P L D 1962 Supreme Court 428 (PLP)

S. A, RAHMAN, J.‑

This order will dispose of Civil Appeals Nos. 149 to 155 of 1960, which arise out of a consolidated judgment of the High Court of West Pakistan, Lahore, dealing with six writ petitions. The writ petitions had been filed in the High Court by certain officers, belonging to the Public Works Department. An integrated seniority list of the Engineers of West Pakistan had been prepared, following the integration of the various Provinces into a single Unit. The writ petitions challenged the correctness of this seniority list and in particular the seniority accorded to the respondents to the petitions other than the Government of West Pakistan, and a writ of mandamus, or any other appropriate writ, order or direction was prayed for to be issued to the West Pakistan Government, directing that the petitioners be ensured the same prospects of promotion and service conditions in respect of emoluments as were available to them on the 10th of August 1955, by virtue of section 8 (3) of the Establishment of West Pakistan Act, 1955. The petitions were contested on behalf of the respondents and it was pleaded that the Government was within its rights in preparing the integrated seniority list in accordance with the principles formulated by them in view of the changed conditions in the integrated Province. The orders were represented to be administrative in nature and, therefore, immune from attack in writ jurisdiction. In any event, it was pleaded, the seniority of the petitioners vis-a‑vis the other respondents had been correctly fixed and no vested rights of the officers concerned had been violated. The High Court found that the integrated seniority list had not been framed with reference to any binding rule promulgated by competent authority. The principles that had guided Govern ment in this respect were detailed on a circular letter, issued by the Chief Secretary to the Provincial Government on the 25th of November 1955, and this purported to be in accordance with decisions taken on the report of the Council of Administration for West Pakistan, set up by the Pakistan (Establishment of Council for the Administration of West Pakistan) Order, 1954, which had been passed by the Governor‑General under the purported exercise of powers conferred by section 135 of the Government of India Act, 1935. The formula laid down in this letter for the determination of seniority of West Pakistan officers inter se was that "for the purposes of integration, the seniority of all pre‑unification officers will be determined with reference to the date of continuous appointment, substantive or otherwise, to the grade". The High Court observed that the Council of Adminis tration Order was itself not a valid Order, because section 135 of the Government of India Act provided for the establishment of an "Inter‑Provincial Council" for investigating matters of common interest and "section 135 assumes that the Provinces will exist after such Council is formed, not that the Council is formed to discuss matters arising out of the dissolution of the Provinces." At the same time, the learned Judges remarked that this was a matter of academic value only, for even a lawful Council under section 135 of the Government of India Act could not have done anything, which, if accepted by the Governor‑General would have the force of law. The principles accepted by the Government were characterized as working rules which were "binding neither of the Government nor on the officers concerned", and it was, therefore, important in the learned Judges' opinion that Govern ment should take a more decisive step. They went onto say that a reading of section 241 of the Government of India Act and section 8 (3) of the Establishment of West Pakistan Act, 1955, made it clear that the Governor was required to frame rules, determining the terms and conditions of service of these officers and that if such rules had been framed, "there would be no ground for interference by a Court except when it was made to appear that these terms and conditions were less favourable than those which governed them previously". Subject to these conditions being satisfied, the learned Judges were of the opinion that they "would not be concerned if a rule determined seniority by officiat ing service in a grade, howsoever harshly it were to operate". In the absence of any legal sanction for the principles adopted, however, the learned Judges considered it "proper to point out that officiating service in a grade was never before regarded as a correct yardstick for measuring seniority and for that reason the date of confirmation was universally agreed upon as the date which determined seniority". They took note of the fact that confirmations in some offices had been delayed and in order to avoid possible inequity, they thought that it could he determined in each separate case, when exactly an officer would have been confirmed in the ordinary course, if the confirming officer or the Government had acted with promptitude. Eventually, it was held by the High Court that the seniority list prepared by the Provincial Government had affected the prospects of promotion of the officers concerned, in contravention of the provisions of section 8 (3) of the Establishment of West Pakistan Act, 1955. They discussed the prospects of promotion of individual petitioners and came to the conclusion that on the basis of the integrated seniority list they would not reach higher posts or higher scales of pay at the same time as they would have done in their own pre‑integration units, in certain cases. They, there fore, proceeded to issue a direction that the present seniority list should not be followed and that in making appointments to the posts of Deputy Chief Engineers, Additional Chief Engineers and Chief Engineers' the service records of all the Superintending Engineers, should be submitted to the Selection Committee, for exercising its choice irrespective of seniority. This, it was pointed out, would be no unusual procedure for it was already provided in rule 1.12 of the Government of Punjab Public Works Department Code, that in selection of Superintending and Chief Engineers, seniority should be regarded only if other qualifications are practically equal. The High Court at the instance of the Provincial Government, certified that these were fit cases for appeals to this Court, except Civil Appeal No. 155 of 1910, in which this Court granted special leave to