MUHAMMAD HALEEM, J. -The petitioner has impugned the orders dated 27th March 1969 (Annexure Q), 4th March 1970 (Annexure V) and 4th July 1970 (Annexure X-1).
2. The facts which have led to the filing of this petition are that in March 1945 the petitioner was, appointed as B. Grade clerk at General Headquarters, New Delhi, and on partition of India opted for service in Pakistan and was posted in the same capacity at Naval Headquarters, Karachi. He was promoted as 'A' Grade Clerk on 1st January 1949 and drew salary in the unified scale of Rs. 100-10-
200. On 1st April 1949 the Governor-General notified the Central (Non-Gazetted) Civil Services (Revision of Pay) Rules, 1949, hereinafter called as the rules, which were effective as from 1st January 1949. On 25th April 1949, a circular letter was issued by the Accountant-General, Pakistan Revenues, for the implementation of the rules and again the Ministry of Finance, Government of Pakistan vide memo. No. 2990-Est/49, dated 23rd May 1949 intimated that the Government had approved the payment of pay to the Government personnel at the revised rates sanctioned by the Government on the recommendations of the Pakistan Pay Commission. Vide daily order, part II, dated 20th August 1952, issued by the Naval Headquarters, the petitioner was declared fit for promotion to Assistant on 1st January 1949. The entry against his name stands as under :-
3. The case of the petitioner is that upon the declaration of his eligibility to promotion he was entitled to the benefit of rule 8(a) of the rules and his pay should have been fixed in the scale prescribed for the Assistants. According to the petitioner, rule 8(a) riot only applied to those who were promoted to the grade of Assistants but also to those who were eligible for being appointed as such. Rule 8(a) reads as under :- "8. 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 Officers will be allowed to continue in the 'A'
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.
For this purpose those who have already been approved by the Departmental Promotion Committee for retention as Assistants, will be deemed to have qualified for promotion as Assistants in the prescribed scale.
Those who are 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."
The petitioner's pay was however not fixed in that scale and he, therefore, made representations to the authorities but having failed to get any redress from them he filed Petition No. 332/62 in the erstwhile High Court of West Pakistan, Karachi Bench, and amongst one of the reliefs the petitioner claimed that his pay should be ordered to be fixed in the prescribed scale of pay, viz., Rs. 160-10- 250-EB-15-400 with effect from 1st January 1959 and also to be entitled to all the benefits of that scale. The Government in that petition took the stand that before the petitioner could claim the benefit of rule 8(a) he should establish that he held a post in the "unified scales of pay" as defined by rule 2(g) of the rules. In this context, two office memos were produced, one dated 19th August 1944 and the other dated 31st August 1944 issued by the Government of India and it was urged that the petitioner could only be entitled to the benefit of rule 8(a) if his case was covered by the memo.
Dated 19th August 1944. The High Court considered the two oboe memos. And held that his case was not covered by the office memo. Dated 19th August 1944, and while denying to him this relief reached the conclusion that "the petitioner being clerical personnel employed in Defence Headquarters was not entitled to take advantage of rule 8(a)". It also held that the Defence Department adapted rule 8(a) in some modified form and this was evident by its letters dated 16th April 1949 and 10th May 1962 as the number of eligible candidates for promotion to Assistants were 729 white the available vacancies were only 223 and therefore, rule 81a1 had no application to the case of the petitioner. In the end it held as under :- "The petitioner himself has to blame if he has not been promoted as an Assistant in the Department."
This conclusion was on the premise that while officiating as an Assistant at Naval Headquarters, Karachi, he was transferred against a vacancy of Assistant to Peshawar but he declined to go from Karachi for compassionate reasons.
4. Against the dismissal of his petition the petitioner applied for leave to appeal which was granted on 11th February 1965. The Supreme Court in its judgment dated 11th July 1967 held as under :- "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."
It further held :- "From the above discussion it would seem to follow that, on the merits, the appellant had a case for consideration."
The appeal was, however, dismissed on a different ground as under :- "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 the 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 view of the circumstances of this case, we make no order as to costs. Although the appeal falls 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."
The Supreme Court while holding that rule 8(a) was applicable to the case of the petitioner declined to grant the relief on the ground of administrative inconvenience. The matter was also left open for reconsideration for the Government in the light of what was held by the Supreme Court.
