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(1) THE GOVERNMENT OF WEST PAKISTAN, through the CHIEF SECRETARY, WEST PAKISTAN GOVERNMENT LAHORE AND (2) DR. SAEED AHMED KHAN, M.B.B.S., P.M.S., DEPUTY DIRECTOR OF HEALTH SERVICES, PESHAWAR ‑Respondents
Miscellaneous Application No. 33 of 1956, decided on 24th May 1956.
‑Enactments of a remedial nature ‑Retrospective effect‑Depends upon merits o f case.
An enactment dealing with the substantive rights of the people cannot have retrospective operation, unless such an operation either expressly or by necessary implication is provided by the enactment itself: Enactments which are only remedial measures or which affect only the procedure would be retrospective in effect unless there are good reasons to hold the opposite view.
Section 223‑A of the Government of India Act, 1935, and Article 170 of the Constitution of Pakistan, do not confer any substantive right on the people.
It cannot be laid down as an absolute and inflexible rule that in all cases in which the writ of one kind or the other is sought under Article 170 of the Constitution of Pakistan, the jurisdiction of the High Court is barred in the matter if the impugned order is passed prior to the conferment of those powers upon the High Courts. The merits of the case should be the determining factor.
Rajaram Dadu and others v. The State and another A I R Nag. 443, Janardhan Reddy and others v. The State of Hyderabad and others A I R 1951 S C 217, Haran Chandra Dutt and another s v. The State of West Bengal and others A I R 1952 Cal. 907 and Hiranmoy Bhattacharjee and another v. The State of Assam and another A I R 1.954 Assam 224 rel.
‑Nature and kinds of‑Writs of mandamus quo‑warranto, prohibition and certiorari‑When and to whom issued.
The very nature of writs like those of prohibition, mandamus and certiorari, shows that they can be issued at any time whenever the occasion arises. If a certain authority is dealing with a certain matter, which he has no jurisdiction to deal with, or has the jurisdiction to deal with it but is dealing with it in violation of the express provisions of law, or natural justice, the High Court will step in irrespective of the ‑fact that the authority started dealing with the matter before the powers of the issuing of writs were conferred upon it.
The writs of Prohibition, mandamus and certiorari are issued to the Judicial or quasi‑judicial authorities and the Government officials at different stages of their dealing with the matter. Writ of Prohibition is issued, to forbid them to act in excess of their jurisdiction, or in contravention of the laws of the land. Writ of Mandamus is of a remedial nature, and is in the form of a direction issued to the above authorities to act according to law, or to desist from acting against law. The writ of Quo‑warranto is meant to have the right of a person to a public office determined in the interest of public generally. If in answer to this writ, the officer produces an authority, which is bad in law and is ultra vires of the person giving it then irrespective of the facts as to when that authority was given, it will be the duty of the Court to declare such person not entitled or qualified to hold that particular office, and by the issue of the writ of prohibition prevent him from functioning as such.
The writ of certiorari, is sought from the High Court to examine the validity of a certain judicial or quasi‑judicial order after it is passed. If that order has been passed and has become final under the existing law, before the conferment of the powers on the High Court to issue writs, the High Court will certainly refuse to interfere, 'and in this respect it may be said that the enactment has no retrospective effect.
‑Public servant--- Order retaining services after age of superannuation without stating "public grounds"‑Ultra vires‑Set aside by Writ of Prohibition‑Fundamental Rule 56.
Where services of a Deputy Director of Health were retained after he had reached the age of superannuation without determining the "public grounds" which had necessitat ed extension of services of the public servant, the High Court holding that the order was invalid directed the public servant concerned by a Writ of Prohibition, that he should desist from performing the functions of the office of the Deputy Director of Health.
Kazi Muhammad Aslam Khan for Petitioner.
Muhammad Ali, Additional Advocate‑General for Respon dent No. 1.
Bashir Ahmad and Kazi Abdur Rashid for Respondent No. 2.
Dates of hearing : 7th and 8th May 1956.
‑The petitioner in this matter is Dr. Sher Bahadur Khan, M. B. B. S., at present serving the newly formed Province of West Pakistan,‑as Deputy Inspector ---General of Prisons, with his Headquarters at Peshawar. He feels aggrieved over the appointment of his colleague Dr. Saeed Ahmad Khan, M. B. B. S., P. M. S., as Deputy Director of Health Services of the aforesaid Province Northern Region. He seeks redress from this Court by a petition under Article 170 of the Constitution of Islamic Republic of Pakistan, for the issue of the high prerogative writ of mandamus to the Government of West Pakistan to restore to him his former status as Director of Health Services North- West‑Frontier Province now as Deputy Director , of Health Services Northern Region‑together with emoluments attached to the post to which he was entitled before the 14th of October 1955, and for a writ of prohibition to Dr. Saeed Ahmad, the 2nd respondent, to desist from occupying the said post, petitioner being its rightful incumbent. As usual, the petitioner has added a prayer for the issue of any other appropriate writ, which the Court under the circumstances of the case might deem fit.
This unfortunate crossing of swords in a Court of law between two most distinguished gentlemen of the Health Services of the former North‑West Frontier Province, and now of the Province of West Pakistan, held in very high esteem by the people generally, and belonging to one of the noblest professions of the world, could have been very easily avoided, if the relevant authorities had not run with the hare and hunted with the hound and had acted in a fearless, firm and upright manner.
In order to appreciate the questions, which arise for determination in this petition, it would be convenient at the outset to narrate briefly the material facts in chronological order. In fact that would automatically resolve some of the points that have been canvassed before us.
