P L D 1967 Karachi 300 (PLP)

QADEERUDDIN AHMED, J.‑Four petitioners have filed this petition under clause 2(4) of the Laws (Continuance in Force) Order, 1958, read with the order of this Court dated 20th September 1963, made in writ petitions bearing No. 115/1961, 236/1961 and 404/1961. The order was made when the petitioners desired to withdraw their previous petitions on the ground that some of the necessary parties had not impleaded. While allowing the permission to withdraw the petitions Court ordered as follows: "We would permit the petitioners to withdraw the petitions and, if so advised, to file fresh petitions." Petitioners Nos. 1 and 4 were petitioners in Writ petition No. 115 of 1961 and petitioners Nos. 2 and 3 were petitioners in Writ Petition No. 404 of 1961. On the basis of the above order and virtually treating this petition as a continuation of the previous petitions which were withdrawn this petition has been filed as indicated above.

2. The petitioners have made the following prayer in paragraph 24 of the petition‑ "

24. That the petitioners, therefore, submit that this Hon'able Court be pleased to: (i) Issue a writ of mandamus or some other appropriate writ order or direction quashing the appointments as Section Officers of respondents 3‑20 and of other similarly placed which have been made in violation of the statutory rules and adversely affect the terms and conditions of service of the Petitioners guaranteed under Articles 182 and 232 of the 1956 Constitution. (ii) Issue a writ of mandamus or some other appropriate writ, order or direction commanding respondent No. 1 to act according to rules in the case of appointment to the posts of Section Officer, and to appoint petitioners who are eligible. (iii) issue a writ of certiorari or some other appropriate writ, order or direction quashing the clause V of the Scheme which has reduced the quota for promotion to the post of Section Officers from the Grade of Assistants to 9 % in breach of the terms and conditions of the service. (iv) Any other relief. (v) Cost of proceedings."

3. This petition is opposed by respondents Nos. 1 and 2, namely, Pakistan and the Federal Public Service Commission. Counsel for the respondents have raised three preliminary objection to its maintainability. They are as follows :‑ (2) Clause 2 (a) of the Laws (Continuance in Force) Order, 1958, is not applicable to it ; nor is this petition maintainable under Article 98 of the present Constitution. (2) Four petitioners have brought this petition jointly but their causes of actions are separate, therefore, this petition is not maintainable in its present form. (3) The petition suffers from laches because the Scheme, which is sought partly to be enforced and partly, challenged as invalid, was brought into force on 1st of October 1959, it was challenged by the writ petitions which have been withdrawn as mentioned above after instituting them on the 11th of March 1961, and the 22nd of May 1961. Those petitions were thus filed after more than one year of these cause of action. After having withdrawn them the present petition was presented on the 1st of October, 1863. Thus, according to counsel for the respondents, this petition is liable to be dismissed on this ground alone.

4. The third contention of counsel for the respondents does not impress us because the present petition has been brought in pursuance of the permission that was granted by this Court at the time of allowing the previous petitions to be withdrawn. The previous petitions were allowed to be withdrawn in spite of whatever delay there was in instituting them. In other words, the delays which had occurred in bringing them had been impliedly condoned.

5. The second contention is not substantial. It has been supported by referring to Management of Rain Boq Dyeing Factory, Salem and others v. Industrial Tribunal (A I R 1959 Mad. 137.) in which it was held that an award which affected several organisations ought to have been challenged by filing separate writ petitions by each of these organisations. The present position is not precisely the same. Moreover, the petitioners have the same claims and ask for same reliefs on same facts. In these circumstances and at this late e stage we are not prepared to dismiss this petition on the objection of joinder of parties.

