P L D 1962 Supreme Court 28 (PLP)

B. Z. KAIKAUS, J.‑--Muhammad A. Hayat, respondent in this appeal by special leave, was in the subordinate service of the Engineering Branch of the Oudh and Tirhut Railways at the time of the partition of India and was officiating as a Sub‑Divisional Officer in the pay‑scale of Rs. 300‑50‑

800. Having opted for Pakistan he was appointed as an officiating Assistant Engineer in the same scale in the North‑Western Railway. On the 1st of May 1948, the Government of Pakistan decided that all members of the staff who had come on transfer from any railway in India would retain the scale of pay applicable to them in their substantive capacity and those who were officiating would be allowed to draw the scale of pay admissible to them before their transfer. On the 15th of April 1953, the Government revised this order and directed that employees mentioned above should be placed in the scale of pay admissible to them in the North‑Western Railway. At this the respondent filed a writ petition against the Central Pakistan Government challenging the scale of pay fixed in pursuance of the order of 15th April 1953, which petition succeeded to this extent that the scale of pay up to the 15th of April 1953, was allowed to remain as it had been fixed under the order of 1st May 1948. Leave to appeal was granted in this case only for a consideration of the limited question whether a mandamus could be issued against the Government at all. Before us two arguments have been put forward by the learned Attorney‑General in support of the proposition that a writ cannot be issued to the Government. The first is that a writ In England be issued against the Crown and therefore it cannot be issued to the Government of Pakistan whose position in this respect is similar. The second is that on a proper inter pretation of Article 2 of the Laws (Continuance in Force) Order, 1958, which is now the source of the jurisdiction of the High Court and the Supreme Court to issue writs, the jurisdiction to issue a mandamus against the Government has been taken away. On the fact that In England a mandamus cannot issue to the Crown no argument can be based that it cannot Issue to the Government of this country. The constitutional status of the Crown is wholly different from that of the Government of Pakistan. The Crown of England occupies a unique position. As stated in Dicey's Law of the Constitution (p. 527 of 1950 Edition), it is a fundamental rule of English Law that no action A can be brought against the Crown. No process of any kind can be issued by the Courts against the Crown. Another recognised principle is that: "The Crown can do no wrong". The Crown is not responsible for its acts to any body or authority and no legal right can be said to exist in any person against the Crown. Nothing of what is stated above applies to the Government of this country. The Government is a creature of law with limited and defined powers. Its acts in relation to the citizens of the State are subject to scrutiny and control by the Courts. It Is burdened with legal duties in favour of the citizen which can be enforced in a Court of law. If it acts in excess of its powers the Courts can grant appropriate relief, and if it fails to perform its duties It can be obliged to perform them. Even a Civil Court of the lowest jurisdiction can issue an Injunction to the Govern ment to perform the duties imposed on it by law. The criterion for deciding whether a public authority is subject to a mandamus would be whether it had a legal duty to perform and a legal right existed in any person to have that duty enforced. Although the Crown in England is not subject to writ jurisdiction, all public authorities even though they be servants of the Crown or functionaries of the executive government are subject to such jurisdiction, and mandamus can be issued against Ministers or other Crown servants to enforce statutory duties as will appear from the following passage in Phillip's Constitutional Law (p. 447, 1957 Edition):‑-- "Mandamus is not available against the Crown itself, nor against a servant of the Crown to enforce a duty owed exclusively to the Crown (R. v. Secretary of State for War; The Queen v. Lords of the Treasury). The latter inconvenient constitutional principle follows the general rule that a third party cannot require an agent to perform a duty which he owes solely to his principal. But mandamus may be issued against Ministers or other Crown servants to enforce a statutory duty owed to the applicant as well as to the Crown (The Queen v. Special Commissioners for Income‑tax). Similar is the statement in Wade's Constitutional Law (p. 317, 1957 Edition) as will appear from the following passage :

"The order mandamus does not lie against the Crown. If a department of Government is acting as agent of the Crown and is responsible only to the Crown having no duty to the subject in the matter, it is not amenable to the orders of the Court in exercise of its prerogative jurisdiction in granting 'or refusing mandamus (The Queen v. Lords of the Treasury (1872) L R 7 Q. B. 387). But mandamus will lie to enforce the perform ance of a public duty which has been imposed by Statute on a department of the Government or its servants provided that the applicant will show that the duty is one, which is owed to him and not merely to the Crown. In the former case, his remedy lies in having his grievance ventilated in the House of Commons but he has no remedy in the Courts. In The Queen v. Special Commissioners of Income‑tax (1888) 21 Q. B. D. 313, at 317, the distinction turns upon the rule that no third party (the complainant) can compel an agent (the department) to perform a duty which is owed not to him, but solely to the principal (the Crown)." In Queen v. The Secretary