P L D 1960 (W (PLP)

B. Z. KAIKAUS, J.‑

This is a Letters Patent Appeal against the order of Muhammad Yaqub Ali, J. passed in proceedings which were initiated as an application for contempt of Court but which appear later on to have been converted into proceedings for implementation of a writ.

2. Zulflqar Ali who is one of the respondents to this appeal, and one Ghulam Rasul, both members of the West Pakistan Forest Service, filed a petition for a writ on the 15xh of April 1958, claiming that they were entitled to the terms and conditions of service agreed to at the time of their appointment in the Punjab Forest Service, including some scales of pay. This peti tion was decided in favour of the petitioners on the 28th of March 1958, by a Division Bench consisting of S. A. Rahman, C. J., and Muhammad Yaqub Ali, J. The direction issued will appear from the following paragraph in the judgment :‑ "We, therefore, issue a direction to Government to concede the demand of the petitioners and to treat them as entitled to continue enjoying the old scale of pay, namely, the scale of Rs. 350‑40‑750/40 ‑950‑50‑1,200, with all the consequent promotional prospects as mentioned in the original advertise ment of the Public Service Commission in pursuance of which they were recruited. We leave the parties to bear their own costs." After this direction had been issued, Zulfiqar Ali respondent was appointed a Conservator of Forests. The scale to which he would be entitled as Conservator, in accordance with the advertise ment of the Public Service Commission mentioned in the above quoted passage was Rs. 1,600‑100‑2,

000. He was not, however, granted this grade, and he put in an application under section 3 of the Contempt of Courts Act praying that the Secretary to Government of West Pakistan, Finance Department, and the Additional Secretary, Food and Forests Department, West Pakistan Government, be punished for refusing to comply with the order of this Court. On this application Muhammad Yaqub Ali, J. simply issued notice to the Secretary and the Additional Secretary (respondents in that petition). They replied that before Integration, there were only three posts of Conservators in the Punjab and that Zulfiqar Ali respondent would be entitled to the grade mentioned in the advertisement of the Public Service Commission only if he was given one of these three posts. The post to which he was appointed, it was contended, was not one of those three posts, the number of posts having increased on account of the Integration. It was urged that the agreement of Zulfiqar Ali respondent was with the Punjab, and he would not be entitled to the grade of a Conservator except from the date when he would have been appointed as a Conservator in the Punjab had West Pakistan Province not come into existence. Muhammad Yaqub Ali, J. came to the conclusion that the plea as to there being three posts of Conservators in the old Province of the Punjab only was without force, as, according to his contract of service, Zulfiqar Ali was entitled on his promotion to the post of a Conservator, to the scale claimed by him. On this finding Muhammad Yaqub Ali, J. passed the following order :‑ " I accordingly direct the respondents to treat the petitioner entitled to the old scale of Conservator, namely, Rs. 1,600‑100- 2,000, from the date on which he was promoted to this post, and allow them two months' time to comply with the terms of this order of this Court dated the 28th of March 1958. There will be no order as to costs of these proceedings." This is an appeal by the Secretary, Finance Department, and the Additional Secretary, Food and Forests Department, of West Pakistan Government, against the order of Muhammad Yaqub Ali, J.

3. There is a preliminary objection to the hearing of this appeal. Learned counsel for Zulfiqar Ali respondent contends that no appeal lies. Under clause 10 of the Letters Patent an appeal lies to a Division Bench against every judgment of a Single Judge except in specified cases, one of the cases being where the order is passed in the exercise of criminal jurisdiction. Learned counsel for the respondent contends, firstly, that the order under appeal is not a judgment at all and, secondly, that if it is a judgment it is a judgment in the exercise of criminal jurisdiction. We are not inclined to agree with learned counsel on either of these two points. The definition of `judgment ', as the word is used in clause 10 of the Letters Patent, is a matter of difficulty, but there is no disagreement on the point that whenever an order decides rights of parties it amounts to judgment. The order under appeal does decide rights of parties although it decides only the question as to what rights are created by the order passed by this Court. The contention of the respondent before Muhammad Yaqub Ali, J. was that in accordance with the direction issued by the Division Bench, on his appointment to the post of a Conservator, he was entitled to the scale of Rs. 1,600‑100‑2,

000. The contention on behalf of the appellants, on the other hand, was, that the direction applied only to an appointment to one of tile three posts of Conservators which existed in the former Punjab Province, the agreement of the respondent being with the Punjab. Muhammad Yaqub Ali, J. decided the question as to whether on account of the order of the Court the West Pakistan Government was bound to place the respondent in the scale of Rs. 1,600‑100‑2,000 or not. This surely is a decision relating to rights of the parties.

