SHAMEEM HUSSAIN KADRI, J.--One Zahid Ali, Assistant Works Manager, Pakistan Ordnance Factories, Wah Cantt. was promoted to Class I by partial supersession of D. 0. pt. II No, 2237, dated 31st October 1963 with effect from 4th November 1963 vide Daily Order Part II dated the 24th August 1964. A condition was attached to his promotion that such promotion will be provisional until he and other such persons who were similarly promoted pass the departmental promotion examination. An association was formed by the Officers of his cadre and several representations were made to the Authorities against the conditional promotion but their efforts did not bear any fruit. This conditional order of promotion has been assailed by this Writ Petition under Article 98 of the abrogated Constitution of 1962.
2. Originally the writ petition was filed against the Pakistan Ordnance Factories Board, Wah Cantonment but during the arguments the petitioner thought it necessary to ask our permission for impleading the Government of Pakistan, through Secretary, Ministry of Defence, as another respondent in the case. Permission was granted to the petitioner and the amended writ petition was filed.
3. The main contention raised by the petitioner was that in view of Daily Order No, 93 Part I issued by the Pakistan Ordnance Factories, Wah Cantt. on 20th of March, 1956, the condition of promotion from Class II to Class I was only by selection which has been changed to his detriment. Relevant para. of the order is produced as below:-- "Para 2. (i) From non-Gazetted to Class II Officer cadre by selection.
(ii) From Gazetted Class II to Gazetted Class I cadre by selection."
Appending the condition of passing departmental examination the promotion amounts to change in terms and conditions of service and in any case the Pakistan Ordnance Factories Board was not competent to change such conditions of his service, the Government alone being competent in this behalf.
4. The petition has been contested both by Pakistan Ordnance Factories Board and the Ministry of Defence.
5. In support of his submission the learned counsel appearing on behalf of the petitioner referred to paragraphs Nos, 3, 4 and 5 of the Daily Order No, 93 which are reproduced as under :- "3. Seniority rolls up to A. W. M.--Seniority rolls up to A. W. M. will be maintained in accordance with direct lines of promotion within each A. W. M. Group except sections mentioned in para. 2 (iv) (a), Combined seniority rolls of those sections will be prepared, group-wise, on the basis of continuous regular appointment subject to the condition that the recombination seniority among members of one section is not disturbed as amongst themselves. Separate seniority rolls will be maintained for staff employed in Heat Treatment Section of the Ferrous Factory for promotion up to Foreman.
4. Seniority Rolls for A. W. M. and above:-- Separate seniority rolls would be maintained as follows: (1)For all AWMs of the Explosives and Filling Factories.
(2)For all AWMs of the Engineering Factories Group.
(3)For all WMs of the Explosives and Filling Factories.
(4)For all WMs of the Engineering Factories Group.
A confidential report on each officer indicating his fitness and suitability for promotion to the next higher grade will be initiated by his immediate Class I senior Officer and forwarded through the normal channel to the D. D. 0. F. for record. Each officer in the chain will add his own comments and recommendations to the report. These reports will be rendered annually.
5. In the case of promotion from Non-Gazetted to Gazetted Class II and from Gazetted Class II to Class I it will be the responsibility of the Superintendent of the Factory Group concerned and of the Chief Superintendent to furnish a report to the Selection/Promotion Board on the individual's suitability (appearance, social etc.) to maintain the status of a Class I or II Gazetted Officer to assist the Board in their selection."
In the light of the above paragraphs of the Office Order No, 93 learned counsel vehemently contended that selection in his case was to be based on seniority-cum-fitness basis alone as it is clearly indicative from the three paragraphs mentioned above. If the framers of the rules had any intention to base the selection on other than seniority-cum-fitness basis, for example, competitive examination, it would have been clearly so mentioned in the said order. Subjecting the petitioner to departmental examination would clearly mean that terms and conditions of promotion have been infringed. It was further submitted that the Pakistan Ordnance Factories Board which had come into existence meanwhile, was not competent to change the terms and conditions of his service.
6. In order to examine this contention reference is to be made to Ordinance XVII of 1961 which was promulgated on 15th May 1961 whereby Pakistan Ordnance Factories Board was constituted.
Section 7 of the said Ordinance invested certain powers of the Government in the Board and by virtue of section 13 the Central Government maintained its supervisory control of issuing directions to the Board for efficient management of the factories working under the Board. Similarly section 14 empowers the Government to frame rules for carrying out the purposes of this Ordinance. Section 7(a) of the Ordinance is reproduced below:-- "7. Notwithstanding anything contained in any law, regulation, rule, order, notification, agreement or other instrument for the time being applicable to any factory, or any Officer or other employees appointed or engaged in, or in connection with, any factory the Board may, in relation to such factory, officer or employee exercise the following powers of the Central Government or of any officer authorised for the purpose by the Central Government, that is to say :
(a) to determine the terms and conditions of service recruitment, promotion, transfer, posting, dismissal, discharge demotion and other disciplinary actions of all officers and other employees: Provided that the terms and conditions of service of any officer or other employee appointed or engaged before the commencement of this Ordinance shall not be varied to his disadvantage and that he shall not be dismissed or removed from service or reduced in rank by any authority subordinate to that by which he was appointed....
It is absolutely clear that the Board has been vested with certain powers of the Central Government to determine the terms and conditions of service, recruitment, promotion, transfer, posting, dismissal, discharge, demotion and other disciplinary actions of all officers and other employees working in the factory under the Board. The proviso, however, has put fetters on such powers of the Board in regard to certain conditions of those persons who were serving with the Government in these factories before the constitution of the Board. It has been clearly mentioned that terms and conditions of those persons serving the Government before coming into existence of the Board shall not be varied to their disadvantage and so far as their dismissal, removal from service and reduction in rank is concerned, no order shall be passed by any authority subordinate to that by which such persons were appointed. This section remained pivot of arguments and interpretation by the learned counsel appearing for both the parties. The stand taken by the learned counsel for the petitioner that in case of his client it was only the Government which could change terms and conditions of the service was vehemently opposed by the learned counsel appearing on behalf of the respondent the Pakistan Ordnance Factories Board and the learned standing counsel for the Central Government on behalf of the Ministry of Defence, Government of Pakistan. It is an admitted fact that the petitioner was in service before the promulgation of the said Ordinance and any change in the terms and conditions of his service could only be made by the Central Government and the P. O. F. Board cannot usurp that authority by virtue of the limited delegation of power. I am fortified in this view owing to the existence in operation of the rules namely, "Civilian Employees in Defence Services (Classification, Control and Appeal) Rules, 1961. Rule 6 authorises the Government alone to frame rules for recruitment and promotion of Class I and Class II and the rules shall continue to be in force for these services as far as may be, till the Government supersedes or modifies them. Even under section 14 of Ordinance XVII of 1961 the Board has not been entrusted with the powers to frame rules. These powers have been kept by the Government. It was contended that some rules were framed by the Government under the Ordinance in 1964. These rules would not be relevant for the purpose of this case as these rules cannot be retrospective, the petitioner having been selected in 1963. His case will be covered by Ordinance XVII of 1961 and the rules Civilian Employees in Defence Services (Classification, control and Appeal), 1961.
