P L D 1960 Supreme Court (Pak (PLP)

CORNELIUS, J.-This judgment will dispose of three Civil Appeals viz., No. 95 of 1958 by Mian Bashir Ahmad Khan against Mr. Mahmud Ali Khan Chowdhury and others, No. 96 of 1958 by the Central Government of Pakistan against Mr. Mahmud Ali Khan Chowdhury and others and No. 97 of 1958 by Mr. Mahmud Ali Khan Chowdhury and another against the Central Government of Pakistan and another. The three appeals are brought against the same judgment of the High Court of West Pakistan, delivered by a Full Bench of three Judges, upon a writ petition moved in that Court by Mr. Mahmud Ali Khan Chowdhury and Mr. Ghazanfar Ali Isani against the Central Government of Pakistan and the Provincial Government of West Pakistan. To this petition, in the course of the hearing, certain persons were permitted to be added as parties, among them being the appellant Mr. Bashir Ahmad Khan. All the three appeals have been brought before the Court by special leave granted by this Court. The question raised in the petition of Mr. Mahmud Ali Khan Chowdhury and Mr. Ghazanfar Ali Isani was one affecting their proper seniority in the gradation of officers of the Police Service of Pakistan, and involved the interpretation of certain rules by which such seniority was governed, namely, the Indian Police (Regulation of Seniority) Rules, 1936. It was contended by the two petitioners that the Rules had been interpreted to their disadvantage, and they accordingly asked for an order to remove the record of the case in question from the offices of the respective Government and to quash an order made by the Central Govern ment on the 21st February 1957, by which the allegedly incorrect interpretation was given. At the same time, the petitioners sought a mandatory injunction to the Central Government against the taking of action on the basis of the aforesaid interpretation. By the Rules mentioned above, several formulae were laid down for the purpose of settling the appropriate place to be given in the gradation of officers of the "Indian Police Service" (now replaced by the Police Service of Pakistan) to officers who were not direct appointees to that service, but had been promoted to the service after having served for a period in a lower service. Mr. Mahmud Ali Khan Chowdhury and Mr. Ghazanfar Ali Isani are direct appointees to the said Service, while Mr. Bashir Ahmad Khan and certain other officers who were impleaded as parties in the course of the proceedings belong to the category of "pro moted officers" meaning, by definition in the Rules, "an officer not belonging to the Indian Police Service before the promotion, appointed substantively to a superior post in that service". The terms .of the particular rule whose interpretation has been canvassed before the Court will be considered a little later. At this point, it will be convenient to deal with an argument raised before us by the learned Attorney-General that the matter before the High Court was inappropriate for the issue of a writ as it related to departmental rules whereby the entire superior Police Service was governed and controlled. The learned Attorney General appeared to argue that these Rules were capable of amendment from time to time, and that their application to particular cases in the course of continuous administration and control of the Service was a matter peculiarly appropriate to be left in the hands of the competent executive authorities, and the Courts should refrain from interfering with those matters under their special powers. In the present case, what has been done by the High Court is that five propositions have been drawn up dealing with different aspects of the meaning of the Rules aforesaid, and it has been directed that the Central Government should "determine the seniority of the petitioners in accordance with the interpretation of the Rules given (above) at the same time keeping in view the other provisions of the Rules, and shall issue instructions to respondent No. 2 (i.e., the Provincial Govern ment) to prepare a list of seniority on that basis". We are unable to see that such an order has the effect of interfering in the direct or immediate control by the Governments concerned over the officers whose rights were the subject-matter of the petition before the High Court. It cannot be denied that every officer in a graded service has a vested right to a proper place in the seniority list. This is of the highest importance to him, as well as to the maintenance of proper discipline and order within the service, and consequentially to the public interest which is deeply involved in the maintenance of a proper spirit of order and a discipline within the service. Therefore, the giving by the High Court of a considered interpretation of the Rules by which the somewhat complex question of placement, upon the same list of officers who entered that list through different channels, so far from being an inconvenient interference with the day-to-day control of that service by the Government, is indeed an action calculated to assist the Government in exercising such control peacefully and harmoniously. That such assistance was necessary in this particular case appears only too clearly from the fact that in the course of some six years between 1951 and 1957, the Central Government had attempted to interpret the Rules in question on no less than five occasions and on each such occasion, it had been obliged to vary from the interpretation previously held or given. As to the contention that these Rules are of the same nature and quality as the great body of departmental rules applicable to the conduct of officers and other such matters relating to the service as a whole, which are capable of being altered by the Government at any time, it is necessary to say that the Rules in question do not possess the alleged character in any sense whatso ever. They are statutory rules of the highest validity, and as has been said above, they have the quality of settling the important matter of seniority as among officers of a service whose duties are directly connected with the maintenance of law and order, and are therefore intimately bound up with a very important aspect of the public interest. The question raised in the petition was one which had been agitating the mind of the Central Government for a number of years, and was of such importance that, being question of interpretation of statutory rules and therefore a question of law, it would have been a proper subject for a reference to this Court under Article 162 of the Constitution of 1956, had the Central Government thought fit to make such a reference. It is now before this Court in the form of appeals from the directions issued by the High Court. We find it impossible to concede the objection raised by the learned Attorney-General to the competence of the superior Courts to deal appropriately with it. The questions raised in the appeals lie within a very narrow compass. As a consequence of a certain concession made by learned counsel appearing for certain parties there was eventually left for decision by this Court one single question, namely as to the correctness of the fourth of the five propositions laid down by the High Court, to which reference has been made above. Objection had been taken by the appellants Mr. Mahmud Ali Khan Chowdhury and Mr. Ghazanfar Ali isani also to the first proposi tion which reads as follows :

