P L D 1964 (W (PLP)

J. ORTCHESON, J.

This is a petition under Article 170 of the 1956 Constitution by Mr. (now Mr. Justice) Faizullah Khan against the Government of Pakistan through the Establishment Secretary, Cabinet Secretariat, Karachi (now Rawalpindi) as respondent No. 1, and the Government of West Pakistan through the Chief Secretary, Civil Secretariat, Lahore, as respondent 10. 2, the relief claimed in the last paragraph of the petition being as under :‑ "In view of the foregoing submissions, tire petitioner respectfully prays that a writ of mandamus or any other appropriate writ, direction or order may be issued directing the respondent to afford and restore to the petitioner full benefits of the terms and conditions of service applicable to him at the time of his appointment including in the matter of salary, the senior time‑scale of old I. C. S. viz. Rs. 1,275‑75‑1,500/100‑2,000/ 50‑2,250 and special pay and payment to him of the arrears due to him on account of short payments made to him due to illegal reduction. It is further prayed that the Court may be pleased to grant to the petitioner any other remedy or relief to which he may be entitled, including the costs of this petition."

2. The facts as stated by the petitioner are that he was appointed to the Judicial Branch of the Provincial Civil Service of the former North‑West Frontier Province (hereinafter referred to as the P. C. S.) on the 4th of October 1938, being substan tively confirmed on the 15th of September 1942. He was appointed Additional District and Sessions Judge, Mardan, on the 5th of June 1950 and held that post until the 1st of October 1950, when he reverted to his substantive post of Registrar of the former Judicial Commissioner's Court. On the 27th of August 1952, he was appointed Senior Sub‑Judge, Peshawar, and held that office till the 14th of January 1954, when he became District and Sessions Judge, Hazara. He served in that capacity until June 1957 and was then transferred to Peshawar as Additional District and Sessions Judge, which post he was holding at the time of filing the petition.

3. The petitioner further states that at the time of his entry into the Provincial Civil Service, there were six posts known as "'Reserved Posts" carrying the senior time‑scale pay of the Indian Civil Service (hereinafter referred to as I. C. S.). Two of these were what is known as "listed posts", one being reserved for officers belonging to the Judicial Branch of the P. C. S. and the other for the Bar. It is stated in paragraph 2 of the petition that subsequently the quota of P. C. S. Officers for listed posts was increased to "at least two‑thirds of the total strength", but at the time of arguments learned counsel conceded that this is erroneous, the real position being that two‑thirds of the strength was the maximum and not the minimum quota.

4. According to the petitioner, he joined the P. C. S. in the expectation that in the normal course of his service the above posts and the higher salaries attaching thereto would be available to him. By Government of Pakistan Finance Department Memo. No. 3885‑EC 11148, dated the 12th of July 1948, however, a new rule was introduced which runs :‑ "In case of promotions made after the 18th July 1947, the pay on promotion will be limited to pay of the original post plus 30% of [lie pay of tire new post whichever is less. The pay of the original post will for the purpose of this rule mean the substantive pay of the officer on the 18th July 1947, of his officiating pay on that date if the officer had been officiating for not less than one year, or if the Finance Ministry are satisfied that the officer, though having officiated for less than one year on the 18th July 1947 was likely to have officiated for a total period of not less than a year even if partition had not taken place. For the purpose of this rule `promotion' means the transfer from any post to any other post carrying higher pay as defined in Fundamental Rule 9 (21)." Further, by notification No. F‑2(1) PC/51, dated the 4th of May 1951, the Governor‑General promulgated the rules known as the Central Gazetted Civil Service (Revision of Pay) Rules, 1951, living the senior scale of pay of the former Indian Civil Service at Rs. 700‑1,300. ,According to the petitioner the above rules were made applicable with retrospective effect to listed post‑holders, including himself, his salary being reduced accordingly. 5. 'File petitioner challenges the order of respondent No. 1 applying the above rule to him on the following grounds :‑ (i) That it violates the protective guarantees contained in Article 182 of the 1956 Constitution ‑and section 241 of the Government of India Act, 1935, by altering to his prejudice the terms and conditions of service applicable to him and his prospects of promotion. (ii) That it is contrary to the principles of natural justice. (iii) That the Revision of Pay Rules could not be made applicable to the petitioner, the powers of the Governor-- General under section 241 (2) of the Government of India Act, 1935, being confined to framing rules for person appointed in connection with the affairs of the Federation while the petitioner way serving in connection with the affairs of the Province. (iv) That as the respondents have conceded that those District and Sessions Judges recruited from the Bar are not to be affected by any rule made subsequent to their appointment and adversely affecting their interest, including their right to the salaries for the higher posts which obtained at the time of their initial appointment, the petitioner and other officers of his cadre should in fairness be allowed the same protection.

