P L D 1963 (W (PLP)

S. A. MAHMOOD, J.‑Allama Rehmatullah Arshad joined the Bahawalpur State Service in the Education Department of the State on the 16th of May 1944, and held the rank of the Inspector of the State Arabic Schools on the 11th of February 1949, he was sus pended from service by Col. A. J. Dring, the then Prime Minister of the State, and an inquiry was ordered to be held by K. B. Sayed Ahmad, Revenue Minister of the State on the allegation that he was taking very active part in politics. After the inquiry, the petitioner got the impression that he was discharged from service, but in actual fact he was dismissed on the 13th of July 1949. The petitioner claims that the order of dismissal was neither notified in the Official Gazette nor was it conveyed to him. There after, constitutional reforms were introduced in the State, as a result of which elections to the Bahawalpur State Assembly took place in 1952. The petitioner stood as a candidate for one of the seats. An objection was taken to the acceptance of his nomi nation papers, on the ground that he had been dismissed from State Service. This objection was upheld. The petitioner's case is that he came to know then that he had been dismissed and pot merely discharged from service. On the 17th of April 1952, he filed a suit in the Civil Court for a declaration that the order of the Minister of Education, dated the 13th July 1949, where by he was dismissed, was illegal, void, inoperative and in excess of powers. His suit was decreed on the 7th of May 1955 and it was ordered that the dismissal was illegal, void and inope rative and did not affect his civil rights to stand for election. The petitioner states that he reported for duty but he was not re‑instated, as an appeal was filed in the High Court of Bahawal pur against the judgment and decree of the trial Court. The appeal was dismissed by the High Court of Bahawalpur on the 23rd of July 1955. No further appeal to the Judicial Committee was filed. The merger of the State into West Pakistan Province took place on the 14th of October 1955, and as a result of section 9 of the Establishment of West Pakistan Act, the liabilities of the State became the liabilities and obligations of the Province of West Pakistan. On the 11th of December 1955, the petitioner made a representation to the Governor of West Pakistan for being paid salary from the date of suspension up‑to‑date. While this repre sentation was pending, he stood for election to the West Pakistan Assembly and was duly elected as a Member on the 19th of Janu ary 1956. In connection with his representation, the Director of Education wrote to him a letter (Annexure B) seeking some information to be supplied to the Finance Department in connec tion with his representation. The petitioner put in a reply, which is Annexure C, in which he claimed a sum of Rs. 25,508‑11‑0 as due to him as arrears of pay etc. from 11th February 1949 to 23rd July 1955. The petitioner also approached the Law Secretary and the Finance Secretary. His case went up to the then Governor of West Pakistan, who discussed the case with the Finance and Law Secretaries and passed the following order on 14‑7‑57 :‑ "According to the judgment the dismissal of Allama Arshad was held to be illegal and ultra vires. The consequence of this judgment is that Allama Arshad continued to be in service until such time as he voluntarily sought election to the State Legislature. In fact, if objection had been raised his election could have been declared void. That disqualification still operates as Allama Arshad has not formally resigned. The best thing would be to ask him to state the position clearly. If he claims his back pay only up to the time that he sought election to the State Legislature, it would be difficult to deny him the arrears of pay provided he gives an affidavit that he did not earn any salary during this period and if he did then a settlement may perhaps be made by paying him the salary minus the income he earned. The question of limitation would not ordinarily arise as he did not sue the Government for payment of arrears of salary. "A. D. may send for Allama Arshad and make him an offer as indicated above without prejudice, and if he agrees we may settle this case." When the case went down to Secretary, Education, he ordered that further action may be taken by the Education Department in accordance with the Governor's minutes in the case. This order was accepted as meaning that the Governor had directed that Allama Arshad should be sent for and an offer of payment of arrears be made to him in accordance with the Governor's order. 