NOORUL ARFIN, J. The question, which falls for determination in this case is whether the petitioner was prematurely retired from service under the Government of West Pakistan, now succeeded by the Government of Sind. The facts on which this petition was brought are these. On 2nd February 1942, the petitioner joined the Army of pre-Partition India as a Viceroy's Commissioned Officer. He was released from the Army on 22nd July 1947. On 17th June 1948, the petitioner was appointed as Taxation Sub-Inspector in Punjab on a temporary basis. On 5-8-1966, the petitioner was promoted as Excise and Taxation Inspector by the Board of Revenue; West Pakistan. This appointment was for Region `C', that is, Punjab --Bahawalpur Area. The order of promotion dated, 5-8-1966 has not been made available to this Court. But on record there is an order of 18th March 1969 (Annexure `B' to the petition), which is to the effect that the petitioner, who was then holding the office of Officiating Excise/Taxation Inspector of `C' Region, and several other Officiating Excise and Taxation Inspectors, had been confirmed as Excise/ Taxation Inspector with effect from 5-8-1966 against z substantive permanent vacancy. By a letter dated 4-7-1969, the Board of Revenue, West Pakistan, communicated to the petitioner adverse remarks said, to have been recorded in his Confidential Reports for the years 1963, 1964 and 1966. This late communication of adverse remarks would appear to be contrary to the policy decision of the then Government of West Pakistan contained in the Services and General Administration Department Letter No. S. (R)-1487/ 4-1/69-SO XIII, dated 12th July 1969. Nothing much turns on this letter with regard to the present case, as the adverse remarks are not the basis on which the petitioner was compulsorily retired from Government service, and there would appear to be much substance in the contention of the petitioner that, if, in fact, he was found inefficient in 1963, 1964 and 1966, theta he would not have been allowed to draw annual increments of pay, nor promoted to and confirmed in the post of Excise and Taxation Inspector in -1966.
2. On 28-4-1970, an order was issued for retirement of the petitioner from Government service on the ground that he had completed on 16th April 1969, 25 years of qualifying service for pension. This order was made to take effect from 11th May 1970. The order was made in exercise of the powers conferred on the Government for retirement of Government- servants by the Constitution (Sixth Amendment) Act, 1966, which added clauses (4), 15) and (6) to Article 178 of the Constitution of 1962. The provision relevant to the present case is clause (4) added to Article 178 by this amend-- ment. It reads as follows.
"(4) A person whose terms and conditions of service are governed by Article 127 or Article 154 or Article 176 (not being a member of the Armed Forces of Pakistan) or paragraph (b) of Article 181 shall, notwithstanding anything contained in this Constitution or in any law or in the terms and conditions of his service, retire from service
(a) on such date after he has completed twenty-five years of service qualifying for pension or other retirement benefits as the competent authority may, in the public interest and subject to the provisions of Article 185 or, as the case may be, Article 186, direct; or
(b) if he has completed before, or completes within a period of six months from, the commencement of the Constitution (Sixth Amend--ment) Act, 1966, the fifty-fifth year of his age, on such date after such completion, being a date within the said period, as the competent authority may direct, or in the absence of such direction, on the expiry of the said period, or on the completion of the sixtieth year of his age, whichever be earlier; or
(c) in any other case, on the completion of the fifty-fifth year of his age."
3. It would appear that, in making the order of retirement of the petitioner on the ground that he had completed 25 years of service, the period of the petitioner's service was computed from 2-2- 1942, that is the petitioner's war service was included in the total period of service with the Government of West Pakistan. The petitioner's contention is that this could not be done because as early as 27th January 1956, the Government had declined to include the petitioner's war service in computation for the purpose of fixing his seniority do the ground that he was not appointed against the vacancy reserved for war service candidates. In this connection, the petitioner has produced Annexure `K', which reads as follows: "Copy of memo. No. 225 M. C., dated 27-1-1956 from the D.D.E.T., Multan Cle. To the address of A.E.T.O.
Jhang.
Subject.---Counting of War Service toward seniority.
