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Official Citation: 1959 PLD 203
Court / Jurisdiction: KARACHI-HIGH-COURT-SINDH
Parties: SYED MOHSIN HUSSAIN RIZVI vs PAKISTAN
This judicial decision was delivered by the KARACHI-HIGH-COURT-SINDH. The matter involves proceedings between SYED MOHSIN HUSSAIN RIZVI and PAKISTAN, officially reported as 1959 PLD 203. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.
P L D 1959 (W
P L D 1959 (W. P.) Karachi 203
Before B. Z. Kaikaus and Abdul Hamid, JJ
Syed MOHSIN HUSSAIN RIZVI‑Petitioner
versus
PAKISTAN and others‑Respondents
Writ Petition No. 160 of 1957, decided on 30th January 1959.
(a) Option
‑‑Right to opt for service in Pakistan on Partition‑Temporary Government servant entitled to avail of right.
(b) Government servant‑Seniority
‑As between Probationer and Temporary Engineers in employ of Railway-Distinction‑Principle declaring seniority to be determined with reference to "date from which service counts for increment in time scale" not applicable to Probationers or Temporary Engineers‑Latter to be placed below former.
Held, that the rule that seniority of officers serving under the Pakistan Railways was to be determined with reference to the "date from which service counts for increment in the time scale" was not intended to apply to the cases of Probationers and Tempo rary Engineers at all.
Further, that Temporary Engineers could not possibly be' regarded at par with the Probationers and must be placed below them.
Except for a concession in the form of a larger number of posts available to war‑time probationers, the position of proba tioners was otherwise just like any other employee of the Govern ment who is taken in permanent service subject to a period of probation. If a Probationer was found fit and if a vacancy remain ed available he was entitled to be confirmed.
The position of a temporary Engineer in Railway service however, was only that of a person with whom there was contract of service for one year. His service was being extended from year to year, there being every year a fresh agreement signed by him. It had been expressly provided in the rules that he would have no claim whatsoever to permanent service.
The words "date of increment in the time scale" cannot possi bly refer to the date of increment in a temporary service.
There are two separate‑employments of a temporary Engineer. The first employment ends when the contract service ends. It made little difference that the contract wars renewed from year to year. The contract service ended at the expiry of each year and then there was a fresh employment. It could not be tire intention of a rule which regulates seniority that when an employee on contract is taken into permanent service, his date of increment in the time scale shall be the date of increment in the contract service. The increment must relate to the service in which he is taken as a permanent employee.
(c) Government of India Act, 1935
S. 241‑Contents of a mere report accepted by Government do not have the status of Rules.
Every acceptance of a report by a Minister of Government does not necessarily make all that is contained in the report rules under section 241, which provides for rules being framed by the Governor or the Governor‑General or any person to whom such power is delegated by the Governor‑General.
(d) Government of India Act, 1935,
S. 241‑Government not barred from changing conditions of service except in case covered by S. 241 (3).
Z. H. Lari for Petitioner.
A. K. Brohi, Asif Zahidi and S. A. Nusrat for Respondents.
Dates of hearing: 12th and 16th December 1958.
JUDGMENT
KAIKAUS, J.‑In this writ petition the question involved is one of seniority as between Temporary Engineers and war‑time Proba tioners who are now serving in the North Western Railway.
In the year 1946, the Government decided that the Railways be permitted to recruit temporary Engineers for post‑war rehabili tation and reconstruction. They were not to be recruited through the normal channel, that is, the Public Service Commission but purely locally, and there was to be no qualifying examination for them. They to be appointed for one year only in the first instance but their term could be extended by the General Manager, though for not more than one year at a time. Their important conditions of service will appear from the following extract from the rules relating to their recruitment.
"13. Tenure of service.‑The Candidates will be appointed for one year in the first instance, but the term may be extended by the General Manager for not more than one year at a time, if this is considered necessary or desirable. In no case, how ever, will a candidate be allowed to remain in service for a total period exceeding three years without the prior approval of the Railway Board'.
