P L D 1965 (W (PLP)

J. ORTCHESON, J.-This is a writ petition under Article 170 of the 1956-Constitution filed on the 8th of May 1962 by Muhammad Ahsan Khan, Traffic Manager, Government .Transport Service, Peshawar, against the following respondents:- (1) The Government of West Pakistan through the Secretary to the Department of Irrigation, Communication and _ Works, Lahore. (2) The West. Pakistan Road Transport Board, through the Secretary to the Board, Lahore. _ (3) The Chief Traffic Manager, the West. Pakistan Road Transport Board, Lahore. (4) Mr. Fayyaz Ali Khan, presently posted as District Manager, Government Transport Service, Multan. (5) Mr. P. Mills, Traffic Manager, L. O. S., Lahore. (6) Mr. N: D. Khan, presently posted as District Manager, Government Transport Service, Hyderabad.

2. The constitutional provisions applicable to the petition are those of the 1956-Constitution and the Laws (Continuance in Force) Order, 1958.

3. The petitioner s case is that he entered the service of the former North-West Frontier Province Road Transport Board in February 1948. He was appointed Traffic Manager, Peshawar, on the 16th of June 1952, and was confirmed as Traffic Manager on the 5th of December 1953. On the integration of the Provinces the three former Boards of the North-West Frontier Province, Sind and West Punjab were amalgamated into a single Board known as the West Pakistan Road Transport Board (hereinafter referred to as the Board). On the 6th of June 1959, the seniority of Traffic Managers (later re-designated-Deputy Traffic Managers) was fixed vide order copy, of which is Annexure `A' to the petition, as follows:- (1) Mr. S. A. Masood. (2) Mr. Fayyaz Ali Khan. (3) Mr. P. Mills. (4) Mr. Ahsan Khan. (5) Mr. N. D. Khan (Acting R. M.) (6) Mr. Ibn-e-Hassan. (7) Mr. Muhammad Yaqub Sheikh. The petitioner made a representation against his "placement in the above list, and on the 2nd of April 1960, the list was revised, vide order (copy Aannexure `B' to the petition) so as to show the petitioner at No. 2, the only Traffic Manager placed above him being Mr. S. A. Masood, while Mr. N. D. Khan, respondent No. 6, was shown at No. 5.

4. According, to the petitioner the seniority list dated the 2nd of April 1960, was prepared on the basis of rule 17.5 of the West Pakistan Road Transport Board Service Rules, 1959, (hereinafter referred to as the Rules), the operative portion of which originally ran: "The seniority of employees holding posts of the same category in the same department shall be determined by the date of confirmation in that category." On the 28th of July 1960, however, a circular was issued by the Board replacing the above portion of the rule with retrospective effect from the date of issue. of the Rules by the following:- "The seniority of an employee in the cadre should be determined from the date of his continuous officiation in the post." Subsequently, on the 5th of July. 1961; respondent No. 6 was declared senior to the petitioner, while on the 15th of September 1961 a third seniority list was issued (copy Annexure `E' to the petition) in which respondent No. 6 was placed at No. 3 and the petitioner at No. 4 ostensibly on, the basis of rules 17.2 and 17.5. Against the above list the petitioner submitted two representations dated the 12th of October 1961, and the 1st January 1962, respectively, but they were rejected by a memorandum dated the 2nd of April 1962, (copy Aannexure `F' to the petition), the relevant portion of which runs:- " The case of seniority of Mr. N. D. Khan over Mr. Muhammad Ahsan Khan was decided in the light of rule 17.2 of West Pakistan Road Transport Board Service Rules, 1959, by the Board and the decision was communicated to you vide Sectt/3/76 dated 15-9-1961. Under Rule 17.2 ibid an employee of the cadre who is carrying higher scale of pay shall be senior to the others of the same cadre carrying lower scale of pay. Mr. Ahsan Khan's contention that Board rules are not applicable to him is not correct. Board employees not being servants of the Government as has been held by the High Court, cannot claim any benefit provided in Govern ment Rules. Accordingly the integration circular of Government benefits of which are claimed by Mr. Ahsan Khan, is not applicable in the case of Mr. Ahsan Khan." It may be stated here that no decision of this Court holding that officers of the Board (or, indeed, the servants of the Board) are not Government Servants was cited before us.