After the dismissal of the appeal by the Supreme Court the petitioner received a copy of the memo. Dated 1st July 1967 on 28th August 1967, upon which he moved the Supreme Court for the review of the judgment dated 11th July 1967 relying on what was stated in it which it reproduced as hereunder :- "Subject: Confirmation of Assistants in APHQ.-Reference your No. AO/1501/133, dated the 23rd June 1967. The implementation of the judgment of the West Pakistan High Court in the two writ petitions was essential and could not have been deferred except attracting the charges of contempt of Court and, therefore, the seniority roll of Assistants had to be reconstituted in the light of the judgments in question. The reconstituted seniority roll would obviously form the basis of confirmation of Assistants as and when these are notified.
It may be stated that it may take another two months' or so before it is possible to notify the confirmation of Assistants and it is hoped that by that time, the judgment of the Supreme Court in the case of Mr. Wasi Ahmed Rizvi, Assistant, N. H. Q. May be available. In case the judgment is not announced during this period, it is regretted that it may not be possible to withhold confirmation for an indefinite period as requested by the applicant. It may, however, be stated that there will be no difficulty in reconstituting the list of confirmation later, on the authority of judgment of the Supreme Court and in that event, no material harm would be done to the applicant. In case a favourable decision in his case is given by the Court, he would accordingly be assigned appropriate seniority due to him on the seniority roll."
While dismissing the review petition on 2nd February 1968, the Supreme Court again held as under :- "If these matters had been placed before the Court before its judgment was written and announced, the point of laches would have lost some of its importance, in view of the absence of any danger of upsetting existing arrangements of ten or twelve years' duration. In that case, the Court may well have allowed the appeal, and issued the order prayed for, i.e., an order requiring that in view of his having been approved for promotion as Assistant !n 1952, the petitioner became entitled to be treated as if he had been promoted to the scale prescribed for Assistants, and to have his pay fixed at the next stage above his present pay, with effect from 1st January 1949, under rule 8 of the relevant rules, viz., the Central (Non-Gazetted Civil Services (Revision of Pay) Rules, 1949. A finding to that effect has been given in this Court's judgment, and it only remains for the authorities, in view of the admitted lack of any inconvenience in giving effect to this finding to carry out the intention of this Court's observation that it is "open to Government to reconsider the case of the appellant in the light of the interpretation given by this Court."
Again these observations left it in no doubt that what remained to be done was to implement the finding given in the judgment under review as to the applicability of rule 8(a) to the petitioner's case. The petitioner represented to the Secretary, Ministry of Defence, Government of Pakistan, Rawalpindi, vide letter dated 17th January 1968 that his pay should be refixed in the light of the judgment of the Supreme Court. This was followed by another representation dated 19th February 1968. Being unable to obtain any redress from the Government, the petitioner filed Civil Misc.
Application No. K-1/69 on 15th November 1968 in the Supreme Court for the issue of appropriate directions in the light of the observations in the above-cited judgments. The office memo. Issued by the Administrative Officer dated 3rd January 1969 was also brought to the notice of the Supreme Court but the Supreme Court dismissed the application on 27th January 1969. The petitioner then represented to the Chairman, President's Inspection Team, Cabinet Division, Rawalpindi, which representation was rejected vide communication dated 30th June 1969.
Thereafter, the petitioner represented to the Chief Administrative Officer, Ministry of Defence, Rawalpindi, vide letter dated 21st February 1969. The decision of this representation was communicated by the Administrative Officer, N. H. Q., vide letter dated 27th March 1969. According to it his case was considered by the Chief Administrative Officer who had decided to maintain status quo. Again his representation failed. The petitioner then represented to the Chief of Staff, Naval Headquarters, vide letter dated 19th May 1969. Consequent on this representation the Directorate of .Personnel Services, Establishment Section vide letter dated 11th October 1969 addressed to the Controller of Naval Accounts, Karachi; recommended the fixation of the pay of the petitioner in the scale of Rs. 160-10-250/EB-15-400 in terms of rule 8(a) and sent the necessary pro forma for verification along with his service book. That pro forma is Annexure T-1 at page 249 of the paper book. Para (viii) of this pro forma is relevant and is reproduced as under "(viii) Pay fixed at Rs. 160 p.m. In the scale of Rs. 160-10-250-EB-15-400 w,e.f. 1-1-1949 under rule 8(a)
Revision of Rules, 1949 as reproduced in P. N. I. 2/S. 49."
