P L D 1964 Supreme Court 195 (PLP)

HAMOODUR RAHMAN, J.‑This certificated appeal has been filed by the Government of West Pakistan against the judgment and order of a Division Bench of the High Court of West Pakistan in a writ petition filed by the first‑named respondent herein seeking a declaration to the effect that he is entitled to hold the post of Chief Engineer from the 14th of October 1955, and to receive the salary of Rs. 2,500 per mensem plus an allowance of Rs. 250 per month for working as Secretary to the Government. Alternatively, he claimed that, in any event, he was entitled from the 23rd of June 1956, when the tenure of the second‑named respondent herein lapsed, to draw the salary of the Chief Engineer as mentioned above. The High Court dismissed the petition with costs, but in dealing with some arguments advanced before it on the basis of the tenure of the post of Chief Engineer, observed that although the same had been fixed under the Fundamental Rule 56, clause (c), sub‑clause (iv) (3) at 5 years, this provision had, on the 17th of May 1956, been deleted without making any corres ponding amendment in the Rules of Business, although at the time of the setting up of the Province of West Pakistan a provision was made for the tenures of certain other posts in a Schedule to the Rules of Business framed under section 59 of the Government of India Act, 1935. This omission was, however, considered by the High Court to be inadvertent and it was observed that "prima facie there was no power to provide for conditions of service in the rules made under section 59, sub section (3) of the Government of India Act . . . . . Since the provision of tenure posts does not contribute anything towards more convenient transaction of the business of the Government, Schedule 5 of the Rules of Business is obviously beyond the purpose of section 59 (3) and is, therefore, invalid." Now during the pendency of the appeal the respondent No. 1 herein has died and an application has been made by the Government for the striking out of his name from the list of respondents. The respondent No. 2 has also since relinquished the post of Chief Engineer and is now holding the post of a Member of the West Pakistan Public Service Commission. He too, therefore, has no interest in this appeal and does not, accordingly, seek to contest it. In these circumstances, there is no live issue left to be decided in this appeal. But the learned counsel appearing for the State states that the Government is interested in getting the observation made by the High Court, to the effect that the provision made for tenure posts in Schedule 5 of the Rules of Business framed under section 59 (3) of the Government of India Act is invalid, set aside, as the same is not a correct statement of the legal position. In our opinion, an investigation of even this question will, at this stage, be a purely academic exercise, for, none of the respondents in this appeal 9s now interested in it. There can be no doubt that the Governor did possess the power, under section 241 of the Government of India Act, to provide for the conditions of service of Government servants serving in connection with the affairs of a Province by rules framed in that behalf. This power was preserved by Article 182 of the late Constitution and still continues to be vested in the Governor under Article 178 of the present Constitution. If, therefore, any difficulty is felt by reason of this observation in the judgment of the High Court, this difficulty can easily be removed by framing an appropriate rule in that behalf. In the circumstances, we dismiss this appeal as having become infructuous. Since no one has appeared to oppose this appeal, there will be no order as to costs. A. H. Appeal dismissed.