14. Notice.‑The candidate's service will be liable to termi nation on one month's notice during the first as well as ‑ subse quent years.
15. Agreement.‑The selected candidate will be required to sign a declaration in Form No. 11‑Appendix XXIV (page 377 of State Railway Establishment Code Vol. 1).
FORM No. 11‑A
(See Rule 143)
FORM OF AGREEMENT FOR OFFICERS APPOINTED ON CONTRACT
I . . . engaged as a . . . in Class I. Service of Pakistan Railway Service of . . . on Rs. . . . in scale of Rs. . . . plus over seas pay (if payable) from . . . . do hereby declare that I clearly understand that my appointment is subject to the follow ing conditions
(1) That my employment is purely temporary for . . . years from . . . and will terminate at the end of that period unless terminated earlier under Clause 2 below or extended.
(2) That my employment may be terminated at any time within the said period of . . . years by either side on giving three months' notice or pay in lieu of notice without assigning any reasons. Should my employment be terminated for insubordina tion, intemperance or other misconduct or on my being declared medically unfit for the discharge of my duties, I shall not be entitled to notice or to pay in lieu thereof. . . . . . . . . . . .
The candidate will also be required to note that appointment as a temporary engineer will confer no claim whatsoever to perma nent employment in railway service.
19. Provident Fund.‑The Selected candidate will not be eligible to subscribe to the State Railway Provident Fund or the General Provident Fund, nor will he be entitled to any pension or gratuity on termination of his service".
The war‑time Probationers are just ordinary employees of the Government recruited for permanent service with this qualifica tion that their rights were to be subject to the right of persons who had rendered war service to 70 per cent of the posts, that is, the posts to which they were to be appointed may turn out to be only 30 per cent of the total number of existing posts.
Syed Mohsin Hussain Rizvi, the Petitioner, before us, was appointed a Temporary Engineer in the G. I. P. Railway on the 1st of June 1946, and was continuing as such at the time of Partition of India, when he opted for Pakistan. It is objected on behalf of the respondents that considering his tenure of service he had no right to opt, but we think he could do so though only for the remainder of the term of one year. On coming to Pakistan he was posted as a Temporary Engineer. In 1948, a question had arisen as to the retention of Temporary Engineers in service, and the matter was referred to the Pakistan Public Service Com mission for an opinion as to which of the temporary Engineers were fit for absorption in service. The Petitioner was, declared fit for absorption in service by the Public Service Commission on the 30th of May 1950. He was actually confirmed only on the 30th of August 1954, when the Government of Pakistan issued a list of Temporary Engineers and Probationers who had been confirmed in the Senior Scale of Civil Engineering Department of the Railway. He was confirmed with effect from 24th January 1950.
Respondents Nos. 3 to 6 in this petition are persons who were recruited as War time Probationers through the normal channel, that is, a competitive examination held by the Public Service Commission. They had opted for Pakistan and had been posted as Engineers on the North Western Railway. They too were confirmed on the' 30th of August 1954, with effect from dates ranging from 18th of May 1949 to 23rd of January 1950.
In January 1950, a high‑powered committee consisting of the Director‑General Railways, Financial Adviser Communications and General Managers of Pakistan Railways was appointed by the Government to settle the principles that were to govern the decision of seniority as between the officers serving on the Pakistan Railways. This question had become a serious one in view of the fact that employees from a number of Railways in India had on account of their opting for Pakistan joined the North Western Railway. This high‑powered committee laid down principles for the determination of seniority of all employees of the Railway. I reproduce below only the rule which is relevant .for the decision of this case
"2. Senior and Junior Scale Posts.‑(i) The main basis will be the date from which service counts for increment in the time scale".
On the 30th of April 1953, the seniority list of the Proba tioners and Temporary Engineers was prepared by the Railway Division. In this list, Temporary Engineers as a class were shown below the Probationers so that the petitioner was shown as junior to respondents Nos. 3 to 6.
