P L D 1956 (W (PLP)

KAYANI, J.-The petitioner, Salamat Ali Jafri, and res pondent No. 3, Ch. Muhammad Ibrahim, are assistants in the office of the Registrar, Co-operative Societies, and the petitioner seeks the avoidance of an order by the Government, the effect of which was to make the respondent senior to him in the assistants' grade, in supersession of the Registrar's order. The petitioner entered service in 1924 as junior clerk in the present office and the respondent joined as junior clerk in 1935 in the Rural Reconstruction Office. The latter office was abolished on the 1st of March 1949 and its emplo yees were absorbed in the office of the Registrar Co-operative Societies. The relative position of the parties in their respective departments prior to amalgamation will appear from the following table :- Salamat Ali Jafri. Muhammad Ibrahim Date of birth 3rd March 1904 14th June 1909 Date of joining as junior clerk . 1st April 1925 26th June 1935 Date of confirmation as senior clerk ... 1st February 1937 1st April 1944 Date of confirmation as assistant .. 15th August 1947 (in the Rural Re construction office) Substantive pay on 1st March 1949 Rs. 200/- Rs. 140/- It is admitted that on the date of amalgamation, or, more correctly, absorption, the Co-operative Office was regarded as a B class or a second class office and the Rural Recon struction Office as a C class or a third class office. The grade of assistant in the former was Rs. 116-8-180/10-250 and in the latter Rs. 106--6-160/8-200. When the Rural Reconstruction Office was abolished, the Government wrote the following letter to the Registrar, Co-operative Societies :- " The Governor of West Punjab is pleased, to order the reduction with effect from the 1st March 1949 of the total staff of the Rural Re-construction Office consisting of one head assistant, one assistant, two senior clerks, three junior clerks, one daftri, and three peons You should provide for those men who are permanent employees in the permanent establishment of your own office and with effect from the 1st March 1949, bringing them on the scales of pay sanctioned for your office staff." As there was no permanent post of an assistant in the new office, the respondent was made a temporary assistant in the 116-250 grade. It will be seen from the above table that the petitioner was confirmed as a senior clerk on the 1st of February 1937, that is about seven years before the respondent was confirmed as senior clerk in his own office. As assistant, however, the petitioner started officiating in 1943 and on 1st of April 1947 he was provisionally confirmed. His final confirmation, however, did not take place until the 1st of March 1950 and on the same date the respondent was also confirmed in the new office. (Actually, the official from the Rural Reconstruction Office who was confirmed as assistant in the new Office was Ghulam Sadiq, against whom the respondent had lodged an appeal prior to amalgamation. His appeal having been accepted, Ghulam Sadiq was replaced by the respondent). While confirming Salamat Ali Jafri and Ghulam Sadiq, the Registrar placed the former at No.9 and the latter at No. 10 in the grade of assistant. When Muhammad Ibrahim replaced Ghulam Sadiq as a result of his appeal, he made a representation to the Government against the seniority of Salamat Ali Jafri and this was accepted on the 26th of February 1955 with the following direction :- " The Governor of the Punjab is pleased to accept the representations of Ch. Muhammad Ibrahim, Head Assistant, and Muhammad Saeed Khan, Assistant of your office and to order . . . . . . . . . that while fixing their seniority in your office, the service rendered by Ch. Muhammad Ibrahim and Muhammad Saeed Khan in the Rural Reconstruction Department in permanent capacity should be taken into account." The effect of this direction was that Registrar, counting Muhammad Ibrahim's confirmed service as assistant from the 15th of August 1947 made him senior to Salamat Ali Jafri. The direction of the Government is misleading if by service in permanent capacity it means confirmed service in the higher grade. If the Registrar had interpreted the direction literally, then since Salamat Ali Jafri gas permanent service to his credit since 1924 while Muhammad Ibrahim started permanent service in 1935, the former would be clearly senior to the latter. The Registrar apparently interpreted the direction to mean-and perhaps that was the intention of Government-that if Muhammad Ibrahim was confirmed earlier in the grade of assistants, he should rank senior to Salamat Ali Jafri. We do not think this is a correct position on principle. The respondent belonged to a C class office, holding a com paratively inferior grade, though it was styled as the grade of assistant. It may happen that the grade of an assistant in an inferior office is equal to the grade of a senior clerk in a superior office. There would in that case be no equality of grades even if both were named by the Government as the assistants' grades. Although the difference is not so pronounced in the present case, the grade of Rs. 106-6-160/ 8-200 is undoubtedly inferior to Rs. 116-8-180/10-250. Further, when the Rural Reconstruction Office was reduced, the respondent's confirmation also disappeared with it and it was for that reason that it became necessary to confirm him afresh in the new office. All that the Government directed at the time of amalgamation was that the officials belonging to the reduced office should be brought on the scales of pay sanctioned for the Co-operative Societies' Office. This was good enough for them-and liberal enough-because their status, rates of annual increment and maximum pay in the grade improved by this change. Anything in excess of this direction would have affected the conditions of service of the office to which they were transplanted. The position when an entire