This representative appeal is directed against the judgment given on 17-4-1969 by the learned District Judge, Hyderabad, whereby he allowed the appeal of the respondents and dismissed the suit of the appellants claiming certain allowances.
2. The appellant is employed as a Draftsman in the District Council, Hyderabad, which prior to the promulgation of the Basic Democracies Order, 1959 (hereinafter called the B. D. O.) was known as the District Local Board, Hyderabad. By a resolution of the said Board, passed on 25-8-1945, the employees of the Board were granted Hyderabad Allowance. Subsequently, by another resolution of the Hyderabad District Local Board, passed on 3-8-1954, Special Pay was granted to the employees of the Board equal to two advance increments. After the enforcement of the B. D. O. In 1959, the aforesaid two allowances were continued to be paid to the employees of the Hyderabad District Council. In the year 1965, the West Pakistan District Councils (Grades of Pay of the Service of District Councils) Rules, 1965, hereinafter referred to as the rules, were promulgated. These rules provided for payment of revised Pay Scales, known in the rules as "consolidated scales", to the employees of District Councils who did not opt for their existing emoluments and further possessed the minimum qualifications shown in the rules against the posts held by them. Employees who did not possess the minimum qualifications or who did not opt for their existing emoluments were to continue to receive their existing emoluments, known in the rules as "present emoluments". The option was to be exercised within a period of 4 months from the issuance of the rules and in case an employee failed to exercise the option within the said period, he was deemed to have opted for the consolidated scales. Despite the promulgation of these rules and the admitted position that the appellants did not opt for the "present emolu--ments", they continued to receive their existing emoluments, including special pay and Hyderabad Allowance, till 30-6-1967, whereafter they were brought under "consolidated scales" and were denied both the special pay and the Hyderabad Allowance.
3. Aggrieved by the refusal of the Hyderabad District Council to pay them the aforesaid two allowances, the appellants filed a representative suit in the Court of the Senior Civil Judge, Hyderabad, praying for a declaration that they were entitled to the two allowances in question and an injunction to restrain the respondents herein from either stopping the said allowances or deducting from their emoluments the allowances paid to them from the period 3-7-1965 up to 30- 6-1967. The suits was resisted by the respondents on the two-fold plea that the appellants were not Civil Servants and con--sequently not entitled to the protection of Article 177 of the Constitution, and that the impugned order stopping the allowances was a valid order, having been passed in exercise of the powers conferred on the respondents under Article 45(3) of the B. D. O. The learned Civil Judge, while upholding the first contention, repelled the second contention and held that firstly no order under the B. D. O. Had been passed and secondly that the conditions of service and the grades of pay of the appellants could not be arbitrarily altered to their disadvantage.
4. On appeal, the learned District Judge examined in some detail the provisions of the rules and came to the conclusion that the appellants were deemed to have opted for the "consolidated scales" of pay which did not contemplate the payment of the two allowances in question. However, a statement was made before the learner'. District Judge by the counsel for the respondents that if under the "consolidated scales" the appellants were entitled to the two allowances in question, the respondents would consider the question of payment of the said allowances to them. The learned District Judge accordingly ordered that the emoluments of the appellants should be worked out under the "consolidated scales" prescribed under the aforesaid rules. It would appear that notwithstanding the direction of the learned District Judge, the respondents have not .Yet decided the question whether the two allowances in question are admissible to the appellants under the aforesaid rules. However, under the- orders of this Court, the appellants have continued to receive the two allowances in question on furnishing of security.
