P L D 1967 Lahore, 159 (PLP)

"The counsel's fee according ‑to the jurisdiction value which shall be paid by the plaintiff to the defendant.

10. In the present appeal Sh. Abdur Rauf the learned counsel for the plaintiff‑appellant has raised the following contentions: (a) That in deciding issues No. 1 in the appellant's favour the trial Court has failed to give relief which was prayed for in the plaint to the effect that notwithstanding the order of removal the appellant continued to be in the service of the North Western Railway as a Nurse and was entitled to hold that office and to enjoy all other rights and privileges etc. attached to this post; (b) that the learned trial Court has; misconstrued the directions of their Lordships of the Supreme Court on the question of the appellant's claim for the arrears of salary, especially when this issue was framed by the Supreme Court itself, that the cases mentioned by the learned trial Judge are distinguishable from the facts in the present suit, where the claim for arrears of salary is based on a contract between the parties, and that the doctrine of "the bounty of the state" no longer holds good; (c) that considering the fact that the decision on issue No. 1 was in appellant's favour the order for the payment of costs on the whole jurisdictional value was extremely hard on the appellant who has been kept out of work for the past seventeen years.

11. As regards the first contention objecting to the nature of the declaration granted by the learned trial Judge, suffice it to say that in their order dated the 2nd of November, 1956, their Lordships of the Supreme Court had directed that: "In case he (i.e. the trial Judge) comes to the conclusion that no such opportunity was given to the respondent he should grant relief to the plaintiff on the lines of the relief granted by this Court in Noor‑ul‑Hassan and others v. The Federation of Pakistan." In Noor‑ul‑Hasan's case the order of the Court, in accordance with the view of the majority of the learned Judges, was: "The appeals of Nur‑ul‑Hasan, Amanullah Khan Sherwani, Habib Ahmad, Qadir Ahmad Siddiqui, Kader Basha Aslami, and Akram Abbas are all allowed with costs throughout and they are granted a declaration to the effect that the order of the Inspector‑General of Police dated the 30th December 1952, dispensing with their services is illegal, void and inoperative," The learned trial Judge has granted the declaration in precisely the same terms and, therefore, no question arises of adding anything further to the declaration already granted.

12. On the question of the appellant's claim for arrears of salary from August 1948, to the 15th of November 1949, it is contended by Sh. Abdur Rauf, that, in the first place, there was no direction given by the Supreme Court to the trial Judge to grant relief to the appellant on the lines approved by their Lordships in Noor‑ul‑Hassan's case. It is submitted that this direction related only to that part of the suit which rested on the allegation of non‑compliance with the provisions of section 240 of the Government of India Act and did not extend to the question of the payment of arrears of salary. It is further contended that although in Noor‑ul‑Hassan's case it was observed that no decree could be passed against the State for arrears of salary owing to a Government servant, yet their Lordships have gradually moved away from this position, and it can now be said that they are prepared to permit a decree to be passed in such matters in view of the attitude adopted by the executive authorities in several cases where Government servants had successfully obtained declarations from competent Courts that their removal or dismissal from service was illegal, inoperative and void.

13. Shaikh Abdur Rauf is right in saying that the direction given by the Supreme Court in the concluding portion of their Lordship's judgment relates only to that part of the relief which was dependent upon the question whether the provisions of section 240 of the Government of India Act had been complied with or not, and that it did not directly apply to the question of the payment of arrears of salary; but it is clear that this last question has to be decided in accordance with the law laid down by the Supreme Court in various cases having a bearing on this point.

14. Apart from Noor‑ul‑Hassan's case the question of the payment of salary to Government servants has come up for detailed examination by their Lordships of the Supreme Court in The State of Pakistan and another v. Mehrajuddin (P L D 1959 S C (Pak.) 147) and Pakistan v. Muhammad A. Hayat (P L D 1962 S C 28). These two and some other cases have been noticed at some length in a very elaborate judgment delivered by the late Chief Justice M. R. Kayani in the case of Muhammad Anwar v. Government of Pakistan (P L D 1962 Lah.). We consider that we cannot do better than to respectfully adopt the conclusions reached in this case by the late Chief Justice.