office is reduced is no batter than when a permanent post is abolished, and to each individual of an abolished office apparently rule 5.2 of the Civil Services Rules, Volume II, will apply in principle. " Rule 5.2. If a Government servant is selected for dis charge owing to the abolition of a permanent post, he shall, unless he is appointed to another post the conditions of which are deemed by the authority competent to discharge him to be at least equal to those of his own, have the option- (a) of taking any compensation, pension or gratuity to which he may be entitled for the service he has already rendered, or (b) of accepting another post or transfer to " another establishment even on a lower pay, if offered, and continuing to count his previous service for pension." It is thus clear that if the Government had not provided the respondent with an equivalent post, all that he could do was to ask for pension or gratuity, whichever he earned, or accept transfer to another establishment on a lower pay, if offered, and count his previous service for pension. Thus, the Government could have offered the respondent the post of a senior clerk in the new office, and if it were generous, as it has been, it could offer an equivalent post, but its generosity must end where the right of another official begins. The petitioner had been officiating as assistant in his own office since 1943 and expected to become permanent in the first vacancy. But if there was to be an inroad, he could yield only to an official holding a superior position. That position was not enjoyed by the respondent. We have considered the question whether we should issue a direction to the Government. Seniority is determined by the Registrar under rule 3 of the Punjab Co-operative Subordinate Services Rules, 1936, and his determination is final. There is no right of appeal or revision in Government, but there is a right in the Governor under section 241 sub section (5) of the Government of India Act, 1935, to deal with the case of any person in such manner as may appeared to him just and equitable. This right is personal to the Governor and does not belong to the Government. On the assumption, however, that it is exercisable by the Government; we think a fundamental principle which is of great importance to public servants is involved here, namely, that an assistant's grade in two different offices, one of which is regarded superior to the other, is not of the same status; and for this reason we regard this an " appropriate case " within the meaning of section 223-A of the Government of India Act for the issue of a writ. The learned counsel for the respondent objected to the application of the writ remedy to an order which was passed a day before the jurisdiction under section 223-A, Government of India Act, was restored. The provisions of that section, it was contended, were not retrospective, and reliance was placed on two Supreme Court rulings of India and several other rulings of the High Courts in India. The two Supreme Court cases are Keshavan Madhava Menon v. The State of Bombay (AIR 1951 SC 128) and Janardhan Beddy v. The State of Hyder abad (AIR 1951 SC 217 ) and in both the question involved related to funda mental rights which had been created by the new Constitution. In the former case the question was whether the definition of the term " news sheet " in the Press (Emergency Powers) Act was inconsistent with Article. 13 of the new Constitution. In the latter case a conviction and sentence had become final before the new Constitution came into force and it was impugned under Article 32 of the Constitution. It was held that as the fundamental rights had become operative only from the date of the Constitution, the question of the incon sistency of the existing laws with those rights must necessarily arise on and from the date when those rights came into being. In the latter case stress was also laid on the finality of judicial decisions. Some of the Indian High Courts in Naresh Chandra Sanya v. The Union of India (A I R 1952 Cal. 757), Haran Chandra Dutt and another v. The State of West Bengal (A I R 1952 Cal. 907) and Tribhuwannath Pandey v. Union of India (A I R 1953 Nag. 138 ) followed the view of the Supreme Court without any further argument in matters which were not referable to fundamental rights. In one case, the matter was disposed of merely with reference to an " admission " by the petitioner's counsel that the Constitution Act was not retrospective. (A I R 1953 Hyderabad 98). A contrary view was taken in Hindustan Motors Ltd. Union of India (A I R 1954 Cal. 151), Hiranmoy Bhattacherjee v. State of Assam (A I R 1954 Assam 224 ), Lakshmi Devi Sugar Mills Ltd. v. U. P. Govern ment (A I R 1954 All. 705) and Hiralal Chunnilal Siriah v. The State of Madhya Pradesh (A I R 1954 Nag. 258), where enactments creating substantive rights were distinguished from those creating a new procedure. In our opinion, the question presents no difficulty. Where a statute creates a new right, it operates prospectively. Where it provides a new remedy for an existing right, its operation is retrospective. Section 223-A, Government of India Act, merely provides a new remedy for existing rights. Article 170 of the new Constitution of Pakistan, which contains a provision corresponding to section 223-A, is still more extensive in scope, It gives power to High Courts to issue directions, orders or writs . . . . . .for the enforcement of any of the rights conferred by Part II and for any others purpose ". The rights in Part II are fundamental rights, and to that extent Article 170 cannot be retrospective, but for other purposes envisaged by Article 170, only a new remedy, as in section 223-A, has been devised. We therefore direct that the petitioner be restored to the seniority which was fixed by the order of the Registrar dated the 1st of March 1950. A. H. Writ granted.