P L D 1961 Supreme Court 445 (PLP)

HAMOODUR RAHMAN, J.‑These 17 appeals, by special leave, have been filed by the Government of Pakistan and the Adminis trator of Karachi against the judgment and orders of a Division. Bench of the High Court of West Pakistan sitting‑at Karachi whereby writs of mandamus were issued directing the reinstatement of the respondents herein. The respondents herein were Police Officers appointed in the, subordinate ranks of the Police Force of Karachi. The said force, it appears, was in the preliminary stage after Partition, whilst steps were being taken for setting up the Karachi Administration as a separate unit, a purely temporary cadre (was) sanctioned from year to year, although some optees holding permanent posts under the former Governments were also drafted to this Force. Of the 17 respondents before us, however, 15 were appointed purely on a 'temporary basis to this Force in various capacities ranging from constables to Inspectors but two of them, namely, Sher Zainan and Waheedullah, held permanent posts. Sher Zaman was originally appointed as an Armed Police Constable on the 16th August 1930, but was confirmed as Head Constable on 9‑3‑51, in the Karachi Police Force. Walleedullah, who was an optee from India, holding a permanent post, was drafted to the said Force on the 1st of January 1949. The respondent Muhammad Khan was originally appointed as a Head Constable on the 1st of October 1947 in the Sind Police Force, thereafter transferred and promoted to the rank of an Assistant Sub‑Inspector of Police, Karachi, on the 25th of October 1958. The rest were recruited directly at Karachi but their orders of appointment did not specify any period of appointment and they continued to be retained from year to year upon the receipt in each year of the administrative and financial sanction to the annual creation of the Karachi Police Force, until the dates herein after mentioned :‑ Muhammad Salimullah was dismissed from service on, the 27th of November 1950, for absence from duty after an inquiry, but he was not given the second notice calling upon him to show cause as to why he should not be dismissed from service. Sher Zaman was dismissed from service on the 5th of June 1951, after full inquiry for gross negligence of duty. In his case also the second show‑cause notice was not given. Sibte‑Hassan was dismissed on the 5th of December 1951, after fill inquiry for misconduct and corruption. He too was not given any second show‑cause notice. Waheedullah was similarly dismissed after full inquiry on the 23rd of May 1952, for misconduct and dereliction of duty but no second notice to show cause against the penalty proposed was given to him. Mushtaq Ali Khan was discharged from service on the 10th of December 1952, without any inquiry for concealing the fact that he was already in the Sind Police Anti‑Smuggling Department. Abdul Samad Khan was discharged from service on the 10th of August 1953, for misconduct after full inquiry but without any second show‑cause notice. Syed Abdul Hamid was discharged from service on the 15th of September 195 t, without any inquiry for unsatisfactory conduct. Muhammad Zulfiqar was dismissed on the 16th of March 1954, after full inquiry, for misconduct and offering a bribe to the Station Officer for release of an accused, without any second show‑cause notice. Shahid Bux Qadri was first given a month's notice for terminating his service on the ground of unsatisfactory work, but since he agreed to reduction in rank, he was reverted on the 31st of May 1954, as a Sub‑Inspector of Police. He has, we are informed, since been screened out. Ali Haider Shah was discharged after full inquiry on the 15th of February 1955, on the ground of misconduct but without any second notice to show cause against the proposed penalty. The services of the rest of the respondents, namely, Naseem Ahmad, Ataullah Khan, Mirza Zahoor Beg, Anwar‑ul‑Haq, Syed Ali Imam Naqvi, Iqbal Mohiuddin Qazi and Muhammad Khan were dispensed with for unsatisfactory work with effect from the 31st of December 1952, although in the normal course their terms of service would have expired on the 28th of February 1953. The terms of office of the other temporarily appointed respondents would also have normally expired on the 28th of February following the year in which they were discharged or dismissed from service. All these respondents filed suits in the Civil Court praying for a declaration that they have been wrongfully dismissed, dis charged or removed from service or reduced in rank and obtained decrees in their favour either from the original Court or from the Appellate Court during the years 1957 and 1958, but the Government neither preferred an appeal from these decrees nor re‑instated the respondents, presumably because the sanction for the posts held by them had lapsed and they had not been re appointed to the posts sanctioned for the subsequent financial year. The cases of the two permanent employees also received no different treatment at the hands of the authorities. In these circumstances, they