It was in August 1947, that by the Grace of Great Almighty and the supreme efforts of the Great people, professing the Muslim faith in united India, a new country by the name of Pakistan, consisting of two wings, East Bengal and West Pakistan, came into existence. This country took its birth in the teeth of bitter opposition, which came from the Hindus and the Sikhs en bloc and from a handful of the Muslims out of whom some were perhaps honestly of the view that the creation of Pakistan was against the best interests of the Muslims generally, but the others were opposed to it for motives which were selfish and far from honest and straightforward. Immediately after Pakistan came into existence, effort started and with full force by its enemies both from, within and without, to disintegrate it. These efforts consciously or unconsciously got impetus from the so‑called politicians of this country, who though honest Pakistanis were so power‑hungry that they did not realize that by their unpatriotic and undemo cratic acts they satisfied their illegitimate hunger all right, but then they sacrificed the interests of their dear name‑land, degenerated democracy to a lamentable childish level, and impaired badly its national pride, moral fibre and the political prestige. The result was the creation of such a situation in the country, which might aptly be called precarious This situation was taken notice of by a Judge of great eminence and learning (Mr. Justice Munir, the Chief Justice of Pakistan) in Constitution Civil Appeal No. 1 of 1955, commonly known as Maulvi Tamizuddin Khan's case (P L D 1955 F C 240) wherein it was observed as under: ‑
"I am clear in my mind that we are not concerned with the consequences, however beneficial or disastrous they may be, if the undoubted legal position was that all legislation by the legislature of the Dominion under subsection (1) of section 8 needed the assent of the Governor‑General. If the result is disaster it will merely be another instance of how thoughtlessly the Constituent Assembly proceeded with its business, and by assuming for itself the position of an irremovable legislature to what straits it has brought the country."
The seriousness of the situation again forced the same illustrious judge to commence his report on special reference made by the then Governor‑General of Pakistan on certain questions with the following remarks: ‑
"The situation presented by the reference by His Excellency the Governor‑General under section 213 of the Government of India Act 1935, is that after experi menting for more than seven years with a Constitution which was imposed on the country with the consent of its leaders, by a Statute of the Parliament of the United Kingdom, called the Indian Independence Act, we have come to the brink of a chasm with only three alter natives before us :‑
(1) to turn back the way we came by ;
(2) to cross the gap by a legal bridge ;
(3) to hurdle into the chasm beyond any hope of rescue.
It is not a long story to tell how we have come to this pass."
One of the evils, which developed as a result of the above situation was provincialism. In due course of time this evil became a problem, which threatened the very existence of Pakistan. While East Bengal consisted of only one Province the Western Pakistan consisted of the Governor's Province of Sind, Punjab, North‑West Frontier Province, Chief Commissioner's Province of Baluchistan, The Capital of the Federation, The States of Bahawalpur, Khairpur, Dir, Swat, Chitral and several Tribal Areas. Mistrust and suspicion was created between the two wings on one hand and between different Provinces, States and Tribal Areas in West Pakistan on the other. Time came, and unfortunately we are still passing through it, that provincialism became a colossal problem, It was in the later part of 1954, that the leaders of this country in order to overcome this problem (and it is sincerely hoped and prayed that they would) envisaged a scheme which was of great magnitude of utmost domestic importance. This scheme was to unify the whole of West Pakistan into one single. Unit. The country after eight years of its birth was still without any Constitution of its own. It was, as before, still a part of the British Common wealth, and governed by the Government of India Act, amended of course by the Pakistan Constituent Assembly from time to time, as the need arose, and the Indian Inde pendence Act enacted by the British Parliament in 1935 and 1947 respectively.
As a preliminary to implement this gigantic scheme, the Governor‑General of Pakistan made an order on the 17th of December 1954, under section 135 of the Government of India Act of 1935, establishing a Council for the admi nistration of West Pakistan, hereinafter referred to as "The Council", consisting of certain dignatories as its members, and certain others as associates with the work of the Council in regard to matters concerning the Areas within their respective spheres. The duty of the Council was to investigate, discuss and make recommenda tions upon matters relating to the Constitution of West Pakistan as a single administrative Unit, and in particular with regard to the formation of a common Secretariat for West Pakistan, the organisation of the various Departments, functioning under the Secretariat, the integration of existing Provincial and State Cadres, and all other matters incidental to the Constitution of West Pakistan as a single Administra tive Unit, and the co‑ordination of administrative Policy and action to that end.
The Council was authorized to set up Committees composed of relevant authorities for the purpose of carrying out its duties and functions.
Subsequently the Governor‑General, purporting to act under section 46 of the Government of India Act, made another order on the 27th of March 1955, establishing the Province of West Pakistan, which was to consist of the Areas of the Provinces of the Punjab, the North‑West Frontier Province, Sind, Baluchistan, Karachi, the States of Bahawalpur and Khairpur, the Baluchistan States Union and the Tribal Areas. The Council was authorised by this order to take such steps as it might deem necessary or expedient for the purpose of enabling the Province of West Pakistan, to be constituted on the appointed day, and for such purpose might issue such directions as it might deem necessary or expedient, to the Government of any Governor's Province, or Federal State in West Pakistan, or to any officer or authority thereof, and notwithstanding anything in any law to the contrary for the time being in force, any such Government, officer or authority had to give effect to such directions.
The Council it appears had set up a Committee composed of Lt. Col. S. M. K. Mallick, Director of Health Services Punjab, Col. M. K. Afridi, Director of Health Services 'St North‑West Frontier Province, Dr. A. S. Kazi, Director Health Services Sind, Col. K. M. Sana, Director of Health Services Bahawalpur, and Dr. Nasirud Din Ahmad, Acting Director of Health Services Baluchistan Quetta, to select officers for appointment in the Health Department of the future Government of West Pakistan.