6. The first objection has been considered by us on two days. We have heard counsel for the petitioners yesterday and gave him time to support this petition by further preparation today. This petition was filed, as mentioned above, on the 1st of October, 1963, after the new Constitution had come into force. But it purports to be in pursuance of the Laws (Continuance in Force) Order, 1958. The reason for the attempt to invoke that law which has been repealed by Article 225 of the present Constitution is obvious. It is that the petitioners find it difficult to bring their case within the scope of Article 98 of the present Constitution. We desired, therefore, that counsel for the petitioners should explain to us as to how it was possible for him to invoke the repealed law in support of this petition. He explained that under Article 250 of the present Constitution of right which‑had accrued under the repealed law could be enforced by instituting fresh proceeding after the appeal of that law. The Article is as follows :‑ "250.‑Where a law is repealed, or is deemed to have been repealed, by, under, pr by virtue of this Constitution, the repeal shall not‑ (a) review anything not in force or existing at the time at which the repeal takes effect ; (b) affect the previous operation of the law or anything duly done or suffered under the law ; (c) affect may right, privilege, obligation or liability acquired, accrued or incurred under the law ; (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the law ; or (e) Affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the law had not been repealed." On the basis of the words "any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the law had not been repealed" counsel claims that the petitioners can seek remedy under the repealed law. There is judgment of the Supreme Court which clarifies similar position. It is K. A. Jaisinghani v. Custodian of Evacuee Property (P L D 1965 S C 453) referred to by the learned counsel for the respondents. While explaining section 6 of the General Clauses Act, Kaikaus, J., has observed as under :‑ "Reliance is placed on clause (e) of this section and it is urged that any proceedings which could have been taken if the Act remained in force can 6e taken if it is repealed. It. will be observed however that clause (e) refers to 'such right, privilege, etc. as aforesaid' and this has reference to clause (c) in accordance with which any 'right, privilege, obligation or liability' which has already accrued or been incurred, remains unaffected. For the application of clause (e), therefore there has first to be a right and then a legal proceeding in respect of such right. This does not appear to be applicable to a case where the only possible right which can be said to have accrued is the right to prefer a particular legal proceeding. From its wording clause (e) would apply to legal proceedings in respect of substantive rights which have already occurred a repealed enactment and would not cover a case where only a procedural right is granted."

7. We may mention here that there is a close anology between section 6 of the General Clauses Act and Article 250 of the Constitution. In fact the reason for enacting the Article has been the view that the General Clauses Act does not apply to constitutional matters. The Article is thus intended to serve the same purpose as section 6 of the General Clauses Act. The explanation of the General Clauses Act as given by Kaikaus, J., is, therefore, of importance for purposes of understanding the applicability of Article 250 to this case. The following words of his observation are of particular importance : "From its wording clause (e) would apply to legal proceedings in respect of substantive rights which have already occurred under a repealed enactment and would not cover a case where only a procedural right is granted." The above observation is supported by the language of Article 250 because in clause (c) of the Article there is reference to right, privilege, obligation or liability acquired, accrued or incurred "under the law". The words "the law" refer to the "repealed law". In clause (c) of the Article the words "such right" make it clear that the right which was accrued or occurred under the repealed law only could be enforced by instituting continuing or enforcing a remedy in respect of it.

8. The above discussion makes it clear that before advantage can be taken by the petitioners of Article 250 of the Constitution they have to establish that a right had accrued to them under the repealed law which they desire to invoke at present. We have from this point of view tried to obtain clarification from counsel for the petitioners.