7. It was forcefully contended by the learned standing counsel for the Central Government that no change in the terms and conditions of service of the petitioner has been introduced. He has only been asked to appear in examination and this can only be one mode of selection and in any case even if there has been any infringement of any term or condition of service he cannot seek his redress in this Court in view of the fetters mentioned in the Constitution under Article 98 (3) (b).
8. I will deal with the latter part of his submission first. There is hardly any force in his contention because he had earlier admitted that Office Order No, 93 had the force of rules and by virtue of Article 225 (7) of the Constitution (1962) such rules are preserved as existing law until they are altered or modified by the competent authority. There is nothing on the record to show that any amendment in the rules has been made by the competent authority i,e, the Government. The rules being existing law will have full force. Moreover, Article 234 of the Constitution guarantees same terms and conditions to a person in service of Pakistan before promulgation of 1962-Constitution, he shall continue to enjoy those terms and conditions which were applicable to him immediately before the enforcement of the said Constitution. An objection was raised that the saving of such terms and conditions prevailing before the Constitution was subject to this Constitution and the law and, therefore, Article 98(3) (b) was a bar since the only terms and conditions which have been given constitutional safeguard vide Article 177 of the Constitution are that no person shall be dismissed, removed from service or reduced in rank by an authority subordinate to that by which he was appointed and no such action shall be taken against him unless reasonable opportunity of showing cause against the action proposed is provided to him. If this argument is approved there can be hardly any conciliation between Articles 177, 225 and 234 contradiction of which will obviously lead to the extent of absurdity. It is the function of the Court to interpret the Constitution in such a manner so as to resolve any such difficulty if it seems arising. 'Subject to this Constitution and law' in this context keeping in view Article 225 of the Constitution clearly enshrines the position that the terms and conditions which were guaranteed by any rule or law being an existing law have been preserved by the Constitution itself. Conflict between Articles 234 and 177 of the Constitution, therefore, is quite obvious. On the one hand the former Article provides that the terms and conditions available to the persons in service of Pakistan before the commencement of 1962- Constitution will continue applicable to them. On the other hand article 177 gives constitutional safeguard only to few conditions mentioned therein. The embargo placed on by the latter Article, therefore, clearly comes in conflict with Article 234. This therefore reflects that the framers of the Constitution have given something with one hand and taken it away with the other which amounts to negation of justice. Such a position, therefore, cannot be allowed to prevail. In my humble view, therefore, reasonable interpretation of these provisions of the Constitution would be that Article 98(3) (b) cannot be a bar for the enforcement of those terms and conditions which were available to persons in service of Pakistan before the promulgation of 1962- Constitution. I am further fortified in this view by the dictum of their Lordships of the Supreme Court in Government of West Pakistan v. Karamat Ullah Khan which is reproduced below from page 300 :-- "The proviso to rule 4 must, therefore, be held to be violative of the provisions of clause (3) of Article 178 and Article 234 of the Constitution which contain solemn guarantees of continuity of the old terms and conditions obtaining prior to the enforcement of the Constitution, to the respondent."
Concluding, therefore, I am persuaded to the view that Daily Order 93 Part I, having the force of rules has continuity in its operation.
9. The other objection raised on behalf of the respondent that terms and conditions of selection in this case have not been changed, only mode of selection has been altered in order to raise the standard of efficiency of the employees in the Ordnance Factory and the petitioner has not been singled out in this manner. Several other persons of his cadre have already appeared in the prescribed examination and have qualified. The petitioner who had the privilege of three years training in United Kingdom should not feel embarrassed in appearing in the examination. If he does not like to appear in the departmental examination he will then be required to pass M. Sc. examination from a recognized University. But certainly this condition could not be imposed upon him being a pre-Constitution employee under the Government. It was next contended that the terms and conditions of service does not include prospect of future promotion to higher service.
