1984 PLP 1897 (CLC)

(7) Was the pay of the plaintiff finally fixed by the A.G. East Pakistan on 2‑8‑1963 as alleged in para. 10 of the written statement and was the plaintiff informed of this fixation of pay? (8) Was an amount of Rs. 6,221.24 due from the plaintiff as alleged by the defendants in para. 11 of the written statement ? (9) Is the plaintiff entitled to the fixation of his pay as calculated in 'para. 16 of the plaint? (10) Is the plaintiff entitled to Rs. 29,275.23 as arrears of his pay ? (11) Is the position of the plaintiff that of an officer working on the terms of an expressed contract contained in the appointment letter or has plaintiff to be governed by various rules and notifications, orders and letters of the Government? (12) Is the Finance Ministry's Office Memorandum No. O. B. 2/18/63 IMP, dated 22‑4‑1964 applicable to the plaintiff ? (13) To what relief is the plaintiff entitled? After recording of the evidence, final arguments in the suit were heard by my learned brother Ajmal Mian, J. who reserved the judgment on 7‑5‑1978. However, it appears that my learned brother while writing the judgment noticed certain legal points on which no arguments were addressed by the parties' counsel and accordingly on 10‑5‑1978 he ordered for issuance of notice to the parties for 16‑5‑1978 for further arguments on the following points; "A notice may be issued to the learned counsel for the parties for 16‑5‑1978 for further arguments on the following points :‑

(the copy of this order should also be sent with the notice). (1) What is the effect of the fact that no decree can be passed against defendant No. 2. (2) Admittedly plaintiff was serving in the then East Pakistan and was drawing salary from the‑ Auditor‑General Office East Pakistan upto the time of the retirement from the service. Whether the arrears of salary can be recovered from defendant No. 1. ' (3) To what extent defendant No. 1 has to contribute' under the rules if any, towards pension and gratuity etc. payable to the plaintiff. (4) What is the‑ effect of the Service Tribunals Act, 1973 on the above suit." Thereafter the matter did not proceed further for one reason or the other in spite of the fact that it was fixed in Court on a number of occasions before the learned Judge and finally on 3‑3‑1979 the learned Judge directed that this case will not be treated as part heard by him. This case was, thereafter, fixed before me for arguments in the normal course. On 23rd April, 1981 after having adjourned this case more than once at the request of Mr. Aziz Munsbi, the learned Deputy Attorney‑General, I partly heard this case and for further arguments adjourned it to 13‑5‑1981. However, on 13‑5‑1981 when this matter came up before me Mr. Aziz Munshi, the learned Deputy Attorney‑General, did not appear and Mr. Sher Ali, Advocate put in appearance for defendant No. 1 and sought adjournment on the ground that the brief has been passed on to him by the Deputy Attorney‑General recently and he needed time to study the same. This request was opposed by the learned counsel for the plaintiff and rightly so as the case was very old and was also partly heard. I accordingly did not accede to the oral request of Mr. Sher Ali and proceeded to hear the arguments of the learned counsel for the plaintiff. At the close of the arguments Mr. Sher Ali filed written arguments on behalf of defendant No.

1. Before considering the issues adopted by the Court in the suit on 2nd April, 1970,1 would like to deal first with the four points mentioned in the order of my learned brother Ajmal Mian, J., dated 10th May, 1978.

2. I propose to deal with the first two points noted in the above order of my learned brother, together as in my humble view they can be con veniently dealt with together. The learned counsel for defendant No. 1 in his written arguments has contended that' as no decree can be passed against defendant No. 2 under the changed circumstances now, therefore, the suit should be dismissed as a whole as in the absence of any constitutional provi sion or law the liability of the former Government of East Pakistan (defendant No. 2) cannot be transferred to the Government of Pakistan (defendant No. 1). The contention raised by the learned counsel proceeds on the assumption that the liability for payment of arrears of salary and the pension of the deceased was that of the then Government of East Pakistan alone. This argument of the learned counsel completely overlooked the case set up by the deceased in the suit that be was a permanent employee of All‑Pakistan Police Service which was Central Government employment, and therefore, defendant No. 1 was liable for payment of all his dues for arrears of salary pension and gratuity. Therefore; if the plaintiffs succeed in showing that Government of Pakistan (defendant No. 1) is liable legally for payment of the dues claimed by the deceased in the suit, I fail to see how the suit could be defeated as a whole for the reason that no decree can be passed now against defendant No.

