1. GHULAM SAFDAR SHAH, C. J.-This petition under Article 98 of the late Constitution of 1962, questions the withdrawal of special pay of Rs. 1.50 per mensem, from the post of Additional District and Sessions Judge, by Central (Gazetted) Civil Services (Revision of Pay) Rules, 1951 (hereinafter called the Rules), framed under section 241 of the Government of India Act, 1935, and the prayer is that a part of these Rules by which the said special pay was withdrawn should be declared to be illegal, without lawful authority and of no legal effect.
2. The petitioner is a member of the Provincial Judicial Service and at present holds the post of District and Sessions Judge, Swat. On 5-11-1947 he joined the Judicial Service of the former North -- West Frontier Province as Sub-Judge 3rd Class and after putting in about 14 years service, he was promoted as Senior Civil Judge, Peshawar on 5-12-1961. At that time the Rules applicable to Special Pay were those framed in 1924 (Superior Civil Services Rules, 1924) and thereunder the petitioner was entitled to special pay of Rs. 100 per mensem as Senior Civil Judge, Peshawar. On 11-3-1963 he was promoted as Additional District Judge and posted at Sialkot. On 21-6-1963 when a salaryslip was issued to him he found in it no mention of the special pay and therefore, he started making representations to the then Govern--ment of West Pakistan and he was told that the matter had been taken up with the Peshawar Bench of the then High Court, and when the decision is reached he would be informed. On 20-5-1963 the Establishment Department In the Central Government wrote a letter to the Chief Secretary, West Pakistan, that the post of Additional District Judge was a C. S. P. Cadre post, that the jurisdiction to decide whether special pay would be allowed to the incumbent of that post was that of the Central Government and that the special pay already paid to the holders of these posts in Punjab and N.-W. F. P. Were without legal cover. On receipt of this letter the then Government of West Pakistan discontinued paying special pay to Additional District Judges. And being aggrieved of this decision, Muhammad Humayun Khan has invoked the Constitutional jurisdiction of this Court for the aforesaid relief.
3. Mr. Zahurul Haq, the learned counsel for the petitioner, contended before us that special pay of Rs.
4. 150 per month` (attached to the post of Additional District Judge) under the Rules of 1924, was continued to be paid to the incumbents of these posts even after 1947, and therefore, this pay would constitute the terms and conditions of the petitioner's service, of which he could not be deprived by the Rules of 1951. This contention is open to criticism for more than one reason. The petitioner joined service as Sub-Judge 3rd Class in 1947 and at that time he was not entitled to any special pay. The special, pay of Rs. 100 became payable to him in 1961, when he was; promoted as Senior Civil Judge, Peshawar, because no change was brought about in this position by the Rules of 1951. It is not disputed that he was drawing special pay of Rs. 100 so long as he continued to remain Senior Civil Judge, Peshawar, but when he was promoted as Additional District Judge and posted to Sialkot his claim to the special pay became untenable, for by the Rules of 1951 special pay attached to that post had been wiped out. It is therefore evident that the special pay of Rs. 150 attached to the post of Additional District and Sessions Judge never became a part of the salary structure of the petitioner, for when he was promoted to that post this pay had been taken away by the Rules of 1951. The other reason in the way of the petitioner is that even under the Rules of 1924 all Additional District and Sessions Judges were not entitled to the special pay of Rs. ISO. At page 74 of these Rules (Superior Civil Service Rules, 1924) there appears the heading "Foreign and Political Department Secretariat" and under the sub-heading "North-West Frontier Province" are mentioned quite a few posts in which District and Additional District and Sessions Judge is also mentioned. At page 98 of the Rules is given the catalogue of various posts, the holders of which are shown to be entitled to special pay, and in there only the District and Sessions Judge, Peshawar, Additional District and Sessions Judge, Peshawar, Senior Subordinate Judge, Peshawar, and the District and Sessions Judge, D. I. Khan have been mentioned. It is, therefore, clear that the special pay for these posts was sanctioned for Peshawar and D. I. Khan because these were considered to fall under "Political Department Secretariat", and not to the petitioner, who was posted as Additional District Judge, Sialkot.
5. It is obvious from this discussion that the Rules of 1924 would not apply 9n the case of the petitioner, but even if they did he would have no grievance whatever. The Rules of 1924 were framed under section 96-B of the Government of India Act, 1919 and they were continued in force by the Constitutional Act of 1935. After the partition of Indian sub-continent, these Rules continued to apply to Civil Services, including the petitioner, but by a Proviso added to section 10(2) of Indian Independence Act; 1947, this Constitutional protection was taken away and it was left to the Government to prescribe fresh scales of pay and allowances. The relevant part of the said section 10 and its proviso may be reproduced for the sake of facility: "10 (10) .
(2) Every person who-
(a) having been appointed by the Secretary of State, or Secretary of State in Council, to a civil service of the Crown in India continues on and after the appointed day to serve under the Government of either of the new Dominions or of any province or part thereof; or
(b) . . shall be entitled to receive from the Governments of the Dominions and Provinces or parts which he is from time to time serving or, as the case may be, which are served by the Courts in which he is from time to time a Judge, the same conditions of service as respects remuneration, leave and pension and the same rights as respects disciplinary matters or, as the case may be, as respects the tenure of his office or rights as similar thereto as changed circumstances may permit, as that person was entitled to immediately before the appointed day: Provided that the Government of the Dominion of Pakistan may in the case of any such person or class of persons other than persons of non-Asiatic Domicile, for special reasons, impose such reduction in the remuneration as may be deemed necessary."
6. It is not disputed that by the Rules of 1951, by which the special pay presumably attached to and enjoyed by the incumbents of posts of Additional District Judges throughout West Pakistan, was withdrawn by the Government and the said Rules could not be questioned in view of the above Proviso which was in the nature of Constitutional Legislation. The grievance of the petitioner was, therefore, imaginary, for he suffered no loss whatever nor were the terms and conditions of service contravened.
7. It seems to us that the justification to draw special allowance of Rs. 150 per month by the Additional District Judges was found in the language of subsection (3) of section 254 of Government of India Act, 1935. But this was entirely illegal. All that this subsection says is that "in this and the next succeeding section the expression `District Judge' includes Additional District Judge, Joint District Judge, Assistant District Judge, Chief Judge of a Small Cause Court, Chief Presidency Magistrate, Sessions Judge, and Assistant Sessions Judge". But the words "in this and the next succeeding section" with which the subsection commences, were evidently ignored. The Rules of 1951 were framed under section 241 of the Government of India Act, 1935 and consequently sub-clause (3) of section 254 would have no relevancy whatever, for section 241 was earlier than 254 and not succeeding it. A little more care in reading section 254 would have avoided the confusion in which the petitioner has landed himself, but then this is a matter which is his personal affair, but in law he does not appear to have any grievance.
8. The learned Advocate-General also pointed out that this petition suffers from grave laches. He stated that the petitioned was deprived of special pay on 1-6-1963, whereas he filed the present petition on 4-7-1967. In the written statement filed by the Department this objection has been taken and It is alleged that during the interregnum, the petitioner neither pursued any legal remedy with the Department nor did he file even representations on the administrative side. The allegation of the Department is supported by an affidavit and the petitioner has chosen not to contradict the allegations contained therein by way of counter-- affidavit. The assertion of the Department, therefore, will have to be accepted and consequently it must be held that the petition suffers from laches.
9. This petition is accordingly dismissed both on merits as well as on the ground of laches, but under the circumstances there would be no order as to costs.