The Controller of Naval Accounts vide letter dated 22nd November 1969 returned the pro forma duly verified along with his service book. The duly verified pro forma is Annexure U-1 at page 253 of the paper book. This was not given effect to in view of the Communication of the Chief Administrative officer dated 4th May 1970. It reads as under:- "Subject : Re-fixation of pay of Mr. Wasi Ahmed Rizvi, Assistant ins the light of observation made by the Supreme Court.
Reference your No. AO/1501/133, dated 7-3-1970.
2. This case was discussed threadbars and the decision of the Government communicated to AO, N. H. Q. Vide our No. 0122/4850/A-4, dated 3-1-1969, was arrived at after due consideration at the appropriate level. The orders, on the subject, should, therefore, be adhered to.
3. Incidentally, it may be pointed out that it was advisable to reopen this case and refer it to the ONA without information and knowledge of the competent authority which dicided it finally."
Lastly, by another communication dated 4th July 1970 received from the Administrative Officer in response to his application dated 5th June 1970 addressed to the Vigilance Officer, Ministry of Defence, it was made clear that the Government would not modify its earlier order and that the matter be treated as closed. The petitioner therefore filed this petition to impugn the orders marked Q, V and X-1 and during the pendency of this petition, the petitioner retired from service on I st February 1972 on medical grounds.
5. Before we advert to the merits of the petition it will be necessary to reproduce the reliefs sought in this petition :- "(a) the respondent No. 3, the Administrative Officer, Naval Headquarters, Karachi, to immediately give effect to the fixation of the petitioner's pay as already done by him under Naval Headquarters letter No. AO/1501/133, dated 11th October 1969, through the pro forma attached thereto and duly verified by the Controller of Naval Accounts, Karachi by his letter No. Pay/19/Mist. X, dated 22nd November 1969, through the pro forma attached thereto by :-
(i) issuing necessary Daily Orders in Part II accordingly,
(ii) making necessary entries in petitioner's Service Book/ Records etc. And the resultant adjustment of pay etc. Due to him in accordance with the interpretation/findings of the Honourable Supreme Court under rule 8(a) of the Central (Non-Gazetted) Civil Services (Revision of Pay) Rules, 1949, as revised from time to time.
(b) the respondents Nos. 1 and 2, not to prevent and/or obstruct respondent No. 3, from giving effect to the findings of the Honourable Supreme Court as required under law and to act in aid of the Honourable Supreme Court in this matter.
(c) the respondent No. 4, to immediately cancel/withdraw his letter No. Pay/19/Misc-XI, dated 31st August 1970, so far as it goes to negate/prevent/obstruct the implementation of the fixation etc. Of the pay of the petitioner according to the interpretation finding observation and the intention of the honourable Supreme Court of Pakistan in the above-mentioned judgments and to act as required under law."
6. Having regard to the above reliefs and the subject---matter of this petition and the earlier one which concluded by the judgment of the Supreme Court at two levels, one in appeal and the other on review, it has given us anxious moments on the question as to the maintainability of this petition. The bar of constructive resjudicata as a matter of first impression appeared to come in the way but we are led to conclude from the observations of our Lord, the Chief Justice of the Supreme Court while dismissing Misc. Application No. K-1/69 that it is not so. In this connection we would reproduce those observations as under :- "It would appear from this that the petitioner had not approached the proper appellate authority.
He should do so. But so far as this Court is concerned, it has to be pointed out that after dismissing his appeal this Court cannot issue any direction of the nature that the petitioner now seeks. He should approach the proper appellate authority and if he fails to get any relief from that authority then, if he is so advised, he may take appropriate steps to challenge the correctness of the order of that authority by appropriate proceedings in the appropriate Court."
A fresh cause of action is envisaged if the Appellate Authority did not pass a correct order and it is also made clear that appropriate proceedings may be taken if so advised. We are constrained to feel that if the proceedings were regarded as past and closed then such observations would not have been made. Viewing from this angle we conclude that the denial of the relief by the Appellate Authority has given rise to fresh cause of action for the filing of this petition. The office memo.