5. According to the petitioner the Board had no authority to alter rule 17.5 of the Rules to his disadvantage such a procedure contravening Articles 181 and 182 of the 1956 Constitution. He further contended that a show-cause notice should have been issued to him. He therefore, seeks the following reliefs :- (1) A writ of certiorari quashing the existing seniority list: (2) A writ of mandamus directing-that seniority be fixed under rule 17.5 as it originally stood, i.e., from the date of confirmation of the person concerned. (3) Such other writ or- writs as are deemed necessary in the interest of justice.

6. Respondents Nos. 2 and 3 filed a written statement in which they contest the petition on the following main grounds:- (1) That as the petitioner is not a Government servant but only a public servant, his case is not covered by Article 181 (2) of the 1956-Constitution. (2) That the Board was fully competent to replace the then existing rule 17.5. (3) That on the basis of rule 17.2 respondent No. 8 was rightly declared senior to the petitioner as the former was employed in the scale of Rs. 460-30-720, which is higher than that of the petitioner, which is alleged to be Rs. 400-25 -600. (4) That no show-cause notice was necessary.

7. The first question for decision is whether, as contended by respondents Nos. 2 and 3, Articles 181 and 182 of the 1956 Constitution, which provided certain safeguards in respect of their terms of service for persons who were members of a civil service of the then Federation or of a Province, or of an All Pakistan Service, or held civil posts in connection with the affairs of the then Federation or of a Province, had no applica tion to the petitioner.

8. Subsection (1) of section 43-A of the Motor Vehicles Act (IV of 1939) laid down that where a Provincial Government decided to operate transport services itself it should constitute a Road Transport Board. Subsection (2) provided that the Board should consist of seven members, of whom four, including the Chairman, were appointed by the Provincial Government and three by the Central Government. While subsection (7) empowered the Provincial Government to make rules with the previous concurrence of the Central Government and not inconsistently with the Act, prescribing the powers and functions of the Board. Under the last-mentioned subsection the Governor of West Pakistan framed the rules known as the West Pakistan Road Transport Board Rules, 1957. Rule 7 of the said Rules empowered the Board to appoint officers and servants and to prescribe their conditions of appointment and service and their scales of pay. In the case of officers appointed to posts carrying the initial pay of Rs. 250 per mensem and above the appointment was subject to the prior approval of the West Pakistan Government, while, subject again to the above proviso, the power of appointing, promoting, sus pending fining, reducing, removing or dismissing for misconduct or granting leave to the officers and servants of the Board also vested in the Board. It was further provided that in the case of officers carrying an initial pay of Rs. 250 per mensem and above an appeal against the order of the Board should lie to the Government. The petitioner falls within that category, his pay im mediately before the integration of the Province being, according to an affidavit filed by him, in the scale of Rs. 400-25-600-40-800, while even respondents Nos. 2 and 3, who dispute the above statement, concede that his initial pay exceeded Rs. 250, his scale, according to them, being Rs. 400-25-600. Finally, clause (iii)(a) of rule 7 laid down that as respects the officers mentioned in sub-rule (1) the category within which the petitioner falls) the conditions of appointment and service and scales of pay, though prescribed by the Board, were subject to the prior approval of Government.

9. It may here be mentioned that though the Board was later converted into a Corporation and fresh Rules were framed by Government on the 22nd of February 1964, the seniority of Traffic Managers was to be fixed in the light of the Rules validly in force when the seniority list was prepared.

10. Taking the above provisions into consideration it appears to us that it can, with some justification, be argued that the petitioner was, at the material time, a Government servant. In view of the fact that both his appointment and his conditions of service required the prior approval of the Government, he appears f to us to be clearly entitled to the same protection as was afforded by Articles 181 and 182 of the 1956-Constitution to all persons holding civil posts in connection with the affairs of the Province. It would be entirely unreasonable to suppose that after having taken care to ensure that the appointment and terms of service of officers of the Board falling within the scope of clause (1) of rule 7 of the West Pakistan Road Transport Board Rules, 1959, should be subject to its prior approval, Government would deprive them of that protection. In this connection, it is important to bear in mind that under section 43-A of the Motor Vehicles Act, a Board was only constituted when Government decided to run transport services itself. Further, his right to a certain seniority vis-a-vis other members of the Board Managerial Cadre Class II of the West Pakistan Road Transport Service Rules, 1959, framed by the Board, was one of his terms of service. It is interesting to note that the amendment of rule 17.5 said to have been effected by the Board at a meeting on the 18th of July 1960, is not shown to have been referred to Government for prior approval, and the document Annexure `R/F' filed by respondents Nos. 2 and 3 shows that no copy was sent to Government, though Government's approval was particularly necessary in view of the fact that the amendment, besides being drastic in its effect, also purported to be given retrospective effect from the date of issue of the Rules. If Government's approval was not obtained, the amendment of the rule is ultra vires on that ground alone, but as this question was not raised before us, we are unable to express any definite opinion as; to whether approval was obtained. It may, however, be added that rule 4 of the Board's Rules, relied upon by the respondents, tells against them rather than in their favour, it runs:- "The Board reserve to themselves the right to interpret, modify, cancel or amend all or any of these Rules or any supplementary Rules issued in connection with these Rules, without previous notice of their intention, and the right to give effect thereto immediately from the time or date of issue." Leaving aside the question whether a rule which, in respect of officers of the category of the petitioner, violates the provisions of the very rule (rule 7 of the West Pakistan Road Transport Board Rules, 1957) under which the Board's Rules were framed, is valid, it will be seen from the words underlined that rule 4 does not confer on the Board the power of interpreting, modifying,) cancelling or amending any rule with retrospective effect.

