P L D 1966 (W (PLP)

4. The petitioners characterise the above decision of the Provincial Government and the implementation thereof by respondents Nos. 2 to 4 as "without lawful authority", and seek a declaration to that effect. The respondents on the other hand allege, that the petitioners were licensees for a limited period and the Government was perfectly within its right to refuse to renew the licences heretofore granted ex gratia as a measure of the relief.

5. Mr. Saeed Akhtar, learned counsel for the petitioners raised the following contentions to impugn the validity of the Provincial Governments decision, namely‑‑ (i) that the Provincial Government's decision to award catering and vending licences on the basis of tenders being in contravention of paragraph 1128 of the Commercial Manual was without lawful authority; (ii) that distinction in the manner in which cooly‑contracts and contracts for other amenities are to be given is discrimina tory against the petitioners and is, therefore, violative of Fundamental Right No. 15, in Part II of Chapter I of the Constitution, which, inter alia, guarantees equality before law; (iii) that the petitioners are in the employment of P. W. R. and as such are "railway servants" within the meaning of section 3 (7) of the Railways Act, 1890 and that being so, an offer of this public employment virtually being by an auction sale is illegal; and (iv) that, finally, the Government is estopped from refusing to renew licences granted to petitioners Nos. 1 to 12, to each of whom the licence was granted on the express condition that it would be revocable on her remarriage and that the licence has been renewed on that basis, from time to time, each such petitioner continuing to adhere to the above condition.

6. The first ground of attack proceeds mainly on the assumption that paragraphs 1127 and 1128 of the Commercial Manual under which the ‑licences were granted to the petitioners have the force of law and that any grant of licence in violation of the provisions of these paragraphs would be an infraction of law and therefore illegal. The two paragraphs are: ‑ "1127. Licensed vendors(a) Arrangements for the sale of sweetmeats, fruits, drinks, cigarettes, tread, etc., are made through licensed vendors at all stations were the traffic warrants such supply. (b) Suitable vendors will be appointed by the .divisional superintendent concerned. 1128. Cash security deposit taken from vendors.‑Licences are granted to vendors free of any charge, but a cash security deposit, varying from Rs. 50 to 100, according to the import ance of the station is taken from them." A reference‑ to the preface to the Commercial Manual will show that the Manual is merely a compilation of instructions issued by the Railway Administration from time to time for official use and for the information of the public. It does not recite any statute as the source of authority in the exercise of which it has been framed or issued rather vide paragraph 7 of the, preface, the issuing authority has even invited "suggestions through proper channel" for improvement of the Manual. Paragraph 8(D) of the petition refers to section 29 as the source of authority under which the Commercial Manual has been issued. But this section was omitted by the Adaptation Order, 1937. Therefore, it is wrong to consider that the Commercial Manual has any statutory force or for that matter any violation of instructions contained therein can sustain claim for a writ, other than a claim for damages in appropriate cases. The two paragraphs are entirely in the nature of administrative instructions which the appropriate authority can alter at any time in the interest of greater efficiency in the railway service they have not the compulsive force of law.