6. Both the respondents filed written statements. The position adopted by respondent No. 1 is as follows. It is admitted that a specified quota of the superior judicial posts in the former N.‑W. F. P. was reserved for officers of the P. C. S. (Judicial Branch), the said quota being increased in 1954 to one‑third of the superior judicial posts, vide rule 7 (2) of the C. S. P. (Composition and Cadre) Rules, 1954, and that listed post‑holders were entitled to the old I. C. S. scale of pay with a starting salary of Rs. 1,275 per mensem. The Central (Gazetted) Civil Services (Revision of Pay) Rules, 1951, were not made applicable to listed post‑holders, whose pay is regulated by the orders contained in Government of Pakistan Establishment Division Letter No. 25/35/50‑SEI, dated the 23rd of July 1953 according to which the senior scale of the C. S. P. as fixed in 1951 is applicable to those listed post‑holders who are not protected in the I. C. S. scale of pay and those who are officiat ing as listed post‑holders. It is contended that the reduction in the scale of pay of officiating listed post‑holders is neither illegal nor ultra vires. It is further pleaded that Article 182 of the 1956 Constitution cannot be given retrospective operation to the year 1948, and that section 241 of the Government of India Act, 1935, is only an enabling provision empowering either the Governor‑General or the Governor of a Province to frame rules prescribing the conditions of service of persons employed in connection with the affairs of the Federation or of a Province as the case may be. Reliance is placed on subsection (5) of the above section, which lays down that no rules made under section 241 and no Act of any Legislature shall be construed to limit or abridge the power of the Governor‑General or a Governor to deal with tile case of any person serving His Majesty in a civil capacity in such manner as may appear to him to he just and equitable. According to this respondent the I. C. S. ceased to exist from the 14th of August 1947, there being thence forth no posts in Pakistan on the cadre of that Service, the orders contained in the Government of India notification of 1924, relied upon by the petitioner, consequently ceasing to be operative. The competent authority in Pakistan did not extend those orders to listed post‑holders belonging to the P. C. S. but regulated their pay in accordance with the orders contained in the memorandum of the 12th of July 1948 referred to in paragraph 4 above. Reliance is placed in this connection on section 10 (2) of the Indian Independence Act, 1947, which expressly reserved powers to the Government of Pakistan to reduce the pay of persons other than those of non‑Asiatic domicile. It is also contended that the pay of the petitioner was fixed in accordance with the letter of the 23rd of July 1953 already referred to. With respect to the argu ment of the petitioner that P. C. S. officers should have been granted the same protection as members of the Bar, the respondent observes that whatever might have been the formula for the fixation of pay of District and Sessions Judge recruited from the Bar, Government was not legally bound to extend that formula to P. C. S. officers officiating in listed posts. Finally, it is stated :‑‑ "The petitioner's claim is in essence with regard to his pay and it is well‑established principle that a civil servant's claim for his pay is against the bounty of the State and he has no legal right to it."

7. The gist of respondent No. 2's , very brief written state ment is that the post of Additional District and Sessions Judge, Mardan, held by the petitioner from the 5th of June 1950 to the 1st of October 1950 was a temporary one not included in the listed posts of the former N.‑W. F. P., the first listed post held by him being that of Senior Sub‑Judge, Peshawar. It is also pointed out that the petitioner was at the time of filing the petition still only officiating in a listed post of District and Sessions Judge.

