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Petitioner: S. ZAHID ALI VS Respondent: WAH CANTT. AND ANOTHER
Court Name: Lahore High Court Judge(s): Maulvi Mushtaq Hussain, Shamim Hussain Qadri, A. R. Sheikh Title: S. ZAHID ALI vs WAH CANTT. AND ANOTHER Case No.: Writ Petition No, 887 of 1967 Date of Judgment:1969-12-22 Reported As: PLD 1971 Lahore 229 Result: Petition dismissed
JUDGMENT
JUDGMENT SHAMEEM HUSSAIN KADRI, J.--One Zahid Ali, Assistant Works Manager, Pakistan Ordnance Factories, Wah Cantt. was promoted to Class I by partial supersession of D. 0. pt. II No, 2237, dated 31st October 1963 with effect from 4th November 1963 vide Daily Order Part II dated the 24th August 1964. A condition was attached to his promotion that such promotion will be provisional until he and other such persons who were similarly promoted pass the departmental promotion examination. An association was formed by the Officers of his cadre and several representations were made to the Authorities against the conditional promotion but their efforts did not bear any fruit. This conditional order of promotion has been assailed by this Writ Petition under Article 98 of the abrogated Constitution of 1962. 2. Originally the writ petition was filed against the Pakistan Ordnance Factories Board, Wah Cantonment but during the arguments the petitioner thought it necessary to ask our permission for impleading the Government of Pakistan, through Secretary, Ministry of Defence, as another respondent in the case. Permission was granted to the petitioner and the amended writ petition was filed. 3. The main contention raised by the petitioner was that in view of Daily Order No, 93 Part I issued by the Pakistan Ordnance Factories, Wah Cantt. on 20th of March, 1956, the condition of promotion from Class II to Class I was only by selection which has been changed to his detriment. Relevant para. of the order is produced as below:-- "Para 2. (i) From non-Gazetted to Class II Officer cadre by selection. (ii) From Gazetted Class II to Gazetted Class I cadre by selection." Appending the condition of passing departmental examination the promotion amounts to change
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in terms and conditions of service and in any case the Pakistan Ordnance Factories Board was not competent to change such conditions of his service, the Government alone being competent in this behalf. 4. The petition has been contested both by Pakistan Ordnance Factories Board and the Ministry of Defence. 5. In support of his submission the learned counsel appearing on behalf of the petitioner referred to paragraphs Nos, 3, 4 and 5 of the Daily Order No, 93 which are reproduced as under :- "3. Seniority rolls up to A. W. M.--Seniority rolls up to A. W. M. will be maintained in accordance with direct lines of promotion within each A. W. M. Group except sections mentioned in para. 2 (iv) (a), Combined seniority rolls of those sections will be prepared, group-wise, on the basis of continuous regular appointment subject to the condition that the recombination seniority among members of one section is not disturbed as amongst themselves. Separate seniority rolls will be maintained for staff employed in Heat Treatment Section of the Ferrous Factory for promotion up to Foreman. 4. Seniority Rolls for A. W. M. and above:-- Separate seniority rolls would be maintained as follows: (1)For all AWMs of the Explosives and Filling Factories. (2)For all AWMs of the Engineering Factories Group. (3)For all WMs of the Explosives and Filling Factories. (4)For all WMs of the Engineering Factories Group. A confidential report on each officer indicating his fitness and suitability for promotion to the next higher grade will be initiated by his immediate Class I senior Officer and forwarded through the normal channel to the D. D. 0. F. for record. Each officer in the chain will add his own comments and recommendations to the report. These reports will be rendered annually. 5. In the case of promotion from Non-Gazetted to Gazetted Class II and from Gazetted Class II to Class I it will be the responsibility of the Superintendent of the Factory Group concerned and of the Chief Superintendent to furnish a report to the Selection/Promotion Board on the individual's suitability (appearance, social etc.) to maintain the status of a Class I or II Gazetted Officer to assist the Board in their selection." In the light of the above paragraphs of the Office Order No, 93 learned counsel vehemently contended that selection in his case was to be based on seniority-cum-fitness basis alone as it is clearly indicative from the three paragraphs mentioned above. If the framers of the rules had any intention to base the selection on other than seniority-cum-fitness basis, for example, competitive examination, it would have been clearly so mentioned in the said order. Subjecting the petitioner to departmental examination would clearly mean that terms and conditions of promotion have been infringed. It was further submitted that the Pakistan Ordnance Factories Board which had come into existence meanwhile, was not competent to change the terms and conditions of his service. 