2. Where there are more than one defendants in a suit and relief against some of them cannot be granted in the changed circumstances it does not necessarily follow that suit against the other defendant will also be dismissed for that reason. In such a case if the plaintiff succeeds at the trial to establish that he is entitled to the whole or a part of the relief against the other defendant in the suit then notwithstanding the fact that the suit in the changed circumstances cannot proceed or is liable to be dismissed against some of the defendant or defendants would not disentitle the plaintiff1 to the relief which the Court can grant effectively against the remaining defendant in the suit. I will, therefore, examine in this case whether relief can be granted to the plaintiff against defendant No. 1 in spite of the fact that no decree can now be passed against defendant No.2 in the suit. The admitted position in the case before me is that plaintiff was initially appointed as a Deputy Superintendent of Police by the then Government of East Bengal ; but later on with effect from 8‑11‑1948 he was absorbed as member of All‑Pakistan Police Service which was a Central Government service. In the written statement filed on behalf of defendant No. 1, it is asserted in clear terms that the pay of the Provincial police officer appointed to the superior post in the cadre of P. S. P. was to be fixed according to th4z decision of Central Government and$ accordingly it was contended by defendant No. 1 that pay of the deceased in the senior scale of P. S. P. was fixed, as per formula laid down in paragraph 2(a) of the Ministry of Interior Letter No. 10‑38/52‑Police (i), dated 12‑2‑1954 which admittedly applied only to the police officer in the employment of Central Government. The fact that deceased until his retirement continued to serve the Government of East Pakistan and drew his salaries from Accountant‑General, East Pakistan could not change the nature of employment of the deceased as a member of the All‑Pakistan Police Services. It is admitted in the written statement of defendant No. 1 that the pension of the deceased was fixed by the Central Government in consultation with A.‑G., East Pakistan. These admissions in the written statement of defendant No. 1 are clear pointer to the fact that the deceased was a Central Government employee for all practical purposes. In the Book entitled "State Succession in Municipal Law and International Law" by D. P. O'Connell, published by Cambridge University Press (Volume I) at page 468 while dealing with the Doctrine of Acquired Rights and Pensions and Salaries" it is observed as follows :‑

"Where an official was employed by the Central Government his right to a pension are enforceable against that organ alone. The change of sovereignty over the territory in which he either is domiciled or was employed does not affect the contractual relationship between him and the treasury, and there is no reason why the successor State should be the authority obliged to satisfy his interest." The above principle in my humble view will apply with equal force to the case of arrears of salary as well. 1 am, therefore, of the view that no constitutional provision or any other legal provision was necessary to save a claim of this nature by an employee of Central Government against it. I accord ingly hold that the plaintiff's suit against defendant No. 1 is competent in spite of the fact that no decree in the suit can be passed now against defen dant

2. I am further of the view that the fact that the deceased all along served under the then Government of East Pakistan and drew his salary from A.‑G. East Pakistan, will not effect the liability of defendant No. 1 for the arrears of salary pension, gratuity etc. as the deceased was Central Government employee being the member of the All‑Pakistan Police Services (P. S. P.). The third point noted in the order of my learned brother relates to the extent of contribution of defendant ‑ No. 1 under the rules, if any, towards the pension and gratuity payable to the plaintiff. The defendants have neither raised any such plea in their written statements nor have they led any evidence on the point. In my humble opinion in the absence of a plea to this effect in the pleadings of defendants and the fact that the defendants have not led any evidence on this point it is not possible to decide the same. I may, nevertheless mentioned here that in paragraph 10 of the written statement filed on behalf of defendant No. 1 it is categorically stated that in March, 1966 Government sanctioned a pension after obtaining report from the A.‑G. P. on the amount of pension and gratuity admissible to the deceased. C On the face of this admission in the written statement of defendant No. 1 the contention raised by Mr. Sher Ali that defendant No. 1 was not liable to pay any pension or gratuity to deceased in view of the provisions contained in section 4, Appendix III to the Accounts Code Volume I has no force. The last point noted in the order of my learned brother is with regard to the effect of the provision of the Services Tribunals Act, 1973 on this suit. There is no difficulty in answering this point as the provisions of Services Tribunal Act are not applicable to the cases in which orders were passed before 1‑7‑1969. The orders in this case were admittedly of such earlier date. In the written arguments filed on behalf of defendant No. 1 it is conceded that the suit is not hit by section 6 of the Services Tribunal Act.