Reference was made to Government of West Pakistan v. Fida Muhammad Khan in this behalf. It was further submitted that the Government was competent to change the rule of seniority-cum- fitness by imposing condition of qualifying the departmental examination as was held in The Central Board of Revenue, Government of Pakistan v. Asad Ahmad Khan In Fida Muhammad Khan's case their Lordships of the Supreme Court came to such a conclusion in regard to an employee of Civil Secretariat of the former Sind Province who after integration was posted in the office of the Rehabilitation Commissioner where his prospects of promotion according to him had come to an end which he might have availed, had he continued in the Civil Secretariat of WestPakistan. The relief to which he was alone entitled to was an equivalent post in the integrated1 2 3 province of West Pakistan and certainly not to future prospects of promotion as was held by their Lordships. The petitioner, however, in the instant case is not claiming promotion as of right. All that he claims is that his promotion to the higher grade is to be made by way of selection as prescribed by the Daily Order No, 93 Pt. I. which has the force of law and no change in the mode prescribed in the rules can be effected by any person other than by a competent authority. The instant case is, therefore, obviously distinguishable. Rules in question, in my humble view, clearly place the case of the petitioner in the line of promotion based on seniority-cum-fitness basis. Reference is made to paragraphs 3, 4 and 5 of Daily Order Pt. I No, 93 mentioned above. Selection, according to the Oxford English Dictionary means to choose or pick out in preference to another in the exercise of the choice. Of course the mode prescribed by the rules had to be followed and the imposition of condition of appearing in the examination is certainly a deviation from the method earlier prescribed. No doubt it is one of the mode of selections but only that mode has to be adhered to which earlier used to be follow. The employer, of course, is the best Judge for providing various tests of selection of his employees, obviously in his anxiety to improve their calibre. It is well appreciated, but if the principal has placed certain restrictions on the exercise of choice on his agent for that purpose, he cannot be permitted to effect any change specially when rules are so prescribed for that purpose by the principal that is the Government. In the case The Central Board of Revenue, Government of Pakistan v. Asad Ahmad Khan their Lordships held that the Government was competent to change the rules of promotion based on seniority-cum-fitness to the one depending upon the result of the departmental examination. There can hardly be any dispute with this proposition. If the Government by the prescribed rules had imposed this condition, certainly the petitioner could not take any exception to it. Since this is an innovation of the Pakistan Ordnance Factories Board, in my humble view such a change has been made in the mode of selection, even if it is so held, without any lawful authority. Whatever the motive may be i,e, the betterment of the standard of employees in the factory under the Pakistan Ordnance Factories Board, the change should be made by a competent authority under the law and the unauthorised action of Pakistan Ordnance Factories Board cannot be approved. I would, therefore, accept this writ petition and declare that the condition of qualifying the departmental examination or his securing M. Sc. degree from a recognised University illegally appended to the petitioner's selection, is without lawful authority and is of no legal effect. The petitioner shall be entitled to his costs in this Court.
A. R. SHEIKH, J.--I have had the privilege of perusing the judgment proposed by my learned brother Shame Hussain J Kadri, but I greatly regret that I and myself unable to agree to it.
2. The petitioner, an employee of the Pakistan Ordnance Factories at Wah, was appointed as Foreman (Gazetted Class II), when the promotion to the next higher post of Assistant Works Manager/Technical Class I used to be on the basis of selection according to the procedure prescribed to be followed for promotions in the Ordnance Factories Organisation, by Daily Order Part I No, 93 of the 20th March 1956 issued by the Chief Superintendent, Pakistan Ordnance Factories. He was promoted on the 4th of November 1963 as Assistant Works Manager/ Technical in Class I, conditional on his passing the departmental promotion examination. The Daily Order Part I No, 422 dated the 25th of September 1963 issued by the Pakistan Ordnance Factories Board (respondent No, 1) further stated that persons who have been declared fit subject to passing the Departmental Examination are promoted in acting capacity and their acting capacity will be converted into officiating capacity only after they have passed the departmental promotion examination within the time limit to be notified separately and representations against recommendations of the Promotion Board, if any, may be forwarded to the D. D. 0. F. through proper channel. The petitioner claims to have made a joint representation against the condition of passing the departmental promotion examination attached to his promotion through the employees body, which fact is not very clear on the record and representation by persons other than the petitioner is, however, not denied by the Department. Having failed to get relief from the Department changing the criterion of promotion by selection as given in Daily Order Part I No, 93 of 20th March 1956 to promotion by departmental examination under Daily Order Part I No, 372 of 27th August 1963, the petitioner has invoked writ jurisdiction of this Court. At first only the P. 0. F. Board (respondent No, 1) was impleaded as a party, but after hearing the parties the Court came to the conclusion that the Government of Pakistan in the Defence Department is a necessary party and the petitioner's prayer in this regard was allowed and the case has been re-heard.
3. The gravamen of the charge as against the Department is that the Daily Order Part I No, 93 of 20th March 1956 regulating the terms and conditions of petitioner's service prescribed promotion from Class II to Class I by selection and the subsequent change in conditions of promotion by Daily Order Part I No, 372 of 27th August 1963 issued by the P. 0. F. Board making the departmental examination compulsory for promotion is without lawful authority as any alteration in the terms and conditions of service of the petitioner could be made only by the competent authority, namely, the Ministry of Defence, and not the P. 0. F. Board. The objection is grounded on the provisions of section 7(a) of the Pakistan Ordnance Factories Board Ordinance XVII of 1961 (hereinafter called the Ordinance) promulgated on the 15th of May 1961 and rule 6 of the Civilian Employees in Defence Services (Classification, Control and Appeal) Rules 1961 (hereinafter called the Rules), published in the Gazette of Pakistan, Extraordinary on the 27th of July 1961, which provisions may be reproduced below with advantage; Section 7 (of the Ordinance)
"Investment of the Board with certain powers.--Notwithstanding anything contained in any law, regulation, rule, order, notification, agreement or other instrument for the time being applicable to any factory, or any officer or other employee appointed or engaged in, or in connection with, any factory, the Board may, in relation to such factory, officer or employee exercise the following powers of the Central Government, that is to say,-- (a)to determine the terms and conditions of service, recruitment, promotion, transfer, posting, dismissal, discharge, demotion and other disciplinary actions of all officers and other employees: Provided that the terms and conditions of service of any officer or other employee appointed or engaged before the commencement of this Ordinance shall not be varied to his disadvantage and that he shall not be dismissed or removed from service or reduced in rank by any authority subordinate to that by which he was appointed; (b)...........................................
(c)..........................................
(d)..........................................
(e).........................................
(f).........................................
(g) .........................................
Rule 6 (of the Rules)
"Recruitment and promotion.--(1) Rules for recruitment and promotion for Class I and II Services shall be made by Government and notified by Government. Rules hitherto in force for these services shall continue to be in force for these services as far as may be till they are modified or superseded by Government.
(2) Rules for recruitment and promotion for Class II (Non-Gazetted), Class III and IV Services shall be made by the following authorities in respect of the Services under their respective control; Commander-in-Chief, Pakistan Army; Commander-in-Chief, Pakistan Navy; Commander-in-Chief, Pakistan Air Force; Chairman, Pakistan Ordnance Factories Board; Director General, Medical Services and Chief Administrative Officer.
The rules hitherto in force for these services shall continue to be in force for them, as far as may be, till they are modified or superseded."