6. In order to examine this contention reference is to be made to Ordinance XVII of 1961 which was promulgated on 15th May 1961 whereby Pakistan Ordnance Factories Board was constituted. Section 7 of the said Ordinance invested certain powers of the Government in the Board and by virtue of section 13 the Central Government maintained its supervisory control of issuing directions to the Board for efficient management of the factories working under the Board. Similarly section 14 empowers the Government to frame rules for carrying out the purposes of this Ordinance. Section 7(a) of the Ordinance is reproduced below:-- "7. Notwithstanding anything contained in any law, regulation, rule, order, notification, agreement or other instrument for the time being applicable to any factory, or any Officer or other employees appointed or engaged in, or in connection with, any factory the Board may, in relation to such factory, officer or employee exercise the following powers of the Central Government or of any officer authorised for the purpose by the Central Government, that is to say :
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(a) to determine the terms and conditions of service recruitment, promotion, transfer, posting, dismissal, discharge demotion and other disciplinary actions of all officers and other employees: Provided that the terms and conditions of service of any officer or other employee appointed or engaged before the commencement of this Ordinance shall not be varied to his disadvantage and that he shall not be dismissed or removed from service or reduced in rank by any authority subordinate to that by which he was appointed.... It is absolutely clear that the Board has been vested with certain powers of the Central Government to determine the terms and conditions of service, recruitment, promotion, transfer, posting, dismissal, discharge, demotion and other disciplinary actions of all officers and other employees working in the factory under the Board. The proviso, however, has put fetters on such powers of the Board in regard to certain conditions of those persons who were serving with the Government in these factories before the constitution of the Board. It has been clearly mentioned that terms and conditions of those persons serving the Government before coming into existence of the Board shall not be varied to their disadvantage and so far as their dismissal, removal from service and reduction in rank is concerned, no order shall be passed by any authority subordinate to that by which such persons were appointed. This section remained pivot of arguments and interpretation by the learned counsel appearing for both the parties. The stand taken by the learned counsel for the petitioner that in case of his client it was only the Government which could change terms and conditions of the service was vehemently opposed by the learned counsel appearing on behalf of the respondent the Pakistan Ordnance Factories Board and the learned standing counsel for the Central Government on behalf of the Ministry of Defence, Government of Pakistan. It is an admitted fact that the petitioner was in service before the promulgation of the said Ordinance and any change in the terms and conditions of his service could only be made by the Central Government and the P. O. F. Board cannot usurp that authority by virtue of the limited delegation of power. I am fortified in this view owing to the existence in operation of the rules namely, "Civilian Employees in Defence Services (Classification, Control and Appeal) Rules, 1961. Rule 6 authorises the Government alone to frame rules for recruitment and promotion of Class I and Class II and the rules shall continue to be in force for these services as far as may be, till the Government supersedes or modifies them. Even under section 14 of Ordinance XVII of 1961 the Board has not been entrusted with the powers to frame rules. These powers have been kept by the Government. It was contended that some rules were framed by the Government under the Ordinance in 1964. These rules would not be relevant for the purpose of this case as these rules cannot be retrospective, the petitioner having been selected in 1963. His case will be covered by Ordinance XVII of 1961 and the rules Civilian Employees in Defence Services (Classification, control and Appeal), 1961. 7. It was forcefully contended by the learned standing counsel for the Central Government that no change in the terms and conditions of service of the petitioner has been introduced. He has only been asked to appear in examination and this can only be one mode of selection and in any case even if there has been any infringement of any term or condition of service he cannot seek his redress in this Court in view of the fetters mentioned in the Constitution under Article 98 (3) (b). 