8. Before dealing with the question of "listed posts" it wills be convenient to consider the position of the officers of the former I. C. S. Prior to Partition the senior scale of pay of that Service commenced at Rs. 1,275 and rose to Rs. 2,

250. Officers serving immediately before the 15th of August 1947 (referred to in the Indian Independence Act, 1947, as "the appointed day") were, by the said Act, given a firm constitu tional guarantee in respect of their terms of service, including remuneration. The relevant portion of section 10 (2) of the Act runs:‑ "(2) Every person who‑

(a) having been appointed by the Secretary of State, or Secretary of State‑in‑Council, to a civil service of the Crown in India continues oh and after the appointed day to serve under the Government of either of the new Dominions or of any Province or part thereof; (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . shall be entitled to receive from the Government of the Dominions and Provinces or parts which he is from time to tune serving . . . . . . the same conditions of service as, respects remuneration, leave and pension, and the same rights as respects disciplinary matters or, as the case may be, as respects the tenure of his office or rights as similar thereto as changed circumstances may permit, as that person was entitled to immediately before the appointed day. The members of the former Secretary of State's Services were not, however, destined long to enjoy the above protection. On the 22nd of May 1948, the Constituent Assembly passed the Indian Independence (Second Amendment) Act which introduced the following proviso to subsection (2) of section 10 of tile Act:

"Provided that the Government of the Dominion of Pakistan may in the case of any such person or class of persons other than persons of non‑Asiatic Domicile, for special reasons impose such reduction in the remuneration as may be deemed necessary."

9. The above amendment paved the way for the Govern ment of Pakistan Finance Department Memo. No. 3885 EC 11/48, dated the 12th of July 1948, referred to in paragraph 4 above, which limited the pay on promotion to the pay of the original post plus 30% of the pay of the new post, whichever was less in view of the accelerated promotion which some officers undoubtedly enjoyed as a result of Partition, the reduction made by the memo may perhaps be described as not unreasonable. A much more drastic use of the new proviso section 10(2) of the Independence Act was, however, made in the year 1951, when the Central (Gazetted) Civil Services (Revision of Pay) Rules were promulgated thereunder. The rules in question reduced the senior time‑scale of the I. C. S. from Rs. 1,275‑2,250 to Rs. 700‑1,

300. Whatever may be said regarding the merits of such a measure, its legality is undoubtedly not open to challenge, and pre‑Independence officers of Asiatic domicile became subject to the new scale of pay.

10. The origin of the so‑called "listed posts", so far a relates to the former North‑West Frothier Province, in which the petitioner served until Integration, is as follows. Both the 1915 and the 1919 Government of India Acts contained a Third Schedule headed ; Offices Reserved to the Indian Civil Service". Part `A' of the said Schedule related to Secretariat Offices and Part `B' to offices in the Provinces which were known in the year 1861 as "Regulation Provinces". Items 8 and 9 of that part relate to the post of District or Sessions Judge and Additional District or Sessions Judge respectively. In the first instance, therefore, such posts could only be occupied by officers of the I. C. S. Subsection (2) of section 96‑B of the 1915 Act, however, conferred on the Secretary of State‑in‑Council the power to make rules for regulating the classification of the Civil Services in India, the methods of their recruitment, their conditions of service, pay and allowance, arid their discipline and conduct. On the 21st of August 1924, the Government of India in tire Home Department issued notification No. F. 754/22‑Ests., which published for general information a resolution dated the 15th of July 1924 made by the Secretary of State for India in Council under the above rule‑making power. The said resolution related to the pay of officers promoted from the Provincial Civil Service to hold Indian Civil Service Posts (it appears that in consequence of the stoppage of recruitment during the First World War, there was at that time a shortage of I. C. S. officers) and fixed their initial pay in the superior time‑scale of pay for the I. C. S. at the lowest stage which exceeded by not less than Rs. 300 a month the substantive pay last drawn by them in the regular line of the Provincial Civil Service, or at the stage of the superior scale for the tenth year of service in the I. C. S. (Rs. 1,275), whichever was greater, subject to the proviso that in no case should an officer of the Provincial Civil Service be granted a higher rate of pay on the I. C. S. time scale of pay than that admissible under the superior time‑scale to a member of the I. C. S. with the same length of service. This proviso is by no means unimportant for the decision of this case.