It may be mentioned here that so far as the North‑West Frontier Province was concerned, the Public Health and the Jails were dealt with by the same Department, and the Director of Health Services of the Province was at the same time the Inspector‑General of Prisons. In the new set‑up these two Departments were proposed to be split up into two and made independent of each other.
Without any material at our disposal we can do no more but to speculate that a Committee must also have been set up by the Council to select officers for appointment in the jail Department. We can, however, not even speculate in the absence of the relevant record as to how the officers belonging to the Public Health and Prisons Departments in the North‑West Frontier Province were selected for one Department or the other, because all the officers in this Department were more or less qualified to be the Health Officers alone. From the record of the deliberations of the Committee for the Health Department it appears that this selection had already been made, because the officers, who were recommended for certain posts in the Jail Department were not even considered for any appointment in the Health Department. The vice versa must under the circumstances be also true.
The aforesaid Committee, as it put it, despite the short time at its disposal, carefully scrutinized the personal files of the officers concerned for the different posts and selected only those persons, who were best suited to particular appointments. From amongst those officers (Sher Bahadur Khan presumably was not one of them), whose personal files were carefully scrutinized by the Committee, Dr. Saeed Ahmad respondent No. 2 was found best suited to occupy the post of Deputy Director of Health Services Peshawar Region. The Committee made the recommendations accordingly.
On the 7th of October 1955, N. A. Farooqi, C. S. P. Chief Secretary Designate, Government of West Pakistan, issued a Memorandum in supersession of all previous orders appointing Dr. Saeed Ahmad as Deputy Director of Health Services Peshawar, and Dr. Sher Bahadur Khan as Deputy Inspector- General of Prisons Northern Region, Peshawar.
If this had been the only order passed appointing 'Dr. Saeed Ahmad as Deputy Director of Health Services, we would have seriously considered the argument advanced at the Bar on behalf of the petitioner, that this appointment was bad, as not having been made either by the Provincial Government or by the Council. One of the respondents, however, has placed upon this record the Official Gazette of West Pakistan Government dated 14th of October 1955, by which the Governor of West Pakistan was Pleased‑to appoint Dr. Saeed Ahmad as Deputy Director of Health Services in Peshawar. By this time the Establishment of West Pakistan Act, 1955, had been passed. The Province of West Pakistan had become a reality, and had started functioning with effect from the 14th of October 1955. It is not denied that this order of the Governor of West Pakistan cannot be impeached or assailed on any valid ground. The Governor in law is quite competent to pass it.
It is argued that in spite of the above order of the Governor of West Pakistan, it is the petitioner and not the second respondent, who was appointed to the coveted post of Deputy Director of Health Services, and he should, therefore, be declared as such. This argument is founded on the impression, which Dr. Sher Bahadur Khan seems to have gained from the wavering mind of the deciding authori ties. After Dr. Saeed Ahmad Khan received the order of appointment, both he and the petitioner sent telegrams to Lahore. Dr Saeed Ahmad Khan was informed telegraphically on the 14th of October 1955, by the Officer on Special Duty, West Pakistan Secretariat, Peshawar that his appointment as Deputy Director of Health Services was confirmed. Lieut. Col. S. M. K. Mallick, the newly appointed Director of Health Services in the West Pakistan, probably on the 15th of October 1955, informed the Secretary to Government of West Pakistan, Department of Health, that the newly appointed Chief Minister of West Pakistan, (Dr. Khan Shahib), by the Pakistan (Estab lishment of Council for the Administration of West Pakistan) (Amendment) Order V of 1955, had instructed him at the Government House Lahore, that he would like Dr. Saeed Ahmad Khan respondent No. 2 to continue as Medical Superintendent T. B. Sanatorium Dadar, and Dr. Sher Bahadur Khan to be the Deputy Director of Health Services Peshawar. He asked the Secretary to pass the formal order of the Government in the case and he distinctly in his note, which is placed at page of File Health Administration (Punjab Government Civil Secretariat Proceedings, 1956), stated that the officers had been instructed "to hold to their posts which they were holding on the 13th of October 1955 till further orders". It was as a result of this note that Col. Mallick telegraphically informed Dr. Sher Bahadur Khan "to hold fast till further orders." The papers were then put up to the newly appointed Chief Secretary to Government West Pakistan, who on the 20th of October 1955, noted down that he had spoken to Dr. Khan Sahib on the subject, who had told him that he would speak to Dr. Saeed Ahmad Khan, when he went to Peshawar. The Chief Secretary ordered that in the meanwhile the present arrangement should stand. There is nothing on the record to show as to what happened after this,‑whether the Chief Minister met Dr. Saeed Ahmad Khan or not, and if he did what final order did he pass. On 3rd January 1956, the papers were put up to the Minister in charge Health, who made the follow ing note: ‑
"The previous orders to stand."
From all this it would appear that Dr. Sher Bahadur Khan's contention that it was he, who was appointed the Deputy Director of Health Services, and not Dr. Saeed Ahmad Khan, is misconceived and must be rejected.
