The petitioner, who is working as Additional Registrar of Bahawalpur Circuit of Lahore High Court, was confirmed as Superintendent in the High Court of Bahawalpur State before the integration in the grade of Rs. 225-15-375. He is a Law Graduate and many Law Graduates like him had been promoted as Magistrates Ist Class and Sub-Judges by the Bahawalpur Government in the grade of Rs. 300-800. The petitioner was also promoted as such by the order of the Bahawalpur Govern-- ment dated 14th of June 1955, vide Annex. 'A' in the vacancy caused by the appointment of Mr. Zahoor Ahmad Tareen as Deputy. Custodian. Evacuee Property. The appointment of the petitioner as Magistrate or Sub-Judge was subject to approval by the Public Service Commission 1n due course and with effect from the date be took over the charge of the post. According to the petitioner he was due for adjustment against a permanent vacancy in the said cadre on the retirement of District and Sessions Judge, Bahawalpur, on 23-9-1955, but due to integration of Bahawalpur State in the Province of West Pakistan, the petitioner was reverted to his substantive Post of Superintendent of High Court of West Pakistan, Bahawalpur Circuit, vide High Court's endorsement dated 12-12-1955, Annex. "B'.
2. Thereafter he was appointed as Additional Registrar, High Court of West Pakistan, Bahawalpur Circuit with effect from 26-3-1959. This post carried the P. C. S. scale, but the High Court moved the Government for allowing the petitioner only a special pay of Rs. 50 in addition to his pay as Superintendent in the grade of Rs.225---15---375. The Government after due consideration decided to fix the pay of the petitioner, on his promotion as Officiating Additional Registrar, Bahawalpur Circuit in the scale of Rs. 300---25---500/30---770---40---850 plus a special pay of Rs. 50 per measem with effect from 26-3-1959. This decision of the Government was conveyed by the Additional Chief Secretary, Government of West Pakistan, to the Registrar, High Court of West Pakistan, Lahore, vide Annex. 'H' dated 5th of September 1959. The petitioner has been drawing his salary in that scale, for about four years from 26-3-1959 to 13-2-1963. Thereafter in April 1962, the petitioner enquired as to whether he had been confirmed as Additional Registrar or not. On this query the High Court moved the Government for laying down an alternative pay scale for the post of Additional Registrar, Bahawalpur Circuit when held by a non-P. C. S. Officer equivalent to that of Superintendent in the Office of the Lahore High Court plus a special pay of Rs. 50 p.m. This was done by the High Court vide its letter dated 25.6-1962, Annex. 'J'. The pay-scale of the Superintendent of Lahore High Court, at that time, was Rs. 300---600. The Additional Chief Secretary to the a Government of West Pakistan, Lahore, by his letter dated 14th o f February 1963, showed the inability of the Government to prescribe a new MIS for the post of the Additional Registrar, Bahawalpur Circuit, It wee, however, conveyed by this letter, Annex. 'K', that the Government was prepared to pay its. 50 p.m. as special pay to the Superintendent of the High Court of West Pakistan, Bahawalpur Circuit, on his appointment at Additional Registrar without any change in his own pay as Superintendent. It may be mentioned here that the pay scale of the'
Superintendent of the Bahawalpur Circuit it that time was Rs. 250-15-400. The High Court was not satisfied with the reply and again proposed for the in approval of its recommendations for the alternative pay-scale of the post of the Additional Registrar of the Bahawalpur Circuit in case it was held by a non-P. C. S. Officer. This was again not accepted by the Government. However, the Additional Chief Secretary to the Government of West Pakistan, Lahore, conveyed to the Registrar, High Court of West Pakistan, Lahore, vide his letter dated 16-4-1963, Annex. 'L', that revision of the pay-scale had not been considered at that stage as the Pay Commission Cell of the Provincial Finance Department was examining the question of pay-scale in the light of the Pay Commission's recommendations.
