P L D 1958 (W (PLP)

MASUD AHMAD, J.‑--Mr. A. S. Farooqi, respondent No. 2, an officer belonging to Class I of the Pakistan Railway Services, was holding the post of Senior Administrative Officer and was due to retire on the 30th November 1956. By an order dated the 24th August 1956, issued under the authority of the President, he was granted extension of service for a period of one year with effect from the date of his compulsory retirement. Messrs. A. R. Azar, M. A. Rahim, A. A. Shah and G. Mohi‑ud‑Din, who are also officers belonging to Class I of the Pakistan Railway Services, have, by means of this petition, challenged the order of grant of extension to Mr. A. S. Farooqi. They contend that in accordance with Fundamental Rule 56, which has been reproduced in the form of paragraph No. 2046 in the Pakistan Railway Establishment Code, Volume II, Officers belonging to the Railway Services. Class I, must retire compulsorily on reaching the age of fifty‑five and, except in the case of an officer holding the post of a Chief Engineer, who can be granted extension of service for a period not exceeding three months, no such officer can be retained in service after he has attained the age of fifty‑five years, and, as such, extension of service for a period of one year could not be granted to Mr. A. S. Farooqi, respondent No.

2. This extension, according to the petitioners, being in contravention of rule 56 of the Fundamental Rules, is void and they pray that a writ of quo‑warranto or any other appropriate writ be issued to respondent No. 2 calling upon him to show the lawful authority under which he is holding his office and directing respondent No. 1 (Federation of Pakistan) to declare the post held by respondent No. 2 as vacant.

2. The respondents while admitting that the petitioners and respondent No. 2 are Class I officers belonging to the Pakistan Railway Services and that in matters of compulsory retirement, they are governed by the provisions of Funda mental Rule 56, which has been incorporated in the Pakistan Railway Establishment Code, Volume II, as paragraph No. 2046. contend that the option to retain a public servant, even after he has attained the age of superannuation, is absolute and cannot be challenged or interfered with byway of writ petition. They contend further that sub‑rule (3) (a) con tained in paragraph No. 2046, referred to above, has been modified by the "Rules" contained in the Cabiet Secre tariat's letter No. 5/45/55‑SE‑II, dated the 10th October 1955 in which it has been stated that an officer of Technical Services may be given extension of service liberally up to the age of sixty years, and that, in any case, the power to grant extension of service even to Class I officers can be exercised by the competent authority by waiving the rules and as the President has exercised this power and granted extension to respondent No. 2, in the public interest, the order in question cannot be challenged. Lastly, it is con tended by them that even if this Court is inclined to hold that the grant of extension to Mr. A. S. Farooqi was in violation of the relevant rules and that those rules could not be waived by the competent authority, the grant of a writ being a discretionary matter, as the period of extension is to expire on the 30th November 1957 and as any writ issued by this Court can be made nugatory by re‑employ ing respondent No. 2, it is not a fit case in which the writ asked for should be issued.

