P L D 1966 (W (PLP)

"The provisions of last three sections shall apply in relation to persons who, not being members of his Majesty's Forces, hold, or have held, posts m India connected with the equipment or administration of those services or otherwise connected with Defence, as they apply in relation to persons who are, or have been members of those services." The three preceding sections of the Act, namely, 235, 236 and 237 provided for the control of the Secretary of State for India with respect to the conditions of service of His Majesty's Armed Forces in India, preserved their existing right of appeal and memorial to him and made their pay and allowances, etc. a charge on the Federal services. "Thus, under the Constitution Act, civil personnel employed in Defence Establishments were, for the material purposes, placed at a par with members of Armed Forces. Provisions relating to the conditions of service, etc. of "Civil Services" were contained in Chapter II ibid, which inter alia, provided safeguards against arbitrary dismissal, etc. But the] Armed Forces, and the civil personnel employed in Defence Establishment and paid out of defence estimate were excluded from the purview of Chapter Il and, therefore, the safeguards against arbitrary dismissal,. etc. contained in section 240 (3) of the Act did not avail to them.

5. The fact that there was no separate provisions in the 1956 Constitution corresponding to section 238 of the Consti tution Act did not make any difference for we reach the same conclusion from the comparative reading of Articles 180 and 181 in Chapter I of Part X of the 1956 Constitution which relate to the Services of Pakistan. It is important to observe that unlike the provisions of the Constitution Act the 1956 Constitution (which governed the petitioner's case) and did not contain any separate provision relating exclusively to Defence Services as distinct from Civil Services. Article 180 (a) of the 1956 Con stitution sets out various categories of persons in the Service of Pakistan who held office during the President's pleasure, and included both the Defence and Civil Services. They are- (i) members of a defence service, (ii) members of a Civil Service of the Federation, (iii) members of an All Pakistan Service, (iv) persons who holds post connected with defence, and (v) persons who hold civil post connected with the affairs of the Federation. On the other hand, clauses (1) and (2) of Article 181 which in so far as they abridged the President's pleasure against arbitrary dismissal, etc. availed only to

(a) members of a civil service of the Federation, (b) members of All Pakistan Service, and (c) persons who held civil posts in connection with the affairs of the Federation. From the above analysis of the two provisions of the Constitution two conclusions are obvious first that persons holding posts connected with defence referred to in (iv) above area category of persons distinct from members of a defence service and holders of civil posts in connection with the affairs of the Federation referred to in (i) and (v) above, respectively, and second that constitutional safeguards in Article 181(1) and (2) against arbitrary dismissal, etc. do not avail the members of a defence service and holding posts connected with defence and in that respect the two categories of persons stand on the same footing. A fortiori the constitutional safeguards provided in Art. 181 of the 1956 Constitution did not apply to the petitioner and his writ petition is not competent.

6. The above view finds full support from the judgment of the Supreme Court in Ghairat Hayat v. Federation of Pakistan (P L D 1960 S C 227). That was a case of a civilian clerk employed in the Central Ordnance Depot, Rawalpindi, who was dismissed from service by the Commandant of the Depot on certain charges of misconduct. He avoided answering the charges on the plea of further and better, particulars of the charges. Even against the final show-cause notice the delinquent insisted on further particulars of the charges framed against him before he was able to submit his explanation. The Commandant, however, dismissed him from service. On the basis of these facts, Ghairat Hayat moved a petition for a writ in the nature of mandamus on the ground that he was a member of "Civil Service" and held a "civil post" under the Crown and, therefore, the provision of section 240 (3) of the Government of India Act, 1935, applied to his case and no reasonable opportunity having been allowed to him, the order of his dismissal was ultra vires the provisions of the Constitution Act. In repelling the above contention Munir, C. J., observed as follows:

"The appellant was on the establishment of the Ordnance Depot which essentially is a Military institution. Under section 238 of the Government of India Act, the provisions of section 235 apply in relation to persons who, not being members of his Majesty's Forces, hold, or have held, post in India connected with the equipment or administration of those Forces or otherwise connected with the Defence; as they apply in relation to person who are, or who have been, members of those Forces. It is not disputed that the personnel of the Depot in which the appellant was employed came within the purview of this section . . . . . what has to be determined in this case is whether the appellant was member of the Civil Service or held a civil post under the Crown for the purposes of subsection (3) of section 240 of the Government of India Act and the answer to this question in the state of the record must clearly be in the negative. The appellant was an employee of the Ordnance Depot which is an important Military Depart ment and there is nothing to indicate that that Organization either employs persons on civil posts or borrows the services of members of any civil service and that the appellant belonged to any such civil service. And if the appellant does not answer the description of "such person" in subsection (3) of section 240 it is obvious that he did not have the constitutional right to a reasonable opportunity of showing cause against dismissal." To the same effect is the unreported judgment of this Court in Writ Petition No. 800 of 1958, in which incidentally the petitioner, like the petitioner in the instant case, was an employee of the Military Farm at Okara. The learned Judges (Kayani, C. J., and Khamisani, J. upon a review of the relevant provisions of the Government of India Act and the Pakistan Army Orders relating to maintenance of discipline among the civilian personnel in the De fence Establishment, came to the conclusion that the constitutional safeguards in section 240 (3) of the 1935 Act were not available to civilian employees in the Defence Establishment. The same view has been affirmed in the recent judgment of the Supreme Court in Pakistan v. Muhammad Ayub Khan which was also a case under the 1956. Constitution. That was a case of an. Overseer employed in the M. E. S. Department, who was charged with misconduct committing during a departmental examination which were held proved. A notice to show cause against him proposed removal having issued, he was removed from service. He filed a writ petition in the High Court on the ground that no proper opportunity to show cause had been afforded to him. The Government opposed the writ, inter alia as the ground that he held a post connected with defence and, therefore, he had no locus stand to file the writ petition. The learned Judges in the High Court relying on Bokhari's case which will presently be noticed, came to the conclusion that the petitioner in that case was holder of a civil post in connection with the affairs of the Federation and not having been afforded reasonable opportunity to defend himself the constitutional guarantee contained in Article 181 was violated and accordingly a writ was issued against the Government. On appeal by the Go vernment, the judgment of the High Court was reversed. Upon a comparative examination of the terms of Articles 180 and 181 of the late Constitution, Kaikaus, J. observed as follows:- "Turning back to Article 180, it will appear that it mentions some categories of services and two categories of posts. A post is either one in connection with defence or it is a civil post. Prima facie this division of posts into posts connected with defence and civil posts means that the two categories are exclusive of each other so that if a post falls in one category it cannot fall in the other. Nothing has been said before us in argument which might negative this inference. "The effect is that if the respondent be holding a post connected with the defence he cannot be holding a civil post."

