P L D 1962 Supreme Court 367 (PLP)

CORNELIUS, C. J.‑

In this Writ Petition, the petitioners are a group of members of the Pakistan Police Service who were appointed as the result of an examination held in the year 1949. They may be described as the Competitioner Group. The respondents are firstly, the State of Pakistan, and with it, twelve members of the same Service, who were appointed other wise than by examination, and are the "ad hoc" appointees. The claim is for a writ of mandamus, addressed to the State, com manding the State,‑ (i) not to treat the ad hoc appointees as members of the Pakistan Police Service ; (ii) to cancel the orders whereby the act hoc appointees have been given seniority above the Competitioner Group ; and (iii) to make orders on the representations by the Competi tioner Group, levelled against the said orders, which have been pending for many years. Mandamus is a writ of discretion. The ground on which the Group asks the Court to declare that the ad hoc appointees were never validly appointed is a purely technical one, namely that at the time of their appointment the latter had exceeded the age limit of 24 years laid down in the Indian Police Service (Recruitment) Rules, 1927, which with necessary modifica tions are still in force. Reference was made to a memorandum issued by the Cabinet Secretariat in June 1950, permitting that 60% of appointments in the regularly constituted Services should be made permanent, and individuals might be confirmed therein "only if the officers concerned have been recruited in accordance with the relevant recruitment rules . . . . .". The ad hoc appointees were all confirmed with effect from dates between January and May 1950, but Dr. Nasim Hasan Shah states that the relevant orders were made after June 1950. In any case, the present date is about 12 years since the date of confirmation, and is altogether too late for claiming a direction to invalidate their appointments ab initio. The mandamus to procure such an effect must be refused. Again, it is not one of the purposes of a mandamus to obtain expedition in the making of orders by Government upon an administrative matter of which It is seized. The third relief claimed must therefore be refused. As to the orders of which cancellation is sought, these are of date the 31st March 1955, and the 22nd June 1956. Dr. Nasim Hasan Shah asks for implementation of an earlier letter from the Ministry of the Interior to the Chief Secretaries of the Provinces, dated the 29th June 1953, in which "principles" employed for settling inter se seniority of the three classes of recruits, viz. competitioners, War Service Men and ad hoc appointees were set out In five sub‑paragraphs. It should be pointed out, however, that with this letter, there was sent a tentative gradation list of all P. S. P. Officers, and representations against their placement were invited from all officers named in the list. Several representations were received, and after taking these into consideration, the Ministry issued fresh orders on the 26th October 1954, formulating fresh "principles" to ensure that "presumptive seniority" granted to ad hoc recruits would not adversely affect the earned seniority of serving officers. This was followed on the 31st March 1955, by announcement of a fresh decision, namely that ad hoc recruits would retain their "pre sumptive seniority" as provided by the letter of 1953, but would "as a class be junior to Exh. I. P. officers and the war‑service recruits". Certain consequential changes in the previously settled seniority list were accordingly made. It appears that representa tions were made by the ad hoc group as well as the Competitioner Group against this decision, and on the 22nd June 1956, a fresh decision was announced, viz., that the ad hoc recruits of 1949, were to be "junior to Exh. I. P. officers, war‑service recruits and the 1948 competitioners and senior to all others". The letter added that "the above orders are final" and representations against them were not to be entertained. Nevertheless representa tions were made, and Interim replies were sent saying in 1958 and 1961, that the matter was under active consideration, but as it still remains undecided, the Competitioner Group filed the present writ petition on the 12th February 1962. Dr. Nasim Hassan Shah admits that there is no statutory rut of seniority upon which he can rely, but he urges that the Court should accept, as equivalent to a rule, the instruction contained in a Memorandum issued by the Home Department in 1943, stating that it had been decided that "the seniority of an officer in a particular grade should be regulated" in accordance with the principle that "in the absence of special rules to the contrary, an officer's seniority in any grade should be determined by the date of hl permanent appointment in that grade". It is urged that the Court should accept this as binding upon the Government, although it was not expressed to be, and was not published as a statutory rule Reference was made in this connection to the recent decision of this Court in the case of Abdul Hamid (HLD1961SC105). The "principle" stated above is expressly subject to "special rules to the contrary". It is also subject to the admitted power of the Government to date a permanent appointment retrospec tively. Moreover, if the expression "special rules" is to be interpreted in the wide sense for which Dr. Nasim Hassan Shah himself contends, then the principles adopted in the letters of 1955 and 1956, may well qualify for the description, and have effect to modify the application of the Memorandum of 1943. The power of issuing a mandamus to the Government Is one which a Court, in the exercise of high responsibility, would not exercise unless it was satisfied that the action (or inaction) is clearly in violation of something having the force of law. In the present case, the directions issued and the "principles" followed from time to time exhibit fluidity In marked degree, and it is impossible for the Court to select any one of them for the purpose of issuing an irresistible direction to the Government to act in a particular way. This is the more so as the matter is expressly stated to be under the "active consideration" of the Government, whose power to vary its previous orders is undoubted. The petition is accordingly dismissed. A.H. Petition dismissed.