3. Rule 57 of the Fundamental Rules, which deals with the matter of compulsory retirement of railway servants and which governs the present case, is in the following words:‑ "Compulsory Retirement:‑(1) Except as otherwise provided in the other clauses of this rule the date of com pulsory retirement of a railway servant, other than a ministerial servant, is the date on which he attains the age of 55 years. He may be retained in service after the date of compulsory retirement with the sanction of the competent authority on public grounds, which must be recorded in writing, but he must not be retained after the age of 60 years except in very special circum stances. (2) (a) A ministerial servant, who is not governed by sub‑clause (b), may be required to retire at the age of 55 years, but should ordinarily be retained in service. If he continues efficiently, up to the age of 60 years. He must not be retained after the age except in very special circumstances, which must be recorded in writing, and with the sanction of the competent authority. (b) A ministerial servant‑ (i) who has entered Government service on or after the 1st April 1938, or (ii) who being in Government service on the 31st March 1938 did not hold a lien or a suspended lien on a permanent post on that date, shall ordinarily be required to retire at the age of 55 years. He must not be retained after that age except on public grounds which must be recorded in writing, and with the sanction of the competent authority and he must not be retained after the age of 60 years except in very special circumstances. (3) (a) Except as otherwise provided in this clause, all officers belonging to Railway Services, Class I, must retire on reaching the age of 55 years. Civil Engineers of the Railway Division may be required by the Governor- General to retire on reaching the age of 50 years, if they have not attained to the rank of the Deputy Chief Engineer. (b) Subject to the requirements of this clause as to re appointment a competent authority may, in special circum stances, which should be recorded in writing, grant an extension of service not exceeding three months, to a Chief Engineer: (c) No Chief Engineer and no officer in the Pakistan Railway Service, Class I, corresponding in rank to a Chief Engineer, shall, without re‑appointment, hold the post, for more than five years, but re‑appointments to the posts may be as often, and in each case for such period not exceeding five years as the competent authority may decide, provided that the term of re‑appointment shall not extend beyond the date on which the railway servant attains the age of 55 or, in the case of a Chief Engineer, more than three months beyond that date. Note (1)‑Officiating service, unless followed by confir mation without interruption in such service, does not count towards the period of five years mentioned in this sub‑clause. Note (2).‑The grant under rule 2127 (F. R. 86) of leave extending beyond the date on which a railway servant must compulsorily retire, or beyond the date upto which a railway servant has been permitted to remain in service shall be treated as sanctioning an extension of service upto the date on which the leave expires."

4. The Cabinet Secretariat's letter dated the 10th October 1955, relied upon by the respondents, is in the following words:‑ "Subject.‑Extension/re‑employment in technical service and posts beyond the age of superannuation. "The undersigned is directed to invite a reference to the Establishment Division O. M. No. 5/15/53‑SE‑II, dated the 17th September 1953, which, inter alia, stated that as a rule no extension should be given beyond the normal age of retirement but that exceptions might be made in the case of technical staff. The Establishment Division have hardly ever withheld their agreement to the grant of extension/re‑employ merits of superannuated officers belong ing to technical services or possessing specialised know ledge, because of the grave shortage of technical personnel in the country. This shortage still persists and the Establishment Division propose to apply the existing instructions in respect of technical staff as liberally as possible, so that members of technical services who reach the age of 55 may expect to continue in service till the age of 60 years, provided they are physically and other wise fit. The existing procedure whereby the concurrence of the Establishment Division is required before the grant of extensions will, in the case of Gazetted Officers, continue. "

2. Extensions will normally be granted for a year at a time. `

3. These instructions will be reviewed after a period of five years. "

4. The technical services referred to above will be taken to mean:‑ (1) Doctors (medical men). (2) Engineers‑all categories. (3) Officers of Accounts and Revenue Services, viz. PASS, PMAS, PAAS and Income‑tax Service. (4) Specialists. "

5. In cases of doubt as to whether or not any particular category of personnel falls within the scope of technical services, a reference should be made to the Establishment Division."

5. Clause (1) of Fundamental Rule 56 is of general application and provides that the date of compulsory retire ment of a railway servant, other than a ministerial servant, is the date on which he attains the age of fifty‑five years. It also lays down that such a servant may be retained in service after the date of compulsory retirement on public grounds which must be recorded in writing, but, except in very special circumstances, he cannot be retained in service after he has attained the age of sixty years. This clause is subject to the provisions of other clauses of this rule. Clause (2) relates to ministerial servants and, therefore, has no application to the present case. Clause (3) provides that all officers belonging to the Railway Services, Class I, must retire on reaching the age of fifty‑five years. It also empowers the Governor‑General (now the President) to retire Civil Engineers of the Railway Division on reaching the age of fifty years, if they have not attained to the rank of Deputy Chief Engineer. A Chief Engineer can, under sub‑clause (b) of this clause, be granted an extension of service not exceeding three months. Sub‑clause (c) of this clause relates to the re‑appointment of a Chief‑Engineer to the same post, a matter with which we are not concerned in this case. The two notes underneath this rule are also not material for the purpose of the present case.

