These revision petitions were heard on 3-10-70 and decision was reserved on the legal point whether these revision petitions are competent on judicial side before the Member, Board of Revenue, Revision Petitions Nos, 51, 52, 53 and 54/1969-70 are in connection with retrenchment and the remaining revision petitions are in connection with punishment, of Patwaris. This single Order will dispose of all these revision petitions.
2. On the last date, the counsel for petitioners in Revision Petition No, 49 submitted written arguments containing the following six points, with reference to the queries raised by me, vide my order dated 5-9-1970: (1)So far as clause (3) of Article 178 of the Constitution of 1962 is concerned, it confers on the Government servant a right of appeal against punishments. It lays down that every such Government servant has a right of at least one appeal. It prescribes the minimum number of appeals and does not in any way place the maximum at one appeal. Any number of appeals can, therefore, be provided in the relevant service rules over and above the minimum one. Under this Constitutional provision a second appeal or revision is not barred by the Constitution.
(2)Rule 16 of the West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960, provides that the provisions regarding appeals etc., as available in the relevant rules, shall continue to be applicable. In the circumstances the powers and rights of appeal, revision or review will continue to be applicable in the case of Patwaris. The relevant provisions exists in the following rules : --- (i)Rule 2 of Appendix (F) of the Punjab Land Records Manual regarding appeals.
(ii)Rule 3 of Appendix (F) of Land Records Manual regarding prohibition as to Collective appeals or application for revisions.
(iii)Rule 4 ibid regarding manner of presentations of appeals or application for revision.
(iv)Rule 5 ibid regarding the withholding of appeals or application for revision.
(3)The Government Notification No, Integ. 15-1-58 dated 29-11-1960 in Land Records Manual has amended rule 2 above but in doing so the subsequent rules have been left intact. It, therefore, follows that the provisions of those rules in matter of revision are still operative because they have neither been amended nor withdrawn. A second appeal may not now lie but the revisions are still admissible as required by rules 3, 4 and 5 which have not so far been amended or withdrawn.
(4)Similarly so far as the provisions of Chapter 14 of Civil Service Rules (Punjab) Vol. I, Part I are concerned rules 14.8, 14.10 and 14.13 have been specifically superseded by the West Pakistan Government Servants (Efficiency and Discipline) Rules of 19e0 but the remaining rules are still applicable, unless they have been specifically dealt with in the said rules. So far as the rules relating to appeals are concerned rule 14(1) of the Efficiency and Discipline Rules provides that a person on whom a penalty is imposed, shall have such right of appeal as may be preserved in the service rules applicable to him. In view of these cle r provisions the rules in Chapter 14 of the Civil Service Rules (Punjab), Vol. I, Part I viz. 14.6, 14.17, 14.18, 14 19 14.20 and 14.21, are still operative. Right of revision does lie under rule 14.17 of the C. S. R. Powers of Superior authority to revise the proceedings of an inferior authority are discussed in rule 14.18 and manner of presentation of application for revision is discussed in rule 14.20 of the C. S. R.
(5)Being the Head of the Department as well as the Administrative Secretary to Government for the Patwar Service the Member, Board of Revenue, has inherent powers under rule 14.18 to call for the record of any case on an application being made to him or suo motu and pass such orders as deemed necessary in the circumstances of the case. The Member, Board of Revenue, is therefore, competent to entertain the revision preferred under rule 14.17 of the C. S. R. and even under his inherent powers under rule 14.18 irrespective of the fact whether relevant provision relating to Application for revision exists or not.
(6) Similarly the particular rules in Appendix 'F' of Land Records Manual which cover the Patwar service are also applicable under rules 3.4 and 5 of the said Appendix. It has been shown above that these rules have not been amended so far as revision are concerned. Hence revision applications are competent and the Member, Board of Revenue, has the jurisdiction to entertain and dispose them off according to the principle of law of Equity and natural Justice.
3. Counsels for petitioners in the following revision petitions supplemented the above arguments as follows :- Revision Petition No, 39/1969-70 Counsel referred to clause (2) of Article 178 of the 1962-Constitution and argued that rules cannot be altered to the disadvantage of the Government servants who were in service before 1962. He further argued that correction slip No, 98 L. R. M. (Land Records Manual) dated 8th August 1968.
