MUHAMMAD KHURSHID KHAN (CHAIRMAN).-Kishwar Khan and 13 others were retired from service on 9-11-1970 whereas Musharaf Shah was retired on 29-12-1970. The former have preferred Appeal No. 28 of 1975 and the latter appeal No. 29 of 1975 against the orders of their retirement. Since common questions of law and facts are involved we propose to dispose of both the appeals per this order.
2. It would be profitable to have a look into the facts forming the background of these appears. The appellants were the employees of the defunct State of Swat prior to its merger in the Province of West Pakistan. The appellant No. 1 was working as Mashir, appellants 2 to 3 were Naib Mashirs, appellants 4 to 8 were Haakim, appellant 9 was Assistant Secretary, appellants 10 to 13 were Tehsildar, appellant No. 14 was Naib-Tehsildar and the appellant Musharaf Shah was Tehsildar in the State. The State was merged in the Province of West Pakistan by the Dir, Chitral and Swat (Administra--tion) Regulation, 1969 (hereinafter referred to as the Regulation) and it came to force on 15th August, 1969. The Province of West Pakistan was dissolved by the West Pakistan (Dissolution) Order 1970 (hereinafter called the Order and the territory of the former State of Swat became part of the North-West Frontier Province. It was contemplated by paragraph 3 of the Regulation that Ruler of the State shall cease to exercise any power or perform any 'unction with respect to any matter falling within the legislative competency of the Provincial Legislature and relating to the administration of the former State. Paragraph 4 envisaged that all persons who, immediately before the commencement of the Regulation, held any civil post or office in the State shall be deemed to be persons serving under the Government of West Pakis--tan. Their terms and conditions, however, were to be determined by the Provincial Government. A circular letter dated 8th July, 1970 was issued by the Provincial Government fixing the retirement age for the employees of the former States of Swat, Dir and Chitral at 55 years with no extension without the prior approval of the Government. The Commissioner, Malakand Division. Was addressed a letter by the Government on 10th September, 1970 conveying its decision that instead of extending the Government Servants Conduct Rules, Efficiency and Discipline Rules and the Rules relating to Superannuation of Government employees a committee headed by him with D. I.-G. Of Police and the respective Deputy Commissioner of the district as members be constituted to carry out the required task of screening of the emp--loyees of the former States. In implementation of the aforesaid decision a screening committee constituted which scrutinized the cases of all the emp-- loyees concerned and amongst others, the appellants were found unfit and retired from service.
Their representations to the Government failed and they could not succeed in their writ petition before Peshwar High Court. They preferred civil petitions for special leave to appeal in the Supreme Court of Pakistan which were dismissed with the direction that they may approach the Services Tribunal for redress of their grievances. They have now moved this Tribunal and have assailed the orders of their retirement.
3. The learned counsel for the appellants strenuously contended that by virtue of paragraph 4 of the Regulation and Article 17 of the Order the appellants had become employees of the Provincial Government. The latter could not alter their terms and conditions to their dis-advantage and they could not be retired from service by the Screening Committee in violation of the provisions of Articles 177, 178 and 244 of the Constitution of 1962, Article 17 of the Order and the old State Service Rules. Paragraphs 3 & 4 of the Regulation are reproduced as under :- "3. Notwithstanding any law, regulation, custom, usage orders or instructions in force immediately before the commencement of this Regulation, as from such commencement.
(a) the Ruler of any of the specified territories shall cease to exercise any powers or perform any function with respect to any matter falling with--in the Legislative competency of the Provincial Legislature and relating, to the administration of such territories,
(b) the powers and functions referred to in clause (a) which immediately before the commencement of this Regulation were being exercised and performed by any of the Rulers of the specified territories shall, subject to the general supervision and direction of the Provincial Government be exercised and performed by such officer, person or authority as the Provincial Government may appoint or empower in this behalf.
4. (1) All persons who, immediately before the commencement of this Regulation, were holding any civil post or office, including a post or office in the forces charged with the maintenance of public order under the administration of any of the specified territories shall as from such commencement be deemed to be persons serving under the Government of West Pakistan.
