1. S. A. RAHMAN, J.-A writ petition filed before the Karachi Bench of the High Court of West Pakistan by Wasi Ahmad Rizvi, the appellant in this case, under the provisions of the late Constitution of 1956, read with the Laws (Continuance in Force) Order, 1958, was dismissed by order, dated the 23rd of September 1964. The appellant had asked for a writ, in respect of his service rights, basing his claim on rule 8(a) of the Central (Non--Gazetted) Civil Services (Revision of Pay) Rules, 1949, which, according to him, had been violated by the Naval Headquarters; Karachi, under which he was serving as an "A" Grade Clerk. He had, according to him, been selected for promotion to the post of an Assistant, but his department was denying him the promotion as well as the scale of pay attached to the post of Assistant, contrary to the provisions of the rule.
2. The High Court took the view that rule 8(a) did not cover the case of the appellant, as he was not in a "unified scale of pay", as defined in rule 2(g) of the above-mentioned rules and that his case was not governed by the Government of India Finance Department Office Memorandum No. F. 44(12)- W/44, dated the 19th of August 1944, which was necessary to attract the rule. On the contrary, the High Court held, his case fell under a subsequent memorandum issued by the War Department of the Government of India on the 31st of August 1944.
3. Special leave to appeal was granted to Wasi Ahmad Rizvi, as it was contended by him that the High Court had failed to notice that rule 8(a) concerned not only promotion but also the revised pay-scale to which the appellant was entitled, after having been selected for promotion to the past of Assistant. The Department had, in fact, fixed him in a lower scale of pay, by the Naval Headquarters Draft Daily Order, Part II, dated the 16th of August 1963, during the pendency of his writ petition in the High Court, in pursuance of certain conditions which, according to the appellant, were illegally introduced by the Department and imposed on rule 8(a). It was represented by him that he was entitled at least to be treated as an "A" Grade Clerk even if he did not elect to retain his existing scale of pay under an option allowed to him. It was felt that the High Court had not fully considered the various instructions, issued by the Ministry of Finance from time to time, in respect of Civilians borne on the Defence Establishment. Even if it was correctly held that the appellant was not entitled to promotion to the post of Assistant, in the absence of a vacancy in the cadre of Assistants, the question of fixation of pay in the proper pay-scale had not received due attention in the High Court.
4. The history of the service of the appellant is that he was appointed as a "B" Grade Clerk, with effect from the 6th of March 1945, by the then Government of India and posted in General Headquarters, which was, according to the appellant, an attached department of the then War Department (Now Ministry of Defence). The appellant opted for Pakistan at the time of Independence and was posted as a "B" Grade Clerk in the Naval Headquarters at Karachi. By an order, passed in 1952, he was promoted as "A" Grade Clerk, with effect from the 1st of January 1949. In 1952, he was also approved for appointment as an Assistant, by the Departmental Promotion Committee, with effect from the Ist of January 1949.
5. On the 1st of April 1949, the Governor-General, in exercise of the powers conferred by subsection (2) of section 241 of the Government of India Act, 1935, as adopted by the Pakistan Provisional Constitutional Order, 1947, was pleased to make rules, called the Central (Non-Gazetted) Civil Services (Revision of Pay) Rules, 1949. These Rules were to take effect from the 1st of January 1949, and were to apply to all civilian employees of the Central Government, including railway employees and civilians paid from Defence Estimates, as was declared by rule 18. Rules 5 to 7 relate to the fixation of initial pay of certain classes of Government servants. These are followed by rule 8, the relevant part of which is reproduced below:- "Notwithstanding anything contained in rules 5 to 7 above, in the case of a Government servant holding a post on the Unified Scale of pay, the following provisions will apply:-
(a) `A' Grade clerks in the Secretariat and Attached Offices will be allowed to continue in the `A'
6. Grade scale, until they are approved by the Departmental Promotion Committee, for employment as Assistants. Those selected will be treated as if they have been promoted to the scale prescribed for Assistants and their pay fixed at the next stage above their present pay, from 1st January 1949.
7. For this purpose those who have already been approved by the Departmental Promotion Com-- mittee for retention as Assistants, will be deemed to have qualified for promotion as Assistants in the prescribed scale.
8. Those who are not selected will be brought on to the scale of Upper Division Clerk, namely, Rs. 85- 6-115-EB-15/2-175-EB--10-225 and their pay fixed at the stage next above their present pay from the same date. They will, however, be eligible for consideration on one further occasion for promotion to the grade of assistants."
