ANWARUL HAQ, J.---The petitioner, M. G. Hassan, is an employee of the Pakistan Ordnance Factories at Wah Canton--ment, under the control of the Ministry of Defence, Government of Pakistan. He is an optee from India and, after serving in various positions in the Explosives Group of the Factories, he was appointed as Superintendent of that Group on the 28th of May 1962. He was confirmed as such on the 18th of December 1962. In the petition a detailed account is given of the qualifica--tions and experience acquired by the petitioner in various positions held by him and the appreciations earned by him from his superiors, but for our present purposes it is not necessary to re-count those details. On the 5th of April 1963, the petitioner was transferred from the post of Superintendent (Explosives) to the post of Superintendent (Specifications and Material Control) under the Director of Industrial and Commercial Relations. On the 8th of July 1963, some adverse remarks recorded on his work by the Principle Technical Executive were communicated to him.
While employed as Superintendent (Specifications and Material Control) the petitioner detected a deficiency and reported the same on the 23rd and 26th of July 1963, suggesting that two officers of the Junior Administrative Grade and one of Class I Senior Scale were involved in the theft of material. It is stated that this vigilance on the part of the petitioner was not appreciated by the authorities, and instead he was rewarded by a note of disapproval from the Chairman of the Pakistan Ordnance Factories Board. The petitioner 'thereupon represented to the Secretary, Ministry of Defence, who was pleased to order that the remarks would not form part of the petitioner's character roll and would not affect his future carrier. The decision of the Ministry of Defence was received by the petitioner on the 28th of July 1964.
2. On the 17th of September 1964 the petitioner received a notice dated the 16th of September 1964, issued by the Chairman of the Review Committee for Class I Officers of the Pakistan Ordnance Factories, informing the petitioner that although be had good experience in production of explosives, yet he was not able to run a happy team and that was the reason why he had to be removed from the Explosives Factory, the only place where he could be useful. The notice directed him to appear before the Review Committee on the 21st of September 1964 to show cause why he should not be retired for the reason that he had outlived his further usefulness in public service beyond 55 years of age. It may be stated here that the petitioner had completed his 55th year of age on the 8th of June 1964.
3. The petitioner appeared before the Review Committee as directed in spite of the fact that he had been given only three days to prepare his defence, and made his submissions orally as well as in writing. It appears, however, that the Review Committee was not satisfied, and on the 21st of October 1964, he received an order dated the 19th of October 1964 to the effect that the President of Pakistan had been pleased to retire him from service with effect from the forenoon of the 20th of October 1964, subject to leave preparatory to retirement as may be admissible on the date of the order. The petitioner applied to the President for a review of this order, but his review petition was rejected on the 16th of December 1964.
4. In this petition under Article 98 of the Constitution the correctness and legality of the order passed by the President of Pakistan on the 19th of October 1964 directing the compulsory retirement of the petitioner after attaining the age of 55 years are challenged on the following grounds:-
(a) That the petitioner having acquired a vested right to remain in service until the age of 60 years under clause (9) of Article 6 of the President's Order No. 1 of 1958 as amended from time to time, subject only to a review at two stages, namely, before he was about to complete 25 years of service or the 55th year of his age, this right could not be taken away from him in view of the provisions contained in Articles 178 (3) (a) and 234 of the 1962-Constitution, and accordingly the second proviso to sub-rule (1) of rule 5 of the Civilian Employees in Defence Services (Further Usefulness in Service) Rules, 1954 (hereinafter referred to as the Rules) authorising the review of the petitioner's case even after be had attained the age of 55 years in ultra vires of the Constitution,
(b) that, in any case, the Rules in question having been promulgated on the 25th of March 1964, even under the second proviso mentioned above action had to be completed by the 25th of September 1964, and advantage could not be taken of an amendment in Rule 5 introduced on the 22nd of September 1964, extending the cushion period to twelve months, as an amendment in the Rules could operate retrospectively, and
(c) that the action taken against the petitioner is mala fide, being inspired by the fact that the petitioner had the audacity to report against certain gazetted officers in connection with the deficiency in materials.
5. On behalf of the respondent, Mr. M. A. Zullah has raised two preliminary objections regarding the maintainability of this petition under Article 98 of the Constitution, namely, (i) that the petitioner is a member of the Defence Services of Pakistan and accordingly the petition is hit by Article 98(3)(a); and (ii) that even if he is not regarded as a member of the Defence Services of Pakistan, the petition is not maintainable as it does not invoke any of the terms and conditions of service specified in the Constitution, as required by sub-clause (b) of clause (3) of Article 98.
6. On merits, it is contended by Mr. Zullah that the petitioner is not entitled to the protection and guarantees envisaged by Articles 177 and 178 of the Constitution for the reason that either he is a member of the Defence Services of Pakistan, or at any rate he holds a post in connection with Defence. Finally, it is submitted that by the amendment introduced in Rule 5 on the 22nd of September 1963 it was open to the President to order the petitioner's retirement within twelve months of the promulgation of the Rules; and that, in any case, even if the amendment in question be not held to be applicable to the petitioner's case, the matter had indeed been finalised by the Review Committee on the 21st of September 1964, and the order subsequently conveyed to the petitioner was merely a formality, in the nature of an implementation of that decision.
7. During the course of arguments Mr. M. A. Zullah, the learned counsel for the respondent, stated that he did not wish to press the point that the petitioner was a member of the Defence Services of Pakistan. Such being the case, the first preliminary objection stands withdrawn. The second preliminary objection raised by Mr. Zullah is really connected with the main question which arises in this case namely, whether the petitioner is entitled to any constitutional guarantees or not in the matter of his age of superannuation, and it will accordingly be dealt with in that context. It may also be stated at this stage that the first point as formulated by Sheikh Abdul Haq, the learned counsel for the petitioner, is not mentioned in the petition itself, but we have allowed it to be argued as it is a question of law going to the very root of the matter.
