MASUD AHMAD Versus PAKISTAN

1. MUHAMMAD GUL, J.‑This leave petition under clause (3) of Article 212 of the Constitution is against the order of the Service Tribunal, Islamabad, dated 25‑5‑1975 dismissing the petitioner's appeal under section 6 of Act LXX of 1973 as barred by limitation as also on merits.

2. Sheikh Masud Ahmed, the petitioner herein was appointed to the P. C. S. (Judicial Branch) of the former Province of the Punjab in 1930. He was promoted as District Judge in December 1950 and confirmed in that post as from the 1st February 1954. Ultimately, he was appointed as a Judge in the High Court of West Pakistan. on 20‑9‑1957. After his appointment as Judge in the High Court, the Governor of West Pakistan by ex post facto Notification No. SO‑III‑3‑15/58 dated the 22nd January 1960, appointed the petitioner District & Sessions Judge, Selection Grade with effect from lst September 1954 to 19th September 1957 that is to say until his elevation to the High Court. The dispute in this petition is about the salary admissible to the petitioner during the period of his appointment as District & Sessions Judge, Selection Grade. Prior to Independence there were two posts of District & Sessions Judges in the Selection Grade in the then Province of the Punjab carrying a fixed salary of Rs. 3,000 per mensem. But immediately before Independence the petitioner was posted as subordinate Judge at Delhi and was drawing his salary in the time scale then admissible to the subordinate judiciary in the Punjab. On the eve of Independence the petitioner opted to serve the Province of West Punjab.

3. The petitioner claims that having opted to serve the Province of West Punjab, by reason of the assurance contained in Article 3 of the Punjab Partition (Civil Services) Order, 1947 issued under section 9 of the Indian Independence Act, 1947, on his appointment as District & Sessions Judge Selection Grade, he became entitled, as of right, to the full salary of Rs. 3,000 per mensem from September 1, 1954 to September 19, 1957. Article 3 of the 1947 Order is in these terms

4. `Subject to the provisions of clause 4, every person who immediately before the appointed day was serving the Punjab Province as official shall, with effect from the appointed day,‑

(a) be deemed to be serving that new province under whose authority he was serving on the appointed day, and

(b) shall be entitled to receive from the Government of such new province the same conditions of service as respects remuneration, leave and pension, and the same rights as respects disciplinary matters or, as the case may be, as respects the tenure of service, or rights as similar thereto, as changed circumstances may permit as that person was entitled to immediately before the appointed day."

5. In support of his claim to the salary at that rate during his tenure as District & Sessions Judge, Selection Grade, the petitioner also relies upon rule 3 of the Central Government (Gazetted) Civil Services (Revision of Pay) Rules having exercised his option in terms of clause (a) of the rule to retain the existing time scale applicable to him on the 18th July 1947. Rule 3 of these Rules reads :‑

6. "3. The prescribed scales of pay shall apply to all gazetted officers (including officers of the Railway and Posts & Telegraphs Departments) paid from Civil Estimates and to civilian officers paid from the Defence Service Estimates subject to the following provisions :‑

(a) No one who was on the 18th July 1947, a permanent incumbent in a time scale or grade shall be compelled to come on to the prescribed scales, but shall be allowed the option to elect the prescribed scales, provided that an officer holding a post included in Schedule II shall not be entitled to retain the existing scale of that post, or any other post included in that Schedule, but shall be allowed the option to elect the modified scales of the prescribed scales ;

(b) Notwithstanding anything contained in clause (a) above, a gazetted officer promoted from a Class II service, or post, to a Class I service, or post, or a non‑Gazetted Government servant promoted to a gazetted post shall be brought on to the prescribed scales of pay :

7. Provided that if an officer is appointed to a post reserved either by rule, or established convention, for members of the particular Service to which he belongs, protection in terms of clause (a) above shall be given to him on appointment to that post notwithstanding the fact that protection from one class of service to another class of service is involved.

8. Note.‑For the purposes of Rule 3(a), the junior and senior scales of a Service shall be deemed to be on time scale."

9. The respondent Government's case on the other hand is that it was by virtue of the Establishment Division's letter No. 25/118/54‑EII dated 9‑12‑1959 that the President approved the conversion of one post of District & Sessions Judge in the then Province of Punjab into that of a Selection Grade post with effect from 15th August 1947. This was however, subjected to the following rider

10. "The pay attached to the selection grade post of District & Sessions Judge will be Rs. 3,000 for officers of the former 1. C. S. and for those who are protected in the old I. C. S. scale, and Rs. 2,000 for officers drawing pay in the prescribed scale of pay. These rates of pay will, however, only be admissible to officers who have completed 17 years Class I Service. The pay of these officers who have not completed 17 years Class I Service should be restricted in accordance with the length of service formula prescribed in the Central (Gazetted) Civil Service (Revision of Pay) Rules, 1951."

