1. ANWARUL HAQ, J.-This appeal, by leave of the Court, seeks to' call in question the correctness of the judgment of a Division Bench of the former High Court of West Pakistan, at Lahore, dated the 11th of May 1964, whereby a Constitution petition presented by the appellant in the matter of the fixation of his emoluments as the holder of a judicial listed post in the North-West Frontier Province, was dismissed.
2. The appellant was appointed to the Judicial Branch of the Provincial. Civil Service of the North-West Frontier Province on the 4th of October 1938, and was confirmed in this appointment with effect from the 15th of September 1942. He was temporarily promoted to officiate as Additional District and Sessions Judge, Mardan, from the 5th of June 1950 to the 1st of October 1950, thereafter reverting to his substantive rank on the post of Registrar of the former Judicial Commissioner's Court. On the 27th of August 1952, he was appointed Senior Subordinate Judge at Peshawar, which post he held until the 14th of January 1954. On that date he was appointed District and Sessions Judge, Hazara, and continued in that capacity until June 1957 when he was transferred to Peshawar as Additional District and Sessions Judge, which post he was holding at the time of filing the writ petition in the High Court on 17-10-1958.
3. Subsequently, the appellant was appointed as a Judge of the former High Court of West Pakistan in December 1961. Under a notification issued by the Central Government of Pakistan on the 24th of October 1966, the appellant was confirmed in a listed post with retrospective effect from the 1st of May 1961.
4. The grievance of the appellant before the High Court was that although, according to the terms and conditions of service applicable to him at the time of joining the Provincial Civil Service (Judicial Branch), he was entitled, on promotion to a listed post in whatever capacity, to salary in the old Indian Civil Service grade, namely, Rs. 1275-75-1500/100-2000/50-2250, vide resolution adopted by the Secretary of State for India in Council on the 15th of July 1924, yet he was denied this grade owing to instructions embodied in memorandum No. 3885-EC/II/48 dated the 12th of July 1948 issued by the Secretary to Government of Pakistan in the Ministry of Finance, laying down that "in case of promotions made after the 18th of July 1947, the pay on promotion will be limited to pay of the original post plus 30% of the pay of the new post whichever is less. The pay of the original post will, for the purpose of this rule, mean the substantive pay of the officer on the 18th of July 1947, or his officiating pay on that date, if the. Officer had been officiating for not less than one year, or the Finance Ministry are satisfied that the officer, though having officiated for less than one year on the 18th of July 1947 was likely to have officiated for a total period of not less than a year even if partition had not taken place." The memorandum clarified that "for the purposes of this rule promotion means the transfer from any post to any other post carrying higher pay as defined in Fundamental Rule 9(21)" A further grievance of the appellant was that the Central Gazetted Civil Service (Revision of Pay) Rules, 1951, promulgated by the Government of Pakistan under notification No. F-2(1)PC/51 dated the 4th of May 1951, were applied to him as well as to other holders of listed posts with retrospective effect, with the result that the pay admissible to him stood reduced to the grade of Rs. 700-1300 p.m. As prescribed for the members of the former Indian Civil Service.
5. It was contended before the High Court, on behalf of the appellant, that there were six reserved judicial posts in the North-West Frontier Province in the senior time-scale of the former Indian Civil Service, out of which two were ear-marked as listed posts for judicial officers recruited from the Bar and P. C. S. Judicial Branch; that promotion to one of these posts was a part of the terms and conditions of his service, which were protected under section 241 of the Government of India Act, 1935, and Article 182 of the 1956 Constitution; and that these terms and conditions could not be altered to his prejudice by the Governor-General or the Central Government of Pakistan, as he was neither a member of an All Pakistan Service, nor serving in connection with the affairs of the Federation, but a judicial officer serving in connection with the affairs of a Province.
6. It was submitted that, as a necessary consequence of this legal position, the appellant continued to be entitled to draw salary in the senior time-scale of the old Indian Civil Service, namely, Rs.
7. 1275-2250 p.m., as contemplated by the resolution of the Secretary of State for India in Council dated the 15th of July 1924, published in the Gazette of India on the 21st of August 1924, in exercise of rule-making powers conferred by section 96-B of the Government of India Act, 1919.
8. The learned Judges in the High Court have held that the appellant's appointment as Additional District and Sessions Judge, Mardan from 5-6-1950 to 1-10-1950 was not shown to have been made against a listed post, as available in the North-West Frontier Province, and that it was only from 7- 8-1952 that the appellant could be regarded as continuously holding a listed post. They have observed that in view of the dictum of the Supreme Court in Government of West Pakistan v. Fida Muhammad Khan (PLD1960SC45there was no question of any constitutional protection being available to the appellant in respect of his prospects of promotion to higher posts Nor was his salary as a listed post holder protected by section 241 of the Government of India Act, 1935, as he was not an officer appointed by the Secretary of the State for India or the Secretary of State for India in Council. They have further expressed the view that Article 182 of the 1956 Constitution also could not be invoked by the appellant, as the said Article did not operate retrospectively. On the particular question of the salary admissible to the appellant, the learned Judges have taken the view that the rules made by the Secretary of State for India-in-Council in 1924 could be amended or modified only by the Governor-General of Pakistan as declared by section 10-A of the Indian Independence Act, inserted by the Constitution (Second Amendment) Act, 1951, and that they were so amended by the Governor-General of Pakistan in 1951. They have also held that under the proviso to ~subsection (2) of section 10 of the Indian Independence Act, 1947, the Government of Pakistan had the power to impose a reduction in the remuneration admissible to persons in the Service of Pakistan. Finally, they have expressed the view that both under the 1924 Rules as well as the 1951 Rules, an officer of the Provincial Civil Service, holding a listed post, was not entitled to be granted higher rate of pay in the Indian Civil Service or the C. S. P. Time-scale than admissible to a member of that service with the same length of service. According to the High Court, the practical effect of this restrictive provision in- both the Rules was that the appellant was not entitled to the pay claimed by him. On these findings they have held that the appellant was not entitled to any relief in the matter of the fixation of his salary as the holder of a judicial listed post.