8. In this case the first question calling for determination is regarding the age of superannuation applicable to the petitioner at the time of the promulgation of the 1962-Constitution. After the abrogation of the 1956-Constitution on the 7th of October 1953 the rights of the services were preserved by Article 6 of the Laws (Continuance in Force) Order, 1958 (President's Order No. 1 of 1958) which declared that "all persons immediately before the Proclamation were in the service of Pakistan as defined under clause (1) of Article 218 of the late Constitution and those persons who immediately before the Proclamation were in office as Governor, Judge of the Supreme Court or a High Court, Comptroller and Auditor-General, Attorney-General, or Advocate-General shall continue in the said service or in the said office on the same terms and conditions and shall enjoy the same privileges, if any". By an explanation added by the President's Order No. 10 of 1959 it was permitted to grant an extension of service in the public interest to a person who would otherwise have reached the age of retirement. Article 6 clearly applied to the case of the petitioner irrespective of the category of service to which he belonged or the category of post held by him, for the reason that the term "service of Pakistan" as defined by Article 218 of the 1956-Constitution meant "any service or post in connection with the affairs of the Federation or of a Province, and includes any defence service and any other service declared as a service of Pakistan by or under an Act of Parliament or of a Provincial Legislature . . . . ." Then came President's Order No. 23 of 1960 which added clause (9) to Article 6 of President's Order No. 1 of 1958, raising the date of compulsory retirement of a person in the service of Pakistan to the date on which he attained his 60th birthday.
Sub-clause (c) of clause (9), however, provided for a review of the case when the person concerned was about to complete 25 years of service qualifying him for pension and when he was about to complete the 55th year of his age. The effect of these changes thus was that the petitioner's age of superannuation was raised to 60 years subject to review at two stages.
9. We can omit some further amendments made by the President to Article 6, and straightaway come to President's Order No. 17 of 1962 promulgated on the 18th of May 1962, by which the existing sub-clause (c) was substituted by a new one, and two provisos were also added to this sub- clause. As a considerable part of the argument turns on this clause, it may be usefully reproduced here:- "Clause (9) (c).---Notwithstanding anything contained in sub-clauses (a) and (b) the President in the case of a person who is a member of an All---Pakistan Service or a person serving in connection with the affairs of the Federation, and the Governor, in the case of a person serving in connection with the affairs of a Province, may, in order to satisfy himself of the further usefulness of any such person in public usefulness of any such person in public service, review the case of that person at two stages only, namely, when he is about to complete twenty-five years of service qualifying him for pension and when he is about to complete the fifty-fifth year of his age, and if the President or the Governor, as the case may be, is not so satisfied, he may direct that on or after the completion of twenty-five years of service qualifying such person for pension, or on or after the completion of the fifty-fifth year of his age such person be retired: Provided that if a person retired under sub-clause is fit for a lower post he may be re-employed in that post: Provided further that the case of a person, who has completed before, or completes on, or will complete within six months of the commencement of the rules made under sub-clause (d) twenty-five years of service qualifying him for pension or the fifty-fifth year of his age, may be reviewed within six months from the commencement of said rules for the purpose of this clause in the manner provided in such rules.
Explanation I-The second proviso shall not apply to a person whose case has been reviewed before the commencement of such rules for the purpose of retirement on the completion of twenty-five years of service under any rule then in force, but shall apply to a person whose case has not been reviewed for the purpose of retirement on the attainment of 55 years of age.
Explanation IL-For the purpose of this sub-clause-
(i) `a person serving in connection with the affairs of the Federation' includes an employee of the Central Government deputed temporarily to serve under a Provincial Government or with a Statutory Corporation or with a non-Government employer but does not include an employee of a Provincial Government of other authority deputed temporarily to serve under the Central Government ; and
(ii) `a person serving in connection with the affairs of a Province' includes an employee of the Provincial Government deputed temporarily to serve under the Central Government or with a Statutory Corporation or with a non-Government employer but does not include-
(a) a member of an All-Pakistan service serving in connec--petition with the affairs of a Province, and
(a) an employee of the Central Government or other authority deputed temporarily to serve under the Provincial Government ;"
10. In pursuance of the provisions contained in sub---clause (d) of clause (9) of Article 6 of the Laws (Continuance in Force) Order, 1958, the President was pleased to promulgate on the 25th of May 1962 the Government Servants (Further Use--fulness in Public Service) Rules, 1962. Sub-rule (2) of Rule 1 of these Rules states that "they shall apply to the members of All-Pakistan Service and to all persons serving in connection with the affairs of the Federation as defined in sub-clause (c) of clause (9) of Article 6 of the Order", except certain categories, namely, the employees of the Post Office Department and of the Telegraph and Telephones Department, the employees of the Pakistan Railways and persons holding such posts in connection with the affairs of the Federation as the Central Government may, by notification in the official Gazette, specify in this behalf. It has already been stated that Article 6 as originally promulgated referred to all persons in the service of Pakistan" as defined under clause (1) of Article 218 of the 1956-Constitution and that term would include the petitioner. In the Rules promulgated on the 25th of May 1962 the phrase used, apart from the All-Pakistan Services is "all persons serving in connection with the affairs of the Federation". The same phraseology appears in sub-clause (c) of clause (9) of Article 6. This phrase appears to us to be wider than the corresponding category appearing in Articles 180 and 181 of the 1956-Constitution which speaks of "a person holding a civil post in connection with the affairs of the Federation" I he words used in sub-clause (c) are not confined to persons holding civil posts but, on the contrary, speak of all persons serving in connec--petition with the affairs of the Federation. It thus appears that the Rules promulgated by the President on the 25th of May 1962 under sub- clause (d) of clause (9) were clearly intended to apply to all categories of Central Government employee (except those specifically exempted by rule 1 (2) itself) whose age of super--annuation had been raised to 60 subject to review at two stages, by sub-clauses (a) and (c) of the same clause.
