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Civil Appeals Nos. 72 to 87, 97, 98 and K‑23 of 1967, decided on 11th April 1968.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 6th May 1966, in Writ Petition No. 1116 of 1964/ Writ Petition No. 308 of 1964/Writ Petition No. 664 of 1964/Writ Petition No. 1872 of 1965/Writ Petition No. 184 of 1965/Writ Petition No. 1286 of 1964/Writ Petition No. 1362 of 1965/Writ Petition No. 785 of 1965/Writ Petition No. 5050 of 1965/Writ Petition No. 834 of 1965/Writ Petition No. 1365 of 1965/ Writ Petition No. 615 of 1965/ Writ Petition No. 70 of 1965/ Writ Petition No. 1025 of 1964/ Writ Petition No. 673 of 1965/Writ Petition No. 217 of 1965/Judgment and Order, dated the 7th February 1967, in Writ Petition No. 114 of 1965/Judgment and Order, dated the 31st January 1967, in Writ Petition No. 455 of 1965/Judgment and Order of the High Court of West Pakistan, Karachi Bench, Karachi, dated the 19th May 1966, in Writ Petition No. 641 of 1965).

(a) Constitution of Pakistan (1962) Arts. 58 (3) & 178 (2) Leave to appeal‑Granted by Supreme Court where questions of construction of the Constitution as well as of relevant rules framed under Art. 178( )regarding retirement of persons in civil employ ment of Provincial Government were raised.

(b) West Pakistan Government Servants (Further Usefulness in Public Service) Rules, 1963, r. 4, proviso read with Constitution of Pakistan (1962), Arts. 178 (3), 178 (4) (c) [as substituted by Constitution (Sixth Amendment) Act (11 of 1966)], 225, 234, 250 and with Laws (Continuance in Force) Order (I of 1958), Art. 6 (9)(d) Proviso to r. 4 violative of Arts. 178 (3) & 234 containing solemn guarantees of continuity of old terms and conditions of service obtain ing prior to enforcement of Constitution of 1962, in case of retire ment of persons mentioned in the proviso‑Effect of Governor's failure to frame necessary rules under Art. 6 (9) (d), Laws (Conti nuance in Force) Order (I of 1958) and of repeal of that Order Power to make rules under Art. 178 (2) not assailable to power conferred by Art. 6 (9) (d) of Order (I of 1958)‑Provision for retirement on completing 55th year of age made by Art. 178(4) (c) can be enforced only prospectively and not retrospectively.

Raja Said Akbar Khan. Advocate‑General, West Pakistan (S. M Bashir, Additional Advocatc‑General, Aslam Riaz Hussain, Assis tant Advocate‑General. Saecd‑ur‑‑Rahman Khan, Advoc;te Supreme Court. Masood Ahmad Khan, Advocate Supreme Court with hire) instructed by‑ IjazAli, Attorney for Appellants (in all the appeals).

Nemo for Respondent (in C. A. 72/67).

Khalilur‑Rahman, Attorney for Respondent (in C. A. 73/67).

Abdur Rashid, Senior Advocate Supreme Court (Ataul Haque, Advocate Supreme Court with him) instructed by Abdul Karim, Attorney for Respondent (in C. A. 74/67).

Nemo for Respondent (in C. A.75/67).

M. A. Zullah, Senior Advocate Supreme Court (Absent) (A. Khalid, Advocate Supreme Court with him) instructed by Rana Maqbool Ahmad, Attorney for Respondent (in C. A. 76/67).

Respondent (in C. A. 77/67): Ex parte.

Nemo for Respondent (in C. A. 78/67).

Nemo for Respondent (in C. A. 79/67).

Respondent (in C. A. 80/67): Ex parte.

D. M. Awan, Advocate Supreme Court instructed by Masud Akhtar, Attorney for Respondent (in C. A. 81/67).

Nemo for Respondent (in C. A. 82/67).

Respondent (in C. A. 83/67): Ex parte.

Siddiq & Co., Attorney for Respondent (in C. A. 84/67).

S. Abdur Rashid, Senior Advocate Supreme Court, (Mian Ataul Haq, Advocate Supreme

Court with him) ins:r acted by Ashraf Israili, Attorney for Respondent (ire C: A. 85/67).

Respondent (in C. A. 86/67): Ex parte.

Muhammad Ismafl, Advocate Supreme Court instructed by

Masud Akhtar, Attorney for Respondent (in C. A. 87/67).

Respondent in person (in C. A. 97/67).

Ch. Ghulam Mohyuddin, Advocate Supreme Court (absent) instructed by Abdul Karim,

Attorney for Respondent (in C. A. 98/67).