9. The learned Attorney-General, who appeared for the respondent, contended before us that this rule was not applicable to the case of the appellant, on two grounds. He conceded that the appellant was in a "unified scale of pay", but he suggested that the expression "unified scale", occurring in rule 8(a) was confined to "unified scale" as defined in rule 2(g) of the Rules, reading as follows:- "2. In these rules unless there is anything repugnant in the subject or context:
(g) `Unified scale' means a scale of pay applicable to a clerical post in pursuance of the Government of India, Finance Department Office Memorandum No. F. 44(12)-W/44, dated the 19th August 1944."
10. It is maintained that the unified scale of pay, which the appellant enjoyed, was not made applicable to him in pursuance of the Finance Department Memorandum, referred to in rule 2(g).
11. Secondly, it is urged that to qualify for application of rule 8(a), the appellant had to belong to an "Attached Office or Depart--ment". It is alleged that Naval Headquarters, under which the appellant is employed, does not fall within that category. We proceed to examine these two contentions.
12. We will take up the second point first for consideration. The learned Attorney-General relied on Rules of Business, 1962, which define "Attached Department" as a Department "which has direct relations with a division and has been declared as such by Government". With reference to rule 3(5), Schedule III of the Rules gives a list of "Attached Departments, declared as such by Government". Only two such Departments are mentioned in respect of the Defence Department, namely, the Department of Civil Aviation and Tourism and the Department of Cypher---Naval Headquarters does not find a place in this list. The learned Attorney-General wants to draw the inference from this fact that the appellant's Department is not an "Attached Depart--ment", and consequently, in terms, rule 8(a) is not attracted to his case. This may be, however, the position under the Rules of Business, 1962, but we have to discover the position as it obtained at the time that the appellant was approved for promotion to the post of Assistant in 1952.
13. The appellant has drawn our attention to p. 28 of the Administrative Directory of the Government of Pakistan, issued by the Cabinet Secretariat on the 1st of January 1950, where an entry shows "Naval Headquarters" as one of the "Attached Departments". Earlier still, in a Government of India publication of the year 1937, called "Ministerial Establishment (Recruitment, Promotion and Seniority) Rules", at p. 11 appears Appendix I. Under the sub-heading "Attached Offices" are mentioned therein offices of the Army and Royal Air Force Headquarters [excluding contracts directorate and 2/3:of the staff recruited from Arsenals (Indian Army Ordinance Corps) in the office of the A. D. O. S. (Provision)]. In the Compendium of Naval Instructions, 1942-1962, Vol. III, of the Pakistan Navy at p. 96, under the heading "Schedule for Attached and Subordinate Offices of the Ministry of Defence of Pakistan", Naval Head--quarters is mentioned. It is not claimed on behalf of the respondent that the Naval Headquarters is a subordinate office of the Ministry of Defence. In another publication of the "Efficiency and O. & M. Wing Establishment Division" apparently issued in 1964, under the heading "Ministry of Defence" at p. 7, the Attached Departments shown are:
(1) General Headquarters;
(2) Naval Headquarters;
(3) Air Headquarters ;
(4) Civil Aviation Department; and
(5) Department of Cypher.
14. 1n respect of the first three, however, there is a foot-note saying "status not defined". The appellant explained that this was because in respect of these Headquarters, there was a proposal to give them a higher status than that of Attached Departments and the matter was under negotiation. In the Civil List of Class I officers under the Government of Pakistan, dated the 1st of January 1961, the "Armed Forces Headquarters" are shown as "Attached Department" of the Ministry of Defence. The Armed Forces Headquarters include the Naval Headquarters. The Rules of Business, published in 1950 and 1957 contained no Schedule of "Attached Departments".
15. It appears to us, after a survey of these documents, that the appellant's assertion, that he belonged to an Attached Department of the Defence Division of the Central Government, rests on a solid foundation. Either the two Attached Department of the Defence Division, mentioned in the 1962 Rules of Business, have been specified for the purpose of those rules only, or alternatively, earlier than the promulgation of these rules, the position was different. Despite these rules of 1962, however, even in the 1964 publication of the Establishment Division, there is a mention of Naval Headquarters as an Attached Department. We are, therefore, unable to agree with the learned Attorney-- General that the appellant did not belong to an Attached Depart--ment or office, at the relevant time.
