P L D 1960 (W (PLP)

10. If the first proposition put forward by learned counsel for respondents 2 to 4 could not be supported, the whole of his argument will fall. But let us assume for the sake of argument that there is need of a provision as to a Government being proceeded against in a Court of Law. There exist positive provisions relating to this matter and the question can be decided even on the inter pretation of such provisions. It will be convenient to reproduce at this stage the provisions of the Government of India Acts and of the late Constitution relating to suits which have been filed against the Government :‑ GOVERNMENT OF INDIA ACT, 1858 Section 65.‑`The Secretary of State in Council shall and may sue and be sued as well in India as in England by the name of the Secretary of State in Council as a body corporate ; and all persons and bodies politic shall and may have and take the same suits, remedies and proceedings, legal and equitable, against the Secretary of State in Council of India as they could have done against the said Company; and the property and effects hereby vested in Her Majesty for the purposes of the Government of India, or acquired for the said purposes, shall be subject and liable to the same judgments and executions as they would, while vested in the said Company have been liable to in respect of debts and liabilities lawfully contracted and incurred by the said Company". GOVERNMENT OF INDIA ACT, 1915 Section 32.‑(1) "The Secretary of State in Council may sue and be sued by the name of the Secretary of State in Council, as a body corporate. (2) 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. (3) The property for the time being vested in His Majesty for the purposes of the Government of India shall be liable to the same judgments and executions as it would have been liable to in respect of liabilities lawfully incurred by the East India Company if the Government of India, Act, 1858, and this Act had not been passed. (4) Neither the Secretary of State nor any member of the Council of India shall be personally liable in respect of any assu rance or contract made by or on behalf of the Secretary of State in Council, or any other liability incurred by the Secretary of State or the Secretary of State in Council in his or their official capacity, nor in respect of any contract, covenant or engagement of the East India Company; nor shall any person executing any assurance or contract on behalf of the Secretary of State in Council be personally liable in respect thereof ; but all such liabilities, and all costs and damages in respect thereof, shall be borne by the revenues of India." GOVERNMENT OF INDIA ACT, 1935 Section 176: Suits and proceedings.‑(1) The Federation may sue or be sued by the name of the Federation of (Pakistan) 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 conferred 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. (2) Neither the Federation nor a Provincial Government shall be liable to be sued or shall be deemed to have been so liable on any date subsequent to the'f6urteenth day of August 1947, under the provisions of subsection (1) of this section or under the pro visions of subsection (2) of section 15 of the Indian Indepen dence Act, 1947 (10 and 11 Geo. 6, c. 30), in any Court other than a Court duly constituted in any Governor's Province, or a Chief Commissioner's Province or in the Capital of the Federation." Article 136.‑"The Federal Government may sue and be sued by the name of Pakistan, and the Government of a Province may sue and be sued by the name of the Province," Article 228.‑"(1) Subject to clause (2), if any legal pro ceedings in which the Federation of Pakistan is a party were pending in any Court, immediately before the Constitution Day, then, in those proceedings, for "the Federation of Pakistan" "Pakistan" shall, as from that day, be deemed to be sub stituted. (2) Any legal proceedings which, but for the Constitution, could have been brought by or against the Federation of Pakistan in respect of a matter which, immediately before the Constitution Day, was the responsibility of the Federation and has, under the Constitution, become, the responsibility of a Province shall be brought by or against the Province concerned ; and if any such legal‑proceedings were pending in any Court, immediately before the Constitution Day, then, in those pro ceedings for the Federation of Pakistan, the Province concerned shall, as from that day, be deemed to be substituted."

11. It be observed that Article 136 of the late Constitution makes a provision only as to suing or being sued. So far as Article 228 is concerned, the first part of that Article applies to pending proceedings and the second part applies only to a special case where a matter in respect of which a cause of action had already arisen is transferred from the Center to a Province and this Article does not by itself create the liability of being sued although it does recognize such liability. Now if, as learned counsel for respondents 2 to 4 contends, there can be no suit in the absence of a surrender of sovereignty, how far has this sovereignty been surrendered in the late Constitution ? According to learned counsel, Article 136 merely provides the name by which the Government is being sued and is not intended to effect by its own force a surrender of sovereignty. If this contention is accepted, then there is no provision in the late Constitution at all containing a surrender of sovereignty. Assuming that the makers of the Constitution regarded a surrender of sovereignty essential for the competence of proceedings against the Government, it would not be a proper interpretation of the Constitution that no provision as to the liability of the Government for being proceeded against was made at all. The Constitution is by presumption a carefully pre pared document and should contain such a provision. We would, therefore, interpret Article 136 as a statement of the liability of the Government for being proceeded against. This Article uses the simple words "sue and be sued" without any qualification. These words, it is conceded by the learned counsel for respondents 2 to 4, would not apply only to suits, but to other proceedings also, for instance, proceedings under the Guardians and Wards Act, under the Companies Act, under the Arbitration Act and so on. The word `sue' as pointed out by Mahajan, J. in Province of Bombay v. Khushaldas (AIR 1950 S C 222), means the "enforcement of a claim of civil right by means of legal proceedings" and "any remedy that can be taken to vindicate a legal right" is included in that expression. In that case it was held by Mahajan and Mukerji, JJ., that a writ of certiorari was included in the word `sue'. The surrender of the sovereignty would, therefore, be full and not subject to any limitations or exceptions.

