P L D 1956 (W (PLP)

(b) One Deputy Director, Military Lands and Canton ments, Pakistan. (c) Six Military Estates Officers, and (d) Twenty‑one Cantonment Executive Officers includ ing two Leave reserves. In 1952, section 12 of the Cantonments Act of 1924 was amended by the Cantonments (Second Amendment) Act, 1952. The amended subsection (1) of section 12, stood as under: ‑ "The Executive Officer of every Cantonment shall be appointed by the Central Government, or by such person as the Central Government may authorize in this behalf, from persons appointed under section 240 of the Govern ment of India Act, 1935, to the Pakistan Military Lands and Cantonments Service. In the rest of the services, where the year 1936 occurred it was to be substituted by the year 1952". Before this amendment, on the 30th of October 1951, the Government of Pakistan, by No. 81/4/G/D.‑5/48, fixed the classification of the Military Lands and Cantonments Service with effect from the 1st of January 1949, as below :‑ (1) Director, Military Lands and Cantonments. (2) Deputy Director, Military Lands and Cantonments. (3) Military Estates Officers. (4) Cantonment Executive Officers for Peshawar, Nowshera, Rawalpindi, and Lahore. Cantonment Executive Officers for Multan, Sialkot, Risalpur, Cum‑Mardan, Abbottabad Cum‑Murree‑Gallis, Malim Cum‑Karachi‑Cum‑Manora, Haiderabad and Murree Hills. Class II. Cantonment Executive Officers for Bannu, Campbellpur, D. I. Khan, Jhelum, Loralai and other Cantonments formed hereafter On the 15th of December 1955, the Pakistan Lands and Cantonments Service Class I Composition and Cadre Rules, 1955, were framed, and were specifically directed to take effect on and from the 1st day of January, 1949. The services were to consist of the following posts: Administrative Posts . (1) Director, Military Lands and Cantonments. (2) Deputy Director, Military Lands and Cantonments. Class 1 (Senior Scale) Posts . (3) Military Estates Officers. (4) Executive Officers of Cantonments of Peshawar, Nowshera, Rawalpindi and Lahore. Class 1 (Junior Scale) Posts . (5) Executive Officers of Cantonments other than those specified in No. 4 above. From these Rules as well as from the Rules mentioned above, it would be clear that the Military Lands and Canton ments Service consists of altogether five posts. The Military Estates Officers and the Executive Officers of the Cantonments of Peshawar, Nowshera, Rawalpindi and Lahore were placed as Nos. 3 and 4 in Class I of the Senior Scale Posts. In the light of these Rules, then it has to be considered as to who on the date when the Promotion Board recommended Muhammad Zaman Khan as the senior‑most man for the post of Deputy Director; Military Lands and Cantonments Service, was in fact the senior‑most ? The Government of Pakistan Ministry of Defence has placed upon the record the History of Services of the Officers serving in the Pakistan Military Lands and Cantonments Service. According to this booklet, Muhammad Abdullah Khan, the petitioner was appointed as a Member in Grade I of the Cantonment Executive Officers Service with effect from the , 8th of May, 1937, vide Defence Department Letter No. 411‑0/D, dated the 24th of May, 1937. He was confirmed as such from the same date by the letter of the same Depart ment No. 1183‑0/D‑4. dated the 14th of November 1938. He was promoted as officiating Grade I (Selection Grade) Exe cutive Officer with effect from the 12th of June 1947, vide the Defence Department Letter No. 101/4‑G/C and L/43, dated the 10th of July 1947. There were then certain allegations made against the petitioner, as a result whereof he was suspended on the 9th of December 1947, and dismissed with effect from the same date by Letter No. 270, dated the 8th of April 1949. The dismissal order, however, was subsequently cancelled by Letter No. 762/51, dated the 28th of September 1951. The same day, when the dismissal order was cancelled, he was again suspended from service with effect from the 9th of December 1947. He was reinstated in service by Notification No. 167/53, published in the Gazette of Pakistan, dated the 6th of February 1953. He was appointed as Class I Junior Grade Executive Officer with effect from the 15th of January 1953, and posted as Executive Officer, Campbellpur. Muhammad Zaman Khan, unlike the petitioner, joined the service as Grade II ' Cantonment and Executive Officer, and was confirmed as such on the 8th of May 1937. He was promoted to Selection Grade of Grade II on the 1st of November 1940, and to Grade I with effect from the 2nd of April 1942. He was confirmed as Grade I, (Selection Grade), with effect from the 15th of August 1947. He was appointed to officiate as Military Estates Officer in the Lands Branch of the Cantonment Department and was posted in the East Pakistan with effect from the 15th of August 1947, by the Government of Pakistan, Ministry of Defence Order, dated the 6th of September 1947. He was confirmed on this post with effect from the same date by the Government of Pakistan, Minis try of Defence's Order, dated the 30th of November 1950. He was shown in