P L D 1964 Supreme Court 21 (PLP)

HAMOODUR RAHMAN, J.‑These appeals, by Special leave, arise out of the judgment and order of the High Court in Writ Petitions Nos. 381 of 1957 and 827 of 1958 and Civil Miscellaneous Application No. 1768 of 1958, whereby the Registrar of Co operative Societies, West Pakistan, was directed to maintain a combined seniority list of head and senior clerks in the Department. Writ Petition No. 381 of 1957, was filed by one Ch. Din Muhammad who claimed to have joined the Co‑operative Societies Department, Punjab, as a Junior Grade Clerk on the 22nd of November 1930. Writ Petition No. 827 of 1958 was filed by Zafar Ali Shah, who claimed to have joined the clerical establishment of the above‑mentioned Department on the 1st of April 1927. Both of them claimed that under the Punjab Co‑operative Subordinate Service Rules, 1936, a clerical cadre was set up consisting of the following classes :‑ (a) Superintendent, (b) Head Assistant, (c) Assistant, (d) Senior Clerk (designated as Head Clerk and posted in a descentralised office, i.e., Circle Office), (e) Junior Clerk and ( f ) Restorer. Under rule 3 of Part III of the said Rules it was further provided that "the seniority of the members of the service shall, in so far as each class of the posts specified in Appendix B is concerned, be determined by the date of confirmation in a post of that class." Appendix B enumerated the classes created under these Rules. On the 30th of October 1944, however, the then Governor of Punjab by his letter No. 3629‑D decentralised the office of the Registrar and by another letter No. 4423‑D, dated the 30th December 1944, issued instructions that upon such decentralisa tion "the clerical establishment employed in the Deputy Registrars and Assistant Registrars Offices should be kept on a separate cadre from the Head Office." There would, nevertheless, be no objection to the posts in the Deputy Registrar's Office being made interchangeable with the posts carrying the same scale of pay in the Head Office. The Registrar was also competent under the 1936 Rules to appoint any person from the decentralised offices to a post in the Head Office or vice versa. In accordance with these instructions the cadres of the staff serving in the Head Office and the sub‑offices were separated and separate seniority lists for these two cadres were prepared. It was against these separate seniority lists that the petitioners moved the writ petitions in the High Court challenging the power of the authorities concerned to frame such separate lists. Accord ing to them, the terms and conditions of service assured to them by the Rules framed in 1936 could not be varied to their dis advantage without making proper amendments to the said Rules by a person competent to do so under section 241 (3) of the Government of India Act, 1935. Both the petitioners in the High Court claimed that the combined seniority list had diminished their prospects of promo tion, as now the position was that 37 head and senior clerks of Circle Offices could aspire for promotion to only four posts of Assistant's rank, whilst 17 senior clerks in the Head Office could aspire for 22 higher posts up to Superintendent's grade. The separate seniority lists had also, it was alleged, affected their rights of confirmation. The respondent Zafar Ali Shah com plained that the separate seniority lists on divisional basis had resulted in the confirmation of respondents Nos. 3 to 27 in his petition even though they were junior to him, but if the seniority of the Head Clerks bad been computed on the Provincial basis and confirmation made as against all the vacant posts in the Province as a whole, he would have been confirmed as Head Clerk with effect from 15‑8‑1947. Din Muhammad, who was confirmed as Head Clerk with effect from 8th January 1943, also complained that his prospects of promotion to the next higher cadre of Assistants in the Head Office were thereby taken away. The High Court disposed of these petitions on the short ground that the Memorandum No. 4423‑D, dated the 30th of December 1944, by which separate cadres came to be created‑one for persons serving in the Head Office and another for persons employed in the Deputy Registrars and Assistant Registrars Offices‑was not a rule or order within the meaning of section 241 (3) of the Government of India Act, 1935, and hence could not have the effect of amending the Punjab Co‑operative Subordinate Service Rules, 1936. In the view of the High Court an amendment of a rule could only be made by an "order making a rule" and this was done for the first time by Notification No. 47/26‑C and M/56, dated the 4th March 1957, but again this amendment could not have been given retrospective effect from the 2nd of January 1945, as was sought to be done. When these appeals first came up for hearing before this Court on the 29th of April 1963, it transpired that Ch. Din Muhammad, the petitioner in Writ Petition No. 381 of 1957, from which Civil Appeal No. 65 of 1961, arises, had since become a Superintendent, Agha Ahsan, who had been joined as a party to the said writ petition on his application being Civil Mis cellaneous Application No. 1768 of 1958, had since retired and thus only Zafar Ali Shah was still working in the Department. In these circumstances, it was felt that since the right of only an individual employee was involved in these appeals, the matter might be more suitably settled by administrative adjustment by the Governor in the exercise of his plenary powers under subsection (5) of section 241 of