appeal. Section 8 (3) of the Establishment of West Pakistan Act, 1955, so far as relevant, is reproduced below :‑ "(3) All persons in the service of the Crown, serving In connection with the affairs of the specified territories, and all persons holding civil posts under the Government of the State of Bahawalpur, or the State of Khairpur, or the Baluchistan States Union, shall, as from the appointed day, be deemed to be persons serving the Crown in connection with the affairs of the Province of West Pakistan on such terms and conditions as the Governor of the Province of West Pakistan may determine Provided that‑ (a) such terms and conditions shall not be less favourable than the terms and conditions admissible to them immediately before the 10th day of August 1955 ; and (b) notwithstanding the terms of his appointment in the specified territory, any such person may be required to serve in any post or capacity and in any part of West Pakistan." These provisions received interpretation from this Court in two cases, reported as Government of West Pakistan v. Fida Muhammad Khan (P L D 1960 S C (Pak.) 45) and Government of West Pakistan v. Fatehullah Khan (P L D 1960 S C (Pak.) 105). Judgments were delivered in these cases after the High Court's decision in the instant cases. It was laid down in the cases cited above that by the use of the words "admis sible to them immediately before the 10th day of August 1955", the Legislature had made it clear that the terms and conditions to which they were referring were to be understood in a restricted sense and, therefore, in evaluating the expression in relation to a particular person, it was clearly impossible to include such far‑fetched matters as his prospective promotion into a higher service upon the assumption that he might attain a status in his present service and earn the degree of approbation necessary for A such promotion. The expression is one which has the effect of strict limitation in relation to a given time and avoids anything in the nature of future potentiality in regard to the terms and conditions of service. It must, therefore, be understood in a narrow and limited sense to refer to concrete matters relating to the actual service of the person concerned, on the specified date. The main ground, consequently, on which the High Court judgment proceeded, must be regarded as erroneous. The direc tions issued, with a view to ensure, to the various respondents to the appeals filed by the Provincial Government, their prospects of future promotion in respect of higher posts or emoluments, could not, therefore, have been issued. The only other question that falls for determination is whether the High Court were right in holding that the circular letter, issued by the Chief Secretary to the Provincial Government, merely contained a working principle which was not binding on the Government or the officers and therefore liable to be ignored. The learned Judges were conscious of the position that if this principle had been embodied in the rules framed by the Governor, it could not have been assailed in writ jurisdiction. It was, however, brought to their notice that in the letter of the Chief Secretary itself there were indications that the rules framed with the sanction of the Governor would incorporate this very principle and that till such rules were framed, this letter was being issued for guidance of the various departments concerned, in order to determine the seniority of officers as a working basis. The letter explained the difficulties that Government had to encounter in formulating an equitable rule on the subject and it seems to us that it was not for the High Court to sit in judgment over the Government in this matter if the proposed rule or principle was such as could have been legally adopted by Government and did not violate any vested right of the Government servants concerned. It Is conceded that the higher posts to which the respondents in question aspired were all selection posts and that seniority alone would not be the determining factor for preferment to such posts, though of course, other things being equal, seniority might count. Merely because Government had evolved a rule which had not been adopted previously, it does not follow that it was necessarily inequitable. In assessing the fairness of the rule, the High Court could not have substituted its own opinion for that of the Govern ment, if the latter's action was intra vires. It appears that most of the respondents in question have by now received promotions beyond their expectations so that their apprehensions were really not well‑founded. Be that as it may, we have not been shown any ground for holding that the discretion exercised by Government, contravened any provision of law or rule and that, therefore, it required interference at the hands of the Court. The guarantee contained in section 8 (3) of the Establishment of West Pakistan Act, 1955, could not be said to have been trans gressed, by the action the Government took. Government should be left unfettered within their legal powers to frame rules which may be best suited to the service conditions. Speaking with respect, therefore, It seems to us that the High Court misconceived the position in issuing the directions that they did. Most of the respondents to the appeals by the Government, were not represented before us, except for Mr. Sher Muhammad Baloch in Civil Appeal No. 154 of 1960, whose case was argued before us by Mr. Iftikharul Haq Khan. Learned counsel found it difficult to support the reasoning by which the High Court had arrived at its conclusions. He thought he could derive some support for his client's position by citing Manzur Ahmad v. The Province of West Pakistan and others (P L D 1961 S C 166), but that case was concerned with the interpretation of certain service rules and the question whether prospects of promotion had been guaranteed by the Establishment of West Pakistan Act, 1955, did not come up for consideration in that case. The ruling is, therefore, not apt In the circumstances of these appeals. The appellant, In Civil Appeal No. 155 of 1960, Mr. A. K. Tarin, has neither appeared personally nor through counsel before us and his appeal, therefore, must be dismissed, for default in prosecution. The other appeals are allowed in view of the above discussion and the directions issued by the High Court recalled. In view of the circumstances of these cases, we make no order as to costs. A.H. Order accordingly.