11. Even if, for the sake of argument, the amendment of rule 17.5 of the Rules framed by the Board be considered valid, it is obvious that respondent No. 6 at least gains no advantage from it. As already mentioned, the petitioner was appointed Traffic Manager, Peshawar, on the 16th of June 1952 and was confirmed on the 5th of December 1953. Respondent No. 6, on the other hand, was not appointed Traffic Manager till the 15th of August 1955, being confirmed in August 1956 The petitioner had thus been confirmed long before respondent No. 6 even began to officiate. It appears that the Board, in declaring respondent No. 6 senior to the petitioner, was conscious of this difficulty since, as will be seen from the memorandum dated the 2nd of April 1962 (copy Annexure `F') referred to in paragraph 4 above, the seniority of respondent No. 6 purported to be fixed under rule 17.2 of the Board's Rules. The interpretation placed on that rule by the Board is however, completely untenable. The said rule does not lay down, as, stated in the memorandum in question, that any employee of the cadre who is carrying a higher scale of pay shall be senior to others of the same cadre carrying a lower scale of pay. The rule runs: "As between employees on the same cadre the holder of a post carrying higher scale -of pay shall be senior to those on posts carrying lower scale of pay." It is obvious that the rule is intended to lay down that as between officers occupying different posts those in, posts carrying a higher scale of pay are to be senior to those occupying posts in a lower scale, and no attempt has been made to show that any particular post of Traffic Manager carries a higher scale of pay than any other. Respondents Nos. 4 to 6 did not even file a written statement. The seniority inter se of offcers holding posts of the same category, in the same department, as is the case with the petitioner and respondent No. 6, is governed, not by rule 17.2 but by rule 17.5 as it stood at the time when the seniority of the petitioner and respondent No. 6 was fixed. Since at that time both the petitioner and respondent No. 6 were occupying the post of Traffic Manager; rule 17.2 had clearly no- operation, and the action of the Board in placing respondent No. 6 above the petitioner on the basis of that rule was completely unjustified. It must further be pointed out that, according to the petitioner, respondent No. 6 was not in fact on a higher scale of pay than himself. His statement on this point is supported not only by his own affidavit, but by two other documents. The first is a certificate from the Regional Manager, Government Transport Service, Peshawar, which runs:- "This is to certify that Mr. M. Ahsan Khan was working as Traffic Manager, G. T. S., Peshawar in the pay scale of Rs. 400-25-600-EB-40-800 on the eve of integration of the three Boards into the West Pakistan Road Transport Board on 15th October 1957." The second is a copy of a salary slip dated the 21st of October 1961, issued by the Examiner of Audit, West Pakistan Road Transport Board, Lahore, which, after giving the petitioner's total pay (basic pay plus cost of living allowance) contains the statement: " The scale of pay is Rs. 400-25-600/40-800." Respondents Nos. 2 and 3 made no attempt to challenge the accuracy of either the Regional Manager's certificate or the salary slip.

12. It will thus be seen that from whatever point of view the matter is regarded, respondent No. 6 could not be considered as senior to the petitioner. We, therefore, issue a writ of mandamus under Article 170 of the 1956-Constitution read with Article 2 (4) of the Laws (Continuance in Force) Order (I of 1958) to respondents Nos. 2 and 3 directing them to restore the petitioner to the place be occupied in the seniority list issued on the 2nd of April 1960, copy of which is Annexure `B' to the petitioner. The costs of this petition will be paid to the petitioner by the above respondents. K. B. A. Petition accepted.