P L D 1971 Karachi 490 (PLP)

ABDUL QADIR SHAIKH, J.--‑The petitioner, Muhammad Ishaq Shaikh, Additional City Magistrate, Karachi, seeks to challenge the Order of the Governor of Sind, passed under sub‑rule (2) of Rule 3 of the West Pakistan Government Servants (Extension in Service) Rules, 1968 terminating the extension in service granted to him by which he was otherwise to continue in service up to the 4th of May 1971. It has been directed in the impugned order that the petitioner shall be paid a sum equivalent to 3 months salary in lieu of the notice required under the Rules. The learned counsel for the petitioner vehemently urged that since the petitioner is holding a judicial office, the extension fin service cannot be terminated under the Rules which, in any case, are ultra vires and repugnant to the provisions of Article 178 (3) (a) of the 1962‑Constitution. It is admitted that the petitioner belongs to the P. C. S. (Executive) cadre, and it may be said that the posts of the Additional City Magistrates in Karachi are also borne on the P. C. S. (Executive) cadre, and not on the P. C. S. (Judicial) cadre. The notification of the West Pakistan Government bearing No. S. P. 6‑17/66‑SOX dated 4‑5‑1970 by which the petitioner was granted extension in service has not been produced before us, but it is not denied that the service of the petitioner was extended against a P. C. S. (Executive) post. The position, therefore, is that although the petitioner holds an Executive office he is posted as Additional City Magistrate, Karachi and is, therefore, undoubtedly performing a judicial function. The question therefore is whether he is holding a judicial office in the meaning of Rule 3 (2) of the West Pakistan Government Servants. (Extension in Service) Rules, 1968. The word "Judicial Office" has not been defined under the Rules; the learned counsel for the petitioner, therefore urged that resort should be made to the ordinary dictionary meaning. But we may firstly refer to the history of the legislation on the subject, which has an important bearing. By the Constitution (VI Amendment) Act, 1966, it was provided that the Competent Authority in relation to a person holding a civil post, may extend his service beyond the age of retirement, except for the purpose of the performance of any judicial function, This embargo was later on removed by the substitution of clause 5 of Article 178 by the Constitution (VIII Amendment), Act 1967. It was, however, laid down that the extension in service beyond the date of retirement shall be subject to such conditions if any, as may be prescribed by Rules made in that behalf by the authority competent to prescribe the terms and conditions of service of such person under clause 2 of Article

178. It was in the exercise of the powers conferred upon him by this sub clause that the Governor of West Pakistan made the West Pakistan Government Servants (Extension in Service) Rules, 1968. It is provided in sub‑rule (1) of Rule 3 that the service of a Government servant extended under clause 5 of Article 178 shall, subject to sub‑rule (2), be on the same terms and conditions of service as were applicable to him immediately before such extension. Sub‑rule (2), lays down that except when he was holding a judicial office, the extended service of a Government servant shall be liable to be terminated by not less than 3 months' notice on either side or upon payment of a sum equivalent to 3 months' salary of the Government servant in lieu thereof. The framers of these constitutional rules thus made a clear departure from the language used in clause 5 of Article 178 of the 1962 Constitution as was amended by the VIth Amendment. In order to appreciate this aspect the constitutional provision is reproduced hereunder:‑ Article 178 (S).‑Notwithstanding anything contained in paragraph (c) of clause (4), the competent authority may, except for the purpose of the performance of any judicial function, extend the service of a person beyond, or re‑employ a person after, the date of his retirement under that para graph for such period and on such terms and conditions as it may deem fit." We may also reproduce rule 3 of the West Pakistan govern ment Servants (Extension in Service) Rules, 1968; "3 (1). The service of a Government servant extended under clause (5) of Article 178 shall, subject to sub‑rule (2), be on the same terms and conditions of service as were applicable to him immediately before such extension. (2) The service of a Government servant extended under clause (5) of Article 178 shall, except when he is holding a judicial office, be liable to be terminated by not leas than three months' notice on ;either side or upon payment of a sum equal to three months' salary of the Government servant in lieu thereof. (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . " It is noteworthy to point out the distinction between thei words "the performance of any judicial function," and "holding of a judicial Office." If legislative intention has any meaning, then a person performing a judicial function is not necessarily holding a judicial office. If protection to an Officer performing a judicial function was intended, the Rule‑making Authority would not have departed from the language of the VIth Amendment of the Constitution. We are, therefore, clearly of the view that it is only when a person is holding a judicial office that he can seek the protection of sub‑rule (3), and not by the mere fact that he is performing any judicial function. The petitioner is otherwise holding an executive post in the Provincial Government, and the fact that he is performing a judicial function, would not entitle him to the protection of sub rule (2). Attack on the vires of the Rules was made on the ground that these are repugnant to the provision contained in Article 178(3)(a) of the 1962‑Constitution. On being ‑ pointed out that rules were framed under clause (5) of Article 178 of the 1962 Constitution, the learned counsel withdrew the challenge. No other point having been urged, we see no substance in this petition, and dismiss it in (mine. Petition dismissed.