1984 PLP 35 (SCMR)

NASIM HASAN SHAH, J.‑The appellant was a permanent Assistant School Mistress in the Cantonment Public School, Quetta when her services were terminated by the Cantonment Board, with effect from 4‑4‑1966: She assailed the legality of the aforesaid order of termination by filing a Writ Petition (W. P. No. 69 of 1972) before the Karachi Bench of the erstwhile High Court of West Pakistan at Karachi. The writ petition was allowed by a judgment dated 13‑11‑1975 by a Division Bench of the Sind Baluchistan High Court with the result that the order of termination was held as illegal and without lawful authority. In consequence thereof, an office order dated 22‑8‑1977 was issued by the Director, Federal Government Educational Institutions, Rawalpindi, to the effect that the appellant shall stand re‑instated in service with effect from 4‑4‑1966 and that the arrears of pay due to her between the period from 4‑4‑1966 to 31‑5‑1975 (i. e. the period before the nationalisation of Schools) shall be paid by the Cantonment Officer, Quetta and the other arrears from 1‑6‑1975 till date (i. e. upto 18‑9‑1977) shall be paid by the Federal Government Public High School, Quetta.

2. The appellant, accordingly, was reinstated in service from 19‑9‑1977 and was also paid the arrears of salary from 4‑4‑1966 to 31‑5‑1975 by the Chairman, Cantonment Board, Quetta. As for the arrears of salary from 1‑6‑1975 to 18‑9‑1977, which were to be paid by the Federal Government Public High School, Quetta, the appellant's pay bill was forwarded by the Federal Government Public High School, Quetta to‑ the Comptroller, Baluchistan, who after approving it sent it to the Controller of Military Accounts for payment. The Director of Army Education, G. H. Q. Rawalpindi, however instead of paying the amount sought advice of the Law Division whether it was bound to pay the said arrears. The Law Division appears to have opined that the appellant was not entitled to draw the arrears on account of pay and allowances for the period of her termination from service. Therefore, in modifica tion to the order of his predecessor dated 22-8‑1977 the Director of Army Education, by his order dated 23‑8‑1979, prohibited the payment of arrears liable to be paid by the Federal Government from 1‑6‑1975 to 18‑9‑1977 and advised/ordered that the said period should be treated without pay.

3. Since the payment of the arrears of pay was prohibited by the aforesaid order dated 23‑8‑1979, the appellant again approached the High Court by another Writ Petition (Constitutional P. No. 573/1979) seeking a declaration that the aforesaid order dated 23‑8‑1978 passed by the Director, Army Education GHQ, Rawalpindi, was passed without lawful authority and was of no legal effect. In this connection, it was submitted that by the earlier order dated 22‑8‑1977, the Director Army Education had allowed the arrears of pay for the period during which the appellant had been kept out of service by the illegal order of termination and, therefore, the subsequent order of 23‑8‑1978 purporting to modify the same was without lawful authority and may be declared accordingly.

4. The High Court, however, refused to accept this prayer on the ground that the relief sought by the appellant was, in fact, a money claim, for which the appropriate remedy was the civil Court. It further observed that if the appellant was of the view that any of the terms and conditions of her service had been violated the proper venue for vindication of such a claim was either the higher appropriate authority under the rules or the Services Tribunal. Consequently, the approach of the appellant to the High Court in its Constitutional jurisdiction was inappropriate. Her writ petition was, accordingly, dismissed. Hence this appeal, by leave of this Court.

5. After hearing learned counsel for the parties, we are of the view that in case the appellant was, indeed, entitled to receive the arrears of her salary, during the entire period that she was kept out in service by an order of termination which was found to be unlawful, the authorities should honour her claim for payment of arrears of the salary. The question whether she should approach the Civil Court or the Service Tribunal for this purpose was not very pertinent in the face of the bounden obligation of the authorities to satisfy this claim themselves without the necessity of driving a needy litigant from pillar to post. We, therefore, summoned the learned Deputy Attorney‑General to assist us on the question whether the appellant was entitled to the arrears of pay, if so, to obtain instructions from the relevant quarters as to why they should not satisfy the appellant's claim.

6. Mr. Aziz A. Munshi, learned Deputy Attorney‑General has, after studying the question, stated before us that in his opinion the appellant was, indeed, entitled in law to receive the arrears of pay for the period in question, namely, from 1‑6‑1975 to 18‑9‑1977 exactly in the same manner as she was allowed the arrears of salary for the earlier period, namely, from 4‑4‑1966 to 31‑5‑1977, an opinion with which we are inclined to agree. However, he further informed us that he was not in a position to make an commitment on behalf of respondent No. 2 in this connection.

7. Mr. Khalid M. Ishaque, learned counsel for the appellant welcomed the statement of the learned Deputy Attorney‑General and submitted that in view of the enunciation of the legal position by the learned Deputy Attorney‑General he was not desirous of pressing before us the present appeal but would be taking up the matter for payment of the arrears with the relevant departmental authority.

8. In view of the above statements made before us, it is not necessary for us to go into this matter any further and this appeal stands disposed of accordingly. S. Q. Appeal disposed of.