The argument proceeds on the basis of the proviso attached to clause (a) of section 7 of the Ordinance, which guaranteed the pre-Ordinance terms and conditions of service and the further assurance given in rule 6 that rules hitherto in force for these services shall continue to be in force for these services as far as may be, till they are modified or superseded by Government. It is contended on behalf of the petitioner that since the conditions of service of the petitioner could not be varied to his disadvantage and the Central Government further made its intention clear in the rules that rules for recruitment and promotion for Class I and II Services shall be made by the Government and notified by the Government, the net result of these provisions is that the terms and conditions of service for promotion by selection appearing in Daily Order Part I No, 93 of 20th Marc h 1956, alone governed the terms and conditions of service with regard to promotion of the petitioner and any change therein by P. 0. F. Board without concurrence of the Central Government is ultra vires the Board. It has been fairly conceded by learned counsel for the petitioner that as the petitioner was subject to the rule-making authority of the employer, if the terms and conditions of promotion had been altered by the Central Government itself, the petitioner could have no cause of complaint. All that he objects to is that because the method of promotion from Class II to Class I Service has been changed from selection-cum-fitness to selection by means of departmental examination, by the P. O. F. Board and not by the Central Government, the condition attached to his promotion is illegal and without lawful authority as the P. 0. F. Board is not vested with any such jurisdiction or powers either under the Ordinance or the rules, by which rules the Central Government specifically retained the power of prescribing and notifying the rules for recruitment and promotion of Class I and II officers. Put differently, the argument appears to be that the word `Government,' appearing in the rules is not to be interpreted to include the P. 0. F. Board and since no new rules have so far been prescribed by the Government nor have the previous ones been modified or superseded by the Government, the terms and conditions with regard to promotion applicable to the petitioner in 1956 continued and the petitioner could not be subjected to the departmental examination for the purpose of his promotion from Class II to Class I Service. The learned standing counsel for the Central Government has joined an issue with the petitioner in this regard and has argued that the P. O. F. Board having been invested with powers to frame rules for recruitment, promotion, transfer, posting, dismissal, demotion, etc., by virtue of section 7 (a) of the Ordinance, the subsequent rules (not framed under the Ordinance) saying that rules for recruitment and promotion for Class I and II Services shall be made by Government do not yield to the construction that the Government alone will frame the rules and the P. 0. F. Board has been divested of the powers given to it under the Ordinance. He has also contended that the rules cannot override the provisions of the Ordinance and, therefore, the impugned action is perfectly legal and valid. He has further argued that as a matter of fact no change has been made in the terms and conditions of service by the in production of Departmental examination to increase the efficiency of the Department.
4. All these points have been the subject of vigorous arguments before the Court. The fallacy in the argument of learned counsel for the petitioner is that the declaration by the Government in the rules that rules for recruitment and promotion for Class I and II Services shall be made by Government and notified by Government and the previous rules will continue till such time they are modified or superseded by the Government does not necessarily mean that the delegate (P. 0. F.
Board) was in any manner precluded from exercising the powers with regard to recruitment, promotion, dismissal, etc., conferred on it under section 7 (a) of the Ordinance. Two things are clear in this regard. Firstly, that rules cannot override the provisions of an Act or an Ordinance, as the case may be, and, secondly, that although the principal is not denuded of the powers delegated to the delegate, in the absence of exercise of that power by the principal, it cannot be asserted with success that the delegate is not entitled to exercise the power delegated to it and that once the delegate has exercised that power bona fide and judiciously, the principal will not exercise that power. Bearing these principles in mind, the result is that the Central Government had by virtue of the provisions of the Ordinance conferred the powers of recruitment, promotion and control of the employees of the P. 0. F. Board on the Board and if by subsequent rules the Government has expressed its intention that the rules as to recruitment and promotion of Class I and Class II officers will be framed by the Government, the word 'Government' used in the rules is to be interpreted to mean to include the delegate also unless there is anything to the contrary in the Ordinance or the rules, (which rules in the instant case, as already stated above, are not framed under the Ordinance). On this view of the matter, the very basis on which the entire argument on behalf of the petitioner proceeds falls to the ground and the rules framed by the P. 0. F. Board for the purpose of promotion which go to prescribe the mode of selection are in no manner illegal or ultra vires.
5. Coming to the next question whether the prescribing of examination for promotion instead of selection or seniority-cum-fitness is a change of terms and conditions of service, the controversy has since been set at rest by their Lordships of the Supreme Court in their celebrated judgment in The Central Board of Revenue, Government of Pakistan v. Asad Ahmad Khan wherein it has been held that the Government is entitled to make rules in the interest of efficiency of service. It may further be observed that the law declared by the Supreme Court in Government of West Pakistan v.
Fida Muhammad Khan that prospect of promotion is not a term or condition of service applies with full force to the case in hand and the distinction pointed out in the two cases by learned counsel for the petitioner is without a difference. There has been no breach of the solemn guarantee of continuity of the old terms and conditions prior to the enforcement of the abrogated Constitution Act of 1962, and the petitioner has no valid cause for grievance. In thecircumstances I would dismiss this writ petition but would leave the parties to bear their own costs.
In view of the difference of opinion, let the case be placed before the learned Chief Justice for reference, under clause 26 of the Letters Patent, to a third Judge.
QADEERUDDIN AHMAD, C. J.--Lay this matter before Mr. Justice Mushtaq Hussain.
MUSHTAQ HUSSAIN, J.--This case has been referred to me by my Lord, the Chief Justice, consequent upon a difference of opinion between my learned brothers, A. R. Sheikh and Shameem Hussain Kadri, JJ.
2. I have heard learned counsel for the parties at length and with all respect for the opinion of my learned brother Shameem Hussain Kadri, J. find myself in agreement with the order proposed by my learned brother A. R. Sheikh, J. This Writ Petition shall, therefore, be dismissed but since contentions question of law were involved, the parties will be left to bear their own costs. My reasons for arriving at the aforesaid conclusion follow.
3. Zahid Ali, the petitioner, was selected as an Assistant Section Officer (Trainee) in the Pakistan Ordnance Factories, Wah, on the 16th of August 1950. Having thereafter received technical training for about a year and a half in the United Kingdom he was appointed Assistant Section Officer, Class a post equivalent to Assistant Foreman, Class II, and borne on the gazetted cadre of the aforesaid factories. He was promoted to the post of Foreman in the same Gazetted Class H Cadre on 1st October 1960. On the 4th of November 1963 he was promoted as Class I as an Assistant Works Manager and the same was published in Daily Order Part II, No, 2237 dated 31st October 1963. A copy of this Order forms part of the reply filed by the Chairman of the Pakistan Ordnance Factories Board as Annexure 'V'. The name of the petitioner appears at No, 7 and the effective date of his promotion is shown as 4th November 1963. Paragraph 2 of the Order contains a note which runs as4 5 follows: - "The officers at serial No, 6, 7 and 10 to 15 are required to pass the departmental promotion examination failing which they are liable to reversion to their basic posts."