6. The language of this rule is unambiguous and does not, in our opinion, present any difficulty in understanding its meaning. It lays down clearly that officers belonging to Class I of the Railway Services must retire on reaching the age of fifty‑five." The only exception which has been made is in the case of a Chief Engineer who can be granted extension of service for a period not exceeding three months. In the case of ministerial servants, though they can be made to retire at the age of fifty‑five years, ordinarily they are to be retained in service up to the age of sixty years. In the case of other railway servants, the date of compulsory retire ment is the date on which they attain the age of fifty‑five years, but on public grounds they can be retained in service up to the age of sixty years for reasons to be recorded in writing. The case of respondent No. 2, in the matter of compulsory retirement, is governed by clause (3) of this rule, and as he was a Class I officer belonging to the Railway Services and was not holding the post of a Chief Engineer, he' had to retire compulsorily on the 30th of November 1956, when he attained the age of fifty‑five years and could not be granted extension even for a single day.

7. The above interpretation of Fundamental Rule 56 was not disputed by the learned Additional Advocate‑General who has appeared on behalf of the respondents. He, however, contended, firstly, that under Article 180 of the Constitution as every civil servant holds office during the pleasure of the President, the President, in spite of what Fundamental Rule 56 lays down, had the option of retaining in service respondent No. 2 even after he had attained the age of fifty‑five years; secondly, that the provisions of this rule have been modified by the Cabinet Secretariat's letter dated the 10th October 1955; thirdly, that the rule itself should be deemed to have been waived when the President agreed to grant extension of service to respondent No. 2, and; fourthly, that in the circumstances of this particular case, the writ asked for cannot be issued.

8. With regard to the first contention, no authority, covering the point, has been cited by the learned Additional Advocate‑General, and so far as we can see the "pleasure" of the President can have application only so long as a person continues to hold office, subject, of course, to the other provisions of the Constitution. The "pleasure" of the President, or the Governor, has often been invoked some times unnecessarily, for terminating the services of civil servants, but never, to our knowledge, for granting extension of service to any such person, after he had attained the age of compulsory retirement, in violation of the relevant rules. In invoking this "pleasure", the rules which are to be framed under Article 182 of the Constitution, or those which were framed under section 241 of the Government of India Act, 1935, and have been kept alive, by Article 224 of the Consti tution, cannot be ignored; otherwise the framing of such rules would become meaningless.

9. A somewhat similar question arose in A I R 1937 P C 31 a case of Madras High Court under the Government of India Act, 1919, which ultimately went to the Privy Council. While dealing with the question of the rules framed under that Act, Their Lordships referred to the provisions of section 96‑B of that Act (the language of which was somewhat similar to that of section 240 of the Govern ment of India Act, 1935) and held that the words "subject to the rules" appearing in the section 96‑B were not super fluous and ineffective and that the section contained a statutory and solemn assurance that the tenure of office though at pleasure will not be subject to capricious or arbitrary action but will be regulated by rules. The words "subject to the rules", which occurred in section 96‑B of the Government of India Act, 1919, do not find any place in Article 180 of the Constitution, but their absence would not necessarily indicate that any rules framed under section 241 of the Government of India Act, 1935, or under Article 182 of the Constitution, if they did not come into conflict with the Constitution itself, can be ignored and the President, or the Governor, as the case may be, may pass; any kind of order in violation of these rules, A reference, to the provisions of clause (3) of Article 182 of the Consti tution would support this conclusion, because sub‑clause (a) of this clause lays down clearly that the tenure and con ditions of service of any person to whom this Article applies shall not be varied to his disadvantage. If, therefore, the tenure and conditions of service of a civil servant, which are prescribed by the rules framed under Article 182 of the Constitution, cannot be varied, to his disadvantage, it follows that such rules have the same force as the provisions of the Constitution and unless amended or repealed they cannot be violated by the President, or the Governor, or by any other person to whom such a power has been delegated. We cannot, therefore, accept the contention I raised by the learned Additional Advocate‑General that as servants of the State hold office during the "pleasure" of the President, or the Governor, the President, or the Governor, may violate the rules framed under the Constitution and pass any kind of order that he pleases.