Dated 3rd June 1969 was referred to in the judgment of the Supreme Court while dismissing the Miscellaneous Application No. K-1/69 and it was pointed out that the petitioner had not approached the proper Appellate Authority and that he should do so. In this contest we may refer to Annexure Q dated 27th March 1969 which communicated the decision of the Administrative Officer, who was the designated Appellate Authority, refusing to redress the grievance of the petitioner. Another communication, Annexure V dated 4th May 1970 which conveys the decision of the Chief Administrative Officer denying to the petitioner the relief subsequent to the verification of the fixation of pay by the Controller of Naval Accounts. Lastly is the letter of the Administrative Officer, Annexure X-1 dated 4th July 1970 expressing inability of the Government to revise its earlier decision and with a further direction that the matter may be treated as closed. There is, therefore, on record the decision of the Appellate Authority which has failed to honour the view expressed by the Supreme Court as to the applicability of rule 8(a) to the petitioner's case. Accordingly this constitutes the cause of action for the present petition in terms of the observations of our Lord, the Chief Justice. The question in this petition is not the applicability of rule 8(a) but that the Government has not acted in accordance with the law laid down by the highest Court of the country and for the appropriate relief in terms thereof. The learned Attorney-General did not raise any argument to oppose the maintainability of the petition. We accordingly hold that it is maintainable In its present form.
7. What was regarded as administrative inconvenience as a reason for the dismissal of the appeal was reviewed upon a consideration of the memo. Dated 1st July 1967 and it was held by the Supreme Court while dismissing the review application that the finding in that judgment only remains to be implemented and it was open to the Government to reconsider the case of the appellant. There was no option for the Government to disregard the law laid down vis-a-vis the applicability of rule 8(a) and it was the duty of the Government by virtue of Article 64 of the late Constitution to act in aid of the Supreme Court as it was the law declared by it. While considering the administrative inconvenience in Muhammad Ibrahim v. Province of West Pakistan (Petition No. 203/60) Waheeduddin, J., as his Lordship then was, declined to interfere on the ground that it would upset the seniority of many other officers even though his Lordship reached the conclusion that the Sind Sub-Divisional Officers should have been equated with Class I Officers of the other units. On appeal (PLD 1968 SC 1), Hamoodur Rahman, J., as his Lordship then was, spoke for the Court and observed at page 13 as under :- "In my opinion, this could hardly be a sufficient ground for allowing an injustice to be perpetuated if the Court was convinced that an injustice had, in fact, been committed."
Viewed from what has been observed above, there can, therefore, be no justification to deny to the petitioner his vested right to the fixation of his pay in terms of rule 8(a) even on this ground.
Moreover, during the pendency of this petition the petitioner retired on medical grounds on 1st February 1972 and it was candidly conceded by the Deputy Attorney-General that the present case does not involve any administrative inconvenience as no question of the upsetting of seniority is involved. I n the context of this concession all that the petitioner would be entitled to would be his emoluments on account of the fixation of his pay and to the benefits of the fixation of the pay in that scale. The Deputy Attorney-General however contended that the relief should be denied on equitable ground for the petitioner was transferred and promoted against the vacancy of an Assistant at Peshawar but he refused and is, therefore, disentitled to get any relief from this Court.
This question was considered by the Supreme Court ; nevertheless it was held that this would not disentitle him to the applicability of rule 8(a) and it is now too late in the day to raise the same argument which did not find favour. In conclusion we hold that the petitioner has made out a case for interference by this Court and for the purpose stated earlier we would direct the Chief Administrative Officer, Naval Headquarters, Karachi, to give effect to the pay already fixed in terms of rule 8(a) by the Controller of Naval Accounts and to the benefits of that scale. The petition is allowed with no order as to costs.
"Mr. Wasi Ahmad Rizvi Ty. UDC Welfare Section..Declared fit for promotion to Asstt. On 1-1-49 and allowed to retain the existing scale of pay of 'A' Grade clerks viz., Rs. 100-10-200. Pay refixed as Rs.
100 p.m. w.e.f. 1-1-49. Date of next increment fixed as 1-1-50.
Authority : M. Of D. Letter No. 0122/828/AOK, dated 10-5-52."