11. The petitioner has filed a copy of another Government of India Home Department Notification, No. 63/5/38, dated the 20th of October 1939, setting out rules entitled "The Reserved Posts (North‑West Frontier Province) Rules, 1939." Rule 2 provided that the posts in the North‑West Frontier Province specified in the Schedule to the Rules and referred to as "reserved posts" were to be filled by three categories of officers, namely, members of the I. C. S., persons holding civil posts tinder the Crown in India who were, when they were first appointed to such posts, officers in His Majesty's forces and persons who, when first appointed to a reserved post, were in the Civil Service of the Crown in India and had been appointed thereto by the Secretary of State‑in‑Council or the Secretary of State. Rule 3 runs :‑ The Governor, with the previous approval of the Secretary of State, may by notification in the official Gazette declare that such number of reserved posts as may be specified in the notification may be filled by persons other than those specified in the preceding rule, and posts in respect of which such a declaration has been made are hereinafter referred to as `listed post'." Rule 4 specified the categories of persons who could be appointed to listed posts. In the case of judicial posts those persons were (1) members of the Provincial Judicial Service of the Province, (2) Barristers, Vakils, Pleaders, Advocates or Attorneys of a High Court in India, and (3) Pleaders of a District Court of not less than five years' standing. The petitioner has unfor tunately omitted to file a copy of the Schedule to the above Rules, but he has filed a copy of another notification issued from the Civil Secretariat of the North‑West Frontier Province, No. 683- APN, dated the 6th of July 1940, which declared two of the judicial posts included in the Reserved Posts (North‑West Frontier Province) Rules, 1939, to be listed posts. It may incidentally be mentioned that the Civil Service of Pakistan (Composition and Cadre) Rules, issued by the Cabinet Secretariat, Government of Pakistan on the 21st of June 1954, shows the number of judicial reserved posts in the North‑West Frontier Province to be six, made tip of three District and Sessions Judges, two Additional District and Sessions Judges, and the Senior Sub‑Judge, Peshawar.

12. In the year 1953, the pay of officers of the Provincial Civil Service appointed to hold superior posts on the cadre of the Civil Service of Pakistan (which had replaced to old. I. C. S.) was re-fixed by Government of Pakistan Cabinet Secretariat (Establishment Division) Letter No. 25/35/50‑SF. 1, dated the 23rd of July, the relevant portion of which runs:‑ "His initial pay shall, on each occasion of his promotion to officiate on the senior scale of the Civil Service of Pakistan, be fixed at the lowest stage which exceeds by not less than Rs. 200 a month the substantive pay last drawn by him in the regular line of the Provincial Civil Service or at the stage of Rs. 900 whichever is greater, provided that in no case shall such an officer be granted a higher pay in the senior scale of the Civil Service of Pakistan than that admissible in that scale to a member of the C. S. P. with the same length of service." The proviso is again to be noted.

13. As already stated, the case of the petitioner is that he began to officiate in a listed post on the 5th of June 1950 as Additional District and Sessions Judge, Mardan, which post he held till the 1st of October 1950, when he reverted to his substan tive post of Registrar of the former Judicial Commissioner's Court in the time‑scale of the P. C. S. We asked learned counsel for the petitioner to ascertain where the two permanent pots of Additional District and Sessions Judge borne on the cadre of the C. S. P. were situated, and he informed us that they were at Peshawar and Hazara (Abbottabad). Prima frcie, therefore, the petitioner, while officiating as Additional District and Sessions Judge, Mardan, was not holding a listed post, and it was not contended before its that lie was one of the two most senior members of the P. C. S. holding the post of Additional District and Sessions Judge (assuming that one of the two points was not held by the Bar). In my opinion, therefore, the petitioner has failed to establish that he was holding a listed post during the above period, his first officiation in a listed post being as Senior Sub‑Judge, Peshawar. If this is correct, he cannot claim any protection on the ground of holding a listed post before the introduction of the Revision of Pay Rules, 1951, which, as already pointed out, substituted a new scale for the senior scale of pay of the old .I. C. S.

14. Even if, however, it be considered that the petitioner's appointment as Additional District and Sessions Judge, Mardan, was an appointment to a listed post, he cannot, in my opinion, be said to have enjoyed any such protection. Learned counsel for the petitioner relied on the statement of the learned Attorney -General that the Revision of Pay Rules, 1951, did not apply to officers of the P. C. S. in support of the contention that the petitioner was still governed by the 1924 Rules applicable to the holders of listed posts unless and until these Rules were altered by the Governor of the Province. In this connection he cited section 240, section 246 (deleted by Governor‑General's Order No. 22 of 1947), and section 254 of the Government of India Act, 1935, Article 180 of the 1956 Constitution, and Articles 176 and 178 of the present Constitution.

