P L D 1964 Supreme Court 302 (PLP)

At the hearing of this appeal, some fresh material w brought before the Court in the shape of the record of certain D questions put in the Legislative Assembly of the North-West Frontier Province and the answer given thereto by the Minister on the 18th April 1955. The Government had been asked whe ther a scheme had been settled for fixing the seniority of these officers and what action had been taken. The Minister gave the reply that Mr. Dent had formulated one scheme and Mr. Zuberi had put forward another and that the Government had decided that inter se seniority would be based upon the marks obtained in the departmental examinations. It is questionable what degree of validity such an answer given by a Minister before the Legislative Assembly has, as a definitive order to bind the Government. It must, in my view, be accepted, on its face, as a declaration of the Government's intention to act in a certain way following the making of a decision at the appropriate level. But, at the same time, it must be accepted as being subject to the inherent power of Government to act, in its execu tive capacity, according to the circumstances in existence, when action is invoked, and irrespective of anything said, or any intention, whether declared or otherwise, formed at any earlier time. It may be mentioned that from about 1951 onwards Muhammad Sarwar and one or two other officers had beer attempting to get their names raised in the seniority list then current. On the 23rd March 1951, the Excise and Taxation Officer at Abbottabad recommended to the Excise and Taxation Commissioner at Peshawar that Muhammad Sarwar and Sikandar Khan had approached him for improvement of their seniority on the strength of their success in the departmental examina tion. Persons above them on the existing seniority list, who had not qualified by passing the departmental examination, were officiating in higher posts. These two persons were recommended for "their ability, efficiency, honesty and integrity, and their distinguishedly (sic) qualifying" in law, and it was suggested that they should be placed in the seniority list according to the result in the departmental examination. There was further correspondence on the subject, but in 1954, a reply was sent that they should be informed that the Provincial Govern ment had decided after careful consideration that the seniority list of these Sub-Inspectors "has permanently been fixed and cannot be changed." Muhammad Sarwar made a representation to the Governor of the Province in June 1954, and received a reply from the Excise and Taxation Commissioner in September 1954, in the same terms namely that the seniority "had finally been fixed." Other officers similarly placed namely Muhammad Jafar Khan and Pir Tila Muhammad Khan had also asked for improvement of their seniority and to them also in September 1954, the same reply was given. This was of course at the time when the question of settling the seniority under rule 11 was under examination at the highest level at the Secretariat. The decision taken at that time was that, at or after confirmation, acting under rule 11, the Revenue and Divisional Commissioner would resettle the seniority in accordance with the marks obtained at the departmental examination. Therefore, the replies sent by the Excise and Taxation Commissioner to the repre sentation of Muhammad Sarwar and the other Excise Sub-Inspec tors must be read and understood subject to that decision, in other words that although the expression "permanently" had been used, nevertheless it was to end, if and when, upon or follow ing their confirmation, the Revenue and Divisional Commissioner resettled the seniority. But further noting placed on the record brings to light that a change came over the attitude of the Government not long after the making of that decision. In April 1955, a file concern ing a joint representation by Muhammad Sarwar and Sikandar Khan regarding their seniority, was sent up to Mr. Zuberi with a recommendation that the representation should be rejected. It included the following observations :- "Strictly speaking the quotation marked `A' in red at page 48 is objectionable. Muhammad Sarwar and Sikandar Khan being Government servants may kindly be discouraged to Advocate their cause through the proceeding of Legislative Assembly." (20th April 1955). These Excise and Taxation Sub-Inspectors have again repre sented their case for reconsideration for fixation of their seniority on the list on account of the recent replies from the Honourable Minister for Revenue in the Legislative Assembly. Both the candidates have been greatly affected by the present and existing orders but nothing is known to the office about the replies made by the Honourable Minister for Revenue." (21st April 1955). On this Mr. Zuberi noted as follows :- "Seen. File". which is dated 25th April 1955. Mr. Zuberi himself had noted not long before this, that is on the 13th May 1954, to the effect that the decision "already taken" that final seniority should be based on the result of the departmental examination