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Writ Petition No. 45 of 1956, decided on 17th July 1956 under section 223‑A. Government of India Act.
Appointment directed by Rules to be made by selection and not on basis of seniority‑Writ refused but declaration grunted as to seniority of public servant‑Pre‑dating by Government o f confirmation of public servant subsequent to writ petition of rival public servant‑Deprecated as undermining prestige of both Government and the Court.
Where Z was appointed as Deputy Director, Military Lands and Cantonments in preference to A (the petitioner) on the basis of supposed seniority, whereas in actual fact, A was senior to Z, and where according to rules (i.e., Pakistan Military Lands and Cantonment Services (Class I) Composition and Cadre Rules, 1955), the appointment was to be made by selection and seniority could only be considered where claims of two or more candidates were equal on merits.
, that all that the Court could do was to give a declaration to A that at the time Z was appointed Deputy Director, Military Lands and Cantonments, A was senior to him, and, therefore, should have been appointed as such.
" If the Court appointed A to the relevant post by a writ, the Court would be usurping the functions of the selecting authority.
Governments' attempt to defeat the writ petition of A by pre‑dating confirmation of Z, subsequent to the institu tion of the writ petition by A, was deprecated by the High Court as calculated to undermine the prestige of both the Government and the Court.
Kazi Abdul Wahab Khan for Petitioner.
Muhammad Ali, Additional Advocate‑General for Res pondents No. 2 to 5.
Dates of hearing: 10th and 11th July 1956.
‑This is an application under section 223‑A of the Government of India Act, now sub stituted by Article 170 of the Constitution of Islamic Republic of Pakistan, for the issue of a writ of mandamus or quo warranto or any other appropriate writ to prevent the Government of Pakistan, Ministry of Defence, Karachi, from forcing the petitioner, M. A. Khan, of the Military Lands and Cantonments Service of Pakistan, to go on leave from 1st of March 1956, and thereafter to go on compulsory retirement, on the grounds that these orders are ultra vices based upon victimization, and without any legal justification. Mr. M. A. Khan also wants an appropriate writ for declaration that the supersession of the petitioner by respondents Nos. 2 and 3, Mr. Muhammad Zaman Khan and Mr. A. R. Qureshi, was ultra vires of the Constitution and illegal. The petitioner contended in the application that he was in the Military Lands and Cantonments Service since 1933, and in Class I Service since 1949. Muhammad Zaman Khan and Mr. A. R. Qureshi were junior to him in service but on account of their personal connections with the officers, they succeeded in getting themselves appointed as Deputy Directors of Military Lands and Cantonments in supersession of the petitioner. He made several representations to the Military Authorities as well as an appeal against his supersession, but instead of giving him his rightful place, the Military Authori ties sent to him Letter No. 101/12/G/III/D. 5/47, dated the 18th of February 1956, ordering him to go on leave, and also to show cause as to why he should not be made to retire on the expiry of his leave, attributing to him a corrupt conduct on account of the general and persistent rumour of being so. According to the petitioner, this letter is not a bona‑fide one and was unwarranted, unjust, unauthorized, malicious, inoperative, and against the principles of equity and natural justice.
The allegations made by the petitioner were of course denied by the respondents, who were the Government of Pakistan the two officers who superseded the petitioner, Mr. Habibullah Khan, Executive Officer, Peshawar Cantonment, who was ordered to tale over as M. E. O. from M. A. Khan, and Mr. A. I. burrani, Executive Officer, Noshera Cantonment.
Very lengthy arguments were addressed to us at the Bar. When formulated, the points attempted to be made out by the learned counsel for the petitioner were three in number, namely: ‑
(1) The letter of the Government of Pakistan, Ministry of Defence No. 101/ 12/G/III/1G, 5/47 dated the 18th of February 1956, was illegal, because it did not comply with the express provisions of law. The learned counsel for the petitioner did not attack this order on any other ground. In particular, it may be stated here that it was not impugned on the ground that it was malicious, and not bona‑fide. Needless to say that the malice, though alleged in the petition, was not referred to in the argument nor tried to be substantiated by bringing any material upon this record.