2. On this letter (Annexure F) dated 31st of August 1957 was sent by the Under‑Secretary in the Education Department to the petitioner asking him to attend his office on any working day as soon as possible. A telegram was also issued to the Inspector of Schools, Bahawalpur, by the Secretary, Education, of which copy was sent to the petitioner, to attend his office in connection with his claim for arrears of pay. The petitioner met the Under- Secretary in his office in September 1957, who informed him of the Governor's orders, and asked him whether he was willing to accept the arrears of pay from the time of his dismissal up to time when he sought election to the State Legislature. He accept ed the offer, and informed the Under‑Secretary that he had not accepted any other employment or received any salary during this period and that he had already put in an affidavit to that effect along with his original application, which was on the file. The Under‑Secretary informed the petitioner that the papers were in order and that payment would be made to him at an early date. After waiting for payment which was not made the peti tioner filed this writ petition on the 24th of January 1958, under Article 170 of the abrogated Constitution of the Islamic Republic of Pakistan, for issuance of an appropriate writ, order or direc tion to do justice to the petitioner and in particular for a direction in the nature of mandamus or any other writ, order or direction to the respondent, namely, the Province of West Pakistan to implement the Governor's orders and to pay to the petitioner his arrears of salary etc. 3. In the written statement filed on behalf of the Province of West Pakistan, the facts stated above are not challenged. It was stated in para. 13 of the written statement that the Governor, on receipt of the papers, ordered that the Department should ask the Allama if he claimed arrears of pay up to the time that he sought election to the State Legislature, and if the latter's reply was in the affirmative, he should be paid the arrears provided he gives an undertaking that he did not earn any salary or income during this period. In compliance with this order, the Allama was called to the Education Department where the Under‑Secre tary informed him of the Governor's orders, and as he accepted the proposal he was informed by the Under‑Secretary that the papers were in order and that the payment would be made to him at an early date. In the petition it was also alleged that Mr. Hasan Mahmood, then a Minister in the West Pakistan Government, had removed the file from the office of Mr. A. H. Dasti, Education Minister, and kept it in his custody in order to deprive him of his arrears of pay because he had join ed the opposition party. This allegation was not specifically denied. It was merely stated that it was not known in the Education Department whether the file was removed from the office of the Education Department and whether Mr. Hassan Mahmood had locked‑up the file in his box in order to delay the implementation of the Governor's orders. The only defence taken in the written statement was that the Department in consultation with the Law Department was of the view that no suit (and consequently a writ petition for the recovery of salary) lay in view of the judgment of the Supreme Court reported as P L D 1956 S C 331 at page 360. It was conceded that the petitioner had exhausted all his remedies and though his representation had been accepted by the Governor the arrears had not been paid. 4. In this writ petition, the learned counsel for the petitioner contends that it was the duty of the Secretaries to the Government of West Pakistan to obey the order of the Governor, as executive authority of the Province vested in the Governor and was exercised by him under Article 73 (1) of the abrogated Constitu tion of the Islamic Republic of Pakistan, 1956. It is argued that in view of the clear orders of the Governor, who had directed that the Allama should be sent for and an offer made to him as indicated, and if he agreed the case should be settled, no option was left but to obey the orders and pay the arrears of salary to the petitioner, that in fact an offer had been made and accepted by the petitioner and promise of payment made to him by the Under‑Secretary and it could not be rescinded. In fact, it is urged that as the order of the Governor has not so far been rescinded and is still in force, it has to be implemented. In view of the delay in its implementation, it is urged that this Court has ample power to order its obeyance by a writ of mandamus. On behalf of the respondent, it is urged that the order of the Governor was not a final but an interim order, in the nature of a tentative pro posal and a final order was necessary, and as no final order had been made by him, this writ petition cannot succeed. It is also urged that in view of the judgment of the Federal Court of Pakistan in The Federation of Pakistan v. Ali Ahmad Hussain Shah (P L D 1955 F C 522), and judgments of the Supreme Court of Pakistan in The State of Pakistan v. Mehraiuddin (P L D 1959 S C (Pak.) 147) and Government of West Pakistan v. Fazal‑e‑Haq Mussarrat (P L D 1960 S C (Pak.) 208) to the effect that the claim of a public servant for payment of salary against the State is not a contractual debt but a claim on the bounty of the State and no action at law lies for its enforcement, this Court has no power to grant the relief asked for in this writ petition. 