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Civil Petition No. K‑120 of 1981, decided on 19th December, 1981.

(Against the judgment and order dated 3‑5‑1981 of the Sind Services Tribunal in Appeal No. 12 of 1980).

‑ Art. 212(3)‑Leave to appeal against order of Service Appellate Tribunal‑Plea already taken before Tribunal and in constitution petition before High Court‑Held, petitioner cannot turn round and take a contrary plea before Supreme Court.‑[Pakistan through Secretary, Ministry of Finance v. Muhammad Himayatullah Faruki P L D 1969 S C 407 held‑not applicable]‑[Civil service].

Pakistan through Secretary, Ministry of Finance v. Muhammad Himayat ullah Faruki P L D 1969 S C 407 held not applicable.

(b) West Pakistan Administration (Merger of the Federal Territory of Karachi) Order [P. O. 9 of 1961]‑

Art. 8(2)‑Protection contained in Art. 8(2)‑Held, restricted only to quantum of pay, pension and leave‑No protection available in respect of designation of a post.‑[Civil service].

Fazle Ghani Khan, Advocate, Supreme Court with Noor Ahmad Noori, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing : 19th December, 1981.

Petitioner Syed Shahenshah Hussain Rizvi, a Matri culate and temporarily promoted as U. D. C. on 3‑2‑1948 in the Taxation Branch of the D. C's. Office, Karachi, was holding the post of inspector in that office in the same grade as that of a U. D. C. i.e. Rs. 85‑225 in 1961. Upon the promulgation of President's Order No. 9 of 1961 on 29‑6‑1961 the Federal Territory of Karachi was merged into the Province of West Pakistan with effect from 1‑7‑1961. Under Article 8 of this Order all persons, serving immediately before the merger, were to be deemed to be persons serving under the Government of West Pakistan and the Governor of the Province was empowered "notwithstanding anything to the contrary contained in any law for the time being in force or in the conditions of service" of such persons to determine the terms and conditions of service to be applicable to them. Protection was, however, given to the extent that "the terms and conditions of service relating to pay, pension and leave of any such person shall not be varied to his disadvantage." On 6‑4‑1962, the Governor of West Pakistan made an order directing the establishment of the Headquarter Office; Regional Offices and other offices of the Excise & Taxation Department and creating posts in that Department. The posts, which were shown in the District Establishment, Karachi included 32 posts (9 perma nent and 23 temporary) of Inspectors but there was no mention of any post of Sub‑Inspector. In an office order dated 4‑10‑1961 of the D. C's. Office, Karachi, the petitioner had been shown to be an Inspector of Taxes in the scale Rs. 85‑225. On 8‑7‑1964 the Director, Excise & Taxation, Karachi issued an order to the effect that the peti tioner and some other U. D. Cs. working in the Entertainment Wing of the D. C's. Office, Karachi on being taken over by the Excise & Taxation Department, were appointed as Taxation Sub‑Inspectors w.e.f. 5‑7‑1962. The petitioner and others appealed before the Service Appellate Tribunal. Karachi where the contention put forth by all of them was that the Governor of West Pakistan had not yet made any order in pursuance of the provisions of Article 8(2) of President's Order No. 9 of 1961. This view prevailed and the Tribunal, by its order dated 20‑1‑1973, directed the Department to move the Governor, Sind, to pass orders as required by that article. As there was some delay in implementing the direction, the petitioner moved the High Court in Constitutional Petition No. 1586 of 1974 which was disposed of on 24‑2‑1978 with the observation that the petitioner was entitled only to that much relief that fresh order in terms of President's Order No. 9 of 1961 would be obtained inviting the attention of the Governor specifically to the decision given by the Appel late Tribunal. The Governor's order was accordingly obtained and issued on 13‑10‑1979 whereby 32 posts of Inspectors at Karachi existing at the time of its merger into West Pakistan were included in the cadre of Sub‑Inspectors of the Excise & Taxation Department in the pay scales allowed to officials of the same designation in West Pakistan. Not satisfied, the petitioner moved an appeal before the Sind Service. Tri bunal but the same was dismissed on 3‑5‑1981. Against this order he now seeks leave to appeal under Article 212(3) of the Constitution.

2. The contention of Mr. Fazle Ghani, learned counsel for the peti tioner is that the Governor had already made an order dated 6‑4‑1962 creating posts of Inspectors against which the petitioner was worbng and as such he could not make another order subsequently, reverting the petitioner to the post of Sub‑Inspector. In this connection he referred to Pakistan, through the Secretary, Ministry of Finance v. Muhammad Himayatullah Faruki (PLD 1969 S C 407). The contention apparently proceeds from an assumption that the exercise of his powers under Article 8(2) of President's Order No. 9 of 1961 but such assumption is neither warranted by the preamble of that Order nor has such been the case of the petitioner before the Tribunal in the earlier appeal. As already mentioned and as the Tribunal had duly noted that the petitioner's plea there had been that no Orders under the said President's Order No. 9 of 1961 had been made by the Governor. It was in fact upon this plea and upon the finding of fact that the petitioner had continued to hold the same post as he had held before the merge until his appointment as Sub‑Inspectors by order dated 9‑7‑1964, that the direction had been given to the Department to seek appropriate order under Article 8 of the aforesaid President's Order. similar plea ha apparently been taken in the Constitutional Petition No. 1586 of 1974 where, too, the petitioner had been held entitled to relief only to that extent. The petitioner therefore, cannot now turn round to say that the Governor had already made an order in 1962 under the said Presi dent's Order. Even otherwise, no protection had been given by Article 8 of the President's Order in so far as the designation of a post is concerned. The protection contained in Article 8(2) is restricted only to the quantum of pay, pension and leave which the Governor was not empowered to vary to the disadvantage of the servant. P L D 1969 S C 407 whereby it was held that once an order had been made by an authority, the sum could not be withdrawn or rescinded if it had taken legal effect and created certain rights in favour of an individual, is obviously not attracted to the facts of the present case.

3. We thus find no merit in this appeal and accordingly refuse to grant leave.

Leave refused.

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