(2) That the appointment of Mr. Muhammad Zaman Khan as Deputy Director of Military Lands and Cantonments in supersession of the petitioner, who was senior to him, was illegal.
(3) The appointment of Mr. A. R. Qureshi subsequently as Deputy Director of Military Lands and Cantonments, who was also junior to the petitioner, was against law, and, there fore, bad.
I will take up these three objections seriatim.
.‑The impugned letter, dated the 18th of February 1956, purports to have been issued by the Governor-- General of Pakistan, stating that in his opinion, it is a reasonable belief under rule 3 of the Civil Service s (Preven tion of Corruption) Rules, 193, that the petitioner is corrupt, inasmuch as he has a general and persistent rumour of being so, and is, therefore, liable to compulsory retire ment under the provisions of the said Rules. The petitioner was directed to proceed on leave, which was admissible to him with effect from the 1st of March 19‑56. He was required to show cause within a period of thirty days from the receipt of that order as to why should he not be required to proceed on compulsory retirement on the expiry of his leave.
Under Rule 4 of the Civil Services (Prevention of Corruption) Rules, 1953, framed by the Governor‑General under section 241 of the Government of India Act, 1935, when in the opinion of the competent authority,, there are reasonable grounds for believing that a Government servant is liable to dismissal or compulsory retirement; it must, by an order in writing, require the Government servant to proceed on such leave as may be admissible and from such date as may be specified in the order. At the same time, the competent authority should inform the officer in writing of the action which is proposed to be taken in regard to him under Rule 3. The officer should then be given a reasonable opportunity of showing cause against that action, and before passing the final order, must take into consideration any representation made by him in this behalf. It should be clear from the provisions of Rules 3 and 4 of the above Rules that no preliminary enquiry or any other step is needed by the competent authority to require a Government servant to proceed on leave as may be admissible to him. This is not punishment. The learned counsel for the petitioner has not been able to show, and in fact, he conceded that this order of the Governor‑General requiring the petitioner to proceed on leave with immediate effect does not violate any provision of law. There is also no ground to believe that the rest of the contents of this letter violated any express provision of any statute. The petitioner of course, if he feels aggrieved, after he has been required to go on compulsory retirement, and if he thinks that such order is based in violation of any provision of law, can move the Court by an appropriate application, but at this stage, we think that his prayer for the issue of any writ on the basis of the above order seems to be premature and must be rejected.
‑The material facts which are necessary to decide this point, may be stated as under :‑
On the 15th of August 1953, a Promotion Board, consisting of Mr. Hamid Ali, Joint Secretary, Ministry of Defence as Chairman, Mr. S. M. Matin, Deputy Secretary, No. 3, Ministry of Defence, and Lt. Col. Shahbaz Khan, Director, Military Lands and Cantonments, as Members, held a sitting in the Joint Secretary's room and recommended that Mr. Muhammad Zaman should be promoted to the post of Deputy Director, Military Lands and Cantonments with effect from the 31st of ‑January 1953. The constitution of the promotion Board has got a very comical history, which exposes the administra tion to ridicule and mockery. It appears that at the time when the so‑called Promotion Board held its sitting and made certain recommendations it had no legal entity. It was on the 28th of October 1954, that the Government of Pakistan constituted Selection and Promotion Boards in ‑ respect of the Pakistan Military Lands and‑ Cantonments Ser vices, but gave it retrospective effect with effect from the 15th of May 1953. According to this order of the Government of Pakistan, which is numbered as 101/5/G/I/D. 5/48, three Boards were constituted, but the Board with which we are concerned in this case, is Board No. 1, which