7. As to the second ground of attack, learned counsel for the petitioners conceded that owing to the declaration of Emergency in country as from the 6th of September 1965, suspending enforcement of Fundamental Rights guaranteed by the Constitution, he cannot invoke the equality clause. Even otherwise, it is a firmly established principle that equality before the law does not mean an absolute equality of men, which is a B physical impossibility: Uniformity in human affairs not being possible, equality before law or equal protection of law clause permits classifications: and all classifications proceed on in equality. In West Bengal v. Anwar Ali (A I R 1952 S C 75) Bose, J. while con sidering Article 14 of the Indian Constitution which is pari materia with Fundamental Right No. 15 of our Constitution, observed, that the provision "does not guarantee equality in the abstract but only equality before the law. That at once leads to the question, what is the law, and whether the law does not draw distinction between man and man and make for inequalities in the sense of differentiation? . . . . . . . One has only to look to the differing personal laws which are applied daily to see that it does to trusts and foundations from which only one particular race or community may benefit, to places of worship from which all but members of a particular faith are excluded, to cemeteries and towers of silence which none but the faithful may use, to the laws of property, marriage and divorce. All that is part and parcel of the law of the land and equality before it in any literal sense is impossible unless these laws are swept away but that is not what the Constitution says, for, these very laws are preserved and along with equality before the law is also guaranteed the right to the practice of one's faith." It was also observed by Munir, C. J. in Jibendra Kishore Achharyya Chowdhury and others v. Province of East Pakistan, etc. (P L D 1957 S C (Pak.) 9) that "equal protection of the laws means that no person or class of persons shall.be denied the same protection of the laws which is enjoyed by other persons or by other classes in like circumstances in their lives, liberty and property in pursuit of happiness." Therefore, it will be wrong to interpret Fundamental Right No. 15 so as to forbid the Provincial Government to retain the previous licensing system so far as Cooly contracts are, concerned and to change over to tender system with regard to the rest. The parties have placed on the record a number of documents to show that this matter has been under a very anxious consideration of the appropriate authorities time and again and it was only after all the pros and cons, including the compassionate grounds on which licences were granted to petitioners Nos. 1 to 12 were granted, were duly considered, that the final decision in the matter was taken. It was entirely a policy decision on a matter which was within the competence of the Government to take and which on no discoverable principle can be questioned in Courts. Therefore, we do not find any substance in the second contention, either.

8. In respect of the third ground, the petitioners learned counsel urged that the licences to the various petitioners were granted subject to rigorous conditions and that the Railway Administration retained an overall supervision and control as to the manner in which they were to conduct their business and to perform services required under the licence granted to them. That even employment of other persons by the petitioners was subject to the approval of the Railway Administration. In this behalf reliance placed on Annexures `F' and `G' Which prescribe the conditions to be observed by the vending contractors. These conditions include fixation of the prices of the articles and periodical medical examination of the persons to be employed by the contractors, wearing of uniforms, etc., etc. On the basis of these facts, it was contended that the relationship between the petitioners and the Railway Administration was not that of an employer and independent contractors but as between a master and the servant because the petitioners were not free to ' carry on independent business. In this behalf reliance was placed on Monograph 959 of Halsbury's Laws of England, Third Edition, Volume 25 (Pages 497‑493), wherein a distinction between the relationship of an employer and an independent contractor and master and servant is brought out. Emphasis was laid particularly on the following statement:

" To distinguish between an independent contractor and a servant, the test is whether or not the employer retain the powers, not only of directing what work is to be done, but also of controlling the manner of doing the work. If a person can be overlooked and directed in regard to the manner of doing his work, that person is not a contractor, and it makes no difference that his work is piecework." An examination of some of the English. cases cited in the foot note, e.g., Hardaker v. Idle District Council ((1896) 1 Q B 335) and Collins v. Hertfordshire County Council ((1947) 1 K B 598) tends to show that the above statement is relevant in a different context, namely, when the question concerns the vicarious liability of an employer for the tortious acts committed by the contractor employed to do a particular work or to perform a particular service. There is no such question in this case. The precise question to be considered r in this case, concerns the status of the petitioners, that is to say, as to whether they are mere contractors vis‑a‑vis their employer (the Railway) or their relationship with the latter stands on any higher footing, namely that of master and servant. Therefore, we are of the opinion that the above statement of lacy is not relevant to the question before us.

