P L D 1961 Supreme Court 605 (PLP)

S. A. RAHMAN, J.‑This certificated appeal, from a Full Bench judgment of the High Court of West Pakistan, raises the question whether an Assistant Stores Officer in the Central Medical Stores Depot, Nowshera, a Military establishment, belongs to a Civil Service of the Federation of Pakistan, within the meaning of Article 181 of the late Constitution. The point arose for decision on a petition for writ, presented by the respon dent. S. A. H. Bokhari, who occupied a post of that description, to call in question his dismissal from service by the relevant authorities. The question has been answered in the affirmative by the High Court. The Government of Pakistan and the Officer Commanding, Central Medical Stores Depot, Nowshera, are the appellants before us and they challenge the decision of the High Court as incorrect. It appears that on the 14th of October 1955, Notification No. 860/55, was issued by the Government of Pakistan, reading as follows :‑ "The civilian posts under the Ministry of Defence shown in Schedule I, shall be included in the General Central Service, Class I (Gazetted). 2. The civilian posts under the Ministry of Defence shown in Schedule II, shall be included it the General Central Service, Glass II (Gazetted). 3. * * * * * * * * * * * 4. * * * * * * * * * * * * * * * * * * * * * * * SCHEDULE II 1 to 8 * * * * * * * * * * 9. Medical Services. * * * * * * * * * * 37. * * * * * * * * * * 38. Assistant Stores Officers." The Assistant Stores Officer's post is described as that of a "Civilian Gazetted Officer" and this is not a point of dispute between the parties. On the strength of the notification set out above, the High Court found that the respondent, as the holder of such a post, was within the protection afforded by Article 181 of the late Constitution, despite the fact that the post in question happened to be connected with defence." The main argument advanced by Mr. Ghias Muhammad, on behalf of the appellants; is that a post "connected with defence" is excluded from the purview of Article 181 of the late Constitution. In support of this argument he relied on the language of Articles 180 and 181 of the Constitution. These Articles, so far as they are relevant to the instant case, are reproduced below :‑ "180.‑Except as expressly provided by the Constitution‑ (a) every person who is a member of a defence service, or of a civil service of the Federation, or of an All‑Pakistan Service, or holds any post connected with defence, or a civil post in connection with the affairs of the Federation, shall hold office during the pleasure of the President, and (b) * * * * * * * * * * * 181.‑(1) No person who is a member of a Civil service of the Federation or of a Province, or of an All‑Pakistan Service, or holds a civil post in connection with the affairs of the Federation, or of a Province, shall be dismissed or removed from service, or reduced in rank, by an authority subordinate to that by which he was appointed. (2) No person as aforesaid shall be dismissed or removed from service, or reduced in rank, until he has been given a reasonable opportunity of showing cause against 'the action pro posed to be taken in regard to him: * * * * * * * * * * * * From the fact that the phrase "any post connected with defence which occurs in Article 180, is not repeated in Article 181, learned counsel argues that the holders of such posts cannot invoke Article 181 to their aid in disciplinary matters. He suggests that the notification on which the respondent relied did not have the effect of taking his post out of the description "connected with defence." The notification, he says, was merely issued to classify certain civilian posts in the Defence Ministry, for the purpose oil enabling them to take the benefit of certain rules on the subject of T. A. etc. He repudiates the view that the notification was intended to give the incumbent of such a post the benefit of the Civil Services (Classification, Control and Appeal) Rules, or that the notification had any relevance to Rule 17 of those Rules. The High Court has found that the Civil Services (Classification, Control arid Appeal) Rules, which had been originally framed under section 96‑B 2) of the Government of India Act, 1919, by the Secretary of State for India‑in‑Council were continued is force with the necessary adaptations, by the various constitutional 'instruments which replaced that Act, from time to time, right up to the present day. This finding has not been controverted in appeal before this Court and the conclusion arrived at by the High Court in this behalf appears to us to be plainly right. Rule 14. of those Rules classifies public services and one category mentioned therein is the Central Services, Class II. Rule 17 of these Rules is important, and is expressed in the following terms :‑ "17. The Central Services, Class II, shall consist of such services (other than the services included in Schedules I and II) under the administrative control of the Governor‑General‑in -Council or the Local Government of a Province other than a. Governor's Province, as the Governor‑General‑in‑Council may from time to, time declare, by notification in the Gazette of Pakistan, to be included in the Central Service, Class II : Pro vided that one of the services so included shall be entitled the General Service." The notification issued by the Government of Pakistan on the 14th October 1955, which is pressed into service by the respondent, is clearly referable to this rule. Mr. Ghias Muhammad was unable to point to any other provision of a statute or rule under which this notification could have been issued. The late Constitution itself does not define the expression "civil service of the Federation" and as pointed out by the High Court, it must, therefore, be understood in the same sense as appears from the Civil Services (Classification, Control and