the booklet, which does not seem to have legal sanctity as confirmed as Grade I, Selection Grade, Executive Officer, with effect from the 15th of August 1947, by the Ministry of Defence Notification No. 255/51. This Notifica tion has not been placed upon the record, but it appears that it, was made some time in 1951, and lost its significance on account of the Notification, which followed it. In any case, this confirmation will not place Muhammad Zaman Khan above the petitioner, because Grade I Selection Grade, Executive Officer, is substantially different and junior to Class I (Senior Scale) Officer referred to above. Comparing the different dates on which the petitioner and Mr. Muhammad Zaman Khan were promoted to different posts, it would appear that on the day when the Promotion Board made the recommendation, Muhammad Zaman Khan was definitely senior to the petitioner if for no other reason for the one that Muhammad Zaman Khan was in a post senior to one which Mr. M. A, Khan held. Subsequently, however, it appears that the Ministry of Defence realized certain mistakes, and as a result thereof, the previous Notifications with regard to the reinstatements and the postings of Mr. M. A. Khan, the petitioner, were corrected. The Corri genda No. 744/55 which appeared in the Gazette of Pakistan of September 2, of the year 1955. read as under :‑ "The following amendments are made to Min. of Def. Notifications No. 167/53, No. 168/53, No. 482/53, No. 77/54 and 59/55 relating to Mr. M. A. Khan's reinstatement, appointment, and confirmation in the Pakistan Mili tary Lands and Cantonments Service Class I (Senior Scale):‑ (ii) In Min. of Def. Notification No. 167/53.‑For the words and figures " as class I (Junior Scale) Executive Officer in the said service with effect from the 15th January 1953, from which date the orders of his suspension from service notified vide Min. of Def. Notification No. 763/51, dated the 28th September 1951, are withdrawn" substitute the following : "In Class I (Senior Scale) with effect from the 1st January 1949. The orders of his suspension from service notified vide Min. of Def. Notification No. 763/51, dated the 28th September 1951 are withdrawn with effect from the 15th January 1953. The period of his suspension from 9th December 1947 to 14th January 1953, has been treated as duty for all purposes, e.g., leave, increments and pension, but his pay during the aforesaid period of suspension has been restricted under F. R. 54 (b) to the amount of subsis tence allowance already drawn by him." (iii) In Min. of Def. Notification No. 168/53.‑At the end add the following : "He has been granted joining time for the period from 15th January 1953 to 22nd January 1953 (both days inclusive)." (iv) In Min. of Def. Notification No. 482/53.‑Below Serial No. (2) insert Serial No. (2)‑A, as under : "(2)‑A Mr. M. A. Khan from 1st January 1949." (v) In Min. of Def. Notification No. 77/54.‑For the words and figures "as Military Estates Officer, Peshawar Circle and promoted to officiate in Class I (Senior Scale) in an existing vacancy, with effect from the 2nd December 1953 (F. N.) " substitute the following : "as Military Estates Officer, Peshawar Circle 2nd Decem ber 1953 (F. N.)" (vi) In Min. of Def. Notification No. 59/55.‑(a) Below Serial No. (1) insert Serial No. (1)‑A, as under: "(1)‑A. Mr. M. A. Khan; Class I (Senior Scale), 1st January 1949." (b) Delete Serial No. (4) and connected entries and renumber remaining Serial numbers accordingly." The effect of this corrigenda was that the petitioner became Class I (Senior Scale) Officer with effect from the 1st of January 1949. The date of his suspension which was from 9th December 1947 to 14th of January 1953, was treated as that on duty for all purposes, for example leave, increments and pension, although his pay during the aforesaid period of suspension was restricted under F. R. 54 (b) to the amount of Subsistence. Allowance already drawn by him. He was granted joining time from the 15th of January to the 22nd of January 1953. He was posted as Military Estate Officer, Peshawar, on the 2nd of December 1953. Muhammad Zaman Khan, on the other hand, was confirmed as Military Estates Officer, by the Ministry of Defence Notification No. 255/50 with effect from the 26th of February 1950. The post of the Military Estates Officer, as has been stated above, is in Class I (Senior Scale) post, and Muhammad Zaman Khan, having been appointed to this post after the petitioner was confirmed as Class I (Senior. Scale) post, became junior to him. The learned counsel for the respondents argued that Exh. B‑1, the Government of Pakistan Ministry of Defence's Communication No. '89/1/G/D‑5/53, dated the 7th of January 1955, shows that not only Mr. M. A. Khan and Muhammad Zaman Khan, but Tai Muhammad Nasir, A. R. Qureshi, Karamatullah, Umar Faruq and Z. K. Mahmud were all confirmed in Class I (Senior Scale) on one day i.e., 1st January 1949. This would show that M. A. Khan is not senior to Muhammad Zaman Khan. Reference to Exh. B. 2, 101/12/G/3/D‑5/47, dated the 14th of June 1956, however, shows