P L D 1965 (W (PLP)

FAIZULLAH KHAN, J.‑In this writ petition the three petitioners, namely, Qazi Khan, Mehtab Khan and Irshad Nabi, who are deputationists from the Irrigation Department and posted as Executive Engineers in the Warsak Dam Project Orga nisation, pray for issue of a writ of mandamus, certiorari, or prohibition, Order of Direction, setting aside the order of respon dents 1 and 2 respectively, the State of Pakistan, through Secretary, Ministry of Fuel, Power and Natural Resources, Rawalpindi, and Government of West Pakistan, through Secretary, Irrigation, Communication and Works Department, Lahore, whereunder they had unilaterally receded and withdrawn the previous orders under which the petitioners were paid the Project allowance of Rs. 200 p.m. in addition to deputation allowance of 20 Y. of the basic pay and substituted it by an order restricting the payment to one of these two allowances whichever was more beneficial.

2. This writ petition involves an important constitutional question as to whether the terms and conditions of service on which the petitioners were serving could be varied to their dis advantage.

3. A good deal in this case is beyond dispute and is not contested. The material facts giving rise to this writ petition which are admitted by the respondents, are given in para. 6, which reads as follows:‑ "(6) That the facts material for this writ petition are as follows:‑ (a) That Engineers and other Technical staff was needed for Warsak Dam Project Organisation and with this end in view the Chief Engineer W. D. P. O. in consultation with all the Chief Engineers at Lahore decided that all the Engineering Departments will circulate the requirements and invite volun teers vide D. O. No. W.D.P.‑1 (4)/55, dated 19‑I1‑55 and D.O. dated 17‑2‑56. (b) That the emolument of the XEN to be taken on deputation was their pay and allowances as in the parent department plus project allowance of Rs. 200 p. m. in addition to deputation allowance of 20 % of their basic pay and rent free accommodation. (c) That your humble petitioners applied for the above mentioned posts considering them to be more profitable to their existing appointment. Their applications were accepted and they were released from the Irrigation Department and they joined the W. D. P. O at Warsak where they were drawing their basic salary plus deputation allowance of 20% of their basic pay as well as Rs. 200 p. m. as Project allowance from the date of appointment till 30th June 1960. (d) That vide Memo. No. 13/5‑Admn (1)/57‑S O 1, dated 9‑7‑59 from Govt. of West Pakistan, addressed to Chief Engineer, Irrigation, Lahore, it was observed that Warsak being located close to Peshawar town and the surroundings being quite pleasant, there was little justification for any Special allowance being paid on account of unpleasantness or unhealthiness of the locality and it was ordered. If in any particular case the Project allowance sanctioned by the Central Govt. is more than the deputation allowance to which an officer is entitled, he may be allowed the Project allowance. Conversely if an officer is drawing deputation allowance he should not be allowed Project allowance. In other words the Provincial Govt. by its unilateral action changed the terms and conditions of service of the deputationists by withdrawing one of the allowances given to them. These allowances were introduced in order to attract them to come on deputation to W. D. P. O. (e) That the Comptroller N. A. Peshawar wrote to Chief Engineer, Warsak on 1‑10‑59 stating that in accordance with the instructions of the Provincial Govt. ad hoc retrenchment of deputation allowance had been made from the pay bills of the officers on deputation for the month of September 1959 which was payable in October 1959. (f) That the officers concerned made a representation to the Chief Engineer, Warsak, against unilateral and ex parte decision of the Provincial Govt. which was absolutely against the terms and conditions of service on which they had come on deputation. (g) That the Chief Engineer took up the matter with the Central Govt. as a result of which the Ministry of Works, Irrigation and Power (now Ministry of Fuel, Power and Natural Resources intervened and issued Memo: No. P. II‑200 (7)/59, dated 10‑10‑59 to the Secretary to Government of West Pakistan Irrigation Communication and Works Department, Lahore to withdraw the order of retrenchment of Project allowance from the Provincial‑Government deputationists in W. D. P. O. A copy of this Memo was also sent to Comptroller, Northern Area, Peshawar as a result of which our normal pay bills were passed. (h) That despite this order by the Central. Govt, the Provincial Govt. did not alter their previous decision which made the Chief Engineer, Warsak and Comptroller, Northern Area, Peshawar again refer the matter to Central Ministry of Works, Irrigation and Power. The Central Government, however, decided vide No. P. III‑200 (7)/56, dated 25‑7‑60 that the Provincial Govern ment deputationists should be allowed either Special Project allowance or deputation allowance whichever was beneficial to them. This was to be enforced from 1‑7‑