After the Committee, appointed for the purpose of recommending the personnel fur appointment to different posts in the Health Department, had submitted its recom mendations, but before any final order was passed, several events took place, which involved the petitioner and the second respondent in a pitched battle (on paper of course) against each other. The trouble started with the applica tion of Col. M. K. Afridi C. B. E., M. D., the then Director of Health Services, and Inspector‑General of Prisons in the North‑West Frontier Province, made on 22nd April 1955, for eight months' leave, preparatory to retirement, with effect from 25th April 1955. In this application Col. Afridi recommended that the petitioner, who was then discharging the duties of Deputy Inspector‑General of Prisons in the North‑West Frontier Province, be authorized to take over temporarily the post that he was vacating until the final selection was made. He made this recommendation with apologies to Dr. Saeed Ahmad Khan, who according to him was the senior‑most P. C. M. S. Class I Officer in the North West Frontier Province, and should normally have been asked to officiate for him, but for the fact that he did not consider it advisable nor was it allowed by the Council in view of the then existing state of flux to dislocate Dr. Saeed Ahmad Khan from superintendent ship of T. B. Sana torium Dadar, and thereby entail a chain of moves and transfers. By order of the Governor, North‑West Frontier Province dated 25th April 1955, Col. Afridi was granted the applied for leave, and the petitioner appointed to officiate temporarily as Director of Health Services and Inspector General of Prisons North‑West Frontier Province in the leave arrangement until final selection of an officer for the above post was made. On the same date Col. Afridi relinquished and the petitioner received the charge of the above post. The necessary Notifications, which were dated 3rd May 1955, were published in the Official Gazette of the North West Frontier Province, on the' 15th of May 1955, and in the Notification the word temporarily after officiating was not repeated. All that was said was that Dr. Sher Bahadur Khan was appointed to officiate as Director of Health Services and Inspector‑General of Prisons North‑West Frontier Province. It is, however, difficult for us to attach any importance to this omission in the Gazette Notification. because when it is said that a certain person is appointed to officiate on a certain post, it implies that the appointment is temporary and not permanent. We are, therefore, unable to appreciate the argument advanced at the Bar on behalf of the second respondent and the word temporarily was inten tionally omitted from the Notification by Dr. Sher Bahadur Khan, who was responsible for the, publication of this Notification, in his capacity as an Officiating Director of Health Services, for some motive other than bona‑fide.
On the 2nd of May 1955, Dr. Saeed Ahmad Khan made a representation to the then Provincial Government, that he was the senior‑most class I Officer in the Medical Department, with over 29 years' clean service, and should, therefore, have been appointed to officiate as the Director of Health Services instead of Dr. Sher Bahadur Khan, who was junior to him in the Department.
Here we must pause for a while to repel the argument advanced by the petitioner, .that he, and not the second respondent, was the senior‑most officer in the Health Services of the North‑West Frontier Province. It is not denied that Dr. Saeed Ahmad Khan joined the medical service on the, 17th of April 1926, while Dr. Sher Bahadur Khan did so on the 14th of September 1926. The former, therefore, would be senior to the latter unless something happened in between and his seniority was taken away. Nothing of the sort has, however, been brought to our notice. Apart from this, Dr. Saeed Ahmad Khan has throughout the service been shown in the Government papers as senior to the petitioner, and the latter has never taken any objection to it. In fact after the petitioner was appointed to officiate as Director of Health Services, and a representation against him was made on the ground of seniority by Dr. Saeed Ahmad Khan, the petitioner never denied the seniority of Dr. Saeed Ahmad Khan ; on the contrary he affirmed it in the note, which he put up to the Provincial Government, by saying that his appointment was temporary, and that it would not affect the position of Dr. Saeed Ahmad Khan in the Unit Government, when the final selection would be made. It was as a result of this note that respondent No. 2 was informed by the Provincial Government accordingly.
The learned counsel for the petitioner however claimed seniority for his client on the ground that the petitioner was confirmed in the present Grade earlier in 1942 than the second respondent, the difference being of two months and five days. No rule or law relevant to the point has been placed before us, but the fact remains that even in spite of the confirmation earlier in time, Dr. Sher Bahadur Khan has for all these years been shown as junior to Dr. Saeed Ahmad Khan, and it is now very much late in the day for him to say that this order should be upset, and he should be placed senior to Dr. Saeed Ahmad 'Khan.
To revert to the representation made by Dr. Saeed Ahmad Khan not content with the reply that the appoint ment of Dr. Sher Bahadur Khan was purely a temporary one, and it would not affect his position in the Unit Government when final selection for the post would be made, he lodged an appeal to the Governor, North‑West Frontier Province on the 18th of June 1955. On this the whole case was referred to the Joint Public Service Commission, Punjab and North‑West Frontier Province for advice. To complete the story, the advice given by the said authority may be mention ed here, although out of the chronological order. It was that Dr. Saeed Ahmad Khan should be given the benefit of the "next below rule". The Provincial Government then vide Memorandum No. 301 HM/22/51, dated Peshawar the 21st/22nd September 1955, extended the beneficial effects of the "next below rule" in favour of Dr. Saeed Ahmad Khan for the period from the 25th of April 1955, to the 8th of October 1955. He was allowed to draw pay for this period at the rate he would have drawn if he had officiated as the Director of Health Services, North‑West Frontier Province.
Another difficulty, however, arose in the meanwhile, and it was that Dr. Saeed Ahmad Khan realized that under rule 56 of the Fundamental Rules, he would reach‑the age of superannuation viz. 55 years on the 9th of October 1955. He, therefore, on the 8th of August 1955, addressed an applica tion to the Home Secretary of the then Governor, North‑West Frontier Province, for an extension of one year with effect from' the 10th of October 1955, so as to enable him to avail of the higher post in the North‑West Frontier Province, or in the Unit Government, for which he had already been selected.
By this time the changes of great political importance had taken place in the North‑West Frontier, Province. Sardar Abdur Rashid, the then Chief Minister, had been dismissed, and Sardar Bahadur Khan, until then Agent to the Governor‑General in Baluchistan, had been selected to succeed him. This gentleman on the following day of Dr. Saeed Ahmad Khan's application, i.e., on the 9th of August 1955, passed the following order :‑
"Reference attached. I give a year's extension to Dr. Saeed Ahmad Khan, Medical Superintendent Dadar Sanatorium, but this extension should not be treated automatically as an extension in case his appeal for getting the post of D. H. S., which has been referred to the Public Service Commission is accepted. In that eventuality the question of his extension as D. H. S. after the age of superannuation may be considered by the Provincial Govern ment on merits."