9. At the very outset a preliminary objection was taken by the learned Deputy Attorney-General for Pakistan, appearing on behalf of the Federal Government, that in view of the recent amendment in Article 212 of the (1973) Constitution of the Islamic Republic of Pakistan, the present appeal had abated, and the only remedy available to the appellant was to take the matter to the appropriate tribunal established for this purpose. The learned counsel submitted that tribunals had in fact been established, under appropriate law, both by the Central Government as well as by the Provincial Government concerned, and accordingly we had no longer any jurisdiction to proceed in the matter.
10. By the Constitution (First, Amendment) Act of 1974, effective from the 4th of May 1974, certain amendments and additions have been made in Article 212 of the Constitution, and it has been enacted that these amend--ments, substitutions and additions shall be deemed always to have been so made or inserted. The amended Article now reads as under :- "212.-(1) Notwithstanding anything hereinbefore contained, the appropriate legislature may by Act provide for the establishment of one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of-
(a) matters relating to the terms and conditions of persons who are or have been in the service of Pakistan including disciplinary matters ;
(b) matters relating to claims arising from tortious acts of Government, or any person in the Service of Pakistan or of any local or other authority empowered by law to levy any tax or cess and any servant of such authority acting in the discharge of his duties as such service ; or
(c) matters relating to the acquisition, administration and disposal of any property which is deemed to be enemy property under any law ;
(2) Notwithstanding anything hereinbefore contained, where any administrative Court or tribunal is established under clause (1), no other Court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such administrative Court or Tribunal extends, and all proceedings in respect of any such matter which may be pending before such other Court immediately before the establishment of the Administrative Court or Tribunal shall abate on such establishment Provided that the provisions of this clause shall not apply to an administrative Court or tribunal established under an Act of a Provincial Assembly unless, at the request of that Assembly made in the form of a resolution, Parliament by law extends the provisions to such a Court or tribunal ;
(3) An appeal to the Supreme Court from a judgment, decree, order or sentence from an administrative Court or Tribunal shall lie only if the Supreme Court, being satisfied that the case involves a substantial question of law of public importance, grants leave to appeal." , It will be seen that the language of Article 212 leaves no doubt that as and when an appropriate Tribunal is established with jurisdiction to deal with the matter in controversy, only then any proceedings concerning thereto pending in any other Court shall abate. The question, therefore, is whether any such Tribunal has been established.
11. We consider that for the limited purpose of answering this question, it is not necessary to decide, at this stage, whether the appropriate Tribunal for dealing with the claim made by the appellant would be the one established by the Federal Government of Pakistan or the Provincial Government of the North-West Frontier Province, as in either case the law setting up those Tribunals has, in its own wisdom, placed a limitation on the Tribunal's jurisdiction to the effect that "no appeal shall lie to the Tribunal against an order or decision of the departmental authority made at any time before the lst of July 1969." In the case of the Federal Tribunal this limitation is contained in "clause (c) of subsection (1) of section 4 of the Service Tribunals Act (LXX of 1973), as amended by Act XXXI of 1974 with effect from the 6th of May 1974. By a coincidence, the same limitation is spelt out in section 4(c) of the N: W. F. P. Act I of 1974, as amended by Ordinance VII of 1974, promulgated on the 18th of May 1974. It would appear, therefore, that the controversy arising in the instant case is not amenable to the jurisdiction of either Tribunal, as it arose much before the prescribed date, namely, the 1st of July 1969. Such being the case, the present appeal is not affected by the provisions contained in the amended Article 212 of the Constitution.
12. The main contention urged on behalf of the appellant is that he being a member of a Provincial Civil Service, serving in connection with the affairs of a Province, the Governor-General of Pakistan or the Central Government had no jurisdiction to amend or modify the rules applicable to him, with the result that he continued to be governed by the resolution of the Secretary of State for India in Council dated the 15th of July 1924. It is submitted that after the enforcement of the Government of India Act, 1935, there came into existence a clear demarcation between the rule-making power of the Central and the Provincial Governments, and under section 254 of the said Act, as adapted for Pakistan, the power to appoint District Judges and some other judicial officers was vested in the Governor of the Province. As a result, the only authority which could vary the rules applicable to the appellant was the Provincial Governor, acting under section 241 of the Government of India Act, and as he had not made any rules in the exercise of this power, the 1924 Rules continued to be operative in accordance with section 276 of the Act. It was next submitted that in any case the respondent Governments having conceded that C. S. P. Rules of 1951 did not apply in this case, and the matter was governed by the rules made in 1953, the appellant could not be deprived, by the retrospective application of the latter rules, of the entitlement to the appropriate salary which had already accrued to, him on his appointment to a listed post, first from 5-6-50 to 1-10-1950 and then continuously from 27-8-1952.
13. There is no doubt that the appellant joined a Provincial Civil Service, and was serving as a member of that service when he was promoted to a post carrying a salary in the senior time-scale of the old Indian Civil Service, or its successor, the Civil Service of Pakistan, as the case may be. If this post were borne on the cadre of the Provincial Civil Services concerned, there would have been no difficulty in holding that in terms of section 241 of the Government of India Act, 1935, as adopted for Pakistan, the appropriate making authority would be the Provincial Governor, and until such time as he makes new Rules in this behalf the old Rules would continue to operate under section 276 of the Act. It is also correct that under section 254 of the Act, appointments of persons to be, and the posting and promotion of District Judges for any Province were to be made by the Governor of the Province. However, what is in controversy here is the question of salary payable to the bolder of a judicial listed post, a post which does not find any mention in the cadre of the Provincial Civil Service itself. It accordingly becomes necessary to determine the exact nature of the post which the appellant claims to have held in an officiating capacity for certain periods, and on which he was confirmed with effect from 1-5-1961 by the President of Pakistan.