8. I will deal with the latter part of his submission first. There is hardly any force in his contention because he had earlier admitted that Office Order No, 93 had the force of rules and by virtue of Article 225 (7) of the Constitution (1962) such rules are preserved as existing law until they are altered or modified by the competent authority. There is nothing on the record to show that any amendment in the rules has been made by the competent authority i,e, the Government. The rules being existing law will have full force. Moreover, Article 234 of the Constitution guarantees same terms and conditions to a person in service of Pakistan before promulgation of 1962-Constitution, he shall continue to enjoy those terms and conditions which were applicable to him immediately before the enforcement of the said Constitution. An objection was raised that the saving of such
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terms and conditions prevailing before the Constitution was subject to this Constitution and the law and, therefore, Article 98(3) (b) was a bar since the only terms and conditions which have been given constitutional safeguard vide Article 177 of the Constitution are that no person shall be dismissed, removed from service or reduced in rank by an authority subordinate to that by which he was appointed and no such action shall be taken against him unless reasonable opportunity of showing cause against the action proposed is provided to him. If this argument is approved there can be hardly any conciliation between Articles 177, 225 and 234 contradiction of which will obviously lead to the extent of absurdity. It is the function of the Court to interpret the Constitution in such a manner so as to resolve any such difficulty if it seems arising. 'Subject to this Constitution and law' in this context keeping in view Article 225 of the Constitution clearly enshrines the position that the terms and conditions which were guaranteed by any rule or law being an existing law have been preserved by the Constitution itself. Conflict between Articles 234 and 177 of the Constitution, therefore, is quite obvious. On the one hand the former Article provides that the terms and conditions available to the persons in service of Pakistan before the commencement of 1962- Constitution will continue applicable to them. On the other hand article 177 gives constitutional safeguard only to few conditions mentioned therein. The embargo placed on by the latter Article, therefore, clearly comes in conflict with Article 234. This therefore reflects that the framers of the Constitution have given something with one hand and taken it away with the other which amounts to negation of justice. Such a position, therefore, cannot be allowed to prevail. In my humble view, therefore, reasonable interpretation of these provisions of the Constitution would be that Article 98(3) (b) cannot be a bar for the enforcement of those terms and conditions which were available to persons in service of Pakistan before the promulgation of 1962- Constitution. I am further fortified in this view by the dictum of their Lordships of the Supreme Court in Government of West Pakistan v. Karamat Ullah Khan which is reproduced below from page 300 :-- "The proviso to rule 4 must, therefore, be held to be violative of the provisions of clause (3) of Article 178 and Article 234 of the Constitution which contain solemn guarantees of continuity of the old terms and conditions obtaining prior to the enforcement of the Constitution, to the respondent." Concluding, therefore, I am persuaded to the view that Daily Order 93 Part I, having the force of rules has continuity in its operation. 9. The other objection raised on behalf of the respondent that terms and conditions of selection in this case have not been changed, only mode of selection has been altered in order to raise the standard of efficiency of the employees in the Ordnance Factory and the petitioner has not been singled out in this manner. Several other persons of his cadre have already appeared in the prescribed examination and have qualified. The petitioner who had the privilege of three years training in United Kingdom should not feel embarrassed in appearing in the examination. If he does not like to appear in the departmental examination he will then be required to pass M. Sc. examination from a recognized University. But certainly this condition could not be imposed upon him being a pre-Constitution employee under the Government. It was next contended that the terms and conditions of service does not include prospect of future promotion to higher service. Reference was made to Government of West Pakistan v. Fida Muhammad Khan in this behalf. It was further submitted that the Government was competent to change the rule of seniority-cum- fitness by imposing condition of qualifying the departmental examination as was held in The Central Board of Revenue, Government of Pakistan v. Asad Ahmad Khan In Fida Muhammad Khan's case their Lordships of the Supreme Court came to such a conclusion in regard to an employee of Civil Secretariat of the former Sind Province who after integration was posted in the office of the Rehabilitation Commissioner where his prospects of promotion according to him had come to an end which he might have availed, had he continued in the Civil Secretariat of WestPakistan. The relief to which he was alone entitled to was an equivalent post in the integrated1 2 3