15. Subsection (2) of section 240 of the Government of India Act provides that no person who is a member of a Civil Service of the Crown in Pakistan and who, having been appointed by the Secretary of State or the Secretary of State‑in‑Council, continues after the establishment of the Federation to serve under the Crown in Pakistan shall be dismissed from the service of His Majesty by any authority subordinate to the Governor-General or the Governor according as that person is serving in connection with the affairs of the Federation or a Province. As however, the petitioner was not appointed by the Secretary o State or the Secretary of State‑in‑Council, this provision has not application. Section 246 of the same Act also applied only to persons appointed by the Secretary of State and is, therefore, likewise inapplicable, even apart from the fact that it was omitted at the time of Partition.

16. The remaining constitutional provisions cited by learned counsel no doubt provided that the relevant authority in the case of persons serving in connection with the affairs of a Province was the Governor and not the Governor‑General, but this does not mean that the 1924 Rules fixing the pay of P. C. S. officers appointed to the senior scale of the I. C. S. remained in force until amended by order of the Governor. A complete answer to this contention is to be found in the provisions of the Indian Independence Act, 1947. Subsection (3) of section 18 of that Act runs. : -- "Save as otherwise expressly provided in this Act, the law of British India and of the several parts thereof existing immedi ately before the appointed day shall, so far as applicable and with the necessary adaptations, continue as the law of each of the new Dominions and the several parts thereof until other provision is made by ‑laws of the Legislature of the Dominion in question or by any other Legislature or other authority having power in that behalf." Section 10‑A of the Act, inserted by the Constitution (Second Amendment) Act, 1951, is to the following effect :‑ "For the removal of doubts it is hereby declared that subject to the other provisions of this Act and of the Government of India Act, 1935, the power to alter any order, rule, regula tion or other instrument passed or made by the Secretary of State or the Secretary of State‑in‑Council and existing immediately before the 15th day of August 1947, and con tinuing on and after that day as part of the law of Pakistan in virtue of section 18 of this Act is vested in the Governor-General and may be exercised by him by order." If the 1924 Rules framed by the Secretary of State continued as part of the law of Pakistan under section 18(3) (or, as contended by learned counsel for the petitioner, under section 8(2) ) of the Act, they fall within the ambit of section 10‑A and could only have been amended by the Governor‑General. Learned counsel for the petitioner relied upon the words "subject to the other provisions of this Act and of the Government of India Act, 1935," occurring in section 10‑A, but was not able to specify any provision either of the Indian Independence Act or of the Government of India Act, 1935, which could have the effect of taking the 1924 Rules out of the operation of section 10‑A. In my opinion, therefore, the Governor had no power to amend the, Rules under consideration.

17. There is also another aspect of the matter. I have already pointed out that the 1924 Rules contain a proviso to the effect that in no case shall an officer of the Provincial Civil Service be granted a higher rate of pay on the I. C. S. time‑scale of pay than that admissible under the superior time‑scale to a member of the I. C. S. with the same length of service. If, therefore, the senior scale of pay of the former I. C. S. was legally reduced by the 1951 Revision of Pay Rules, the proviso above cited debars the petitioner from drawing a higher salary than would have been admissible to a member of the I. C. S.

18. Two other points require consideration. The first concerns the contention of the petitioner that he joined service "in the faith that the prospects of securing the superior posts and higher salaries attaching to them would be fully available to him in the normal routine of his service". Whatever may have been the view of the law in 1958, the year in which the petition was filed, this argument no longer holds good in face of the decision of the Supreme Court in Government of West Pakistan v. Fida Muhammad Khan (P L D 1960 S C 45), in which the learned Judges observed :‑ "By the use of the words `admissible to him immediately before' the prescribed date, the Legislature made it clear that the terms and conditions (of service) to which they were referring were to be understood in a restricted sense, and therefore in evaluating the expression in relation to a particular person, it would be clearly impossible to include such far fetched matters as his prospective promotion into a higher service upon the assumption that he might attain a status in his present service and earn the degree of approbation necessary for such promotion."

19. The second point concerns another of the relief sough by the petitioner, namely, the payment of the arrears alleged to be due "on account of short payments made to him due to illegal reduction." The learned Attorney‑General has rightly pointed out that no writ can issue directing Government to pay arrears of salary.

20. For the above reasons, I am of the opinion that the petitioner has failed to establish his right to the reliefs claimed, and would dismiss the petition, but with no order as to costs. MUHAMMAD YAQUB ALI, J.‑I agree. K. B, A. Petitions dismissed.