' SALAHUDDIN AHMED, J.-This appeal by special leave is from the order of the erstwhile High Court of West Pakistan dismissing the writ petition of the appellants.
' The three appellants were originally appointed as temporary Lower Division Clerks in the Armed Forces Headquarters, India, hereinafter called `AFHQ', before the Independence in September, August, 1944 and in July 1942, respectively. On the conclusion of the war in the year 1945, under Special Routine Orders dated February 28, 1947, issued by the Chief Administrative Officer, Ministry of Defence, it was decided that the temporary employees would be absorbed in the permanent vacancies in AFHQ, provided they qualified at the Federal Public Service Commission Examination.
The Special Routine Orders were in conformity with the Government of India, Ministerial Establishment (Recruitment, Promotion and Seniority) Rules, 1937. The appellants, accordingly, sat at the Federal Public Service Commission Examination held in 1947. Before, however, the results were announced Pakistan came into being and the appellants opted for service there.
Subsequently the results were published and they were successful in the examination. Sajjad Ahmad, Muhammad Shafi and Yunus secured 641st, 684th and 1180th position in the examination.
The appellants said that under Cabinet Secretariat Office Memorandum No, 33/1/48-Ests (ME) dated the 15th March, 1948, it was decided that persons qualified and not qualified would be absorbed with the condition that qualified employees who fell in the category of "eligible" would rank as a class senior to non-qualified employees who came under the category of "ineligibles".
They claimed that under paragraph 20 of the Memorandum they were to be regarded as "eligible".
' Again Cabinet Secretariat Office Memo dated 6-5-1948 directed that the names or the Muslim candidates who passed the aforesaid Federal Public Service Commission Examination should be included in the list of "eligible"
' In the grade of clerks, Third Division/'B' grade as the case might be for the purpose of the aforesaid Secretariat Office Memo. Dated 19-3-1948. The appellants have complained that although the Chief Administrative Officer, Ministry of Defence, Rawalpindi absorbed them, he did not give them the benefit of being 'eligibles' on the basis of their having passed the said examination.
' The appellants, accordingly, filed a writ petition in the former High Court of West Pakistan, Lahore, but it was dismissed by the Court on 16-1-1969. The High Court inter alia, held that the aforesaid Cabinet Secretariat (Establishment Division) Memorandum dated 15-3-1948 (Annexure 'F' to Writ Petition) did not apply to the appellants.
' Leave was granted to consider whether the High Court was right in holding that the said Memorandum did not apply to the appellants.
' The dispute relates to seniority among the three appellants and respondents Nos. 2 to 329 as Lower Division Clerks in the Ministry of Defence, Government of Pakistan. The appellants have claimed seniority over the respondents on the ground that they alone had passed the Federal Public Service Commission Examination held in 1947 in India. The Ministry rejected the appellants' claim on the ground that the said Memorandum did not apply to them.
' On behalf of the appellants, the contention has been reiterated that the said memorandum dated 15-3-1948 applied to them, and, therefore, under para. 20 thereof, they became 'eligible', and were thus entitled to appointment and confirmation against permanent posts in the AFHQ in preference to all other Lower Division Clerks who had not qualified at the said examination.
' The appellants have also relied on the Special Routine Orders of the Chief Administrative Officer dated 28-2-1947 which said that the Home Department had decided that all permanent vacancies in AFHQ would be filled in only from amongst those candidates who had competed and qualified at the Federal Public Service Commission Examination and that no exemption would be allowed in the case of temporary personnel then employed in AFHQ from taking the Federal Public Service Commission Examination. Furthermore it was intimated that the Federal Public Service Commission had agreed to extend the last date of submission of applications in respect of AFHQ personnel only up to 15-3-1947.
' On behalf of the respondents it has been contended, firstly, that the writ petition, that was filed on 5-2-1959, should have been dismissed on the ground of laches inasmuch as the appellants approached the High Court after several years of the orders determining their seniority and dismissing their appeals or rejecting their representations without any adequate explanation for the delay. Secondly, that although the appellants had qualified at the said Federal Public Service Commission Examination, they were never nominated by the Establishment Secretariat for the GHQ.