16. The next question that falls for determination is whether the unified scale of pay, which the appellant enjoyed, had been made available to him, in pursuance of Finance Department Memorandum, dated the 19th of August 1944, or not. This Memorandum appears at p. 18 of the payer book. It starts by saying that in order to meet the difficulties created by the war time expansion of their offices. "the Government of India have had under consideration the question of setting up a central agency to recruit personnel for such offices and of introducing a unified sale of pay for the temporary ministerial staff recruited to posts for which the minimum qualification is Matriculation or a higher examination." On the first question, it was stated that orders would be issued separately by the Home Department. With regard to the second question, it was stated in this Memorandum that it had been decided that until further orders "there shall be a common scale of pay Re. 40-5-t0-EB-5-100-EB--10-2C0 for the temporary clerical staff recruited after September 1944, in the offices of the Central Government in centres specified by Government from time to time". It is mentioned that there shall be three Grades A, B and C to which recruitment would be made and this would correspond to the present classification of clerical posts, according to their relative responsibilities. The initial pay on the new scale, that is, the point of entry into it, would be fixed in accordance with the Grade to which a person is recruited. There would be different points of entry for each grade in the various centres, a list of which was appended to the Memorandum, having regard to local conditions, but the maximum pay of these three Grades A, B and C would be Rs. 200, Rs. 100 and Rs. 60, respectively. In so far as the Government of India and its attached offices were concerned, Grade A would correspond to the existing Grade of Assistants and Grade B to the existing third Division. No direct appoint--ment was to be made in the second Division hereafter and any vacancy, occurring therein, was directed to be filled either in Grade A or in Grade B. The question was to be settled by the Department or the Office concerned in consultation with the Finance Department. In subordinate offices, Grade B and Grade C posts correspond to the Upper and Lower or Routine Division posts respectively. All persons appointed on the new scale of pay and, all persons who elected this scale would, on promotion from one grade to another, be allowed only the corresponding grade of pay in this scale. Then there were certain other instructions given which, inter alia, included the decision that permanent employees in service should be given the option to elect the new unified scale for the period it was in force. When this scale ceased to be in force, each person, who made the election, would, as a special case, be allowed to count service in the common scale for increment in his existing scale.
17. The contention on behalf of the respondent is that the appellant is not covered by this letter, but by the War Depart--ment letter, dated the 31st of August 1944, appearing at p. 23 et seq of the paper book. This document, however, appears to follow very closely the lines of the Finance Department Memo--randum, except for the variation that the common scale of pay, mentioned is Rs. 60-5- 100-EB-10-200 for the temporary clerical staff recruited after the 1st September 1944, in the Defence Headquarters, in centres, specified by Government from time to time. A list of centres in which it had been decided to introduce the new scale was attached. As far as the Defence Headquarters was concerned, it was stated that there would be two grades only, A and B, to which recruitment would be made and these would correspond to the present classification of clerical posts, according to their relative responsibilities. Initial pay on the new scale, that is, the point of entry into it, would be fixed in accordance with the grade to which a person was recruited. There would be different points of entry for each grade in the various centres, as indicated in the list attached, having regard to the local conditions, but the maximum pay of the two Grades A and B would be Rs. 200 and 100, respectively. Grade A would correspond to the existing Grade IACC/U. D. Clerks and Grade B to the existing IACC/L. D. Clerks. All persons who elected this scale would, on promotion from one grade to another, be allowed only the corresponding grade pay in this scale. The instructions contained in this document are expressed in language almost identical to that of the Finance Department Memorandum, except that the instructions therein contained seem .To have been adapted to the situation in the Defence Department which apparently had to deal with only two grades. The lowest grade contemplated by the Finance Depart--ment Memorandum, of Rs.
18. 45-60, did not apparently exist in the Defence Department and that necessitated the variation in the scale mentioned. The argument raised by the learned Attorney --General, that this document, appearing at p. 23 et seq, although parallel to the document issued by the Finance Department, was an independent decision, does not appear to be correct. The language of the two documents is almost identical, except for the variation indicated above. There is thus a good deal of force in the suggestion made on behalf of the appellant that the War Department were merely implementing the Finance Department Memorandum with the necessary variations to suit their require--ments.