11. The combined effect of the above provisions of law and the Rules appears to be that on the commencing day as fixed in the 1962-Constitution, a right had accrued to the petitioner to serve up to the age of 60 years subject to review at two stages namely, when he was about to complete 25 years of service and the 55th year of his age. The second proviso to sub-clause (c) of clause (9) was not attracted in his case for the reason that he was not "a person, who has completed before or completes on, or will complete within six months of the commencement of the rules made under sub-clause (d) . . . . . . . The 55th year of his age", as that contingency was to arise on the 8th of June 1964, i.e. More than two years after the promulgation of the Rule on the 25th of May 1962. In his case, therefore, the Rules had only a prospective application as required by the main sub-clause, if, therefore, his case was not reviewed when he was about to complete the 55th year of his age, he had a right to continue up to his 60th birthday, which was the age of superannuation applicable to him.
12. It was submitted by Mr. M. A. Zullah that the Rules promulgated by the President on the 25th of May 1962 were not applicable to the petitioner and that he was instead governed by the Civilian Employees in Defence Services (Further Usefulness in Service) Rules, 1964 promulgated by the President on the 25th of March 1964 under clause (a) of Article 176 of the present Constitution, and that action had in fact been taken against the petitioner under these rules. It was submitted that the second proviso to sub-rule (1) of Rule 5 of these Rules was in precisely the same terms as the second proviso to sub-clause (c) of clause (9) of Article of the Laws (Continuance in Force) Order, 1958. The contention in other words in that the rules contemplated by sub-clause (d) of clause (9) of Article 6 of the Order, as applicable to the petitioner, having been promulgated for the first time on the 25th of March 1964, the second proviso to sub-clause (c) in question was clearly applicable and action could, therefore, be taken against the petitioner within six months of the promulgation of these Rules.
13. We consider that the argument is untenable. We have already stated that in our view the Rules made by the President on the 25th of May 1962 were applicable to the petitioner, and the benefit of the six months cushion period envisaged by the second proviso to sub-clause (c) had clearly reference to those rules; and that, in any case, this proviso was not attracted for the purpose of deciding the petitioner's case, as he had not yet completed the 55th year of his age the question of 25 years' service not being relevant in the present case. In the second place, assuming that the Rules made on the 25th of May 1962 did not apply to the petitioner, then it means that until the 1962---Constitution was promulgated no rules were made by the President, in respect of the petitioner, under sub-clause (d) of clause (9) and, therefore, the question of invoking the second proviso to sub-clause (c) did not at all arise. It must be remembered that the age of superannuation having been raised to 60 years, the provisions contained in sub-clause (c) in the nature of an abridgement of that right, and have to be construed strictly, especially when there is no ambiguity in the relevant proviso to sub-clause (c) which clearly refers to rules made under sub-clause (d) of clause (9) if, therefore, no rules are made under sub-clause (d) of clause (9) then the question of allowing six months cushion period for a certain class of case does not arise.
The only limitation in such a situation would be the one contained in sub-clause (c) itself, the second proviso being then inapplicable.
14. A similar question arose for consideration in Karawat Ullah Khan v. The Government of West Pakistan (PLD 1966 Lah. 881) and it was observed by the learned Judges:- "It implies in the proviso that the case of a person could not under sub-clause (c) be reviewed after he had completed 25 years of his service of 55th year of his age, and a necessity was felt to make a special provision for it by way of this proviso No such action; however, could be taken under President's Order No. 17 of 1962 itself. It could be done only by rules male under sub-clause (d) of clause (9) of Article 6 by the President or by the Governor with the approval of the President, as the case might be. Unless the rules were so made, the case of such a person could not be reviewed at all. The power could again be exercised for a maximum period of six months from the date of the making of the rules. The period of six months, having been provided by the supra-constitutional document, could neither be reduced nor increased by the rules or by any subordinate legislation.
Thus if rules were not made, this power could not be exercised to retire such a person prior to his attaining sixtieth year of his birthday. The exercise of the power was, therefore, dependent on the making or the existence of the rules made under sub-clause (d). The President did make the rules on the 25th of May 1962, and he could thus review the case of such a person by or before the expiry of six months of the making of these rules i.e. The 25th of November 1962
15. The same view was taken by a Full Bench of this Court in A. M. Khan Leghari v. The Government of Pakistan (PLD 1965 Lah. 214). It was emphasized that the review contemplated was to be held before a person completed 25 years of service qualifying him for pension and before he completed the 55th year of his age, subject, of course, to the second proviso to sub-clause (c) of clause (9) of Article 6 of the Order. With reference to the Rules promulgated by the President on the 25th of May 1962, it was held that the case of the petitioner before their Lordships could only be reviewed on or before the 25th of November 1962. It was further held that in view of the provisions contained in clause (c) of Article 250 of the 1962-Constitution of repeal of the Laws (Continuance in Force)
Order, 1958 did not affect "any right, obli--gation or liability acquired, accrued or incurred thereunder".
16. The next question is whether the right which had thus accrued to the petitioner to continue in service until his 60th birthday, subject to review before he attained his 55th year of age, stands protected by any of the provisions contained in the present Constitution. The four Articles of the present Constitution which are relevant in this context are Articles 176, 177, 178 and 234. Article 176 lays down that "subject to this constitution a person who is a member of an All-Pakistan Service, of any of the Defence Service of Pakistan or of a civil service of the Centre, or who holds a post connected with defence or a civil post in connection with the affairs of the Centre, shall hold office during the pleasure of the President." A similar provision is also included in this Article regarding the Provincial Services. The pleasure of the President, or of the Governor, as the case may be, is, however, subjected to certain limitations by the succeeding two Articles. The safeguards against arbitrary dismissal or removal from service or reduction in rank contained in Article 177, however, apply only to "person who is a member of an All-Pakistan Service or of a Civil service of the Centre or of a Province, or who holds a civil post in connection with the affairs of the Centre or of a Province". It will be seen that Article 177 excludes from its purview: (i) a person who is a member of any of the Defence Service of Pakistan and (ii) a person who holds a post connected with defence.