' As regards laches it may be observed that the first order by which the appellants were aggrieved was the Gradation List published on 29-11-1948. The second order by which they were aggrieved was the Special Routine Order of the office of the Chief Administrative Officer, Ministry of Defence, dated 13th March, 1950, the relevant portion of which read as follows:- "As regards the individuals who passed the 3rd Division examination, they were classed equivalent to LDCs, the grade to which all fresh recruitment to AFHQ was restricted-and they would be entitled to the privileges of being Federal Public Service Commission qualified candidates if they were nominated against any permanent vacancies in AFHQ declared to the Cabinet Secretariat. No permanent vacancies in the LDC grade were notified by the CAO (Pakistan) to the Cabinet Secretariat for filling on the results of the F. P. S. C. Examination of May 1947 and there is therefore no question of grant of any special privileges to such individuals in AFHQ -these privileges would only be admissible to them in the Departments to which they may be nominated by the Cabinet Secretariat."
' The appellants filed the writ petition on 5-2-1959 i,e,, after the lapse of 9 years from this order.
' It appears that appellant Sajjad Ahmad Siddiqui, first submitted his representation in December 1948 to the Chief Administrative Officer, and it was rejected in June 1950, and the appellant was told that nothing could be done in the matter. Nevertheless, he went on submitting representations and in June 1958, the Chief Administrative Officer for the last time rejected his representation.
' Appellant Mohammad Shafi first made his representation on 3-5-1949 and it was rejected on 22- 6-1950. On 15-1-1957 i,e,, after about 7 years, he preferred an appeal to the Joint Secretary, Ministry of Defence, and it was dismissed on 8-4-1957.
Appellant Mohammad Yunus first made his representation in December, 1948, and it was rejected on 1-3-1949. He, too, went on making one representation after another but in vain.
' The learned Judges of the High Court, however, condoned the delay on the ground that the relevant authorities went on re-considering the question of seniority from 1954, and not until December, 1958, they gave the final reply. This does not appear to be factually true. The authorities have consistently rejected the claim of the appellants, and stuck to their decision in Special Routine Orders dated 13-3-1950, and never for once said anything which might have given rise to any hope in the mind of the appellants.
' As regards merit, it has been contended on behalf of the appellants that they were governed by the Government of India, Ministerial Establishment (Recruitment, Promotion and Seniority) Rules, 1937, and the order of the Chief Administrative Officer, Defence Department, New Delhi (India) dated 28.2-1947, read with Cabinet Secretariat Office Memo dated 15-3-194g. The relevant provisions of the Rules, the Orders and the memorandum are as follows:- "Section V-Recruitment for the Third Division.
8. (a) Subject to the provisions of rule 21, all permanent vacancies and temporary or officiating vacancies likely to become permanent that occur in the Third Division shall be filled, at the discretion of the Head of the Department or office concerned, either by direct recruitment in accordance with the provisions of Section VI or by transfer in accordance with rule 19.
Section VI-Examination and Direct Recruits.
10. (a) A joint competitive examination shall be bled for direct recruitment to the First and the Second Divisions and a separate competitive examination for direct recruitment to the Third Division.
' These examinations shall be conducted by the Public Service Commission.
Rule 2 of the Government of India Ministerial Establishment (Recruitment, Promotion and Seniority)
Rules.
2. (b) 'Direct recruit' means a person, and 'Direct recruitment' means the appointment of a person, who-
(I) has been successful at an examination mentioned in rule 10, and has been nominated in accordance with rule 13(b), or
(ii) Though already employed under the Government of India after passing an examination mentioned in rule 10, is entitled, under rule 14(a) or rule 15(b) to be treated as a direct recruit.
' Note.-Anyone who is not a 'direct recruit' is a departmental candidate and can be appointed only in a vacancy available for promotion.