12. Learned counsel for respondents 2 to 4 contended that the intention of the framers of the Constitution was to retain the same liability as existed under the Government of India Act, 1935, but if that was the intention there would have been a provision to that effect. There were before the makers of the Constitution Government of India Acts of 1919 and 1935 which in express words retained the liability created by the Government of India Act of 1858. If the intention was that the Government of Pakistan should henceforth be subject to the same liability, there does not appear any reason why Article 136 should not have used words similar to section 32 of the Government of India Act of 1919 or section 176 of the Government of India Act, 1935. The fact that that part of section 176 which stated that the liability was to be the same as before, was deleted and the rest of the contents of the section were allowed to remain points to the conclusion that any limitation which may have existed in respect of the Secretary of State was not intended to continue.

13. Even on the assumption that the liability of the Govern ment of Pakistan remained the same as it was of the Government of India this preliminary objection would not succeed. Section 65 of the Government of India Act, 1858, allowed as against the Secretary of State all the "remedies, and proceedings legal and equitable," that were available against the East India Company. Now, what were the kinds of proceedings which could be brought against the East India Company. The East India Company was not a sovereign though it was a delegatee of some sovereign powers and so far as the Company was subject to the law, all proceedings could be filed against it. Of course; with respect to the delegated powers of sovereignty, it would not be amenable to the jurisdiction of any Court, for in that respect it was not subject to the law. But in respect of acts which were not sovereign, the position of the Company was that of an ordinary individual. It is not denied that even writs could be issued against the East India Company. Reference may be made to The King v. Directors of East India Company (110 E R 534), and The King v. Directors of East India Company (105 E R 838). Learned counsel for respondents 2 to 4 concedes that in England writs could be issued against the Company, but contends that this could not be done in India. We do not see why if a Court in India possessed writ jurisdiction, it could not issue a writ against the Company if the matter was one in respect of which there was a statutory duty on the Company and a legal right existed in favour of the applicant.

14. In the lengthy arguments which have been addressed to us on behalf of respondents 2 to 4 the main point of attack really is that although all other proceedings may be taken against the Government, a writ of mandamus cannot be issued. Almost to the sole basis of this argument is that a writ of mandamus could not be issued to the Crown. But even a suit did not lie against the Crown (before the Crown Proceedings Act, 1947). As observed by Mahajan, J. in Province of Bombay v. Khushaldas while repelling the contention that the Government of Bombay could not be proceeded against in the exercise of writ jurisdiction, the Provincial Government is not a sovereign, and the fact that mandamus could not issue to the Crown cannot lead to the con clusion that it cannot be issued to a Government for the enforce ment of a duty imposed on it by law. Even in England where a statutory duty is imposed by the law on a Government department, a writ can be issued. The position is explained by Wade in his Constitutional Law, 1957 Edition, page 317, thus: "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. Law of the Treasury 1872 L R 7 Q B 387). But mandamus will lie to enforce the performance 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 Commissioner of Income‑tax (1888) 21 Q B D 313, at page 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)".

15. It would be observed that the criterion for deciding whether a writ is or is not to be issued against a Government Department is whether the duty is owed only to the Crown or to the subject also. If there is duty to the subject mandamus does lie. The decision depends upon whether the applicant has or has not legal right and truly speaking when an applicant fails in such a case, he fails on the ground that having no legal right, the application is to be dismissed on the merits and not because the opposite party is a Government. In Eshugbayi Eleko v. Officer Administering the Government of Nigeria and another (AIR 1931 PC248), from which we have already quoted, a writ of habeas corpus had been asked for against the Governor of Nigeria and it was in con nection with the objection taken to the jurisdiction of the Court to grant a writ that the observations reproduced above were made. That case was one of haheas corpus, but their Lordships had said that the executive could not interfere with the "liberty or property" of a subject, except on the condition that he could support the legality of its action before a Court of justice. In The Queen v. The Secretary of State for War ((1891) 2 Q B 326), a mandamus writ was applied for against the Secretary of State for War in order to compel him to carry out the terms of a warrant for payment of salary and allowances. The application was dismissed not on the ground that a writ did not lie against the Secretary of State for War at all, but on the ground that there was no legal duty imposed on him to pay the salary and allowances etc. It is to be observed that there was no objection at all on behalf of the respondent that a writ of mandamus did not lie against him. The objection was based only on the absence of a legal right. The reasons for the decision will appear from the following extract :‑ "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 performance 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 applicable 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."

