' This is a constitutional petition filed by Muhammad Ishaq, President, Octroi Employees Union (Registered), Gujrat, and 101 other members of that Union, petitioner Nos, 1 to 102, for a mandamus to issue to the respondents directing them to enforce the Punjab Government's circular letters, dated 21-5-1972 and 18-7-1972 and to have the order -of the Punjab Government, dated 3-7-1976 set aside and declared as having no legal effect upon the rights of the petitioners.
2. The brief facts of the case are that the petitioners, who are employees of the Municipal, Committee, Gujrat are connected with the Octroi Posts under the jurisdiction of the said Municipal Committee. In 1968, the West Pakistan Local Bodies Employees Federation made a representation to the then Government of West Pakistan requesting inter alia that overtime allowance may be sanctioned to employees of Local Bodies performing duties over eight hours per day. However, the Punjab Government, vide its letter No, S.0.11(L.G.)-3(479)/68, dated 10-5-1968 addressed to all the Commissioners of the Divisions, advised that the Government had decided that all Local Bodies in their respective jurisdictions should be asked to stick to their duty timings. It is alleged on behalf of the petitioners that this direction could not be applied by the Municipal Committee, Gujrat, on account of its financial difficulty and a large portion of the staff connected with Octroi Posts continued to perform duties in excess of eight hours per day. It is further submitted that another representation was made by the petitioners to the Government for grant of overtime and the Punjab Government again on 21-3-1972 reiterated that its earlier decision of 10-5-1968 should be enforced, but made a concession that where the Local Bodies were unable to observe the prescribed working hours for their staff, they could make necessary budget provisions for the payment of overtime allowance to the staff which was necessarily required to work after the prescribed working hours and in respect of which staff no alternative arrangement was possible. It appears that on the strength of the Punjab Government's letter, dated 21-3-1972, the Commissioner, Rawalpindi Division, on 16-6-1972 wrote. To the Deputy Commissioner, Gujrat, to take necessary action in respect of staff working in the Local Bodies working beyond the normal working hours in respect of payment of overtime allowance to them. Accordingly, on 5-7-1972, the Administrator, Municipal Committee, Gujrat, addressed the Deputy Commissioner to approach the Punjab Government for sanction for the payment of overtime allowance to the Octroi Staff of his Municipal Committee for the overtime put in by them from 10-5-1968 to 6-3-1972. On 18-9-1972, the Administrator Municipal Committee, Gujrat, also intimated to the Deputy Commissioner, Gujrat, that the total amount of the overtime payable to the octroi staff for the said period was Rs,1,58,881.
On further information being called for by the Punjab Government as regards the names and designation of the employees claiming the same and the amount of overtime allowance 'payable to each and whether the Municipal Committee had necessary funds and was prepared to meet the liability, the said informations was supplied on 26-5-1976 by the Administrator, Municipal Committee, Gujrat, to the Secretary to the Government of the Punjab, Local Government and Social Welfare Department, wherein it was clearly mentioned that the financial position of the Committee was sound. However, on 3-7-1976, the Punjab Government intimated to the Administrator, Municipal Committee, Gujrat, that the payments of arrears of overtime allowance was against the existing policy of the Government and that it was not possible to grant the sanction. Being aggrieved by the said decision, the petitioners made a number of representations to the Government, but, not getting any response, filed a constitutional petition in the High Court for the reliefs, as stated in pars. 1, which is now before me for disposal.
3. On behalf of the petitioners it is submitted that under the Punjab Government's letter, dated 21-3- 1972, the petitioners were entitled to the payment of overtime for the retrospective period 10-5-1968 to 7-3-1972 and that the Provincial Government having themselves invited information in respect of the demand of the Municipal Committee for the sanction of the total amount, could not later turn round and disclaim liability for payment. It is further submitted that the Provincial Government, vide its letter S.O. VI(LG)-3(42)/71, dated 28-2-1972 addressed to the Deputy Commissioner, Sheikhupura, had accepted the claim of the octroi staff of Town Committee, Chuharkana, for overtime payment in respect of the period 10-5-1968 to 10-4-1971, which payment was sanctioned and that the Provincial Government themselves having interpreted their letter of 10-5-1968 as having rretrospective effect, could not turn round and refuse sanction for the payment of the same overtime allowance to the octroi staff of the Municipal Committee, Gujrat, for the period 10-5-1968 to 7-3-1972.