14. It will be both useful and instructive to trace the history of listed posts. Right from the Government of India Act, 1915. According to section 97 of this Act, the Secretary of State in Council was empowered C $o appoint or admit persons to the Indian Civil Service, as a result of examination held under the Superintendence of the Civil Service Commis--sioners in London. According to section 98 of the said Act, all vacancies happening in any bf the offices specified or referred to in the Third Schedule to the Act, and all such offices which might be created thereafter, were to be filled from amongst the members of the Indian Civil Service. Items 7 and 8 in Part 11 of the Third Schedule to the Act, relating to "Offices in the provinces which were known in the year 1861 as "Regulation Provinces", mentioned the posts of District and Sessions Judges, and Additional District or Sessions Judges and Assistant Sessions Judges respectively. In other words, under the Government of India Act, 1915, these judicial posts were specifically reserved for the members of the Indian Civil Service. At that time, there was no dichotomy between the Central and the Provincial Governments in the matter of control of services.
15. Large scale amendments were made in the Government of India Act, 1915, by the Government of India Act, 1919, as a result of which a new section 96-B was introduced. Subsection (2) of this section conferred on the Secretary of State in Council power to make rules for regulating the classification of the Civil Services in India, the methods of their recruitment, their conditions of service, pay and allowances, and discipline and conduct. The same subsection also permitted delegation of power of making rules to the Governor-General in Council or to the Provincial Governments. In the Third Schedule, appended to the 1919 Act, the judicial posts in question were again mentioned at serial Nos. 8 and 9 in Part B of the Schedule. It was in pursuance of the power conferred by subsection (2) of section 96-B, as introduced in 1919, that the Secretary of State for India in Council adopted the Resolution of the 15th of July 1924 on which the appellant relies.
16. The relevant portion of this resolution may be reproduced here with advantage :- Pay of Officers promoted from the Provincial Civil Service to hold Indian Civil Service posts.
(a) The initial pay of officer promoted from the Provincial Civil Service shall on each occasion of his promotion be fixed on the superior time-scale of pay for the Indian Civil Service at the lowest stage which exceeded by not less than Rs. 300 a month the substantive ,pay last drawn by him in the regular line of the Provincial Civil 'Service, at the stage of the superior scale for the 10th year of service in the Indian Civil Service (Rs. 1,275), whichever is greater Provided that in no case shall an officer of the Provincial Civil Service be granted a higher rate of pay than that admissible under the superior time-scale to a member of the Indian Civil Service with the same length of service. :(b) On any enhancement of his Provincial Civil Service pay (whether as the result of general revision of the Provincial Civil Service rates of pay, of the operation of the Provincial Civil Service time-scale or of promotion to the selection grades of that service) while officiating in -an Indian Civil Service post such an officer shall be entitled to have his pay on the Indian Civil Service time- scale of pay recalculated in accordance with the principles laid down in clause (a) of this rule on: the basis of his enhanced pay in the Provincial Civil Service, and with effect from the date of such enhancement.
(c) Increments of pay on the Indian Civil Service time-scale of pay shall be granted to a Provincial Civil Service Officer holding an Indian Civil Service post only on completion of a full year's service on any stage of that scale, but for the purpose of calculating one year's service at a given rate of pay, broken periods of officiating service at that rate of pay shall be taken into account."
17. It will be noticed that the aforesaid Resolution does not use the terms. "listed post" or "the holders of a listed post" in respect of officers promoted from the Provincial Civil Service to the posts of District and Sessions Judges. Or Additional District and Sessions Judges or Assistant Sessions Judges, or equivalent posts on the executive side of the service ; instead it employs the description "pay of officers promoted from the Provincial Civil Service to, hold Indian Civil Service posts". In other words, it is clear that the posts, in question, as contemplated by this Resolution, were posts borne on the cadre of the Indian Civil Service, and to that extent an officer promoted from the Provincial Civil Service to such a post would have to be deemed to be an officer belonging to the Indian Civil Service for the purpose of regulating his salary and other terms and conditions of service. , The last paragraph of this resolution cancels three earlier Resolutions. Of the Home Department of the Government of India, dated the 24th of June 1920, 5th of May 1921 and 23rd of January 1922 respectively. As, copies of these Resolutions were not placed on the record by either party, and as in any case they stood cancelled by the Resolution of the 15th of July 1924, nothing needs be said about these Resolutions.
18. Then came the Government of India Act, 1924. It was in the nature of a consolidating Act. Part VII-A of this Act dealt with the subject of "The Civil Service in India". Section 96-B of this Part was in identical terms with the one inserted in the parent Act in 1919. Section 97, in Part VIII of the Act, specifically dealt with the Indian Civil Service --Section 98 of this Act reiterated that "subject to the provisions of this Act, all vacancies happening in any of the offices specified or referred to ir? The Third Schedule to this Act, and all such offices which may be created hereafter, shall be filled from amongst the members of the Indian Civil Service." The posts with which we are dealing were once again mentioned at Serial Nos. 8 and 9 of Part B of the Third Schedule. It thus becomes. Clear that up to the y ear 1924 the posts in question continued to be borne on the cadre of the Indian Civil Service, subject to the rule-making power of' the Secretary of State for India-in-Council.
19. On the 10th of December 1929, the Secretary of State for India in Council, in exercise of the powers conferred by subsection (2) of section 96-B of the Government of India Act, made "The Indian Civil Service (Regulation of Seniority) Rules", which were published in the Government of India Gazette on the 12th of February 1930, as Home Department Notification No. 38/30/Ests. These rules, apparently for the first time, defined the term "holder of a listed post" as meaning an officer not belonging to the Indian Civil Service appointed substantively to a superior post in the Indian Civil Service, whether by promotion from the Provincial Civil Service or by appointment from the legal profession. Rule 3 of these Rules laid down that "the seniority inter se of holders of listed posts on the executive or judicial side, as the case may be, is determined by the date of substantive appointment to a listed post". Rule 4 dealt with the determina--petition of seniority of substantive holders of listed posts vis-a-vis the regular officers of the Indian Civil Service, a subject with which we are not directly concerned in the present case.