4. Having dealt with all the points noted in the order of my learned brother dated 10‑5‑1978, I will now consider the issues settled in the suit by the Court on 2nd February, 1970. This issue relates to maintainability of the suit. It is contended on behalf of defendant No. 1 in the written arguments that the suit with regard to pension is not maintainable under section 4 of the Pension Act, 1871. The relevant provision relied upon by the defendant No. 1 is as follows :‑ "(4) Except as hereinafter provided, no civil Court shall entertain any suit relating to any pension or grant of money or land revenue conferred or made by the (Federal Government or any Provincial Government) or any former Government, whatever may have been the consideration for any such pension or grant and whatever may have been nature of the payment, claim or right for which such pension or grant may have been substituted." A reading of the above provisions of law will show that except as otherwise provided in the Act civil Courts have no jurisdiction to entertain and adjudicate upon disputes relating to pension or grant of money or land Revenue conferred or made by the Government. This section is very widely worded and the leaves no room for adjudication by a civil Court any dispute relating to pension or grant of money in any form. The present suit does not fall under section 6 of the Act which authorises a civil Court to entertain claim for recovery of pension in particular circumstances. Mr. Kamal Mansoor Alam, the learned counsel for plaintiff contended that the High Court is not a civil Court within the meaning of section 4 of the Act. The learned counsel has relied upon the case of Hussain Bakhsh v. Settlement Commis sioner (PLD19708C1) to support his contention. The case cited by the learned counsel has no relevance as in that case the argument considered by the Supreme Court was with regard to power of review by the High Court while exercising writ jurisdiction under Article 98 of the Constitution of 1962. I am, therefore, of the view that the jurisdiction of this Court is barred to entertain the dispute with regard to pension of the deceased. This issue raises the question of limitation. It is contended in the written arguments on the behalf of defendant. No. 1 that the cause of action for recovery of salary is governed under Act 102 of the Limitation Act which provides a period of 3 years and the limitation will start from the last day I of each month. Article 102 of the Limitation Act relied upon by the learned counsel for defendant No. 1 in my view will apply in those cases only where there is no dispute with regard to the rate of salary. However, where the amount of salary is yet to be fixed, this article of Limitation Act will have no application. The cause of action in such a case in my opinion will arise from the date the employee concerned is informed about the fixation of his salary. In the present case Were is sufficient material on record to show that there were serious differences/ disputes between the deceased and defen dant No. 1 with regard to the fixation of his pay. In one of the letters dated 30th August, 1954, produced in the evidence it is stated that the question of confirmation of the deceased in the listed post of P. S. P. is under consideration of the Government of Pakistan, Ministry of Interior and as soon as orders are issued the question of fixation of his pay in the P. S. P. scale will be taken up with the Central Government. Defendant No. 1 in its written statement had contended that the salary of the deceased was fixed on 2‑8‑1963 but in the written argument filed on behalf of defendant No. 1 it is conceded that the order, dated 2‑8‑1963 has been produced in the evidence. The deceased had denied this fact and the defendant No. 1 did not lead any evidence to show that the salary of the deceased was so fixed on 2‑8‑1963 and that the deceased was intimated about it. On the contrary the deceased all along kept agitating that his salary was not fixed in the scale to which he was entitled. On 27‑4‑1966 the deceased was for the first time intimated about fixation of salary when a copy of Memorandum No. Reg. VI/IP‑12/65, dated the March, 1966 was endorsed to him demanding from him a sum of Rs. 6,221.24 allegedly over drawn by him. Even in this letter the amount of re-fixed salary of the deceased was not disclosed. From the pleadings in the suit it is quite clear that the dispute between the deceased and defendants related to the fixation of his pay under the relevant rules. In these circumstances even if it be assumed that the deceased's salary was fixed as contended by defendant 1, even then the deceased was informed of such fixation only by the letter referred to above copy whereof was endorsed to him for the first time on 27th April, 1966, and therefore, the suit as filed on 25‑4‑1969 is within time. It is contended on behalf of defendant No. 1 that this Court has no jurisdiction to try the suit as the deceased was in the service of the then Government of East Pakistan and also retired there, and therefore, the cause of action, if any arose within the then territory of East Pakistan. From the written statement filed on behalf of defendants in the suit it is clear that the deceased was a Central Government employee being the member of Pakistan Police Services: The gratuity and the pension of the deceased was sanctioned according to paragraph 10 of the written statement by the Central Government in March, 1966. The actions which are challenged in the suit of defendant No.