The claim of the petitioner is that his seniority vis‑a‑vis respondents 3 to 6 is governed by the rule which is reproduced above, i.e. it is to be determined with reference to the date of incre ment in the time scale. This date of increment in the time scale, according to him, means the date when he was "given charge of a working post". He says it has been accepted by the Railway that date of increment in time scale means the date on which charge of a working post was given, and for this he relies on the following note, which was recorded by Mr. S. M. Hasan, the Director‑General Railways in 1953:
"I consider that the point has not been correctly appreciated. The issue was that we applied the term "date of increment in the time scale" when such a term was never to apply to tempo rary Engineers. If there had,been rules for the application of this term to temporary Engineers there would have been no argument. All that was necessary was to determine in the case of temporary Engineers, a date which would have the same force as "the date of increment in the time scale" had for permanent officers. We decided that it should be the date when the officer was given the charge of the working post. I know this decision acted harshly in some cases and favourably in others particularly because there were no hard and fast rules or a uniform rule which all the Railways followed. Each Railway; therefore, had its own practice which was not even uniform for all cases. As the E. B. R. pointed out, a Railway appointed a temporary Engineer directly to a working post on surveys and construction but placed him on training before employing him on the main tenance. It was, therefore, impossible to work out a rule for determining the seniority of temporary Engineers we decided that the date from which they took charge of the working post should determine their seniority and for the sake of convenience that date was given (not technically quite correct) the name of "the date for increment in the time scale". It may be said that luck played an important part in each individual's case but that could not be helped.
A suitable reply should be given to the Railways".
The Petitioner contends too that the rule could not be changed because it was one of his conditions of service.
On behalf of the Government and respondents Nos. 3 to 6, the contention is that the high‑powered committee was not consider ing the case of Probationers and Temporary Engineers when it laid down principles for determining seniority. The question of seniority of the Probationers and Temporary Engineers was, according to the respondents, considered separately, and the princi ples which were to govern the decision of this question were incor porated in the following note which was recorded at the time when the seniority list was issued:
"It has been decided that the following principles should be observed in fixing the seniority of officers recruited as proba tioners by the Railway Board (India) during the year 1942‑46, and officers originally recruited as a temporary measure by the ex‑Company and Indian Government Railways in the Civil Engineering and Transportation (Traffic and Commercial Departments)
(i) All the probationers who were recruited through the com petitive examination between years 1942 and 1946 and have been retained in permanent service should be given the same seniority as was assigned to them by the Federal Public Service Commis sion (India) at their respective competitive examinations.
(ii) All temporary Engineers who were recruited locally by the Railway Administration on temporary basis without any pros pects of absorption in permanent service should be assigned position below the post 1945 probationers recruited through the Federal Public Service Commission (India).
(iii) The seniority inter se of officers originally recruited as temporary Engineers should be based on the date of their incre ment in time scale which in their case should be the date they were given charge of the working post and were allowed to draw pay in the time scale.
(2) The above principles have the approval of the Pakistan Public Service Commission, the Cabinet Secretariat (Establish ment Division) and the Hon'ble Minister for Communications.
(3) The seniority of temporary Traffic Officers has been deter mined under the principles already communicated vide this office letter No. E‑48‑SR‑6/2, dated 10‑2‑1950".
So far as the note of Mr. S. M. Hasan is concerned, it is con tended that it applies only to the seniority of the Temporary Engineers inter se.
The Respondents also contend that the rule relied upon cannot in terms apply to the case of Temporary Engineers that even if it was applicable, it could not help the Petitioner, for the date of increment in the time scale is only the main basis : that the rule relied upon was not a `rule' framed under the Government of India Act: and that the Government could at any time change it whether it was a `rule' or not.
Questions that arise for decision are : .
(1) Was the Rule quoted above intended to apply to the Pro tioners and Temporary Engineers ?
(2) Can it in terms apply to them ?