the Government of India Act, 1935. The appeals were, accordingly, adjourned to enable learned counsel to obtain instructions from the Government. Learned Additional Advocate‑General, appearing for the Province, has now filed a letter from the Deputy Secretary to the Government of West Pakistan, Co‑operation, Labour and Social Welfare Department, saying that the decision of the question involved in these appeals would affect not only one person but some 25 persons whose cases will have to be treated in the same manner as that of Mr. Zafar Ali Shah. The Department is, therefore, anxious that a decision should be obtained on the question raised in these appeals from the Court. The position is, however, confirmed that Ch. Din Muhammad is no longer interested in contesting Civil Appeal No. 65 of 1961, for, he has not even entered appear ance to contest the appeal. Similarly Agha Ahsan, who was added as a party to Writ Petition No. 381 of 1957, is also not interested. Civil Appeal No. 66 of 1961 is, therefore, only pressed before us on behalf of the Government of West Pakistan. It is urged by the learned Additional Advocate‑General that the amendments sought to be introduced by the Memorandum No. 4423‑D of the 30th of December 1944, which had been issued under the signature of an Under Secretary of the Government and actually recited that the Governor of Punjab, who was the com petent authority, had decided that the "clerical establishment employed in the Deputy Registrars and Assistant Registrars Offices should be kept on a separate cadre from the Head Office", con stituted an "older" within the meaning of subsection (3) of section 241 of the Government of India Act, 1935, and, therefore, the High Court was wrong in taking the view that this Memorandum did not have the effect of amending the Punjab Co‑operative Subordinate Service Rules, 1936. The decision of the Governor contained in the above mentioned Memorandum was, it appears, arrived at after a full consideration of the proposals made by the Registrar of Co operative Societies on the 16th of May 1944, and all other relevant circumstances. In any event, even according to the High Court the Notification of 4th of March 1957, (Vide page 118 of the paper book), which had been made in exercise of the powers conferred by Article 182 of the late Constitution, had validly amended the said Rules and since this gave effect to the amendment from the 2nd of January 1945, which was the date on which the earlier Memorandum came into effect, the intention of the authorities was clearly to amend the Rules of 1936. The High Court should not, therefore, have interfered in this case. It is further argued that even if the Memorandum of the 30th of December 1944, was not an "order making a rule" as held by the High Court, it certainly constituted administrative instructions having the same effect as statutory rules, as held by this Court in the case of, Pakistan v. Sheikh Abdul Hamid (P L D 1961 S C 105). These instructions contained in the Memorandum No. 4423‑D of the 30th of December 1944, had been issued by the Governor himself, who was fully com petent even to alter or amend the rules of service to the detriment of employees concerned. The same view was re‑affirmed by this Court in Civil Appeal No. 35 of 1961 Federation of Pakistan v. Maqbool Ilahi and others where it was pointed out that even departmental instructions were capable of creating legal rights and of possessing binding effect if they had been expressed in precise terms and were capable of being applied with exactness in all relevant cases relating to a particular service in general. The instructions contained in the Memorandum of the 30th of December 1944, possessed all these qualities and, therefore, we are unable to agree with the High Court that they could not have had the effect of amending the rules of 1936 nor are we in a position to read the word "order" in subsection (3) of section 241 of the Govern ment of India Act, 1935, in the restricted sense in which the High Court has read it. The distinction sought to be made by the High Court between an "order" simpliciter and an "order making a rule" is, if we might say so with due respect to the High Court, a distinction without any difference. If an "order" is made by a competent authority which has the effect of amending previous rules, which are capable of being so amended, then the efficacy of such an "order" is not diminished merely because it does not in so many words specify that it is an "order making a rule." We must look at the substance and not merely the form of the "order". Since we have come to the conclusion that the Memorandum No. 4423‑D of the 30th of December 1944, was a valid order made by the competent authority, namely, the Governor of the Province, amending the rules of 1936, it is clear that this appeal must be allowed on this ground alone. We do not propose, therefore, to enter upon a consideration of the other technical questions raised on behalf of the appellants as to the maintain ability of the writ petition. Civil Appeal No. 66 of 1961 is, accordingly, allowed and the writ issued by the High Court is recalled. Having regard, however, to the fact that the contesting respondent is still an employee of the Department, who was merely seeking to have his seniority fixed on a proper basis, we make no order as to costs. Civil Appeal No. 65 of 1961 has not been pressed before us on the ground that it has become infructuous. It is accordingly dismissed without any order as to costs. K.B. A./A. H. Appeal dismissed.