"that rule 3 of the Rules determines the seniority of promoted officers inter se and a promoted officer cannot be placed higher in the list of seniority than any other promoted officer who was confirmed earlier than him in a superior post". Mr. M. B. Zaman appearing for these appellants stated before us that he did not wish to press this contention. The learned Attorney-General, supporting the appeal preferred by the Central Government, challenged the correctness of the fourth proposition, which reads as follows :

"that rule (4) does not permit that a promoted officer con firmed in a superior post after a direct recruit was confirmed in such a post should rank higher than the direct recruit though the continuous officiation of the direct recruit may have started later than that of the promoted officer", The sub-rule in question reads as follows :

"(4) An Indian Police Service Officer substantively appointed to a superior post shall take rank in order of seniority above

(a) Any promoted officer who was promoted to a superior post or who began to officiate continuously in a superior post at a date subsequent to the date on which the Indian Police Service Officer (or an officer junior to him in the Indian Police Service) began to officiate continuously in a superior post ; (b)

(c)

(d)

The contention of the Central Government upon the interpretation of this sub-rule is stated in the judgment of the High Court in the following terms :

"According to the interpretation of the Central Government of Pakistan the amendment in rule 4 (a) of the Rules was made to cover cases of those promoted officers who had no period of continuous officiation in a superior post immediately before their substantive appointment to that post and, in my opinion that interpretation is not open to any question". It will be seen presently that the final conclusion reached by the learned Judge who wrote the judgment was inconsistent with the statement reproduced above regarding the correctness of the Central Government's interpretation of the rule in question. At this stage it will be of advantage to reproduce the sub-rule as it was originally worded. The words then used were as follows;-- "(4) An Indian Police Service Officer substantively appointed to a superior post shall take rank in order of seniority above