(2) Notwithstanding anything to the contrary contained in any law, rule, order or instruction for the the being in force or in the conditions of service of persons referred to in clause (1) the Provincial Government may determine the terms and conditions of service to be applicable to them."
The relevant portion of Article 17 of the Order on which reliance is placed reads :- "17. Persons in the Service of Pakistan.-(l) 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 the being be serving, shall be deemed to be serving in connection with the affairs of the new Province in which such place is situated.
(2) Any person who, immediately before the appointed day, was a member of a civil service of the Province of West Pakistan and is, on that day, serving in connection with the affairs of the Centre in the Islamabad Capital Territory or the Centrally Administered Tribal Areas or in any other place not forming part of any of the new pro--vinces, shall, as from that day, be a member of the corresponding civil service of the new Province to which he may be allocated.
(3) Every person referred to in clause (1) or clause (2) small be entitled to the same terms and conditions of service as respects remuneration, leave and pension and the same rights as respects disciplinary matters or rights as similar thereto as changed circumstances may permit, as he was entitled to immediately before the appointed day."
The learned counsel for the appellants elucidating his point submitted that paragraph 4 of the Regulation authorised the Provincial Govern--ment to determine their terms and conditions of service but the Government did not determine the same by framing any statutory rules though they had become members of its service. It was on 30th March, 1970 that the Order was promulgated and the rights of the appellants who were enjoying the terms and conditions prescribed by the Service Rules of the former State in which the age of superannuation was 60 years were amply safeguarded. The Government could not, therefore, alter these terms by retiring them at the age of 55 years or 25 years of service. The paramount question that arises for determination is whether the appellants bad, in fact, become members of the Provincial Service.
The answer, we are afraid, lies in the negative. There is no denying the fact that the employees of the former State were deemed to the persons serving under the Government" but they were not absorbed in the service structure of the Provincial Government. In order to ensure the smooth working of the administrative machinery of the former State and to ensure the continuity in service and drawal of their salary, they were recognized as persons serving under the Government. The Provincial Government, however, was to determine their terms and conditions of service as required under paragraph 4 (2) of the Regulation. Their assertion that they shall be "deemed as persons serving in connection with the affairs of the Province" as contemplated by Articles 177, 178 and 244 of the Constitution of 1962 is devoid of force and substance. After merger of the State in the Province of West Pakistan, the employees of the State did not ipso fact become part and parcel of the service of the province without determination of their terms and conditions of service. They were deemed as persons serving under the Government of the Province but could not claim themselves to be the members of the service of the province as contemplated by the aforesaid provision of the Constitution. A line of demarcation has to be drawn between them and the other members of the service. The term "persons serving under the Government" cannot be equated with the term "persons serving in connection with the affairs of the Province." The learned counsel for the appellants in support of his contention that they were in service of the Provincial Government placed reliance on PLD 1976 Lah. 1251. PLD 1970 Lah. 518 and PLD 1972 Lah, 316. These authorities lend no support to his contention at all. The term "Service of Pakistan" has been defined in Article 242 of the Constitution and those civil servants shall fall within its ambit who are part and parcel of the Service structure and it does not embrace the case of the appellants who do not form part of the Civil Service of the Central or Provincial Government. The competency of the Provincial Government to determine the terms and conditions of service of the appellants by virtue of paragraph 4 of the Regulation has not been assailed before us. The suggestion that the appellants were to be treated at par with the persons serving in other districts in connection with the affairs of the province would not hold good. Their position was material different from the other employees of the Provincial Government. They could not; strictly speaking, be deemed to be members of the civil service within the meaning of the above-mentioned provisions of the Constitution prior to the determination of their terms and conditions by the Government. It being so, these constitutional provisions and the provisions of Article 17 of the Order are not attracted to the instant case.