Thus the guarantees contained in Article 177 are not available to these two categories. The petitioner undoubtedly holds a post connected with defence.
17. It appears that the scheme underlying Articles 176 and 177 of the present Constitution is similar to that adopted in Articles 180 and 181 of the 1956-Constitution which came in for interpretation by the Supreme Court in Pakistan v. Muhammad Ayub Khan (PLD 1965 SC 661). It was held that "Article 181 applies to a person who is a member of a Civil Service of the Federation or of a Province or of an All-Pakistan Service or holds a civil post either in connection with the affairs of the Federation or in connection with the affairs of a Province . . . . . . . . Turning back to Article 180 it will appear that it mentions some categories of services and two categories of posts. Prima facie this division of posts into posts connected with defence and civil posts means that these two categories are exclusive of each other so that if a post falls in one category it cannot fall in the other. Nothing has been said before us in argument which might negative this inference". Having said so, their Lordships then proceeded to consider the argument whether the fact that the petitioner in that case was eligible for promotion to a Central service would make any difference, and they concluded that "if he is eligible for promotion as a member of a Central service he does not acquire the rights belonging to members of that service and his locus standi for challenging the order of removal has still to be decided by asking whether he holds a civil post. Of course, if he became a member of a Central service the result would be that whatever the post he was holding he would be entitled to the protection of Article 181 because that Article is applicable to all members of the services mentioned therein. But if a person be holding a post connected with defence the fact that he can be promoted to a Central service would not entitle him to the protection granted by Article 181".
18. In an earlier judgment, namely, in Government of Pakistan and another v. S. A. M. Bokhary (PLD 1961 SC 605), their Lordships had already held that a civilian employee serving on a post connected with defence was entitled to the protection of Article 181 of the 1956-Constitution if he belonged to a civil service of the Federation. In that case it was found that the petitioner Bokhary was a member of the Central Service, Class 11, under a notification issued by the Central Government on the 14th of October 1955. The observations made by their Lordships in Muhammad Ayub's case were, therefore, in consonance with the view they had already taken in Bokhary's case.
19. The difference between the two relevant Articles of the late Constitution has also been analysed by a Division Bench of this Court in Imdad A.I v. The Director of Remounts, Veterinary and Farms (PLD 1966 Lah. 1031) and it has been concluded that "Persons holding posts connected with defence are a category of persons distinct from members of a defence service and holders of civil posts in connec--petition with the affairs of the Federation and that constitutional safeguards in Article 181
(1) and (2) against arbitrary dismissal etc., do not avail the members of a defence service and persons holding posts connected with defence and in that respect the two categories of persons stand on the same footing". Some observa--tions were also made about the Gazette notification of the 14th of October 1955 and they will be referred to presently.
20. From the foregoing discussion, it becomes clear that the two categories, namely, "a post connected with defence" and "civil post in connection with the affairs of the Centre", as specified in Article 176, are mutually exclusive, and the A omission of the category of "a post connected with defence" from Article 177 is clear indication of the intention of the Constitution-maker to exclude this category from the protection given by this Article.
21. We may now turn to Article 178 which runs as follows:- "178-(1) Subject to this Constitution and law-
(a) appointments to an All-Pakistan Service or to a civil service of the Centre, or to a Civil post in connection with the affairs of the Centre, shall be made by the President or a person, authorized by the President in that behalf; and
(b) appointments to a civil service of a Province, or to a civil post in connection with the affairs of a Province, shall be made by the Governor of the Province or a person authorized by the Governor in that behalf.
(2) Subject to this Constitution and law, the terms and conditions of service of persons serving in a civil capacity in the service of Pakistan (other than persons whose terms and conditions of service are specified in this Constitution) shall be as prescribed-
(a) in the case of a person who is a member of an All---Pakistan Service or who is serving in connection with the affairs of the Centre-by rules made by the President or by a person authorized by the President in that behalf; and
(b) in the case of a person (not being a member of an All---Pakistan Service) who is serving in connection with the affairs of a Province-by rules made by the Governor of the Province or by a person authorized by the Governor in that behalf.
(3) Rules made for the purposes of clause (2) of this Article shall be so framed as to ensure-
(a) that the terms and conditions of service of a person (in so far as those terms and conditions relate to remuneration or age fixed for superannuation) are not varied to his disadvantage; and
(b) that where an order is made which-
(i) punishes or formally censures a person;
(ii) alters or interprets to the disadvantage of a person any rule affecting his terms or conditions of service; or
(iii) terminates the employment of a person otherwise than upon his reaching the age fixed for superannuation; he shall, except where the order is made by the President or a Governor, have at least one appeal against the order and, where the order is made by the President or a Governor, he shall have the right to apply to the President or the Governor for a review of the order.
(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 para--graph (b) or 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 Amendment) 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:
(5) Notwithstanding anything contained paragraph (b) or paragraph (c) of clause (4), the competent authority may, except for the purpose of the performance of any judicial function, extend the service of a person beyond, or re-employ a person after, the date of his retirement under that paragraph for such period and on such terms and conditions as it may deem fit: Provided what the service of a person which has been so extended or who has been so re- employed shall be liable to be terminated at not less than three months' notice on either side or upon payment of three months' salary in lieu thereof; and such termination shall not be deemed to be removal or dismissal.