It is this order, which has been most seriously and at considerable length debated by the parties before us. The petitioner opened the attack by contending that the order is illegal, because it contravenes the provisions of Rule 56 of the Fundamental Rules inasmuch as the order does not record in writing in so many words, that Dr. Saeed Ahmad Khan is retained in service on public grounds. It is further submitted that even if the order is held to be legal, still it has spent its force, because Dr. Saeed Ahmad Khan's appeal was accepted, he was given the benefit of the "next below rule", and was finally appointed as. Deputy Director of Health Services, which post is equal to the post of the Director of Health Services in the late North‑West Frontier Province.
On the other hand, the respondents have argued that the order is perfectly legal, and is‑ still effective. They, however, raise a preliminary objection, that this Court has no Jurisdic tion to act in the matter under Article 170 of the Constitution of Islamic Republic of Pakistan, because at the time when the order of retention was passed by the then Chief Minister, this Court did not possess such powers at all.
The power of the High Courts in Pakistan to issue any person or authority including inappropriate cases any Government within their respective territories writs, including the writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, has a remarkable history of its own. Originally the Courts in Pakistan did possess power to grant all these reliefs, but then this could only be done in regular proceedings, and no speedy and adequate remedy was available to the aggrieved persons. In order to make this remedy available, the Constituent Assembly of Pakistan on the 6th of July 1954, passed the Government of India (Amendment) Act of 1954, inserting in the Govern ment of India Act, 1935, the following new section, numbered as 223‑A :‑
"Every High Court shall have power throughout the territoties in relation to which it exercises jurisdiction to issue to any person or authority including inappropriate cases any Government within those territories writs includ ing writs in the nature of habeas corpus, mandamus, prohibi tion, quo warranto and certiorari or any of them."
This Act was, however, found in April 1955, by the majority of judges of the Federal Court of Pakistan, in the famous Tamiz‑ud‑Din Khan's Constitution Appeal (P L D 1955 F C 240) as not yet law, because it had not received the requisites assent of the Governor‑General of Pakistan. The effect of this judgment was the invalidation of not only the said Amending Act, but of several other laws passed by the Constituent Assembly during the last several years. On 1st October 1955, therefore, the Constituent Assembly of Pakistan passed the Validation of Laws Act, validating certain laws, including the aforemention ed Government of India (Amendment) Act of 1954. It was enacted that these Acts shall be deemed to have received the assent of the Governor‑General on the dates specified against them in column No. 2 thereof, and shall be deemed to have had the force and effect of law from those dates. This Act received the assent of the Governor‑General on 2nd October 1955 from which date it became law.
The Government of India (Amendment) Act 1954, received special attention by this Act inasmuch as by a separate section No. 3 of the Validation Act, this Act was to come into force from the date of the commencement of the Validation Act, viz.. 2nd October 1955. Subsequently the Constitution of the Islamic Republic of Pakistan after several years of anxious waiting came into force with effect from the 23rd of March 1956. Section 223‑A, with some improvements found its place in the Constitution in the shape of Article 170.
It is, thus, clear that on the 9th of August 1955, by the operation of the judgment of the majority Judges of the Federal Court of Pakistan, Federation of Pakistan v. Maulvi Tamiz ud‑Din Khan (P L D 1955 F C 240) the then Judicial Commissioner's Court of North‑West Frontier Province, or any other High Court in Pakistan, did not possess the powers to issue the high prerogative writs mentioned in section 223‑A of the Government of India Act, or Article 170 of the Constitution of the Islamic Republic of Pakistan.
The proposition of law, which the learned counsel for the respondents wish this Court to subscribe to, is that section 223‑A of the Government of India Act, 1935, or Article 170 of the Constitution of the Islamic Republic of Pakistan has no retrospective operation, and this Court, therefore, even if it is of the opinion that the retention of Dr. Saeed Ahmad after he had reached the age of superannua tion was bad in law, has no jurisdiction to say that he is holding the office of the Deputy Director of Health Services without any legal right. In support of this contention the learned counsel have relied upon the following authorities :
Rajaram Dadu and others v. The State and another (A I R 1951 Nag. 443). In this case three persons were convicted under certain sections of the Penal Code by the Nayya Panchayat Court Kamtha, and sentenced to a fine of Rs. 30 each. The revision petition against this order was dismissed, although the fine was reduced to Rs. 20 in each case by the Civil Judge Bhandara. The convicts went up in further revision to the Nagpur High Court under section 115, Civil P. C. and clause II, Letters Patent of that Court. While this revision petition was pending, the Constitution of India came into force. It empowered the High Courts in India to issue different writs under Article 226, which is equivalent to section 223‑A of the Government of India Act, and Article 170 of the Pakistan Constitution. The convicts wanted to take advantage of the provisions of Article 226, but their Lordships refused to accede to their request, on the ground that Article 226 and Article 227 of the Indian Constitution were not to be treated retrospectively, and that those powers could not be invoked in that case, as the decision of the Civil Judge had become final before the Constitution was adopted.