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province of West Pakistan and certainly not to future prospects of promotion as was held by their Lordships. The petitioner, however, in the instant case is not claiming promotion as of right. All that he claims is that his promotion to the higher grade is to be made by way of selection as prescribed by the Daily Order No, 93 Pt. I. which has the force of law and no change in the mode prescribed in the rules can be effected by any person other than by a competent authority. The instant case is, therefore, obviously distinguishable. Rules in question, in my humble view, clearly place the case of the petitioner in the line of promotion based on seniority-cum-fitness basis. Reference is made to paragraphs 3, 4 and 5 of Daily Order Pt. I No, 93 mentioned above. Selection, according to the Oxford English Dictionary means to choose or pick out in preference to another in the exercise of the choice. Of course the mode prescribed by the rules had to be followed and the imposition of condition of appearing in the examination is certainly a deviation from the method earlier prescribed. No doubt it is one of the mode of selections but only that mode has to be adhered to which earlier used to be follow. The employer, of course, is the best Judge for providing various tests of selection of his employees, obviously in his anxiety to improve their calibre. It is well appreciated, but if the principal has placed certain restrictions on the exercise of choice on his agent for that purpose, he cannot be permitted to effect any change specially when rules are so prescribed for that purpose by the principal that is the Government. In the case The Central Board of Revenue, Government of Pakistan v. Asad Ahmad Khan their Lordships held that the Government was competent to change the rules of promotion based on seniority-cum-fitness to the one depending upon the result of the departmental examination. There can hardly be any dispute with this proposition. If the Government by the prescribed rules had imposed this condition, certainly the petitioner could not take any exception to it. Since this is an innovation of the Pakistan Ordnance Factories Board, in my humble view such a change has been made in the mode of selection, even if it is so held, without any lawful authority. Whatever the motive may be i,e, the betterment of the standard of employees in the factory under the Pakistan Ordnance Factories Board, the change should be made by a competent authority under the law and the unauthorised action of Pakistan Ordnance Factories Board cannot be approved. I would, therefore, accept this writ petition and declare that the condition of qualifying the departmental examination or his securing M. Sc. degree from a recognised University illegally appended to the petitioner's selection, is without lawful authority and is of no legal effect. The petitioner shall be entitled to his costs in this Court. A. R. SHEIKH, J.--I have had the privilege of perusing the judgment proposed by my learned brother Shame Hussain J Kadri, but I greatly regret that I and myself unable to agree to it. 2. The petitioner, an employee of the Pakistan Ordnance Factories at Wah, was appointed as Foreman (Gazetted Class II), when the promotion to the next higher post of Assistant Works Manager/Technical Class I used to be on the basis of selection according to the procedure prescribed to be followed for promotions in the Ordnance Factories Organisation, by Daily Order Part I No, 93 of the 20th March 1956 issued by the Chief Superintendent, Pakistan Ordnance Factories. He was promoted on the 4th of November 1963 as Assistant Works Manager/ Technical in Class I, conditional on his passing the departmental promotion examination. The Daily Order Part I No, 422 dated the 25th of September 1963 issued by the Pakistan Ordnance Factories Board (respondent No, 1) further stated that persons who have been declared fit subject to passing the Departmental Examination are promoted in acting capacity and their acting capacity will be converted into officiating capacity only after they have passed the departmental promotion examination within the time limit to be notified separately and representations against recommendations of the Promotion Board, if any, may be forwarded to the D. D. 0. F. through proper channel. The petitioner claims to have made a joint representation against the condition of