M. A. Zullah, Senior Advocate Supreme Court (Absent) instructed by M. Siddiq, Senior

Attorney for Respondent (in C. A. K‑23/67).

Date of hearing: 11^th April 1968.

S. A. RAHMAN, C. J

.‑This order will dispose of Civil Appeals Nos. 72 to 87 of 1967, Civil Appeals Nos. 97 and 98 of 1967 and Civil Appeal No. K‑23 of 1967. The first 16 appeals arise out of petitions filed under Article 98 of the Constitution and disposed of by the High Court of West Pakistan, Lahore Bench, by one consolidated judgment. The two appeals, Nos. 97 and 98 of 1967, are directed against orders passed on two other similar petitions by the Lahore Bench of the High Court, while Civil Appeal No. K‑23 of 1967, calls in question another order passed by the Karachi Bench of the High Court on a similar petition. Common questions of law arise for consideration in all these appeals and it will be, therefore, convenient to take them up together.

The respondents are employees of the Provincial Government of West Pakistan, either in the general administration or in the railway department. Orders of their retirement from service were passed by the Provincial Administration who purported to act under the authority of rules framed, under Article 178 (2) of the Constitution, by the Governor of West Pakistan. In the railway case, identical rules were framed which were invoked to retire the respondent in Civil Appeal No. 97 of 1967. The impugned orders were passed after the incumbent in question had passed the stage of 25 years qualifying service or, in some cases, even after he had passed his 55th year of age and before anyone of them had reached the superannuation age of 60. The High Court has declared the impugned orders of retirement to be unlawful and therefore ineffective.

Special leave to appeal was granted to the Government of West Pakistan and the other Provincial Authorities concerned, as ,q questions of construction of the Constitution as well as of the relevant rules were raised on the petitions for special leave.

The constitutional instruments that govern the situation are the Laws (Continuance in Force) Order, 1958 (hereinafter referred to as the Order), as amended from time to time, and the Constitution of 1962. By clause (1) of Article 6 of the 1958 Order, it was provided that all persons who, immediately before the proclamation of the 7th October 1958, were in the service of Pakistan, as defined under clause (t) of Article 218 of the 1956 Constitution, shall continue in the said service on the same terms and conditions and shall enjoy the same privileges, if any. An explanation was later added to this clause, which saved the power of the President or the Governor, as the case may be, of granting extension of service to a public servant, employed in connection with the affairs of the Federation or of the Province, even after he had reached the superannuation age.

On the 23rd of October 1960, by President's Order No. 23 of 1960, clause (9) was added to Article 6 of the Order. By sub‑clause (a) of this clause it was enacted that the super annuation age of a person in the service of Pakistan would be the age on which he attains his sixtieth birthday. The position earlier was that the superannuation age had been fixed at fifty‑five. This provision too was, however, qualified by sub‑clause (c) of clause (9). This provided that the President in the case of a person who is a member of the Civil Service of Pakistan or a person serving in connection with the affairs of the Federation, and the Governor in the case of a person serving in connection with the affairs of the Province, may review the case of any person in the service of Pakistan, when he is about to complete twenty‑five years of service qualifying him for a pension and when he is about to complete fifty‑fifth year of his age. Review at these two stages was intended to be made of the person's further usefulness to the public service. If the conclusion was reached by the relevant authority that the Government servant in question had outlived his usefulness, the President or the Governor could direct his retirement from service upon his completing the qualifying period of service or year of age. For carrying into effect the purposes of this provision, the President or the Governor was empowered, under sub‑clause (d) of clause (9) of the Order, to frame appropriate rules. The Governor was, however, subject to the disability that he had to obtain the prior approval of the President for the framing of such rules. There was also no provision made for the delegation of the authority to frame rules, conferred on the President or the Governor, to any other person. Clearly this provision enabled the President or the Governor, as the case may be, to retire an employee, either just before he completed his twenty‑five years of qualifying service or his fifty‑fifth year of age.

On the 16th March 1962, another Order was promulgated by the President, designated as Order No. 2 of 1962. This added Article 6‑A to the Order, which empowered the Governor of West Pakistan to determine, in consultation with the Public Service Commission, the terms and conditions of service of persons serving in connection with the affairs of the Province of West Pakistan, subject to the proviso that the terms and conditions of service relating to pay, pension leave and age of superannuation of any such person, could not be varied to his disadvantage. The age of normal superannuation having been fixed in the Order itself at 60, could not consequently have been varied by a rule framed by the Governor.

