P L D 1955 Lahore 160 (PLP)

KAIKAUS, J.‑Abbas Ahmad appellant was appointed a Deputy Rehabilitation Officer on the 16th of June, 1949. He was served with a notice on the 18th of September, 1950, that he was discharged with effect from the 26th September, 1950, and was in fact discharged on that date. On the 2nd of October, 1951, he filed a suit against the Punjab Province for a decree for Rs. 528‑4 made up as follows: Rs. 294‑11 were due to him as salary for 26 days of the month of September which had not yet been paid; Rs. 340 were due to him as salary for one month in lieu of notice to which he said he was entitled; allowing a deduction of Rs. 106‑7 for absence without leave, the claim came to Rs. 528‑

4. The trial Court decreed the suit for Rs. 437‑9, holding that the appellant was entitled to one month's notice from 18th September, 1950. On appeal by the Punjab Province the learned District Judge agreed with the trial Court that in fact the appellant was entitled to Rs. 437‑9 because he was entitled to one month's notice commencing on the 18th of September, 1950. The learned District judge, however, dismissed the suit on the ground that a suit did not lie against the Government for arrears of salary. Abbas Ahmad has filed this second‑appeal. Two points arise for decision. The first is whether the plaintiff is in fact entitled to one month's notice and, therefore, the finding of the lower Courts that he is entitled to Rs. 437‑9 is correct. The appellant relies in this connection on rule 2.4 .(b) of Volume II of Civil Services Rules which runs thus :‑ "2.4. In the following cases no claim to pension is admissible :‑ (a) . . . . (b) When a person is employed temporarily on monthly wages without specified limit of time or duty ; but a month's notice of discharge should be given to such a person and his wages must be paid for any period by which such notice falls short of a month. (c) ...." It is admitted in the written statement that the plaintiff appellant was employed without any specified limit of time: It should be clear, therefore, that this rule is applicable and in fact this was conceded during argument by the learned Assistant Advocate‑General. The real point that requires determination in this case is whether a suit by a Government servant in respect of arrears of salary lies at all. Reliance has been placed on behalf of the defendant on The High Commissioner for India and another v.

1. M. Lall ((1920) 3 K 5 663) where a claim was made before their Lordships of the Privy Council by I. M. Lall for damages or for arrears of pay from the date of the order of his dismissal to the date of the suit. Their Lordships said it was unnecessary to cite authorities to establish that no action in tort could lie against Crown and, therefore, any right of action must either be based on contract or be conferred by statute. Their Lordships then, instead of discussing the matter themselves, said that they would only quote from the judgment of Lord Blackburn in 1926 S. C.

