1. HAMZO KHAN M. KURESHI (CHAIRMAN).-This appeal arises out of the order dated 31-8-1965 by which Director of Settlement Survey and Land Records, directed that excess payments made to the Mappers (appellants) and other staff should please be reported to enable his office to arrange recovery. This order was based on the Notification of the Governor of West Pakistan issued on 24th July 1965 (Annexure 5) by which the Governor was pleased to amend the Civil Services Pay Revision Rules and pay scales of the Mappers. By this Notification the Governor directed that the consolidated scale of the Mappers of Hyderabad Division' should be fixed at Rs. 85-2-115/5-150 while their prescribed scale was fixed at Rs. 40-2---75-2---100. The pay of the Mappers was reduced by this order hence the appellants filed a suit in the Court of Senior Civil Judge, Hyderabad which abated by virtue of the provisions of Sind Service Tribunals Act, 1973. Thereafter the appellants preferred the present appeal on 5-8-1974.
2. The brief facts are that the appellants were originally employed as Mappers by the Director, Settlement Survey and Land Records, Hyderabad Division in the pay-scale of Rs. 40-2---75-3-100.
3. On their representation the Gov--ernor of West Pakistan was pleased to revise their pay-scale on 13th April, 1961 to Rs. 75 -6-105/8-175 plus special pay of Rs. 25 per month. The benefit of the revised scale of pay was given to the appellants retrospectively from 14-10-1955 and the appellants were supposed to be paid all the benefits. Again on 5th June 1963 the pay rules were further amended by the Governor and the appellants were given consolidated scale of Rs. 150-8-190/10--300 (special pay merged). The appellants enjoyed the above said scale and received all the arrears of pay under the orders of West Pakistan Board of Revenue. The department made a reference to the West Pakistan Government whereupon the pay-scale of the appellants (Mappers) was reduced as per Notification dated 24th July 1965. They were directed to refund the excess payment made to them during the previous years. The appellants allege that their pay cannot be reduced because they had exercised their option under Rule 4 of West Pakistan (Non-Gazetted) Civil Services Pay and Pension Rules, 1963 and thereafter they were being paid salary according to the consolidated scale notified in June 1963. They allege that the notification dated 24-7-1965 would not be applicable to them as it could not have retrospective effect. According to them this notification was illegal and void and that it would be applicable to the Mappers recruited after the date of the notification and not to those who were already drawing consolidated scale of pay revised on 5th June 1963. They allege that their salary could not be reduced because they bad exercised their option on 5-12-1963 and thereafter their pay scale could not be altered to their disadvantage.
4. The respondent in his written statement have not denied the above factual position. He however, alleges that by the revision of pay scale made by the Governor of West Pakistan in June 1963 the Mappers were given more salary than Head Draftsman, Senior Assistant and Junior Assistant which were senior posts, Therefore the Director of Settlement Survey and Land Records made reference to the Board of Revenue Wet Pakistan, Lahore nor approaching the Government for reconsideration of the cases of above said subordinates, vide his letters dated 26-9-63 and 27-3-1965. However, the Governor of West Pakistan, on these references, was pleased to pass order dated 24-7-1965 reducing the pay scale of the appellants. The respon--dents further maintained that the order dated 24-7-1965 passed by Governor of West Pakistan was legal and valid.
5. The important point for our consideration is whether the order of the Governor of West Pakistan dated 24-7-1965, whereby the terms and conditions of the service of the Mappers were varied to their disadvantage, was applicable to the appellants.
6. We have heard the advocates of the parties at full length and after careful consideration of the facts of the case have coma to the conclusion that the above said Notification dated 24-7-1965 is not applicable to the appellants hence their appeal should succeed.
7. The appellants' Counsel maintained that under provisions of Article 178 of the Constitution of Islamic Republic of Pakistan, 1962 the terms and conditions of the Government servant cannot be varied to their disadvantage, as such the order dated 24-7-1965 passed by the Governor of West Pakistan, was illegal and void and was therefore not binding on the appellant. He further contends that it came into effect from the date of its issue and not from an earlier date It was not given retrospective effect hence it did not apply to the case of the appellants. There is great force in these arguments. He also urged that according to the provisions of the West Pakistan (Non-- Gazetted) Pay and Pension Rules of 1963, option was taken from the appel--lants, for the pay scale of Rs. 150-8-190/10-300 and according to those Rules, option one exercised was final and could not be revoked. We find substance in the above arguments and submissions made by appellants counsel and hold that the terms and conditions of service, with regard to their remuneration could not be varied to their disadvantage. The order elated 24-7-1965 passed by the governor of West Pakistan was not given retrospective effect hence it was not applicable to the appellants.
8. The next point which was urged by the counsel for appellants was that Article 178 (3) of the Constitution of 1962 had given guarantees to the Civil Servants that the terms and conditions of service could not be varied or altered to their disadvantage. The order of the Governor dated 24-7- 1965 has obviously altered the pay scale of the appellants to their disadvantage hence that order was illegal and void. To this argument, the learned Assistant Advocate-General replies that the Constitution of 1962 had been replaced by the Interim Constitution of Islamic Republic of Pakistan, 1972 which in turn was replaced by the Constitution of Islamic Republic of Pakistan, 1973 hence whatever, guarantees were provided in the Constitution of 1962 were of no avail to the appellants.
9. To this the counsel for the appellants submitted that both the Interim Constitution of 1972 and the Constitution of Islamic Republic of Pakistan 1973, have protected all the acts done and orders passed under the previous Constitution. No Constitutional guarantee is given to the Civil Servants in the present Constitution but the benefits given to them under the previous Constitutions are protected. This appears to be the correct legal position. However, it is not necessary for us to go into the legality of the order of the Governor of West Pakistan dated 24-7-1965 because bare reading of the said order would show that it was not given retrospective effect hence it was not applicable to the case of the appellants. The said order would apply to the persons who are already after the date of such order and not to those who were already drawing higher scale of pay. The notification does not alter or vary the rights to higher pay of the appellant 1963. They would to them cost continue to get the same Governor scale passed pay which was given to them in 1963.
10. The learned Assistant Advocate-General has, during the course of his arguments, contended that this Tribunal has no jurisdiction under section 6 of Sind Service Tribunals Act, 1973. This point was however not raised in Written statement of the respondent, the learned Assistant Advocate- General has failed to substantiate his contention. Pay for the post and scale of pay for that post fall within the terms and conditions of service. According to section 3 (2) of Sind Service Tribunals Act.
11. "A Tribunal shall have exclusive jurisdiction in respect of matters relating to the terms and conditions of service of Civil Servants, including disciplinary matters." The suit of the appellants abated in the Civil Court because it fell within the jurisdiction of this Tribunal. The learned Assistant Advocate-General has not pointed out any law by which this Tribunal would have no jurisdiction in the matter. We therefore find no force in his contention.
12. In the result we allow the appeal of appellants 1 to 11 as prayed. The parties are left to bear their own costs.
13. We make no order regarding appellants 12 (a), 12 (b), 12 (c) and 12 (d) as they have been shown as legal heirs of appellant No. 12 who was dead at the the of filing this appeal. The legal heirs do not come within the purview of the definition of a "Civil Servant" as defined in Sind Civil Servants Act, 1973.