This Daily Order was superseded by Daily Order Part II No, 2127, dated 24th August 1964 (copy Annexure 'VI') in which the name of Mr. S. Zahid Ali was shown at No, 2 and paragraph 2 was re- worded as follows while a new Paragraph 3 was added after it:-- "2. Promotion of these officers will be treated as provisional until they pass the Departmental Promotion Examination.
3. They will be on probation for 1 year, which may be extended as deemed suitable, provided that if no orders are issued after the expiry of the probationary period as fixed above or as extended, the appointments will be deemed to be held until further orders. Preliminary probationary reports will be rendered on these officers after expiry of 6 months."
It may be stated at this juncture that the petitioner admittedly did not agitate against the condition laid down in Paragraph 2 at any stage. The first departmental-promotion examination was held in September 1967. The petitioner did not appear at that or any other examination.
4. The Pakistan Ordnance Factories Board issued Daily Order Part I No, 372 on 27th August 1963 prescribing a departmental examination as a condition precedent for promotion, inter alia, from Foreman to Assistant Works Manager grade unless the person concerned "already possessed the minimum qualifications laid down in the recruitment rules for a direct entry to (i) Assistant Works Manager and (ii) Chargeman grade." The petitioner is aggrieved by this Order because - (a)it is ultra vires the Board as the Government is the only competent authority in the matter; (b)it was an unwarranted change in the terms and conditions of service of the petitioner.
5. The Writ Petition was filed on the 13th of June 1967, i,e,, about three years after the impugned order had been passed. Laches are sought to be explained by the allegation that the validity of the Recruitment rules for Civilian Gazetted Posts Class I and II, which came into force on 13th February 1964, was challenged by some Mr. A. Waheed, a Foreman of the Ordnance Factories, and since the petitioner considered his case to be identical to that of Mr. A. Waheed, he thought that adequate action had been taken in the matter. It has been further stated that a notice under section 80 of the Code of Civil Procedure was served upon the Government by the Pakistan Ordnance Factories Class 11 (Gazetted) Officers Association on 16th February 1965, a copy of which has not been supplied with the petition. It is contended that the reply to this notice was received on 19th May 1967 (copy Annexure 'D') whereby it was made clear that the representation of the petitioners had not found favour with the Board. It may be mentioned that Annexure 'D' refers only to an interview, granted by the Chairman, P. 0. F. Board to the representatives of the Association on 4th May 1967.
Since it seems to be only an extract from some letter, it may be quoted in extenso as follows :- "1. The representatives of your Association were granted interview by the Chairman on 4-5-1967 when it was pointed out to them that the Departmental Examinations were originally introduced in August, 1963 but due to certain exigencies could not be held so far although training classes were started just before the War. As a result all promotions since then have been made provisionally subject to passing of Departmental Examination. The aim is to raise the efficiency and technical standard in P. 0. F. All government servants in an Engineering complex like P. 0. F. must attain, apart from other attributes, a certain minimum standard of theoretical knowledge and practical experience of the branch of engineering or technology to which they belong before they can be entrusted with the duties of higher posts on promotion. Besides, all promotions from Class II to Class I posts are made not on seniority-own-fitness basis as is norm illy understood but by SELECTION and the Departmental Examination is only a small part of this selection in order to help the Selection Board to ensure that the individual possesses the requisite minimum standard described above.
2. The main object of the Departmental Examination as already stated, is to improve the efficiency of the P. 0. F. service as a whole and it is not intended in any way to deprive Class II Officers of promotion to Class I posts. The Departmental Examination should be considered as a means devised by the Board to coach and prepare the Class II officers to shoulder the higher responsibilities to be entrusted to them in Class I Service.
3. As further emphasised by the Chairman improvement in one's knowledge, especially for those who have the good fortune of serving in a Defence Organisation, is a national requirement and no one amongst the Class II Officers should, therefore, either feel shy or be scarced of the Departmental Examination which is as much in their own interests as that of the P. 0. Fs. Taking a broader view and looking at our future requirements, it is in the national interest that those who do not possess the minimum requisite technical knowledge are not promoted in future and it is to achieve this end that the Departmental Examination has been introduced. The Chairman, therefore, trusts that the Class II Association will take the Departmental Examination in the spirit in which it has been introduced and will impress upon the members of the Association to take full advantage of the training facilities that are being made available to them free of cost for preparing themselves for the examination."
Although it is highly doubtful if this could be treated as vigilance on the part of the petitioner so as to be a ground for the condonation of delay, since the petition was admitted as far backn as 1968 and is at the final hearing stage, in fact, it has already been heard by two of my learned brothers, it would be too late in the day to penalise the petitioner for having slept over his rights.
6. The petitioner admits that his terms and conditions of service regarding promotion were initially governed by Daily Order No, 93, dated the 20th of March 1956 (copy Annexure 'A') Paragraph 2 of Part A-1, which deals with Class I and II Gazetted Officers of the Technical Staff, and provides that promotions from Gazetted Class II to Gazetted Class I Cadre were to be made by selection. So long as the method of promotion from Class II to Class I Gazetted continues to be selection, no grievance can be made out. The order of promotion of the petitioner shows that the petitioner has been selected. It is not denied that the Assistant Works Manager's post is a selection post or that the promotion of the petitioner to it has been the result of anything but selection. It is only the Departmental Promotion Examination which has been subjected to criticism and no secret has been made of the fact that if the Departmental Promotion Examination is avoided the petitioner has no objection to his being subjected to a process of selection for promotion to the aforesaid post of Assistant Works Manager.
7. The question is whether the holding of an examination for the purpose of promotion is a deviation from the process known as selection or is it just a method devised for the purpose of selecting a suitable person for holding a particular appointment. Normally, when a post is to be filled up by promotion out of the incumbents of inferior posts one of the three bases is adopted.