842. Here is the quotation on which their Lordships relied :‑ "These authorities deal only with the power of the Crown to dismiss a public servant, but they appear to me tote establish conclusively certain important points. The first is that the terms of service of a public servant are subject to certain qualifications dictated by public policy, no matter to what service the servant may belong, whether it be naval, military or civil, and no matter what position he holds in the service, whether exalted or humble. It is enough that the servant is a public servant, and that public policy, no matter on what ground it is based, demands the qualification. The next is that these qualifications are to be implied in the engagement of a public servant, no matter whether they have been referred to in the engagement or not. If these conclusions are justified by the authorities to which I have referred, then it would seem to follow that the rule based on public policy which has been enforced against military servants of the Crown, and which prevents such servants suing the Crown for their pay on the assumption that their only claim is on the bounty of the Crown and not for a contractual debt, must equally apply to every public servant : see Leaman v. King ((1920) 3 K 5 663), Smith v. Lord Advocate (25 R 112) and other cases referred to. It also follows that this qualification must be read as an implied condition into every contract between the Crown and a public servant, with the effect that, in terms of their contract, they have no right to their remuneration which can be enforced in a Civil Court of Justice, and that their only remedy under their contract lies in an appeal of an official or political kind." As stated above, their Lordships held that the claim for salary must be based either on statute or a contract. Learned counsel for the appellant urges that in this case there is a statutory provision and he refers to rule 2.4, which I have already quoted, in which it is stated that "his wages must be paid for any period by which such notice falls short of a month." Learned counsel contends that this rule makes it incumbent on the Government to pay and this rule has the force of a statute for the Civil Services Rules are rules framed under section 241 of the Government of India Act. The question for consideration is this if the Government makes a provision in the Civil Services Rules with respect to the amount of salary to be paid to a Government servant, does it amount to a statutory provision obliging the Govern ment to pay ? ' It should be understood that apart from the rules, in accordance with the judgment of their Lordships of the Privy Council, there was no obligation on the Government to pay any salary. Was it the intention of these rules that a right be conferred on the public servant to sue for his salary ? I am of the opinion that such an inference is wholly unjustified. The Government does pay its servants. It has got to fig their salaries and it must issue directions to the Accountant General's department as to payment of salaries. If no salaries be fixed in the rules and no directions be given to the Accountant‑General, how is the payment of salary ever to be made ? Even if the Government has no intention at all of creating against itself the liability of being sued it will have to frame rules about the payment of salaries. If I were to accept the argument of learned counsel for the appellant that rule 2.4 creates a statutory liability, I would have to accept that every Government servant is entitled to sue the Government for arrears of his salary, for there exist in Volume I of Civil Services Rules as there ought to exist, a large number of rules making provision as to what salary is to be paid to Government servants. Chapter IV of this Volume deals with salaries. I will just refer to a few of the provisions in this Chapter to illustrate the kinds of directions that have been given. At page 37, under rule 4.3 it is provided :‑ (1) Civilian Government servants who belong to the army in Pakistan Reserve of Officers will, when called up for training, draw the following rates of civil pay, in addition to their military pay and allowances for the period of actual training :‑ (i) When proceeding to carry out their training from their duty posts, the pay and allowances they would have drawn in their civil posts but for the training for the whole period of absence on such training inclusive of the time spent in transit to and fro ; (ii) When proceeding to carry out their training while on leave in Pakistan or abroad the civil leave salary and allowances which they would have drawn but for the training ; and (iii) When proceeding to carry out the training on the expiry of leave out of Pakistan taken from their civil posts but before rejoining their civil posts for duty‑ (a) joining time civil pay from the date of disembarkation in Pakistan to the date preceding that on which their military training commences, and (b) full civil pay during the period of actual training and the period spent in journeying to the places of their civil posts. At page 38 under rule 4.4 referring to the fixation of the initial pay of Government servants appointed to new posts it is provided that "When appointment to the new post is made on his own request under rule 3.19 (a) and the maximum pay in the time‑scale of the post is less than his substantive pay in respect of the old post, he will draw that maximum as initial pay." It is not necessary, to multiply instances. There are a large number of rules giving directions as to salary. In fact all salaries are paid in accordance with the rules. Learned counsel says in rule 2.4 the word "must" is used whereas in the rules to which I am referring the words "will draw" are used. I do not think that makes any difference. I may point out that Civil Services Rules which make provision as to the drawing of a salary did apply to Mr. I. M. Lall as well who was the public servant concerned in A I R 1948 P C 121= (P L D 1948 P C 150 ; yet his claim was rejected. It should be quite clear that from the mere fact that rules provide for the payment of salaries it cannot be inferred that there was any intention to grant the public servant a right P to sue for his salary and without such an intention it cannot be said that there is a statutory provision entitling him to his salary. I may also point out an absurdity which the acceptance of the contention of learned counsel for the appellant would lead to. Under rule 2.4 it is only in respect of that period by which the notice falls short of a month that the public servant is to be paid his salary. The result would be that if a notice for one month was given, but the salary is not paid, there would, as learned counsel admits, be no right to recover salary under rule 2.4. In the present case the right to such a salary would accrue in respect of 22 days by which the notice falls short of one month. Such an interpretation of the rule is hardly tenable. Learned counsel for the appellant neat contends that I should not follow the judgment in The High Com missioner for India and another v. I. M. Lall because in a later judgment their Lordships of the Privy Council abandoned the position they had taken up in The High Commissioner for India and another v. I. M. Lall and there is a judgment of the Federal Court of India which supports the appellant. The later Privy Council case to which learned counsel refers is North‑West Frontier Province v. Suraj Narain Anand (P L D 1949 P C 1). I find that this case does not at all support the contention that their Lordships of the Privy Council had discarded the position which they had taken up in The High Commissioner for India and another v.