consists of Joint Secretary, Ministry of Defence, C.A.O./D.S. 3 and D.M.L. and C. as Members. The last mentioned was also to act as the Secretary of the Board. It transpired that the constitution of the Board at the time when it was made had also no legal justification, and, therefore, in order to give it that colour, the Pakistan Military Lands and Cantonments Services (Class I) Composition and Cadre Rules were framed by the Government of Pakistan in exercise of the powers conferred by section 241 of the Government of India Act, on the 15th of December 1955. These Rules were also given retropective effect, and under section 1, sub section (2) were deemed to have taken effect on and from the 1st day of January 1949. Under section 5, after the authoriz ed strength of the service was given, it was indicated that the appointments to the Administrative Posts would be made by selection, (seniority being considered only when the claims of two or more candidates are equal in merits) by Government on the recommendations of a Selection Board constituted in this behalf. These Rules are given in Exh. J. There is no mention of the Promotion Board in these Rules, but the learned Additional Advocate‑General contends that the "Selection Board" included "Promotion Board" and there is no other law under which the "Promotion Board" was constituted. Reverting .to the proceedings of the Promotion Board which are exhibited as Exh, L. of the respondents' exhibits, three names were placed before the Board for con sideration of their promotion to the post of the Deputy Director of Military Lands and Cantonments. These three names were Mr. Muhammad Zaman Khan, Mr. A. R. Qureshi, and Mr. Karamatullah. The petitioner's name was also considered by the Board, who at that time, was Executive Officer Campbellpur. While selecting Mr. Muhammad Zaman Khan, the following paragraph was written in the report.
"After full consideration, the Board decided to select Mr. Muhammad Zaman Khan for the appointment as D. D. M. L and C with effect from the 31st of January 1953, rendered vacant by the demise of the late Malik Sardar Khan. Mr. Muhammad Zaman Khan will be on probation for a period of one year. Mr. Muhammad Zaman Khan is the senior‑most officer and his appointment does not involve any supersession.
With regard to the petitioner, the following paragraph was added: ‑
"Item 3.‑To consider the case of Mr. Muhammad Abdullah Khan, Class I (Junior Scale) Officer, for promotion to Class I (Senior Scale) deferred for further consideration. Meanwhile it may be ascertained whether appointments in the Senior Scale of Class I are selection posts."
As a result of this recommendation, the Ministry of Defence, by Notification No. 907/53, published in the Gazette of Pakistan, dated 25th September of the year 1953, appointed Mr. Muhammad Zaman Khan as Deputy Director, Military Lands and Cantonments, on probation for a period of one year with effect from the 31st of January 1953. Mr. Muhammad Zaman Khan was confirmed on that post with effect from the same date by Ministry of Defence Notification No. 691/54, pub lished in the Gazette of Pakistan, dated the 30th of July 1954. It will be noticed from the recommendations of the Promotion Board that Muhammad Zaman Khan was appointed as a Deputy Director Military Lands and Cantonments not because on merits he was better qualified than Mr. M. A. Khan, but because he was senior to him. From the proceed ings of the Promotion Board it is also crystal clear that at that time, Mr. M. A. Khan was Executive Officer in Junior Scale. As has been admitted by the learned Additional Advocate‑General, the appointment of Muhammad Zaman Khan subsequently by the Ministry of Defence first on pro bation, and then permanently, was based entirely upon the recommendations of this Promotion Board. It is, therefore, to be seen, whether at the time when the Promotion Board recommended the name of Muhammad Zaman Khan, he was senior to the petitioner or not If not, it has been indirectly admitted by the Additional Advocate‑General, that the foundation of the recommendations of the Promotion Board and as a consequence thereof of the orders of the Ministry of Defence, appointing Mr. Muhammad Zaman Khan as Deputy Director of Military Lands and Cantonments would be completely destroyed.