should be adhered to, and I decline to believe that his order of the 25th April 1955 was made inadvertently or through his having forgotten what had been said before by him in the discussion which preceded the making of the earlier "decision Indeed, on the 1st September 1964 he had made the order on the strength of which the reply of the 6th September 1954 had been given to Muhammad Sarwar, namely, that the seniority of the Sub Inspectors had been "finally fixed" and could not be changed. That reply was given in an answer to a representation by Muhammad Sarwar in which he brought out very clearly his claim to preference on the ground of his outstanding success in the departmental examination, emphasising how badly ten other fellow officers had done in the same examination and added also the complaint that, overlooking his case and his "unrivalled qualifications," the Provincial Govern ment had "strangely enough and without any legal justification promoted" other officers from the same list to the rank of Inspec tors. These contentions cannot have failed to bring back to Mr. Zuberi's mind the part he took in the decision of the 13th May 1954. Therefore, when, on a date following the date of the confirmation order, that is, on the 25th April 1955, Mr. Zuberi declined to entertain the claim of Muhammad Sarwar, he must be deemed to have done so consciously In his capacity as Revenue and Divisional Commissioner, from which I can only infer that there had been a change in the attitude of the Govern ment. The declaration by the Minister in the Legislative Assembly had been made only a week before Mr. Zuberi made his order, which was directly to the contrary effect. It will be seen pre sently that the change of attitude was maintained thereafter in spite of renewed efforts by Muhammad Sarwar to obtain implementation of the "decision" of the 13th May 1954. In August 1955, a number of Members of the Legislative Council raised the question of the inter se seniority of these Excise and Taxation Sub-Inspectors, with the Ministry and papers were placed on the record at the hearing of this appeal showing the notes which passed. The question was raised again with reference to Muhammad Sarwar and Sikandar Khan. The first note states that these Sub-Inspectors had been con firmed according to the seniority position in the gradation list and this list was the same one which had been approved by the Minister on the 8th December 1951. Under this note another appears which should be reproduced in full "Power of fixation of seniority rests with R. and D. C. vide para. 11 of Excise Subordinate Services Rules placed next." This is dated 10th September 1955, and then follows the note with which the case was placed before Mr. Zuberi. It states that Muhammad Sarwar and Sikandar Khan who were placed Nos. 10 and 11 in the seniority list "in accordance with the order of the Provincial Government" had previously submitted a representation that their seniority should be fixed on the basis of the marks they had obtained in the departmental examination. The Provincial Government carefully considered their cases and had decided that the list was finally settled and could not be changed. The Sub-Inspectors not being satisfied, approached a Member of the Legislative Assembly who put a question in the Assembly and a reply was given. (This was probably the reply of the 18th April 1955). They had represented their case again through certain Members of the Legislative Assembly "reviving their old grievances and have further stated that H. M. R. (had) assured that the criterion for seniority will be in accordance with marks obtained in the departmental examination but nothing so far been done to refix their seniority." The note went on to say that the Revenue and Divisional Commissioner was the final autho rity to fix the seniority of the members as prescribed in para. 11 of the Rules. It was added that the existing seniority had been fixed after careful consideration and "most of the members" had been confirmed in accordance with their seniority in that list. This note is dated the 13th September 1955, and the order of Mr. Zuberi thereon is dated 10th October 1955, thus leaving ample time for consultation between the Excise and Taxation Commissioner, as Mr. Zuberi then was, and the Government, e.g., the Minister. Mr. Zuberi's order reads as follows :- "Seen File. No action." It is impossible for me to consider this order, made upon a representation containing precisely the same contentions as were advanced in the writ petition, otherwise than as representing a departure from the declaration or policy or intended action made in the Assembly by the Minister on the 18th April 1955. Even though the matter bad been raised only by two of the affected officers who had some impression of their ability being superior to that of the others, there is no question but that what was asked for was refixation of the seniority of all the affected officers on the basis of the earlier "decision." I cannot construe the order of Mr. Zuberi, otherwise than as one showing refusal on his part to vary the seniority