60. Thus the Central Govt. rescinded its previous order by which the deputation allowance and Project allowance were offered and resulted in the petitioners leaving their parent department for better prospects in the shape of new terms and conditions of service in W. D. P. O., Warsak. (i) That by the very same memo. noted above; the 'Central Govt. recommended to the Provincial Govt. that as the payments of these two allowances had been made to the deputationists in good faith up to 30‑6‑60, therefore, these amounts should be waived. (j) That the deputationists again represented to the Chief Engineer, Warsak for intervention and the situation created by this illegal order assumed such importance that the Warsak Board took cognizance of the question and discussed the same in their meeting. The representation of the deputationists was again forwarded by the Chief Engineer, Warsak, with the request for a favourable consideration in the light of the meeting of the Warsak Board. The petitioners then waited on the then Secretary, Ministry of Fuels, Power and Natural Resources in the presence of the Chief Engineer, Warsak. (k) That the Comptroller, Northern Area, Peshawar however contrary to the Central Ministry's direction has started recoveries from the Pay bills of the petitioners. (l) That allowances of the other Provincial deputationists though similarly disallowed have not been recovered from them as done in the case of the petitioners.

4. The main challenge to the impugned order is that "the officers on deputation to Warsak were given the conditions of service by the Central Ministry of Works, Irrigation and Powers and agreed to by the Provincial Government and their terms could not be withdrawn summarily". In the written statement filed on behalf of respondent No. 1 it was admitted that "the respondents gave to the petitioners the conditions of service stated by them, "but it is interesting to note that the respon dent in justification of the impugned orders stated, "but these were in the nature of a privilege or concession which the Govern ment could always withdraw in their discretion."

5. In view of the admission by the respondent No. 1 in the written statement that the respondents gave to the petitioners the conditions of services, the scope of the discussion narrows down to the question whether the terms and conditions of the service could be withdrawn muchless with retrospective effect. This question admits of a short answer and against the respon dents for the sensible reason that there is constitutional guarantee under which the tenure and conditions of service of any person serving under the Central Government or in connection with the affairs of the Province "shall not be varied to his disadvantage". This constitutional guarantee is contained in Article 182, clause (3) (a) of the late Constitution of the Islamic Republic of Pakistan, and has been incorporated in Article 178 of the new Constitution. It will be convenient here to read clause (3) (a) of Article 182 of the late Constitution which runs thus:‑ "(3) The rules under clause (2) shall be so framed as to secure‑ (a) that the tenure and conditions of services of any person to whom this Article applies shall not be varied to his disad vantages; and ..Clause (3) (a) of Article 178 of the new Constitution is in the following terms:‑ "(3) 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 renumeration or age fixed for superannuation) are not varied to his disadvantage and

6. It will be manifest from reading clause (3) (a) of Article 182 of the late Constitution and clause 3 (a) of Article 178 of the new Constitution that civil servants working under the Central Government or in connection with the affairs of the Province have a constitutional guarantee that their conditions of service cannot be varied to their disadvantage. We are forti fied in this view by the opinion of Mr. A. K. Brohi, author of "Fundamental Law of Pakistan", 1958 Edition. At page 626 the learned author states:‑ "Our Constitution has afforded considerable measure of protection to the public servants although that measure of pro tection can be no proof against the machinations of a schem ing politician who when in office might like to retaliate against any honest and upright public servant who may have, when the politician was outside the magic circle of office while doing his duties incurred his odium or displeasure." The learned Commentator then proceeded to observe: "The protection afforded is of three kinds, (a) against indis criminate and arbitrary punishment, (b) and affirmative guarantee, that rules shall be so framed under clause (2) of Article 182 as to secure, (a) that the tenure and conditions of service of any person to whom that Article applies shall not be varied to his disadvan tage; and (b) . ." It follows from the above discussion that the impugned orders of the respondents restricting the payment to one of the two allowances whichever was more beneficial was in violation of the constitutional guarantee and as such wholly vitiated.