Originally, for all the Cantonments in pre‑partitioned India, there was an Executive Officer's service, which con sisted of Grade I and Grade II Executive Officers. Side by side with that there was Lands Branch of the Cantonment Depart ment, which had come into existence with effect from the 1st of April 1937. The number of the appointments authorized by the Department was as under: ‑
(1) Director, Military Lands and Cantonments. 1
(2) Deputy Director, Military Lands and Canton ments. 3
(3) Deputy Assistant Director, Military Lands and Cantonments 4
(4) Military Estates Officers 16
(5) Leave reserve 5
The appointment to the Administrative Post in the De partment was to be made by selection. The instructions with regard to this Department are given in Army Instructions (1) No. 214 of 1937, re‑published as amended from time to time in Army Instruction (India) No. 32, dated the 18th of January 1947. According to Instruction No. 17, the appointment to the Administrative Post in this Department was to be made by selection. The Government of India in the pre‑partitioned days made a decision bearing No. 1647‑D‑10/47 dated the 25th of February, 1947, that the Lands Branch and the Cantonment Executive Officers Service shall constitute a new service under the Central Government from a date to be decided herein after. The re‑constituted Service was to be known as Military Lands and Cantonments Service. India was then parti tioned, and, on the 29th of November 1948, the Government of Pakistan, Ministry of Defence, by Office Memorandum No. 73/7/G/D‑5/48, sanctioned the creation of certain appoint ments with effect from the 15th of August 1947, or such date as they are filled in, until such time as the re‑organisation of the Cantonments Department, which was then under considera tion. Here we are concerned with six appointments only, which are as under: ‑
(a) One Director, Military Lands and Cantonments,
(b) One Deputy Director, Military Lands and Canton ments.
(c) One Officer on Special Duty, Military Lands and Cantonments, East Pakistan.
(d) One Deputy Director, lands and Cantonments.
(e) Six Military Estates Officers, and
(f) Twenty‑three Cantonment Executive Officers.
The Department was then re‑organised and the Governor-- General sanctioned, which sanction was conveyed by No. 89/2/G/D‑5/50, dated the 30th of August 1950, the following establishment of gazetted officers of the Military Lands and Cantonments Service Cantonments Department) with effect from the 15th of August 1947: ‑
(a) One Director, Military Lands and Cantonments, Ministry of Defence.
(b) One Deputy Director, Military Lands and Canton ments, Pakistan.
(c) Six Military Estates Officers, and
(d) Twenty‑one Cantonment Executive Officers includ ing two Leave reserves.
In 1952, section 12 of the Cantonments Act of 1924 was amended by the Cantonments (Second Amendment) Act, 1952. The amended subsection (1) of section 12, stood as under: ‑
"The Executive Officer of every Cantonment shall be appointed by the Central Government, or by such person as the Central Government may authorize in this behalf, from persons appointed under section 240 of the Govern ment of India Act, 1935, to the Pakistan Military Lands and Cantonments Service. In the rest of the services, where the year 1936 occurred it was to be substituted by the year 1952".
Before this amendment, on the 30th of October 1951, the Government of Pakistan, by No. 81/4/G/D.‑5/48, fixed the classification of the Military Lands and Cantonments Service with effect from the 1st of January 1949, as below :‑
(1) Director, Military Lands and Cantonments.
(2) Deputy Director, Military Lands and Cantonments.
(3) Military Estates Officers.
(4) Cantonment Executive Officers for Peshawar, Nowshera, Rawalpindi, and Lahore.
Cantonment Executive Officers for Multan, Sialkot, Risalpur, Cum‑Mardan, Abbottabad Cum‑Murree‑Gallis, Malim Cum‑Karachi‑Cum‑Manora, Haiderabad and Murree Hills.
Cantonment Executive Officers for Bannu, Campbellpur, D. I. Khan, Jhelum, Loralai and other Cantonments formed hereafter
On the 15th of December 1955, the Pakistan Lands and Cantonments Service Class I Composition and Cadre Rules, 1955, were framed, and were specifically directed to take effect on and from the 1st day of January, 1949. The services were to consist of the following posts:
(1) Director, Military Lands and Cantonments.
(2) Deputy Director, Military Lands and Cantonments.
(3) Military Estates Officers.
(4) Executive Officers of Cantonments of Peshawar, Nowshera, Rawalpindi and Lahore.
(5) Executive Officers of Cantonments other than those specified in No. 4 above.