20. These Rules were followed by the Civil Services (Classification, Control and Appeal) Rules made by the Secretary of State for India in Council, again under section 96-B(2) of the Government of India Act, 1924, on the 27th of May 1930. According to rule 14 of these Rules, the public services in India were to be classified into seven categories, the first one being "the All-India Services". According to rule 15, the All-India Services were to consist of :-
(a) Members of the Services included in Schedule I to these rules ;
(b) Persons who held in a substantive capacity posts borne on the --cadres of the Services included in Schedule I.
21. At the foot of rule 15, there is appended a note in the following terms :- "Audit instruction.-The effect of rule 15(b) is to set up an artificial All-India Service with the persons holding in a substantive capacity listed posts in the Indian Services as members thereof. Such persons, therefore, are members of an All-India Service for the purpose of rule 26."
22. Rule 18 of these Rules declared that "the Provincial Services shall consist of such services other than the services included in Schedule 1), under the administrative control of the Local Government of a Governor's Province as the Local Government may from time to time declare, by notification in the local official Gazette, to be included in the Provincial Services of that Province : Provided that one of the Services so included shall be entitled the General Service."
23. Under Rules 23 and 24, all first appointments to an All-India Service and the strength, including both the number and character of posts of such service, was to be determined by the Secretary of State in Council, or in accordance with any Rules made by him in this behalf. There are certain exceptions mentioned in these two Rules, but they are not relevant for our present purpose. Rule 26 laid down that "Rules regulating the conditions of service, the pay and allowances and the pensions of members of the All-India Services shall be made by the Secretary of State in Council Provided that nothing in this rule shall invalidate any delegation of the power to make rules which is made before these rules came into force."
24. Rules 38 to 41 dealt with the Provincial Services, delegating the power of appointments and of making Rules etc., to the Local Governments of the Provinces. As the learned counsel for the appellant has made a special reference to Rule 41 of these Rules, the same may be reproduced here for facility of reference "The power to make miles regulating the conditions of service, the pay and allowances, and the pensions of a Provincial Service in any Governor's Province is hereby delegated to the Local Government Provided that rules regulating-
(a) the pay of members of such services while officiating in posts borne on the cadre of an All- India Service ; or
(b) the pensions of members of such Services in respect of any period of office as a Member or Temporary Member of the Executive Council of the Governor-General or of a Governor ; or
(c) the pensions of members of such services who were appointed by the Secretary of State in- Council ; shall be made by the Secretary of State-in-Council."
25. From the above brief resume of the Rules made by the Secretary of State for India-in-Council in 1930, it becomes abundantly clear that listed posts were a part of the cadre of the old Indian Civil Service; that, while officiating in these posts, the members of the Provincial Services were to be governed by the Rules made by the Secretary of State-in-Council; and that on substantive appointment to these posts these officers were to take their seniority along with regular members of the Indian Civil Service in accordance with a prescribed formula.
26. This Statutory position continued to prevail until the enactment of the Government of India Act, 1935, which provided for the setting up of "the Federation of India", comprising the Governors'
27. Provinces, the Chief Commissioner's Provinces and the acceding Indian States. This Act also provided for the division of executive and legislative powers and functions between the Federation and the Provinces. The Civil Services were dealt with in Chapter 11 of Part X of this Act. Section 240, after narrating in subsection (1), that every person who is a member of the Civil Service of the Crown in India, or holds any civil post under the Crown holds office during His Majesty's pleasure, proceeded to spell out certain safeguards in the matter of dismissal from service and reduction in rank. Subsection (1) of section 241 prescribed that in the case of services of the Federation, and posts in connection with the affairs of the Federation, appointments would be made by the Governor-General or such person as he may direct; and in the case of services of a Province, and posts in connection with the affairs of a Province, by the Governor or such person as he may direct.
28. These powers were, however, made subject to any other express provision contained in the Act.
29. Subsection (2) of the same section conferred rule-making powers on the Governor-General or the Governor in the case respectively of persons serving in connection with the affairs of the Federation or the Province. Subsection (3) of section 241 gave protection to persons who were already serving His Majesty in a civil capacity in India, by stipulating that no order which alters or interprets to their disadvantage any rule by which their conditions of service are regulated shall be made except by an authority which would have been competent to make such an order on the 8th of March 1926, or by some person empowered by the Secretary of State to give directions in that respect. Subsection
(1) of section 244 contemplated that appointments to the Indian Civil Service, the Indian Medical Service (Civil) and the Indian Police Service shall, until Parliament otherwise determines, be made by the Secretary of State. Subsection (I)- of section 246 laid down that the Secretary of State shall make rules, specifying the number and character of the civil posts under the Crown which were to be filled by persons appointed by the Secretary of State to a Civil Service of, or a Civil post under, the Crown in India. This subsection also laid down that no such post shall, without the previous sanction of the Secretary of State, be kept vacant for more than three months ; or be filled otherwise than by the appointment of such a person as aforesaid ; or be held jointly with any other such post. Subsection (2) of this section provided that these posts shall be referred to as reserved posts, and appointments and postings to them shall in the case of posts in connection with the affairs of the Federation, be made by the Governor-General, exercising his individual judgment; and in the case of posts in connection with the affairs of a Province, be made by the Governor of the Province exercising his individual judgment. Finally, we may also take note of subsection (2) of section 250 of the Act which laid down-that the rules made by the Secretary of State-in-Council under the preceding sections shall also apply, with such exceptions and modifications as the Secretary of State may decide, in relation to any person who not being a person appointed by the Secretary of State or the Secretary of State in Council, holds or has held a reserved post.
30. "2. The posts in the North-West Frontier Province specified in the Schedule to these Rules (hereinafter referred to as "reserved posts" shall be filled by
(a) members of the Indian Civil Service, or
(b) persons who hold, or have held, a civil post under the Crown in India and are, or were when they were first appointed to such posts, officers in his Majesty's forces, or
(c) persons who when first appointed to a reserved post were in the Civil Service of the Crown in India and had been appointed thereto by the Secretary of State."