19. The learned Attorney-General invited our attention to the Ministry of Defence letter No. 0122/828/AOK, dated the 10th May 1952, appearing at p. 167 of the paper book. This says that in continuation of the Ministry of Defence letter, dated the 16th of April 1949, which appears at p. 51 of the paper book and deals with `B' Grade clerks in receipt of PAAC rates of pay, instructions were being conveyed "in amplification of the orders contained in the Ministry of Finance Notification No. F. 1(5)--PC-1/49, dated the 1st April 1949, in so far as `A' Grade clerks of Armed Forces Headquarters were concerned". The reference to the Ministry of Finance Notification is clearly to the rules known as the Central (Non-Gazetted) Civil Services (Revision of Pay) Rules, 1949, in respect of "para. 8(a), by which reference is intended to rule 8(a). It is stated at p. 167 that `A' Grade clerks of A. F. H. Q. Who had been declared fit for appointment as Assistants by the Department Promotion Board, and not absorbed in the prescribed scale for Assistants, on 1-1-49, due to non-availability of vacancies, would have the reserved right to continue in 'A' Grade until they reach the maximum. This, according to the learned Attorney-General was the first time that the Defence Department dealt with the case of --A' grade clerks under them. It was found difficult to promote all of them to posts of Assistants, it is explained, as the sanctioned number of Assistants was only 223, whereas the number of Upper Division Clerks/PACC and A grade clerks in the Department, who had all been approved by the Departmental Promotion Committee for appointment as Assistants, was 729. It was, therefore, impossible to fix all of them in the Assistant's posts. The difficulty appears to have been created by the Departmental Promotion Committee, approving for promotion, by an omnibus order, all the 729 clerks in question, without regard to the number of vacancies of Assistants available. It is only when confronted with this situation that the letter at p. 167 of the paper book seems to have been issued, in 1952. The appellant's contention is that this was an afterthought and detracted from his rights, accruing to him, under the Finance Department Memo--randum of 19th of August 1944, which had been, in fact, imple--mented by the Defence Department by its own letter, dated the 31st August 1944. In any event, it must be made clear that the appellant no longer insists before us that he was entitled to get the post of an Assistant in view of the fact that no vacancy was available for him in that cadre. He, however, contends that under rule 8(a) of the above-mentioned Rules, which applied to him, apart from the question of promotion to the Assistant's post, he had the right to be fixed up in the Assistant's scale of pay under the rule, even if he could not be given the post of an Assistant. The terms of the rules do lend themselves to the construction contended for by the appellant.
20. It was argued, on behalf of the respondent, that the appellant by giving his option, printed at p. 152 of the paper book, for the existing scale of `A' Grade Clerk, namely, Rs. 100-200, on the 8 of August 1952, recognised that he was only entitled to the scale of 'A' grade clerks and not that of an Assistant. But this exercise of option took place before he was declared fit to be Assistant, by orderth dated the 20th of August 1952. The option, in terms, also says that this was to be effective "until declared or promoted Assistants or reached the maximum of the scale". It is obvious that by then he had not yet been declared fit for promotion or promoted as Assistant. This option, therefore, is ineffective for the argument raised that the appellant admitted that he could not claim the Assistant's grade.
21. It seems true that on the 31st of December 1962, the appellant was offered an Assistant's post at Peshawar, but he represented, owing to personal reasons, that he should not be sent there, by letter, dated the 8th January 1963, appearing at p. 184 of the paper book, and on compassionate grounds, reques--ted that he may be allowed to serve in the Naval Headquarters at Karachi and be absorbed against any vacancy which may arise in future, in that office. This may, in fact, disentitle him to claim the post of an Assistant-in view of his own refusal to accept such a post outside Karachi, but could have no bearing on the question whether he was entitled to be fixed in the Assistant's grade, without occupying an Assistant's post, under rule 8(a), in view of his having been approved for promotion.
22. From the above discussion it would seem to follow that, on the merits, the appellant had a case for consideration. He, however, approached the High Court of West Pakistan, invoking its equitable writ jurisdiction, and one of the defences raised, on behalf of the respondent in the High Court, was that the application was a belated one and therefore deserved to be dismissed on account of laches.
23. There appears to be substance in this objection. In his writ petition, which was filed on the 20th of April 1962, the appellant prayed for quashing of the orders contained in the letters, dated the 6th April 1955, and 14th of May 1957, in so far as they adversely affected `A' Grade Clerks and were in contravention of rule 8(a) of the Central (Non---Gazetted) Civil Services (Revision of Pay) Rules, 1949. The last representation that he apparently made to Government was on the 31st of July 1961.
24. Why he went on making representations till then, against orders passed in 1955 and 1957, is not quite clear from the papers on the record. The dates of his representations, if any, are also not known. There was a good deal of unexplained delay in approaching the High Court in this case, on the part of the appellant. The High Court could have, therefore, taken note of this fact and based its refusal to grant relief on this ground alone. This aspect was not noticed in the High Court whose judgment proceeds on other grounds. It is evident that to interfere in 1967, with the Government orders, passed in 1955 and 1957, will certainly cause a serious upset in arrangements made in the intervening long period of time and create a disturbance which may not be repairable. We must therefore, decline to issue any writ in this case to grant relief to the appellant. The appeal is, consequently, dismissed, but in l view of the circumstances of this case, we make no order as to costs. Although the appeal fails on the ground of laches, it will be open to Government to reconsider the case of the appellant in the light of the interpretation given by this Court.