list as it was at the time of the confirmation. Not satisfied with this decision, a fresh attempt was made by Muhammad Sarwar to have his case re-examined. This was by a representation made to the Director Excise and Taxation Department West Pakistan, on the 21st February 1956, by his father Haji Dost Muhammad. By this time, the North-West Frontier Province Administration had been absorbed in the Pro vince of West Pakistan. Mention was made of the marks obtained by Muhammad Sarwar at the departmental examination, of the policy decision by Mr. Dent and the later decision by Mr. Zuberi, according to both of which it was said, Muhammad Sarwar should have been given the first place, to the answers given in the Assembly and to Muhammad Sarwar's earlier representations as well as to the promotion given to some of his colleagues which was described as an "illegality." There was correspondence on the subject between the Deputy Director, Excise and Taxation at Peshawar and the Director at Lahore, which shows that relevant matters were examined. This repre sentation was rejected by the Government of West Pakistan in a letter dated 23rd July 1957, from the Secretary in the appro priate Ministry to the Director, reading as follows :- "The Government do not find any justification in accepting the claim of seniority made by Messrs Muhammad Sarwar, Sikandar Khan and (by) Saeedullah Khan on behalf of his cousin, Rab Nawaa, Excise and Taxation Sub-Inspectors, under the rules and their respective representations are rejected accordingly." Dr. Nasim Hassan Shah arguing on behalf of Muhammad Sarwar contended that Mr. Zuberi's orders of the 23rd April 1955, and the 10th October 1955, were based upon belief that a fresh seniority list had been drawn up in accordance with the decision of the 13th May 1954, and that he was being advised by his staff that Muhammad Sarwar was trying to get this amended list revised. In fact, no amended list appears to exist in the official record. Each of Muhammad Sarwar's representa tions was for improvement of his seniority as shown in the existing list and the noting shows in more than one place that thagradation list was placed before Mr. Zuberi along with the papers. As I have pointed out above, in one of the last notes to be placed before Mr. Zuberi the existing placement of Muhammad Sarwar and Sikandar Khan at numbers 10 and 12 in seniority was mentioned, and it was mentioned also that they were attempting to have their positions improved on the basis of the departmental examination results. Clearly, after reading this note, which he must be presumed to have done, Mr. Zuberi could not conceivably have been under any illusion that there had been any amendment of the list in implementation of the earlier '-decision". I cannot suppose that Mr. Zuberi directed that no action be taken in the belief that the two officers were making out a case of grievance when they had none. The firm impression which I have is to the contrary, namely that in April 1955, and again in October 1955, when the matter was placed before him -and it was brought to his notice that his power under rule 11 aforesaid was invoked he consciously and expressly declined to alter the seniority list and he could only have done this in full consciousness of the earlier decision approved and announced by Government as to the policy to be followed when the seniority was refixed at or after the time of confirmation. I construe his orders as representing firstly a total change of attitude on the part of the Government in regard to the policy to be followed in fixing the inter se seniority and secondly and consequently as a refusal to exercise his power to vary the seniority list already in operation. That decision had the appro val of the Government at the highest level. This is shown by the treatment accorded to the representation of Haji Dost Muhammad, father of Muhammad Sarwar, and I am also of the opinion that in view (a) of the treatment of the case in the Secretariat in 1954, and (b) the Minister's declaration in the Assembly on the 18th April 1955, Mr. Zuberi could not conceivably have made his order of the 10th October 1955, with out prior consultation with the Government. There being a Minister's decision, followed by a public declaration by the Minister, the Director must be presumed to have acted as required of one in his position, namely, after prior consultation with the Government at the highest level. The change of attitude of the Government is by no means unreasonable, in my view. As the Minister had remarked, in 1954, to settle seniority by marks gained at a departmental examination was a departure from established practice, and did not furnish a safe criterion for discrimination among officers from whom executive ability was desired. Moreover, it is easily possible to make too much of the favourable opinion expressed concerning Muhammad Sarwar by one or two of his superior officers. His placing at the initial selection was not high. The educational requirement for the post was passing the Intermediate Examination, and he was a matriculate only. The record