3. Thereafter the West Pakistan (Gazetted) Civil Services (Pay Revision) Rules, 1964 (which shall hereinafter be called, for brevity, as the 1964-Rules) were promulgated by a notification-dated 2- 6-1964 effective from 1-12-1962. In the Schedule appended thereto at page 13 of the same under the heading "High Court of West Pakistan" Additional Registrar, Bahawalpur Circuit, was shown - entitled to draw his salary in the P. C. S. scale plus special pay of Rs. 60 p.m. At this the petitioner requested the Accountant-General, West Pakistan to fix his salary in accordance with the 1964- Rules and to issue him necessary slip in this regard. The petitioner also made a representation in this respect to the High Court, which recommended his case to the Government vide its letter dated 30-4-1966, Annex. 'N' for the grant of P. C. S. scale to him retrospectively from the date he took over as Additional Registrar of Bahawalpur Circuit. According to the petitioner, a lengthy correspondence ensued between the High Court and the Govern--ment of West Pakistan. The Government ultimately decided to equate the post of Additional Registrar, Bahawalpur Circuit with the Superintendent of the High Court of West Pakistan, Lahore, and to give him the scale of Rs. 350- 20-450/25-600 with effect from the date of the issue of the orders. This decision was conveyed to the High Court of West Pakistan by the Additional Chief Secretary to the Government of West Pakistan vide his letter dated 23-1-1970, Annex. '0'. The High Court, in its reply dated 13th of April 1970, vide Annex. 'P', did not agree with the decision of the Government conveyed vide Annex. 'O---. It was asserted that the P. C. S. scale as given in the 1964-Rules should be given to the petitioner instead of equating the post of Additional Registrar with that of the Superintendent of the Lahore High Court. It was further pointed out to the Government that the scale of the post of the Superintendent was Rs. 525-40-845 while the scale after equating the post of the Additional Registrar with that of the Superintendent of the High Court at Lahore was des--cribed as Rs. 350- -20-450/25-600. The Government was asked by this letter to reconsider the matter for granting the pay scale of P. C. S. from 26-3-1959, the date when the petitioner took over as Additional Registrar.
The Government did not agree to this proposal of the High Court, which ultimately recommended on 20th August 1971, vide Annex. 'R' that the pay of the petitioner may be refixed in the scale prescribed for the superintendent of the Lahore High Court plus special pay of Rs.50 with effect from his initial appointment to the post i.e., 26-3-1959. The petitioner, however, did not agree with the recommendation of the High Court and prayed for withdrawal of the same. The Punjab Government ultimately decided on 13th of November 1971, vide Annex. 'S', that the post of additional Registrar, Bahawalpur Circuit of the Lahore High court, when held by the incumbents who don't belong to the P. C. S. (judicial Branch) shall carry the pay sanctioned for the post of Superintendent in the Office of the Lahore High Court, with a special pay of Rs. 60 p.m. This scale was allowed to the petitioner with effect from 23-1-1970. The petitioner has now come up to the High Court and has challenged the validity of the impugned order passed by the Governor of the Punjab, dated 3-11- 1971, vide Annex. 'S' by way of present writ petition.
4. It has been argued that at the time when the 1964-Rules were promulgated and made effective, the petitioner was holding the post of Additional Registrar, Bahawalpur Circuit. The pay ale as mentioned in the said Rules for the Post of Additional registrar, Bahawalpur Circuit is P. C. S plus special pay ofRs.60 p.m. and no alternative scale for the non-P. C. S. Additional Registrar has been laid down therein. According to the learned counsel for the petitioner, the petitioner as such cannot be deprived of that pay scale given in the Schedule appended to the said Rules. It has further been contended that since the petitioner is entitled to the P. C. S. scale plus special pay of Rs. 60 p.m. under the rules, -therefore, under Article 178 of late Constitution, his terms and conditions of service cannot cried or changed by not giving him the said pay scale. It is intended that the order passed by the Governor of the Punjab13-11-1971 is in violation of clause (3) of Article 178 of 1962-- institution.
It is further contended by the learned counsel that the post of Additional Registrar, Bahawalpur Circuit was included the Schedule appended to the West Pakistan (Gazetted) Civil Services (Pay Revision) Rules, 1957 (which shall hereinafter be called, for brevity, the 1957-Rules) and the salary as admissible Additional Registrar under the Rules was according to P. C. S. (Judicial Branch) scale plus Rs. 60 p.m. It is contended that there was no addition or modification to the Schedule appended the said Rules and, as such, the pay scale allowed to the petitioner under the said Rules could not be withdrawn in the curse of correspondence for alternative pay-scale to be laid down for non-P. C. S. Additional Registrar.
