Pakistan Case LawGOVERNMENT OF PAKISTAN THROUGH SECRETARY, MINISTRY OF DEFENCE, RAWALPINDI Versus HAQ NAWAZ
This matter arises from a petition for leave to appeal filed by the Government of Pakistan against the judgment of the High Court of West Pakistan, Lahore, passed in Writ Petition No. 1956 of 1966. The respondent, Haq Nawaz, a Lower Division Clerk in the Ministry of Defence, sought implementation of a formal order dated 7th July 1965, issued with the sanction of the President, regularizing his pay scale. The department failed to implement it, contending the order was issued by mistake and subsequently cancelled by the Ministries of Finance. The core legal question was whether an executive order issued with the sanction of the President could be ignored or treated as cancelled without a formal countermanding order issued with equal sanction. The Supreme Court held that in the absence of any order countermanding the 7th July 1965 order with the sanction of the President, the High Court was fully justified in directing the department to implement the validly issued order. The petition was accordingly dismissed, establishing that formal executive orders issued under the President's sanction remain enforceable until properly countermanded through competent authority.
- Whether an order issued with the sanction of the President can be ignored without a formal countermanding order issued with similar sanction?
- Is the High Court justified in directing the implementation of a pay fixation order when no valid countermanding order is brought on record?
ORDER
WAHIDUDDIN AHMAD, J.-Haq Nawaz respondent was appointed as Lower Division Clerk on the 21st May 1949, in the Ministry of Defence, Rawalpindi, on civil side at Rs. 75 per month in the scale of Rs. 75-5-100-EB-5-180 through an executive order. Later on, it was realised that under the Central (Non --Gazetted) Civil Services (Revision of Pay) Rules, 1949, enforced on the 1st of April 1949, the Lower Division Clerks were entitled to the scale of Rs. 60-4-100-EB-5-120 and the previous scale could not be allowed to the respondent as he was appointed after the enforcement of the said statutory Rules. This mistake was rectified on the 11th August 1949. The respondent and others who were adversely affected made representations to the Department. The Government of Pakistan, in the Ministry of Defense, regularized the appointment of five such appointees with effect from the date of their appointment in the original scale of Rs. 75-100. The 'respondent's claim was also accepted on the 7th of July 1965, when a formal order containing the sanction of President to the fixation of pay at Rs. 75 in the revision scale of pay Rs. 75-180 was conveyed to him. This order was not implemented by the Department. The respondent, therefore, moved the High Court of West Pakistan, Lahore, in Writ Petition No. 1956 of 1966. The learned Judges of the High Court, by order dated the 19th February 1970, came to the conclusion that as the order granting beneficial scale of pay to the respondent has not been countermanded, the petitioner must implement it. The Department seeks permission to file an appeal against the said order.
Mr. Khalilur Rahman, learned counsel for the petitioner, has contended that the, impugned order in favour of the respondent was passed by mistake and the same was cancelled by the Ministry of Finance (Military) and the Ministry of Finance (Civil) the grounds mentioned in the report of the Department. It may be so, the question for consideration is whether any order counter mending the order dated the 7th July 1965, has been issued with the sanction of the President as the said order was passed under the name of the President. No such order has been brought to our notice. The Department has filed a lengthy affidavit to show that the order dated the 7th July 1965, was passed under a bona fide mistake We are satisfied that the High Court in the circumstances of the present case, was perfectly justified in calling upon the petitioner to implement the order passed on the 7th July 1965.
Mr. Khalilur Rahman, learned counsel for the petitioner, contended that the order in the name of President countermanding such order may be permitted to be issued. No such permission is required. It is for Legal Advisor of the Government to advise them on the steps which should be taken in the circumstances of the present case. We are not inclined to express any. Opinion on this point. There is no force in the petition which is dismissed.
Cited by 1 case
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Judges on this bench
- Sajjad Ahmad512 judgments
- Wahiduddin Ahmad281 judgments