1. It is not disputed that suit against defendant No. 1 could be filed in this Court. I therefore, hold that this Court has jurisdiction to try the suit. Issue No. 4 ; In view of any findings on Issue No. 1 that this Court has no jurisdiction to try a dispute relating to the payment of pension, this issue cannot be decided by this Court. It is contented on behalf of the defendant that since the plaintiff resigned from his post in U. P. Government (India) with effect from 12.4‑1948 and was appointed by the Government of East Pakistan with effect from 11‑11‑1948 his appointment by the Government of East Pakistan was on the terms and conditions mentioned in Exh. 6/7 relied upon by the defendant No.

1. The deceased was offered an appointment in the provincial police cadre as substantive Deputy Superintendent of Police. The deceased was asked to intimate if he was willing to resign from his present post under the U. P. Government and join the police service of East Bengal. The deceased, it appears, accepted the offer and after resigning from his post joined East Bengal Police Services. The appointment of deceased though appeared to be a fresh appointment was treated in the nature of a transfer of service from one Government to another as would appear from the notification, dated 12‑6‑1954 (Exh. 6/11) and accordingly the requirements of consultations for new appointments with the Police Services Commission of East Bengal were dispensed with. Similarly vide Exh. 6/9, dated 23‑11‑1943, the deceased was allowed actual railway or steamer fares for himself and his family members from his present residence to the place of posting as admissible under the rules. The concession is not allowed in case of afresh appointment but is admissible only the transfer from one Government to another. Apart from these facts, the Government of Pakistan while considering the question of payment of pensionary benefit to the displaced Provincial/ States Government servant (vide Exh. 6/15), who left their pensionable post in India and were later employed under the Government of Pakistan, decided that such employees if re employed by the Central Government of Pakistan, on or before 31‑12‑1950, will be allowed benefit of service rendered by them in the provinces in India. Even the temporary employment of such employees in the Central Government of Pakistan was treated as qualifying service for grant of pension. In this policy decision the Government also condoned the break of service of such employees. It is also not disputed that the seniority of the deceased was fixed in the service taking into account the service rendered by him in the province of India. From the above fact it is quite clear that continuity of deceased's service was maintained. It accordingly hold that the appoint ment of the deceased in East Bengal Provincial Police Service was treated as a transfer of service from one Government to another and the continuity of service rendered by the deceased in India was maintained. This issue is the main issue in the suit. The deceased had claimed that his pay was liable to be fixed in accordance with paragraph 3 of letter No. 10/38/52 Police 1, dated 12‑2‑1954 read with letter No. 42/4/46‑Police, dated 6‑7‑1946. The defendants on the other hand contended that the case of the deceased fell under paragraph 2(al of the above letter. In the written arguments filed on behalf of defendant 1 it is contended that paragraph 3 of the above letter was not applicable to the case of deceased as he was not a permanent member of the East Pakistan Police Service, on 18‑7‑1947 having