From these Rules as well as from the Rules mentioned above, it would be clear that the Military Lands and Canton ments Service consists of altogether five posts. The Military Estates Officers and the Executive Officers of the Cantonments of Peshawar, Nowshera, Rawalpindi and Lahore were placed as Nos. 3 and 4 in Class I of the Senior Scale Posts. In the light of these Rules, then it has to be considered as to who on the date when the Promotion Board recommended Muhammad Zaman Khan as the senior‑most man for the post of Deputy Director; Military Lands and Cantonments Service, was in fact the senior‑most
The Government of Pakistan Ministry of Defence has placed upon the record the History of Services of the Officers serving in the Pakistan Military Lands and Cantonments Service. According to this booklet, Muhammad Abdullah Khan, the petitioner was appointed as a Member in Grade I of the Cantonment Executive Officers Service with effect from the , 8th of May, 1937, vide Defence Department Letter No. 411‑0/D, dated the 24th of May, 1937. He was confirmed as such from the same date by the letter of the same Depart ment No. 1183‑0/D‑4. dated the 14th of November 1938. He was promoted as officiating Grade I (Selection Grade) Exe cutive Officer with effect from the 12th of June 1947, vide the Defence Department Letter No. 101/4‑G/C and L/43, dated the 10th of July 1947. There were then certain allegations made against the petitioner, as a result whereof he was suspended on the 9th of December 1947, and dismissed with effect from the same date by Letter No. 270, dated the 8th of April 1949. The dismissal order, however, was subsequently cancelled by Letter No. 762/51, dated the 28th of September 1951. The same day, when the dismissal order was cancelled, he was again suspended from service with effect from the 9th of December 1947. He was reinstated in service by Notification No. 167/53, published in the Gazette of Pakistan, dated the 6th of February 1953. He was appointed as Class I Junior Grade Executive Officer with effect from the 15th of January 1953, and posted as Executive Officer, Campbellpur. Muhammad Zaman Khan, unlike the petitioner, joined the service as Grade II ' Cantonment and Executive Officer, and was confirmed as such on the 8th of May 1937. He was promoted to Selection Grade of Grade II on the 1st of November 1940, and to Grade I with effect from the 2nd of April 1942. He was confirmed as Grade I, (Selection Grade), with effect from the 15th of August 1947. He was appointed to officiate as Military Estates Officer in the Lands Branch of the Cantonment Department and was posted in the East Pakistan with effect from the 15th of August 1947, by the Government of Pakistan, Ministry of Defence Order, dated the 6th of September 1947. He was confirmed on this post with effect from the same date by the Government of Pakistan, Minis try of Defence's Order, dated the 30th of November 1950. He was shown in the booklet, which does not seem to have legal sanctity as confirmed as Grade I, Selection Grade, Executive Officer, with effect from the 15th of August 1947, by the Ministry of Defence Notification No. 255/51. This Notifica tion has not been placed upon the record, but it appears that it, was made some time in 1951, and lost its significance on account of the Notification, which followed it. In any case, this confirmation will not place Muhammad Zaman Khan above the petitioner, because Grade I Selection Grade, Executive Officer, is substantially different and junior to Class I (Senior Scale) Officer referred to above.