5. It was emphatically reiterated the and again before us by the learned counsel for the appellants that under the Service Rules of the former State the age of superannnation was 60 years. In the memorandum of appeal to more than one reference has been made to the Service Rules of the former State. Neither a copy of these Rules was appended to be memo--randum of appeal as required by rule 6(2) of the North-West Frontier Province Service Tribunal Rules, 1947 nor any copy was produced during the course of hearing of the appeals. It may be pointed out forthwith that the learned counsel for the appellants candidly conceded before us that the State Service Rules in black and white were not available at all. It was imperative for the appellants to have produced before us the rules on which they placed reliance for the proposition that the age of superannuation under the State Rules was 60 years. The irresistible conclusion one arrives at is that the appellants could not succeed in substantiating their allegation that they had become members of the Provincial service and under the old State Rules the age of superannuation was 60 years.
6. Their learned counsel next contended that once the Provincial Government vide its letter dated 8th July, 1970 fixed the age of superannuation at 55 years, the Government had no jurisdiction to alter one of the terms and conditions later on. Its letter dated 10-9-1970 authorised the Commissioner to constitute a Screening Committee which may retire the employees on the basis of 55 years of age or 25 years of service. Paragraph 4 (2) of the Regulation authorised the Provincial Government to determine the terms and condi--tions of service to applicable to the employees of the former State. Both the letters referred to above can be read in conjunction with each other and leave no doubt in regard to the absolute powers of the Provincial Government for determination of the terms and conditions of the employees and to revise or alter its decision pertaining to such terms and conditions from the to the. The learned counsel for the appellants, however, urged that though the Regulation had empowered the Provincial Government to prescribe the terms and conditions of service, yet it did not imply that the Government could change or take away the terms which had already been guaranteed by Articles 177 and 178 of the Constitution and Article 17 of the Order. He seems to have lost sight of the fact that the appellants, as observed above, could not invoke constitutional safe-guards referred to above. No specific restrictions were imposed by the Regulation upon the powers of the Provincial Government in determining the terms and conditions of service. The instructions conveyed through subsequent letter cannot be ignored altogether. The reason is that it was within the competency of the Govern- -ment to issue instructions from the to the for finalization of the service matters of the employees of the former States. It is observed by their Lord--ships in PLD 1974 SC 291 that even instructions contained in the memoranda issued by the appropriate Government can be regarded as being in nature of statutory rules provided they are expressed with precision and have generality so as to be capable of application to a large number of cases. The direction of the Government authorising the Commissioner to constitute a Screening Committee cannot, in the circumstances, be regarded as null and void.
7. The learned counsel for the appellant urged that the latter dated 10-9-1970 bad not authorised the Commissioner to retire the appellants and, according to him, all that the Commissioner was authorised to do was to constitute the Screening Committee and submit its recommendation to the Government. It would be proper to reproduce the said letter verbatim and it is as follows.
"The Provincial Government has decided that instead of extending the Government Servants Conduct Rules; Efficiency and Discipline Rules and the Rules relating to superannuation of Government employees a Committee be constituted with yourself as Chairman and D. I: G. Of Police and the respective Deputy Commissioner of the District as members to carry out the required task of screening of the former States employees in the districts of Dir, Swat and Chitral.
Needless to say that the same will be done under the old State Rules."
It is manifest that instead of extending the above-mentioned Service Rules, a Committee headed by the Commissioner with D. I.-G. Of Police and the respective Deputy Commissioner as members was to be constituted to carry out the required task of screening of the former State employees in the districts of Dir, Swat and Chitral. We requisitioned the record pertaining to the screening of the former State emplo3ees and found that a copy of the minutes of the meetings held by the Committee on 17-9-1970 and 30-9-1970 was sent to the Provincial Government for information. The report of the Commit--tee is secret but a sentences appearing in its second paragraph may be referred to without divulging any matter of secret nature. The sentence is : "It was decided that the officers whose names are given below should be retired/remo--ved from service for the reasons given against each." It is abundantly clear that the Committee did not order retirement or removal from service but made recommendations only in this context. We noticed that the matter came up for consideration before the Government and the recommendations of the Committee were accepted. It is subsequent to it that the impugned orders were passed against the appellants and the other employees with the approval of the Government.