(3) If it did apply, was the Government bound to place the petitioner above the respondents Nos. 3 to 6 ?
(4) Was it a principle or was it a `rule' within the meaning of section 241 of the Government of India Act ?
(5) Whether it was a rule or a principle, could it not be chang ed by Government by a subsequent decision ?
We will begin with a discussion of the first point, but will take the first three points together, for the discussion is bound to overlap. For a decision of the first question it will be convenient to reproduce the letter by which the decision of the high‑powered committee was circulated. Both parties have relied upon this letter. It may be noted here that the letter of which a copy is being circulated is not from the high‑powered committee itself but from the Railway Division. It is in the following terms
"No 847‑E/21 ; (E. V.) Lahore District 2/1950.
All Divisional Superintendents'
Extra Divisional Offices".
Copy of the following together with its enclosures is forwarded for information of the officers concerned.
(Sd.) M. M. ZUBAIR,
For General Manager (P).
Copy of Railway Division's letter No. 48‑SR‑6/3, dated 1st February 1950, to the General Managers N. W. and E. B. Railways. . . . . . . . . . . . .
Seniority of the Gazetted Officers of .the Pakistan Railways.
. . . . . . . . . . . .
The question of determining the relative seniority of officers who came to North Western and Eastern Bengal Railways after the partition from Indian Government Railways (generally known as State Railways and ex‑Company Railways) had been under consideration of the Government since the partition. It was decided early this year by the Honourable Minister for Communi cations that a committee consisting of Director‑General Railways, Financial Advisor Communications, General Managers of Pakistan Railways and Director Establishment or in his absence Assistant Director Establishment should lay down equitable basis for fixing the seniority of officers now employed on Pakistan Railways and also draw up a seniority list according to the principles which may be determined by the committee.
2. The recommendation of the Committee have been accepted by the Government. Y copy (with five spare copies) of the principles determined by the Committee for fixing the seniority of Gazetted Officers Class I and It and five copies of the Seniority list of Gazetted Officers Class I, drawn up by the Committee are sent herewith, with the request that the officers may be apprised of their position on the seniority list. In this connection it may be added that the points raised in the representations received in response to this office letter No. E/48‑SR‑6/3, dated 21‑1‑1949 were kept in view when the principles for the fixation of the seniority were determined.
3. A seniority list of probationers in the Civil Engineering Department, Transportation (Traffic) And Commercial Depart ments arid other temporary officers etc, is under preparation and will be sent shortly.
The seniority list of L. G. S. Officers confirmed and officiating will be sent after the information called for in this office letter No. E. 48M 1/5‑A dated 26‑1‑1950 has been received and seniority list vetted by the committee referred to in paragraph 1.
(Sd.) A. S. MAHMOOD for Director General Railways
It will be observed that in para 3 of this letter, there is a re ference to the seniority of the Probationers and temporary officers. It is stated that a list is being prepared. The contention of learned counsel for the Petitioner is that if a list was being prepared it meant that the principles on which seniority was to be determined had already been settled and therefore the rule in dispute had been accepted as applicable to their case. On behalf of the respondents it is contended that although the words used are that a seniority list is being prepared what was meant was that the question relating to the determination of seniority was being considered and this, it is said, is supported by what happened later. It is pointed out that this letter was not from the high‑powered committee but from the Director General of Railways and in the report of the Committee there is no mention of the seniority list of the Temporary Engineers.