Sub‑clause (c) of clause (9) of Article 6 of the Order, was substituted by another sub‑clause (c) under President's Order No. 17 of 1962, which was brought into force on the 12th of May 1962. The earlier part of the new clause reproduced in effect the old clause (c), with regard to the power to retire a Government servant at the two earlier stages specified above, but a proviso was added to read as follows :‑

"Provided further that the case of a person who has completed before, or completes on, or will complete within six months of the commencement of the rules made under sub‑clause (d), twenty‑five years of service qualifying him for pension or the fifty‑fifth year of his age, may be reviewed within six months from the commencement of the said rules, for the purpose of this clause, in the manner provided in such rules"

Reading this new sub‑clause with sub‑clause (d) of clause (9) of the Order, the position that emerges is that action in respect of retirement of a Provincial Government servant could be taken under this new sub‑clause (c), even after the two stages of twenty five years qualifying service and the fifty‑fifth year of age had passed, subject to three conditions:‑

(1) rules had to be framed, under sub‑clause (d), by the Governor;

(2) the Governor had to obtain the prior sanction of the President for the framing of such rules ; and

(3) action could only be taken within a period of six months of the promulgation of duly framed rules.

The retirement of a person after the two stages mentioned above had passed, would not be legally possible, unless the above three conditions were first fulfilled.

It appears that the President did frame rules on the 25th of May 1962, under sub‑clause (d) of clause (9) of Article 6 of the Order, so as to enable orders to be passed for retirement of Central Government officers even after they had successfully crossed the two stages of twenty‑five years of qualifying service and the fifty‑fifth year of age. No such rules, however, were framed by the Governor. It may be mentioned that sub‑clause (e) had also been added to clause (9) of Article 6 of the Order, which enabled delegation of the power to pass such orders to a body, consisting of more than one officer, constituted by the President or the Governor, as the case may be. The President passed a delegation order under this provision, but apparently the Governor omitted to do so. This position continued intact right up to the 8th of June 1962, when the new Constitution was brought into force.

The Order was repealed by Articl225 of. the 1962 Constitution. Any existing laws made under the Order were, however, saved by an express provision. By definition, "existing laws" included all rules framed under a law. If, therefore, the Governor had framed any rules under sub‑clause (d) of clause (9l of Article 6 of the Order, they would have been saved, despite the repeal of the Order, but unfortunately no such action had been taken by the Governor. Article 250 of the new Constitution declares that where a law is repealed, or is deemed to have been repealed, by, under, or by virtue of the Constitution, the repeal shall not, inter alga. revive anything not in force or eaistina at the time at which tile repeal takes effect, or affect the premises operation of the law or anything duly done or suffered under the law, or affect any right, privilege, obligation or liability acquired, accrued or incurred under the law.

Purporting to act under Article 178 (2) of the 1962 Constitution, the Governor of West Pakistan made rules, callers the West Pakistan Government Servants (Further Usefulness in Public Service) Rules, 1963, sr‑ the 19th of July 1963, and the Railway Servants (Further UswA::6:es3 in Public Service) Rules, 1962, on the 7th of June 1962. Both these rules are couched in similar terms. Rule 4, in either case, provided as follows :‑

"4(1) Notwithstanding anything contained in rule 3, the case of every person to whom these rules apply shall be referred by the appropriate authority to the appropriate committee appointed by the Governor in order to determine the further usefulness of such person in service, at two stages only, namely, when he is about to complete twenty‑five years of service qualifying him for pension and when he is about to complete the fifty‑fifth year of his age:

Provided that the case of a person, who has completed before, or completes on, or will complete within six months of the commencement of those rules, twenty‑five years qualifying him for pension or the Fifty‑fifth year of his age, may be reviewed within six months from the commencement of these rules in the manner provided hereinafter, if such person's case was not reviewed before the coming into force of these rules, for the purposes of retirement either on the completion of twenty‑five years of qualifying service or on the attainment by him of fifty‑five years of age, under any rules then applicable to him."

It will be seen that sub‑rule (1) of this Rule 4 in no sense varied the existing position concerning the liability of Government servants to be retired at two stages in their careers, earlier than the attainment of the superannuation age. It was under the proviso to this rule that the impugned orders of retirement of the respondents were passed in the instant cases. The vines of this proviso and the action taken thereunder were challenged, on behalf of the respondents, in the High Court successfully. The High Court held that this proviso was ultra vires the powers of the Governor, in so far as it purported to vary the conditions of service of the respondents to their disadvantage and that therefore, it was repugnant to clause (3) of Article 178 and Article 234 of the 1962 Constitution. Clause (2) of Article 178 empowered, inter alia, the Governor to frame rules governing the terms and conditions of service of persons serving in the Province "subject to the Constitution and the law". Clause (3) of this Article declared that rules made for the purposes of clause (2) of this Article, shall be so framed as to ensure, among other things, that the terms and conditions of service of a person (in so far as those terms and conditions relate to remuneration or age fixed for superannuation) are not varied to his disadvantage. Article 234 of the Constitution also guaranteed continuity of service to a person who, immediately before the commencing day, was in the service of Pakistan, on the same terms and conditions as they were applicable to him immediately before that day. The question, therefore, that falls for determination in those appeals is whether the conclusion of the High Court was correct that the proviso to rule 4 of the Rules framed by the Governor was within the mischief of clause (3) of Article 178 and Article 234 of the Constitution.