The first is seniority; the senior-most amongst those eligible are promoted irrespective of any other consideration. Seniority-cumfitness is another criterion; a person who is senior and has not been previously declared to be unfit to hold the higher post gets it, as a matter of right. If, however, a senior man has been declared to be unfit he is superseded by the next man in order of seniority, provided that the latter has not been so declared. The last is known as selection; the relative merit of persons eligible for promotion to the higher grade is determined by the competent authority and the person found to be most suitable is appointed.
Seniority is relevant in such a case either at the initial stage when a number of persons are to be chosen for selection; or at the last stage, when some persons get equal marks, the senior against them are picked out for promotion. We are concerned with the last basis, i,e, Selection.
8. The procedure adopted for selection for promotion may differ from institution to institution and department to department. Some employers may choose a viva voce test for judging merit; others may like to combine a personal interview with a written test; still others might like to add a practical test also. Whatever form the procedure takes as long as the end to be achieved is the selection of the required number of persons on the basis of relative merit, the mere fact that the procedure employed differs would not alter the basis.
9. It was held by the High Court of West Pakistan in Asad Ahmad Khan v. The Central Board of Revenue, Government of Pakistan Writ Petition No, 683 of 1957 decided on 29th January 1959, that -- "In the absence of any fixed criterion in this behalf it is open to the authorities to prescribe a written test as a qualifying examination so that candidates are adjudged as having reached a certain standard of capability and efficiency. The success in the test with a fixed percentage of marks may be held to be sufficient indication of fitness in the subjects that are included in the examination. But since the factor of seniority cannot be ignored the examination should not be turned into a competitive test as a result of which those who secure the highest marks irrespective of their seniority get promoted."
The High Court was dealing with a case where seniority-cum-fitness was admittedly the basis of promotion. The Central Board of Revenue had in the absence of a statutory rule or regulation laying down the basis for determining the fitness of an Inspector for the post of a Deputy Superintendent introduced a departmental examination for judging relative merit. The case went to the Supreme Court where the judgment was reversed on the ground that the post of Deputy Superintendent having been upgraded to Class 11 from Class III the criteria for promotion prescribed for the latter could not be as of necessity applied to the former. The Supreme Court, however, did not disapprove of the finding of the High Court that a departmental examination could lawfully be prescribed for the purpose of judging the capability and efficiency of the candidates. In that case the High Court had qualified it by saying that the success in the test with a fixed percentage of marks may be held to be sufficient indication of fitness, but their Lordships were dealing with a case of seniority-cum-fitness and not of selection the question of a fixed percentage of marks would not arise because it would essentially be competitive in nature. The prescription of a written test even in cases where seniority-cum-fitness was the rule was thus held to be lawful by the High Court and the Supreme Court found no fault with it. If that be so, it is all the more reason that the prescription of a competitive written examination in cases of promotion governed by selection should be met with approbation by all concerned.
10. In Province of West Pakistan v. Muhammad Akhtar Qureshi and others, while dealing with a case where the Government had issued a direction, "that the existing seniority list should be followed in making appointments to the posts of Deputy Chief Engineers Additional Chief Engineers and Chief Engineers, and the service records of all the Superintending Engineers should be submitted to the Selection Committee for exercising its choice irrespective of seniority", S. A.
Rahman, J. (as he then was) came to the conclusion-- "The letter explained the difficulties that the Government had to encounter in formulating an equitable rule on the subject and it seems to us that it was not for the High Court to sit in judgment over the Government in this matter if the proposed rule or principle was such as could have been legally adopted by Government and did not violate any vested right of the Government servants concerned. It is conceded that the higher posts to which the respondents in question aspired were all selection posts and that seniority alone would not be the determining factor for preferment to such posts, though of course, other things being equal, seniority might count. Merely because Government had evolved a rule which had not been adopted previously, it does not follow that it was necessarily inequitable. in assessing the fairness of the rule, the High Court could not have substituted its own opinion for that of the Government, if the latter's action was intra vires."
11.The prescription of the Departmental Examination in the case of the petitioner was certainly not6 ultra vires because all that the 1956 rules provided was that the basis of promotion was to be "selection". No method of selection had been prescribed by the rules and the mere fact that a written examination was introduced for the first time in the year 1963 and held in the year 1967 does not affect the basis of promotion which continues to be selection. It is the established right of the Government to raise the efficiency of the services and for this purpose to devise ways and means for selection of personnel from time to time in accordance with its views for assessing such efficiency and capability. It cannot be laid down that any employee as a vested right in the mode of selection or that having once determined a particular mode the Government is powerless if it wants to change it for another method which it thinks to be more efficacious.
12.The promotion of the petitioner took place on the 4th of November 1963 while a Daily Order No, 372 introducing the departmental examination was issued on the 27th of August 1963, i,e,, more than two months before the promotion of the petitioner took place. If the Board had the power to prescribe the mode of selection, having done so before the petitioner was promoted he could not wriggle out of it also because he accepted the promotion subject to the bases provided in Daily Order No, 372.
13.The Pakistan Ordnance Factories Board Ordinance (XVII of 1961) was promulgated on the 15th of May 1961 by the President. This Ordinance, which came into force at once, empowered the Government to constitute a Pakistan Ordnance Factories Board consisting of three members for carrying out the purposes of the Ordinance. One of the members was to be appointed Chairman of the Board. The principal function of the Board was to manage and administer the affairs of the factories and to run them on sound commercial lines. Section 7 of the Ordinance took effect notwithstanding anything contained in any law etc. applicable to any factory or any officer or other employee. It authorised the Board to exercise, inter alia, the following powers of the Central Government-- "(a) to determine the terms and conditions of service, recruitment, promotion, transfer, posting, dismissal, discharge, demotion and other disciplinary actions of all officers and other employees: Provided that the terms and conditions of service of any officer or other employee appointed or engaged before the commencement of this Ordinance shall not be varied to his disadvantage and that he shall not be dismissed or removed from service or reduced in rank by any authority subordinate to that by which he was appointed;
(g) subject to any direction issued in this behalf by the Central Government, to frame departmental, financial and accounting rules and procedure."