shows that for the year 1954, the remarks in his work-report were bad. It may well be that the Government were content, upon the experience they had of the work of all these officers that they were placed, more or less, in a correct order of inter se senio rity in the table settled on the 8th December 1951, and that to alter the seniority, as late as 1955, on the basis of the results of departmental examinations held several years earlier would be both mechanical and inconsistent with sound administrative principle. In the view I take, the writ issued by the High Court requires the Government to make a decision which in fact has already been made. The intention behind the advisory observation by the High Court, viz., to secure implementation of the policy which was laid down after discussion in May 1954, involves reversal of the decision taken in 1955, viz., to depart from the earlier intention to resettle the list, and instead to adhere to the original list upon which this cadre of officers appointed in 1949, was being administered. I would, for these reasons allow this appeal and would recall the writ issued to the Government. There is a case here for allowing to the appellants their costs against Muhammad Sarwar, but in view of what I have already said regarding the impropriety of members of an established Service pursuing each other through the Courts for advancement of their individual careers in the same Department, I would leave the appellants to bear their own costs. FAZLE-AKBAR, J.-I have had the advantage of reading the judgments of my Lord the Chief Justice and of my learned brother Kaikaus, J. I am also of opinion that it is not clear from the various orders that the Revenue and Divisional Commissioner had determined the seniority of Sub-Inspectors of the Excise and Taxation Department in accordance with rule 11 of the Rules applicable to them. The reasons for such a conclusion have been E fully explained in the judgment of my learned brother Kaikaus, J., and I cannot add usefully anything to it. I therefore, express my concurrence in the judgment proposed by Kaikaus, J., and in the reasons my learned brother has assigned. I would dismiss this appeal but make no order as to costs. B. Z. KAIKAUS. J.-This appeal arises out of a dispute relating to the seniority inter se of Sub-Inspectors of the Excise and Taxation Department who had been recruited by the former N.-W. F. P. Government in the year 1949. Twenty-six Sub -Inspectors in all had been recruited on the recommendations of a Selection Board. The rule that admittedly governs the fixation of their seniority infer se is rule 11 of the rules framed in 1935, for the N.-W. F. P. Excise Subordinate Service which runs "

11. The seniority of the members of the service should be determined by the date of substantive appointment in the post, provided that if two or more members are confirmed in the same class of post on the same date, their seniority shall be determined by the Revenue and Divisional Commissioner, whose decision shall be final. This rule it will be observed relates to the fixation of seniority after confirmation. For the determination of seniority before confirmation there is no specific rule. The question of seniority did arise, however, before confirmation and the matter went up to the Revenue Minister. The list which had been sent by the Selection Board to the Revenue Minister at the time when appointments of these Sub-Inspectors were made was an ad hoc list. It did not purport to be in any order of seniority. The Selection Board had awarded marks to the candidates, but the list was not even in accordance with the marks awarded. The Revenue Minister, however, adopted that list as a list of seniority till the conclusion of the period in which the Sub-Inspectors were to qualify themselves. It may be explained here that in accordance with rules framed by the Government n 1950, they were to pass a qualifying departmental examination within a period of two years. Following is the order which the Revenue Minister recorded. "The list at flag "B" in file XXXV-D-4 as amended by my order thereon should be considered as the seniority list of Taxation Sub-Inspectors till the conclusion of the period in which these Sub-Inspectors are required to qualify themselves. Thereafter their seniority inter se will, if necessary, be redeter mined in accordance with the rules". "The list at flag B" was a list of candidates who had been recommended by the Selection Board and in it some amendments had been made by the Revenue Minister, because the recom mendations of the Board had been slightly modified. It would be observed that in this order the list of seniority was accepted only for the time being as the matter was to be reconsidered. These Sub-Inspectors were all of them with the exception of one, that is Mumtaz Ali, confirmed by an order of the 10th March 1955, with effect from the 1st of March 1952. The ques tion of their seniority arose, however, again before they were actually confirmed when they had qualified themselves and the case of their confirmation was pending. The matter was dealt