9. The question relating to the true status of the petitioners really falls to be determined under the provisions of the Railways Act, 1890, upon which the petitioners' learned counsel also relied. According to section 3 (7) of the Act "Railway servant means, any person employed by a Railway Administration in connection with the service by a Railway." The underlined expression is of very wide import indeed, and includes besides whole‑time employees belonging to the established services under the Railways, all persons even if E employed casually if they are engaged in any activity in connection with service by the Railway. Now the Railway does not merely carry the passengers or goods: it inter alia, provides all sorts of comforts and amenities to the passengers and any arrangement to provide such amenities would be included in the underlined expression. Indeed papers placed on the file show that among the various alternatives considered with a view to improving the catering arrangements were that the refreshment rooms and dining cars instead of being run by the contractors, should be run departmentally. This was, however, dropped. The question, in our opinion, is directly covered by judicial precedents. In S. L. Kapoor v. Emperor (A I R 1937 Lah. 547) it was held that a refreshment room contractor must be classed under the expression "railway servant". The learned Judges observed that in a very large proportion of the cases in which a person contracts with the railway to perform a certain service on its behalf he can be said to be employed by the railway to do that service and so comes within the definition of section 3 (7) of the Act. It was further observed that the service of a railway is not limited to the running of trains, but has a much wider meaning. The provision of meals for travellers is part of the service of a railway. The test to determine whether a person is an employee or an independent contractor is whether or not the employer retains the power not only of directing what work is to be done, but also of controlling the manner of doing the work. If a person can be overlooked and directed in regard to the manner of doing his work such person is not a contractor. Where, therefore, by an agreement with a contractor of a refreshment room, the Railway Administration both overlooks and directs him in the performance of his work, the contractor must be deemed to be a "railway servant" and not an independent contractor and the termination of his services by the railway amounts to discharge within the meaning of section 138 of the Act. When we turn to section 148 (2) of the Act, we find that the expression "railway servant" is further extended so as to include "a person employed by the railway in connection with the service thereon by a person fulfilling a contract with the railway administration." By the extension of the meaning of the expression "railway servant", the intention plainly is on the one hand, to bring under direct disciplinary control of the Railway, all persons who, though not in the regular employment of the Railway, but were otherwise engaged in the doing of some work in connection with service or construction of railway, and on other hand, to extend to them all benefits which would incidentally flow by their being Railway servants. Piaraykkal v. Agent S. I. R. (1953 M W N 674) and A. V. Joseph v. J. L. Lammond (A I K 1924 Rang. 372 (2)) are two instances of extension of such benefits while the Lahore case cited above is an instance of exercise of disciplinary power over catering contractor whose licence was cancelled under the terms of the contract. Therefore, we accept petitioners learned counsel's contention that the petitioners are "Railway servants" within the meaning of section 3(7) of the Act.

10. The conclusion reached in the preceding paragraph, however, only answers the first part of the third proposition canvassed by the petitioners learned counsel. It remains to be seen whether there is anything in law to forbid the Railway Administration to give catering and vending contracts on tender basis, because the petitioners are found to be "Railway servants" within the meaning of section 3(7) of the Act? Learned counsel for the petitioners contended with some vehemence that once the petitioners are held to be "Railway servants", then the proposed award of catering and vending contracts by tenders would amount to selling "public appointments by auction," which is opposed to public policy and good Government, and therefore illegal. However, no judicial precedent was cited in support of this somewhat ingenious argument. Even otherwise, the argument does not stand a closer scrutiny. It is not controverted that petitioners are "Railway servants" only in the extended sense of the term as defined in the Act, and not according to its ordinary grammatical meaning conveying the sense of whole‑time employ ment as in the case of persons belonging to established services under the Railway. As pointed out in Maxwell on Interpretation of Statutes in Chapter 3 at pages 78‑79 (Eleventh Edition) that before adopting any proposed construction of a passage susceptible of more than one meaning, it is important to consider the effects or consequences which would result from it, for they often point out the real meaning of the words. There are certain objects which the Legislature is presumed not to intend, and a construction which would lead to any of them is therefore to be avoided. One of these presumptions is that the Legislature does not intend to make any substantial alteration in the law beyond what explicitly declares, either in express terms or by clear implication, or, in other words, beyond the immediate scope and object of the statute. In all general matters outside those limits the law remains undisturbed. It is in the last degree improbable that the Legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness."