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passing the departmental promotion examination attached to his promotion through the employees body, which fact is not very clear on the record and representation by persons other than the petitioner is, however, not denied by the Department. Having failed to get relief from the Department changing the criterion of promotion by selection as given in Daily Order Part I No, 93 of 20th March 1956 to promotion by departmental examination under Daily Order Part I No, 372 of 27th August 1963, the petitioner has invoked writ jurisdiction of this Court. At first only the P. 0. F. Board (respondent No, 1) was impleaded as a party, but after hearing the parties the Court came to the conclusion that the Government of Pakistan in the Defence Department is a necessary party and the petitioner's prayer in this regard was allowed and the case has been re-heard. 3. The gravamen of the charge as against the Department is that the Daily Order Part I No, 93 of 20th March 1956 regulating the terms and conditions of petitioner's service prescribed promotion from Class II to Class I by selection and the subsequent change in conditions of promotion by Daily Order Part I No, 372 of 27th August 1963 issued by the P. 0. F. Board making the departmental examination compulsory for promotion is without lawful authority as any alteration in the terms and conditions of service of the petitioner could be made only by the competent authority, namely, the Ministry of Defence, and not the P. 0. F. Board. The objection is grounded on the provisions of section 7(a) of the Pakistan Ordnance Factories Board Ordinance XVII of 1961 (hereinafter called the Ordinance) promulgated on the 15th of May 1961 and rule 6 of the Civilian Employees in Defence Services (Classification, Control and Appeal) Rules 1961 (hereinafter called the Rules), published in the Gazette of Pakistan, Extraordinary on the 27th of July 1961, which provisions may be reproduced below with advantage; Section 7 (of the Ordinance) "Investment of the Board with certain powers.--Notwithstanding anything contained in any law, regulation, rule, order, notification, agreement or other instrument for the time being applicable to any factory, or any officer or other employee appointed or engaged in, or in connection with, any factory, the Board may, in relation to such factory, officer or employee exercise the following powers of the Central Government, that is to say,-- (a)to determine the terms and conditions of service, recruitment, promotion, transfer, posting, dismissal, discharge, demotion and other disciplinary actions of all officers and other employees: Provided that the terms and conditions of service of any officer or other employee appointed or engaged before the commencement of this Ordinance shall not be varied to his disadvantage and that he shall not be dismissed or removed from service or reduced in rank by any authority subordinate to that by which he was appointed; (b)........................................... (c).......................................... (d).......................................... (e)......................................... (f)......................................... (g) ......................................... Rule 6 (of the Rules) "Recruitment and promotion.--(1) Rules for recruitment and promotion for Class I and II Services shall be made by Government and notified by Government. Rules hitherto in force for these services shall continue to be in force for these services as far as may be till they are modified or superseded by Government. (2) Rules for recruitment and promotion for Class II (Non-Gazetted), Class III and IV Services shall be made by the following authorities in respect of the Services under their respective control; Commander-in-Chief, Pakistan Army; Commander-in-Chief, Pakistan Navy; Commander-in-Chief, Pakistan Air Force; Chairman, Pakistan Ordnance Factories Board; Director General, Medical
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Services and Chief Administrative Officer. The rules hitherto in force for these services shall continue to be in force for them, as far as may be, till they are modified or superseded." The argument proceeds on the basis of the proviso attached to clause (a) of section 7 of the Ordinance, which guaranteed the pre-Ordinance terms and conditions of service and the further assurance given in rule 6 that rules hitherto in force for these services shall continue to be in force for these services as far as may be, till they are modified or superseded by Government. It is contended on behalf of the petitioner that since the conditions of service of the petitioner could not be varied to his disadvantage and the Central Government further made its intention clear in the rules that rules for recruitment and promotion for Class I and II Services shall be made by the Government and notified by the Government, the net result of these provisions is that the terms and conditions of service for promotion by selection appearing in Daily Order Part I No, 93 of 20th Marc h 1956, alone governed the terms and conditions of service with regard to promotion of the petitioner and any change therein by P. 0. F. Board without concurrence of the Central Government…
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