5. The respondents have chosen to remain absent in this appeal and consequently I have had only the advantage of hearing Kazi Ha6zullah, the learned counsel for the appellants. The learned counsel's first contention was that the appeal before the District Judge was preferred by the respondents only against Shaukat A.I and not against the remaining appellants who were represented by appellant Shaukat A.I in the representative suit filed by him. He argued that inasmuch as no notice of the appeal was served before the District Judge on the remaining appellants, the decision in appeal in respect of them was behind their backs and was not binding on them. The learned counsel, in support of this submission, relied on the provisions of Order I, rule 8 read with Order XLI, rule 14, C. P. C. The learned counsel, however, conceded that in the original trial the other appellants had due notice of the proceedings. His contention was that separate notices should have been issued to them when the appeal was filed by the respondents. Mr. Hafizullah was unable to cite any authority in support of this submission of his. It may be pointed out that the appeal before the District Judge was not only against the appellant Shaukat A.I but also against the persons having similar interest as his, namely, the persons whom he represented in the representative suit. There is no evidence that apart from Shaukat A.I the other appellants put any appearance in the trial Court. For this Province sub-rule (3) has been added to rule 14 of Order XLI to the effect that the appellate Court may, in its discretion, dispense with the service of notice of the appeal or in--terlocutory application therein on the respondent or opponent who has made no appearance in the trial Court. Apart from this sub-rule, the learned District Judge has considered the question of non-issuance of separate notices to the appellants other than Shaukat A.I and on the basis of the decisions reported in AIR 1927 Cal. 608 and PLD 1959 Lah. 526 held that it was no necessary to serve notice of appeal individually on the other appellants. I am in agreement with his view. In fact, the object of a representative suit would be largely lost if after having effected proper service on all the parties in the original suit, it becomes necessary to serve the various representative A components at every stage of the proceedings. As observed by the Calcutta High Court in the aforesaid case, so far as the question of representation in a representative suit is concerned, the proceedings in appeal may well be regarded as proceedings in continuation of the suit and the result of the appeal would be taken as the result of the suit itself.
6. It was next contended by Kazi Hafizullah that under the rules the appellants could not be denied the payment of the two allowances in question. The learned counsel relied upon the provisions of rules 4, 6, 11 and 16 and also the definition of `Pay' as contained in the said rules. Rule 4 provides that a servant of a District Council who possesses the minimum qualifications for the post held by him shall be entitled to the "consolidated scales". Rule 6 gives right to the employees of the District Council to opt either for the consolidated scales or the present emoluments, which option is to be exercised within 4 months, and if no option is exercised within the said period, the employee is deemed to have opted for the consolidated scale, as provided in rule 11. Rule 22 is the most material rule for the purposes of the present appeal. It reads as follows :---- "22. If a servant of District Council opts or is deemed to have opted for the consolidated scale the dearness/cost of living allowances, compensation allowance and the interim relief payable with the present emoluments, shall, with effect from first of December 1962, cease to be payable."
7. Reference may also be made to the definition of pay which term has been defined in the rules as follows: " `Pay' means the amount drawn monthly by a servant of District Council otherwise than as special pay, technical pay, personal pay or as allowance." It is clear frost the above definition of the term `pay' that special pay is not included within the connotation of `pay' as' defined in the said rules. If, therefore, special pay is denied to the appellants, it could only be done if, either it is to be deemed to be a type of an allowance referred to in rule 22 or alternatively rule 4 and the definition of "consolidated scale" must be construed as granting to - the employees of the District Councils only the scales or the emoluments shown against the post held by them and excluding every other type of emolument, including special pay, etc. It was strenuously urged by the learned counsel for the appellants that special pay and Hyderabad Allowance do not come within the purview of rule 22 nor do the rules, including rule 4 and the definition of "consolidated scale" exclude the payment of the aforesaid special pay and allowance. Now "consolidated scale" has been defined in the rules as the scale of pay specified in the schedule to the rules. Since pay does not include special pay, consequently consolidated scale will hot include special pay. Further more, rule 4 does not provide that employees of District Councils will be entitled only to the consolidated scale and no other special pay or allowance will be admissible to them. If this were so there was no necessity for specifically providing in rule 22 that certain allowances would not be admissible to the employees of the District Councils who were entitled to receive or were getting consolidated scales of pay. Rule 22 must be construed strictly and therefore it falls to be considered if special pay and Hyderabad Allowance are covered by the said rule. The said rule only bars dearness/cost of living allowance, compensation allowance and the interim relief. It makes no reference to special pay. I am therefore, clear in my mind that the payment of special pay is neither barred by rule 22 nor any other provision of the aforesaid rules. Similarly, Hyderabad Allowance does not appear to be covered by any of the allowances referred to in rule 22. If it was the intention of the rule-making authority that all sorts of allowances would be inadmissible in the case of employees receiving the "consolidated scales", such intention should have been made manifest by suitable language. The principle is well settled that expression unius est exclusion of alterius (mention of one is exclusion of the other).