14.Appointments of persons in the service of Pakistan are to be made, as provided by Article 178 of the abrogated Constitution, by the President or a person authorized by the President in that behalf, and the terms and conditions of service of such persons shall, subject to the Constitution and law, be prescribed by rules made by the President or by a person authorized by the President in that behalf. It is very significant that Article 178(2), which deals with the terms and conditions of service, specifically stipulates that they are to be subject to the Constitution and law. In the present case, a law has been promulgated in the shape of the Ordinance referred to above which, inter alia, prescribes the authority which shall in turn prescribe the terms and conditions of service of the employees under its control. The promulgation of this Ordinance is, therefore, directly relatable to Article 178(2) of the Constitution. Section 7 thus derives direct authority from this sub-Article. It is not just an ordinary delegation. It is, in fact, the conferment of power by law, such conferment being authorised by the Constitution itself. The result is that even if the President were to frame rules of service for persons covered by section 7 of the aforesaid Ordinance, the rules shall have to give way to the terms and conditions prescribed by the Board under section 7, for after all the power of the President to prescribe rules has been made subject to law by Article 178(2) of the Constitution.
15.The power contained in section 7 is as wide as it can possibly be, and any terms or condition prescribed by the Board would, by virtue of section 7, have the highest authority behind it.
16.Undoubtedly, the proviso to section 7 inhibits the vast powers conferred upon the Board, inter alia, to the extent that the Board shall not prescribe terms and conditions of service which are to the disadvantage of a person employed before the Ordinance came into force. The Board thus had the power to prescribe the impugned condition of service. Whether the same should be struck down because of being disadvantageous to the petitioner who entered into the employment of the Board before the Ordinance came into force is the next question.
17.To my mind, firstly, the terms of service of the petitioner have not been varied, at all. The Rules of 1956 postulated promotion to the grade of Assistant Works Manager by selection and the same basis has been retained till today. The previous rules did not prescribe the method of selection and under them, therefore, nothing to the advantage or disadventage of the petitioner existed. By prescribing the method of selection in the shape of a competitive examination the Board, far from doing anything, to the disadvantage of the petitioner, fettered its own powers regarding the method of selection by restricting it to the holding of a departmental examination instead of leaving it to the whim and caprice of the officers for the time being holding the selection. If the Board did any thing it was to the advantage of the petitioner. No disadvantage can be spelt out nor has any been demonstrated during the course of argument.
18.The Daily Order of the 20th of March 1956 came into being before the Constitution of 1956.
Article 224 of that Constitution provided the usual Constitutional backing for the continuance of all laws other than those repealed by Article 221. The laws so continued, inter alia, included "other legal instruments in force in Pakistan or in any part thereof, or having extra-territorial validity, immediately before the Constitution Day" "so far as applicable and with the necessary adaptations" "until altered, repealed or amended by the appropriate Legislature or other competent authority". A legal instrument would signify a document of a formal legal kind which is effectual and proper and which the Courts of the country will recognise and enforce. Assuming that the Daily Order of 1956 was a legal instrument as envisaged by Article 224 of the late Constitution of 1956 and therefore continued by its authority and further continued as an existing law by Article 225 of the abrogated Constitution of 1962, the petitioner's case would not, at all, be advanced. The reason for that is not far to find. Article 225 itself lays down that all existing laws shall continue in force subject to that Constitution and, inter alia, until altered, repealed or amended by the appropriate Legislature. In the present case, the aforesaid Daily Order of 1956, even if it could be given the high position of a law, had been brought into being by the Central Government. It was in the exercise of the authority of the Central Government under section 7 of Ordinance (XVII of 1961) that the Daily Order of 1963 was promulgated. In respect of the Daily Order of 1956 the appropriate Legislature was the Government itself, and a delegate of the Government or an authority clothed with Governmental power by law, in this case the Pakistan Ordnance Factories Board and Ordinance XVII of 1961, did amend the aforesaid legal instrument to the extent that it provided for the mode of selection which had hithertofore remained unprescribed. The Daily Order of 1963 could, therefore, not be hit by that of 1956 and the prescription of and examination by the former did not suffer from a legal defect.
19.The submission, however, presupposes that Article 225 of the present Constitution also continued legal instruments. Article 221 of the late Constitution of 1956 only continued legal instruments but did not give them the status of a law enacted by Legislature. They were simply to continue as legal instruments till they were amended or altered by competent authority. Even therefore if the Daily Order, 1956, was a "legal instrument" it continued to be at best a "legal instrument" and was never N converted into a statute. Article 225 of the abrogated Constitution of 1952, on the other hand, only continued laws, and its scope was not expanded by the Article to include legal instruments. The Daily Order of 1956, therefore, had no statutory force at any time and cannot be deemed to have been converted into a law by the Constitution of 1956 or an existing) law by Article 225 of the Constitution of 1962.
20. Even if it were to be assumed that it was so continued, the petitioner would not derive any benefit therefrom in the present petition because it has been laid down in Muhammad Akhtar Hussain and 4 others v. Government of West Pakistan and 454 others.
"Learned counsel for the Government has contended that the High Court was wrong in taking the view that Article 234 of the Constitution of 1962 guaranteed to persons in the service of Pakistan that the terms and conditions applicable to them immediately before the commencing day would continue to apply to them for ever. Clause (1) of Article 234, it is contended, contains provisions merely for the transitional period in order to prevent any kind of vacuum. It stands on the same footing as Article 235, which makes transitional financial provision, and other Articles in Chapter 3 of Part XII of the Constitution which deals with 'transitional and temporary provisions'. Furthermore, as the opening words of clause (1) themselves indicate, the provisions thereof have been made expressly subject to the 'Constitution' and the 'law'. Under clause (2) of Article 178 of the Constitution power is given to the Governor of the Province to prescribe the terms and conditions of service of persons serving in any civil capacity in connection with the affairs of the Province and sub-clause
(1) of clause (3) of Article 178 imposes a bar against the variation of the conditions of service to the disadvantage of a public servant only in so far as those terms and conditions relate to remuneration or age fixed for superannuation. No other terms and conditions are guaranteed and, therefore, this sub-clause itself pre-supposes that condition of service of a person which does not relate to remuneration or age fixed for superannuation may be varied by rules made by the competent authority mentioned in clause (2) of the Article. Amendments made in the exercise of those rule-making powers cannot be invalidated on the grounds that they offend the provisions of clause (1) of Article 234 if the amendments are otherwise valid.