5. It is admitted that the petitioner has been working additional Registrar, Lahore High Court, Bahawalpur Circuit effect from 26-3-1959. In the Schedule appended to the 1957 ales, the pay- scale shown for this post was that of P. C. S. plus special pay of Rs. 60 p.m. It is also admitted that no addition modification was made with regard to this item in the schedule under rule 24 of the said Rules. The petitioner continued to draw the salary in this scale for about four years till 13-2- 1963 his substantive post is that of a Superintendent in the ministerial establishment at Bahawalpur Circuit of the High Court, but the fact that he has been continuously working as Additional Registrar with effect from 26-3-1959 cannot be denied. The question arises as to whether the petitioner, n who is a non-P. C. S. Officer working, as Additional Registrar, can draw his salary according to P. C.
S. scale plus special pay of Rs. 60 p.m., as prescribed in the Schedule appended to the 1957-Rulcs as well as the 1964-Rules.
6. It has been argued by the learned counsel for the respondent that the Item with regard to Additional Registrar, Bahawalpur Circuit, as mentioned in the Schedule appended to the 1964-Rules was amended by the Governor of the Punjab by his order dated 13-I 1-1971, vide Annex. 'S' and since the Governor is competent to add to or modify the Schedule under rule 17 of the 1964-Rules, therefore, his order dated 13-11-1971, being valid cannot be challenged. This contention has no force.
We have to examine the validity of the Impugned order passed by the Governor in context of the submissions made by the learned counsel for the petitioner that when the petitioner has been continuously working as Additional Registrar, though non-P. C. S. personnel, then why can't he be granted the P.C.S. (Judicial) scale plus special pay of Rs. 60 p .m., as prescribed in the Schedule appended to the said Rules. It is admitted that in the-Schedule it is not mentioned specifically that P. C. S. scale will not be available to those Additional Registrars, who do not belong to the P. C. S. Cadre.
7. It has been argued that the order of the Governor dated the 13th of November 1971 has Introduced an amendment in the Schedule to the effect that the post of Additional Registrar, Bahawalpur Circuit of the High Court, if held by an incumbent who does not belong to the P. C. S. (Judicial Branch) shall carry the scale sanctioned for the post of Superintendent in the Office of the High Court, Lahore, with a special pay of Rs. 60 p.m. The amendment, if any, made by the Governor was never notified and the necessary addition or modification as required by rule 17 of the 1964- Rules was never effected in the Schedule appended thereto Addition, or modification in the Schedule can be made through a prescribed procedure and In the absence of that it cannot be deemed that any addition or modification has been made therein. Moreover if there is any addition or modification in the Schedule that will be prospective in operation and not retrospective ,provided that change or modification is in accordance with law. A mare executive order will not amount to any addition or modification in the Schedule as contemplated by rule 17 of 1964, Rules.
As such the, order dated 13-11-1971 passed by the Governor of the Punjab cannot be deemed to have effected any addition or modification in the Schedule appended to the 1964-Rules. Nothing has been brought on record to show that the Schedule appended to the 1957-Rules was ever amended, not even in the form in which Schedule to 1964-Rules is alleged to have been modified.
According to rule 4 of the 1957-Rutes, the prescribed scales shall apply to all Government servants holding posts Included in the Schedule with effect from 14th of October 195.5, nor latter date of appointment. Rule 11 of 1957-Rules provides that the pays will be fixed both tat the scales of their substantive posts and the scales of the posts held by them In temporary or officiating capacity.
Similar provisions also exist in 1964-Rules. In both the Schedules appended to 1957 as well as 1954- Rules, Additional Registrar, Bahawalpur Circuit has been found entitled o receive salary according to the P. C. S. scale plus special pay. There is no item in the said Schedule Indicating that if a non -- P. C. S. person holds that post, then he would not be entitled to this scale. As such; the petitioner cannot be deprived of receiving leis salary according to P. C. S. scale when he has been working as Additional Registrar throughout since 1959.