S. Zahurul Hassan Zaidi, T. S. I. Jhang should please be informed that his war service cannot be counted towards seniority under the Orders contained in the Punjab Government Letter No. 6692- G-48/10917, dated 16-2-1949 against the vacancy reserved for war service candidates.
No. 113 E. T. I.
Excise and Taxation Office, Jhang, dated 31-1-1956 Copy forwarded to the T. S. I. For information."
4. In the petition, as originally filed, only the Member (Excise & Taxation), Board of Revenue of West Pakistan, Lahore was made respondent. On the break up of the West Pakistan into various provinces, the petitioner applied to make the Central Government, the Province of Punjab, the Province of Sind, the Province of N. W. F. P. And the Province of Baluchistan as respondents in this petition. This amendment was allowed on 4th November 1971. The case came up before us on several, dates. The original stand of the Advocate-General (Sind) was that the Province of Sind was not at all a proper party to this case, as the petitioner was never in the service of the Government of Sind. As regards the other respondents, that is, the Central Government and the Provinces of Punjab, N: W. F. P. And Baluchistan, no appearance was made before us on their behalf: With regard to the contention that the Province of Sind did not owe any liability to the petitioner, it is to be recorded that the parties did not address any helpful arguments to the Court. However, the provisions of the Province of West Pakistan (Dissolution) Order (President's - Order No. 1 of 1970) and the Dissolution of West Pakistan Province (Rights, Properties, Assets and Liabilities) Order (President's Order No. 2 of 1971) were brought to the notice of the Advocate-General. Article 17, sub- Article (1), of President's Order No. 1 of 1970 reads as follows: "17. Persons in the Service of Pakistan. (1) Subject to the provisions of this order and any order made under Article 20, every person, not being a member of an All-Pakistan Service or a civil service of The Centre, who, immediately before the appointed day, was in the service of Pakistan in connection with the affairs of the Province of West Pakistan, at whatever place he may for the time being be serving, shall be deemed to be serving in connection with the affairs of the new Province in which such place is situated."
But the Advocate-General of Sind contended that this Article had no applica--tion, as admittedly the petitioner was not at all in service immediately before the appointed day, which, according to him, was the 1st of July 1970. It was then brought to the notice - of the Advocate-General that the liability of the Provinces or the Centre, as the case may be could be spelt out from Articles 19, 20 and 23 of the President's Order No. 2 of 1971. These Articles read as under: "19. (1) The liability of the Government of West Pakistan to pay the pension of any person who retired from service before the appointed day shall,
(a) if the pension was payable immediately before that day in the territories of a new Province, be the liability of that Province; and
(b) if the pension was payable immediately before that .Day in the territories of the Centrally Administered Areas, be undertaken by the President for the purposes of the new Provinces.
20. (1) The liability of the Government of West Pakistan to pay the Provident Fund balance of a.
Person who retired from service before the appointed day shall,
(a) if such person was domiciled on that day in a new Province, be the liability of that Province; and
(b) if such person was domiciled on that day in the Centrally Admin--istered Area be undertaken by the President for the; purposes of the new Provinces.
23. (1) All rights, properties, assets and liabilities of the Province of West Pakistan for the apportionment of which no specific provision has been made in this order shall, until provision to be contrary is made vest,
(a) if they ,are identifiable as being relate able to the Centrally Administered Area, in the Central Government;
(b) if they are identifiable as being relate able to any one of the new Provinces, in that Province; and
(c) in any other case, in the President for the purposes of the new Provinces and the Central Government."