8. By section 1 of the Poor Relief Act, 1601, occupiers of coal mines were to be rated for the relief of the poor, but no other mines were mentioned in the statute. In R. v. Sedgley ((1831) 2 B & Ad. 65) it was argued that coal mines might be considered as having been mentioned in the statute as examples, and that, in fact, it was intended that the occupiers of all kinds of mines should be rated.
This argument was rejected, and it was held that, according to the aforesaid maxim, the expression "coal mines" had the effect of excluding all other mines. This maxim has been repeatedly applied in England. In Whiteman v. Sadler ((1910)AC514), Lord Dunedin, while relying on this maxim, observed:- "it seems to me that express enactment shuts the door to further implica--petition. Expressio unius est exclusio alterius."
9. However, there are certain limitations on the application of this maxim. As observed by Lopez L. J.
In Colquhoun v. Brooks ((1881)21QBD52) at p. 62 : "The exclusio is often the result of inadvertence or accident and the maxim ought not to be applied, when its application, having regard to the subject-matter to what it is applied, leads to inconsistency or injustice." The above observations were referred to with approval by Lenkins, L. J. In Dean v. Wiesengrund ((1955) 2 Q B 120). Reference may also be made to the dissenting judgment of Lord Diplock in C. Maurice & Co- Ltd. v. Minister of Labour ((1968) 2 All E R 1030), that "the rule of construction `expressio unius excluslo alterius' is not appropriate where that which is expressed is introduced by a phrase such as "such as". Lord Diplock reiterated this exception to the rule in Prest-Cold Ltd. v. Minister of Labour ((1969) 1 All E R 69).
10. The above maxim has been applied in Pakistan, though with certain reservations. In Ghulam Sarwar v. Pakistan (PLD 1962 SC 142). Murshid, J., while relying on this maxim, held that the expression "dismissal" as used in section 240(3) of the Government of India Act, 1935. Was not intended to be a reproduction of rule 49 of the Classification Rules, so as to include "removal" within its ambit.
11. In G. H. Battacharaya v. State (PLD 1964 SC 503), their Lordships of the Supreme Court, by majority, applied the above maxim and held that the power of the Provincial Government under section 401, Cr. P. C. To remit sentences other than a sentence of fine was not taken away by P. O.
No. 26 of 1962, in view of the fact that section 5 of that Order curtails only the power of the Provincial Government to remit a sentence of fine, leaving unaffected its powers under the Cr. P. C. Of remission of all other sentences.
12. Again, in K. A. Jaisinghani v. Custodian of Evacuee Property (P L D1965 SC 453 ). Kaikaus, J., while construing the effect of the amendment effected in section 43(6) of the Pakistan (Administration of Property Act), 1957, by Ordinance LX11I of 1962, in the light of the provisions contained in the saving clause of the Ordinance and section 6, of the General Clauses Act, 1897, observed as follows :---- "It is not necessary however to pursue this matter further as section 6, applies in accordance with its wording only where a different intention does not appear and in the present case there is a saving clause in the repealing enactment which should govern the question as to what proceeding will remain unaffected. According to the saving clause which has been reproduced above review applications pending immediately before the commencement of this Ordinance on which proceedings had started before the commencement of the Ordinance remained unaffected. As only applications for review have been mentioned in the saving clause it is proper to infer that suo motu reviews were not intended to be saved. From the fact that the Legislature provided a saving clause it is apparent that the question as to what should be saved was considered by the Legislature. If the intention was to save suo mote proceedings also there is no reason why those proceedings should not have been mentioned. Expressio unius exclusio alterius, is not a rule of universal application for the Legislature may mention a matter on account of excessive caution, but if it be clear that the mention of one out of several matters is rot on account of excessive caution it is legitimation to regard the provision as exhaustive and exclusive of what is not mentioned in it. In the present case the Legislature appears to have made a distinction for which a good reason existed."
13. As already pointed out, the rule-making authority has expressly mentioned certain allowances which are not admissible to persons entitled to payment of the consolidated scales. Neither this rule nor any provision in the rules bars the receipt of special pay or Hyderabad Allowance, which are not covered by the provisions of rule 22. I am therefore of the opinion that until the rule-making authority, in exercise of the powers conferred upon it by law, validly takes away these allowances, the appellants will be entitled to the same. I would accordingly allow the appeal with costs.