(c) 'Qualified candidate' means a person who has qualified or has been declared to have Qualified at, or has been exempted from, a qualifying examination held by the late Staff Selection Board of the Public Service Commission, including the competitive qualifying examination of 1926 and the qualifying examination of 1931.
Special Routine Order No, 219.-Filling of permanent vacancies in the Ministerial Establishment: of Armed Forces Headquarters.
After considerable discussion, the Home Department have decided that all permanent vacancies in Armed Forces Headquarters will be filled only from amongst those candidates w no compete and qualify at the Federal Public Service Commission Examination and that no exemption will be allowed in the case of temporary personnel now employed in Armed Forces Headquarters from taking the FPSC Examination.
2. It is realized that a number of clerks did not apply to take the FPSC Examination notified in R.
0. No, 912/46 (reproduced as an annexure to this or let) as they were under the impression that the examination was intended for the recruitment of ministerial establishment to the Government of India Secretariat and its attached offices and that the temporary clerks employed in the Armed Forces Headquarters may be exempted from qualifying in the examination for permanent appointment in these Headquarters. As a result of representation, the FPSC have now agreed to extend the last date for submission of applications in respect of AFHQ personnel only up to 15th March 1947.
Office Memorandum No, 33/1/48-Ests-(ME) dated 15-3-1948.
2. (d) All permanent and quasi-permanent vacancies in the ordinary cadre in the 3rd Division were filled by candidates nominated on the results of the Federal Public Service Commission Examinations.
3. During the war, direct recruitment to permanent or quasi-permanent vacancies was generally suspended and Departments were allowed to fill all vacancies in the Ministerial Establishment on a temporary basis from any available source. The result was that permanent and quasi-permanent vacancies, which, under the Recruitment Rules, should have been filled only by the appointment of candidates eligible for permanent appointment were filled on a temporary basis by those not eligible for permanent appointment.
' The Ministerial staff of the Pakistan Secretariat and its Attached Offices therefore, consists at present, both of persons eligible for permanent appointment and those not eligible for retention on a permanent basis, as explained above.
4. In accordance with the guarantee given to opted in favor of Pakistan before Partition persons eligible for promotion to higher posts under the Recruitments Rules, are entitled to enjoy the prospects of promotion to the extent admissible under these Rules.
5. Next comes the placing of candidates appointed or promoted temporarily to posts in which they cannot under the Recruitment Rules, be retained on a permanent basis, as explained in para. 3 above.
(d) Persons qualified at the Federal Public Service Commission Examination for temporary employment only.
' These temporary appointments were made during the war on the distinct understanding that the persons so appointed (or promoted) would not have title or claim to permanent appointment to the vacancies to which they were not entitled under the Recruitment Rules, and that their services could be terminated (or they could be reverted to their substantive appointments) at any time without reasons assigned. Consequently, Government is under no obligation to retain them on a permanent basis. Further, having regard t I the existing surplus of staff it would have been in order to have terminated their services forthwith. But Government in existing circumstances wish to show those employees every consideration and in fact Government desire to retain permanently those who can be considered fit for such retention, subject to the availability of adequate number of posts for them.
' For the purposes of determining their seniority inter se the simple and, in the circus tenets only, practicable rules of continuous service in the grade including service in a high grade, whether in one or more than one Departments or offices, should be observed, subject to the following conditions:- (i)Candidates nominated on the results of Federal Public Service Commission Exam nations for a particular grade should be held senior to others in that grade.
(ii) Service in any particular grad, in an Attached Office should be treated as equivalent to service in that grade in the Secretariat and vice versa.
' Note.----Persons falling within the category of 'eligibles' shall as a class be senior to those belonging to the category of 'ineligibles' in the grades concerned.
6. Persons considered fit for retention under para. 5 above should be shown according to their seniority, against the posts in the relevant grades, available under para. 4 b, excluding posts in the grade of Assistant Secretary, which should be reported to the Cabinet Secretariat (Establishment Branch). If the number of persons considered fit in a particular grade is in excess of the number of posts available in that grade, the residue will form the 'surplus', but if number of posts available is more than the number of persons, there will be deficit'."