31. This rule introduced a new category of persons, namely, officers in his Majesty's forces, as being eligible to fill reserved posts in the North-West Frontier Province. The Indian Political Service was composed of such officers. Rule 3 of these Rules prescribed that "the Governor, with the previous approval of the Secretary of State, may by notification in the official Gazette declare that such number of reserved posts as may be specified in the notification, may be filled by persons other than those specified in the preceding rule, and posts in respect of which such a declara--petition has been made are hereinafter referred to as "listed posts". "Rule 4(b) went on to spell out the sources of recruitment for listed posts on the judicial side, namely, the Provincial judicial service of the Province and barristers of England or Northern Ireland of Members of the Faculty of Advocates in Scotland, Vakils, pleaders of a District Court, of a certain standing. This rule contained an important proviso to the effect that no person appointed under this rule shall be appointed otherwise than in an officiating capacity unless the Governor-General in his discretion has consulted the Federal Public Service Commission, and the Commission has certified that he is in all respects fitted to hold the post in question." Sub-rule (2) of rule 4 delegated to the Governor the power to appoint any person under this rule on probation, and to prescribe the terms and conditions of his pro--bation on. ---With reference to rule 3 of the Reserved Posts (North-West Frontier Province) Rules, 1939, the Governor of that Province, with the previous approval of the Secretary of State, was pleased to declare two of the 1 posts included in the said Rules as listed posts, and direct that they hereinafter be filled by a member of the Provincial judicial service of the Province or a person who at the time of his appointment was a barrister or Vakil etc. The next document requiring to be noticed during the course of this historical survey is Notification No. 17162-AP dated the 1st of July 1943, issued by the Governor of the North-West Frontier Province in the following terms:- "In exercise of the powers conferred by section 241 of the Government of India Act, 1935, the Governor of N.W. F. Province is pleased to direct that when a member of the P. C. S. Is temporarily appointed to officiate in an inferior post included in the Schedule to the Reserved Posts (N. W. F. P.)
32. Rules, 1939, he shall, in addition to his emoluments as a P. C. S. Officer, receive a charge allowance (Special pay) of Rs. 100 per mensem plus the Special pay or compensatory allowance, if any, attached to that post. If a member of the P. C. S. Is appointed temporarily to officiate in a Superior post included in the Schedule to the Reserved Posts (N: W. F. P.) Rules, 1939, his pay shall be regulated in accordance with the Rules published in the Government of India Home Department Notification No. F. 754-22 Ests., dated the 21st of August 1924, as may be amended from time to time plus the Special pay or compensatory allowance that may be attached to that post."
33. From this somewhat lengthy survey, the legal position which emerges is that for 32 years, from 1915 to 1947, the listed posts have never been borne on the cadre of any Provincial service, although members of the Provincial services, both on the executive and judicial sides of the administration, were made eligible for promotion to these posts. In spite of the introduction of Provincial autonomy under the Government of India Act, 1935, and the division of powers and functions between the Federation and the Provinces, these superior posts continued to be borne on the cadre of the Indian Civil Service. Under subsection (2) of section 250 of the Government of India Act, 1935, it was expressly stipulated that the rules made by the Secretary of State-in-council under the preceding sections of the Act, were to apply, with such exceptions and modifications as he may decide, in relation to any person, not being a person appointed by the Secretary of State or the Secretary of State-in-Council, who holds or has held a reserved post In pursuance of these statutory powers, rules were in fact made by the Secretary of State-in-Council, and under delegation from him by the Provincial Governor concerned, in 1939, 1940 and 1943 for determining the number of posts to be held by persons other than those belonging to the Indian Civil Service, their inter se seniority, their seniority vis-a-vis the regular members o the Indian Civil Service, and the emoluments payable to them in an officiating, temporary or substantive capacity. Finally, all substantive appointment to the listed posts were to be made by the Secretary of State-in-Council.
34. The Rules made by the Governor of the North-West Frontier Province in 1939 and in 1943 did not in any manner affect this legal position. In 1939, the Governor of that Province simply declared that two judicial posts would, be treated as listed posts, and this he did in exercise of the power delegated him by the Secretary of State-in-Council. In 1943, the Governor prescribed in the first place, the emoluments payable to a P. C. S. Officer appointed to officiate in an inferior post. This subject had at no stage been covered by any of the rules made by the Secretary of State-in- Council, and the rule made in this behalf had direct reference to the power conferred on the Provincial Governor under section 241 of the Government of India Act, 1935.
35. The second part of the order issued by the Governor on the 1st of July 1943 simply reiterated that the salary of a P. C. S. Officer appointed temporarily to officiate in a superior post was to be regulated in accordance with rules contained in the Government of India Home Department notification dated the 21st of August 1924, which embodied the Resolution of the Secretary of State in Council dated the 15th of July of that year.
36. A word may also be said here about the implications of section 254 of the Government of India Act, 1935, on which particular emphasis was placed by the learned counsel for the appellant. This section is in the following terms:- "254.-(1) Appointments of persons to be, and the posting and promo--petition of, district judges in any Province shall be made by the Governor of the Province, exercising his individual judgment, and the High Court shall be consulted before a recommendation as to the making of any such appointment is submitted to the Governor.
(2) A person not already in the service of His Majesty shall only be eligible to be appointed a district judge if he has been for not less than five years a barrister---a, member of the Faculty of Advocates in Scotland, or a pleader and is recommended by the High Court for appointment.
(3) 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, Additional Sessions Judge, and Assistant Sessions Judge."