Janardhan Reddy and others v. The State of Hyderabad and others (A I R 1951 S C 217). In this case the petitioners have been tried by a tribunal constituted by the Military Governor by virtue of the powers delegated to him by His Exalted Highness the Nizam, were convicted of murder and sentenced to death. They were also convicted of certain other offences, including the offence of carrying fire‑arms, without license and sentenced to various terms of imprisonment. They appealed against their convictions and sentences to the Hyderabad High Court, but failed. They tried to obtain leave of the High Court for appeal ing to the judicial Committee of Hyderabad, when in the meanwhile the Constitution of India came into force, and the judicial Committee ceased to function. They then applied to the Supreme Court (India) for special leave to appeal, but that application was dismissed on the ground that the Supreme Court had no jurisdiction to entertain the appeal under Article 136 of the Indian Constitution. The petitioners then made applications to the Supreme Court under Article 226 of the Constitution, which were rejected. It was under these circumstances that their Lordships of the Supreme Court of India while dismissing the appeal against the order of the High Court, rejected the writ application, observed as under in column 1 of page 220: ‑
"But for the purpose of the present case it is sufficient to point out that even if we assume that there was some defect in the procedure followed at the trial, it does not follow that the trial Court acted without jurisdiction. There is a basic difference between want of jurisdiction and an illegal or irregular exercise of jurisdiction, and our attention has not been drawn to any authority in which mere non‑compliance with the rules of procedure has been made a ground for granting one of the writs prayed for. In either case the defect, if any, can according to the procedure established by law be corrected only by a Court of appeal or revision: Here, the appellate Court which was competent to deal with the matter has pronounced its judgment against the petitioners and the matter having been finally decided is not one to be re‑opened in a proceeding under Article 32 of the Constitution."
Again, in column 2 of page 225, their Lordships remarked: ‑
"There is also another difficulty in the way of the petitioners which may be briefly stated. From the facts already narrated, it should clear that the judgment of the High Court affirming the convictions and sentences of the petitioners had acquired finality in the fullest sense of the term before 26th January 1950, and by reason of this finality no one could question the validity of the convictions at the date when the constitution came into force. Can then a new law or a change in the old law entitle us to reopen a transaction which has become closed and final It is common ground that the provisions of the Constitu tion, which are invoked here were not intended to operate retrospectively, and therefore something which was legally good on 25th January 1950, cannot be held to have become bad on 26th January 1950. If we had no jurisdiction to sit in appeal over the judgment of the Hyderabad High Court, can we not re‑investigate the cases and pass orders, which cannot be passed without virtually setting aside the judgments of the High Court, which have become final. Can we, in other words, do indirectly what we refused to do directly It is argued that we are not asked to reopen a past transaction but to deal with the present detention of the petitioners i.e., their detention at this moment. But, how can we' hold the present detention to be invalid unless we reopen what could not be reopened prior to 26th January 1950. This is, in our opinion, one of the greatest difficulties, which the petitioners have to face, and it rests not merely on technical grounds but on sound legal principles which had always been and should be respected."
Haran Chandra Dutt and another v. The State of West Bengal and others (A I R 1952 Cal. 907). This was an application for issue of a writ in the nature of quo warranto against the District Board and the members thereof to exhibit the authority .under which they purported to exercise the functions and powers and perform the duties of the District Board of 24 Parganas and of the Chairman and Vice‑Chairman and the members thereof. The petitioners attacked certain Notifications passed by the Provincial Government much before the Constitution of India came into force. Rejecting the application, Mr. Justice Bose remarked as under:
"These notifications have long ago spent their force and the District Board, constituted and continued under these notifications, has ceased to exist, and a general election has been held and a new District Board has been constituted as a result of such election. This new District Board has functioned as such and has done various acts in exercise of its powers and functions vested in the Board under the provisions of the Bengal Local Self‑Government Act. To undo all these acts, even if they are invalid, is the last thing, which a Court will be inclined to do under Article 226 at this distance of time. Any interference at this stage will put the affairs of the District Board in a state of utter chaos and confusion."
His Lordship made the above observations after he had definitely found that all the impugned notifications were perfectly valid in law, and could not be questioned on any account.
After going through the facts of those cases very carefully it is very difficult for us to imagine that one could possibly arrive at the conclusions different to those arrived at by the learned judges. On the basis of these authorities it can certainly not be laid down as an absolute and inflexible rule that in all cases in which the writ of one kind or the other is sought under Article 170 of the Constitution of the Islamic Republic of Pakistan, the jurisdiction of this Court is barred to take action in the matter, if the impugned order is passed prior to the conferment of those powers upon this Court. In our view, the merits of the case should be the determining factor.
The case‑law on the subject has been very ably discussed by the judges of the Assam High Court in Hiranmoy Bhattacherjee and another v. State of Assam and another (A I R 1954 Assam 224).
It is well‑settled principle of law that an enactment' dealing with the substantive rights of the people cannot haves h retrospective operation, unless, of course, such an operation] either expressly or by necessary implication is provided by, the enactment itself. On the other hand, it is equally well -settled that the question of retrospective effect does not arise in the case of the enactments which are only remedial measures, or which affect only the procedure. In all such cases the legislature gives a new remedy for enforcing the existing rights, and they would be retrospective in effect unless there are good reasons to hold the opposite view. Section 223‑A of the Government of India Act 1935, and Article 170 of the Constitution of Islamic Republic of Pakistan, by no stretch of imagination confer any substantial right on the people. They only provide beneficial, convenient and adequate remedy to the people to secure the existing rights. These provisions cannot be used to enforce the rights, which were not in existence at the time when they were passed, either because those rights were created afterwards, and they could not be claimed in respect of facts or circumstances existing prior to the passing of these enactments, or because the remedy to get those rights under the law as it then stood had become altogether barred and the matter had been finally concluded. The effect of a remedial measure cannot be destroyed by placing such a construction upon it that it should defeat the very object for which it is brought on the statute book. An illustration will clarify the matter most aptly. Preventive Detention Laws are in operation in Pakistan since much before the partition of India. People have been from time to time arrested and detained under these laws. Some of them are still under detention. Article 7 of the Constitu tion of Islamic Republic of Pakistan, which came into force in Pakistan on 23rd March 1955: has laid down that no law providing for preventive detention shall authorize the deten tion of a person for a period exceeding three months unless the Advisory Board has reported before the expiration of the said ‑ period of three months, that there is in its opinion sufficient cause for such detention. It will destroy the purpose of Article 7 if it were to be held that the people detained before the Constitution came into force cannot be benefited by this provision of law.