Takes effect from the date of issue and will apply to those who enter service after 8th August 1968.
Even if it is construed as affecting the right of .revision, it will apply to fresh entrants. No notification or rule can take away past right. Revision Petition No, 61/1969-70 Counsel referred to statement under rule 2 of Appendix 'F' on page 84 of Land Records Manual and stated that column 5 thereof referred only to appeal and did not take away the power of revision of Member, Board of Revenue. Revision Petition No, 55/1969-70 Counsel desired to produce a ruling regarding section 4 of the Board of Revenue Act, 1957, but admitted that it was not regarding service matters. Revision Petition No, 57/1969-70 Counsel argued that power of revision is contained in Land Records Manual and continues.
4. As regards Revision Petitions Nos, 51, 52, 53 and 54/ 1969-70, counsel argued that these cases are different from the other five. In these cases, action has not been taken under Efficiency and Discipline Rules. Board of Revenue has authority to revise the orders under section 179 of the Land Revenue Act, 1967, and section 5 of the Board of Revenue Act, 1957. He further argued that Collector has violated rule 3.11 (2) of the Punjab Land Records Manual. He referred to the ruling reported in PLD 1969 SC 407 on the point that once an order has taken effect, there is no power in the authority passing the order to rescind it.
I have given careful consideration to the arguments of the learned counsels. So far as the special points in Revision Petitions Nos, 51, 52, 53 and 54/1969-70 are concerned, I do not find that Rule 3.11
(2) of the Punjab Land Records Manual which refers to the method of appointment of Patwaris, is at all applicable in the case of retrenchment. Retrenchment is made keeping administrative considerations in view and, if the junior-most person is retrenched, he cannot claim that a person with longer service than him should have been retrenched. It is not a case of rescinding the appointment and the ruling reported in PLD 1969 SC 407 does not, therefore, apply to these cases.According to Article 176 of the 1962-Consitution, the holder of a Civil Post in connection with the affairs of a Province holds office during the pleasure of Governor of the Province subject to the Constitution. In the absence of rule having the force of Law under the Constitution imposing restriction on the power of retrenchment when need thereof arisen on reduction of posts, it cannot be argued that retrenchment from, or retention in, service by the appointing authority is not an exercise of the un-fattered power of the Governor, or under his authority, to dispense with, or retain, the services of a Provincial Government employee at pleasure.
6. As regards the Land Revenue Act, 1967 and the Board of Revenue Act, 1957, these enactments are not Laws relating to terms and conditions of service of persons serving in a civil capacity in the service of Pakistan, and as such have no relevance to these cases.
7. I now proceed to examine the position with regard to the power of the Board of Revenue to entertain revision petitions in service matters. According to clause (1) of Article 4 of the Provisional Constitution Order, not withstanding the abrogation of the Constitution of the Islamic Republic of Pakistan brought into force on the 8th day of June 1962, and subject to any Regulation or order made, from time to time, by the Chief Martial Law Administrator, the state of Pakistan shall, except as otherwise provided in the provisional constitu.ion order, be governed as nearly as may be in accordance with the said Constitution. According to Article 234 of the said Constitution, subject to the Constitution and the law, any person who, immediately before the commencing day, was in the service of Pakistan shall, as from that day, continue in the service of Pakistan on the same terms and conditions as were applicable to him immeliately before that day. The only restriction on the power of the Governor to frame rules under Article 178 of the said Constitution is that the terms and conditions of service of a person, in so far as those terms and condition relate to remuneration or age fixed for superannuation, are not varied to his disadvantage. The argument that Rules cannot be altered to the disadvantage of the Government servants who are in service since before 1962 is relevant in connection with the Rules framed under Article 178 of the said Constitution only with regard to remuneration or age fixed for superannuation. All other terms and conditions can be varied by rules made by competent authority to the disadvantage of such persons. The terms and conditions regarding remuneration or age for superannuation were not varied by the West Pakistan (Northern Zone) Patwar Subordinate Service Rules, 1963, which were framed under Article 178 of the said Constitution and these rules are, therefore, applicable to all Patwaris who were in service at the time the rules came into force as well as those who have been appointed subsequently. Under rule 11 of these Rules, in