1. DORAB PATEL, J.-The dispute ,in this petition for leave is about the seniority list of the Sub-Inspector of the Excise & Taxation (Preventive) Service of the Province of Baluchistan. On the representations made against the seniority list prepared in 1970, this list was revised on 11-4-1973 with the result that the third respondent in this petition (hereinafter called the respondent) was shown as junior to the petitioners in this petition, therefore, the respondent challenged this revised list in an appeal which was heard and allowed by the Baluchistan Service Tribunal, Quetta by its order dated 14-11-1977.
2. Hence this petition for leave.
3. According to Mr. Bilal, the petitioners were senior to the respondent, because they had been appointed Sub-Inspectors on 28-11-1957, whilst the respondent had been appointed on 1-1-1959. On the other hand, the respondent claims Seniority over the petitioners on the basis of the Baluchistan Excise Service Rules, 1952 (hereinafter called the old Rules), because he had passed the Departmental examination at least a year earlier than the other petitioners. And according to Mr. Bilal the respondent pressed his claim before the Tribunal on this ground and on the further ground that it was supported by the rules framed by the Excise Commissioner for the holding of Departmental examination for Excise Sub-Inspectors. Now, on the whole, as it would appear from the impugned order that the Tribunal had accepted these pleas of the respondent, Mr. Bilal submitted that the Tribunal had erred in law in accepting these pleas, because the claim for seniority between the parties had to be decided under the West Pakistan Excise and Taxation Department Subordinate Service Rules, 1966 (hereinafter called the new Rules).
4. The submission assumes that the new Rules support the claim of the petitioners, and as I do not wish to make any observations unnecessary for the determination of this petition, I will assume for the sake of argument that the new Rules support the claim of the petitioners. On the footing that these Rules support the claim of the petitioners, the obvious objection to learned counsel's submission is that Rules framed in 1966 could not determine rights to seniority acquired long before the promulgation of these Rules. Learned counsel did not attempt to meet this difficulty, nor could he meet it, because the Rules expressly prescribe that they are prospective, and as they are not retrospective, they cannot help the case of the petitioners.
5. Learned counsel, however, relied on what he described as the terms of the respondent's appointment as set out in a letter of the Assistant Director, Excise & Taxation) Quetta Region dated 29th December, 1959. This letter refers to the respondent's appointment as well as to that of several other Sub-Inspectors and it states that the appointments were temporary. It then states that :- "These Sub-Inspectors can be called up to serve anywhere in West Pakistan and will be governed by the new service Rules when formulated. The former Baluchistan Excise Service Departmental Examination rules I have underlined' the words on which Mr. Bilal relied, and according to learned counsel, the effect of these words was that the seniority of Sub-Inspectors appointed after the creation of the Province of West Pakistan was to be governed by new rules which the Legislature had intended to frame and which were in fact framed in 1966. The consequences of the submission are to say the least are far reaching. The submission further assumes ,that the old Rules were repealed when the Province of West Pakistan was created, and although the submission in this respect was far from clear, learned counsel appeared to think that the old rules had been repealed on the creation of the Province of West Pakistan, because the Legislature had intended to frame fresh Rules. The submission is contrary to the express provisions of section 10 of the Establishment of West Pakistan Act, 1955 (hereinafter called the said Act). This section reads: - "10. Continuation of laws.-(1) Except as otherwise provided in this Act, and subject to any order of the Governor-General under section 5 of this Act, and to the powers of any competent Legislature, all laws in force in West Pakistan immediately before the appointed day shall continue to apply to the areas and the persons to whom they would have applied if this Act had not been passed.
(2) For the purposes of this section "law" includes any Act of the Parliament of the United Kingdom, any law passed by a competent Legislature in India or Pakistan, and any Order-in-Council, Letters, Patent, ordinance, order, regulation, rule, bye-law or public notification made or issued by a competent authority.
(3) -------------------------------------------------------------------------------------- ---------- As the old Rules were law within the meaning of subsection (2) they remained in force until their repeal, and as the petitioners and the respondent were appointed Sub-Inspectors and passed the Departmental examination long before the repeal of these Rules, their seniority inter se could only be determined on the basis of these Rules and-not the new Rules. Therefore, the reliance placed by the petitioners on the Assistant Director's letter of 29th December, 1959*is misconceived, because even Mr. Bilal did not go to the length of contending that a mere Assistant Director of Excise could suspend the operation of rules which were declared to be law under the said Act.
6. Learned counsel then referred us as to the letter issued by the Provincial Government on 6th May, 1957 to all heads of Departments. This letter reads: "I am directed to say that Government have decided that the service rules which governed the Government servants prior to integration would not apply to person recruited on or after the 14th October, 1955. The matter would be governed by the new service rules whenever framed by the Department."
7. I have quoted the letter as it reads, and, to say the least, the errors in it are so gross that they raise doubts as to whether the letter was intended to convey a decision made by the Provincial Government. Be this as it may, the direction given in the letter is contrary to the clear provisions of section 10 of the said Act, therefore, I would only observe that the letter was a nullity and could not confer rights on the petitioners or divest the respondent of the rights acquired by him under the old Rules.
8. Learned counsel then criticised the interpretation placed by the Tribunal on the rules. Framed for the holding of the Departmental examinations for Excise Sub-Inspectors and submitted that rule 9 of these Rules were ultra vires of the powers conferred by the Excise Commissioner "by rule ii of the Baluchistan Excise Service Rules, 1952". In order to appreciate this plea, I may explain here that the rules were framed by the Commissioner, but as the words "rule ii" are an obvious error, it was difficult to examine this plea, and I have myself attempted to get a copy of these rules. As these rules are not available, it is not possible to examine this plea and it is not even necessary to examine it, because learned counsel admitted that the respondent was entitled to seniority under the old Rules. In any event I have no doubt that the respondent was entitled to seniority over the petitioners under the old Rules, therefore, this petition fails and is dismissed.