37. This section makes special provisions regarding the appointments of persons to be, and the posting and promotion of, District Judges in any Province, and gives the relevant powers to the Governor of the Province in consultation with the High Court. The section does not, however; empower the Governor to make rules regulating the terms and conditions of persons to be appointed to these posts. The meaning of the special provisions embodied in this section becomes clear when it is read in conjunction with the provisions contained in sections 244 to 250, as well as section 255 of the Act. A resume of the provisions of the preceding sections has already been given by us in an earlier port of this judgment, and we have specifically pointed out that the superior judicial posts of District and Sessions Judges and Additional District and Sessions Judges or Assistant Sessions Judges continued to be borne on the cadre of the Indian Civil Service, and remained subject to the rule-making power of the Secretary of State-in-Council. Sub--section (2) of section 250 specifically enacts that persons other than those appointed by the Secretary of State-in-Council, who hold reserved posts shall be governed by rules made by the Secretary of State, with such exceptions and modifications as that authority may decide. In accordance with the principle of harmonious construction of statutes, the scope of section 254 of the Act must be held to exclude the framing of rules regulating the terms And conditions of service of, and the emoluments payable to, the persons holding the posts of District Judges comprised in the cadre of the Indian Civil Service, and referred to as listed posts in successive rules made after the enactment of the 1935 Act.
38. This position becomes further clear when we find that section 255 dealing with the subordinate civil judicial service, gives power to the Governor of each Province to make rules regarding qualifications to be attained by persons desirous of entering the subordinate judicial service of a Province, and to hold a competitive examination in this behalf. Subsection (2) of this section deals with further details of recruitment etc. To the Provincial judicial Civil Service, and subsection (3) of the same: section gives certain powers to the High Court in connection with the-- posting and promotion of, and the grant of leave to, persons belonging to the subordinate civil judicial service of a Province, and holding any post inferior to the post of a District Judge. The scope of sections 254 and 255 is thus radically different and clearly indicates that section 254 --was not intended to detract from the rule-making power which had already been conferred on the Secretary of State- in-Council by sub--section (2) of section 250 of the Act in relation to holders of listed posts.
39. One last point needing to be noticed in this context is that while subsection (1) of section 246 gives the rule-making power with regard to reserved posts, to the Secretary of State, yet subsection (2) of the same section gives the power of appointment to a Provincial Governor in regard to reserved posts in connection with the affairs of a Province. In other words, the power of appointment is being distinguished from the rule-- making power. It seems to us that the same principle underlies the power of appointment, posting and promotion of District Judges conferred on the Provincial Governor by section 254 of the Act, namely, that it is of a limited character and does not extend to the making of rules for regulating their emoluments and other conditions of service as holders of judicial listed posts.
40. We may now proceed to examine the changes which were brought about on the Partition of the Indian sub-continent, and the establishment of Pakistan on the 15th of August 1947. Subsection (1) of section M of the Indian Independence Act, 1947 laid down that "the provisions of this Act keeping in force provisions of the Government of India Act, 1935, shall not continue in force the provisions of that Act relating to appoint--ments to the civil services of, and civil posts under, the Crown in India by the Secretary of State, or the provisions of that Act relating to the reservation of posts".
41. Subsection (2) of the same section granted protection in certain matters to persons appointed by the Secretary of State to a Civil Service of the Crown in India, and to Judges of the Federal Court and the High Courts, who continued in service after the appointed day.
42. Although provisions relating to reserved posts were no longer to continue in force after dependence, yet by virtue of section 276 of the Government of India Act, 1935, as adapted for Pakistan, "until other provision is made under the appropriate provisions of this part of this Act, any rules made under the Government of India Act relating to the civil services of; or civil posts under, the Crown in India which were in force immediately before the commencement of Part III of this Act, shall notwithstanding the repeal of that Act, continue in force so far as consistent with this Act, and shall be deemed to be rules made under the appropriate provisions of this Act." The object underlying this section was obviously to ensure the continuity of the functioning of the civil administration in the newly created dominions of India and Pakistan. That this was indeed the object is also clear from the position adopted on behalf of the appellant himself, when it is asserted that listed posts continued to be available in the North-West Frontier Province, and that they also continued to carry the emoluments prescribed for them by the Secretary of State in Council by the Resolution of the 15th of July 1924. That being so there is no escape from the conclusion that the other rules,-- framed under the Government of India Act, 1935, also continued to apply to these posts, with the result that they must be regarded as continuing. On the cadre of an All-Pakistan Service, under the rule-making control and power of the Governor-General of Pakistan, who had taken the place of' the Secretary of State for India.
43. By the Constitution (Second Amendment) Act, 1951, a new section 10-A-- was added to the Indian Independence Act, 1947, stating that "for the --removal of doubts it is hereby declared that, subject to the other provisions of this Act and of the Government of India Act, 1935, the power to, alter any order, rule, regulation or other instrument passed or made by the Secretary of State or the Secretary of State-in-Council and existing immediately before the 15th day of August 1947 and continuing on and after that day as part of the law of Pakistan by virtue of section 18 of this Act is vested in the Governor-General and may be exercised by him by order". We have already seen that in so far as the listed posts were concerned the power to make substantive appointments and to make rules regulating their terms and conditions of service and the emoluments payable to the holders thereof continued to vest in the Secretary of State for India in spite of the introduction of Provincial autonomy. As a result, the only change which was brought about by the promulgation of the Indian Independence Act, 1947, was to entrust these powers to the Governor-General of Pakistan, and this section was, therefore, purely, declaratory in nature.
44. Section 263 of the Government of India Act, 1935, as adapted for Pakistan, provided that "if an agreement is made between the Federation: and one or more Provinces, or between two or more provinces for the maintenance or creation of a service common to the Federation and one or more Provinces, or common to two or more Provinces, or for the maintenance or creation of a post the functions whereof are not restricted to the affairs of the Federation or one Province, the agreement may make provision that the Governor-General or any Governor, or any Public Service Commission, shall do in relation to that service or post anything which would under the provisions of this Chapter be done by the Governor or the Provincial Public Service Commission if the service or post was a-- service or post in connection with the affairs of one Province only." Acting under the enabling provisions of this section, the Government of Pakistan, in the Establishment Division of the Cabinet Secretariat,, published Resolution No. F. 25/4/50-Ests (SE1) on the 8th of November 1950 regarding the formation of the Civil Service of Pakistan (including Judicial --Branch). In the Schedule of posts borne on the cadre of the new service, superior judicial appointments existing in the Provinces were included. In the main body of the Resolution it was laid down that a certain percentage of the superior posts allocated to the Provinces shall be treated as listed posts, appointments to which will be made from among the --members of the Provincial Civil Service in consultation with the Pakistan Public Service Commission. It was further stipulated that the Provincial Governments could make promotions to listed posts only on an officiating basis, whereas confirmations shall be made by the Central Government. It was further laid down that "in the matter of disciplinary safeguards, permanent holders of listed posts shall have the same rights as members of the Service and they shall not be liable to be transferred away from Province in which they were serving except to the Centre."