with by Mr. Dent the then Revenue and Divisional Commissioner, who in accordance with rule 11 was the authority empowered to determine seniority in the case of officers confirmed on the same date. Mr. Dent found that the list of seniority which was being acted upon for the time being was a list which had no reference to seniority. He said: "it is not at all clear on what basis the list was prepared" and is certainly not In order of the number of marks obtained in the selection interview nor is it based on educational qualification". It seems to me that this was merely a list with no particular reference to seniority and it appears that H. M. R. took it as such when writing his order in paragraph 74 wherein it is clear that the list was merely to serve as a provisional seniority list until these Sub-Inspectors qualified themselves. Mr. Dent went on to say that although in the order of the H. M. R. there was a reference to deter mination of seniority by rules as a matter of fact there was no rule to determine seniority and the seniority under rule 11 was to be determined by him. Rule 11 gave no indication of any criterion and he himself had, therefore, to find out a criterion. The criterion upon which he decided to act was the following (i) those who failed to qualify in the departmental examina tion in four attempts were to be placed at the bottom of the list, (ii) those who qualified within the fourth attempt were to be placed in the seniority list in the order of their marks in the departmental examination. Mr. Dent sent the case to the Revenue Minister. He made it clear, however, that he was not asking for any order, because orders were to be passed by him under rule I1 and that he was sending the file to the Revenue Minister because the question of seniority had previously gone to the Minister and he may like to see the case again. Mr. Dent had, however, asked for the order of the Minister with respect to one matter which was that some of the Sub-Inspectors did not possess the educational qualification required under the rules and there was a question whether they should be confirmed or should be removed. When the case went up to 'the Revenue Minister with respect to the fixation of seniority he simply said: "seen" and with respect to the educational qualifications he said that once having been accepted as candidates this should not by itself stand in the way of their confirmation. The office then prepared a seniority list in accordance with directions of Mr. Dent. Those who did not qualify in four attempts were placed below those who had qualified in four attempts and the inter se seniority of the latter was in accordance with the aggregate marks which they obtained in the examination. This list was confined to candidates who were selected in 1949. Mr. M. H. Zuberi who later became the Revenue and Divi sional Commissioner of N.-W. F. P. was at that time an Officer on Special Duty in the Revenue Department of that province. He wanted to go a step further than Mr. Dent in fixing seniority on the basis of marks obtained in departmental examinations. He was of the opinion that not only should seniority be based on marks obtained in the examinations but that those who passed the examination earlier should be given seniority as against those who passed it later. He thought that this would bean inducement to the candidates to prepare themselves for the examination seriously. When the note of Mr. Zuberi went to Mr. Dent, he agreed to the extent that those who passed in their first attempts might be placed above those who failed in the same examination. Mr. Zuberi after receipt of this note from Mr. Dent stuck to the view he had put forward and the matter then went to the Revenue Minister. The Minister first made an alternative suggestion but dropped it after discussion with Mr. Zuberi and agreed that seniority should be based on the results of departmental examination. The note of Mr. Zuberi of 13-4-54, says : "Mr. Dent has suggested and H. M. R. has accepted the suggestion that the final seniority should be based on the result of the final departmental examination. I request that for this batch as a decision has already been taken it may be adhered to ..For the future, the modification that I had suggested to Mr. Dent's proposal of giving seniority according to their passing the departmental test that is those passing earlier would be confirmed earlier and ranked senior to those who follow, may be appointed". By this note Mr. Zuberi agreed that for the 1949 batch the proposal of Mr. Dent may be accepted. Mr. Zuberi gave directions to the office saying that a seniority list be prepared and submitted at once. A list was then prepared and as appears from the following written statement of the Deputy Director of Excise and Taxation, Peshawar Region, Peshawar, it was sent to the press for being printed. This written statement says "A list was sent to the Manager, Government Printing Press, Peshawar, vide No. 366/T, dated 8-1-1955, by the Excise and Taxation Commissioner of the defunct N.