Find a Lawyer

Writ Petition No. 651 of 1959, decided on 18th October 1962.

S. 21‑Order becoming operative carried into effect‑Cannot be withdrawn or cancelled by subsequent Notification‑West Pakistan General Clauses Act (VI of 1956), S. 20.

Shahbaz v. The Crown P L D 1956 F C 46 rel.

Art. 2 (4) and Constitution of Pakistan (1962), Arts. 98 & 250‑Writ petition filed under Laws (Continuance in Force) Order, 1958 Proceedings not affected by coming into force of Constitution and can be con tinued under Laws (Continuance in Force) Order, 1958.

---

---Leave of Government servant sanctioned by Governor by notification in official Gazette‑Leave order having come into operation carried into effect‑Subsequent notification cancelling leave granted‑Mandamus issued against Government Issuance of writ not a direction to Government to pay arrears of salary: [Federation of Pakistan v. Miraj Din P L D 1959 S C (Pak.) 147 held not applicable].

Mian Nisar Ahmad for Petitioner.

Muhammad Tufail for A. G. for Respondent.

Date of hearing : 18th October 1962.

‑Petitioner was a Professor of Pharmacology in the King Edward Medical College, Lahore. He was to superannuate on the 13th of September 1957, forenoon. On his query the Accountant‑General by a letter dated the 1st of August 1957, informed him that he had 43 days' leave to his credit. Peti tioner applied to the Government, through proper channel, on the 8th of August for this leave to be granted to him with effect from the 16th of August 1957. The acting Principal of the King Edward Medical College by his letter, dated the 10th of August 1957, addressed to the Director, Health Services, West Pakistan, Lahore, remarked that the petitioner should not be granted leave as regular revision lectures, practical and territorial classes were being carried on and no person could take his classes as the Assistant Professor was on vacation. The Director of Health Services, by his letter dated the 7th of September 1957, categoric ally stated that the petitioner could not be allowed to go on leave and he could be allowed to do so only with effect from the date the Assistant Professor reported back for duty. He directed the recalling of the Assistant Professor from vacation immediately. The Assistant Professor did not come back and the petitioner retired on the 13th of September 1957. On the 12th of September 1957, a day earlier than his retirement, he applied to the Director of Health Services that he should be granted his earned leave to be enjoyed by him after his retirement as provided under rule . 8.22 C. S. R., Volume I, Part I. His case was recommended by the Principal by endorsement dated the 12th of September 1957. The Governor of West Pakistan sanctioned under rule 8. 22 of the aforesaid rules earned leave for 28 days with effect from the 13th of September, 1957 (forenoon) in favour of the petitioner. This order was duly notified in the West Pakistan Government Gazette dated the 27th of September 1957. The order, therefore, became operative from the 13th of September 1957, and the petitioner became entitled to enjoy his leave as from that date.

2. The Government again by its letter No. S. O. 1‑12/21‑57, elated the 7th of August 1958, cancelled the leave granted to the petitioner vide Notification dated the 27th of September 1957, referred to above. The petitioner has challenged this order through this writ petition and prayed that a writ of mandamus, or any other writ, be issued against the respondent directing it to honour its Notification dated the 27th of September 1957.

3. Respondent has contested this case and it has been urged on behalf of the Government that‑

(a) writ cannot be issued against the Government as Article 98 of the Constitution of Republic of Pakistan is a bar to the issuance of any such writ ;

(b) reliance was also placed on rule 8.22 C. S. R. Volume I, Part, I, with a particular emphasis on sub‑note 3 of note 6; appended to the said rule, and it was urged that the grant of such lave was within the discretion of the Government and the Government has refused the same by the subsequent order dated the 1st of June 1959 ;

(c) that though the Governor granted the leave to the petitioner after the date of retirement he could cancel it by virtue of the provisions contained in section 21 of the General- Clauses Act ; and ,

(d) that the issuance of this writ will tantamount to a direction to the Government to pay‑ the arrears of salary to the petitioner and, as such, the petition merits to be dismissed.