9. It is unnecessary to give reference to the various provisions of the Scheme which is partly intended to be enforced and partly questioned by the petitioners and which is filed as Annexure 'F' to the petition, because the substance of the argument of learned counsel was that the petitioners were entitled to be promoted to pa the post of Section Officers not only in terms of the Scheme, Annexure'F' but also because of the rights which they enjoyed owing to the various rules and memorandums which were issued and were enforced before the Scheme 'was framed. Those rules and memorandums entitle the petitioners, according to counsel, to be promoted as Assistant Secretaries on the basis of their seniority combined with fitness. 'As they were entitled to be promoted as Assistant. Secretaries and the Assistant Secretaries were being replaced by Section Officers, their counsel contended that they were entitled to be appointed as Section Officers under the Schemes." This right of being appointed as Section Officers, counsel contended, had accrued to them before the laws (Continuance in Force) Order, 1958, was repealed. The Scheme was framed in 1959 and the Laws (Continuance in. Force) Order, 1958 was, repealed in 1962 by virtue of Article 225 of the Constitution. 9‑A. The above argument of counsel has left it unexplained' as to how the conclusion eras to be drawn that the petitioners had become entitled to promotion. The plain facts as well as .the: admission made on behalf of the petitioners by their counsel are that their promotion to the post of Assistant Secretaries was not dependent entirely on seniority but had to be dependent on the decision of the superior officers as to their fitness., In other words, they did not have an automatic right to be promoted but could be .taken into consideration for promotion. Their promotions was dependent on the finding, that they were fit for it. This fact makes it clear that the petitioners did not have a right to be promoted at the time of the repeal of the Laws (Continuance in Force) Order, 1958.

10. The above legal situation was circumvented by counsel for the petitioners by raising the contention that the right to promotion was not the main point for consideration in respect of the maintainability of this petition but that their right to press for the enforcement of the whole Scheme was the crux of the matter. We gave time so counsel to establish as to how it was the substantive right of the petitioners to get the Scheme enforced. While they were unable to establish that they had a right to promotion but counsel for the petitioners was not able to satisfy us in this respect.

11. Coming to the conclusion that the Laws (Continuance in Force) Order, 1.958 is not applicable to this petition, we have also considered whether the petitioners can take advantage of Article 93 of the present Constitution. But we found that they cannot do so in view of sub‑clause (b) of clause (3) of the Article. It is as follows :‑ "An order shall not be made under clause (2) of this Article (a) .. (b) On application made by or in relation to any other person in the service of Pakistan in respect of his terms and conditions of service, except .a term or condition of service, that is specified in this Constitution." The terms and conditions which are specified in this Constitution with respect to the petitioners are to be found in Article

177. But counsel contended that he could take advantage of the contents of Article 178 of the constitution also in view of an observation made by the Supreme Court in Mohammad Amin Durrani v. Government of West Pakistan PLD1966SC

99. The relevant observation is as follows :‑ "By subsection (3) of this Article (178) the Constitution requires that such rules should provide that once appointed, the terms and conditions of a public servant are not varied to his disadvantage, in so far as they relate to remuneration or age fixed for superannuation, and this may possibly be regarded as specification for the purpose of Article 98, but it is clear that nothing which has happened in the present case falls within the description of a violation of a term or condition of service so specified." With utmost respect to their Lordships of the Supreme Court the situation of the present case is precisely the same as was before them in that case. Recognising the possibility of treating the contents of Art. 178 as terms and conditions specified for the purpose of Article 98, we find that there is nothing in Article 178 which can be said to have been violated in the present case. In fact counsel for the petitioners was unable to develop this argument beyond referring to Article 178 and has not pointed out anything to us by way of the violation of any of the provisions of that Article.

12. It follows from the above discussion that neither the laws (Continuance in Force) Order, 1958 nor Article 98 of the present Constitution can help the petitioners. Additionally, we may mention that prayer No. 3 of paragraph 24 which has been quoted above was given up by counsel for the petitioners because he did not wish to question the legality of clause (5) of the Scheme. The first prayer is of no help to the petitioners because the appointment of respondents Nos. 3 to 20 cannot be a matter of grievance to them so long as they do not establish that they have a right to be appointed as Section Officers. This prayer is dependent on the establishment of prayer No.

2. In so far as prayer No. 2 is concerned the petitioner's desire that this Court may appoint them as Section Officers either in exercise of the repealed law or the present Article is obviously not tenable. Moreover, having conceded that seniority cum fitness is the test of their qualification there is nothing which can enable us which deciding this petition to presume their fitness, on behalf of the authorities who are entitled to judge them in this respect. The overall conclusion is that this petition is not maintainable and is to be dismissed. We order accordingly. We leave the parties to bear their own cots. K.B. A. Petition dismissed.