been appointed in the said Province on 11‑11‑1948. Paragraph 3 of the letter referred to above is in the following terms; "(3) An officer of a Provincial Police Service who was a permanent member of that Service on the 18th July, 1947 and was, with effect from a date prior to the 1st January, 1949, appointed to hold sub stantively a superior post on the cadre of the Police Service of Pakis tan which fails within the quota 'of posts reserved for members of the Provincial Police service shall be entitled to draw pay in the superior time scale of the old I. P. His pay in that scale shall be fixed as from the date of hid substantive appointment to the superior post according to the orders issued by the late Government of India. Home Depart ment, in their Notification "No. 113‑111/24, dated the 20th March, 1928 as subsequently amended in their letter No. 42/4/44‑Police, dated the 6th July, 1946, subject to the application, upto the 31st March, 1951, of the orders made in the Government of Pakistan, Ministry of Finance O. M. No. 3885‑EG/11/48, dated the 12th July, 1949, as amended from time to time." A reading of the above paragraph will show that for application of this paragraph to the case of a Police Officer two conditions were prescribed. Firstly he must be an officer in a Provincial Police Service on 18‑7‑1947 and secondly prior to 1‑1‑i94j he should have been appointed to hold substantively a superior post reserved for members of Provincial Police Services in the cadre of Police Services of Pakistan. The deceased fulfilled both the above qualifica tions. The deceased was undoubtedly a permanent member of the Provincial Services on the target date namely 18‑7‑1947 in the Provincial Government of United Province (India). The fact that the plaintiff was a permanent employee of‑the Provincial Government of U. P. is borne out from Exh. 6/2 which is a certificate from the U. P. Government confirming that the plaintiff was confirmed as Deputy Superintendent Police w. e. f. 16‑3‑1941. Again in Exh. 6/5 which is a civil list published by the U. P. Government, at page 265 the name of the deceased appeared as Deputy Superintendent of Police. Similarly in Exh .6/9, dated 23‑11‑1948, the plaintiff is shown as directly recruited Deputy Superintendent of Police in the United Province of India and officiating Superintendent of Police since 1947. The deceased in his examination‑in‑chief (Exh. 6) stated on oath that he was appointed on 16‑3‑1939 as Deputy Superintendent of Police in United Province (India) and after completing two years period he was confirmed in that post. This state ment of plaintiff was not at all challenged in the cross‑examination. There is, thus, sufficient evidence on record to show that the deceased was a permanent Police officer in the Provincial Police Service of U. P. (India) on 19‑7‑1947. The deceased's appointment in the cadre of Police Service of Pakistan prior to 1‑1‑1949 in the quota reserved for members of Provincial Police Services is evidenced by the two Exhs. 6/12 and 6/14, dated 25‑6‑1959. In Exh. 6/13 the deceased is stated to have been appointed by then Government of Pakistan to be the member of Police Services of Pakistan with effect from 11‑11‑1948. In the second Exh. 6/1 the deceased who was officiating Superintendent of Police is shown to have been confirmed in the post w. e. f. 11‑11‑1948. The case of plaintiff was, therefore, fully covered under paragraph 3 of letter Exh. 6/17. Paragraph 2 had no application to the case of the deceased as paragraph 2 applied to such case which are not covered under paragraphs 3 to