45. Although in the preamble to the Resolution it was not stated .That it was being issued as a result of agreement between the Central .And the Provincial Governments, yet from the subsequent notes appended to the main Resolution, as printed on pages 138 to 142 of the Establishment Manual, issued by the Efficiency and O&M Wing of the Establishment Division, President's Secretariat of the Government of Pakistan in January 1963, it becomes clear that the Resolution of the 8th .Of November 1950 embodied the decisions taken as a result of consultations with the Provincial Governments. The relevant note states that `Resolution was issued by the Government of Pakistan in the official Gazette of -the 8th of November 1950, relating to the formation of the Civil Service .Of Pakistan. That Resolution contained the principal decisions of the Government of Pakistan with regard to the creation of the Civil Service of Pakistan, but certain other decisions were taken by the Central Govern--ment, after consultation with Provincial Governments which were not incorporated in the Resolution, and these decisions are now communica--ted." (p. 138).
46. With the establishment of the Civil Service of Pakistan under this Resolution of the 8th of November 1950, the pre-Independence Indian Civil Service and its short lived successor, the Pakistan Administrative Service, disappeared. Further, the Resolution took the place of the former rules made by the Secretary of State-in-Council in respect of the matters covered by the Resolution.
47. It was submitted by Mr. Mahmud A.I Qasuri that this resolution could not be regarded as being an action in pursuance of the provisions contained in section 263 of the Government of India Act, 1935, as the Resolution does not refer to the said provision, nor is it formulated in the manner of formal statutory rules. He sought to enforce this argument by reference to the C. S. P. (Composition and Cadre) Rules, 1954, to which we shall presently refer. The forwarding letter to those rules states that they give statutory effect to the resolution issued by the Central Government on the 8th of November 1950. The learned counsel submitted that in view of the formality attaching to the Rules, 1954 all orders issued prior thereto should be regarded as being in the nature of merely preparatory arrangements, which could not have effect under section 263 of the Act.
48. We regret we do not see much substance in this submission. Section 263 does not prescribe any formal mode or procedure concerning the expres--sion of the agreed arrangement regarding the setting up of an All-Pakistan Service. Nor does an act or action of a specified authority become invalid merely by the omission to refer to the relevant statutory provisions, as long as the statutory power to perform the act or action exists. We also find that the Resolution in question does not suffer from any lack of formality or precision.
49. This Court has stated on several occasions that even instructions f contained in Memoranda.
50. Issued by the appropriate Government could be regarded as being in the nature of statutory rules provided they are expressed with precision and yet possess generality so as to be capable on application to a large number of cases-See Pakistan v. Abdul Hamid (PLD 1961 SC 105),I Province of West Pakistan v. Din Muhammad (PLD 1964 SC21), Government of West Pakistan v. A. A. Aziz (PLD1966SC188) and Habibur Rehman v. West Pakistan Public Service Commission (PLD1973SC144).
51. The Resolution issued by the Central Government on the 8th November 1950 regarding the creation of the Civil Service of Pakistan amply fulfils these requirements.
52. These Rules continued to hold the field even after the enforcement of the 1956 Constitution of the Islamic Republic of Pakistan. Although Article 182 of that Constitution clearly democrated the powers of the Presi--dent and the Governors as regards the services and posts of the Federation and the Provinces respectively, yet Article 183 continued in existence the All-Pakistan Services which were in existence immediately before the Con--stitution day. Clause (2) of this Article provided that "Parliament shall have exclusive power to make laws with respect to the All-Pakistan Services, and clause (3) stipulated that "Articles 182 and 188 of the Constitution shall apply to the All-Pakistan Services as they apply to Services of the Federa--petition." It appears, therefore, that the 1956 Constitution did not interfere in any manner with the continuance in force of the C. S. P.
53. (Composition and Cadre) Rules of 1954.
54. The abrogation of the 1956 Constitution owing to the imposition of Martial Law in 1958 did not affect the composition and functioning of the Civil Services of Pakistan, not did it alter the structure of the superior posts borne on the cadre of the service. It was in pursuance of the provisions contained in the 1954 Rules that the appellant was confirmed on a listed post with effect from the 1st of May 1961 by the order of the President of Pakistan.
55. As the appellant's confirmation on a listed post was given retrospective effect from 1-5-61, and the emoluments payable to him from that date are not in dispute in the present proceedings, it is not necessary to refer to the provisions of the 1962 Constitution relating to the All-Pakistan Services.
56. However, it was brought to our notice that in 1967, Listed Posts (Substantive Appointments) Act (XVI of 1967), was promulgated under Article 131(2) of the 1962 Constitution so as to provide for substantive appointments to listed posts by the President of Pakistan. Section 4 of this Act validated all appointments made before the commencement of the Act. Section 5 of the Act conferred powers on the President of Pakistan to make Rules to prescribe the percentage of listed posts, the remuneration and other terms and conditions of service of persons appointed to those posts, and such other matters as may be necessary for carrying out the purposes of this Act. This Act once again made it clear that the listed posts were to continue to be borne on the cadre of the Civil Service of Pakistan, and within the rule--making power of the President of Pakistan. There was no question of these posts being regarded as falling within the rule-making power of the Governors of the various Provinces.