Explanation.---A revenue officer, a member of the Central or a Provincial Board of Revenue, a member of any tribunal for deciding any dispute or appeal on any matter relating to income-tax, labour, industry, or elections shall not be deemed to perform any judicial function for the purposes of this clause.
(6) A person who is required to retire under paragraph (b) or paragraph (c) of clause (4), including any such person whose service has been extended under clause (5), shall be entitled to such leave preparatory to retirement as is admissible to him and the period of such leave may extend beyond the date of his retirement but not beyond the completion of the sixtieth year of his age, and if he proceeds on such leave before the said date, his retirement shall take effect on the expiry of the leave.
Explanation.----In this Article, "competent authority" means,
(a) in relation to a person who is a member of an All. Pakistan Service or of a civil service of the Centre or a Province, wherever he may, for the time being, be serving, the authority competent to make appointment to such service; and
(b) in relation to any other person-
(i) who holds a post otherwise than on deputation, the authority competent to make appointments to such post; and
(ii) who holds a post on deputation, the authority which sent him on deputation for appointment to such post."
22. It will be seen that clause (1)(a) of this Article speaks of "appointments to an All-Pakistan Service or to a civil service of the Centre, or to a civil post in connection with the affairs of the Centre". The categories enumerated in this clause ate identical with those mentioned in clause (1) of Article 177 and it can, therefore, be concluded that they are not intended to cover the appointment of a person who holds a post connected with defence. But clause (2) of Article 178 employs a different phraseology, namely, "persons serving in a civil capacity in the service of Pakistan (other than those whose terms and conditions of service are specified in the Constitution)". Now, it seems to us that the departure here is deliberate inasmuch as distinct categories of services and posts having already been enumerated in Article 176 and repeated in Article 177 and clause (1) of Article 178, the same could have been employed in clause (2) if the intention was to confine the scope of this clause as well in the same manner as had been done in clause (1) of the same Article and in the preceding Article. The phrase "persons serving in a civil capacity in the service of Pakistan" is clearly of a much wider import than any of the categories enumerated t in the previous Articles relating to services. It is obviously intended to include all persons serving Pakistan in a civil -capacity. The terms "the service of Pakistan" has been defined in Article 242 of the Constitution as meaning "any service, post or office in connection with the affairs of the Centre or of a Province, and includes an All-Pakistan Service, any defence service, and any other service declared to be a service of Pakistan by or under an Act of the Central Legislature or of a Provincial Legislature, but does not include service as Speaker, Deputy Speaker or other members of an Assembly or as a Parliamentary Secretary". This definition is practically in the same terms as contained in Article 218(1) of the late Constitution. It seems to us, therefore, that clause (2) of Article 178 must be held to include persons who are holding posts in connection with defence, even though such persons are excluded from the purview of the earlier provisions relating to services.
23. Sub-clause (a) of clause (2) of Article 178 lays down that "in the case of a person who is a member of an All-Pakistan Service or who is serving in connection with the affairs of the Centre" the rules prescribing the terms and conditions of service shall be made by the President. Here again the phrase "serving in connection with the affairs of the Centre" is wider than the phrase "a civil post in connection with the affairs of the Centre", as employed in the previous Articles. Thus the opening words used in clause (2) of Article 178 as well as those employed in sub clause (a) of clause (2) clearly refer to all persons who are serving in a civil capacity in connection with the affairs of the Centre, irrespective of the category of the service to which they belong or the post which they hold.
In other words, civilians) serving in connection with defence are not excluded from the) purview of clause (2) of Article 178 of the present Constitution.
24. Then comes clause (3) of Article 178 which lays down that "Rules made for the purposes of clause (2) of this Article shall be so framed as to ensure-(a) that the terms and conditions of service of a person (in so far as those terms and conditions relate to remuneration or age fixed for superannuation) are not varied to his disadvantage ; and (b) . . . . ."
25. On the interpretation that we have placed on the scope and meaning of the words and phrases used in clause (2) o Article 178, it is clear that the guarantees contained in clause (3 would apply to all persons serving in a civil capacity in connection with the affairs of the Centre, with the result that the terms an conditions of service of such persons in so far as they relate to remuneration or age fixed for superannuation cannot be varied to their disadvantage, by rules trade for the purpose of clause (2 of Article 178.
26. Finally, there is Article 234 of the Constitution, clause (1) whereof provides that "subject to this Constitution and tile law, any person who, immediately before the commencing day, was in the service of Pakistan shall, as from that day, continue in the service of Pakistan on the same terms and conditions as were applicable to him before that day." It would appear from this provision that whatever terms and conditions the petitioner was enjoying before the commencing day would continue to accrue for his benefit, subject to this Constitution and the law. It was submitted by Mr. M. A. Zullah that if it is held that the petitioner is not protected by any of the guarantees contained in Articles 177 and 178 of the Constitution, then Article 234 could not come to his rescue, for the reason that its provisions are made subject to the other provision contained in the Constitution.
There is substance in this contention, and we would agree with the learned counsel that if the earlier Articles take away protection in respect of certain matters or certain categories of Government servants, than those terms cannot be said to be protected by the operation of Article 234, as this Article is itself subject to the other provisions of the Constitution. However, we have already held that the petitioner is entitled to benefit from the guarantee contained in clause (3) of Article 178 of the Constitution with regard to terms and conditions relating to remuneration or age fixed for superannuation.
27. It was next submitted by Mr. Zullah that the Civilian Employees in Defence Services (Further Usefulness in Service) Rules, 1964 should be regarded as being in the nature of law made by the President, thus operating to abridge the terms and conditions preserved by Article 234 (1). The learned counsel submitted that the term "law" is defined in Article 242 of the Constitution under two headings, namely, the Central Law and the Provincial Law, in identical terms, and meaning "a law made by or under the authority of the Central (or the Provincial) Legislature, and includes a law made by the President (or the Governor of a Province)". According to Mr. Zullah, the rules made by the President would fall in the category of "a law made by the President".