11. In other words, it was a newly created post as from the 15th August 1947 carrying a revised scale of pay admissible to the different officers according do the class to which they belonged and appointed to the post. And since the petitioner was not a member of former I. C. S., nor he was otherwise protected in the old I. C. S. scale, therefore, he was allowed salary at the reduced rate and was also subjected to the length of service formula. A number of representations by the petitioner were made but the Government adhered to the above point and ultimately the Government vide the Establishment Secretary's letter dated the 3rd December 1968 rejected the petitioner's claim.

12. The petitioner having retired from service in the meantime filed a civil suit in the Court of Senior Civil Judge, Rawalpindi, for a declaration that the conditions imposed by means of letter No. 25/118/54‑EII dated 9‑12‑1959 were ultra vices and that on his appointment as District & Sessions Judge, Selection Grade, he was entitled to the full salary of Rs. 3,000 per mensem. While the suit was still pending, the Service Tribunals Ordinance. 1973 ‑(Ordinance XV of 1973) came into‑force on the 15th August 1973. On the commencement of the Ordinance the suit abated forthwith vide section 6 ibid which reads "Abatement of suits and other proceedings.‑All suits, appeals or applications regarding any matter within the jurisdiction of a Tribunal pending in any Court immediately before the commencement of this ` Ordinance shall abate forthwith :

13. Provided that any civil servant who is a party to such a suit, appeal or application may, within ninety days of the commencement of this Ordinance, prefer an appeal to the appropriate Tribunal in respect of any such matter which is in issue in such suit, appeal or application"

14. However, under the proviso the petitioner could seek remedy by way of .appeal to be filed before the appropriate Tribunal within 90 days from the commencement of the Ordinance. The Ordinance was later replaced by the Service Tribunals Act, 1973 (Act LXX of 1973) section 6 whereof is on the same terms as set out above. The Act came into force on the 20th September 1973 and by section 9 repealed the Ordinance.

15. It seems however, that the petitioner failed to file appeal before the Service Tribunal within the period of 90 days of the commencement of the Ordinance or even of the Act. Therefore, the appeal was held to be barred by limitation and that there was no ground for condoning the delay. The Tribunal nevertheless addressed itself to the merits of the case also but found that the petitioner's claim for salary of Rs. 3,000 per mensem for the relevant period was also untenable. The petitioner now seeks leave against the Tribunal's order.

16. The petitioner's learned counsel at the outset submitted that the Tribunal was in error to have held that the appeal was barred by limitation. He submitted that the civil Court by order dated 16‑7‑1974 declared that because of the coming into force of Act LXX of 1974, the suit had abated under section 6 of the Act. Learned counsel pointed out that despite the commencement of the Ordinance, the suit continued in the civil Court and until a declaration was made by the Court that the proceedings in the suit had abated, the petitioner was not obliged to move the Tribunal in appeal. On the plain reading of the provision of section 6 of the Ordinance, as set .out above, the argument is entirely without substance.

17. Under the substantive part of section 6 the suit abated "forthwith" on the commencement of the Ordinance. Therefore, there is no room for the argument that unless the civil Court had declared the suit to have been so abated, the 90 days limitation for the filing of appeal before the Tribunal would not commence. Indeed, the language of the statute is peremptory and the proceedings in the suit abated ipso facto by operation of law and therefore no formal order of the Court was necessary to terminate the proceedings before it. It is not disputed that the petitioner failed to file the appeal within 90 days allowed by the statute. The fact that the Ordinance was replaced by Act LXX o P 1973 would not extend the limitation for the appeal before the Tribunal. Clauses (c), (d) and (e) of section 6 of the General Clauses Act, 1897 are clearly applicable to the situation. Therefore, the Tribunal was right in itsl view that the petitioner's appeal was barred by limitation.

18. Learned counsel however argued that since the proceedings in the suit continued notwithstanding the commencement of Ordinance XV of 1973, that per se was a substantial reason for condonation of delay in the peculiar circumstances of the case. The matter however, lay entirely within the discretion of the Tribunal and the Tribunal having chosen not to condone the delay, would scarcely be a reason for the grant of leave under Article 212(3) of the Constitution, which envisages grant of leave on "a. substantial question of law of public importance."

