the general Civil Service Rules 4.7 and 4.9 were attracted to their case, was accepted by the High Court and it was held that the respondents were thereunder entitled to claim increments in the senior time scale for every year of service they put in as officiating Executive Engineers. It has been sought to be explained that the admission in the High Court was made by the learned counsel for the appellants on a misapprehension of the correct position and that any concession on a point of law made by counsel could not bind the B party he represented. The written reply filed in the High Court was also said to have been sent by mistake to the Court instead of an amended draft which was intended to have been forwarded to that Court. We, therefore, allowed the interpretation of the relevant rules to be canvassed before us on the merits. A few observations as to the history of the Engineering service in the Province may be useful for the purpose of this case. It appears that prior to 1947, only the Provincial Service of Engineers existed in the Province and the members thereof were governed by the P. S. E. (Buildings and Roads Branch) Rules, 1942. The rules contemplated only two types of posts, namely, those of Executive Engineers and Assistant Executive Engineers. The former were entitled to salary in the senior scale and the latter in the junior scale. In the year 1947, a P. S. E. Class II service was created by Government and its scale of pay was fixed at Rs. 250‑25‑550/ 25‑750. No rules for this service have yet been framed. In the year 1951, the Punjab (Gazetted) Civil Services (Revision of Pay) Rules, 1951, were notified. They were to take effect from 1‑1‑1950. It was between the years 1947 and 1950, that the respondents joined service as temporary Assistant Engineers, with the exception of the 7th respondent who had joined earlier in 1945. Some of the respondents were later confirmed in the P. S. E. Class II service while the remaining respondents continued in temporary service. Later, they were appointed officiating Executive Engineers and the question then assumed practical importance as to which rules should be held applicable to them in the matter of drawing increment. On 4‑3‑63, a new rule 8‑A was inserted in the 1951 Rules referred to above and it was sought to be given retrospective effect from 1‑1‑50 when those Rules had come into force. It is not claimed on behalf of the appellants that the 1942 Rules had any relevance to the case of the respondents. Rules 8, 11 and 11‑A of the 1951 Rules were supposed to be to have some bearing on the case. Rule 8 is in the following terms:‑ "8. In the case of P. S. E., Class I, Services, senior scale prescribed for these Services shall normally be admissible in the 8th year of service. If an officer in the junior scale is appointed to the senior scale before he enters the year of service in which the senior scale is normally admissible, he shall draw the minimum of the senior scale but the next increment in that scale shall not accrue to him until he enters the year of service next following the year in which the senior scale is normally admissible." It is conceded that on the language of this rule, the respondents are not covered by it. They do not belong to Class I service and the rule, on the face of it, only concerns itself with promotion of the junior scale members of that class, to posts in the senior scale. Rules 11 and 11‑A, it is further admitted, are intended to regulate the initial pay and to provide for calculation of the service of certain officers who held posts included in Schedule I1I to the Rules. The post of Executive Engineer is not included in that Schedule and it is therefore clear that, in terms, the Rules cannot be invoked in resolving the questions that arise in the present case. The admissions made in the High Court, on behalf of the appellants, in this regard, appear to have solid foundation. It was suggested that in the absence of any statutory rule applying to the respondents' case, the Government had made provision by issuing circular letters by which it was made clear that the provisions contained in rules 8, 11 and 11‑A of the 1951 Rules would be applied mutatis mutandis to the respondents. Our attention was invited, in this connection, by Mr. Sidhwa, the learned counsel for the appellants, to a letter of the Finance Secretary to the Government, Punjab, dated the 10th of December 1952, appearing at page 93 of the record. This letter merely explains that unless specifically provided to the contrary, temporary posts which form temporary additions to the cadre of a Provincial or Subordinate Service will carry the same scales of pay as have been prescribed for the corresponding permanent posts in that service and that the pay of the holders of such posts in the prescribed scale will also be fixed in accordance with the Punjab (Gazetted) Civil Services (Revision of Pay) Rules, 1951. Another document referred to, appears at page 42 of the record and is also from the Finance Secretary to the Punjab Government, addressed to the Chief