5. Wet tried to ascertain whether the question as to who is liable for the relief claimed by the petitioner is not dependent on the question as to who is liable for payment of pension and provident fund to the petitioner. It will hive been noted that the payment of pension and provident fund is provided for in Articles 19 and 20 of the President's Order No. 2 of 1971. These Articles fix liability with reference to the province in which the petitioner was domiciled before the appointed day. In this connection, two points have to be taken note of, that is, firstly, at the time the order of retirement was made against the petitioner, he was serving in Karachi and, secondly, the petitioner is domiciled in Nawabshah according to the records produced in Court. Reference, in this connection, may be made to the Notification No. 4715-67/4361-E (E & T) 1, dated 28th December 1967, issued by the Board of Revenue of the then Province of West Pakistan, by which the petitioner wad transferred from Lyallpur to Karachi as Excise and Taxation Inspector, and to the Gradation List of the Government of West Pakistan (up to 31-12-1967) in which the place of domicile of the petitioner is shown to be Nawabshah. When these provisions were shown to the Advocate-General
(Sind) in 1971, then the Court was given to under-- stand by two successive law officers that the case may be settled out of Court, and that the Government may be advised to withdraw the order of retirement against the petitioner. Accordingly, the judgment was withheld, but so far nothing has turned out of the statements made at the bar.
6. We have referred above to Article 23 of the President's Order No. 2 of 1971, under which rights and liabilities of the Province of West Pakistan for which no specific provision has been made in that Order vest (a) if they are identifiable as being relate able to the Centrally Administered Area, in the Central Government; (b) if they are identifiable as being relate able to any one of the new Provinces, in that Province, and (c) in any other case, in the President for the purposes of the new Provinces and the Central Government. In our view, by reason of the provisions of Articles 19 and 20 of the President's Order No. 2 of 1971, the liability for the relief claimed by the petitioner is on the Government of Sind, as, if the petitioner had been duly and legally retired, the pension and provident fund would be payable to him in the territory of the Province of Sind. Alternatively, by reason of clause (c) of Article 23(1) of the President's Order No. 2 of 1971, this liability shall be of the Central Government.
7. At one stage, it was contended that the war service of the petitioner was properly included in the computation of 25 years for the purpose of his retirement from Government service. In this connection, reference was made to the Supreme Court decision in Manzur Ahmad, P. F. S. v. The Province of West Pakistan and others (PLD 1961 SC 166), in which it was held that it was not correct that the Punjab Government Service (War) Amendment Rules, 1943, had ceased to have statutory effect after the 1st January 1946, the date of termination of operation of rule 3, and that the Rules, as a whole, were still in force, but with this qualification that the provision requiring reservation of vacancies arising after the 18th of September 1943, for war service candidates came to an end on the 1st January 1946. Still, it was held that the instructions issued by the Government read with the remaining provisions of the Rules of 1943 made it clear that war service candidates were not only eligible for appointment for any vacancies that might arise in the Punjab Government Services after the 1st January 1946, but that they would be given preference in relation to such vacancies and that their rights as to age, qualifications, and seniority, would remain as had been provided by the Rules. In the same judgment, their Lordships further held that though Rule 6 gave were discretion to the appointing authority in fixing seniority, the withdrawal of concession of seniority in relation to non-reserved vacancies by "instruction" of the Chief Secretary to the Government was invalid. On the authority of this decision, it was argued that the petitioner's war service was properly included in his total period of service for the purpose of his retirement and qualification for pension.
But, it has to be noted that later the Government of West Pakistan promulgated Ordinance XLI of 1963. This Ordinance repealed the Punjab Government Services (War) Amendment Rules, 1943 with retrospective effect on and from the first day of January 1946 and made the following provisions in section 3 with regard to seniority "3. Determination of seniority. Any person, with war service to his credit, on appointment to a vacancy shall, as nearly as possible, be assigned a place in the respective service-
(a) in case such person was appointed to a reserved vacancy referred to in the Rules, in accordance with rule 6 of the Rules;
(b) in case such person was appoint d to a non-reserved vacancy, in accordance with rules for the time being in force regulating the fixation of inter se seniority of all persons appointed to the service or group of posts during a year whether by the recruitment, or by promotion, or by transfer to and confirmation in the service or group of posts."