57. An examination of the relevant legal instruments since 1947 thus confirms the position that there was no change in the status and character of listed posts owing to the Partition of the sub- continent and the establishment of Pakistan. They have continued to be borne, firstly, on the cadre of the old Indian Civil Service, and then, its successor, the Civil Service of Pakistan, substantive appointments to which were to be made only by the President of Pakistan. He is the appropriate statutory authority to regulate the terms and conditions of their service, including the emoluments payable to the holders of these posts, and the determination of their seniority etc. There is accordingly no room for the argument that the emoluments specified in the Resolution of the Secretary of State-in-Council dated the 15th of July 1924 could not be altered by the Governor- General or the President of Pakistan as the case may be, and that this power had since devolved upon the Provincial Governor.
58. Such being the case, it now remains to be seen what changes were brought about by the Governor-General or the President of Pakistan in the matter of emoluments payable to the holders of listed posts, and whether the appellant was in any manner protected in respect of the application of the new Rules promulgated from time to time.
59. The first in the series is the Memorandum No. 3885-EC-11/48 dated the 12th of July 1948, issued by the Government of Pakistan, in the Ministry of Finance, directing that in case of promotions made after the 18th of July 1947, the pay on promotion will be limited to the pay of the original post plus 30 % of the pay of the new post whichever is less. The power to impose a cut m salaries was specifically conferred on the Government of Pakistan by the proviso to subsection (2) of section 10 of the Indian Independence Act, 1947, as added by the Indian Independence (Second Amendment)
60. Act, 1948, thus taking away the protection which had been earlier granted to officers appointed by the Secretary of State or the Secretary of State-in-Council under subsection (2)(a) of section 10 of the Act. These orders were in force when the appellant was temporarily promoted to officiate as Additional District and Sessions Judge, Peshawar, at Mardan, from 5-6-1950 to 1-10-1950. His salary for this period was, therefore, to be fixed under the Resolution of 1924 read with the orders made by the Government of Pakistan on the 12th of July 1948, as he did not enjoy any statutory protection in this behalf.
61. New scales of pay were prescribed for the Central Services under the Central Gazetted Services (Revision of Pay) Rules, 1951, promulgated on the 4th of May 1951. As the position taken up by the Central and the Provincial Governments is that the appellant's salary is not to be regulated by these Rules, as such, it is not necessary to notice them any further.
62. On the 23rd July 1953, letter No. 25/35/50-SE-1 was issued by the Estab--lishment Division of the Cabinet Secretariat of the Government of Pakistan, on the subject of fixation of pay of the Officers of the Provincial Civil Service appointed to hold superior posts on the Cadre of the Civil Service of Pakistan in the Provinces. It is not necessary to set out here, in any detail, the contents of this letter, except to say that on officiating promotion, the P. C. S. Officers were to draw salary in the senior time-scale prescribed for the Civil Service of Pakistan under the Central Gazetted Civil Services (Revision of Pay) Rules, 1951, subject to certain conditions in the matter of not increase in salary, accrual of increments, and drawal of special pay, etc. Paragraph 3 of this letter allowed the old Indian Civil Service grade in the terms of the 1924 Resolution to those officers of the Provincial Civil Service who were permanent members of that service on the 18th July 1947 and were appointed to a superior post on the Cadre of the Civil Service of Pakistan with effect from a date prior to the 1st of January 1949, provided the post fell within the quota of posts reserved for the members of the Provincial Civil Service under the Government of Pakistan Resolution of the 8th of November 1950.
63. Paragraph 5 of this letter made provision for the payment of the old Indian Civil Service scale of pay to other officers of the Provincial Civil Service on their substantive appointment to listed posts falling within the quota reserved for the Provincial Civil Service. Paragraph 6 of these orders withdrew with retrospective effect from the 1st .Of April 1951 the restrictive orders of the 12th of July 1948.
64. As a result of these orders those officers of the Provincial Civil Service who were not protected in terms of paragraph 3 of this letter were to draw pay in the new time-scale prescribed for the Civil Service of Pakistan in 1951, while officiating on a listed post, although they were given the benefit of the old Indian Civil Service Scales on their substantive appointment in terms of paragraph 6 of the letter. This formula has been applied in the case of the appellant for the entire period of his continuous officiation against a listed post from 27-8-1952 to the 30th April 1961. As already stated, from the date of his confirmation, namely, 1-5-1961, he has been allowed the old Indian Civil Service scale of pay.
65. As no protection was available to the appellant under the Indian Inde--pendence Act of 1947, or any other statute, in the matter of prospects of promotion and fixation of salary on officiating appointment on a listed post, when the 1953 Rules were promulgated, there is no escape from the applica--petition of these Rules in his case. It seems to us, therefore, that from the date of the promulgation of these Rules, namely, the 23rd July 1953, his salary and emoluments have to be determined in accordance with these Rules.
66. However, these Rules cannot- be applied retrospectively to regulate the salary payable to the appellant from 27-8-1952 to 22-7-1953. It is well settled that Rules cannot operate retrospectively- See Ataur Rehman Khan v. Province of West Pakistan (PLD 1958 Lah. 180), Government of Pakistan v. S. A. H. Bokhary (PLD 1961 SC 605), Pro--vince of West Pakistan v. S. I. Mahbub (PLD 1962 SC 433) and Government of West Pakistan v. Nasir M. Khan (PLD 1965 SC 106). For this period, the salary payable to him is to be regulated according to the orders contained in the Secretary of State's Resolu--petition of the 15th of July 1924 read with the notification issued by the Governor of the North-West Frontier Province on the 1st of July 1948. In other words, he has to be given a starting salary of Rs. 1,275 p.m., in the old Indian Civil Service grade of Rs. 1,275-2,250 p.m., including the benefits of previous officiating service for the purposes of increments etc., as indicated in the Resolution itself.
67. For the foregoing reasons, the appeal fails, and is hereby dismissed, except with regard to the period from 27-8-1952 to 22-7-1953, as indicated above. In view of the legal questions involved, the parties are left to bear their own costs.
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