10. As to whether the provisions of Fundamental Rule 56, have been modified by the rules" contained in the Cabinet Secretariat's letter No. 5/45/55‑SE‑II, dated the 10th October 1955, which has been reproduced in an earlier part of this judgment, we think that it would be altogether wrong to describe the contents of this letter as "rules" when the letter itself describes them as "instructions". It is simply a policy letter, which says that as there is grave shortage of technical personnel in the country, the Establishment Division would apply the existing "instructions" in the matter of grant of extension, in respect of the technical staff, as liberally as possible, so that subject to physical fitness, they may normally continue in service till the age of sixty years. In accordance with clause (1) of Fundamental Rule 56, railway servants, other than ministerial servants, who are governed by clause (2). and Class I Officers, who are governed by clause (3) of this Rule, can be retained in service after the date of compulsory retirement up to the age of sixty years, on public grounds. The decision con veyed by means of this policy letter, was, therefore, intended by the Establishment Division to apply only to those officers who could be granted extension of service under the existing rules. If their contention had been to grant such extensions even to those officers to whom, under the existing rules, such extensions could not be granted, they would have taken steps to amend clause (3) of Fundamental Rule 56, to make eligible Class I officers for the grant of extensions. It is, no doubt, true that in paragraph 4 of this letter a reference has been made to "Engineers‑all categories," but in the context of Rule 56, "all categories" should be understood to mean "all eligible categories". The main object of issuing this policy letter, in our opinion was to deal with the case of those railway servants to whom extension of service can be granted under the existing clause (1) of this rule. In any case, unless it can be made to us perfectly clear that an amendment of the rule was consciously and deliberately undertaken, we will not permit a, solemn assurance contained in a formal rule to be destroyed by a policy letter.

11. We are also unable to accept the contention that the President having agreed to grant extension to res pondent No. 2, in spite of the provisions of clause (3) of Fundamental Rule 56, it may be presumed that the relevant rule was waived or amended. The learned Additional Advocate‑General, in this connection, referred to a case of this Court reported as The Province of the Punjab v. Ch. Nazir Hussain (P L D 1956 Lah. 556) in which it was held that if the Governor made an appointment which was not strictly in accordance with the Regulations, it should be presumed that for the purpose of that appointment, the Governor had deemed it fit to amend the Regulations. It was contended that as in the present case the President was the rule‑making authority and as he passed an order which was strictly not in accord ance with the relevant rule, it should be presumed that, for the purpose of this case, the President had amended the rule which, therefore, should not be considered to stand in the way of his order. With all respect, we venture to think that this interpretation will violate the sanctity of rules. Further, unless it can be shown that such an order does not operate to the disadvantage of any other civil servant, it would be in violation of the provisions of sub‑clause (a) of clause (3) of Article 182 of the Constitution, according to which the rules under clause (2) of this Article shall be so framed as to secure that the conditions of service of any person to whom this Article applies shall not be varied to his disadvantage. An order of the present kind, which is to the advantage of one officer, is obviously to the disadvantage of some other officers, and if such an order cannot be passed even after amendment of the relevant rules, we do not see how it can be passed without amending them. The facts of this reported case were somewhat different, because the order in dispute could not operate to the disadvantage of any other person and it was passed before the present Consti tution came into force.

12. The only other point that requires decision is whether, in the particular circumstances of this case, the writ asked for should be issued. We are not unmindful of the fact that the period of extension granted to respondent No. 2. is to expire in about a week's time and that, therefore, it is not desirable to issue a direction that respondent No. 2, should vacate his office before the 30th November of 1957., We, therefore, consider it enough to declare that the order granting extension of service to respondent No. 2 being in violation of the provisions of Fundamental Rule 561 was void, without directing the Government to remove him at once.

13. The learned Additional Advocate‑General also con tended that as the Government can re‑employ this officer after the 30th of November 1957, without granting him further extension, the writ that might be issued to the res pondents would be of no avail, and, therefore, the period of extension granted to respondent No. 2 may be considered to be a period of re‑employment. To support this con tention, he referred to certain observations made by this Court in Writ Petition No. 304 of 1956, decided on the 12th December 1956 (Mr. S. A. Majid v. The Government of West Pakistan and Mr. Muhammad Musa). The facts of that case were entirely different, though the provisions of rule 161 of the Sind Civil Services Rules Manual, 2nd Edition, under which action was taken, were almost similar to the pro visions of Fundamental Rule