of State for War ((1891) 2 Q B 326), a mandamus had been applied for against the Secretary of State for payment of the salary of the applicant in accordance with a royal warrant. The application was dismissed not on the ground that the Secretary of State for War was not subject to writ jurisdiction in fact, he did not even raise any such objection‑‑but on the ground that the duty which the Secretary of State owed under the warrant was not like a duty imposed by statute, common law or charter which may create a legal right in the applicant, but was a duty owed solely to the Crown. A perusal of the relevant portion of the judgment which is reproduced below would show that had a legal right based on statute, common law or charter existed mandamus would have been granted: "In the present case the Secretary of State is a servant of the Crown, and the duty we are asked to compel. him to perform is not imposed by statute. * * * * * * * * * * * * It was also contended that a duty imposed by royal warrant on the Secretary of State for War in relation to officers or soldiers is really a common law duty, to the performance of which the officers and soldiers are legally entitled ; and it is indisputable that duties imposed by common law are enforceable by mandamus. But after full consideration we have come to the conclusion that the royal warrant does not impose any such duty on the Secretary of State for War as is or may be imposed by statute, by charter, or by common law. It is issued, certainly, within the limits of the prerogative, and is, therefore, a lawful order. But it does not follow that it imposes any duty on him which an officer or soldier can enforce. His position in this respect appears to be exactly the same as that of the official formerly known as `Secretary at War' and the warrant imposes, upon him no obligation beyond that which he owes to the Sovereign. A duty no doubt arises, but it is a duty between him and the Crown only. The applicant has no legal right to have it performed, and cannot, therefore, enforce its perform ance by mandamus. This appears to us to be clear upon principle, but that such is the position of the Secretary for War appears to be established authoritatively by the case of Gidley v. Lord Palmerston 3 B & B

275. It was there held, that an action would not lie against the Secretary at War by an individual for sums which as Secretary at War he was authorized to pay him, although he might have received the money applic able to that purpose. He had received the money. It was held, merely as the agent of the Crown, and was responsible to the Crown only for the due execution of the trust or duty committed to him. It is true that this was an action based upon an alleged contract between the plaintiff and defendant; but the reasoning of the judgment is equally applicable to an application for a mandamus, which must be founded upon some legal right in the applicant." Writs other than mandamus too can be issued against Ministers and other servants of the Crown. In Rex v. Minister of Health ((1930) 2 KB 98), a writ of certiorari was granted against the Minister of Health in respect of the order which he passed relating to a housing scheme. In Secretary of State v. Oberion (1923 AC 603), a writ of habeas corpus was issued against the Secretary of State on the ground that power of detention had been exceeded. Eshugbayi Eleko v. Officer Administering the Government of Nigeria and another (AIR 1931 PC 248) was a case of application for a writ of habeas corpus. In that case their Lordships of the Privy Council stated the general proposition relating to judicial control of executive acts. Following is the relevant passage from that judgment:‑-- "The Governor acting under the Deportation Ordinance acts solely under executive powers, and in no sense as a Court. As the executive he can only act in pursuance of the powers given to him by law. In accordance with British jurisprudence no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a Court of justice. And it is the tradition of British justice that Judges should not shrink from deciding such issues in the face of the executive. The analogy of the powers of the English Home Secretary to deport aliens was invoked in this case. The analogy seems very close. Their Lordships entertain no doubt that under the legislation in question, if the Home Secretary deported a British subject in the belief that he was an alien, the subject would have the right to question the validity of any detention under such order by proceeding in habeas corpus, and that it would be the duty of the Courts to investigate the issue of alien or not. A suggestion was made by one of the learned Judges that the order in this case was an act of State. This phrase is capable of being misunderstood. As applied to an act of the sovereign power directed against another sovereign power or the subjects of another sovereign power not owing temporary allegiance, in pursuance of sovereign rights of waging, war or maintaining peace on the high seas or abroad, it may give rise to no legal remedy. But as applied to acts of the executive directed to subjects within the territorial jurisdiction it has no special meaning, and can give no immunity from the jurisdiction of the Court to inquire into the legality of the act. To the Crown not only a mandamus but no other writ nor an injunction, or process could issue. The learned Attorney General is not prepared to urge that no writ lies against the Government of Pakistan at all, his contention being only that a mandamus does not lie. He is not prepared to contend that a writ of certiorari where the Government exercise a quasi‑judicial function or a habeas corpus would not lie as against the Government. It will be perhaps proper to state what exactly the objection to