P L D 1969 Dacca 254 (PLP)

SIDDIKY, C. J.‑One Muhammad Hashim, the petitioner before us, who has described himself Superintendent, Class Ii, in the Postal Department of the Government of Pakistan, prayed under Article 98 (2) of the Constitution for a Rule declaring that the phrase "on his own pay of Class II" occurring in the impugned orders, No. Staff A/AA‑35/CO, dated 30‑10‑6i, Staff A/AA‑35/Ch. IV, dated 30‑3‑62, Staff A/AA‑35/Ch. 1V/P‑IV, dated 18‑3‑65 and Staff A/AA‑35/Ch. IV/P‑IV, dated 24‑7‑65, is without lawful authority and of no legal effect. The petitioner's case, in short, is that he entered the Postal Service go a clerk sometime ]n 1928 and letter by dint of his merit, rose to be a Superintendent, Class 11, in the said Depart ment. After the coming into force of the new pay scale in July 1931, he, in terms of the option given to him, opted for the old scale. He continued to serve in the old scale until the scale was changed in 1964 and a revised scale of pay was promul gated by the Government of Pakistan which raised the salary of the post of Superintendent, Class II, to Rs. 350 to Rs.

920. The petitioner enjoyed the benefits of this scale which came into force in 1964. From 8th of November 1961, he officiated as Superintendent, Class 1, Junior Grade, continuously for about four years until the date of his retirement which occurred on the 31st of October 1965. The scale of pay of Class I Super intendent, Junior Grade, is higher than that of Superintendent, Class

11. He was not allowed to draw the pay to which he was entitled under the Fundamental Rules while officiating in the Class I post. He made certain representations to the Depart mental Authorities which were not acceded to and ultimately he was forced to come to this Court in 1966 and obtain the present Rule. The respondents, the Postmaster‑General, Eastern Circle, East Pakistan and Pakistan have appeared in this case and contested the petition by filing an affidavit‑in‑opposition. In the affidavit‑in‑opposition it has been contended by the respon dents that the petitioner, whenever he was asked to officiate in the Class I post, was asked to do so on his pay of Class 11 post, and Mr. Md. Nurul Huda, the learned Deputy Attorney‑General for the respondents, submitted that these orders having been made by the Postmaster‑General, Eastern Circle, East Pakistan, are bind ing on the petitioner. He has further contended that, whenever this petitioner was asked to officiated in Class I posts, the Class I post were downgraded, and therefore, the petitioner, who was holding a Class II post, could not ask for a salary of the Class I posts or was entitled to do so because the Class I post was downgraded to Class II post and brought on level with the same. Those portions of the impugned orders of the Postmaster -General wherein it is said "on his own pay of Class 11" are in challenge before us. Mr. Mirza Gholam Hafez, the learned Advocate for the petitioner, has submitted that the impugned orders, or at least those portions of the impugned orders wherein the petitioner has been directed to officiate on his own scale of pay are in violation of the provisions of sub‑Article (3) of Article 178 of the Consti tution, because "salary" is also a condition of service which cannot be altered in violation of the Constitutional provisions. Secondly, he has contended that the petitioner is entitled to pay of Class I Junior Grade in which he officiated in terms of Fundamental Rule 22 (a) (i) read with Fundamental Rule

31. Fundamental Rules 22(a)(i) and 31 relied on by Mr. Mirza Ghulam Hafez are in the following terms: ‑ "Fundamental Rule 22.‑The initial substantive pay of a Government servant who is appointed substantively to a post on a time‑scale of pay is regulated as follows :‑ (a) If he holds a lien on a permanent post, other than a tenure post, or would hold a lien on such a post had his lien not been suspended. (i) When appointment to the new post involves the assump tion of duties or responsibilities of greater importance (as interpreted for the purposes of rule 30) than those attaching to such permanent post, he will draw as initial pay the stage of the time‑scale next above his substantive pay in respect of the old post;" "Fundamental Rule 31.‑Subject to the provisions of rules 26 (c), 30 and 35 a Government servant officiating in a post will draw the presumptive pay of that post provided that, except in the case of a Government servant whose appointment to the post in which he is officiating was made on his own request under rule 15 (a). if the presumptive pay of the perma nent post on which he holds a lien or would hold a lien had his lien not been suspended, should at any time be greater than the presumptive pay of the post in which he officiates, he will draw the presumptive pay of the permanent post." In terms of these two rules occurring in the Fundamental Rules, we are of the view that the petitioner is entitled to the salary of Class I Junior Grade during the period he officiated in that post. The Postmaster‑General has no authority to pass any order, in our opinion, in violation of either the Constitutional provision mentioned in Article 178 (3) or in violation of the Fundamental Rules which are relevant for the purpose. Even if this order was passed by the Finance Secretary to the Govern ment of Pakistan which would amount to a Governmental order, that too, in our opinion, could not override the provisions of the Fundamental Rules. We are in agreement with the submissions of Mr. Mirza Gholam Hafez that the petitioner, in terms of Fundamental Rule 22 (a) (i) read with Fundamental Rule 31 is entitled to the pay attached to Superintendent, Class I Junior Grade, for the entire period for which he officiated in that post. It is really surprising that the Postmaster‑General could have downgraded a post only because he bad to pay the officia ting allowance or pay of that post to the petitioner. He could not, in our opinion, only for the purpose of not paying the salary of the person officiating, downgrade the post itself. Mr. Md. Nurul Huda, the learned Deputy Attorney‑General, had no answer to this contention of Mr. Mirza Gholam Hafez. On the other hand, he was candid enough to say that the Funda mental Rule 22 (a)(i) read with Fundamental Rule 31, entitles the petitioner to the salary attached to Superintendent, Class 1, Junior Grade, in which he officiated. A similar question arose in the case of Government of West Pakistan and another v. Nasir M. Khan and others (11 P L D 1965 S C 106). The decision of the Supreme Court in that case supports the view that we have taken. The rule is accordingly made absolute but without as to costs. ABDUL HAKIM, J.‑I agree. A. B.