MUSHARRAF ALI Versus

This order shall also dispose of Writ Petitions Nos. 2142, 3022, 3346, 3347, 3348, 3557, 3661, 4289 and 4295‑S‑79, which involve the same question of law as being raised here.

2. The petitioner is working as a `Registration Moharrir since the year 1963, and has been performing his duties at various places. His last appoint ment was in the Sub‑Registrar Office, Dipalpur, when a notification (Annexure `C' dated 11th February. 1979) was published. The grievance of the petitioner is that as that notification has upset his terms and conditions of service as laid down in West Pakistan Registration Department Ministerial Establishment Recruitment Rules, 1963, which governed his case, the same is liable to be quashed.

3. Originally, the personnel' working in the office of the Sub‑Registrar were part of the revenue cadre and the Deputy Commissioner exercise administrative control on them. On 24th November, 1962, the Governor of West Pakistan made the West Pakistan Registration Department (Northern Zone) (Sub‑Registrars) Recruitment Rules, 1962, regulating the recruitment and conditions of service for the persons appointed thereunder. On 5th January, 1963, another notification was issued by the Governor of West Pakistan under Article 178(2) of the then Constitution making rules regulating recruitment to the Ministerial posts in the West Pakistan Registration Department and prescribing conditions of their service. These were called the West Pakistan Registration Department Ministerial Establishment Recruitment Rules, 1963.

4. On 10 th July, 1978, respondent No. 2 issued a memorandum con ferring control over the petitioner and other employees placed in the similar situation to the respective Deputy Commissioners. Another memorandum was also issued whereby Revenue Board provided that the West Pakistan Revenue Department District Ministerial Service Rules, 1964, shall apply to the petitioner and others similarly placed. It is contented that as some of the employees challenged the above to memoranda in a Civil Court, respondent No. 2 withdrew those orders on 22nd January, 1979, and instead issued noti fication dated 28th January, 1979, Annex. `C'.

5. The effect of 1979 Notification is that the petitioner and other employees of the registration office at the district level had been merged in the district establishment and taken out of the control of Inspector‑General of Registration, Punjab, Lahore. It is contended by the learned counsel that the impugned notification is ultra vires of the power of the Governor and is also bad and as it violates the terms and conditions of the petitioner and others. The precise objection taken is that on merger of the petitioner and other employees of the registration offices in the district cadre, their right to seniority as well as chances of promotion will be seriously prejudiced.

6. The learned counsel referred to Articles 240 and 241 of the Constitu tion and thereafter to various provisions of Punjab Civil Servants Act to show that the terms and conditions of the petitioner and others have been unchangeably regulated thereby. He also went through the preamble which shows that the Act is made to regulate the appointment and other terms and conditions. He also referred to section 2(b) which defines `Civil Servant' as well as section 7(1) that the law recognises service, cadre etc.

7. Rule 14 of the 1963 Rules, whereby the Governor had been obliged to see that whenever the application of the Rules adversely affects the terms and conditions of service of any person as guaranteed by any law for the time being in force the Governor shall make appropriate orders to safeguard the constitutional and legal rights of such persons. The learned counsel, however, could not refer to any provision of law under which the Governor is restrained either to amalgamate the cadres or to create or abolish cadres or grades. He rather admitted that no such limitation or restriction had been placed in the above law.

8. The learned Assistant Advocate‑General in reply relied on the same provisions as cited by the learned counsel for the petitioner. He referred to the Rules of Business to say that registration of deeds and documents is the function of Revenue Department. In addition, he referred to section 9 of the Civil Servants Act to say that, in any cases, no Civil servant could claim any such guarantee of service whereby he may refute to serve under one depart ment or the other, or one place or the other. It is rather the converse of it. He also went through section 20 of the General Clauses Act to say that as the Governor is entitled to lay down the terms and conditions, create cadres and grades, he is also empowered to undo the same. Reliance was also placed on Province of West Pakistan v. Diva Muhammad (P L D 1964 S C 21) to the same effect.