56. Mr. Muhammad Musa was holding the post of Chief Engineer, P. W. D., Sind, since the 1st of April 1949, and was due to retire on the 17th of February 1956. On the 4th October 1955, the Govern ment of Sind granted him an extension of service for a period of one year with effect from the 17th February 1956, but the formal notification was not issued. On the Establish ment of the Province of West Pakistan, the Minister‑in -Charge, Mr. Sardar Bahadur Khan, passed an order on the 15th February 1956 "endorsing" the order of the late Sind Government. This was subsequently approved on the 9th of April 1956 by the then Chief Minister. Under the Sind Rules extension of service to a Chief Engineer could be granted for a period of three months only. Under the Sind Civil Services Rules, Engineers belonging to Class 1, had to retire at the age of fifty‑five years. The West Pakistan Government issued a notification on the 17th May 1956 amending the Sind Rules by placing the Sind Engineers at par with other engineers of the Province, who could be retained in service up to the age of sixty years, on public grounds to be recorded in writing, though their compulsory age of retirement continued to remain the same, namely, fifty‑five years. The Sind Government's decision to grant one year's extension of service to Mr. Muhammad Musa was notified in the West Pakistan Government Gazette on the 9th of June 1956 and on the 27th November 1956 another notification was issued by the West Pakistan Government ratifying the decision of the former Sind Government regarding the grant of one year's extension to Mr. Muhammad Musa. The order of grant of extension to Mr. Muhammad Musa was challenged by Mr. S. A. Majid, an Additional Chief Engineer, almost on the same ground on which the present petitioners have challenged the order of grant of extension to respondent No.

2. When the case was pending before this Court, the West Pakistan Government, in the Development and Irrigation Department passed an order indicating their intention of re‑employing Mr. Muhammad Musa, if the order of grant of extension to him was con sidered to be of doubtful validity. This Court held that note (3) under rule 161 of the Sind Civil Services Rules, under which extension of service up to the age of sixty years could be granted to civil servants, was not intended to be applied to the case of Chief Engineers and, therefore, as Mr. Muhammad Musa attained the age of superannuation about four months after the coming into being of the Province of West Pakistan, the order of grant of extension of service to him should have been passed by the West Pakistan Government, and on a strict interpretation of the orders passed by Mr. Sardar Bahadur Khan and the then Chief Minister it could not be held that extension of service to Mr. Muhammad Musa beyond the period of three months, provided by the original rule, had been granted to him. In these peculiar circumstances, therefore, the Court came to the conclusion that the notification dated the 27th November 1956, should be construed as being an order of re‑employ ment of Mr. Muhammad Musa until the 17th February 1957. This decision in our opinion, cannot be considered to be an authority for the proposition that an order of grant off extension of service, if it is legally invalid, should be con sidered to be an order of re‑employment. This authority does not, therefore, support the contention raised by the learned Additional Advocate‑General.

14. For reasons given above, we declare that the order granting extension of service for a period of one year to respondent No. 2 was void, because it comes into conflict with the provisions of Fundamental Rule 56, but as this period is about to expire, we do not think it necessary to issue a direction that respondent No. 2 should vacate the office held K by him before the 30th of November 1957. Costs of the petitioners will be borne by respondent No.

1. KAYANI, J.‑--I add this note with a view to laying greater emphasis on the futility of the phrase "during pleasure" occurring in Article

180. I had occasion to say in an Introduction to a Commentary (Constitution of Pakistan by C. M. Shafqat.) that members of the public services were said to hold office during the pleasure of the President or the Governor, as though anyone could be dismissed by either of them at his pleasure. This, I said, was a vicious phrase and a vestige of royal prerogative, for that there is no one so superior in a democracy that his pleasure can cause such havoc, and the Constitution should not have been encumbered with a misleading expression. Even in the home of royal prerogative, the Crown Proceedings Act, 1947, has made it possible for a Government servant to sue the Crown in tort. The old decisions like I. M. Lall's applied in the context of sovereignty, and sovereignty now belongs to "Allah Almighty alone," says the Preamble to the Constitution. Even if the Preamble had been less pious, the King‑can -do‑no‑wrong theory was by its very nature inapplicable to a democratic State.

2. With this explanation, I concur in the conclusion at which my brother has arrived and the arguments employed by him. A. H.