5. In view of the above decisions, the principle is well settled that the claim of a public servant for payment of salary against the State is not a contractual debt but is a claim on the bounty of the State and no action at law lies for its enforcement. It was, however, observed by the learned Judges of the Supreme Court in the last of the above‑mentioned cases that once a decision has been given by a Court of law, the State as a party to the proceedings stands on no higher footing than an ordinary litigant and its duty to honour the Court's decree in the letter and the spirit would be too obvious to require any emphasis. Indeed the State might be thought to have a higher and more direct responsibility in maintaining the authority of the Courts and that responsibility is clearly inconsistent with a deliberate design to avoid implementing a solemn decree awarded by a Court, which though declaratory in form has its plain and unequivocal practical implications. 6. In connection with this principle, Kayani, C. J. observed at page 449 in case Muhammad Anwar v. Government of Pakistan (P L D 1962 Lah. 443) as follows:‑ "In at least two cases which have come to my notice, the Supreme Court had refused to allow the Government to repent the exercise of bounty, which had been exercised under the orders of the High Court and might well have been regarded as having been exercised under duress." In North‑Western Railway v. Ali Abid Shah (Civil Appeal No. 47 of 1959, decided on the 17th of December 1959), the appeal was dismissed with the following remarks:‑ 'If the railway had an equity or justice on its side, we would have perhaps been inclined to examine the case further. This Court's judgment in State of Pakistan v. Mirajuddin does not relieve, the Government of all ethical notions or absolve it of its more obligations, and in coming to the conclusion that we did in that case, we expected that the Government would in each case act honestly and conscientiously and not that arrears of salary would be refused en bloc and irrespective of the merits of the individual cases. In the present case the respondent has received a bounty from the State to which he was entitled in equity and the appeal by the Department merely detracts from that benevolent spirit.' 6. In Pakistan v. Manzoor Husnain (Civil Appeal No. 56 of 1959, decided on the 9th of March 1960), the appeal of Govern ment was dismissed with 'these remarks :‑ "In the present case, we have been told that the bounty of the State has already been exercised in favour of the respondent in deference to the order passed by the High Court and the respondent has received all the arrears of salary which he claim ed. No ground has been taken in the petition for special leave which could make out a case for restitution of the bounty of the State of which the respondent is the recipient." Kayani, C. J. went on the hold that in one aspect, therefore, the bounty and pleasure of the State had been controlled. 7. Granting that no action at law lies to enforce a claim of a public servant against the State for realisation of arrears of salary, the case of the petitioner is clearly distinguishable from the cases which have been relied upon by the learned counsel for the respondent, for the reason that the Governor of West Pakistan, in exercise of his powers as executive head of the Province, ordered that in case the petitioner agree to accept the arrears of salary from the date of his dismissal to the date when he sought election to the State Legislature, a settle ment may be made by paying him the salary, minus the income he had earned, for it would be difficult to deny him the arrears of salary if he gave an affidavit that he did not earn any salary during this period. This order amounted to and was clearly understood by the Secretaries of the Province of West Pakistan to be a direction to the executive officers concerned to settle with the petitioner and to pay the arrears of salary due to him for the period mentioned in the order. That was a decision taken to pay out of the bounty of the State. In accordance with his orders, an offer was made to the petitioner who accepted it. The order of the Governor was convened to him ‑not only by the Governor but also by the Under‑Secretary in the Education Department as is admitted by him. The offer was accepted by the petitioner and the Under‑Secretary made a clear promise to the petitioner to pay the arrears of salary to him soon. Having conveyed the decision there was no going back on it. It also matured into a contractual obligation. No order has so far been made to the contrary and the order remains in force and is operative. It cannot be and has not been denied that the Governor of West Pakistan had the power to make the order. The executive authority of the Province vested in him under Article 73 (I) of the Constitution of the Islamic Republic of Pakistan, 1956, which corresponds to Article 80 of the Constitution of Republic of Pakistan, 1962. All executive authorities subordinate to ‑the Governor were bound to obey his order in the letter and the spirit, which they have failed to do. Indeed, there would be chaos in the State if it be open to the Secretaries to the Government of West Pakistan to disobey or flout his orders. 