The learned Advocate‑General, on behalf of the Provincial Authorities, has attempted to argue before us that the Provincial Government servants were under the liability of having their cases dealt with in the manner provided by the proviso to rule 4, even under clause (9) of Article 6 of the Order. He, therefore, contended that there had been no variation of the terms and conditions of service of the respondents by the enactment of the proviso to rule 4.

We regret we are unable to accede to this argument also correct. It is no doubt true that under the Order, the Governor could have framed rules under sub‑clause (d) of clause (9) of Article 6, providing for a power to retire officers even after B they had passed the two stages of twenty‑five years qualifying) service and to fifty‑fifth year of ago. This amounted, however merely to the possibility of a law being framed, under which the, respondents could have become liable to such action. No such liability could be said to have accrued in their case unless the it had been properly framed and enforced. There was only threat in the form of the possibility of legislation that such a liability may be brought into being, but this possibility cannot be equated with the accrual of the liability itself. The matter may have remained in the realm of intention of the Governor but that intention never materialised into the form of an actual liability. The fact remains that till the commencing day of the new Constitution, no law existed, under which orders of retirement of the respondents (apart from cases of disciplinary‑t action) could have been passed, after any one of them had passed the twenty‑five years qualifying stage of service or the fifty‑fifth year of age, as the case may be. The position clearly was that till that day, the only liability of the respondents was one of being retired at either of the two preliminary stages mentioned above or failing that to continue in service till the normal superannuation age of sixty. The only other way. in which their services could have been terminated would have been by way of disciplinary action under the constitutional provisions or the relevant rules. Without resorting to the full procedure prescribed for such disciplinary action, no other method of retirement of the respondents was open to the authorities, in these circumstances. In so far as, therefore, the proviso to rule 4 now enabled the Governor or the Provincial Authorities nominated by him, to retire anyone of the respondents, after he had crossed the two hurdles of the twenty‑five years qualifying service or the fifty‑fifth year of age without interference, would amount to variation of the terms and conditions of service of the respondents, as they obtained on the commencing day of the Constitution. 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 respondents. To concede the right to the Governor or his nominees to take action under the proviso to rule 4 would mean that, despite the repeal of the 1958 Order, sub‑clause (d) of clause (9) of that Order was still available for C the framing of the necessary rule in this behalf. Under the 1958 Order, as it stood, up to the date of the new Constitution, no such order of retirement was possible, as no rules had been framed under sub‑clause (d) of clause (9) of the Order, as sanction for such action. The power to frame relevant rules under sub‑clause (d) of clause (9) could not be said to have been carried forward beyond the date of the commencement day, in the face of the repeal of the Order itself.

The argument that clause (2) of Article 178 of the Constitution conferred an independent similar power on the Governor, to frame the necessary rules, loses sight of the fact that this power is fettered by the condition that it has to be exercised subject to the Constitution and the law. This at once attracts the provisions if clause (3) of Article 178 and Article 2141 of the Constitution and the respondents can invoke these solemn constitutional provisions to protect themselves against the Impugned action taken under h sub‑constitutional enactment like the rules in question. take over exercisable under clause (2) of Article 178 is not assimilable to the power conferred by sub‑clause (d) of clause (9) of the Order. As has been pointed out by the High Court, the relevant power under the new Constitution is untrammelled by any condition of prior consent of the President, to the framing of the rules. The rule‑making authority, therefore, under clause (2) of Article 178, is not the same as the authority that was competent to frame rules under sub‑clause (d) of clause (9) of Article 6 of the Order.

It has been brought to our notice that with effect from the 31st of March 1966, by the Sixth Amendment of the Constitution, the superannuation age of members of the Provincial service has again been reduced to fifty‑five. This provision, however, can be enforced prospectively and not retrospectively, and it is clear that the declaration granted by the High Court in respect of orders passed long before this amendment was brought into force, is not affected. It would be open to the Provincial Government, of course, to take action under the new amendment of the Constitution, in respect of anyone of the respondents who might have reached the age of fifty‑five, on or before the 31st of March 1966. But till such an order becomes effective under the relevant constitutional provision, the Provincial Government would be under obligation to secure the stipulated emoluments to the respondents up to that date.

All these appeals have, therefore, no merit and we hereby dismiss them with costs:

A, H, Appeals dismissed.

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