19. Even otherwise, the view taken by the Tribunal on the merits of the dispute is not open to any exception. There is abundant authority to support the view that the assurance in Article 3(b) of the Punjab Partition (Civil Services) Order, 1947 inter alia guaranteeing the existing terms and conditions, as respects remuneration etc. must read as being limited to the terms and as conditions applicable to a particular civil servant immediately before "the appointed day" and not to the terms and conditions applicable to any higher post or cadre to which the civil servant may be promoted at any time i future after Independence. See this Court's judgment in the Province of West Pakistan v. Muhammad Akhtar Qureshi (PLD1962SC428=(1962)2PSCR288). . In that case, subsection (3) of section 8 of the Establishment of West Pakistan Act, 1958 came in for the interpretation by this Court. It inter alia guaranteed to all persons serving in the "specified territories" which as from the commencement of that Act, became the Province of West Pakistan and who as from that date were to be deemed to be serving in connection with the affairs of the new Province of West Pakistan on "such terms and conditions as the Governor of that Province may determine." This power however, was to be exercised subject to the following proviso namely :‑

20. "(a) Provided that such terms and conditions shall not be less favourable than the terms and conditions admissible to them immediately before the 10th day of August 1955 . . . . . ."

21. The crucial words in the phrase are "admissible to them immediately before the 10th day of August 1955". While interpreting these words this Court observed

22. "The words `admissible to them immediately before 10th day of August in section 8(3) of the Act make it clear that the terms and conditions to which they were referring had to be understood in a restricted sense and, therefore, in evaluating the expression in relation to a particular person, it was clearly impossible to include such far‑fetched matters as his prospective promotion into a higher service upon the assumption that he might attain a status in his present service and earn the degree of approbation necessary for such promotion. The expression is one which has the effect of strict limitation in relation to a given time and avoids anything in the nature of future potentiality in regard to the terms and conditions of service. It must, therefore, be understood in a narrow and limited sense to refer to concrete matters relating to the actual service of the person concerned, on the specified date."

23. This followed a similar view earlier taken by this Court in Government of West Pakistan v. Fida Muhammad Khan (P L D 1960 S C 45=(1959) 2 P S C R 187) and Government of West Pakistan v. Fataullah Khan (P L D 1960 S C 105=(1959) 2 P S C R 192). The assurance contained in Article 3 of the 1947 Order upon which the petitioner mainly relies in support of his claim is in effect in similar terms as proviso (a) to subsection (3) of section 8 of the Establishment of West Pakistan Act. It is admitted that the petitioner, when he initially exercised option on the eve of Independence to serve the Province of West Punjab, held the appointment of a Civil Judge. Therefore, g upon the above interpretation what was guaranteed to him was the rate of salary admissible to him "immediately before the appointed day" and not to any higher post or grade to which he might be promoted or appointed after that day.

24. Learned counsel for the petitioner also submitted that the petitioner having given his option in terms of rule 3(a) of the 1951 Rules to retain the existing scale of pay, pro tanto also opted for the existing scale of pay admissible to District and Sessions Judges Selection Grade, and that option could not have been nullified by the Establishment Division's letter dated the 9th December 1959 by which not only the monthly salary of a Sessions Judge appointed to the Selection Grade barring the few cases and specified therein, was reduced but also placed under the limitation of 17 years completed Class I Service to entitle an incumbent to the full salary even at the reduced rate. The argument was that the Establishment Division's letter could not override the statutory rules nor stultify exercise by the petitioner of option pursuant to the said rule. This argument is also without any substance. It can scarcely be controverted that the letter is expressed in general terms and having been issued by the appropriate authority namely the President, who it cannot be controverted was a repository of the rule‑making power regulating the terms and conditions of service of the "listed post holders". See this Court's judgment in Khan Faiz Ullah Khan v. Government of Pakistan etc. (P L D 1974 S C 291). The letter being of subsequent date than the 1951 Rules will take effect as a formal rule and amending the provisions of rule bearing on the subject. See Pakistan v. Abdul Hamid (P L D 1961 S C 105) and Province of West Pakistan v. Din Muhammad (PLD1964SC21). It is also important to point out that the letter in question is precedent in date than the notification actually appointing the petitioner to the Selection Grade. Since the post was resurrected by this letter, subject to a number of limiting conditions affecting the petitioner and others similarly placed, on the authority of the aforesaid precedent case, these conditions will apply to the petitioner.

25. For the foregoing reasons, the petitioner's appeal was rightly dismissed by the Tribunal. The petition is accordingly dismissed. .

26. S. A. H.

27. Petition dismissed.