invoked the writ jurisdiction of the High Court praying for reinstatement and payment of the arrears of their respective salaries. In the High Court all the seventeen writ petitions were heard together and disposed of by one judgment. In view of the decision of this Court in the case of The State of Pakistan v: Mehrajuddin (P L D 1959 S C (Pak.) 147), the High Court held that the relief in respect of the arrears of salary could not be granted, as salary of a Civil servant was on the bounty of the State, but that' mandamus would lie to compel restoration to office. For coming to this conclusion, reliance was placed mainly on paragraph 1271 Halsbury's Laws of England, Vol. IX, Second Edition (paragraph 162, Vol. 11, Third Edition), which is as follows :‑ "A writ of mandamus will lie to compel the restoration of a person to an office or franchise, whether spiritual or temporal, of which he has been wrongfully dispossessed, provided such office or franchise is of a public nature as for example to the office of mayor, alderman, recorder, town clerk, burgess or other municipal position, to academical degrees, or to the fellowship of a college where there is no visitor, or to the office of parish Clerk and sexton." The learned Attorney‑General appearing in support of these appeals does not dispute the correctness of the principle of law enunciated in the above‑quoted passage, but contends that the said principle has no manner of application in the facts of the present case, for, the respondents do not hold any office of the nature mentioned therein. The only reason advanced by the High Court for applying this principle to the cases of the respondents is :‑ "That the petitioners are holders of offices cannot be denied for it is argued for the respondent that they `hold office' during pleasure and they are all `officers.' When a position carries with it definite functions and duties, it is an office. That the dispossession of office is wrongful also cannot be denied. A mandamus can, therefore, issue." With profound respect to the learned Judges of the High Court we must, however, point out that there is no authority or principle upon which such a wide proposition can be supported. None has been cited in the judgment of the High Court, nor has the learned counsel appearing to support the judgment been able to place before us any authority supporting the view that a mandamus will lie to compel restoration to any or every kind of public office. Indeed the authorities cited in Halsbury's Laws of England in support of the proposition of law therein enunciated shows that the cases in which the English Courts have invoked this extraordinary power for compelling restoration by writ of mandamus are all cases of offices which are either corporate or elective offices or municipal positions. In England, no Court could possibly compel the restoration to office of any public servant in the service of the Crown, for, all such servants of the, Crown hold office during the pleasure of the Crown, and no Court in England would presume to command the Crown. The authorities cited in Halsbury would also seem to indicate that even for other offices, the tenure of which is precarious or dependent on the will of another, a mandamus would not lie to compel restoration to such offices. Thus as mentioned in the passage quoted itself a mandamus would not lie to restore a person to a fellowship of a college where there is a visitor of the college, for the duties of such visitors include the settling of questions relating to the election of fellows of a college. Another sound principle generally observed by the Courts in England with regard to a writ of mandamus ; namely, that mandamus will not be granted if the party complained of has power which would enable him to make the order inoperative" (Halsbury, 3rd Edition, Vol. 11, paragraph 199), has not appealed to the High Court, although, it appears that upon this principle the said Courts have consistently refused to order restoration to any office which can be terminated at the discretion of another. The case of The Queen v. Mayor and Justices of Badmin ((1892) L R 2 Q B 21)' dealt with an office of this nature and mandamus was not granted to restore the applicant to such an office on the above principle. The respondents herein also held office during the pleasure of the State and were removable from office by the State. The fact that sections 230 and 241 of the Government of India Act, 1935, curtailed that pleasure did not alter the nature of the service or impose any clear duty on the State to retain its servants in; office against its will. They only cast a duty on the State not to remove them from service except by following the prescribed procedure. The State was free, however, to dismiss its servants by adopting that procedure. Thus even after an order of restoration it is open to the State to initiate proceedings the very next day for the dismissal of the servant concerned and render the order ineffectual. In the cases of the respondents herein there was yet another vital point that had been overlooked