28. It will be noticed that the definition of Central and Provincial Law as contained in Article 242 is different from the meaning accorded to the term "existing law" in Article 225 (7) of the Constitution which lays down that "in this Article `existing laws' means all laws (including Ordinances, Orders-in- Council, Orders, Rules, bye-laws, Regulations and Letters Patent Constituting a High Court, and any notifications and other legal instruments having the force of law) in force in Pakistan or any part of Pakistan, or having extra-territorial validity, immediately before the committing day". This last definition has been purposely made much wider than what would ordinarily be understood by the term "law" in relation to a Legislature and the President or the Governor, as the case may be. In Muhammad Khan v. The Border Allotment Committee (PLD 1965 SC 623) Kaikaus, J., in his `minority judgment, has given instances of several provisions in the Constitution where the phrases "subject to this Constitu--petition" and "subject to this Constitution and the law" have been employed by the Constitution-maker, and the observations made by his Lordship clearly show that by the term "law" the reference was to the law as enacted by the Central Legislature, which would include the President, in accordance with the relevant provisions of the Constitution. It is also clear that the Constitu--petition specifically uses the term "rules" as distinct from "law" when it refers to rules, as for instance in Article 178. It is, therefore, clear that the rules made by the President cannot be regarded as law within the meaning of the opening phrase employed in Article 234 (1), and the term "law" in this context D must be understood to mean a legislative enactment, either an Act of the Central or the Provincial Legislature or an Ordinance made by the President or the Governor, as the case may be. In other words, the terms and conditions guaranteed by Article 234 (1) of the Constitution cannot be abridged by rules on the plea that rules must also be regarded as law for this purpose.
29. There has been some argument at the Bar as to whether the petitioner would not be entitled to the protection contained in Article 177 for the reason that he is a member of General Central Service, Class I, by virtue of the notification issued by the Central Government on the 14th of October 1955. In this behalf Sheikh Abdul Haq placed strong reliance on the cases of S. A. H. Bolnary and Muhammad Ayub Khan already referred to. In the notification of the 14th of October 1955, issued by the Government of Pakistan in the Ministry of Defence, a Factory Superintendent has been shown to be included in the. General Central Service, Class I, and, in the light of the dictum of their Lordships of the Supreme Court in the two cases just mentioned, he would be entitled to the protection of the guarantees contained in Articles 177 and 178 by reason of being a member of a civil service of the Centre, irrespective of the fact that he is holding a post connected with defence.
30. In the case of Imdad All v. The Director of Remounts, Veterinary and Farms recently decided by a Division Bench of this Court, the effect of this notification of the 14th of October 1955 was examined and it was observed as follows:-- "A point which does not appear to have been canvassed for their Lordships' consideration in that case (i.e. Bokhary's case) is whether the Gazette notification issued by the Executive, could abolish the distinction created by the express provisions of the Constitution, between the Defence Forces and Civil personnel employed in Defence Establishment on the one hand and members of a civil service or holders of civil posts on the other. As explained already, this distinction was not fortuitous but was deliberate; which was intended to place the members of Defence Forces and Civil personnel employed in Defence Establishments under the President's absolute pleasure for maintaining of rigid discipline in the Defence Forces and those who were engaged in the Establishments necessary for provid--ing equipment and other needs of Defence Forces. In our humble opinion, a Gazette notification cannot abolish the distinction in the relevant field more than it can deprive the members of an established civil service or holders of civil posts in connection with the affairs of the Federation of the constitutional safeguards by declaring them (even notionally) members of Defence Services or employees of Defence Establishments. A member of a civil service, regardless of his appointment or nature of his duties, so long as he remains a member of such civil service will be entitled to all constitutional safeguards. It will be a question of fact to be determined in each case as to under what category of persons, a petitioner's case falls, for the relevant purpose. . . :
31. Sheikh Abdul Haq, the learned counsel appearing for the petitioner before us, contended that the observations made by the learned Judges of the Division Bench in the case of lmdad All overlook the fact that in Bokhary's case their Lordships of the Supreme Court examined the effect of the notification of the 14th of October 1955 in some detail while dealing with the argument, raised on behalf of the Central Government, that the notification was merely issued to classify certain civilian posts in the Defence Ministry for the purpose of enabling them to take the benefit of certain rules on the subject of T. A. Etc., and did not have the effect of taking Bokhary's post out of the descrip--petition "connected with defence". It was submitted by Sheikh Abdul Haq that their Lordships held that the notification in question was clearly referable to Rule 17 of the Civilian Services (Classification, Control and Appeal) Rules, 1961 which had been originally framed under section 96-B (2) of the Government of India Act, 1919 by the Secretary of State for India-in-Council and were continued in force with necessary adaptations, by the various constitutional instruments which replaced that Act, from time to time, right up to the present day. The learned counsel further pointed out that on page 608 of the report in Bokharys case their Lordships have stated that "Article 181 qualifies the peremptory provisions of Article 180. There is no difficulty in assuming that a competent authority may include certain posts of a civilian nature, albeit "connected with defence, in a civil service of the Federation, by a notification under Rule 17 of the Classification Rules. The incumbents of posts covered by such a notification would then answer the description `member of a civil service of the Federation' within the meaning of Article 181 and to that extent the effect of Article 180 which makes their service terminable at pleasure because of their posts being connected with defence, would be modified by the require--ments of Article 181". Earlier on, in the same paragraph, their Lordships had observed thus "The view contended for by Mr. Ghias Muhammad (who appeared for the Central Government) would lead to anomalous results. It is well-known that members of the Civil Service of Pakistan have been and are occupying posts in the Secretariat of the Defence Ministry. These posts fall within the general expression `connected with defence', and if learned counsel's position be correct, as soon as they are seconded to the Defence Ministry, they lose the protection of Article 181 of the late Constitution. The protection would, as a logical conclusion, revive as soon as they go out of the Defence Ministry.