4. We have made it clear to the learned counsel for the respondent that there is no force in his contention that the Government could, in the exercise of the powers contained in section 21 of the General Clauses Act, cancel the order which it had passed and had been notified in the Gazette of the 27th of September 1957. The order, in our opinion, had already come into operation and as laid down in Shahbaz v. The Crown (P L D 1956 F C 46), the power under section 21 could be exercised only if the order, which is said to be cancelled, had not been carried into effect Since the order became operative with effect from the 13th of September 1957 the order could not be withdrawn or cancelled subsequently on the Ist of June 1959, in the exercise of the powers under section 21 of the General Clauses Act.

5. Article 98 of the Constitution of the Republic of Pakistan is no bar to the present proceedings. A reference to Article 250 of the Constitution will show that the laws already repealed do not affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, for feature or punishment, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the law had not been repealed. This writ petition was filed under Article 2 (4) of the Laws (Continuance in Force) Order, 1958, for the enforcement of the right which the petitioner claimed to have already acquired. The Constitution, therefore, does no affect the present proceeding and it can be continued under the Laws (Continuance in Force) Order, 1958. The contention of the learned counsel for the respondent that the petitioner had not acquired any right is without any basis. The Governor had by his order, which was published in the Gazette dated the 27th of September 1957, granted leave to the petitioner to be availed of by him after his date of retirement. It gave the petitioner a definite right under the said rule.

6. It is admitted by the respondent that the petitioner applied for his leave on the 8th of August with effect from the 15th of August 1957. It is also not denied that he was entitled to this leave which he had earned. The leave was refused to him by the Director of Health Services and he, in fact, could not utilise it till the age of superannuation. The contention of the learned counsel for the respondent that there was no refusal by the Governor has no force because, firstly, the Director of Health Services was also acting for and on behalf of the Governor for all practical purposes and, secondly, this refusal by him must have been considered by the Governor because he could not have exercised his power under rule 8.22 unless the petitioner bad been refused the leave earlier. He considered the refusal by the Director to be the refusal by the Government and, at any rate, the same stood ratified by the order of the Governor. We are, therefore, unable to agree with the learned counsel for the respondent that the Governor in this case could not grant him the leave as, according to them, there was no refusal within the meaning of rule 8. 22.

7. Sub‑note 3 of note 6 appended to rule 8.22 was relied upon with a view to urging that the Government had full discre tion to grant or refuse leave and by all means could do so when the grant might cause some administrative inconvenience. The concluding portion of this sub‑note reads as under :‑

"When leave has been refused on any of the above conditions it should be clearly indicated to the applicant that leave under this rule will not be granted."

The petitioner was refused leave, but he had not been informed that the refusal was on one of these grounds, and he would not on his retirement be granted leave under rule 8.22. Even if the leave had been refused and the reason for the refusal had been given as administrative inconvenience', it would not have debarred the petitioner to ask for leave under rule 8.22 because, in our opinion, such a ground would have been in conflict with the rule itself which says that if the refusal for leave was on account of the requirement of the public service, the Govern ment could grant such leave even after the date of retirement. In a case where the inconvenience is to be caused to the Government by the leave it clearly implies that the public service requires that he should continue. The facts of the present case, however, are different and as stated above the refusal was not on account of any administrative inconvenience. Petitioner, therefore, was rightly granted the leave by the Governor. The Governor could exercise the discretion under rule 8.22, and once he had exercised it there remained no power in him to withdraw the same, especi ally when by virture of such an exercise of discretion, a right was created in favour of the petitioner.

8. We also do not agree with the contention of the res pondent that the issuance of this writ will tantamount to giving a relief about the arrears of pay. The case of Federation of, Pakistan v. Miraj Din (P L D 1959 S C (Pak.) 147) is not attracted to the facts of this case. We, therefore, accept this writ petition and issue a writ of mandamus that the respondent should implement the decision of the Government notified in the Government Gazette dated the 27th of September 1957. The respondent shall pay the costs of this petition.

K. B. A./A. H: Petition accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.