"Part II-General.
20. An examination was held by Federal Public Service Commission in May, 1947 in which all temporary persons fulfilling certain conditions were allowed to compete for permanent vacancies filled temporarily during the war. The results of that examination were not declared before the partition took place. There are presumably persons in the Pakistan Secretariat and its Departments who had appeared at that examination. On the assumption that the results of this examination are secured it is proposed to regard as eligible for permanent appointment in the grade of Assistants or clerks here, those competitors (since opted for Pakistan) who, on the result of that examination would have secured an equivalent permanent appointment in the Government of India Secretariat or its Attached Offices. Pending the availability of the results of that examination, the candidates concerned should be treated as 'eligible' or 'ineligibles' in accordance with the provisions of Part I above."
It appears clear from the said Rules and the said Orders that permanent vacancies could only be filled in from amongst those candidates who had competed and qualified at the Federal Public Service Commission Examination. The appellants, however, do not fall within the category of a 'direct recruit' under Rule 2(b) as they had been appointed not on the result of any 4 examination.
The Note to the said Rule says that anyone who is not a 'direct recruit' is a departmental candidate, and can be appointed only in a vacancy available for promotion. There is nothing to show that the AFHQ had notified any vacancies, and if so, how many.
' In Pakistan v. Sheikh Abdul Hamid (1) this Court has held that the Cabinet Secretariat Office Memorandum dated 15-3-1948 had statutory force, and the Chief Administrative Officer, Ministry of Defence, was bound to fix the seniority of the staff under his administrative control strictly in accordance with the directions contained in the Memorandum. This Memorandum stated that under the said Rules of 1937, all permanent and quasi-permanent vacancies in the ordinary cadre in the 3rd Division were filled by candidates nominated on the results of the Federal Public Service Commission Examination. The underlining is ours.
' In answer to a query by the Controller of Civilian Personnel dated 16-11-1948, it was confirmed by the Chief Administrative Officer, New Delhi, India, by his letter dated 24-12-1948 that the Federal Public Service Commission Examination, 1947, was held for recruitment to the Civil Secretariat and the Civil Attached Offices as well as for G. H. Q. (I) and other Services Headquarters, and that vacancies of AFHQ were communicated to the Federal Public Service Commission or Home Department, Government of India for nomination of candidates who qualified at the said Examination. This settles the questions that the Federal Public Service Commission Examination, 1947 was held for recruitment to AFHQ, and that the Federal Public Service Commission had been intimated the vacancies of AFHQ.
According to the Cabinet Secretariat Office Memorandum dated 15-3-1948, it appears that all permanent and quasi-permanent vacancies in 8 the ordinary cadre in the 3rd Division were filled by candidates nominated on the results of the Federal Public Service Commission Examination.
(1) PLD 1961 SC 105 '[Here in italics)
' There is nothing to show that the appellants were at any time so nominated by the Cabinet Secretariat which succeeded to the powers and functions of the Home Department, Government of India. Nor have the appellants claimed any such nomination. It is thus evident that the appellants are not covered by the 1937 Rules read with the said Memorandum dated 15-3-1948.
' It also does not seem fair that after the lapse of a quarter of a century the list of seniority should be so disturbed as to make those, who had been appointed prior to the appellants and had enjoyed their seniority for so long, relegated to positions below the appellants simply because the latter had passed the Federal Public Service Commission Examination held in 1947. There is substance in the High Court's observations that the appellants were offered appointments in other Divisions of the Central Secretariat and Attached Offices but they declined to accept those appointments as Lower Division Clerks presumably because the conditions offered to them were not as attractive and advantageous as they were enjoying as officiating Upper Division Clerks in the AFHQ.
' In our opinion, therefore, both on the grounds of laches and on merit the writ petition has been rightly dismissed.
' The appeal is accordingly dismissed without any order as to costs.