P L D 1957 (W (PLP)

A. R. CHANGEZ, J.‑

The petitioner, Zia‑ud‑Din Ahmad, was recruited as a Foreman (Rifles) in the Pakistan Ordnance Factories, in the year 1949, on a contractual basis for a period of five years only, vide conditions of service attached as Appendix I to the petition. In the year 1950, he was selected for higher training in U. K. and he signed a bond, a copy of which is Appendix II, by which he bound himself to serve the Ordnance Department for five years after his return to Pakistan from U. K. On return from his training abroad, the petitioner reported for duty on the forenoon of the lit of November 1951, and was posted as Section Officer, Rifles Section, in the Pakistan Ordnance Factory at Wah. In terms of the bond, his services were due to expire on the lit of November 1956, and he accordingly wrote a letter on the 22nd of August 1956, informing the respondents that his service shall terminate with effect from the lit November 1956, vide‑ copy of this letter attached to the petition as Appendix No. III. In reply to this letter, the Government informed the petitioner that he could not leave the service of Pakistan Ordnance as he was governed by the Pakistan Essential Services (Maintenance) Act, 1952. By this writ petition under Article 170 of the Constitution of Islamic Republic of Pakistan, the petitioner has challenged the order of the Government and has urged that the Pakistan Essential Services (Maintenance) Act, 1952, was ultra vires and was not applicable to the petitioner. He has accordingly prayed for the issue of an appropriate writ or direction to the respondents that they should not retain the petitioner in their service against his wishes after the 1st of November 1956. The respondents have controverted the allegations of the petitioner and have alleged that in the year 1952 the petitioner was offered new terms and conditions of service contained in an annexure to the Ministry of Defence Letter No. 4119/1279/OFI/B(E), dated the 4th of July 1952 (copy Appendix R‑1), and he had accepted the new terms and conditions of service and signed the declaration on the 10th of November 1952. vide copy Appendix R‑

2. It was further pleaded that instead of being governed by his original terms of service, he became a permanent officer governed by the new conditions of service and was confirmed with retrospective effect from the date of his appointment, ‑i.e., 1st of August 1949, vide Daily Order No. 678 Part II, dated the 7th of April 1956, (copy Appendix R‑3), and as such his services were not to be terminated on the 1st of November 1956, and he could not leave the service, unless his resignation was accepted by the Central Government. It was also pleaded that the Pakistan Essential Services (Maintenance) Act, LIII of 1952 is still in force and is applicable to the petitioner, and he cannot abandon his employment. The learned counsel for the petitioner has argued that, although the petitioner did sign the declaration mentioned above, it was only in respect of the change of certain terms and conditions of service which he had originally accepted. The document, Appendix R‑1 however, deals with the terms and conditions of service of Pakistanis (outside recruits) for service in Gazetted and non‑Gazetted services of grades of Charge-men and above. According to rule 1 (b), these terms and conditions of service were applicable to those already recruited who agreed to be brought on the new terms and, conditions of service. The appointments were to be on one year's probation and on satisfactory completion, of probation, the officer was to be retained in his appointment and after completion of three years continuous service in the Gazetted/ non‑Gazetted cadre, he was to become eligible for substantive appointment against a permanent post. On the 15th of September 1956, the petitioner was confirmed against the permanent post of Section Officer with effect from the 1st of August 1952, and on the 7th of April 1956, the date of, his confirmation was changed to the 1st of August 1949. It appears that the petitioner never protested when he was first confirmed against the permanent post on the .15th of September 1955, It is no doubt true that in reply to a letter of the petitioner, dated the 20th of June 1953, the Superintendent, Ferrous Department, had written to him that he could not resign earlier in view of his undertaking according to which he was required to serve till the 1st of November 1956. On the basis of this reply, the learned counsel for the petitioner has contended before us that the department recognised that his services were to be terminated on the 1st of November 1956, but this letter, in our opinion, was not issued by the proper authority, and, in any case, the position appears to have been misconceived by . the officer who sent this reply. In view of .the new terms and conditions of service which were accepted by the petitioner and in view of the fact that he was confirmed against a permanent post on the 15th of September 1955, with effect from the 1st of August 1949, we have no doubt A in our minds that the petitioner was a permanent employee of the department and was not governed by the terms and conditions under which he was originally appointed. As such he could not abandon the post, unless his resignation was accepted by the competent authority. The learned counsel then argued that the Pakistan Essential ,Services (Maintenance) Act, 1952, was ultra vires. This Act was passed by the Federal Legislature during the period of emergency declared under section 102 of the Government of. India Act, 1935, and under clause (4) o this section, this Act ceased to have effect to the extent of the in-competency on the expiration of period of six months after the proclamation has ceased to operate. The procla mation of emergency, which had been issued on the 13th day F of August 1948, under section 102 of the Government of India Act, 1935, ceased, by virtue of the provisions of clause (1) of Article 191 of the Constitution read with Article 221 thereof, to operate on the Constitution Day, and six months thereafter expired on the 23rd of September 1956, and, in view of clause (4) of section 102 of the Government of India Act, any law framed thereunder, to the extent of the in-competency, ceased to have effect on that day. But a day earlier, i.e., on the 22nd of September 1956, the President was pleased to make the Essential Services (Maintenance) Adaptation Order, X111 of 1956, whereby it was provided that the Pakistan Essential Services (Main tenance) Act, LIII of 1952, shall have effect subject to the c amendments, modifications and adaptations directed in the Schedule to this Order. The learned counsel invited our attention to Article 224, clause (1) of the Constitution and urged that the laws mentioned therein which could remain in force, were only those laws which were in existence. But when his attention was invited to clause (4) of section 102 of the Government of India Act, 1935, he had to concede that the Pakistan Essential Services (Maintenance) Act, 1952. was still in force, but had ceased to have effect only to the extent of the incompetency. In view of the emergency which had been declared under section 102 of the Government of India Act, the Federal Legislature could make laws for a Province also, otherwise the Federal Legislature was perfectly within its rights to legislate in respect of Central Services. The Pakistan Essential Services (Maintenance) Act, 1952 dealt with the Central Services as well as with the Provincial Services, and after the expiry of six months from the date on which the proclamation of emergency ceased to operate, the Act to the extent of the incompetency of the Legislature ceased to have effect and, therefore, the part of the Act, which dealt with the Central Services, is still in force and operative and is applicable to the case of the petitioner, who belongs to the Central Services. For the aforesaid reasons, we do not find any merit in this petition and dismiss it, but in view of the circumstances of the case, there will be no order as to costs. A.H. Petition dismissed.