P L D 1961 Supreme Court 105 (PLP)

Sharifuddin Peerzada, Senior Advocate Supreme Court (Muhammad Akram Advocate Supreme Court with him) instructed by S. M. Hanif Attorney Amicus curie. Dates of bearing: 14th, 15th and 29th November 1960. CORNELIUS, C. J.‑The appellant is the State of Pakistan, and the order challenged in the appeal is a writ of mandamus issued by a Division Bench of the High Court of West Pakistan at Karachi, in the following terms, viz.:‑ "a writ of mandamus to Government directing it to restore the petitioner (i.e. Sheikh Abdul Hamid) to his seniority on the basis of his continuous service since the 27th of May 1944. " Sheikh Abdul Haimd was at the time an Upper Division Clerk serving in the Ministry of Defence. We are informed that since then he has been promoted and is now an Assistant in the Ministry of Foreign Affairs, with a prospect of promotion to the post of Section Officer within a month or two. Sheikh Abdul Hamid was a member of the Ministerial Staff of the Government of Pakistan, and his service was governed in material respects by the terms of the Government of India Ministerial Establishment (Recruitment, Promotion and Seniority) Rules which, with necessary amendments deriving from the effects of the Partition, appear to be still in force in Pakistan. This seems to appear very clearly from an Office Memorandum issued by the Cabinet Secretariat, Establishment Branch, on the 15th March 1948, in which reference is made at a number of places to the aforesaid Rules. This Office Memorandum was intended to deal with the intricate problem, arising out of the Partition, of the absorption of surplus staff in the Ministerial Establishment of the Central Government Ministries and other subordinate offices. There had been two previous Memoranda of the 12th January 1948, and the 7th February 1948, to which reference is made in the O. M. of the 15th March 1948, but the latter Office Memorandum is expressed to contain the "final instruc tions" on the question of the absorption of staff. The language employed in this Memorandum which covers some 15 pages of the printed record is frequently explanatory in nature, giving thereby the impression that the instructions conveyed did not possess the directory effect of Rules, but in one of the opening paragraphs a reason is furnished for the use of such language, namely :‑ "As most of the Divisions and Departments do not possess copies of the various rules and instructions governing recruitment, security promotion, etc., of the Ministerial staff in the former (Government of India) Secretariat and its Attached Offices, it is necessary briefly to describe the position in this regard, before elaborating the detailed instructions by which to determine surplus staff." Yet, on a number of matters, the instructions laid down are sufficiently precise to have the character of rules of general applica tion, capable of enforcement in particular cases. That could be said, for instance, regarding the rule upon which Sheikh Abdul Hamid "placed his case viz., the rule relating to the seniority of persons who bad been considered fit for retention by Departmental Promotion Committees. This provision is contained in para graph 5. of the Office Memorandum, which treats of the cases of persons appointed or promoted temporarily to posts to which they could not under the rules be retained on a permanent basis. The paragraph is a lengthy one. It began by saying that the Government were under no obligation to retain the persons falling in this category who had come over to Pakistan, on a permanent basis, and that to get rid of them would be appropriate in view of the existing surplus staff, yet the Government were anxious to show them every consideration, and to retain in permanent service those "who can be considered fit for such retention, subject to the availability of adequate number of posts for them". There was then a provision for screening by Departmental Promotion Committees, who were to recommend names for permanent reten tion in the light of their past records, the quality of their present work, and their seniority where other considerations were equal. Next, the question was considered of the arrangement of such persons in an order of seniority, and the following instructions were laid down:- "Persons considered fit for retention both in the grade of clerks and assistants should be included in the lists for both the grades. For the purpose of determining their seniority inter‑se the simple and in the circumstances only practicable rule of continuous service in the grade (including service in a higher grade) whether in one or more than one departments or offices should be observed", subject to certain conditions which are not relevant for the purposes of the present case. A question of primary importance in the case was whether the above instructions were to be treated as a statutory rule which could be the foundation of a right in Sheikh Abdul Hamid to the treatment he desired. The High Court have dealt with the matter in the following way :‑ "These instructions have been issued by the Cabinet Secretariat which, according to the Rules of Business, can make rules governing the conditions of service of persons employed in connection with the affairs of the Federation. Since no express rules have been made, the instructions in question which govern the practice of these offices should be regarded as having statutory force." The conclusion appears to us to have been reached altogether too easily. Office instructions are manifold in their scope and are designed and expressed to be used as guidance for the conduct of the affairs of each Department, and on such instructions it is perfectly plain that no legal right can be founded. On the other, hand, a statutory rule has certain visible characteristics which must' be looked for and cannot be dispensed with, when the