16. It becomes quite clear that had a duty been imposed on the Secretary of State in accordance with statute, charter, or common law that duty would have been enforced by mandamus. In Secretary of State v. Oberion (1923 A C 603), an order of detention had been passed by the Secretary of State and a writ of habeas corpus was issued on the ground that the power had been exceeded. In Rex v. Minister of Health ((1930) 2 K B 98), a scheme had been sanctioned under a Housing Act and property of the applicant had been taken by order of the Minister of Health. A writ of certiorari was applied for on the ground that there was no opportunity to show cause. A writ was granted by the King's Bench. On appeal the case was reversed on facts by the House of Lords, but the competence of a writ against the Minister was not questioned.

17. The proposition that writs could not be issued in England against the Governments seems to be based on a misconception. If a duty imposed by law, charter, or common law exists the Government can be forced by writ to perform it, Of course, against the Crown no writ could be issued. The Crown could not be brought before its own Courts and in fact the writ was issued in the name of the King himself. The titles of the cases referred to above would show that while one of the parties was the Secretary of the State or the Minister, the other party was the King himself. Confronted with cases relating to writs, learned counsel for respondents 2 to 4 took up the position that while all other writs could be issued, mandamus could not be issued. But he was unable to support this proposition by reference to any authority or on the basis of any argument. According to him the words "sue and be sued" would refer to the ordinary, but not to the extraordinary jurisdiction. When asked to define what was extraordinary jurisdiction he was unable to say anything except that writ would not be in the exercise of extraordinary jurisdiction anal then he went a step further and even split up the "extra ordinary jurisdiction" by saying that only mandamus cannot be issued. There is no rational basis for the position he took up.

18. When a particular act of the Executive Government is subject to the jurisdiction of the Courts it does not matter by what procedure the law relating to that act is enforced. The writ jurisdiction only provides a speedy remedy for the enforcement of statutory duties. The same duties can very well be enforced by means of suits. A mandamus is nothing but an injunction which can be issued by any Fourth Class Civil Judge. Only the Civil Judge will issue it in a properly instituted suit for which a previous notice is required, while the High Court can issue a mandamus without previous notice and the matters in dispute can be decided on the basis of affidavits.

19. There is further inconsistency involved in the proposition that a writ will not be issued to the government, for it is accepted that writs can be issued to all public officers who are carrying on executive functions. There does not appear any particular reason why if a writ can be issued against a public officer who too is a delegatee of executive power, a writ should not be issued against the Government. By virtue of the powers which he has under the Criminal Procedure Code or the Safety Act if a District Magistrate passes an order, he is, according to the learned counsel for respondents 2 to 4, subject to writ jurisdiction, while if the Government passes a similar order it is not a writ jurisdiction. In Venkataratnam v. Secretary of State (A I R 1930 Mad. 896), a case which has been relied upon by learned counsel for the respondents himself, there was an application for a writ of certiorari against the Government of Madras. The writ was refused on the sole ground that the Governor himself was not subject to the writ jurisdiction of the Court and no distinction could be made as between the Governor and the Government. The proposition that the Governor and the Government should be regarded as the same is one which learned counsel himself is not prepared now to support in view of later authorities and it is clear that had it not been for this proposition, the learned Judges would have issued a writ to the Government of Madras. There was nothing in the argument on behalf of the respondent that a writ did not lie against the Government.

20. In Muhammad Bakhtiar Khan v. Province of West Pakistan (P L D 1960 Kar. 89), a Full Bench of the West Pakistan High Court held that a writ of mandamus can be issued against the Government. The case is binding on us, but the difficulty is that the decision was given only upon a concession made by counsel and, therefore, we have not been relieved of the duty of giving our own decision. Reference may also be made to Yusuf Ali v. Province of East Pakistan (P L D 1959 S C (Pak.) 467), in which a writ of mandamus was issued against the Province of West Pakistan and the Secretary of Finance in the Revenue Department. Although the question as to the competency of the writ was not raised, it cannot be said that such a matter would not be present to the minds of their Lordships and their Lordships must have been of the opinion that such a writ was competent.