8. In the case titled Government of West Pakistan and another v. Nasir M. Khan and others (P L D1965 SC 106) five of the respondents were appointed and confirmed in the Provincial Service of Engineers Class II and promoted to officiate as Executive 'Engineers while the remaining seven respondents emended in service as Temporary Assistant Engineers in the same scale of pay as appertained to the Class II Service of Engineers. They we're also appointed as Officiating Executive Engineers. All the respondents when appointed to officiate as 1!xecutive Engineers received minimum scale of pay applying to Class I Engineers, namely, Rs. 600 p.m. They claimed that they were entitled to annual increment at the rate of Rs. 40 in the senior time-scale of the Punjab Service of Engineers Class 1, but the Accountant-General, West Pakistan, ruled that this claim was not tenable in view of the interpretation placed on certain rules by the Government. Reliance was, in this respect, placed on rules 8, 1 and 11(4) of the Punjab (Gazetted) Civil Services (Pay Revision)
Rules, 1961, read wilt certain circular letters issued by the Provincial Government. The respondents, however, on the con--trary asserted that none of the said Rules was applicable to their case and the matter, according to them, was to be decided under saes 4.7 and 4.9 of the Civil Service Rules (Punjab), Volume I, Fart 1, which were the general provisions governing the situation, it was admitted that all the respondents had been appointed as officiating Executive Engineers on ad hoc basis. It was held by their Lordships of the Supreme Court, that in the absence of any specific rule to the contrary, the respondents, who were appointed as officiating Executive Engineers in the scale of Class I service were entitled to draw the increment of that scale as a matter of course unless it was withheld for good reasons. It was further observed by their Lordships, that it was not the case of the appellants that tiny of the respondents' conduct justified the withholding of the increment. In the present case nothing has been brought on record to show that there was any item in the Schedule appended to 1959 as well as 1964-Rules whereby a non-P. C. S. Officer holding the post of Additional Registrar, Bahawalpur Circuit, was not entitled to P. C. S. scale plus special pay. It was further observed by their Lordships of the Supreme Court in the above-cited case that "Clause (3) of Article 178 of the Constitution gives protection to the respondents in respect of the terms and conditions of their service, in so far as they relate to remuneration or age fixed for superannuation.
It is provided therein that terms and conditions of service in this respect are not to be varied to the disadvantage of a State servant by rule framed under clause (2) of this Article. That clause authorises the Governor of the Province or a person authorised by him in that behalf, to frame rule with regard to the terms and conditions of service of persons serving in connection with the affairs of the Province, subject to the Constitution and the law. As has been seen above, the position under the general rules of service applying to the respondents was that they were entitled to claim increment unless withheld on legitimate grounds in the scale applying to the Executive Engineers.
This position could not be altered by a mere executive order even if it issues from an authority like the finance Secretary. For identical reasons the new rule framed by Government and notified on the 4th of March 1963, to the effect that a temporary Assistant Engineer appointed to a post in the P. C. S. Class-I, senior scale shall draw the minimum of the latter's scale and that no increment in the senior scale shall be admissible to him until the 8th year of service in the Class I post can only be applied prospectively to persons entering the service after the date of that notification and not retrospectively so as to alter the existing conditions of service of the respondents."
9. In the present case, as held above, the petitioner is entitled to receive his salary according to P.
C. S. scale plus special pay. This position- cannot be altered by an executive order, as passed by the Governor of the Punjab on 13-11-1971. IVs addition or modification in the Schedules appended to the Rules mentioned above has been effected by means of notification by the competent authority. Letters issued on executive side like Annex. 'S' in this case, cannot take the place of properly framed rules.
10. In Muhammad Hashim v. Postmaster General and another (PLD 1969 Dacca 254) where a Class-II Government servant officiating on higher post of Class 1, whose order of appointment was bearing condition that he would serve on his own pay of Class 11, it was held that a post would not be degraded merely to avoid payment of higher salary to a person officiating and no order would be passed in violation of the provisions of Constitution and fundamental rules. It was further held that such Officer was entitled to salary of higher grade. The learned Judges in this case also held that the petitioner was entitled to the salary of Class 1, junior grade, during the period he officiated in the post and if the salary was not given to him in accordance with that grade, then it would be in violation of the Constitutional provision as contained,' In Article 178 (3). The facts of the case stated above are that Muhammad Hashim, petitioner in the case, became Superintendent Class II during his service. He continued to serve in the lower scale until the scales were changed in 1964 and revised scales of pay were promulgated by the Government of Pakistan, which raised the salary of the post of Superintendent Class 11 to Rs. 350-920. The petitioner enjoyed the benefit of the scale, which came in to force In 1964 from 8th November 1951. He officiated as Superintendent Class I Junior grade continuously for about four years until the date of his retirement, which occarred on 3 rat of October 1965. The scale of pay of Class I Superintendent, junior grade, was higher than that of Superintendent Class II. He was not allowed to draw the pay to which he was entitled while officiating in tae Class I post. He made certain representations to the Department, which were not acceded to and ultimately he filed the writ petition in 1966 in the Dacca High Court and got the relief as mentioned above.