(a) any promoted officer who began to officiate continuously in a superior post at a date subsequent to the date on which the Indian Police Service Officer (or an officer junior to him in the Indian Police Service) began to officiate continuously in a superior post". This was the condition in 1929, but in 1936, the Secretary of State for India 1,in Council made an amendment in the sub-rule by inserting the words "was promoted to a superior post or who" after the words "any promoted officer who", in the original rule. The learned Attorney-General has invited our attention to two documents on the record which purport to set out the reasons for the making of the amendment mentioned above. One is a note obtained by the Central Government of Pakistan from the Secretariat of the Government of India in the year 1956, which states that rule 4 (a) was amended in order to cover cases where Pro vincial Police Service officers might be promoted to a superior post without any immediately preceding period of officiating service, and in consequence might rank higher than they would rank, if they had had the advantage of previous officiation and higher than directly recruited Indian Police officers who had been officiating for some months or even years. The second document contains an opinion obtained froth the Commonwealth Relations Office of the Govern ment of the United Kingdom in London and is to the same effect viz., that the amendment was made for the removal of doubt "it having been pointed out that on a possible interpretation of the Rules an officer of the Indian Police might have been held to be senior to a promoted officer with a period of officiating service to his credit, though at the same time junior to an officer who had not officiated continuously". It may be conceded that the sources from which these opinions were obtained were competent, by reason of their experience, to express them. Yet these opinions are clearly not binding upon a Court which is required to interpret the rule as it stands today although they may be called in aid for the purpose of reaching a proper interpretation. These opinions undoubtedly explain why in 1929, the words "was promoted to a superior post" were inserted in the rule. Prior to their insertion, it certainly appears from the form of the original rule, that in a contest of seniority between an Indian Police Service Officer and a "promoted officer", the decision would turn upon which of them commenced earlier to officiate continuously in the superior post immediately prior to his confirmation therein. That might have been thought to conflict with rule 3 of the same Rules which stated in unequivocal terms that "the seniority of promoted officers is determined by the date of substantive appointment to a superior post". It is explained however that the intention was that rule 3 should operate for the differentiation of seniority as among "promoted officers" only and not for the purpose of settling their seniority as against that of Indian Police Service Officers. It is clear that in rule 4 (a) as it originally stood, no account was taken of a case where a "promoted officer" might have been appointed substantively to a superior post without having previously officiated in such post up to the date of his appointment. It may be that the intention of the amendment was only to provide for an Indian Police Officer to have an advantage over any promoted officer who, without a period of immediately prior officiation, was promoted to a superior post on a date subsequent to the commencement of continuous officiation by the Indian Police Service officer. But to reach such a conclusion on the basis of the words of the amended rule, it would have been necessary to say so in clear words. In the absence of any reference in the amended rule to any qualifica tion upon the first terminus fixed for a "promoted officer", namely, the date of his promotion, we cannot see that it is open to the Courts to insert any such words as would confine the case to that of a Provincial Police Officer being substantively appointed without having first officiated for a period up to the date of such appointment. By the plain terms of the rule as it stands, an Indian Police Service officer, once he commences a period of continuous officiation leading to his eventual confirmation in a superior post gains an advantage of seniority over every" pro moted officer" whose date of substantive appointment comes after the commencement of the aforesaid period of officiation. Con sequently, it, is not open to a "promoted officer" to plead that he gains the advantage over an officer of the Indian Police Service who was confirmed in a superior post on a date prior to the date of promotion of the promoted officer, by reference to the dates upon which the two rival claimants commenced their periods of continuous officiation immediately prior to appointment to the higher post. The fourth proposition laid down in the leading judgment delivered in the High Court is to this precise effect, and in our opinion, it is a correct inference which may properly be drawn from the wording of rule 4 (a) of the Rules as it stands. It remains to add that these Rules of 1929 were retained in force by virtue of provisions in the Government of India Act, 1935, in the Indian Independence Act, 1947 and in the Constitu tion of Pakistan of 1956. In the discussion above, which is based upon the wording of the Rules as they stand, references to the "Indian Police Service" should be understood as applicable in Pakistan today to the "Police Service of Pakistan". We accordingly dismiss all three appeals, and in the special circumstances we make no orders as to costs. A. H. Appeals dismissed.