15. After referring to several cases on the subject, his Lordship observed as under: "It will not be over‑modest to apply the word `preposterous' to the situation which arises when a Civil Court of the State declares that an officer continues to belong to the service and the head of a department of the State refuses to take him back or pay him hi$ salary. Apart from the fact that the observations A. v. Isaacs made by the Supreme Court from time to time denote an Federation expression of regret over the abuse of Mehrajuddin's case, there is also a clear indication of a desire to render that decision as harmless as possible by virtually holding that bounty exhausts itself after it has been exercised, even though there was no bounty in its exercise, for it was exercised under duress. In one aspect, therefore, the bounty and pleasure of the State has been controlled." (Paragraph 10 of the judgment):‑ "Fortunately, the recent decision of the Supreme Court in Pakistan v. Muhammad A. Hayat has further redeemed the legal position, and, if I may respectfully repeat the language of Denning L. J. in Rex v. Northumberland Compensation Appeal Tribunal, it has somewhat `restored' mandamus `to its rightful position' . Mr. Justice Kaikaus observed in the judgment which he wrote for the Bench: `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 can be brought against he 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 citizens, 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 Government to perform the duties imposed on it by law.' (Paragraph 16 of the judgment). "The effect of this decision is that mandamus can now issue to Government to pay to a Government servant his salary at a certain rate, and it is only logical to say further that mandamas can issue to require Government to pay his salary to a Government servant or to pay arrears of salary. This, it will be recalled, was not countenanced by The State of Pakistan v. Mehrajuddin where payment of salary was held to be merely an exercise of the bounty of the State, and not the performance of public duty There is no reference in case either to The State of Pakistan v. Mehrajuddin or to Pakistan v. Naseem Ahmad but if an order requiring the Government to pay salary at a certain rate could be held to have been passed in the proper exercise of the grant of mandamus, the duty to fix a public servant's salary at a eertain rate must have been impliedly regarded as a public duty. It would not be logical to say that while the fixation of salary is a public duty, its payment is not public duty. , (Paragraph 17 of the judgment).

16. Since the judgment in Muhammad Anwar's case was delivered, the right of a Government servant to receive remune ration has been given constitutional protection by Article 178 of the 1962 Constitution of the Islamic Republic of Pakistan. Clause (3) of this Article prescribes that: - "Rules made for the purposes of clause (2) of this Article shall be so framed as to ensure (a) that the terms and conditions of service of a person (in so far as those terms and conditions relate to remuneration or age fixed for superannuation) are not varied to his disadvantage and (b) .

17. Although by the 6th Amendment of the Constitution approved by the National Assembly at its Dacca Session in March 1966 certain changes have been introduced with regard to the age of superannuation, yet the protection with regard to the terms and conditions, of service relating to remuneration has remained in‑tact. Now, it seems to us that it would be a highly inconsistent position to adopt for the Courts of law to hold on the one hand that by virtue of the guarantee contained in clause (3) of Article 178 of the Constitution the terms and conditions of a Government servant cannot be varied to his disadvantage in the matter of remuneration payable to him; and to say on the other that remuneration can be denied to him altogether without any legal remedy being available to compel its payment. To put it differently, the effect of the guarantee contained in clause (3) of Article 178 of the Constitution appears to us to be that the payment of remuneration to a Government servant must now be regarded as something in the nature of a legal right for services rendered, and is no longer to be considered merely as a bounty of the State, especially in view of the exposition by Kaikaus, J. in Muhammad Hayat's case of the true character of the State in Pakistan.

18. It is true that this constitutional guarantee was not available to Mrs. Isaacs, the appellant before us, in the year 1949, yet in view of the trend of law as explained by M. R. Kayani Chief Justice in Muhammad Anwar's case it is clear that she would be entitled to a decree for the payment of arrears of her salary for the period in question. From the judgment of the trial Court it appear that, there was evidence on the record, in the shape of her last pay certificate (Exh. P. 1/A) that her total monthly emoluments were Rs. 202‑3‑

0. Accordingly the amount payable to her as salary from the 1st of August 1948 to the 15th of November 1949, works out to Rs. 3,133.94.

19. For the foregoing reasons we accept this appeal to the extent that the appellant is granted a decree for Rs. 3,133.94 as arrears of her salary from the 1st of August 1948, to the 15th of November 1949. On this view of the matter the appellant would be entitled to have her full costs as against the defendant respondent in the trial Court as well as in this Court. The decree of the trial Court is accordingly modified in this respect as well. K. M. A. Appeal accepted.