question arises of claiming upon the basis of such rule, a right in law. in rule requires to be expressed with precision, and yet to possess generality so as to be capable of application to a large number of cases. If it leaves scope for discretion, that should be expressly provided for. Ordinarily, it is necessary also that the making and promulgation of a rule should be attended by certain formalities e.g., publication in. a Government gazette. It is not enough that there is no express rule relating to a point to confer upon any existing office instruction that there may be, the status and validity, of a statutory rule. These considerations have obliged us to examine with anxious care whether in this particular case, the writ issued by the High Court can be sustained. The facts in so far as they are settled as a result of the proceedings in the High Court clearly indicate that there has been a measure of injustice applied to Sheikh Abdul Hamid. He joined service under the Government of India on the 27th May, 1944, as a temporary Lower Division Clerk in the Office of the Director‑General of Supply, and on the 24th December 1945, at his own request, he was transferred to the War Depart ment Secretariat. Then came the Partition, and he came over to Pakistan, where on the 24th September 1947, he was posted to General Headquarters at Rawalpindi, a posting with which he was not satisfied, for he made repeated representations to be restored to the Defence Ministry, and finally on the 30th March 1949, he was so restored. There he found that a number of clerks who had been junior to him at the commencement of his service had been promoted to be Upper Division Clerks. He represented against this and was informed that in December 1948, he bad, been reported upon a Departmental Promotion Committee as unfit for promotion, and later that he was considered again in September 1949, on the basis of the report on his work in the year 1948, and having been found fit was promoted as from the 7th December. 1949. But in the process, he had gone down from 4th place in the list of Lower Division Clerks to 7th place in the list of Upper Division Clerks. We may note here that the allegation as to the intervention of the Departmental Promotion Committee in his case remained unproved, despite opportunities being given to the Government to produce proof which should certainly have been in their posses sion. From ‑that time onwards, i.e., 1950 and until in the year 1957, when he finally issued a notice to the Government under section 80, Civil Procedure Code, he had been making representa tions to the Government against the treatment he had received, without receiving any satisfactory reply. He was told that his seniority was to be calculated from the 24th December 1945, the date on which he re‑joined the Defence Department, at his own request, and reliance was placed upon an order issued in 1946, by the Home Department of the Government of India, and an argument that the Office Memorandum of the 15th March 1948, should be applied was answered by saving that the later instructions only applied where seniority is fixed as a result of reshuffling and for future transfers" at a later stage. The Chief Administra tive Officer of the Ministry of Defence in a letter dated the 27th February 1950, went so far as to say that "Mr. Hamid may please be informed that no useful purpose will be served by further representations as the fixing of seniority is solely a matter for the Administrative Authorities." In 1954, Sheikh Abdul Hamid actually made a representation to the Governor‑General, but this was‑ not sent on by the Ministry of Defence. He filed his writ on the 22nd July 1957. There can be no question about the justice of the case put forward by Sheikh Abdul Hamid. His continuous service started on the 27th of May 1944, and no good reason has been put forward by the Department under which be serves or by the Government in the present case why for the purpose of placement in the seniority list, his service should start from the 24th December 1945, the date on which he was transferred at his own request to the Defence Department. The Home Department orders of 1946, have not been adduced in the case, and have not been relied upon before us. If the precise instructions in the Office Memorandum of the 15th March 1948, which has been quoted above be treated as a part of the Ministerial Establishment Rules, which have been mentioned, and which clearly have statutory effect, then indeed Sheikh Abdul Hamid has a case for the award of a writ to restore to him his proper rights. In giving consideration to this question, the first point which deserves mention is that in clause (c) of rule 1 of the Ministerial Establishment Rules, there is found a provision by which the Rules are made subject to orders contained in four Office Memoranda issued by the Home Department of the Government of India in 1931, 1934 and 1936, and it is said that this condition will continue B "for so long as those orders or any portion of them remain operative." These Office Memoranda are printed as appendices to the Rules. A perusal will show that in many respects they possess the same characteristics as appear in the Pakistan Office Memorandum of the 15th March 1948, namely that they are mostly expressed in the language of explanation and guidance, with here and there a provision in precise terms. This condition is certainly highly unusual in relation to statutory rules, and yet the Ministerial Establishment Rules, have statutory effect, and can form the basis of rights at law in favour of those to whom they apply.. We have then asked ourselves the question whether the Cabinet Secretariat Office Memorandum of the 15th March 1948, is not an instrument which is intended to be construed with the Ministerial Establishment Rules, and as part of those Rules. As has been seen, the particular