11. In the case titled Nest Pakistan Government v. Abdul Khaliq, Accountant, Hazara Treasury (PLD 1970 SC 247), Abdul Khaliq, respondent, was appointed as Head Treasury Clerk In N.-W. F. P. on 9th of January 1948, and was confirmed in that post on 18th of October 19'48. The Government later on created a separate treasury cadre on permanent basis with effect from 15th of December 1950.
This cadre included, among others, six Head Treasury Clerks in the scale of Ks. 150-10-300. On 12th of May' 1954, N. W. F. P. Treasury subordinate Service Rules, 1954, were framed by which the respondent was governed. Later on after the West Pakistan came into being as one Province, the West Pakistan (Non-Gazetted) Civil Services (Pay Revision) Rules, 1958-, were promulgated. In the Schedule appended thereto, various posts in different Department were mentioned with the scales of pay prescribed therefore Rule 18 of the said Rules empowered the Government to add or modify the Schedule from time to time. By Notification No. I (P. R.) Try. 1/1/62, dated the 1st March 1962, the post of Accountant in the Subordinate Treasury and Account Service was included in the said Schedule prescribing as Rs. 200-15-350 as its scale of pay. On 7th of May 1964, the Government of West Pakistan created, for the first time, a subordinate Treasury and Account Service for the whole of West Pakistan by framing rules, called the West Pakistan Subordinate Treasury and Accounts Service Rules, 1962. With the creation of this service, the existing posts of Head Treasury Clerks (Accountants), Senior Treasury Clerks and Junior Treasury Clerks stood abolished and the incumbents of those posts, including the respondent, were absorbed in this now service. Thereafter, dispute arose as to from which date respondent was entitled to claim his prescribed scale of pay.
He claimed since the pay revision rules had retrospective effect i.e., from 14th of October 1955, therefore, he was entitled to the prescribed scale of pay from the said date. The Government, however, did not agree with his stand and claimed that respondent was entitled to the said scale of pay from 7th of May 1962, on which date the Subordinate. Treasury and Accounts Service for the whole of West Pakistan, was created and he was absorbed in that service. In the original Schedule, the post of Accountant was not included which, however, was included, for the first time, on 1st of May 1962, by the above--mentioned notification. Their Lordships of the Supreme Court held that the effect of the inclusion of the post of Accountant in 6be Schedule by the notification of 1st of March 1962, was to be determined having regard to the provision of rule 4 of the said Rules, which laid down that the prescribed scale shall apply to all Government servants holding posts included in the Schedule with effect from 14th of May 1955, or later date of appointment. It inwas further held that since the post of Accountant was included in the Schedule, the scale of pay prescribed there for became admissible to the incumbent of that post with effect from 14th of October 1955.
12. In the case cited above, Abdul Khaliq, respondent who was confirmed. Head Treasury Clerk working against the post of Accountant on the basis of Notification dated the 1st March 1962 was found admissible to the scale of pay prescribed for an Accountant in the Schedule of the rules. In the present case, the petitioner though a confirmed Superintendent, has been working throughout as Additional Registrar, Bahawalpur Circuit of the Lahore High Court since his appointment as such and regardless of his substantive post, scale of pay prescribed for Additional Registrar in the Schedule should be admissible to him being incumbent of that post w. e. f. the date of his appointment as Additional Registrar.
13. Their Lordships of the Supreme Court, further repelled the contention of the Additional Advocate-General in that case to the effect that the respondent's petition under Article 98 of the 1962-Constitution was not maintainable, as respondent's entitlement to the prescribed scale of pay, was not a term or condition of service specified in the said Constitution. It was held that under Clause 3 of Article 178 of the said Constitution remuneration of a person in the service of Pakistan was protected and could not be varied to his disadvantages when the respondent was found entitled under the pay revision rules to the prescribed scale of Pay of Accountant w. e. f. 14th October 1955. The refusal of the Government to give him pay in that case had adversely affected his remuneration and accordingly Clause 3 of the Article 178 of the said Constitution was attracted in the case. It was further held by their Lordships that the contention that Clause 3 of Article 178 of the Constitution was applicable only in that case where the initial salary of Government Service was varied to his disadvantage and did not protect his salary as enhanced from time to time under the rules, has no substance.
14. In view of the above discussion, it is found that the impugned order dated 13th November 1971 passed by the Governor of the Punjab, does not amount to an addition to or modification of the Schedule appended to the 1964 Rules. , The petition is accepted and the respondent is directed to fix the pay of the petitioner according to P. C. S. scale plus special pay of Rs. 60 p.m. and also to pay the arrears due to him. There will, however, be no order as to costs.