11. Bearing this principle in mind, the question then is whether the extended definition of the words "railway servants" in the Railway Act confers upon the petitioners the status of "full‑fledged" `railway servants who are in the regular employment of the Railways and hold posts in cadres of established services and paid out of the public revenues for the services rendered to the Railways. In other words whether the definition of "railway servant" in section 3(7) has the effect of bringing the catering and vending contractors to the level of regular whole‑time servants. The answer to this question is plainly in the negative. It cannot be controverted that, the licences in the instant case were granted under the general law of contract or easements and it was open to the petitioners to accept or refuse the contracts. It could never have been intended by the statute to obliterate the distinction between the generality of civil servants who belong to the recognised cadres of service under the Railway and the casual contractors, who are engaged to offer various services to the passengers. For unless, this distinction is maintained then a number of strange consequences will follow. For instance, if the petitioners are treated at a par with the established "railway servants" then they will be entitled to a notice under Article 177 of the Constitution to show cause before terminating their services under their agreements which could never have been the intention. Then it is not known what will be "reduction in rank" m their case. It is nobody's case that such a consequence can ensue in the case of petitioners as long as they remain in the employment of the Railway as vending and catering contractors. Therefore, we have no doubt in our mind that the extended definition of "railway servant" in section 3(7) of the Act will be applicable to the petitioners only as respects cases falling within any provisions of the Railways Act and cannot be extended to matters which are foreign to the scope of the Act. The renewal, cancellation or grant of catering contracts is governed by the general law of contract and easements and is not regulated by any express provision of the Railway Act and, therefore, the petitioners' right, if any, will be determined under the general principles of law relating to contracts and easements. Rab Nawaz v. The State (P L D 1965 Lah. 676) decided by one of us, is a recent authority in support of this view. In that case the definition of the expression "constructive notice" in Explanation I to section 3 of the Transfer of Property Act, 1882, was held to be applicable to cases falling within the purview of that Act only and not to matters foreign to the scope of that Act. Viewed in this perspective which in our view is the only correct perspective, it is wholly fallacious to contend, that respondents Nos. 1 to 4 by inviting tenders for catering contracts are offering employment to any established service or post under the Railways, by auction. The matter falls to be determined entirely under law of contract and easements which shall be decisive of the rights and privileges, if any, so far as the grant or renewal of licences to the petitioners is concerned. We have, therefore, no doubt in our mind that Government is fully competent to give the licences on the basis of inviting tenders and there is nothing in law to prevent a departure from the past practice of offering licences on the basis of licensing system, the fact that the petitioners (or at any rate the majority of them) are "Railway servants" within the meaning of section 3(7) of the Railways Act notwithstanding.

12. The last contention proceeds on assumption of certain facts, for which there is no basis, whatever. For instance, it must be assumed that each of the petitioners 1 to 12 on the death of her husband was confronted with the hard choice either to contract the second marriage to end the state of her widow hood or to accept the grant of a vending licence, and by accepting the latter, she surrendered the advantages of second matrimony. It is difficult to imagine, how all these facts can be assumed in favour of the petitioners 1 to

12. There is nothing to show whether a second marriage in each case was actually in the offing, when grant of licence came as a bolt from the blue to shatter its prospects. Further, it is not denied that licence was granted to each petitioners Nos. 1 to 12 purely on. compassionate grounds, and such ground cannot last for ever, nor can the Railways on any discoverable principle are placed under a perpetual disability to revoke the licence which was ab initio gratuitous. Grant of licence to each of petitioners Nos. 1 to 12 was not property and cannot be held assimilable to widow's estate under Customary or Hindu Law, so as to endure till her death or marriage. Any such suggestion would be untenable. Therefore, there is no force also in the fourth contention raised by petitioners learned counsel.

13. The above discussion of the case leads us to conclude that the petitioners case has no merit, whatever. That apart, this writ petition to enforce any supposed right under the licences granted to the petitioners is altogether misconceived. As recently held by their Lordships of the Supreme Court in M. A. Nassar v. Chairman, P. E. R. (PLD1965SC83), .a catering contract granted by the Railways is a mere licence under clause (a) or (b) of section 6 of the‑Easements Act, 1882 and is revocable at any time and therefore no injunction can issue to prevent its revocation. In our opinion this dictum of their Lordships of the Supreme Court is a complete answer to the petitioners claim, even that be for a mere declaration. Petitioners rights under the licences granted to them are not in the nature of property and if there is any violation of any term of the grant, then the petitioners remedy is a suit for damages, and not the enforcement of the grant by a writ. Memon Motor Co. v. R. T. A., Dacca (PLD1962SC 108) is also in point.

14. For the aforesaid reasons, we dismiss the writ petition leaving the parties to bear their own costs. K. B. A.