Difficulties of this character could be avoided by interpreting the two Articles 180 and 181 of the late Constitution so as to protect persons who occupy civil posts or belong to a civil Service under the State, even though the posts they hold for the time being may be connected with defence."
32. At this stage it was submitted by Mr. M. A. Zullah the learned counsel appearing for the Central Government, that it would perhaps not be necessary for us to examine at any length the apparent conflict between the dictum of their Lordships of the Supreme Court in the case of Bokhary and the opinion expressed by a Division Bench of this Court in the case of Imdad AU, with regard to the effect of the notification of the 14 of October 1955, for the reason that that notification was no longer operative, and instead the position was governed by the notification bearing No. S. R. O. No. 59(R)/61 issued by the Government of Pakistan in the Ministry of Defence on the 25 of July 1961.
This notification states that "in pursuance of the Proclamation of the 7th day of October 1958, and in exercise of all powers enabling him in that behalf, the President is pleased to make the following rules, namely, . . . . . . ." The first sub-rule of rule 1 recites that these Rules may be called the Civilian Employees in Defence Services (Classification, Control and Appeal) Rules, 1961; and sub-rule (3) of the same Rule lays down that "they shall apply to every person holding a post connected with defence and paid from the Defence Services Estimates, other than those subject to the Pakistan Army Act, 1952, the Pakistan Navy (Discipline) Act, 1934, and the Pakistan Air Force Act, 1953, who is in the whole-time employment of the Central Government under the Ministry of Defence". Then there are certain exceptions to sub-rule (3) but the petitioner's case does not fall under any of them. Sub-rule (4) of Rule 1 confers power on the Government to the effect that "notwith--standing anything contained in the preceding sub-rule, the Government may by notification published in the Gazette of Pakistan, declare in respect of any person or class of persons that these Rules shall not apply in whole or in part to such persons or class of persons and these Rules shall thereupon cease to apply accordingly." It was stated by Mr. Zullah that he was not aware of any notification issued by the Central Government under the sub-rule just mentioned exempting the petitioner or the post held by him from the operation of these new Rules. Rule 3 of these Rules then gives a classification of the civilian posts in the Defence Services and the first category is described as "Defence Services (Civilian) Class I (hereinafter referred to as Class I Services)". Sub-rule (2) of Rule 3 lays down that "for the purpose of this rule, civilian posts under the Ministry of Defence which so far have been notified by the Government as belonging to the Services mentioned in Column 1 below shall be deemed to be classified as Services mentioned in Column 2 below . . . . . . ." The first item in this table is General Central Service Class I (Gazetted) which is henceforth to be designated as Class I Service, as defined by clause (a) of sub-rule (1) of Rule 3.
33. It seems to us that the Civilian Employees in Defence Service (Classification, Control and Appeal) Rules, 1961 have indeed substantially altered the position in respect of the inclusion ofth th defence civilians in a civil service of the Centre. Their inclusion in the General Central Service, directed by the notification of the 14th of October 1955, clearly stands super--seded by the new notification issued on the 25th of July 1961, and from this date the position stands clarified that persons holding civil posts in connection with defence continue to belong to this category alone, and even on classification they will belone to one or other category of Defence Services (Civilian), which would clearly be distinct from the categories of services comprised in the term "a civil service of the Centre or the Federation". On this view of the matter, it is clear that no benefit now accrues to the petitioner on account of the fact that at one time the post held by him was included in the General Central Service Class I (Gazetted).
34. In his attempt to exclude the petitioner from the purview of the rule-making power conferred by clause (2) of Article 178 of the Constitution and the protection granted by clause (3) of the same Article, the learned counsel for the respondent also drew our attention to the fact that the Civilian Employees in Defence Services (Further Usefulness in Service) Rules, 1964 have been issued by the President in pursuance of clause (a) of Article 176 of the Constitution, thus establishing conclusively that Article 178 was not applicable. It was submitted by Mr. Zullah that the Defence Services and posts connected with defence being subject to the pleasure of the President, and that pleasure riot having been curtailed or abridged in any manner by any provision in the Constitution, the only Article under which the rules could have been made was Article 1 76 of tile Constitution.
35. The Rules as printed in the Central Statutes section of PLD 1964 do indeed show that they have been issued in pursuance of clause (a) of Article 176 of the Constitution, but the reference in the Rules to Article 176 of the Constitution, can, by no means, be regarded as being conclusive of the matter. As we read the various Articles contained in Part VIII of the Constitu--petition, dealing with services of Pakistan, it is clear to us that Article 176 itself does not confer any rule-making power, butt simply enunciates an essential condition of service applicable to all persons in the service of Pakistan, including the Defence Services and persons holding posts connected with defence. The E rule-making power is itself conferred by clause (2) of Article 178 which, as already observed by us, is couched in wide terms so as to refer to the terms and conditions of service of all persons serving in a civil capacity in the service of Pakistani (other than those persons whose terms and conditions of service are specified in the Constitution itself). W consider, therefore, that the mere fact that the 1964 Rules purport to have been made by the President under clause (a) of Article 176 of the Constitution does not mean that clause (2) of Article 17 is not applicable to persons holding civil posts connected with defence.
36. One last point made by Mr. M. A. Zullah in his chain of arguments to exclude the petitioner from the protection of the constitutional guarantees may also be mentioned. He submitted that since 1961 the Ordnance Factories at Wah are being administered by the Pakistan Ordnance Factories Board created under Ordinance No. 17 of 1961, and under section 7 of the Ordinance the Board has been invested with complete administra--tive control over all officers and men employed in the Factories, and accordingly the petitioner must be deemed to be an employee of an autonomous corporation and not of the Central Government. This argument is, however, clearly untenable for the reason that section 7 of the Ordinance itself lays down that "the terms and conditions of service of any officer or other employee appointed or engaged before the commencement of this Ordinance shall not be varied to his disadvantage and that he shall not be dismissed or removed from service or reduced in rank by any authority subordinate to that by which he was appointed".