8. We are not a little surprised that in the face of the orders of the Governor, the Department of Education in consultation with the Law Department of the Government of West Pakistan, came to the conclusion that the payment of the arrears of salary to the petitioner could be avoided on the principle of bounty and the pleasure of the State which is the sole defence which has been taken in this petition on behalf of the respondent. If this position had been taken on the advice given by the Law Department, all that we need say is that it was wholly miscon ceived. In the first instance this is not the attitude which a responsible Department of the Government like the Law Depart ment should have taken. Enough has been said by the learn ed Judges of the Supreme Court to give them a clear indication that it is a moral and solemn duty of the State to pay arrears of salary to a public servant. It should have realised that payment of arrears of salary had to be made under the orders of the Governor of West Pakistan which had bound the Secretaries of the Government to obey and honour the order. It is unthinkable that in any civilised system of Government, disobedience of the order of the highest executive authority in a Province is per missible. Moreover, by the Governor's order the pleasure had been expressed in Favour of the petitioner and by the exercise of bounty right to payment of arrears of salary was conferred and bestowed. 9. It has not been realised that this case is distinguishable on another ground also. The petitioner had obtained a decree from a Civil Court against the State of Bahawalpur before Integration. An appeal was filed in the High Court to challenge its correctness but it failed and, no further appeal was filed with the Judicial Committee of the State. The ‑decree became final against the State authorities, who were bound to pay the arrears of salary to the petitioner under Regulation 55 of the Bahawalpur State Civil Service Regulations. It has not been claimed before us that the principle of bounty and pleasure of the State could be availed of by the State authorities. In fact it was stated at one stage that this principle could not be availed of. Later, however, the learned counsel for the respondent stated that he was not in a position to contend in the absence of more detailed examination of authorities whether such a principle could be utilised by the State to avoid payment of the arrears of salary. If this principle could not be pressed into service, then the liability of the Govern ment of West Pakistan was created by section 9 of the Establish ment of West Pakistan Act, 1955, whereby the liabilities of the State of Bahawalpur became the liabilities and obligations of the Government of West Pakistan. 10. We find no force in the contention that the order of the Governor was a tentative proposal and not a final order. No such plea was raised in the written statement filed by the respondent. It is negatived by the Departmental file of the case which we saw. In fact it was clearly accepted as a final order which had to be implemented and on its basis an offer was made and promise of payment of the arrears of salary conveyed to the petitioner. 11. In view of what we have stated above, we need not decide the question of mala fide raised in the writ petition to the effect that the payment of salary was withheld for ulterior motives and for a mala fide purpose, merely for the reason that the peti tioner left the Government party in the Assembly and crossed over to the opposition side. It is enough to say that it was alleged in the petition that the file containing the orders of the Governor was removed by Mr. Hasan Mahmud, then a Minister in the Government of West Pakistan, and was put under lock by him so that the Governor's order were not implemented. The allega tion has not been categorically denied by respondent No. 1 but whatever may be the merit of this contention, it is obvious that the orders of the Governor had to be obeyed by the Secretaries of the Government concerned. 12. An order of the Governor passed by him on the 14th of July 1957 has not been implemented so far, though more than five years have gone by. At this disregard of the Governor's orders, we feel greatly concerned, and we have no doubt that we have the power to direct its obedience. We, therefore, direct that the order of the Governor of West Pakistan dated the 14th of July 1957 to pay to the petitioner the arrears of salary for the period fixed by the Governor be implemented within one month. We accept this petition with costs. K. B. A. Petition accepted.