by the High Court, namely, that writs of mandamus were not appropriate remedies for enforc ing of declaratory decrees of Civil Courts, although this question had also been dealt with by this Court in the case of The State of Pakistan v. Mehrajuddin. The respondents before us were, like the railway servants in that case, seeking to obtain their legal right in the writ of mandamus upon the basis of the declaratory decrees granted in their favour. The declaratory decrees obtained by at least those respondents who held, as now admitted, purely temporary appointments were clearly unenforceable, for, the duration of the posts which each of the said respondents held had expired long before the said decrees were passed. The' cases of these respondents were, in most respects, similar to the cases of, those dealt with in the case of Noorul Hassan and six others (P L D 1956 S C (Pak.) 331) decided by this Court in June 1956. A reference to the said decision would have revealed that the declaration could have been valid only up to the date oz which the sanction of the posts would have normally expired and not thereafter. Thus in the case of the respondents Naseem Ahmad, Ataullah Khan, Mirza Zahoor Ahmad Anwarul Haq, Syed Ali Imam Naqvi, Iqbal Mohiuddin, Muhammad Khan and Mushtaq Ali Khan the declaration only had the effect of treating them as being in service till the 28th of February 1y

53. In the cases of Muhammad Salimullah it was valid up to the 28th of February 1951 ; Sibte‑Hassan up to the 28th February 1952 ; Syed Abdul Hamid and Abdul Samad Khan up to the 28th of February 1954 ; Muhammad Zulfiqar and Shahid Bux Qadri up to the 28th of February 1955 and Ali Haider Shah up to the 28th of February 1956. In the cases of the two permanent employees, Sher Zaman and Waheedullah, however, the position was different ; and the declarations in their favour would have had the effect of treating them as continuing in service all along until that service was terminated afresh in accordance with law. Thus on the date on which the writs were issued there was, so far as the temporary employees were concerned, no decree capable of being enforced subsisting. For the reason given above, we are of the view that a writ of mandamus does not lie to restore a Government servant t office, for, even though he may be holding a public office, hi office does not fall within the nature of the offices to which restoration can be compelled by this extraordinary remedy. All these appeals mast accordingly succeed, the writs recalled and the orders of the High Court vacated. In doing so, however, it will not be inappropriate to point out that the pitiable plight in which the respondents now find themselves cannot be allowed to continue indefinitely. Under the decrees of competent Courts of law they were treated as being in the employment of the State and all the disadvantages and liabili ties attaching to such employment continued to bind them, as for, example, they could not seek employment elsewhere and possibly could not even acquire any property. On the other hand, by the authorities' failure to respect and honour the decrees passed by the Courts of the State they came to be placed in the deplorable position that they neither received any salary from the State nor were free to earn their livelihood elsewhere. It may be that they erroneously believed that the benefits of the declarations in their favour enured for all these years and they were entitled to be treated as if in service throughout but at the same time this state of affairs should not have been allowed to continue. It would, therefore, have been only just and equitable on the part of the authorities concerned to have treated the temporary employees concerned as having been in employment until the dates on which the sanctions for their respective posts lapsed, as was indicated in the case of Noorul Hassan v. The Federation of Pakistan. This was unfortunately not done. But even now, it will not be unreasonable to expect that the authorities will do what they ought to have done then and take steps to relieve the respondents of their plight and treat them with compassion, nay even with generosity by honouring the decrees in their favour and giving to them at least the salaries which they would have received, had they continued in service during the periods the sanctions for their respective posts lasted, for, after that they could not, in any event, claim to remain in service. We can but hope that the bounty will not be unduly begrudged to the respondents. So far as Waheedullah and Sher Zaman are concerned, we only wish to add if it is not desired to retain them in service, proceedings should now be taken in accordance with law to terminate their services, if they have not already reached the age of superannuation. In the latter event, they would be entitled to be treated as in service until the date of superannuation and have least a moral claim to receive their salaries for such period. These appeals are thus allowed but we leave the parties to bear their own costs. A. H. Appeals allowed.