5. The contention raised on behalf of defendant No. 1 that the deceased not being a permanent member of the Provincial Police Service of East Pakistan on 18‑7‑1947 was not covered under paragraph 3 of Exh. 6/17 but will be governed under paragraph 2 of the latter, is based on a misconceived interpretation of the above instructions. There was admittedly no province of East Pakistan in existence on 18‑7‑1947 as Pakistan itself came into being on 14‑8‑1947. The Provincial Police Service referred to in paragraph 3 of Exh. 6/17, therefore, has reference to the Provincial Governments of the then India and not Pakistan. I accordingly hold that the salary of the deceased was liable to be fixed in accordance with the principle laid down in para graph 3 of Letter No. 10/38/52‑Police I, dated 12‑2‑1954. It was contended on behalf of defendant Not 1 that the salary of the deceased was fixed by the Accountant‑General East Pakistan on 2‑8‑1963 and he was informed of his fixation of pay. The learned counsel for defendant No. 1 in the written argument has conceded that this order is not, produced in the evidence and there is no other evidence in support of it. The deceased had denied this fact in his evidence. I accordingly hold that the defendants have failed to prove this issue. Defendant No. 1 has claimed that a sum of Rs. 6,221.24 was overdrawn as pay by the deceased which he was liable to pay to the defendants. This amount is stated to be so due from the deceased in the letter (Exh. 6/22), dated March, 1966. The deceased in his evidence had denied that this amount was overdrawn by him. The burden of proving this issue was on defendants. The deceased was not cross‑examined by the defendants' counsel on this point. No evidence was led by the defendants to prove how this amount was due from the deceased. The deceased however in his examination‑in. chief (Exh. 6), stated that he had no objection to the deduction of car advance amounting to Rs. 339.59 claimed in paragraph 5 of letter Exh. 6/22. I accordingly hold that the defendants have failed to prove that a sum of Rs. 6,221.24 was due and payable by the plaintiff. I will deal with both these issues together as they are inter‑concocted. I have already held under Issue No. 6 that the deceased was entitled to the fixation of his pay in terms of paragraph 3 of the letter Exh. 6/17. The learned counsel for the plaintiff accordingly contended that the minimum pay of the deceased on promotion to the superior post in the P. S. P. Cadre should have been fixed from the date of his substantive appointment which was 11‑11‑1948, according to the orders issued by 'the late Government of India, Home Department vide Notification No. F‑113‑III/24, dated 20‑3‑1928, as amended by letter No. 42/4/44‑Police, dated 6‑7‑1946. In accordance with the letter dated 6‑7‑1946, the minimum pay of such officer was to be fixed on‑the senior time scale of pay at the lowest stage which exceeded not less than Rs. 200 a month of the substantive pay last drawn by him in the regular line of his service or at the stage of the 11th year of service which ever is greater. The basic pay of an officer of P. S. P. Cadre at the 11th year is admitted to be Rs. 800 as shown in the Annexure to Exh. 6/17. The deceased's salary, therefore, should have been fixed at Rs. 800 per month from 11‑I1‑1948. The deceased had produced the calculation of his arrear of pay on that basis (Exh. 6/23) which worked out to Rs. 29,275.23. The only contention of learned counsel for defendant No. 1 is that paragraph 3 of letter Exh. 6/17 was not applicable to the deceased. He made no attempt to show that the calculation made by the deceased in Exh. 6/23 were wrong or incorrect if paragraph 3 of Exh. 6/17, applied to the case of the deceased. I have examined these calculations in the light of relevant rules and they appeared to be correct. I accordingly hold that the deceased was entitled to the arrears of his salary amounting to Rs. 29,275.23. It is contended by the learned counsel for defendant No. 1 that this issue does not arise on the pleadings of the parties. It is further stated by the learned counsel that the service of the deceased was governed in accor dance with the rules, notification and orders of the Government applicable to him. In view of this statement of the learned counsel for the defendant No. 1 and in view of my decision on Issue No. 6 this issue need not be decided specifically. This issue cannot be decided by this Court in view of my decision on Issue No.

1. As a result of the above discussion I declare that the deceased's pay was liable to be fixed in accordance with the principles laid down in paragraph 3 of letter No. 10‑38/52‑Police‑1, dated 12‑2‑1954 and accordingly the deceased was entitled to further benefits if any, on retirement in the light of the above instructions. The plaintiffs are, therefore, entitled to a decree for arrears of salary amounting to Rs. 29,275.23 with proportionate costs against defendant No.

1. The plaintiffs will also be entitled to interest at rate of the 6 per cent per annum on the amount of arrears of salary from the date of decree till the amount is paid. The suit against defendant No. 2 is dismissed with no order as to costs. S. Q. Suit decreed.