provision upon which Sheikh Abdul Hamid basis his case is expressed in precise terms which are capable of being applied with particularity to a great variety of cases, and in particular, those instructions can be applied with exactness in the case of Sheikh Abdul Hamid. It is true that there are no words in the Rules which attract the incorporation of the C instructions in this Office Memorandum into the Ministerial Establishment Rules but that, it appears to us, is a formality of which sight my perhaps have been lost at the time when this Office Memorandum was promulgated. For, it is expressed to contain the final instructions applicable to a very large number of Ministerial employees, which were intended to regulate absorption into Government service of all these persons so far as possible. There is nothing to indicate that these instructions in the Office Memorandum were subsequently superseded, or that they have not been strictly applied in any case, much less that they have been departed from in relation to any considerable proportion of the cases arising under the Office Memorandum, which would be the necessary condition of holding that they were not intended by the Government to be of binding effect. It is upon these grounds that we find it impossible to accept the dictum of the Chief Administrative Officer in the Ministry of Defence that "the fixing of seniority is solely a matter for the Administrative Authorities." We consider that these Administra tive Authorities were governed in respect of the matter by the Ministerial Establishment Rules, and that for the purposes of a case such as that of Sheikh Abdul Hamid these Rules must be deemed to be amplified and adapted, in the relevant respect, by the Office Memorandum of the 15th March 1948, in so far as it governed the placement of clerks situated as was Sheikh Abdul Hamid in an order of seniority. We are conscious that the intervention of the Courts in matters of this kind has been the subject of comment in high judicial pronouncements of earlier dates. In the case of Vankata Rao (64 I A 55) the Judicial Committee had occasion to refer to the existence of Service Rules "manifold in number and most minute in particularity, an

all capable of change", and observed that though it was a logical proposition that an action would lie for breach of any of these Rules relating to "leave and pensions and very many other matters" the procedure "of control by the Courts over Government in the most detailed work of managing its services would cause not merely inconvenience but confusion." At the same time, the Judicial Committee observed that "incon venience is not a final consideration in a matter of construction." Yet, finding that there had been a breach of a statutory rule, they preferred to dismiss the appeal before them which was from a judgment of the High Court of Madras denying to Venkata Rao the legal relief in relation to the breach afore‑mentioned. They placed the justification of the dismissal on the grounds that the redress which the case called for was "the responsibility, and their Lordships can only trust will be the pleasure, of the executive government." We have considered the point of inconvenience in the present case, and are of the opinion that since Sheikh Abdul Hamid has now been promoted to a higher position, to allow him his seniority from a particular date, need not involve anything much beyond the correction of a few entries in his service book and perhaps some degree of accounting in respect of his salary, and that his posting need not cause disturbance to the postings of other officials who may be affected by the change. In any case, all service rules contain a residuary provision enabling the Government to deal with the case of any person under the rules according to justice and equity, so long as he is not treated less favourably than the rules require, that is to say, either in the case of Sheikh Abdul Hamid or in those of the persons whom he may supersede as a result of the writ, the Government can, within its plenary power make adjustments of a compensatory nature. As for leaving the matter of redress to the Government to be dealt within its high function of responsibility, whatever may have been the condition in 1936, when the Privy Council used the inspiring words which adorn the judgment in the case of Venkata Rao, we have to observe with regret that any expectation based on a similar belief today, would probably be illusory, at any rate in a comparative sense. The question was raised before us and an attempt was made to present a full argument upon it that no writ of any kind could issue to any Government in Pakistan since the making of the Laws (Continuance in Force) Order 1958, which varied the constitutional provisions on the subject of writs by‑ omitting words which empowered the Superior Courts to issue writs in appropriate cases to "any Government." Mr. Yahya Bakhtiar appearing for the State of Pakistan referred to certain English authorities, but we declined to hear the large argument involved on the ground that for the purpose of Sheikh Abdul Hamid, it would be entirely sufficient that the writ should be directed to the executive head on the administrative side of the Ministry in which he is serving, namely, the Ministry of Defence. The point of delay in applying for a writ was also raised, but it is quite clear that Sheikh Abdul Hamid was not lacking in diligence in making representations throughout the period from 1949, when he suffered the injury, up to 1957, when he filed the petition in the High Court. For these reasons, we dismiss the appeal with one slight modification, namely that the writ shall be directed to the Secretary in the Ministry of Defence, Government of Pakistan. Since the respondent did not incur any expenses on the engagement of counsel, we make no order as to costs. A. H. Order accordingly.