-W. F. P. (page 45 of file No. XIX-C-618, Part I), but the requisite list is not avail able in the tile nor was it returned by the Manager, Govern ment Printing Press, Peshawar. There is, however, a noting on the file." The relevant file shows that this was a consolidated seniority list not only of the Sub-Inspectors who had been recruited in 1949, but also of those who had been recruited earlier and that in this list Muhammad Sarwar who was the petitioner in the writ peti tion and one Sikandar Khan whose mention is relevant because of a joint representation were placed at Nos. 16 and 23 of the list. Long before the question of seniority was thus decided Muhammad Sarwar the petitioner In the writ petition out of which this appeal arises who had stood first in the very first depart mental examination and one other Sub-Inspector had made a representation against the fixing of their seniority in accordance with the list from the Selection Board and they had asked for their seniority to be fixed in accordance with the result of their departmental examination. This representation was put up before Mr. Zuberi after the preparation of the fresh list, above-men tioned and the office-note on it said : "the case has already been decided vide paras. 251-255 in file XIX-C-140 and covers the batch of Sub-Inspectors recruited in 1949. As these two men (Muhammad Sarwar and Muhammad Jaffar) belong to that batch, their case cannot be considered on individual merits. If that is done, then the whole seniority will be upset and the object of orders passed nullified." It may be explained here that paras. 251 to 255 on file XIX-C-140 referred to in this note con tained acceptance of the proposal of Mr. Dent with respect to this batch which has already been reproduced above. When the office said that "the whole seniority list would be upset" it was obviously referring to the seniority list prepared in accord ance with the criterion laid down in paras. 251-252. This becomes quite clear from the noting that follows. When the above note was put up before Mr. Zuberi he said : "how are they placed in that list" and the office said : "they appear at Nos. 16 and 23 of the seniority list". Mr. Zuberi then said "give them a suitable reply". As has been explained by learned counsel for Muhammad Sarwar respondent had it been known to Muhammad Sarwar that he was placed at No. 16 in the list that had been prepared he would have withdrawn his representa tion because he was quite satisfied with that decision. But about the new seniority list Muhammad Sarwar had no know ledge and it is also to be remembered that his representation had been filed long before the fresh seniority list was pre pared. Yet although Muhammad Sarwar would have been quite satisfied if he had known the facts the answer which was sent to him in accordance with the direction of Mr. Zuberi to "send a suitable reply" was this : "Please inform them that the Provincial Government after the careful consideration have decided that the seniority list of their both of Sub-Inspectors have permanently been fixed and cannot be changed." (I have produced the note verbatim and have not corrected the grammar). This purports to be a reply from the Government and has been relied upon by the appellant in support of his plea that the Government had by this letter confirmed their decision to adopt the seniority list of 8-12-1951, whereas it is clear that Mr. Zuberi was only refusing to interfere with the list in which Muhammad Sarwar was shown at No:

16. There is little doubt that a fresh seniority list was prepared in accordance with the orders of Mr. Zuberi and the list was even sent to the press for being printed. It somehow disappeared from the file and somehow the printed copies also were not received back from the printing press and in any case if they were received back they were not on the file. The list of 8-12-1951, was being used as a tentative seniority list before the new one was prepared and after the preparation of the new one as it was not on the file when the case for confirmation was put up the candidates were shown in the order in which they appeared in the list of 8-12-1951. Muhammad Sarwar respondent No. 3 in this appeal having failed to have his seniority accepted, filed the writ petition out of which this appeal arises. He claimed that he was entitled to have a seniority in accordance with the result of the departmental examination. This would put him at the top of the list of the 1949 Sub-Inspectors. Respondents to the writ petition were the Government of West Pakistan, the Director, Excise and Taxation, the Deputy Director, Excise and Taxation, Peshawar Region, and the other Sub-Inspectors of the 1949 batch. The respondents to the writ petition claimed that seniority had been determined by the order of 8-12-1951, and that the Government had in spite of representations made by Muhammad Sarwar respondent refused to reconsider the question of seniority. The learned Judges of the High Court after an exhaustive discussion of facts came to the conclusion that the Revenue and Divisional Commissioner had fixed the seniority of Muhammad Sarwar respondent and all other Sub-Inspectors of the 1949 batch in accordance with the proposal of Mr. Dent, but that deci sion according to the learned Judges was not binding because in accordance with rule 1 I a decision had to be taken as to seniority after confirmation and after confirmation as yet there had been no fresh decision. The learned Judges granted, therefore, a writ for a decision of the question of seniority by the Director of Excise and Taxation or any other officer who had taken the place of the Revenue and Divisional Commissioner of the former N.