P L D 1959 (W (PLP)

ABDUL HAMID, J.‑This is a petition for a writ of mandamus against the Central Government and the Engineer‑in‑Chief directing them to grant to the petitioner six years seniority which was assured to him in their order dated 30‑8‑1948.

2. The petitioner Mr. Abdul Manan Khalifa was Assistant Engineer in the Public Works Department of pre-partition State of Jammu and Kashmir. He was appointed to that service on 12‑11‑1942 and remained in it till 6‑8‑1948. Sometime in 1948 he migrated to Pakistan and in answer to a notice issued by the Pakistan Public Service Commission he applied for appointment as Assistant Engineer in the Military Engineering Service of Pakistan. He was selected by the Public Service Commission for appointment as Assistant Engineer (Building and Roads) on one year's probation. The terms of his appointment were conveyed to him in the Engineers‑in‑Chief letter of 30‑8‑1948 (Annexure' C') In para 9 of that letter it was said :‑ " You have been given increments for six years' previous service. This previous service will be taken for fixation of seniority for promotion, but will not count towards pensionable service." After the lapse of the probationary period he was confirmed as Assistant Engineer from 16‑9‑1949 by order dated 9‑12‑1949 published in the Government Gazette (Annexure 'H'). His six years previous service in the State of Jammu and Kashmir was counted towards increments and promotion and in evidence thereof he was assigned 4th place in the list of the Seniority published with the Ministry of Defence letter dated 24‑9‑1948 (Annexure `F').

3. On 5‑5‑1950, an order was issued by the Engineer‑in‑Chief (Annexure `L') that under the instructions received from the Cabinet Secretariat Seniority of the officers in the Military Engineering Service will count from the date of their first appointment notified in the Gazette. According to this decision his seniority fell to be counted from 16‑9‑1948 and not from 16‑9‑1942 as originally assured. That decision was later on confirmed by the publication of the seniority list where Mr. Abdul Manan Khalifa was assigned 36th place on the list.

4. It appears that his confirmation was also later on cancelled by a letter of 19‑8‑1955 (Annexure `I'), but it was restored to him by the letter of 16‑5‑1957. His seniority is being now counted from 16‑9‑1948, but his claim is that on the assurance held out to him that his six years service in the State of Jammu and Kashmir will count towards his promotion his seniority should be counted from 16‑9‑1942 or from 12‑11‑1942, when he first joined the State service.

5. His grievance is that the withdrawal of six years seniority conceded to him in the letter of 30‑8‑1948 has inflicted a great loss upon him because on account of that about 18 persons who were appointed to this Service between the years 1946 and 1948 have been given promotion over his head. He has not been able to show whether he has suffered any loss by anybody's supercession on account of the fact that his confirmation was withdrawn by the letter of 19‑8‑1955 and was restored to him by the letter of 16‑5‑1957. He has prayed for a direction that the assurance held out to him in the letter of 30th August, 1948 that his six years previous service in the State of Jammu and Kashmir will count towards increments and promotion should be honoured and promotion due to him on that footing should be granted to him.

6. It is obvious that the foundation of the petitioner's claim lies in the assurance given to him in the Engineer‑in‑Chief letter of 30‑8‑1948 and the question for decision is whether a writ of mandamus can be issued on the basis of that assurance. If this assurance had any foundation in law it would have been a plain sailing for the petitioner. But his learned counsel was unable to show that this assurance was founded on any provision of law and it has been left to us to assess its value.

7. Assurances in law belong to the class of guarantees and contracts, and according to a well‑settled rule of law a writ of mandamus cannot be issued to enforce a contract. Mandamus lies only when the applicant is able to show that there resides in him a statutory right for the performance of which there is a statutory obligation upon the respondent. Halsbury at pages 104 and 105 of Volume 11 says :‑ " In order, therefore, that a mandamus may issue to compel something to be done under a statute, it must be shown that the statute imposes a legal duty . . . . . . . . . It is only in respect of a legal right that mandamus will lie. The Court will not, therefore, enforce an equitable right by this remedy. The legal right to enforce the performance of a duty must be in the applicant himself. The court will, therefore, only enforce the performance of statutory duties by public bodies, on the application of a person who can show that he has himself a legal right to insist on such performance." On Page 110, para 205 of the said Volume he says:- " It (mandamus) will not lie for the purpose of enforcing a duty arising merely from a personal contract." That is how mandamus has been viewed in relation to contract in the country from which the law of mandamus has been borrowed. In one of the countries where it has been imported i.e., in India that view has been mentioned. He has been held in a large number of reported cases of India's High Courts that rights arising out of contracts are not enforcible by writ of mandamus. Reference to a few of them will be made in this judgment.

8. In A I R 1957 Hyderabad page 19, the learned Judges expressing their views on this subject said :‑ " There can be no doubt about the fact that where the relationship between the petitioner on the one hand and the Government on the other is one based on contract, no writ of mandamus would be issued to compel the Government to carry out the terms of the contract, for it is essential for a writ of mandamus that there ought to be a statutory duty upon the authority against whom the writ of mandamus is sought, and if such authority fails to carry out the statutory duty then the Court will issue a writ of mandamus. In the case in question there was no statutory duty imposed upon the Government for the payment of the annuity. So no question of the issue of a writ of mandamus arises." There are observations to the above effect in A I R 1957 Madras page 309, A I R 1957 Allahabad page 234 and A I R 1954 Madras page 549.

9. In another case, A I R 1953 Orisa page 77, the learned Judge said:- " Counsel for the petitioner urged that he had acquired a contractual right under the provision of license granted to him. If that is so, it is well‑settled that a right that had accrued under the contract cannot be the subject of mandamus." In another case reported as A I R 1952 Calcutta page 496, it was said ; " It is an elementary proposition that a mandamus does not lie to enforce or restrain the performance of Contractual obligations." Observations to the same effect will be found in A I R 1954 Madhya Bharat, page 54 A I R 1952 Calcutta page 315 ; A I R 1954 Orisa page 74 ; and A I R 1954 Rajisthan page 49.

10. The learned counsel for the petitioner relying on Khondkar Ali Afzal v. Pakistan (P L D 1959 Kar. 105) vehemently contended that a mandamus can lie even if the right flows from a contract. We have studied that ruling and we are of opinion that the question which was before the learned Judges in that case is distinguishable from one which has fallen to us for decision. On the view of law as understood in England from where the law of mandamus has been imported, the writ of mandamus cannot be issued to enforce contractual or equitable obligations. How can contract equity form the foundation of a writ of mandamus when lay, plainly says that it is intended only to enforce the performance of' statutory rights by those who lie under statutory Obligations for their performance. It can also be issued to redress infractions of law. It operates only within the realm of statute. Contracts and is equity are not within its bounds.

11. As the foundations of the petitioner's claim lies in an assurance which is not based on any provision of law a writ of mandamus cannot be issued. This petition is rejected. K. B. A. Petition rejected.