4. On behalf of the Punjab Government and the Municipal Committee, Gujrat, it is submitted that no overtime allowance was payable at all to employees of Local Bodies prior to 21-3-1972 and that what was mentioned in the letter of 21-3-1972 was that employees should stick to their duty hours, but in special cases where Local Bodies were unable to observe the prescribed working hours, that budgetary provisions could be made for the staff working overtime. It is submitted that the said letter was prospective and the overtime allowance sanctioned by the Punjab Government therein was stopped, vide subsequent letter, dated 2-11-1972 and that though the octroi staff were entitled to get arrears of overtime allowance, if any due for the period 21-3-1972 to 2-11-1972, the said letter of the Government, dated 21-3-1972 gave no right to the employees to claim arrears with respect to any period prior to 21-3-1972. It is further submitted that by letter, dated 21-7-1973, the Punjab Government for the first time laid down a scheme for the payment of overtime by Local Bodies to their octroi staff, but also clearly intimated that Local Bodies would not from that day pay any arrears of allowance to their octroi staff. It is admitted that some Local Bodies, like the Municipal Committees of Chuharkana, Sheikhupura and Nankana, had made payments of arrears of overtime allowance to the octroi staff for periods prior to 21-7-1973, the date when the aforesaid policy letter had issued, but since no sanction was granted in the petitioners' case earlier than 21- 7-1973, no sanction could now be given after the said date, as it would be against the Government's policy direction.
5. Before dealing with the case I would like to mention that the representative of the Provincial Government, though called upon by the earlier order of this Court to supply copies of all letters referred to in the present petition, continuously refused to do so, on the ground that the file was not available and that the same had not been received during transfer of the subject from one section to the other. It appears that for certain unknown reasons the department was deliberately trying to withhold the production of the file for the Court's inspection, as excuses which were presented for its non-production were both lame and absurd. However, I had to summon the file dealing with overtime paid to the octroi staff from the office of the Deputy Commissioner, Sheikhupura. The same was produced and a number of letters relative to the subject were taken on the file, after securing copies thereof from the said office, duly certified by the Deputy Commissioner, Sheikhupura, personally himself.
6. I have given my anxious consideration to this case. What appears from the totality of the documents now taken on the record is that no overtime was initially being paid by Local Bodies to their staff working in octroi posts. It appears that a good portion of the staff were performing duties in excess of eight hours and in 1968 the West Pakistan Local Bodies Employees' Federation also made a representation to the then West Pakistan Government for payment of overtime allowance to all members of the staff attached with Local Bodies who had performed duties, in excess of eight hours. On 10-5-1968, the then West Pakistan Government, in reply to the said representation, intimated to all Commissioners that all employees should be compelled to stick to their times of duty. In short, the representation for overtime was turned down. It appears that this was not possible as the octroi posts were understaffed. A number of representations were being made by the local bodies to their respective Deputy Commissioners for payment of overtime to such staff working beyond the duty hours, which requests were forwarded to the Punjab Government for sanction. In respect of such requests forwarded by the Deputy Commissioner, Sheikhupura, on 29- 7-1971, the Secretary to the Local Government, Punjab, called for details of expenditure from the Deputy Commissioner, Sheikhupura, with regard to the staff working in octroi posts claiming such overtime. Pursuant to this request, the Deputy Commissioner, Sheikhupura, sent up the claims of the Town Committees, Chuharkana and Sharaqpur. On 28-2-1972 and 2-3-1972, the Secretary, Local Government Department, sanctioned overtime allowance claimed by the staff working in the octroi posts under the Town Committees of Chuharkana and Sharaqpur, respectively. On 21-3-1973, the Provincial Government again addressed the Deputy Commissioners in the Punjab, adverting to its letter of 10-5-1968 and pointed out that it had been represented to them by various unions of the Local Bodies Employees in the Punjab that they were being compelled to work after the prescribed working hours and no overtime allowance was being paid to them. The letter then stated that it took a serious view of the non-compliance by the Local Bodies of their instructions and that the same should be brought to their attention for strict compliance. The letter finally stated that in case the Local Bodies were unable to prescribe the working hours for all the staff, they should make necessary budgetary provisions for the payment of overtime allowance to the staff which was necessarily required to work after the prescribed working hours and in respect of whom no alternative arrangement was possible: Since a large number of Local Bodies, due to their weak financial position, were not able to employ large staff, still found themselves in the predicament of working their staff overtime beyond the normal working hours. In the light of the said letter of the Provincial Government, dated 21-3-1972, they began making necessary budgetary provisions for their staff working overtime, which they submitted to their respective Deputy Commissioners for necessary sanction. These letters in turn were submitted to the Secretary, Local Government, Punjab, for necessary approval. The Administrator, Municipal Committee, Gujrat, also by his letter, dated 5-7-1972, recommended payment of overtime for the period 10-5-1968 to 6-3- 1972, which case was sent to the Secretary, Local Government Department, for necessary approval.