1. M. Lall. In this case a suit had been filed for a declaration that the dismissal was void and inoperative as well as for arrears of salary. The suit was dismissed by the trial Court on the preliminary ol3jection that it did not lie and this decision was affirmed on appeal by the Judicial Commissioner of Peshawar. On appeal to the Federal Court of India under section 205 of the Government of India Act the Federal Court set aside the decree and the judgment of the Judicial Commissioner holding that the plaintiff was entitled to a declaration of the invalidity of the dismissal and remanded the case for trial as to whether the plaintiff was entitled to arrears of salary. The Government appealed against this decision to the Privy Council. The point involved was whether the officer dismissing the plaintiff was empowered to dismiss him. Their Lordships of the Privy Council were inclined to dismiss the appeal because under the rules brought to their Lordships' notice there was a power of dismissal in the officer concerned. Before they gave judgment, however, it was brought to their Lordships' notice that those rules had come into operation after the dismissal of the plaintiff. Their Lordships then reheard the case and gave judgment in favour of the plaintiff. They served notice on the Govern ment for the rehearing but it did not appear. After the remand of the case, the Judicial Commissioner had passed a decree in respect of arrears of salary in favour of the plaintiff. At the original hearing of the appeal before their Lordships, the Government had challenged even the decree of the Judicial Commissioner. Their Lordships did not accept that that decree was open to challenge and they called upon the Government, when they intended to change their judgment, to argue the point, but the Government as already stated did not appear. As the Government did not appear, the result was, as appointed out by their Lordships, that a decree for the declaration stood, and the point whether the Government could challenge the latter decree of the Judicial Commissioner in that appeal was also deemed to be decided against the Government. From this learned counsel wants to argue that their Lordships of the Privy Council had discarded their position in I. M. Lall's case. I do not see how it is possible to put forward this contention in view of the fact that their Lordships were not even going into the merits of the claim with respect to arrears of salary. The point which their Lordships had to consider was whether the decree of the judicial Commissioner was open to challenge at all in that appeal. It seems so me that that appeal was confined to the correctness of the order of remand and the Government would have had to file another appeal against the decree of the Judicial Commissioner. From the "mere fact that their Lordships of the Privy Council allowed the order of remand to stand, no inference in favour of the plaintiff‑appellant can be drawn. The Federal Court judgment to which I have already referred is The Punjab Province v. Tara Chand (AIR 1947 F C 23). In that case no doubt the learned judges of the Federal Court held that the prerogative of the Crown which prevented the public servants from filing any suit against the Crown for arrears of their salary was not in force in India at all. Their Lordships relied on section 60 of the C. P. C. which enables the salary of a Government servant to be attached. Their Lordships referred also to the words of Order XXI rule 485, which in their apparent sense would mean that there is a liability on Government to make a payment of the salary of Government servants which is attached. No doubt it can be argued that the fact that the salary can be attached implies that the salary is the right of the Government servants and. not a mere bounty of the Crown. At the same time a good deal of argument can be put forward against the view that the Legislature by enacting section 60 or Order XXI, rule 48 intended to change the law in respect of the liability of the Government for the salary of its servants. Far‑reaching changes in the law cannot be effected by indirect means. The Code of Civil Procedure is an enactment relating to procedure and its proper province is only to regulate the procedure of Courts and not to alter the substantive law. Assuming that the C. P. C. may have made such an alteration, if the law at the time of its enactment was that the Govern ment was not liable and the Legislature intended to create a new liability, we would expect it to be done in a conspicuous manner. Another point to be noticed is that even section 60 itself makes a provision that the Government shall be entitled by notification in the Gazette to provide that the salary of any Government servant shall not be liable to attachment. This may be said to recognise the right of the Government to pay or not. In any case I am bound by the judgment of their Lord ships of the Privy Council in The High Commissioner for India and another v. I. M. Lall and not by The Punjab Province v. Tara Chand. In the first‑mentioned case it was held to be an implied condition of public servant that a public servant is not entitled to his salary and such a right can only be conferred by statute or contract. I find in this case neither statute nor contract. Learned counsel relied upon The Province of Bengal v. Harsha Nath Bhattacharjee (P L D 1954 Dacca 57). There is just an obiter obser vation that the view in The High Commissioner for India and another v. I. M. Lall had been abandoned in North‑West Frontier Province v. Suraj Narain. There is a very brief discussion and the decision is not helpful. Habib Khan v. Federation of Pakistan (P L D 1954 Sind 199) agrees with the judgment in The Punjab Province v. Tara Chand but at the same time recognizes that we are bound by the judgment in I. M. Lall's case and is, therefore, a case against the contention of the appellant. Learned counsel urges that the attention of their Lordships of the Privy Council was not attracted to section 60 of the C. P. C. Assuming that this was so I would still be bound by that judgment. As was held in Qadir Bakhsh v. The Crown (P L D 1953 Lah. 588) we are bound by a judgment of their Lordships of the Privy Council even if the judgment was delivered in ignorance of a provision of law. This appeal is dismissed but there is no order as to costs of this appeal. A. H. Appeal dismissed.