Whatever, therefore, the powers given to the Factories Board the petitioner would continue to be governed by his previous terms and conditions, including the very important condition that he could not be dismissed or removed from service or reduced in rank by any authority subordinate to the President who had appointed him. Apart from this position emerging from section 7 of the Ordinance, it is clear that the order directing the compulsory retirement of the petitioner has in fact been passed by the President of Pakistan, and for that reason no occasion arises for urging that we are dealing with an order made by an autonomous corporation.
37. We think we are now in a position to summarize our conclusions on the points arising in this case:
(1) That the petitioner is a person holding a post connected with defence and cannot be regarded as a member of a civil service of the Centre in view of the notification issued by the Central Government on the 25th of July 1961, superseding the earlier notification of the 14th October 1955.
He thus holds office during the pleasure of the President and is not entitled to the protection contained in. Article 177. He is, however, included within the purview of the rule-making power conferred on the President by sub-clause (a) of clause (2) of Article 178 of the Constitution and is thus also entitled to the safeguards provided by clause (3) of the same Article to the effect that rules made for the purposes of clause (2) of this Article shall be so framed as to ensure that the terms and conditions of service of a person (in so far as those terms and conditions relate to remuneration or age fixed for superan--nuation) are not varied to his disadvantage.
(2) That he is also entitled to benefit from the provisions contained in clause (1) of Article 234 to the effect that subject to this Constitution and the law, he is to continue in the service of Pakistan on the same terms and conditions as were applicable to him immediately before the commencing day.
(3) That reading the provisions of Articles 178(3) and 234(1) together, it is clear that the petitioner's 'terms and conditions of service in so far as they relate to remuneration and age fixed for superannuation must be regarded as terms specified in the Constitution, with the result that a petition in respect thereof will be maintainable under Article 98(3)(b). The authorities cited by Mr. M. A. Zullah, namely, PLD 1964 Lah. 264, PLD 1964 Pesh. 167, PLD 1964 Dacca 93 and PLD 1964 Dacca 213 are not applicable for the reason that in these cases the combined effect of Articles 178(3) and 234(1) was not at all considered.
(4) That notwithstanding the repeal of the President'; Order No. 1 of 1958 under Article 225(2) of the Constitution, the petitioner had a right under clause (c) of Article 250 of the Constitution, on the commencing day as fixed in the present Constitution, to continue in service until his 60th birthday, subject to review at two stages, namely, when he was about to complete the 25th year of his service and the 55th year of his age, under clauses 9(a) and 9(c) of Article 6 of tile Order. The proviso to clause (c) laying down a cushion period permitting review of certain cases within six months of the rules to be framed under sub-clause (d) of clause (9) referred to above, had lie application to him for the reasons that he had already completed his 25 year of service and was to complete the 55 year of his age nearly two years later on the 8th of June 1964.
(5) That, in any case, the proviso to sub-clause (c) had reference only to the rules to be made by the President under sub-clause (d) which rules were in fact made on the 25th of May 1962; and the proviso could not, therefore, be repeated in every successive set of rules which may be framed by the President for a specific class of persons in the service of Pakistan, and therefore, even though the rules specifically framed for Defence Civilians in 1964 may be applicable to the petitioner as being special rules for his category of employees, yet the power to invoke the aid of the proviso to sub-clause (c) of clause (9) was no longer available. Accordingly, the second proviso to sub-rule
(1) of Rule 5 of the 1964 Rules must be held to be invalid in so far as it seeks to take away a vested right from the petitioner, which stands guaranteed to him under Articles 178 (3) and 234 (1) of the Constitution read together, by seeking to subject him to a review after he had completed the 55th year of his age.
38. On these conclusions it is clear that the action taken against the petitioner, directing his compulsory retirement as a result of a review carried out under the second proviso to sub---rule
(1) of Rule 5 of the Civilian Employees in Defence Services (Further Usefulness in Service) Rules, 1964th th must be declared to be without lawful authority and of no legal effect. On this view of the matter we do not consider it necessary to examine the second contention raised by the learned counsel for the petitioner to the effect that, in any case, the action was not completed within six months of the promulgation of the 1964 Rules and that subsequent amendments increasing the period from six to twelve months were invalid. For the same reasons it is also unnecessary to examine the allegation of mala fides.
39. It was submitted by Mr. M. A. Zullah that during the pendency of this petition the age of superannuation has now been reduced to 55 years by the sixth Amendment to the Constitution, and for that reason we should not give any relief to the petitioner as he has, already completed 55 years of his age. In this connection suffice it to say that the impugned order was made on the 19th of October 1964, retiring the petitioner from the 20th of October 1964, whereas the Sixth Amendment was enacted on the 31st of March 1966, and even then a period of six months was allowed for scrutinising individual cases for the purpose of granting extension of re-employment. Thus there is a gap of nearly two years between the date on which the impugned order was passed and the date on which the petitioner might have been retired under the Sixth Amendment, assuming that no extension or re-employment was to be given to him. As a result of the unlawful order made in this case the petitioner has been kept out of employment for this period of two years and has also been deprived of a chance to be considered for extension or re-employment. We might add that a similar argument was also repelled by the Division Bench in the case of Karamat Ullah Khan v. The Government of West Pakistan, to which reference has already been made.
40. As a result, the petition succeeds and is hereby accepted with costs. It is declared that the order dated the 19th of October 1964, directing the compulsory retirement of the petitioner after he had completed the age of 55 years is without lawful authority and of no legal effect.