4. The objection that the present order was passed in the exercise of criminal jurisdiction is also untenable. It is true that the application before the learned Judge was one for con tempt of Court, but as the learned Judge himself says, the petition, though moved under the Contempt of Courts Act, was "in reality calculated to enforce the implementation of the aforemen tioned order" and he goes on to add that it is for this reason that he issued notice on the application. The learned Judge has obviously not passed any order on the application under the Contempt of Courts Act. Acting under the Contempt of Courts Act, he could either find the person proceeded against guilty or discharge him. By this judgment he has simply interpreted the previous order and has given a further direction to the Government though he purports only to repeat the original direction given by the Court. It is argued by learned counsel for the respondent that when and application is submitted for contempt it is open to the Court to, grant the party proceeded against further time for obeying the order of the Court and to direct that the proceedings for contempt will be taken if the order is not obeyed within the time fixed. We do not think such an order can be made in criminal proceedings under the Contempt of Courts Act. In those proceedings the person is to be pronounced guilty or otherwise. When an order passed by this Court in the exercise of Writ Jurisdiction is not complied with two procedures are open to the person aggrieved. He may pray for further directions when there can be a bona fide dispute as to what is the effect of the order or he may apply for action under the Contempt of Courts Act. In the first case the Court may after determining the effect of its order give further directions for its enforcement. Such an order would not be an order in the exercise of criminal jurisdic tion. In the second case the Court may either find the respondent guilty or it may discharge him on the ground that the respondent acted in the bona fide belief that he was complying with the order of Court though in fact he was disobeying it. Hence forth that person would know the effect of the order and if he stilll failed to comply with the order, the defence of bona fides would not be open to him in any application that may subsequently be] filed under the Contempt of Courts Act. Learned counsel for the respondent also argued that when an order of this Court passed in the exercise of writ jurisdiction is not obeyed, the only course open to the party aggrieved is to apply under the Contempt of Courts Act and that there can be no application for an implementa tion of the order passed in the exercise of writ jurisdiction. We do not agree. There may be many cases wherein a question may arise as to what is the import of an order or whether it applies to a certain set of circumstances. We do not see why the Court should not be entitled to interpret its own order and to give further directions. It would be like a Court executing a decree. Questions do arise as to what is the meaning of a decree and just as those questions have to be decided by the Court executing the decree the question as to what is the meaning of a writ has to be decided by the Court issuing the writ. The order of Muhammad Yaqub Ali, J. is an order just interpreting and enforcing an order already issued. We overrule the preliminary objection.

5. On behalf of the appellants, there are two attacks on the order of Muhammad Yaqub Ali, J. The first is that he had no jurisdiction sitting in Single Bench to interpret the order and to give further directions. The second attack is on the merits. It is urged that the order of the Division Bench was based on the contract of service of Zulfiqar Ali respondent and the order did not at all intend to grant him any further rights than he was entitled to under the agreement. It is argued that the agreement was with the Punjab Province and that the respondent could not claim more than he would be entitled to had Punjab Province continued to exist as it was.

6. We find force in the first contention and a decision on the second question becomes unnecessary, but to be fair to respondent, We will state his reply to the second contention. It has beer, contended on his behalf that the reference to agreement with the Punjab Province is wholly inappropriate because the original agreement is of 1946, and it was with pre‑Partition Punjab although the agreement was again signed in the year 1949. The prospects of Zulfiqar Ali respondent; it is contended, have not improved by the Integration and are no better than they would have been in pre‑Partition Punjab. It is also pointed out that there are some posts of Conservators which are being added on account of some development plans and the respondent would be entitled to the benefit of such posts. Respondent contends too that if there had been no Integration, he would have been appointed as a Conservator because a number of officers of the former Punjab have gone on deputation.

7. We are accepting the first contention of learned counsel for the appellants because in accordance with the Rules and Orders of the High Court relating to writ petitions (Part 11, Rule 3) every application for a writ has to be heard by a Division Bench unless otherwise directed by the Chief Justice. The application before Muhammad Yaqub Ali, J. was one under the Contempt of Courts Act, but he treated it only as an application for implementation of a direction issued in the exercise of writ jurisdiction. We have already stated that the Court which issues a writ can be moved for its implementation, but such further proceedings would be proceedings in the very same petition for writ. If a Court has already issued a writ the Court can be approached for an interpretation of its order and for its enforce ment, but these proceedings which may be called proceedings in execution or proceedings in implementation, are a continuation of the previous proceedings and if the application for a writ can be heard only be a Division Bench the application which is in continuation of these proceedings can also be heard only by a Division Bench. The orders passed in such proceedings are also orders passed in the exercise of writ jurisdiction. In fact while hearing application for implementation sometimes further or amended writs may, in view of the circumstances which arise afterwards or circumstances which may not have been brought to the notice of the Court when the writ was originally granted, have to be granted, and such writs could obviously be granted only by a Division Bench would hold that Muhammad Yaqub Ali, J. was not empowered to pass any orders in implementation of the order passed by the Division Bench.

8. The order under appeal is set aside. We will point out that the application under section 3 of the Contempt of Courts Act has not yet been decided. It is true that Muhammad Yaqub Ali, J. treated the application as one for implementation, but before us learned counsel for the respondent does not accept that he ever meant to give up the application under the Contempt of Courts Act and therefore further proceedings have to be taken in that application. It will be proper that the application be entrusted to a D.B. instead of to a Single Judge because otherwise a kind of anomaly does arise, for while a Single Judge cannot interpret a previous order for the purpose of its implementation, he can interpret it in proceedings under the Contempt of Courts Act, where he has to decide whether an order has or has not been disobeyed. There is no order as to costs of this appeal. K.B.A. Appeal accepted.