8. Government of Pakistan v. S. A. H. Bokhari, upon which the learned counsel for the petitioner strongly relied was the case of an Assistant Stores Officer in the Central Medical Stores Depot, admittedly a military establishment. Agreeing with the judgment of a Special Bench of this Court, their Lordships of the Supreme Court held that Bokhari belonged to a civil service of the Federation of Pakistan within the meaning of Article 181 of the 1956 Constitution. But the decision in that case proceeded entirely on the Notification No. 860/55, issued by the Govern ment of Pakistan on the 14th of October 1955, whereby a number of civilian posts under the Ministry of Defence set out it D Schedules I and II to the Notification were "included" in General Central Service Class I (gazetted) and General Central Service Class II (gazetted). The post of an Assistant Stores Officer held by Bokhari was included in Schedule II as Class II Gazetted post. On the basis of this Notification, their Lordships held that the post held by him was that of "a civilian gazetted officer" entitled to the protection under Article 181 of the 1956 Constitution despite the fact that the post happened to be con nected with defence. In our opinion that case proceeded entirely on the Government Notification which their Lordships held had the effect of giving the status of "a holder of civil post" to Bokhari, the fact, that he was employed in defence establishment notwith standing. There is no such notification in favour of the petitioner herein. On this view of the matter, it is unnecessary for us to consider whether their Lordships have in the case of Muhammad Ayub Khan departed from the view taken earlier in Bokhari's case. However, a point which does not appear to have been canvassed for their Lordships' consideration in that case is whether the Gazette Notification issued by the Executive, could abolish the distinction created by the express provisions of the Constitution, between the Defence Forces and Civil personnel employed in Defence Establishments on the one hand and members of a civil service or holders of civil posts on the other? As explained already, this distinction "was not fortuitous but was deliberate, which was intended to place the members of Defence Force and civil personnel employed in Defence Establishments under the President's absolute pleasure for maintenance of rigid discipline in the Defence Forces and those who were engaged in the Establishments necessary for providing equipment and other needs of Defence Forces. In our humble opinion, a Gazette Notification cannot abolish the distinction in the relevant field any more than it can deprive the members of an established civil service or holders of civil posts in connection with the affairs of the Federation of constitutional safeguards by declaring them (even notionally members of Defence Services or employees of Defence Establishments. A member of a Civil Service, regardless of his appointment or nature of his duties, so long as he remains a member of such Civil Service will be entitled to all constitutional safeguards. It will be a question of fact to the determined in each case as to under what category of persons, a petitioner's case falls, for the relevant purpose. Be that as it may, we are of the opinion that .the instant case is fully covered by the dicta of their Lordships of the Supreme Court in the cases of Muhammad Ayub Khan and Ghairat Hayat.

9. Quite apart from that, the petitioner has no case on merits either. The inquiry against the petitioner was held under Annexure to I. A. O. 1302/45, as modified by P. A. O. 278/50, which laid down procedure for inquiries against civil personnel in Defence Establishments. It was not denied that on an objection by the petitioner as to the constitution of Court of Inquiry a fresh Court of Inquiry was constituted which found the charges proved against him. There is no substance is the plea that fresh charges could not have been added to the charges initially framed against the petitioner. On the conclusion of the inquiry by the second Court of enquiry he was asked to show cause against his proposed dismissal from service. Therefore, it is futile, in these circum stances, to contend that he had had no reasonable opportunity to defend himself or to show cause against his proposed dismissal .as required under annexure to I. A. O. 1302/45 read with P. A. O. 278/50. In any case, rules of procedure laid down therein were in the nature of departmental instructions and would, F therefore, not sustain a writ for their violation (See Venkata Rao v. Secretary of State for India (A I R 1931 P C 31) and Noor-ul-Hassan and another v. The Federation of Pakistan (P L D 1956 S C (Pak.) 331)).

10. For the aforesaid reasons, we dismiss the - writ petition. We, however, make no order as to costs. K. M. A. Petition dismissed.