9. After hearing the learned counsel for the parties, going through the record and relevant provisions of law, I find that these petitions have no force. Admittedly, the petitioner and their colleagues were a part of the district revenue department and belonged to the district cadre prior to 1962 and 1963 Rules. If I accept the contention raised on their behalf that the Governor cannot revert them to their original district cadre, I will also be holding that the original separation of their cadre was equally bad. The petitioners, would, therefore, be entitled to no relief from this Court as it would amount t0 perpetuating the original illegality.

10. Article 240 of the Constitution lays down that the appointment to and the conditions of service of persons in the case of services of a province and posts in connection with the affairs of a Province shall be determined by or under Act of the Provincial Assembly. The Provincial Legislature enacted and enforced on 4th June, 1974, the Punjab Civil Servants Act. 1974, to regulate the appointment to and the terms and conditions of the services of the Pro vince of the Punjab and to provide for matters ancillary to or connected therewith. Section 4 provides that appointment to a civil service of the Province or to a civil post in connection with the affairs of the province shall be made by the Governor or a person authorised by him in the prescribed video in manner. The terms and conditions of a civil servant shall be as pro the Act and the Rules. Sections 5 to 21 contain various terms and conditions. Section 7, dealing with seniority. Shows that there may be separate services or cadres of grades or posts. Section 7(4) says that the seniority of a civil servant in relation to other civil servants belonging to the same service, cadre or grade whether serving in the same department or office or not shall be determined in such manner as may be prescribed.

11. Section 3 lays down that terms and conditions of a civil savant shall be as provided in the Act and the Rules. Section 23 empowers the Governor to tame Rules to carry out the purposes of the Act. Section 7 provides for seniority and section 8 for promotion. Both these sections talk of grade, service and cadre. In pursuance to the above power the Governor has created different services, cadres and grades and has framed separate Rules to regulate them. There is, however, nothing in law to restrain or prevent him from reorganising the said services, cadres or grades and framing frost. Rules for them. In fact it is a part of the executive authority or function. According to section 20 of the West Pakistan General Clauses Act, a power to make includes a power to add to, amend vary or rescind orders, rules or bye‑laws. Consequently, the Governor, who can create service cadres or grades, would be entitled to amalgamate, merge or separate the same in the exigency of work. Again, he can create and abolish posts as provided in section 10(2). It has been held by this Court in Karam Din v. Inspector- General of Police (PLD 1964 Lah. 187) that abolition of a post is not questionable and any promise by the Government to absorb such retrenched officers is also not enforceable at law. The only exception, however, that has been made is that a right already vested cannot be taken away and a Government servant can seek protection of a Court with regard to it as held in Pakistan v. Muhammad Himayatullah (P L D 1969 S C 40).

12. A similar case, as the present one, came up before the Supreme Court in Province of West Pakistan v. Din Muhammad, In that case also a direction was issued to the Registrar, Co‑operative Societies, to maintain a combined seniority list of the employees. Previously, there were separate cadres as in the present case. That was done in. 1944 under a directive of the Governor. The claim ref the petitioners in the writ petition before the High Court was the same as here that the combined seniority list had diminished their prospects of promotion. The following portions of the judgment may be reproduced with advantage :‑

" . . . . It is further argued that even if the Memorandum of the 30th o: December, 1944, was not an `order making a rule' as held by the High Court, it certainly constituted administrative instructions having the same effect as statutory rules as held by this Court in the case of Pakistan v. Sheikh Abdul Hamid P L D 1961 S C 105. These instructions con tained in the Memorandum No. 4423‑D of the 30th of December, 1944, had been issued by the Governor himself, who was fully competent even to alter or amend the rules of service to the detriment of employees concerned The instructions contained in Memorandum of the 30th of December, 1944, possessed all these qualities and, therefore we are unable to agree with the High Court that they could not have had the effect of amending the rules of 1936 nor are we in a position to read the word `order' in subsection (3) of section 241 of the Govern ment of India Act, 1935, in the restricted sense in which the High court has read it .. . "

The above would show that the Governor could even amend the previous Rules and that the petitioners will not be entitled to claim the chance of promotion or the future benefits.

In view of the above, there is no merit in these petitions which are dismissed leaving the parties to bear their own costs.

Petition dismissed.