Comparing the different dates on which the petitioner and Mr. Muhammad Zaman Khan were promoted to different posts, it would appear that on the day when the Promotion Board made the recommendation, Muhammad Zaman Khan was definitely senior to the petitioner if for no other reason for the one that Muhammad Zaman Khan was in a post senior to one which Mr. M. A, Khan held. Subsequently, however, it appears that the Ministry of Defence realized certain mistakes, and as a result thereof, the previous Notifications with regard to the reinstatements and the postings of Mr. M. A. Khan, the petitioner, were corrected. The Corri genda No. 744/55 which appeared in the Gazette of Pakistan of September 2, of the year 1955. read as under :‑
"The following amendments are made to Min. of Def. Notifications No. 167/53, No. 168/53, No. 482/53, No. 77/54 and 59/55 relating to Mr. M. A. Khan's reinstatement, appointment, and confirmation in the Pakistan Mili tary Lands and Cantonments Service Class I (Senior Scale):‑
(ii) In Min. of Def. Notification No. 167/53.‑For the words and figures " as class I (Junior Scale) Executive Officer in the said service with effect from the 15th January 1953, from which date the orders of his suspension from service notified vide Min. of Def. Notification No. 763/51, dated the 28th September 1951, are withdrawn" substitute the following :
"In Class I (Senior Scale) with effect from the 1st January 1949. The orders of his suspension from service notified vide Min. of Def. Notification No. 763/51, dated the 28th September 1951 are withdrawn with effect from the 15th January 1953. The period of his suspension from 9th December 1947 to 14th January 1953, has been treated as duty for all purposes, e.g., leave, increments and pension, but his pay during the aforesaid period of suspension has been restricted under F. R. 54 (b) to the amount of subsis tence allowance already drawn by him."
(iii) In Min. of Def. Notification No. 168/53.‑At the end add the following :
"He has been granted joining time for the period from 15th January 1953 to 22nd January 1953 (both days inclusive)."
(iv) In Min. of Def. Notification No. 482/53.‑Below Serial No. (2) insert Serial No. (2)‑A, as under :
"(2)‑A Mr. M. A. Khan from 1st January 1949."
(v) In Min. of Def. Notification No. 77/54.‑For the words and figures "as Military Estates Officer, Peshawar Circle and promoted to officiate in Class I (Senior Scale) in an existing vacancy, with effect from the 2nd December 1953 (F. N.) " substitute the following :
"as Military Estates Officer, Peshawar Circle 2nd Decem ber 1953 (F. N.)"
(vi) In Min. of Def. Notification No. 59/55.‑(a) Below Serial No. (1) insert Serial No. (1)‑A, as under:
"(1)‑A. Mr. M. A. Khan; Class I (Senior Scale), 1st January 1949."
(b) Delete Serial No. (4) and connected entries and renumber remaining Serial numbers accordingly."
The effect of this corrigenda was that the petitioner became Class I (Senior Scale) Officer with effect from the 1st of January 1949. The date of his suspension which was from 9th December 1947 to 14th of January 1953, was treated as that on duty for all purposes, for example leave, increments and pension, although his pay during the aforesaid period of suspension was restricted under F. R. 54 (b) to the amount of Subsistence. Allowance already drawn by him. He was granted joining time from the 15th of January to the 22nd of January 1953. He was posted as Military Estate Officer, Peshawar, on the 2nd of December 1953. Muhammad Zaman Khan, on the other hand, was confirmed as Military Estates Officer, by the Ministry of Defence Notification No. 255/50 with effect from the 26th of February 1950. The post of the Military Estates Officer, as has been stated above, is in Class I (Senior Scale) post, and Muhammad Zaman Khan, having been appointed to this post after the petitioner was confirmed as Class I (Senior. Scale) post, became junior to him.
The learned counsel for the respondents argued that Exh. B‑1, the Government of Pakistan Ministry of Defence's Communication No. '89/1/G/D‑5/53, dated the 7th of January 1955, shows that not only Mr. M. A. Khan and Muhammad Zaman Khan, but Tai Muhammad Nasir, A. R. Qureshi, Karamatullah, Umar Faruq and Z. K. Mahmud were all confirmed in Class I (Senior Scale) on one day i.e., 1st January 1949. This would show that M. A. Khan is not senior to Muhammad Zaman Khan. Reference to Exh. B. 2, 101/12/G/3/D‑5/47, dated the 14th of June 1956, however, shows that originally in the communication referred to above, Mr. M. A. Khan's name was placed at No. 4 on the list. By letter (Exh. D. 2) it was ordered that he should be placed as 1‑A on the list. This clearly shows that Mr. M. A. Khan was placed Senior to Muhammad Zaman Khan. The docu mentary evidence placed on the record unmistakably shows that M. A. Khan, the petitioner, is senior to Muhammad Zaman Khan. Being senior, then it was his right if the appointment was to be made on the basis of seniority alone, to be appointed the Deputy Director of Lands and Canton ments in preference to Muhammad Zaman Khan. He was admittedly senior to A. R. Qureshi, and. therefore, if he had been appointed as D. D. M. L. and C. at the time when Muhammad Zaman Khan was appointed so, the question of his appointment as such when A. R. Qureshi was appointed, would not arise.
