1976 PLP [C (PLC(CS))

7. In support of the contention, reliance has been placed on:‑ (a) section 9 of the Indian Independence Act, 1947, read with article 3 of the Punjab Partition (Civil Services), Order, 1947. (b) rule 3 of the Central Government (Gazetted) Civil Services (Revision of Pay) Rules, 1951.

8. The appellant was promoted as officiating District and Sessions Judge in December, 1951 and was confirmed in the post with effect from 1st February, 1954. As the emoluments drawn from time to time in the ordinary Grade of the post of District Judge are not in dispute before us, it is not necessary to refer to the provisions of the Central Government (Gazetted) Civil Services (Revision of Pay) Rules, 1951, for the purpose of letter No. 25‑35‑50‑SEI, dated 23‑7‑19.53, issued by the Establishment Division of the Cabinet Secretariat regarding fixation of pay of officers of the Provincial Civil Service appointed to hold superior posts the cadre of the Civil Service of Pakistan in the Provinces.

9. Powers (to impose a cut in the salaries) conferred on the Government of Pakistan by the proviso to subsection (2) of section 10 of the Indian Independence Act, 1947, as added by the Indian Independence (Second Amendment) Act, 1948, taking away the protection earlier granted to officers appointed even by the Secretary of State or the Secretary of State in Council are held to be valid (Faizullah Khan v. Government of Pakistan.

10. The learned counsel tried to explain that the case of the appellant is distinguishable from that of Khan Faizullah Khan thereby contending, the Supreme Court judgment in that case is inapplicable. The point of distinction is that the appellant's case is one of grant of pay in the Selection Grade and the other that of ordinary grade, protection being claimed in each case. In either case, there is no escape from the application of Rules. The point at issue in this case however is whether any protection is available and if so to what extent or in what respect.

11. It is evident from the Establishment Division's letter No. 25/118/54 EII, dated 9th December, 1959, that the approval of the President was conveyed to the Provincial Government to the conversion of one of the ordinary grade posts of District and Sessions Judge to that of a Selection Grade Judge in the former Punjab Province from 15‑8‑47 and that the pay of the post would be Rs. 3,000 for officers of the former I. C. S. and for those who are (were) protected in the old I. C. S. scale and for those officers not so entitled and drawing pay in the prescribed scale, the pay in the Selection Grade would be Rs. 2,000.

12. The full rates of pay were however to be admissible to only such of the officers who had completed 17 years Class I Service. The pay of such of the officers who had not completed the requisite length of service was to be restricted and fixed in the grade in accordant with the formula laid down in the Pay Revision Rules of 1951.

13. We do not agree with the view that the order regarding the conver sion of one of the posts in the Selection Grade and the method of fixation of pay in the post was unnecessary.

14. It would be seen that the orders regarding conversion of one of the posts of District Judge in the cadre into the Selection Grade and the restriction in regard to the drawal of full pay in the grade were issued on 9‑12‑1959 (although given effect from 15‑8‑1947, obviously to regularize the past cases) were in existence prior to the Notification regarding the grant and promotion to the Selection Grade. The Notification is dated 22‑1‑1960.

15. Pay in the ordinary Grade had already been drawn from time to time at the admissible protected rates. There being no mention regarding any Selection Grade in the relevant orders, no protection was in. fact available for fixation of pay in the Selection Grade of Rs. 3,

000. The protection was provided through this very order to such of the officers (e. g. the appellant) "who are protected in the old I. C. S. Scale". But for this protection, the pay would have been fixed in the Grade of Rs. 200 subject to the restriction in regard to the length of service.

16. We hold that the condition regarding the length of service for drawal of full pay is part of the orders whereby Selection Grade was allowed by conversion of one of the ordinary grade posts and that it was applicable in the instant case in the matter of fixation of pay.

17. Apart from the fact that the appeal is time‑barred it cannot be sustained on merits. The petition is therefore dismissed.

18. Parties should be informed.