1988 PLP 965 (SCMR)

SAAD SAOOD JAN, J.‑‑This is an appeal by special leave from the judgment dated 31‑1‑1975 of a Division Bench of the Lahore High Court which accepted the Letters Patent Appeal preferred by the respondent, set aside the judgments of the Chief Justice, District Judge and the Senior Civil Judge, Bahawalpur and granted a declaration to him to the effect that he was still in the service of the Provincial Government and that he was entitled to pay as admissible to him under the rules.

2. The respondent joined service on 9‑10‑1949 in the former State of Bahawalpur in the grade of junior clerk and was posted as stenographer to Chief Medical Officer. During the course of his service in the State he held different appointments. On 14‑10‑1955 when the State was emerged in the new Province of West Pakistan he was working as stenographer in the department of Rural Development. In the new Province, he was absorbed as Assistant in the Office of the Commissioner, Bahawalpur. Later, the Commissioner promoted him as officiating Head Assistant and posted him in the establishment branch of his office. On 7‑11‑1959, he was transferred to the general branch of the same office. Apparently, he resented this transfer and sought an interview with the Commissioner. It was denied to him. On 16‑11‑1959, he tendered his resignation to the Commissioner. By an order, dated 19‑11‑1959, the Commissioner accepted his resignation. On the next day, that is, 20‑11‑1959, he made an application for the withdrawal of his resignation. His application was rejected. He filed a representation before the Board of Revenue against the acceptance of his resignation but without any success. He then filed a civil suit to seek a declaration to the effect, inter alia, that the order of the Commissioner in accepting his resignation was illegal. His case was that he had been appointed to the State service by the Chief Secretary to the Government of Bahawalpur who held an office superior to that of the Commissioner and for that reason the Commissioner was not competent to entertain his resignation. The trial Court dismissed his suit and his first appeal before the District Judge and second appeal in the High Court remained unsuccessful. He then preferred a Letters Patent Appeal.

3. While the Letters Patent Appeal was pending, the Punjab Administrative Tribunals Ordinance (Ordinance V of 1974) came into force. Section 8 of the Ordinance provided for the abatement of pending appeals preferred by civil servants under certain circumstances. On behalf of the Government, an objection was taken that the appeal of the respondent was 'nit by the Ordinance. This objection was over‑ruled by the Letters Patent Bench. The learned Bench then found that the Commissioner was not competent to entertain or accept the resignation of the respondent; accordingly, it accepted the appeal and decreed his suit.

4. In support of this appeal, the objection with regard to the abatement of the Letters Patent Appeal has been reiterated. Section 8 of the Punjab Administrative Tribunals Ordinance reads as follows:‑ "All suits, appeals, or applications regarding any matter within the jurisdiction of a Tribunal pending in any Court immediately before the commencement of the law as may be enacted by the Parliament extending provisions of clause (2) of Article 212 of the Constitution of the Islamic Republic of Pakistan to the Tribunals established under this Ordinance shall abate on the commencement of such law; Provided that any civil servant who is a party to such a suit, appeal or application may, within ninety days of the commencement of such law prefer an appeal to the appropriate Tribunal in respect of any such matter which is in issue in such suit, appeal or application.

5. The contention on behalf of the Government is that the law envisaged by this section was enacted by the Parliament as Act NO.XXXII of 1974 which came into force on 2‑5‑1974. Consequently, by operation of Section 8, ibid, the Letters Patent Appeal of the respondent stood abated.

6. It is difficult to accept the contention raised on behalf of the Government. A perusal of Section 8 would show that abatement was to take place if two conditions were satisfied, namely; (i) the matter in appeal was within the jurisdiction of an Administrative Tribunal, and, (ii) a law had been enacted by the Parliament extending the provisions of Article 212 of the Constitution to the Tribunal. No doubt, condition No. (ii) was fulfilled with the passage of Act No. XXXII of 1974 by the Parliament but condition No. (i) remained unsatisfied throughout the period the Ordinance remained in force, for, admittedly no Tribunal was constituted under the Ordinance. A reading of Section 8 of the Ordinance as a whole will show that whereas the main clause made provision for the abatement of pending suits, appeals and applications, the proviso thereto indicated the forum where the affected civil servant could seek redress for his grievance. Thus, it was not intended to leave a civil servant without a remedy. The direction with regard to abatement and the provision in respect of the alternate remedy have to be read together. That being so, the abatement was to take place only after a Tribunal competent to entertain the appeals of the affected civil servants had been set up. Since no Tribunal was constituted till the Ordinance was repealed and replaced by the Punjab Service Tribunals Act, the appeal of the respondent did not abate.

7. It was then argued on behalf of the appellant that the respondent had not been appointed by the Chief Secretary to the State Government of Bahawalpur. Reliance in support of this contention was placed upon the Bahawalpur State Ruler's, Rules of Business. It is to be noticed that in its written statement the appellant had admitted that the respondent had been appointed to service by the Chief Secretary of the State Government. It is now not open to it to take up a plea which is opposed to its own pleadings.