The learned counsel then invited our attention to the different representations made by the petitioner and the reply given to him, particularly Communication No. 101/1/12/ G/3/D‑5/47, Dated the 26th of January 1954, and I01/G/ D‑5/56., dated the 8th of February 1956. In both these letters, M. A. Khan petitioner was informed that his case was considered by the Board for the appointment as D.D.M.L. and C., and it was found that Muhammad Zaman Khan was more suitable than him for the same appointment This obviously seems to be wrong, because as is made clear in a' 81/1/G/D‑5/50, dated the 31st August 1953, Muhammad Zaman Khan's appointment was made as a result of the recommendation made by the Board and the recommenda tion of the Board was based purely on the fact that Muhammad Zaman Khan was senior to every one else. The question of suitability of one, and for that reason, to give him preference over the other, did not at all arise. We seem to be however completely helpless in the matter. All that we can do is that we can give a declaration to the petitioner that at the time Muhammad Zaman Khan was appointed the I Deputy Director, Military Lands and Cantonments, the petitioner was senior to him, and, therefore, should have been appointed as such. But then the appointment to this post under the Pakistan Military Lands and Cantonment Services, (Class I) Composition and Cadre Rules, 1955, has got to be made by selection and the seniority can only be considered when the claims of two or more candidates are equal in merits. If, we appoint the petitioner as a Deputy Director of Military Lands and Cantonments, then we would be usurping the functions of the Appointing Authority, which we have no business to do. We, however, wish to observe that if the petitioner is reinstated, then the Government should re‑consider the question of the appointment of Muhammad Zaman Khan as D. D. M. L. and C., in view of the changed circumstances, viz., subsequent to the appoint ment of Muhammad Zaman Khan, the petitioner has been made senior to him. Even if the petitioner is compelled to retire still we think the Government should consider this fact, because that is bound to effect his pension.
Before I conclude this judgment, I must with disgust and disappointment refer to a document, which I should have treated with the contempt that it deserved if the learned Additional Advocate‑General had not attached undue impor tance to it. This document is the Government of Pakistan, Ministry of Defence Communication No. 89/2/G/D‑5/50, dated Rawalpindi the 19th of June 1956. By this document Muhammad Zaman Khan's confirmation as the Military Estate Officer was pre‑dated. The new date was 15th of August 1947. I have no doubt in my mind that this com munication which has been issued after the date of the institution of the writ petition (28th February 1956) is a clumsy, but a crafty attempt on the part of the authorities concerned to give a legal appearance to the wrong done to the petitioner by appointing Muhammad Zaman Khan as Deputy Director, Military Lands and Cantonments on the ground of seniority when on that day he did not enjoy that position. I am afraid I cannot be pursuaded to agree to the Government perpetuating the wrong done to a certain person by issuing certain orders subsequent to the date when the v person wronged seeks redress from the Court of Law under Article 170 of the Constitution of the Islamic Republic of Pakistan. It has happened that after a Court of Law has held that a certain wrong has been done to a certain individual that wrong is not undone, but, on the other hand, is legalized. This attitude of the Government which has the effect of undermining its own as well as the Court's prestige must be condemned by all persons who value the fundamental rights granted to an individual by the newly framed Constitution of the Islamic Republic of Pakistan.
The result of the above discussion is, that while we dismiss the petition of M. A. Khan, we give a verdict in his favour that at the time when Muhammad Zaman Khan was appointed as D. D. M. L. and C., he was senior to him. There will be no order as to costs in this petition.
HABIBULLAH KHAN, J.‑I agree.
A. H
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