It was pointed out that, 'since the petitioner had been appointed to a nor reserved vacancy, it may, perhaps, be correct that his war service could not be taken into consideration, to fix his seniority, and consequently;' not even for the purpose of fixing the 25 years' period of service for retirement under Article 178 of the Constitution of 1962. But the petitioner placed on record a copy of Letter No. S(R)-2971/2-4/61-SO X111, dated the 10th of April 1965, from the Chief Secretary to Government of West Pakistan, addressed to all Administrative Secretaries, Heads of Attached Departments, etc., in which the position with regard to this Ordinance was clarified. This Ordinance was allowed to lapse and a. Bill, which had been brought before the West Pakistan Legislature on the lines of the Ordinance was withdrawn. According to this circular, the West Pakistan Government took the stand that, since the Ordinance XLI of 1963 was neither approved nor disapproved by the West Pakistan Legislature, it should be deemed Act, by reason of the provisions of clause (4) read with clause (6) of Article 1'9 of the Con--stitution of 1962, this Ordinance stood repealed and the repeal would not revive anything not in force or existing at the time at which the repeal took effect and to affect the previous operation 'of the law or anything duly done suffered under the law. Therefore, it was contended that section 3 of Ordinance XLI of 1953, notwithstanding the fact that the Ordinance had lapsed, which lapse had the effect of repeal, the position now was that a person with war service to his credit, appointed to a non-reserved vacancy, could claim seniority on the basis of this war service, and that his seniority was required to be fixed according to the rules for the time being in force regulating fixation inter se of seniority of all persons appointed to the service or group of posts during a year, whether by recruitment or by pro--motion or by transfer to and confirmation in the service or group of service. We are, therefore, of the view that the petitioner's stand is correct that, since his war service could not be taken, and was not, in fact, taken into consideration for the purpose of fixing his seniority, his war service could not on the same reasoning, be taken into consideration for computing the period of 25 years for the purpose of his retirement under Article 178 of the Constitution of 1962.
8. We may here refer to the policy of the Government of West Pakistan outlined in the circular just above referred to which is to the following effect: (1) as from 1st day of January 1946, war service candidates were no more entitled to the benefit secured to them under the War Service (Amendment) Rules, 1943, unless their case was covered by the first proviso to section 2 of Ordinance XLI of 1963; (2) the appointment of a war service candidate cannot be disturbed, and similarly, if he has secured the benefit in the matter of increment or seniority and in accordance with the rules, the same cannot be interfered with and is to be allowed to continue; (3) if there be a case in which the said benefit has not been actually secured to the war service candidate, then he cannot be helped in the matter any more; and (4) concession in the matter of seniority can be secured only to the persons who were appointed to a "reserved" vacancy, while the seniority of the persons who were appointed to a non-reserved vacancy is to be determined in accordance with the service rules.
9. Thus, the Government of West Pakistan's own policy was that war service of a person appointed to a "non-reserved vacancy" should carry no privilege or advantage. In fact, by the Memorandum dated 27th January 1956, reproduced above the petitioner was denied this advantage and privilege for the purpose of fixing of his seniority, so that it was not open to the Government, after refusing to take into consideration the petitioner's war service to fix his seniority, to include this service in the computation of 25 years for the purpose of his retirement under Article 178 of the Constitu--tion of 1962. We would, therefore, hold that the order dated 28-4-1970, by which it was sought to retire the petitioner from service with effect from 11-5-1970 was without any legal authority or legal effect, as the petitioner had not, on that day, completed 25 years of service which is one of the conditions for retirement under Article 178 of the Constitution of 1962. This being so, the petitioner still continues to be in service. The relief of this declaration is given to the petitioner both against the Province of Sind and also against the Central Government by reason of the provisions of Article 23(1)(c) of the President's Order No. 2 of 1971. It may be added here that, after hearing of the petition, one question engaged our attention and it was whether this constitutional petition, which had been filed under Article 98 of the 1962 Constitution, had abated on the enforcement of the Interim Constitution. By a judgment of a Pull Bench of this Court in High Court Appeals _4 --- of 1972, 5 of 1972, 4 of 1973, 24 of 1973 and 44 of 1973 given on 14-12-1973, this question has been answered in the negative.