A large number of such cases were now before the Provincial Government awaiting approval. One of them was of the octroi staff of. Town Committee Qila Didar Singh from 10-5-1968 to 30-6-1970. In connection with this case, the Secretary, Local Government Department, Punjab, on 18-7-1982, addressed a letter to the Commissioner, Lahore Division, Lahore, reading as follows:-- "Your attention is invited to this Department's circular letter No, SOVI (LG)-3-42/71, dated 21-3-1972 in which it has clearly been stated that the Local Bodies should stick to the duty timings of 8 hours so that no overtime allowance is required to be paid for duties performed over 8 hours. It has further been stated that in case the Local Bodies are unable to observe the prescribed working hours for all the staff, then they should make necessary budget provisions for the payment of overtime allowance to the staff which is necessarily required to work after prescribed working hours and no alternative arrangement is possible. You are therefore, requested to decide all such cases in the light of the aforesaid instructions. As regards the Octroi Inspectors, they are also eligible to get overtime provided they had been performing duty after prescribed working hours since the issue of Government's instructions, dated 10-5-1968, and the local bodies concerned have got necessary record to show that the staff concerned was actually required to work beyond the prescribed working hours. The rate of overtime allowance may also be decided by you in consultation with the Local Bodies concerned. Necessary provisions may also be made by the Local Bodies concerned for the payment of arrears of overtime allowance to the staff concerned irrespective of the fact whether any additional posts existed with the Local Bodies or not. Necessary instructions may kindly be issued accordingly to all the Local Bodies in your Division to finalize all such pending cases in the light of these instructions under intimation to this Department."
' It appears that by this letter the Provincial Government itself interpreted its earlier letter of 21-3- 1972 as having retrospective effect and enabling Local Bodies to pay overtime retrospectively to its staff who had performed duties beyond the normal working hours prior to 21-4-1972. However, all of a sudden on 2-11-1972, the Provincial Government stopped payment of all overtime by Local Bodies to their staff on the ground that it was considering an over-all policy with regard to the payment of overtime and the mode and manner thereof. Ultimately, on 21-7-1973, the Provincial Government fixed a scale regarding payment of overtime to the octroi staff attached with Local Bodies and also directed through the said letter that they should not pay arrears of overtime allowance to the octroi staff. Due to the letters of 18-7-1972 and 2-11-1972, cases which were being processed for payment of overtime relating to the period prior to 21-3-1972 were thereafter not attended to. This caused a resentment. The petitioners continued to press their claims. On 15-5-1976, the Secretary, Local Government, Punjab, asked the Administrator, Municipal Committee, Gujrat, to furnish the names and designation of the octroi employees claiming overtime and the amounts payable to each and whether the Municipal Committee had necessary funds and was prepared to meet the liability. On 26-4-1976, the said information was supplied, wherein it was also mentioned that the financial position of the Municipal Committee was sound. However, on 3-7-1976, the Provincial Government turned down the claim on the ground that it was against the existing policy of the Government and that it was not possible to grant the sanction. It is contended on behalf of the Government that the Provincial Government's letter of 21-3-1972 was prospective and that even the overtime admissible under the said letter from 21-3-1972 was stopped on 2-11-1972, vide Provincial Government's letter of even date, and that, therefore, the petitioners are not entitled to any overtime payment for any period prior to 21-2-1972. I am surprised at such an assertion. The Provincial Government itself on 18-7-1972 had interpreted its letter. Of 21-3-1972 as having retrospective effect and giving Local Bodies the right to make budgetary provisions for its staff that had worked overtime from 10-5-1968 to 21-3-1972. Having itself given the said interpretation and having itself passed a number of orders sanctioning the grant of payment of overtime allowance to the octroi staff working with the different Local Bodies, such as in respect of Town Committees of Chuharkana, Sharaqpur and Nankana Sahib, and many more, it could not later by letters withdraw the concession granted. No sooner the letters of 21-3-1972 and 17-7-1972 were issued by the Provincial Government, a vested right accrued to the octroi staff of Local Bodies to claim the said amounts, and to the Local Bodies to make necessary budgetary provisions in respect of payment thereof. The said letters were issued in precise terms and were applicable with particularity to the octroi staff of the Local Bodies and thus had the force of statutory directions as the letters were issued by the Provincial Government, which was the Controlling authority for all Local Bodies. If any authority is required for this view, Pakistan v. Abdul Hamid PLD 1961 SC 105 and Province of West Pakistan v. Din Muhammad PLD 1964 SC 21 may be referred. The subsequent letters of the Provincial Government withdrawing the concession are male fide and cannot take away a vested right which accrued to the petitioners earlier. All letters or orders of the Provincial Government after 18-7-1972 denying the petitioners their overtime claim are thus male fide and without lawful authority.
7. For the foregoing reasons, this petition is accepted and a writ of mandamus is issued to the respondents compelling them to enforce the Punjab Government's letter No, S.O.V1 (LG)/3-42/71, dated 21-3-1972 and letter No, S.O. VI (LG)/3-42/71, dated 18-7-1972 in so far as it permits the petitioners to claim overtime for the period 10-5-1968 to 7-3-1972, as found due to them, and all subsequent letters of the Provincial Government, including that, dated 2-11-1972, 21-7-1973 and 3-7- 1976, which purport to reject such claims, are hereby declared to have been passed without lawful authority and as having no legal effect on the petitioners' claims.
8. The petitioners shall be entitled to their costs.