After considering the material on the record, we have reached the conclusion that this rule was not intended to apply to the cases of Probationers and Temporary Engineers at all. It is true that reference to the high‑powered committee was in general terms. They were to settle principles which were to govern seniority of all tile employees. But, in the first place it 15 impossible to accept that the high‑powered committee could have intended to apply, this rule to (lie Probationers considering the great injustice which would be done to the Probationers if such a course was adopted, The war‑time probationers, as already stated, are permanent employees of Government subject only to their being found fit. 1t is true that those who had war service to their credit would be entitled to hold 70 per cent. of the posts in spite of the existence of the Probationers. But this only reduces the number of post available to the probationers and their position otherwise is just like any other employee of the Government who is taken in per manent service subject to a period of probation If a probationer was found fit and if a vacancy remained available he was entitled to be confirmed. The position of a Temporary Engineer, however, was only that of a person with whom these was a contract of service for one year. His service was being extended from year to year, there being every year a fresh agreement signed by hire. It had been expressly provided in the rules that he would have no claim whatsoever to permanent service. He was at the same time subject to a notice of discharge for one month only that is to say, even during the period of one year for which he had executed the agreement. In pre‑partition times a Temporary Engineer whose services were no longer required had been offered only Class II service. If at any time up to the year 1954 the petitioner's agreement for service was not renewed, his services would have automatically terminated without there being the slightest grievance on his part. That the rule in dispute was not intended to apply to Temporary Engineers is also shown by the later action taken by the Railway authorities when they settled the principles applicable to the Temporary Engineers. There is not the slightest support in the record for the suggestion that after the high‑powered committee had laid down principles for determining seniority, there was a change in the attitude of the Railway Department (the high‑powered Committee consisted of the Director-General Railways, the Financial Adviser and the General Manager' and that originally there was, after a consideration of the relative status of the Probationers and the Temporary Engineers, a decision to apply to them the rule in dispute. If the high‑powered Committee had in fact considered this question there should be some dis cussion somewhere relating to it. It could trot possibly be urged that the matter was so clear that it did not stand in need of am discussion. If it was clear, it was clear only this way that the Temporary Engineers could not possibly be regarded at par with the probationers and must be placed below them.
The wording of the rule itself shows that it could not be intended for the Temporary Engineers. The words used are "date of increment in the time scale" The petitioner has relied upon the note of the Director General Railways, Mr. S. M. Hassan. with respect to the interpretation of this term But that note clearly negatives the contention of the petitioner. According to that note this term could not apply to a Temporary Engineer, and there fore Mr. Hassan found out some date "which would have same force" for Temporary Engineers as "the date of increment in the time scale" had for permanent officers. That the date of incre ment in the time scale has no application to a Temporary Engineer was in fact accepted by Mr. Lari when he argued that the date of increment in the time scale should in the case of temporary officers be regarded as the date when the officer was given charge of a working post. He was putting forward an artificial date of increment in the time scale. When we pointed out this to Mr. Lari he said that the actual date of increment in the time scale of the petitioner was even prior to the date when he got charge of a working post because his increments had begun from the 1st of May, 1946 whereas he took charge of a working post only on 1‑11‑1946. But those increments cannot obviously be taken into consideration in fixing the seniority of the Petitioner. The words "date of increment in the time scale" in the disputed rule cannot possibly refer to the date of increment in a temporary service. The matter may be explained thus. Suppose a person is employed in contract service for a period of three years and accord ing to the agreement with him, he is during this period also being given increments. After the expiry of three years the Government decides to retain him and takes him into its ordinary permanent service. Now if there be a rule already existing saying that seniority of all officers was to be determined with reference to the date of the increment in the time scale shall we say in the case of this person who was only in contract service that his date of increment in the time scale is the date on which he was first appointed in the contract service because his increments for that service were to be calculated from the date of his employment ? The correct position is that there are two separate employments of such a person. The first employment had ended when the con tract service ended. The same is the position with respect to the present petitioner. It makes little difference that his contract was! renewed from year to year. His contract service ended at the, expiry of each year and then there was a fresh employment. It` could not be the intention of a rule which regulates seniority that when an employee on contract is taken into permanent service, his date of increment in the time scale shall be the date of incre ment in the contract service. The increment must relate to the service in which he is taken as a permanent employee.
It is pointed out by Mr. Brohi that at the time when the high‑ powered committee was laying down principles for determining seniority the Temporary Engineers had not yet been absorbed in service, and therefore the high‑powered committee was not con sidering their special case, but was…
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