7. Mr. Sher Bahadur Khan, Additional Advocate‑General appearing on behalf of the respondents, when confronted with the constitutional guarantee, tried to invoke the decision of the Supreme Court in State of Pakistan v. Mehraj‑ud‑Din (P L D 1959 S C (Pak.) 147) and Pakistan v. Nasim Ahmad (P L D 1961 S C 445) in which payment of Salary to a Government servant was held to be merely an exercise of the bounty of the State and not the performance of public duty, and for the purpose of recovering his renumeration, from the State his only remedy by necessary implication from his contract lies in an appeal of an official or Political kind, and not by writ of mandamus. Fortunately for the petitioners in a recent decision of the Supreme Court in Pakistan v. Muhammad A. Hayat (P L D 1962 S C 28), the Supreme Court has overruled its previous decision in Mehraj‑ud‑din's case by holding that mandamus can now issue to Government to pay to the Government servant his salaries: "Hayat was an engineer in the Oudh and Tirhut Railway in the pay‑scale of Rs. 300‑50‑800 and after the Partition, retained the same pay scale in Pakistan by an order of Government, dated the 1st of May 1948. On the 30th of May 1958, however, the Government revised this order with retrospective effect, to the disadvantage of Hayat, who, therefore, filed a writ petition in the High Court, challenging the scale of pay fixed by the new order; which petition succeeded to this extent that the scale of pay up to the 15th of April 1953, was allowed to remain as it has been fixed under the order of the 1st of May 1948. A writ of mandamus directing the Government to fix the petitioner's pay from the 1st of April 1953, in accordance with the orders of the Governor‑General; dated the 15th of April 1953, was granted. In the Supreme Court it was contended that a writ of mandamus cannot issue against the Government. Repelling this contention, and dismissing the appeal of Govern ment 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 arguments 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 the Crown. No process of any kind can be issued by the Court against the Crown. Another recognised principal is that, `The Crown can do no wrong. The Crown is not responsible for its act to anybody or autho rity 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."

8. In Muhammad Anwar v. Government of Pakistan (PLD 1962 Lah 443), the effect of the decision of the Supreme Court of Pakistan v. Muhammad A. Hayat was considered by a D. B. comprising of Kayani, C. J., and one of us (Mr. Justice Faizullah Khan). In para. 17 Kayani, C. J., made the following pithy observation in regard to the effect of Muhammad Hayat's case :‑ "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 mandamus 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. Mehraj‑ud‑din, 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 Hayat's case either to The State of Pakistan v. Mehraj‑ud‑din 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 mendamus, the duty to fix a public servant's salary at a certain 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 a public duty. Now since this result leads to an inconsistent position, it would be reasonable to assume that in Hayat's case the Supreme Court has departed from its previous view." The Bench taking the view that "in Hayat's case the Supreme Court has departed from its previous views", recorded the following "order of the Court", restoring the petitioner not only to his office but also to emoluments:‑ "We set aside the dismissal of the petitioner and direct that the Government should pay his costs and treat him as though there had never been an inquiry against him. Although no formal order directing re‑instatement will be passed the effect of our order quashing the proceedings will be to restore the peti tioner to his office and emoluments."

9. For all the foregoing reasons, we accept the writ petition, set aside the orders of the respondents dated 9th July 1959 and 25th July 1960, and direct that the petitioners should receive the t Project and Deputation Allowances as they were receiving before, the impugned orders, with costs. Pleader's fee is fixed Rs.

200. K. B. A. Petition accepted.