the issue of a writ of mandamus implies. A writ of mandamus is only a speedy method of enforcing a legal right which can be enforced by an ordinary action in a Civil Court. An objection by the Government that it is not subjected to a writ of mandamus does not imply a claim to a status which prevents its action from being made the subject of judicial control but only this that it is not subject to a speedy remedy and that interference with its acts must be by the ordinary and comparatively less expeditious process of a Civil Court. For an appreciation of the second argument it will be proper to reproduce the provisions as to writs in the Constitution of Pakistan and Article 2 of the Laws (Continuance in Force) Order, 1958:-- Article 170 of the Constitution‑ "Notwithstanding anything in Article 22, each High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, certiorari, for the enforce ment of any of the rights conferred by Part II and for any other purpose." Article 2 of the Laws (Continuance in Force) Order, 1958‑-- "(1) Notwithstanding the abrogation of the Constitution of the 23rd March 1956, (hereinafter referred to as the late Constitution) by the Proclamation and subject to any Order of the President or Regulation made by the Chief Administra tor of Martial Law, the Republic, to be known henceforward as Pakistan, shall be governed as nearly as may be in accordance with the late Constitution. (2) Subject as aforesaid all Courts in existence immediately before the Proclamation shall continue in being and subject further to the provisions of this Order, in their powers and jurisdictions. (3) The law declared by the Supreme Court shall be binding on all Courts in Pakistan. (4) The Supreme Court and the High Courts shall have; power to issue the writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari. (5) No writ shall be issued against the Chief Administrator of Martial Law, or the Deputy Chief Administrator of Martial Law, or any person exercising powers or jurisdiction under the authority of either. (6) Where a writ has been sought against an authority which has been succeeded by an authority mentioned in the preceding clause, and the writ sought is a writ provided for in clause (4) of this Article, the Court notwithstanding that no writ may be issued against an authority so mentioned may send to that authority its opinion on a question of law raised. (7) All orders and judgments made or given by the Supreme Court between the Proclamation and the promulgation of this Order are hereby declared valid and binding on all Courts and authorities in Pakistan, but saving those orders and judgments no writ or order for a writ issued or made after the Proclama tion shall have effect unless it is provided for by this Order, and all applications and proceedings in respect of any writ which is not so provided for shall abate forthwith." It will be observed that whereas Article 170 of the Constitu tion granted power to Courts not only to issue writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari, but also to issue directions and orders. At the same time, it made explicit reference to the Government. Clause (4) of Article 21 enables the Supreme Court and the High Courts only to issue the named writs. At the same time, the words relating to the Government do not appear in clause (4) and in clause (5) there is al, provision that the Chief Administrator of Martial Law or the; Deputy Chief Administrator of Martial Law or any person; exercising powers under the authority of either would not be subject to writ jurisdiction. The learned Attorney‑General relies on the omission in Article 2 of the words "including in appropriate cases any Government" which existed in Article 170 and contends that this omission points to the exclusion of the Government from subjection to writs of mandamus. But this contention can be met by the argument that in clause (5) of Article 2 the persons against whom writs cannot be issued are specifically mentioned. If the intention was that the Government should not be subjected to writ jurisdiction it should have been mentioned in clause (5). The correct position appears to us to be that apart from the exception contained in clause (5) the framer of Article 2 intended to grant the Courts the precise jurisdiction which is involved in the various named writs without any qualification. If the power to issue the named writs did imply the power to issue writs to the Government then they may be issued to the Government, and if that power did not involve a jurisdiction to issue writs to the Government the framer did not want to add to that power and enable the Courts to issue such writs. The intention was to leave the writ jurisdiction Intact, and not to add to or take away from it. That is why, while the words "including in appropriate cases any Government" were omitted, no reference to the Government appeared in clause (5). There is a further argument however which makes the position altogether clear. As already stated, the learned Attorney General does not contend and, in fact, cannot contend, that no writ can be issued to the Government at all. He does not have any objection to the issue of writs of certiorari, prohibition and habeas corpus, the only attack being with respect to the power to issue mandamus. But if the intention in omitting the relevant words contained in Article 170 was that the Government was not to be subjected to writ jurisdiction, the result would be that no writs at all could be issued. It is not explained how the power to issue writs other than mandamus could exist against the Govern ment, if the interpretation put forward by the Attorney‑General Is accepted. As a result the appeal is dismissed. There is no order as to costs for the respondent has not appeared. A.H. Appeal dismissed.