8. The learned counsel for the appellants forcefully argued that the Commissioner was not legally competent to pass the impugned orders of retirement because he took part in the proceedings as Chairman of the Screening Committee and because he was not an authority authorised by law to pass such orders. Assuming for the sake of argument, without conceding, that the Commissioner passed the impugned order of retirement without prior approval of the Government, his action could not be assailed by the appel--lants with success. The reason is that by virtue of clause (a) of paragraph 3 of the Regulation the Rules of the State ceased to exercise any power and to perform any function with respect to administration of the State whereas clause (6) authorised an officer appointed/empowered by the Provincial Government to exercise all powers and functions referred to in clause (a) previously exercised and performed by the Ruler of the State. In pursuance of the provisions contained in clause (b) of paragraph 3 of the Regulation the Government of West Pakistan vide Notification dated 16-8-1969 had empowered the Commissioner, Malakand Division, to exercise and perform, subject to the general supervisions and direction of the Government all the powers and functions which immediately before the commencement of the Regulation were being exercised and performed by the Ruler of the former State. It follows that the Commissioner who acted as Chairman of the Screening Committee bad been vested with all the powers and functions of the Ruler of the State. That the Ruler of the State exercised absolute powers is a matter which may not be disputed. A copy of the report on the Integra--tion of Swat, Dir and Chitral States Services, a secret, document was produced before us for perusal. We refrain from making a reference to it in extenso and would confine ourselves to the observations regarding powers exercised by the Ruler. It is observed at page 6 that :- "As is well known, under the old regimes in these States, all employees served at the pleasure of the Rulers. No rules or formalities were laid down for retiring or dismissing States officials. The Rulers had the full authority in these matters, and this authority was exercised quite arbitrarily."
It is clear that the Ruler had absolute powers and exercised them arbit--rarily. Such powers were vested with the Commissioner who headed the Screening Committee and his action in screening out certain employees and recommending their retirement was approved by the Government. It being so, it cannot be said that the Commissioner had acted without jurisdiction. He conducted the proceedings of the Committee under instructions of the Government and was duly clothed with an authority to do so. Since he enjoyed the absolute powers of the former Ruler, the appellants had no right to a show-cause notice or to be heard in person by the Commissioner. The contention of the learned counsel for the appellants that they were entitled to show-cause notice or an opportunity of being heard under the State Rules would not prevail. They cannot claim safeguards provided for public servants under the Constitution either. Though the retirement of the appellants was recommended by the Screening Committee headed by the Commissioner and they were retired with the approval of the Provincial Government the Commissioner himself was a competent authority to retire them from service.
9. All the appellants were held entitled to gratuity under Riwaj of the State. Their learned counsel urged that is gratuity was allowed to them under Riwaj, they could nit be deprived of the other benefits of Riwaj such as the age of superannuation at 60 years. As observed above, the age of superannuation under the old State Service Rules could not be established by the appellants and the point agitated on their behalf holds no water. He further urged that the employees had become members of the service of the Provincial Government with the merger of the State and the appellants were entitled to be treated at par with the other Government employees in regard to the pensionary and others benefits applicable to these Government servants. We have already repelled the contention regarding the absorption of the employees embolic into the provincial service and, as such the question of treating the appellants at par with the other Government servants for the aforesaid benefits does not arise. Since they had not been absorbed in the service of the Provincial Government, they were allowed gratuity under Riwaj and not under the Service Rules of the Provincial Government.
10. All the appellants except the appellant Musharaf Shah had served for 25 years and none of them including Musharaf Shah had attained the age 55 years. The were retired "on account of long service" whereas Mus--haraf Shah was retired on the ground of being "undesirable and inefficient" as shown in the record of the Screening Committee. A common yardstick for retirement has been applied to all the employees during the process of screeing and those who had attained the age of 55 years or had rendered service for 25 years were retired. Strangely enough, Musharaf Shah did not specifically challenge in the memorandum of appeal the ground of his retire--ment nor during the course of arguments his learned counsel said a word about it before us. The action of the Screening Committee recommending the appellants for retirement on the aforesaid grounds and the orders of their retirement by the Commissioner could not successfully be assailed before us end no case was made out for interference by us.
11. As a result of the foregoing discussion both the appeals fail and are dismissed. The parties are, however, left to bear their own costs.