21. Reliance was placed by learned counsel for the respon dents on the fact that the words "in appropriate cases" which appeared in Article 170 of the late Constitution were omitted from section 2 (4) of the Laws Continuance in Force Order. On the other hand, the petitioner relied on the fact while the Martial Law Administrator was referred to as an authority against whom writs could not be issued, no such reference was made to the Govern ment. It was argued that had it been the intention to prohibit writs against the Government, there would have been a provision to that effect as there was with respect to the Martial Law Administrator. We are of the opinion that the Continuance of Laws Order was not intended to affect the writ jurisdiction of the Court except with respect to the authorities mentioned therein.

22. We reject the preliminary objection and hold that there is no bar to the issuing of writ of mandamus against the Government. We proceed now to determine the merits. Reliance of the petitioner is on the practice of the department. Practice is not a rule framed under the Government of India Act or the Constitution but it is a possible contention that in the absence of any rule relating to seniority, it should be determined on the basis of practice or even on the basis of general principles. However, in the first place, it will be difficult to hold that respondents 2 to 4 are not the direct recruits of the year 1948. That they belong to the same batch as Abdul Muid who has been placed in the list as junior to them is admitted by the petitioner himself in a repre sentation which he made to the Government and is even otherwise clear from the record. If Abdul Muid Khan who had been appointed on the 29th December 1948 is a recruit of 1948, then respondents 2 and 3 who belong to the same batch and who are senior to him should also be recruits of the year 1948. In the ordinary course the letters of appointment of respondents 2 to 4 should have been issued either before or simultaneously with that issued in favour of Abdul Muid. It does not appear from the record why, in spite of the fact that Abdul Muid was junior to respondents 2 to 4, his letter of appointment was issued earlier but that fact should not in any case affect their status as recruits of the year 1948. We note here with regret that with respect to the facts of the case, we have not received the help which we expected from learned counsel for the respondents. It would have been easy to show from the departmental files as to when exactly the orders on account of which the letters of appointment were issued were passed and what was the reason for the letter of appointment of the seniors of Abdul Muid having been issued after a letter was issued in favour of Abdul Muid. We have not even been informed as to when the vacancies which respondents 2 to 4 and Abdul Muid were to fill occurred, though it will be safe to presume that the vacancies had occurred in 1948. Abdul Muid was appointed in 1948 and as he had been placed junior to respondents 2 to 4 he would prima facie not be fixed in a vacancy which arose earlier than those filled by respondents 2 to

4. Probably the vacancies had already occurred before the matter was referred to the Public Service Commission in 1948. Even on this point, in spite of the fact that the case was being argued for six or seven days, we have not received any information.

23. However, apart from the question whether the respon dents 2 to 4 are recruits of the year 1948, there are reasons for holding that the petitioner is not senior to respondents. The procedure adopted in this department for fixing seniority appears to be that a seniority list is maintained and whenever there is an appointment, the position in the seniority list of the person appointed is also fixed. When the petitioner was appointed in the year 1950, respondents 2 to 4 were already on the list, their appoint ments having taken place much earlier, Ordinarily a person who has been appointed would get a place at the bottom of the list, but in this case as the petitioner was to be given a place above the recruits of 1949, he was allotted a place in the seniority list, which is above the recruits of 1949 but is below respondents 2 to

4. The order of appointment issued in his favour states that he has been granted a seniority below respondents 2 to

4. Seniority is a matter of rank and it is quite obvious from this order that the rank of the petitioner was fixed below respondents 2 to 4 at the time of his appointment. It is impossible for the petitioner now to contend that he possessed a higher rank. That rank was never given to him. His contention can only be that in accordance with the practice of the department, he should have been granted a rank higher than that which was actually granted to him. But that is not a matter with which we are concerned. Whether it was correctly or incorrectly done, the actual rank was only that which appears in the seniority list.

24. The order of appointment was made on the list of August 1950. The petitioner apparently accepted it, for he slept over it for no less than seven years. Some explanation of delay has been given in the writ petition. It is unnecessary to go into the details of that explanation. It is sufficient to say that it does not satisfy us.

25. There is another difficulty in the way of this writ petition. Abdul Muid is admittedly junior to respondents 2 and

4. The petitioner accepts that Abdul Muid is senior to him. What place then can be allowed to the petitioner ? If he was given a place above respondents 2 to 4, he would become senior to Abdul Muid also and the rights of Abdul Muid cannot be affected for he is not a party to these proceedings. A further difficulty is that so far as Nazir Ahmad, respondent No. 4, is concerned, the petitioner's case is bound to fail on his own allegations for respondent No. 4 was appointed in December 1948. Respondent No. 4 is junior to respondents 2 and 3 and the same difficulty arises in his case as it arises in the case of Abdul Muid.

26. As a result this writ petition is dismissed, but there is no order as to costs. BASHIR AHMAD, J.‑I agree that ,the petition be dismissed and also with the conclusion reached by my brother on the question of jurisdiction. A. H. Petition dismissed.