Appeal) Rules. The notification, consequently, has legal sanction behind it. The Department itself appears to have been construing this notification as conferring a civilian status on the respondent so as to give him the benefit of Article 181 of the late Constitution. The letter of appointment which was issued to the respondent on the 6th of May 1949, when he was posted as an Assistant Stores Officer is printed in the record at p. 45 and it clearly mentions that he eras being appointed in the Central Services Class II. It is further significant to note that in the High Court, in answer to the writ petition, the Government took up the position that the provisions of Article 181 of the late Constitution had been complied with and the point that the Article was not applicable at all, was not raised. It was only after some additional grounds for the petition had been put in, that in a further written statement, the alternative point was raised that Article 181 was not attracted to the case of the respondent. That the Government contemplated before the issue of the notification, in question the application of the Civil Services (Classification, Control and Appeal) Rules to civilian posts in the defence services also appears from the Pakistan Armed Services Orders, dated the 22nd September 1953. The Annexure to P. O. A. No. 677/53 contains the following passages :‑ "I am directed to say that uncertainty appears to exist in the Armed Forces Head Quarters with regard to the authorities competent to make first appointments of civilian gazetted posts in the Defence Services and to impose penalties on the holders of such posts. In accordance with the Civil Services (Classifica tion, Control and Appeal) Rules, the authority competent to make first appointment to Class I and Class II posts and to impose penalties on incumbents of those posts is the Governor -General‑in‑Council * * * * * Since the gazetted posts tenable by civilians of the Defence Services have not yet been classified, it has not been found possible to apply to them the rules mentioned in para. 1 above, nor to delegate powers of the Governor‑General to any authorities in respect of Class II officers. Necessary action is being taken by this Ministry to complete classification of services, and posts tenable by civilians of the Defence Services and to frame suitable rules to regulate their discipline and conduct." It appears that the action under consideration of the Government culminated in the notification mentioned above. The conduct of the relevant authorities is consistent with this position. At p. 46 of the record is the show‑cause notice issued to the respondent and it clearly mentions that the notice was being given under Article 181 (2) of the late Constitution. It is now too late in the day for learned counsel to suggest that Government had never intended to include posts such as the one held by the respondent within the Central Civil Services, or that Article 181 of the late Constitution was not to be made applicable to them. The view contended for by Mr. Ghias Muhammad would lead to anomalous results. It is well‑known that members of the Civil Service of Pakistan have been and are occupying posts in the Secretariat of the Defence Ministry. These posts fall within the general expression "connected with defence," and if learned counsel's position be correct, as soon as they are seconded to the Defence Ministry, they lose the protection of Article 181 of the late Constitution. The protection would, as a logical conclusion, revive as soon as they go out of the Defence Ministry. Difficulties of this character could be avoided by interpreting the two Articles 180 and 181 of the late Constitution so as to protect persons who occupy civil posts or belong to a Civil Service under the State, even though the posts they hold for the time being may be connected with defence." Article 181 qualifies the peremptory provisions of Article 180. There is no difficulty in assuming that a competent authority may include certain posts of a civilian nature, albeit "connected with defence," in a civil service of the Federation, by a notification under Rule 17 of the Classification Rules. The incumbents of posts covered by such a notification would then answer the description "member of a civil service of the Federation" within the meaning of Article 181 and to that extent the effect of Article 180 which makes their service terminable at pleasure because of their, posts being connected with defence, Would by modified by the requirements of Article 181. Mr. Ghias Muhammad invited our attention to a decision of this Court, Ghairat Hayat v. The Federation of Pakistan ((1960) 1 P S C R 132=P L D 1960 S C (Pak.) 227) and contended that the principle laid down in that case covered the instant case. Ghairat Hayat was a clerk in the 'Central Ordinance Depot, Rawalpindi. On the facts of that case, it was held that he did not fall within the description of "such person" in subsection (3) of section 240 of the Government of India Act, 1935 as he did not hold a civil post under the Crown. There was no evidence in that case that the appellant belonged to any civil service: The case is, therefore, distinguishable and affords no assistance to the argument advanced on behalf of the appellants. The fact again that rules have been framed by the Military authorities With regard to discipline of members of the service to which the respondent belongs, does not carry the matter any further for the appellants, inasmuch‑as those rules do not depart from the. provisions of Article 181 of the late Constitution. If there is any inconsistency between those rules and Article 181, it is clear that the rules would have to give way. The view that found favour with the High Court in this case appears to be plainly right and no ground has been made out for interference by this Court. The appeal is dismissed with costs A. H. Appeal dismissed.