all matters not expressly provided for in these rules, Members of the service shall be governed by such rules as have been or may hereafter be prescribed by the Government and made applicable to them. There was no provision in the said Constitution corresponding to proviso to subsection (5) of section 241 of the Government of India Act, 1935, and consequently no power exists to deal with the case of a person more favourably than is permissible under the Rules. However, the Patwar Subordinate Service Rules, 1963, themselves contain a provision, in rule 12 thereof, according to which any of these rules, which would include general rules contained in rule 11 also, may, for reasons to be recorded in writing, be relaxed in individual cases if Government is satisfied that a strict application of the rule would cause undue hardship to the individual concerned. This power is available to Government and not to Member, Board of Revenue. The exercise of this power can also not be claimed as a right. In only one out of these 9 cases, viz. that of Muhammad Iqbal, Service Revision No, 61/1969-70, I consider it necessary to observe as Secretary to Government of the Punjab, Consolidation Department, that it should be examined in the Consolidation Department whether the Additional Deputy Commissioner (Consolidation) had the power to pass the order terminating the services of the Patwari. He may have powers of Collector under the Consolidation of Holdings Ordinance, i960, but unless he has powers, or should be deemed to have powers, of Collector for the purpose of S. No, 15 of Column 3 of Schedule under Rule 2 of the Board of Revenue Delegation of Powers Rules, 1958 he could not have passed the order in question.
8. Reverting to the question of my revisional powers as Member, Board of Revenue, I may observe that under Article 178 of said Constitution, subject to the Constitution and law, the terms and conditions of persons serving in connection with the affairs of a Province shall be as prescribed by rules made by the Governor of the Province or by a person authorised by the Governor in that behalf. Under Article 225 of the said Constitution, except as provided by that Article, all laws, including rules, notifications and other legal instruments having the force of law, in force in Pakistan or any part thereof, immediately before the commencing day, shall, subject to the Constitution, continue in force, so far as applicable and with necessary adaptations, until altered repealed or amended by the appropriate Legislature. In terms of definition of the word "Legislature" in Article 242 of the said Constitution and subject to the Constitution and law, Governor of the Province can alter, repeal or amend rules relating to terms and conditions of service of Government servants.
9. It is expressly provided in the Board of Revenue Delegation of Powers Rules, 1958, that, notwithstanding any provision to the contrary in any service rule for the time being in force, the authorities for purposes of appointment, appeals, punishments, transfer and controlling travelling allowance, shall be such as are specified in the schedule annexed therewith, and that these rules supersede all the delegation orders for the time being in force in the Province or any part thereof.
As these rules, or the Schedule therewith, do not contain any power of the Board of Revenue with regard to appointment and punishments of Patwaris, I have no hesitation in holding that Board of Revenue cannot entertain revision petitions of Patwaris in matter relating to their appointment or punishment.
10.Further, rule 16 of the West Pakistan Government Servants Efficiency and Discipline) Rules, 1960, provides that these Rules supersede all the existing rules and instructions in regard to matters dealt with in these rules, and that any person or authority, or the successor of the same, authorised to exercise powers in virtue of a delegation made by the Governor from time to time subsisting immediately before the commencement of these rules shall, to the extent of powers delegated and so far as is not inconsistent with these rules, be deemed to be the authority designated under these rules. As already observed, there was no delegated authority subsisting with the Board of Revenue after the coining into force of the Board of Revenue Delegation of Power Rules, 1958, with regard to appointment and punish-ment of Patwaris. The fact that sub-rule (1) of rule 16 of the Efficiency and Discipline Rules particularises certain Rules, does not detract from the generality of its provision that these rules supersede all the existing rules and instructions in regard to matters dealt with therein, viz., matters relating to punishment of Provincial Government servants.
11.In the result, I hold that in matters relating to appointment and punishment of Patwaris, no revision lies to the Board of Revenue. The revision petitions are accordingly dismissed with the observation that so far as the case of Muhammad Iqbal is concerned, it should be examined in Consolidation Department.
Petitioners should be informed.