8. The main question for consideration in this appeal is whether the High Court was right in holding that after the merger of the Sahawalpur State in the Province of West Pakistan the Commissioner of Bahawalpur Division was not competent to accept the resignation a of the respondent and that it could only be accepted by the Chief Secretary to the new Government. In this context, it is to be noticed that after the Province of West Pakistan was created the office if the Chief Secretary to the State Government ceased to exist. Despite several opportunities given to him, learned counsel for the appellant was unable to produce any notification or order showing the officer who was to be treated as equivalent to the Chief Secretary of the State Government. Perhaps his inability to do so was due to the fact that the various functions performed by the former Chief Secretary were transferred to different authorities. However that may be, the learned Chief Justice who dismissed the second appeal of the respondent noticed that in Schedule 11 to the West Pakistan (Adaptation and Repeal of Laws) Ordinance No.XXIV of 1956, it had been provided that references to the Chief Minister of the old State of Bahawalpur in the various statutes and instruments were to be taken, after the establishment of West Pakistan, as references to the Commissioner. He thought that as the Chief Minister occupied a position higher than that of the Chief Secretary, the Commissioner could exercise the powers which were formerly vested in the latter in the State administration. The learned Chief Justice also noticed 'that the respondent had been absorbed in the establishment of the Commissioner and it was the Commissioner who had promoted him as Head Assistant. In the circumstances he took the view that in the new Province the Commissioner was to be treated as the appointing authority of the respondent and for that reason he was competent to accept his resignation.

9. In the Letters Patent Appeal, the Division Bench took a contrary view. It observed that there was no evidence which indicated that the Chief Minister of the old Bahawalpur State could in any way interfere in the administration of the Government Services or that he was higher in rank than the Chief Secretary so far as appointments, imposition of penalties or acceptance of resignation was concerned. It also noticed that in Schedule 11 to the West Pakistan (Adaptation and Repeal of Laws) Act, 1957, which had replaced the Ordinance No.XXIV of 1956, references to the old Government of Bahawalpur were, after the merger of the State, to be taken as references to the Government of West Pakistan; consequently, the powers which were exercised by the Chief Secretary to the old Bahawalpur Government could now only be exercised by the Chief Secretary to the Government of West Pakistan; thus, the Commissioner of Bahawalpur Division was not competent either to entertain or to accept the resignation of the respondent. It also rejected the view of the learned Chief Justice that as the respondent had been absorbed in the establishment of the Commissioner and had been promoted as Head Assistant by the Commissioner, the Commissioner was to be treated as his appointing authority for the purpose of accepting his resignation.

10. As already pointed out, there is no notification or order of the West Pakistan Government specifically naming the authority or person who was to be treated as equivalent to the Chief Secretary of the State Government in the new administration which came into existence after the State ceased to exist as an independent unit. In an attempt to find out the equivalent office, the learned Chief Justice as well as the Division Bench sought the assistance of Schedule II to the West Pakistan (Adaptation and Repeal of Laws) Ordinance/Act but then the said Schedule did not mention the office of the Chief Secretary at all. However, by process of inferential reasoning they came to conclusions which were at variance with each other. Perhaps their attention was not drawn to Section 3(4) of the same Act which specifically dealt with the controversy before them. The relevant portion of the subsection runs as follows:‑ "(4) As from the appointed day, unless there be a direction to the contrary in this Act, all references in any existing law or in any instrument * * * * * * * * * * * (ii) to any Board, Committee, authority, functionary, officer or office, howsoever worded, or to any tribunal other than the High Court, which Board, Committee, authority, functionary, officer, office or tribunal has ceased to function or exist and has been replaced by another as a result of the establishment of the Province of West Pakistan, shall be deemed to be references to the Board, Committee, authority, functionary, officer, office or tribunal, howsoever named or designated, constituted appointed or created to exercise all or any of the functions and duties of the ‑fore‑mentioned Board, Committee, authority, functionary, officer, office or tribunal, for the whole or a part of the territories in relation to which the said Board, Committee, authority, functionary, officer, office or tribunal had been constituted, appointed or created." Now, on the creation of the Province of West Pakistan, the administration structure in the new Province was re‑organized and the decisions taken in this regard by the Government of West Pakistan are to be found in letter No.21/55/Integration, issued on 16‑10‑1955 by the Chief Secretary to the said Government. Paragraphs 3, 4 and 5 of this letter need to be noticed. After laying down the principles and policies underlying the new set‑up in paragraph 3, paragraph 4 stated that many of the powers earlier exercised by the Provincial Government would henceforth be exercised by the Commissioners, Deputy Commissioners and Heads of attached Departments. Paragraph 5 specified the functions and duties of the Commissioners. Clauses (i) and (viii) of paragraph 5 are relevant. They read as follows:‑ (i) The Commissioner is the pivot of the Administration. He shall be in charge of administration in general within his Division and shall ensure that the policies of the Provincial Government are properly implemented. (viii) He shall have full powers in respect of the appointment, posting, transfer and discipline of all members of the Commissioner's, Deputy Commissioner's and other Revenue establishments in his Division * .* * * * *, * *, * *" Admittedly, after the merger of the State in the Province of West Pakistan, the respondent was absorbed in the office of Commissioner, Bahawalpur Division. On one occasion, the Commissioner had terminated his services for unauthorised absence but later re instated him on compassionate grounds. At the time of tendering his resignation, he was holding the post of officiating Head Assistant. It was the Commissioner who had promoted him to this post. However that may be, reading section 3(4), ibid, and the letter of 16‑10‑1955 together, there can be little doubt that after the State Administration, including the office of Chief Secretary, ceased to exist, the respondent became a member of the Commissioner's establishment and for all purposes fell under his administrative control. It is, therefore, difficult to sustain the view of the Division Bench that the Commissioner was not competent to entertain or accept his resignation.

11. For the reasons stated above, we accept this appeal, set aside the judgment and decree of the Division Bench in the Letters Patent Appeal and restore the judgment and decree of the trial Court. There will be no order as to costs. M.I. /P‑37/S Appeal accepted.