-W. F. P. The learned Judges did, however, in the order express the hope that in deciding seniority the officer concerned would have due regard to the principle enunciated by Mr. Dent. The simple question for decision in this case would be whe ther after confirmation an order has been passed by the Revenue and Divisional Commissioner fixing seniority. If it has not been passed the seniority is to be fixed under rule 11 by that officer. My Lord the Chief Justice is of the opinion that the words "seen file" recorded by Mr. Zuberi on the 25th April) 1955, on an office noting referring to a representation made by Muhammad Sarwar respondent and another Sub-Inspector amount to a refusal to consider a modification of the seniority list of 8-12-1951, and, therefore, they are tantamount to a deci sion by him under rule 11 that the seniority list of 8-12-1951, is the correct seniority list. With great respect I am unable to agree with this view. The first point to consider is whether a plea like this should be allowed to be taken before us at all. Whether Mr. Zuberi was taking or not taking a decision under rule 11 is a question of fact and is not merely a question of law0 as to the interpretation of the words "seen file" and this plea was never taken before the High Court by any of the respon dents to the writ petition. The proper person to take the plea was the Government and on a reference to their written statement it is abundantly clear that according to them the question of seniority had been finally settled by the Revenue Minister on 8-12-1951. In para 3 the Government said in its written statement "the seniority was, however, not fixed according to the marks obtained in the interview and it was determined by Mian Jaffar Shah the then Revenue Minister, thus the seniority was fixed by the then Provincial Government". After quoting rule 11 the written statement said : "it will thus appear that seniority is to be determined by the Revenue and Divisional Commissioner only, when the persons are confirmed on the same date. In the present case, the orders were passed by the Minis ter". Paragraph 15 made the matter further clear by express words. It says : "seniority was fixed by the Provincial Govern ment and it still stands. True, there was a reference to a representation having been rejected by Mr. Zuberi, but no plea was ever taken that Mr. Zuberi himself passed any orders. The judgment of the High Court will show that no point was made of the words "seen file" and there is no complaint before us that it was argued but the High Court failed to mention it. However, even if we are to go into the matter and decide the question ourselves I find no sufficient ground for holding that Mr. Zuberi could be giving a decision in favour of the list of 8-12-1951. Considering the circumstances these words would imply that he stuck to the decision he had taken and the list which he had got prepared in accordance with that decision. I have already pointed out that in May, 1954, a list had been prepared in which Muhammad Sarwar and another were shown at Nos. 16 and 23 and Mr. Zuberi had himself got a reply sent to Muhammad Sarwar respondent No. 3 intimating that this list in which he was shown at No. 16 cannot be changed. It is nobody's case that Mr. Zuberi interfered with the list or got prepared another list. Mr. Zuberi was from the very first of the opinion that seniority should be fixed in accordance with the results of the departmental examination. He had gone one step further than Mr. Dent and had proposed that those who passed earlier should be placed senior to those who passed later. Even in the last note which he had written in the case he stuck to the opinion which he had put forward, but accepted that for the 1949 batch the decision taken by Mr. Dent may be accepted. He knew that a list of seniority prepared in accordance with the principle accepted by him had been prepared. There is nothing to show that he knew that the fresh list got prepared by him was missing. It is impossible to accept that Mr. Zuberi acquiesced in its removal and began accepting the list of 8-12-1951 without any further order by him or any other authority. The list of 8-12-1951, had been rejected by everybody concerned. It had been rejected even by the Revenue Minister in 1954, (he was the successor of the Revenue Minister who passed the order of 8-12-1951), for he had himself first suggested an alternative criterion and then accepted the criterion of Mr. Dent. Under the circumstances I do not see how "seen file" is relatable to the acceptance of the list of 8-12-1951. At the