P L D 1967 Dacca 109 (PLP)

MURSHED, C. J.‑This appeal arises out of the following circumstances: Plaintiff‑respondent, who was serving under the Province of East Pakistan, instituted a suit for declaration that an order which reduced him in rank was illegal, ultra vires and void. He also asked for arrears of salary amounting to Rs. 3,815‑14‑9 pies and some other reliefs. The suit was defended by appellant, Province of East Pakistan. The Subordinate Judge, who tried the suit, decided the issues raised in it, in favour of the plaintiff and decreed the suit. The said decree included the amount claimed as arrears of salary. Against the aforesaid judgment and decree defendant pre ferred in appeal which was heard and disposed of by an Additional District Judge of Dacca. Learned Additional District Judge dismissed the appeal and affirmed the findings arrived at by the learned Subordinate Judge and the decree passed by him. The point, whether the impugned order amounted to a reduction in rank, within the meaning of the Constitution, was concurrently decided in favour of plaintiff by the Courts below. The aforesaid amount, representing arrears of salary, was also decreed by both the Courts below. Hence this appeal. At the hearing of the appeal Mr. Jani Alam, who appeared for the Province of East Pakistan, conceded that in this second appeal he was not in a position to re‑agitate the concurrent finding to the effect that plaintiff was reduced in rank by the impugned order. As plaintiff was given no opportunity to show cause against the impugned order, Mr. Jani Alam was unable to contest the proposition that the order, in so far as it purported to reduce plaintiff in rank, was illegal, void and ultra vires. He pressed only one point before us, namely, that the decree in respect of the claim for arrears of salary could not have been passed by the Courts below inasmuch as according to his contention, plaintiff was not entitled to claim such salary as a matter of legal right. It has been submitted that a salary paid to a Government servant amounts to a "bounty" which cannot be legally enforced. In support of the aforesaid point, Mr. Jani Alam relied upon the following decisions of the Supreme Court of Pakistan, namely, Pakistan v. Mehrajuddin (11 D L R 260 S C), Government of West Pakistan v. Fazal‑e‑Haq (P L D 1960‑5 C 208) and Pakistan v Naseem Ahmad (P L D 1961 S C 445). The aforesaid decisions do support the contention that a Government servant receives his salary by way of a "bounty" which is paid as an act of grace. In view of the aforesaid decisions, which are binding on us, we uphold the contention that the decree for arrears of salary as awarded to plaintiff could not have been passed by the Courts below. To this extent, the decree must be modified. Mr. M. H. Khondkar, who appeared for plaintiff respondent, has strenuously urged that the concept that a Government servant is merely the 'recipient of a "bounty" which is euphemistically called, salary, is no longer tenable. He has submitted that the said concept is a relic of feudalism, which has long ceased to be applicable to Government servants in this sub‑continent, in view of constitutional provisions which must now govern the situation. We would briefly indicate the salient features of the point since, it appeared to us, that there is a good deal of force in the arguments which were canvassed by learned Advocate for the respondent. It will be interesting to note that earlier provisions of law in this behalf are those incorporated in section 65 of the Government of India Act, 1858, which conferred the right to sue Government in the following terms: " All persons and bodies politic shall and‑ may have and take the same suits, remedies and proceedings, legal and equit able, against the Secretary of State‑in‑Council of India as they could have done against the said Company" (The East India Company)." Then came section 32 (2) of the Government of India Act, 1915, which runs thus: "Every person shall have the same remedies against the Secretary of State in Council as he might have had against the East India Company if the Government of India Act, 1858 and this Act had not been passed." Section 176 (1) of the Government of India Act, 1935, reads: "The Federation may sue or be sued by the name of the Federation of India and a Provincial Government may sue or be sued by the name of the Province, and, without prejudice to the subsequent provisions of this chapter, may, subject to any provisions which may be made by Act of the Federal or a Provincial Legislature enacted by virtue of powers con ferred on that Legislature by this Act, sue or be sued in relation to their respective affairs in the like cases as the Secretary of State in Council might have sued or been sued if this Act had not been passed." The Federal and the Provincial Governments can sue and be sued in accordance with provisions incorporated in Chapter III of the Government of India Act, 1935, which relates to property, contracts, liabilities and suits. The heading of the Chapter is significant as it specifically deals with contractual and other liabilities. Section 176 (1) of the Government of India Act, 1.935, provides that the Federal or a Provincial Government may sue. It has to be read in the context of its previous sections. Our attention was drawn to corresponding provisions of the 1956 Constitution of Pakistan. The relevant provisions of the said Constitution are to be found in Articles 133 to 136 thereof. These correspond to Articles 212 and 213 of the present Constitution of Pakistan. We were also taken through various provisions of the Code of Civil Procedure and those of some other laws. The liability of the Government to be sued itself 'connotes an obligation to honour a decree that may be passed in the suit. The doctrine that Government servants are wholly dependent on the pleasure of the Crown for the tenure of their office and for their salaries, has received a good deal of modification in various countries of the Commonwealth. In this sub‑continent there are constitutional provisions, which declare, in express terms, that the holding of office by a Government servant is at the pleasure of the Head of the State and there are also specific limitations upon such "pleasure". Mr. Khondkar has submitted that there is no warrant for the extension of this "pleasure" beyond the straight jacket into which the Constitution has placed it. Under the Constitution the "pleasure" is merely confined to the tenure of the office of a Government servant; it does not extend to the salary paid to such a servant. The law governing this aspect of the case is the same in India as in Pakistan and, it is on this footing, that our attention was specifically drawn to a decision of the Supreme Court of India in the case of State of Bihar v. Abdul Majid (1954 S C A 226) Mahajan, C. J., in delivering the judgment of the Supreme Court, has set out the relevant provisions of law from page 236 to page 239 of the report. It was held that a decree for arrears of salary could be passed and enforced in accordance with law. Having regard to the decisions of the Supreme Court of Pakistan, cited above, we are compelled to hold that this con tention cannot prevail. We must uphold the only point that has been urged on behalf of the Province of East Pakistan by Mr. Jani Alam. Mr. Khondkar might address the Supreme Court on the point which was mooted before us. The result, therefore, is, that this appeal is allowed in part only. We set aside the judgment and decree of the Trial Court as affirmed by the Appellate Court below as regards the arrears of salary of the plaintiff ‑respondent and the amount of compensa tion based on such computation, We, however, affirm the rest of the Judgments and decrees passed by the Courts below. We, however, make no order as to costs of this appeal. Mr. M. H. Khondkar has asked for a certificate from this Court under Article 58 of the Constitution. We feel that this case involve a substantial question of law as to the interpreta tion of the Constitution. We, therefore, grant a certificate under Article 58(2)(a) of the Constitution. IDRIS, J.‑I agree with my Lord the Chief Justice. S. Q. Appeal partly allowed.