that originally in the communication referred to above, Mr. M. A. Khan's name was placed at No. 4 on the list. By letter (Exh. D. 2) it was ordered that he should be placed as 1‑A on the list. This clearly shows that Mr. M. A. Khan was placed Senior to Muhammad Zaman Khan. The docu mentary evidence placed on the record unmistakably shows that M. A. Khan, the petitioner, is senior to Muhammad Zaman Khan. Being senior, then it was his right if the appointment was to be made on the basis of seniority alone, to be appointed the Deputy Director of Lands and Canton ments in preference to Muhammad Zaman Khan. He was admittedly senior to A. R. Qureshi, and. therefore, if he had been appointed as D. D. M. L. and C. at the time when Muhammad Zaman Khan was appointed so, the question of his appointment as such when A. R. Qureshi was appointed, would not arise. The learned counsel then invited our attention to the different representations made by the petitioner and the reply given to him, particularly Communication No. 101/1/12/ G/3/D‑5/47, Dated the 26th of January 1954, and I01/G/ D‑5/56., dated the 8th of February 1956. In both these letters, M. A. Khan petitioner was informed that his case was considered by the Board for the appointment as D.D.M.L. and C., and it was found that Muhammad Zaman Khan was more suitable than him for the same appointment This obviously seems to be wrong, because as is made clear in a' 81/1/G/D‑5/50, dated the 31st August 1953, Muhammad Zaman Khan's appointment was made as a result of the recommendation made by the Board and the recommenda tion of the Board was based purely on the fact that Muhammad Zaman Khan was senior to every one else. The question of suitability of one, and for that reason, to give him preference over the other, did not at all arise. We seem to be however completely helpless in the matter. All that we can do is that we can give a declaration to the petitioner that at the time Muhammad Zaman Khan was appointed the I Deputy Director, Military Lands and Cantonments, the petitioner was senior to him, and, therefore, should have been appointed as such. But then the appointment to this post under the Pakistan Military Lands and Cantonment Services, (Class I) Composition and Cadre Rules, 1955, has got to be made by selection and the seniority can only be considered when the claims of two or more candidates are equal in merits. If, we appoint the petitioner as a Deputy Director of Military Lands and Cantonments, then we would be usurping the functions of the Appointing Authority, which we have no business to do. We, however, wish to observe that if the petitioner is reinstated, then the Government should re‑consider the question of the appointment of Muhammad Zaman Khan as D. D. M. L. and C., in view of the changed circumstances, viz., subsequent to the appoint ment of Muhammad Zaman Khan, the petitioner has been made senior to him. Even if the petitioner is compelled to retire still we think the Government should consider this fact, because that is bound to effect his pension. Before I conclude this judgment, I must with disgust and disappointment refer to a document, which I should have treated with the contempt that it deserved if the learned Additional Advocate‑General had not attached undue impor tance to it. This document is the Government of Pakistan, Ministry of Defence Communication No. 89/2/G/D‑5/50, dated Rawalpindi the 19th of June 1956. By this document Muhammad Zaman Khan's confirmation as the Military Estate Officer was pre‑dated. The new date was 15th of August 1947. I have no doubt in my mind that this com munication which has been issued after the date of the institution of the writ petition (28th February 1956) is a clumsy, but a crafty attempt on the part of the authorities concerned to give a legal appearance to the wrong done to the petitioner by appointing Muhammad Zaman Khan as Deputy Director, Military Lands and Cantonments on the ground of seniority when on that day he did not enjoy that position. I am afraid I cannot be pursuaded to agree to the Government perpetuating the wrong done to a certain person by issuing certain orders subsequent to the date when the v person wronged seeks redress from the Court of Law under Article 170 of the Constitution of the Islamic Republic of Pakistan. It has happened that after a Court of Law has held that a certain wrong has been done to a certain individual that wrong is not undone, but, on the other hand, is legalized. This attitude of the Government which has the effect of undermining its own as well as the Court's prestige must be condemned by all persons who value the fundamental rights granted to an individual by the newly framed Constitution of the Islamic Republic of Pakistan. The result of the above discussion is, that while we dismiss the petition of M. A. Khan, we give a verdict in his favour that at the time when Muhammad Zaman Khan was appointed as D. D. M. L. and C., he was senior to him. There will be no order as to costs in this petition. HABIBULLAH KHAN, J.‑I agree. A. H Writ refused but declaration granted.