same time both Mr. Dent and Mr. Zuberi were fully conscious that the Minister had not the right to fix seniority which was the function of the Revenue and Divisional Commissioner. That the Government had taken a final decision with respect to the criterion for seniority appears also from an answer given by the Government in the Legislative Assembly to a question as to the seniority of these Sub-Inspectors. According to this answer the Government had decided that the question of senio rity would be determined in accordance with the results of the departmental examination. It was not simply the expression of an intention to do so, it was a decision. My Lord the Chief Justice has suggested that the Government had changed its opinion. When Governments change their decision there must be some record. The matter must have been put up before the Government and a decision must have been arrived at. Why has that record not been produced? On the other hand the fact that in the written statement of the Government reliance is placed only on the order passed on 8-12-1951, shows that there is no later order. Reliance has been placed by the appellant on two letters written by the Government in which it was stated that the Government having already taken a decision was not prepared to change it and it is urged that as the Government has taken up the position that the seniority fixed on 8-12-1951, is the correct seniority respondent No. 3 had no right to move the High Court. I have already reproduced one of these letters. The noting on the relevant file makes it clear that this letter only meant to confirm the newly prepared list and is a document of importance in favour of respondent No. 3 and not against him. At the same time I do see what effect these letters can have. The plea of the Government is only that the order of 8-12-1951, is binding. There is no plea that there is a later order. A letter is not by itself an order of the Government. It only refers to some order. If the plea be that the Government again considered the matter when giving a reply let the Government decision be produced. Every Government order has ultimately to be in writing, though it may at some stage be oral. The only legal method of proving an order is either by the produc tion of the original or its secondary evidence. The only secondary evidence admissible of a Government order is a certified copy of the order. Section 65 of the Evidence Act excludes all other methods of proof. An order of the Government cannot be proved by a letter which makes a reference to and order already having been passed. But truly speaking we are not concerned with any order of the Government. The only authority that is to determine seniority is the Revenue and Divisional Commissioner. It appears to me that the whole trouble in this case is due to the fact that the list which was prepared disappeared from the record. It is not for us to go into the question as to who is responsible for its disappearance from the file and the printing press. Had that list remained in the office it would have been the list which determined the seniority of these Sub-Inspectors. It was a list prepared in accordance with the decision of the Revenue and Divisional Commissioner, the Officer on Special Duty who later became the Revenue and Divisional Commis sioner and the Revenue Minister. It was a list which was in accordance with the answer given by the Government in the Legis lative Assembly. It would be strange if merely on account of the removal of such a list effect could be given to another list rejected by everybody concerned. Rights of persons cannot be allowed to be affected by the disappearance of documents from files. The proper course under the circumstances was that the document should have been reconstructed and its copy placed on the file. All this trouble would in that case have been avoided. However, if that has not been done it does not mean that we should allow the case of the respondent to be influenced thereby. I am at the same time not affected by the consideration that for some time action was being taken and promotions were being made In accordance with the list of 8-12-1951. In the first place there is no justice in acting upon a list which admittedly was not prepared in accordance with merit. There was no harm in accepting it tentatively, but it would be wholly unjust to accept it as a final list just because it had been accepted tenta tively though without regard to merit. Secondly, seniority is a right relating to status, it cannot be allowed to be affected by the consideration that an appointment was made in disregard of it. Respondent No. 3 never accepted the seniority of those who should, according to his contention, have been placed junior to him. Respondent has a right that the question of seniority be determined in accordance with the rules and High Court was justified in granting a writ that the matter be so determined. I would dismiss this appeal with costs. ORDER OF THE COURT In accordance with the view of the majority, we dismiss this appeal, but make no order as to costs. A.H. Appeal dismissed.