In connection with the issue of writs of mandamus, prohibition, quo warranto and habeas corpus, the argument that section 223‑A of the Government of India Act, and Article 170 of the Constitution have no retrospective effect, is completely ununderstandable. It is to some extent understandable in the case of the issue of the writ of certiorari. The writs of pro hibition, mandamus and certiorari are issued to the Judicial, or quasi‑Judicial ' authorities, and the Government officials at different stages of their dealing with the matter. Writ of prohibition is issued, to forbid them to act in excess of their jurisdiction, or in contravention of the laws of the land. Writ of mandamus is of a remedial nature, and is in the form of a direction issued to the above authorities to act according to law, or to desist from acting against law. The very nature of these writs shows that they can be issued at any time) whenever the occasion arises. If a certain authority is dealing 'with a certain matter, which he has no jurisdiction to deal with, or has the jurisdiction to deal with it but' is dealing with it in violation of the express provisions of law, or natural justice, the High Court will step in irrespective of the fact that the authority started dealing with the matter before the powers of the issuing of writs were conferred upon it. The writ of certiorari, on the other hand, is sought from the High Court to examine the validity of a certain judicial or quasi‑judicial order after it is passed. If that order has been passed and has become final under the existing law, before the conferment of the powers on the High Court to issue the writs, the High Court will certainly refuse to interfere, and in this respect it may be said that the enactment has no retrospective effect. The writ of quo warranto is meant to have the right of a person to a public office determined in the interest of public generally. If in answer to this writ, the officer produces an authority, which is bad in law and is ultra vires of the person giving it then irrespective of the fact as to when was that authority given, it will be the duty of the Court to declare such person not entitled or qualified to hold that particular office, and by the issue of the writ of prohibition prevent him from functioning as such. A rider, however, may be added to it, that if the authority was legal at the time when it was given, but became illegal by reason of certain enactments having been passed later on, or certain circumstances having occurred after the conferment of the writ‑powers on the High Court, the latter will refuse to issue the writ of either quo warranto or of prohibition. Sine qua non is the legality or the illegality of the order or authority on the date it was passed or given. Whatever its character was on that day, it must continue to retain it, unless of course that character is taken away from it validly under the existing law.
A reference may with advantage be made to a case decided by M. R. Kayani and Akhlaque Husain JJ., Fazal Karim Chaudhri v. The Punjab University (P L D 1955 Lah. 404). In that case issue of a writ of mandamus to the Punjab University was sought, requiring that Body to include the petitioner's name in the list of the passed candidates on the result of the Final Professional Bachelor of Veterinary Science Examination held in December 1953. In spite of the fact that the examination was held prior to the enforcement of section 223‑A of the Government of India Act, 1935, the writ was granted. Kayani, J., who wrote the leading judgment observed in the penultimate paragraph as under: ‑
" There is no substance in the argument based on delay. When result of the 1953 examination was declared, section 223‑A was not on the statute book, and the present petition was filed soon after the University had refused to interpret the regulation in the petitioner's favour."
This observation shows that Their Lordships had in their mind the fact that at the time when the result was declared, section 223‑A, was not on the statute book.
In this case, therefore, all that has got to be seen is if Dr. Saeed Ahmad has a legal authority and is entitled under law for the time being in force to hold the post of the Deputy Director of Health Services in the newly created Province of West Pakistan.
Under Rule 56 of the Fundamental Rules adopted by the Governor‑General of ‑Pakistan in the exercise of powers conferred upon him by section 241 of the Government of India Act, 1935 the date of the compulsory retirement of a Government servant other than a ministerial servant is the one on which he attains the age of 55 years. A Government servant, as is explained in para 459 of the 1st Edition (1951) of the Government of Pakistan Ministry of Finance, Civil Service Regulations, relating to salary, leave, pension and traveling allowance, should ordinarily be required to retire at this age, and should not be retained in service. Dr. Saeed Ahmad having attained that age on 9th October 1955, must have ordinarily been placed on the retired list under the Rules and Instructions quoted above. Having been so placed, he could not be appointed, Deputy Director of Health Services on 14th October 1955. This position is even accepted by the learned counsel, appearing for the respondents, but he argues that Dr. Saeed Ahmad by the order of Sardar Bahadur Khan the then Chief Minister of the defunct North‑West Frontier Province, dated 9th August 1955, reproduced verbatim elsewhere in this judgment, acting tinder F. R. 56, had validly retained his services for a period of one year, commencing from 10th October 1955. It is amusing to note that the date from which the retention was to start is not given in the order. It might, however, be taken to be the date on which Dr. Saeed Ahmad was to reach the age of superannuation.
The validity of this order is questioned by the learned counsel for the petitioner, on the ground that it offends the clear provisions of F. R. 56, which enjoins that the services of a Government officer can be retained after he reaches the age of retirement only on one condition and that is "on public grounds which must be recorded in writing", and since no public ground existed in this case, and none indeed has been mentioned in the order, therefore, the order is not an order of the retention of Dr. Saeed Ahmad's services in the eye of law.
In F. R. 56 it is clearly mentioned that a Government officer other than a ministerial servant may be retained in service after the date of compulsory retirement, with the sanction of the Local Government on public grounds, which must be recorded in writing. This is further explained in the Ministry of Finance Civil Service Regulations 1951 Edition, para. 459, that the officers other than ministerial, who have attained the age of 55 years, should ordinarily be required to retire and should not be retained in service except where unquestionable public grounds for retention exist, and which must be recorded in writing, and there is no doubt as to the physical fitness of the officer.