Learned counsel maintains that rules made in exercise of the power given in clause (3) of Article 178 have the force of law and, therefore, the provisions of clause (1) of Article 234 were even subject to such rules made by the Government. The word 'law' has not been defined in the Constitution. In clause 7 of Article 225 'existing laws' have been defined as 'all laws (including Ordinances, Orders- inCouncil, Orders, rules, bye-laws, regulations and Letters Patent constituting a High Court, and any notifications and other legal instruments having the force of law) .But in Article 242 only 'Central law' and 'Provincial law' have been defined. Central law means 'a law made by or under the authority of the Central Legislature, and includes a law made by the President'. Similarly a Provincial law means 'a law made by or under the authority of a Provincial Legislature, and includes a law made by the Governor'. Under this definition it is not clear whether rules framed in exercise of powers given by the Constitution after its coming into force or by a subsequent statute would have the status of law put an Ordinance promulgated by the Governor would certainly come within the definition of `Provincial Law' as given in Article 242. In the present case, therefore, we are not concerned to find out as to what would be the validity of a rule framed under Article 178(3) purporting to vary the conditions of service of a public servant to his disadvantage. But since an Ordinance is definitely a law and clause (1) of Article 234 is subject both to the Constitution and the law, it cannot be said that the terms and conditions, other than those relating to remuneration and age of superannuation, applicable to a public servant at the time of the coming into force of the Constitution cannot be altered to his disadvantage."
21.Section 13 of the Ordinance empowers the Central Government to issue directions to the Board from time to time to take such measures as it considers necessary for efficient management of the factories. The same section lays down that the Board shall comply with such directions. The power of the Board under section 7 to determine the terms and conditions of service is not subservient to the provisions of section 13. Section 7 starts with the usual non obstante clause "notwithstanding7 anything contained in any law " etc. etc. Section 7 is, therefore, excluded from the purview of section 13 which is nothing else than a law empowering the Government to give directions. In the exercise of the power conferred upon it under section 7, the discretion of the Board is, therefore, not fettered by considerations mentioned in section 13. It may also be taken note of that clause (g) of section 7 itself lays down as to how far the provisions of section 7 are subject to the power of the Central Government to issue directions. It confines the power of the Board under section 7 only in respect of the framing of departmental financial and accounting rules and procedure subject to the direction issued by the Central Government. This supports the argument already advanced above that section 13 does not control section 7, for had it not been so there would have been no necessity for specifically providing in section 7(g) the extent to which the Board's power under section 7 was to be subjected to any direction issued in this behalf by the Central Government. If section 13 were to control section 7, the provisions of section 7(g), quoted above, would become redundant and redundancy cannot be imputed to the Legislature.
22.Section 14 of the Ordinance confers upon the Central Government the power to make rules for carrying out the purposes of this Ordinance. This is a general provision as against the special provision contained in section 7 which concerned itself only with the determination of terms and conditions of service and nothing else. The maxim, "Generalia specialibus non derogant" applies with full force to the situation and the special provision, i,e,, section 7, will override the general provision, i,e,, section 14.
23.Whether promotion is a part of the terms and conditions of service of a person in the service of Pakistan, has been the subject-matter of judicial pronouncement in several cases, the first of them being Government of West Pakistan v. Fida Muhammad Khan. It was held in that case that chances of promotion are not part of the terms and conditions of a Government servant, but the context in which it was held was entirely different. The Establishment of West Pakistan Act, 1955, section 8(3) provided that "terms and conditions admissible to him immediately before the 10th of August 1955" were to be protected. Interpreting this expression "in relation to the case of Fida Muhammad Khan" the Court held that "by the use of the words 'admissible to him immediately before' the prescribed date, the Legislature made it clear that the terms and conditions 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 prospects of 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". The Supreme Court disapproved the opinion of this Court construing the expression `terms and conditions admissible to (him) immediately before the 10th day of August 1955' as if they included his chances of promotion into a different and much higher service".
24.A further factor in that case was that the petitioner was aspiring "for the post of an Assistant Secretary and beyond that to the post of Under Secretary" which under the rules could be earned only by "distinguished merit and ability." The Supreme Court thus did not hold that promotion was not a part of the terms and conditions of service and it only translated the situation into words in the light of the extremely limited scope of the expression contained in section 8(3) of the Establishment of West Pakistan Act, 1955, quoted above. Their Lordships were further influenced by the fact that the petitioner in that case, who was only a Superintendent, could not claim promotion to the post of Assistant Secretary and after that to Under Secretary only on the basis of a selection but that under rules he could earn it only by "distinguished merit and ability". Their Lordships naturally found that in his case chances of promotion to the post of Under Secretary were "so far- fetched" and based upon such qualifications that they could not be construed as a part of the terms and conditions of his service. Their Lordships did not make any general observations which could he interpreted as absolutely excluding chances of promotion from the terms and conditions8 of services of an employee.
25.This viewpoint also finds support from the following observation made by S. A. Rahman, J. (as he then was) in Province of West Pakistan v. Muhammad Akhtar Qureshi and others.
"The expression is one which has the effect of strict limitation in relation to a given time and avoids anything in the nature of future potentiality in regard to the terms and conditions of service. It must, therefore, be understood in a narrow and limited sense to refer to concrete matters relating to the actual service of the person concerned, on the specified date."
26. The prospects of promotion with which the petitioner was concerned do not fall into the strictly circumscribed sphere of Fida Muhammad Khan's case and are, as they ordinarily should be, a part of his terms and conditions of service because the post of Assistant Works Manager was the next higher post to which the petitioner was entitled to be promoted under the terms and conditions of his service if he was found to be the fittest person for the job. Article 98(3)(b) of the Constitution would, thus, be a bar to the maintainability of this petition on the ground that the petitioner is asking for the enforcement of a term and condition of service which is not specified in the Constitution. PLD 1968 SC 292 PLD 1960 SC 45 PLD 1960 SC 81 PLD 1960 SC 8 PLD 1960 SC 45 PLD 1962 SC 428 PLD 1970 SC 146 PLD 1960 SC 45 PLD 1962 SC 428