Engineers in the Province. This letter explained as to how the junior and senior scales prescribed under the 1951 Rules, will run and how the year of service should be determined for the purpose of rule 8, in the case of officers who were appointed to a junior scale post in Class I service, by promotion from a Class II post, after the 1st January, 1950. This letter obviously cannot cover the case of the respondents who were not promoted from Class II to a junior scale post in the Class I. In their case there have been ad hoc appointments as officiating Executive Engineers. The third document on which Mr. Sidhwa relies, appears at page 24 of the record. This sets out rules 11 and 11‑A of the 1951 Rules. As has been remarked above, they do not, in terms, govern the case of the respondents. It is argued, however, that if these rules are read along with the letter of the Finance Secretary to the Accountant‑General, Punjab, appearing at page 47, some assistance may be gained thereby in deciding the questions in issue. This letter appears to be a reply to the Accountant‑General's letter to the Finance Secretary, printed at pages 45‑46 of the record. The letter raised only two questions as to how the service rendered by an officer as temporary Engineer prior to his appointment to P. S. E. Class I post, was to be taken into account for the purpose of rule 8 and how the non‑gazetted service rendered as overseer, by an officer, before his appointment to a P. S. E. Class I post, was to be treated for the purpose of the said rule. There is no question of the respondents having been appointed to a Class I post, as such. In their case, the appointment was ad hoc as officiating Executive Engineers and these letters therefore do not seem to have any pertinence to their case. In any event, no letters including the one at page 93 issued by the executive r authorities could take the place of properly framed Rules and the could not override any general rules of the service that had relevance. In the absence of any specific rules governing the conditions of' service of the respondents, they pressed in aid rules 4.7 and 4.9 of the Civil Service Rules, Punjab, Vol. I, Part 1. The first of these rules provides to the effect that an increment shall ordinarily be drawn as a matter of course unless it is withheld. The second of these rules lays down, inter alia, that all duty in a post on a time‑scale counts for increment in that time‑scale. The inference was therefore legitimately drawn that in the absence of any specific rules to the contrary, the respondents who were appointed as officiating Executive Engineers in the scale of Class I service, would be entitled to draw the increment of that scale, as a matter of course, unless it was withheld for good reason. It is not the case of the appellants that any one of the respondents' conduct justified the with holding of increment. These rules, therefore, could be invoked by them to support their demand for increment in the scale applying to Executive Engineers and the circular letters to which we were referred, could not successfully invade that right in view of the Constitutional rights that had accrued to the respondents. Clause (3) of Article 178 of the Constitution gives protection to the respondents in respect of the terms and conditions of their service in so far as they relate to remuneration or age fixed for superannuation. It is provided therein that terms and conditions of service in this respect are not to be varied to the disadvantage of a State servant by rules framed under clause (2) of this Article. That clause authorizes the Governor of the Province or a person authorized by him in that behalf, to frame rules with regard to the terms and conditions of service of persons serving in connection with the affairs of the Province, subject to the Constitution and the law. As has been seen above, the position under the_ general rules of service applying to the respondents was that the were entitled to claim increment, unless withheld on legitimate grounds, in the scale applying to Executive Engineers. This position could not be altered by a mere executive order even if it issues from an authority like the Finance Secretary. For identical reasons, the new rule framed by Government and notified on the 4th of March 1963, to the effect that a temporary Assistant Engineer appointed to a post in the P. S. E. Class 1, senior scale, shall draw the minimum of the latter's scale and that no increment in the senior scale shall be admissible to him until the 8th yea of service in the Class I post, can only be applied prospective) to persons entering the service after the date of that notification and not retrospectively so to alter the existing conditions of service of the respondents. The judgment of the High Court, therefore, does not appear to be open to any exception and no case has been made out for interference with the order of the High Court by this Court. The appeal fails and is hereby dismissed, but in the circumstances, we make no order as to costs. A.H. Appeal dismissed.