A perusal of the impugned order will show that it does pest not record in writing the public grounds on which the services of Dr. Saeed Ahmad were retained, and none has been shown to have existed on the day when the order was passed. It was open to the respondents to place upon the record an affidavit or even a bare statement of Sardar Bahadur Khan, to show that he retained the services of Dr. Saeed Ahmad on account of some public grounds, which for some cogent reasons it was not possible for him to record in writing. The respondents have failed to do it, and we consequently hold that there was no foundation laid for Sardar Bahadur Khan to retain the services of Dr. Saeed Ahmad after he had reached the age of 55 years, with the‑result that the entire fabric of his retention in service must fall to the ground. Sardar Bahadur Khan under the circumstances had neither jurisdiction nor authority to pass the order in question.
Mr. Bashir Ahmad, the learned counsel appearing for the respondents, who put forward most ingenious and original arguments, tried to justify the order by some complex logic, which we must confess, in spite of our best efforts, we were unable to follow. His arguments, if we are able to reproduce them accurately, were to the following effect: ‑
(1) By the appointment of the petitioner as officiating Director of Health Services in North‑West Frontier Province, a wrong had been done to Dr. Saeed Ahmad, and it was in order to undo that wrong that the latter was retained in service, and this was a public ground.
(2) The Administrative Council set up by the Governor -General, referred to above, had selected Dr. Saeed Ahmad Khan out of many, doctors to the selection post of Deputy Director of Health Services, Peshawar Region, and in order to take advantage of his services it was in the interest of the public generally to retain him in service for a further period of one year.
(3) As is given in the application of Dr. Saeed Ahmad, dated 8th August 1955 and endorsed by Sardar Bahadur Khan, by the words "reference attached" in his order, there was acute shortage of efficient and competent doctors in Pakistan, and so under the circumstances Dr. Saeed Ahmad's services, expert as he is in the chest diseases, could not be dispensed with.
It will be futile to consider these grounds in relation to the retention of Dr. Saeed Ahmad in service, because they are not recorded in writing in the order of Sardar Bahadur Khan, and at the utmost it can be said that they are the invention of the clever brain of the learned counsel himself. In all probability these grounds did not ever occur to Sardar Bahadur Khan. In any case grounds Nos. 1 and 2 would be the private grounds concerning Dr. Saeed Ahmad alone, as distinguished from "public grounds" mentioned in the rule in question. As regards the third ground, there is nothing on the record to show that there is any dearth of efficient and competent doctors in Pakistan, or, if there is any, it can be removed effectively by retaining the services of Dr. Saeed Ahmad in the Medical Department. Surely, like everybody else in the world, Dr. Saeed Ahmad is also not indispensible. The order of his retention in service, thus, is without jurisdiction, and must be held as void in law. Even if the order be taken to be valid, still in our opinion, it has outlived its utility so far as Dr. Saeed Ahmad is concerned. The retention in service was granted to Dr. Saeed Ahmad, when he was Medical Superintendent, T. B., Sanatorium Dadar, subject to the condition "This extension should not be treated automatically as an extension in case his appeal for getting the post of D. H. S., which has been referred to the Public Service Commission, is accepted. In that eventuality the question of his extension as D. H. S., after the age of superannuation may be considered by the Provincial Government .on merits." The wordings of the order are certainly neither very happy nor clear. As we understand the order, it means that Dr. Saeed Ahmad was granted extension in service as a Medical Superintendent of the Dadar Sanatorium. In any case, his appeal was accepted by the Government on the advice of the Joint Public Service Commission Punjab and North‑West Frontier Province, and he was given the benefit of "next below rule" and as such was allowed to draw the pay of the Director of Health Services for the period from 25th April 1955 to 8th October 1955. Subsequently when the unified Province of West Pakistan came into existence, the North -West Frontier Province ceased to exist, and with it dis appeared the post of the Director of Health Services. It was replaced by a new post designated as Deputy Director of Health Services, to which Dr. Saeed Ahmad was appointed by order of the Governor referred to above. Virtually, therefore, on 14th October 1955, Dr. Saeed Ahmad was appointed the Director of Health Services, and it was then the duty of the new Provincial Government to consider whether extension in service as Director of Health Services should be given to Dr. Saeed Ahmad or not. The previous extension has ceased to exist. There is nothing on the record to show that the new Provincial Government of West Pakistan has given such an extension to Dr. Saeed Ahmad. It, therefore, follows that Dr. Saeed Ahmad had retired from service on 9th October 1955, and so on 14th October 1955, he could not be appointed as Deputy Director of Health Services by the Governor of the Province of West Pakistan. He has, thus, failed to show the legal authority entitling him to hold this post.
Under the circumstances we have no other alternative but to issue the writ of prohibition to Dr. Saeed Ahmad to desist from performing the functions of the Deputy Director of Health Services, Peshawar Region.
Dr. Sher Bahadur petitioner has in addition asked for the issue of the writ of mandamus to the Government of West Pakistan to restore to him his former status as Director of Health Services North West Frontier Province, now as Deputy Director of Health Services Northern Region together with emoluments attached to the post to which he was entitled before the 14th of October 1955.
We really cannot see how can Dr. Sher Bahadur be granted this writ, because he was neither appointed a permanent Director of Health Services in the North‑West Frontier Province, nor Deputy Director of Health Services in the New Province of West Pakistan. The post in dispute is admittedly a selection post, and it has got to be given to a person, who is selected by the relevant authority. It will be very wrong on our part to usurp the functions of that authority and appoint Dr. Sher Bahadur to this coveted post. This is what it would amount to if Dr. Sher Bahadur's prayer is accepted.
The request for the issue of the writ of mandamus is, therefore, rejected.
Order accordingly.
Since none of the parties has succeeded wholly, therefore, it will serve the interests of justice, if they are left to bear their own costs.
K.B.A.
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