P L D 1959 Supreme Court (Pak (PLP)

Faiyaz Ali, Attorney‑General, (Ziauddin, Advocate, Supreme Court with him) instructed by Iftikharuddin Ahmad, Attorney for Appellants. Maulvi Mushtaq Hussain Advocate Supreme Court, instructed by S. Zahir Abbas, Attorney for Respondent. Civil Appeal No. 65 of 1958. Faiyaz Ali, Attorney‑General for Pakistan, (Abdul Haq, Advocate, Supreme Court with him) instructed by Iftikharuddin, Attorney for Appellant. Mazhar Ali Azhar, Advocate, Supreme Court, instructed by Wall Muhammad, Attorney for Respondents. Civil Appeal No. 77 of 1958. Faiyaz Ali, Attorney‑General for Pakistan, (Abdul Haq and Asadullah Khan, Advocates, Supreme Court with him) instructed by Iftikharuddin Ahmad, Attorney for Appellant. Mushtaq Hussain Khan, Advocate, Supreme Court, instructed by Ch. Mazhar‑ul‑Haq, Attorney for Respondent. Dates of hearing: 19th and 20th January 1959. CORNELIUS, J.‑This judgment will dispose of three civil appeals brought before the Court by special leave, namely, No. 36 of 1958, Pakistan v. Mehrajuddin, lately a stenographer employed in the North‑Western Railway, No. 65 of 1958, General Manager, N. W. R., Lahore v. Muhammad Ashraf Beg, lately an Assistant Station Master on N. W. R. and No. 77 of 1958, Pakistan v. Ali Akbar Khan, lately office superintendent in the Railway Office at Multan. The principal questions arising for decision are common to these appeals and arguments have been heard in the three cases together. It will be convenient thereto dispose of these appeals by means of a single judgment. The following statements of facts will assist in the disposal of these appeals. Mr. Mehrajuddin was an ordinary grade stenographer when on the 19th February 1951, an order was made to the effect that he had been promoted to the selection grade of stenographer with effect from the 1st January 1949. Thereafter he was reverted to his ordinary grade on the 16th May 1951. He was again promoted to officiate in the selection grade with effect from the 11th July 1951, but was reverted to his permanent position with effect from the 1st September 1951. On the 16th October 1951, he was again promoted to officiate as special grade stenographer " until further orders ". From this position lie was reverted on the 24th December 1952. On the 1st June 1951, he filed a suit in a Civil Judge's Court at Lahore for a declaration that the orders of the 16th May 1951, 30th August 1951 and 24th December 1952 " reducing him in rank " were ultra vires, illegal and of 'no effect. He sought a declaration that he was rightfully promoted as stenographer in the selection grade as from the 1st January 1949 and still continued to hold that post. On the 30th January 1956, the Civil Court granted a decree as prayed. The reason given for holding that Mr. Mehrajuddin still continued to be a selection grade stenographer was that he had " never been reverted to the ordinary grade in due course of law ". This conclusion was based on the finding that by being deprived of his officiating appointment, the plaintiff was involved in reduction of rank which could only be effected after notice to him as required by section 240 of the Government of India Act, 1935, which was then in force. The Court also held that through the absence of any words in the order of the 19th February 1951, by which Mr. Mehrajuddin was stated to have been promoted to the selection grade with effect from the 1st January 1949, indicating that the appointment was of an officiating nature, it was clear that the promotion from the 1st January 1949, was 69 absolutely unfettered, unconditional and was not effected for a specific period ". Upon this basis, the Court held that the intermediate orders of reversion dated the 16th May 1951 and the 30th, August 1951, were void. It does not appear that the atten tion of the Court was ever drawn to the fact that these orders which had been at the time accepted by Mr. Mehrajuddin were of dates nearly three years before he first thought of filing his suit, and were consequently of significance in assessing the true nature of the order of, the 19th February 1951, which was clearly an ex post facto order designed to rectify matters from the service and accounts points of view. However, it seems that the Railway administration did not move an appeal against the judgment of the Civil Judge. After waiting for some six months Mr. Mehrajuddin filed a writ petition in the High Court praying for " a writ of mandamus or any other appropriate writ, order or direction " to the Railway authorities firstly that he should be formally re-designated as selec tion grade stenographer with effect from the 8th May 1951 secondly that he should be paid a sum of Rs. 5,750 on account of arrears of his salary and thirdly that salary should for the future be paid to him on the selection grade. The High Court made an order on the 10th October 1956, which states that Mr. Mehrajuddin had retired from the service with effect from the 15th September 1951 and therefore there was no question of his reinstatement. Yet in the face of the decree obtained by him, the Railway authorities could not contend that he could not be treated as holding a selection grade post from the 1st January 1949, up to the date of his retirement. As to the point that the decree was declaratory in form, the learned Judges observed that the " implications clearly were that the Railway was bound to pay him his emoluments from 1st January 1949 onwards as if lie was a duly appointed selection grade stenographer ". They went on to say that as a Government Department, the Railway should not take " shelter behind the plea that the decree is declaratory in form " and that they were expected to " honour the decree in letter and spirit ". Upon these foundations, the learned Judges made an order as follows:‑ " We direct under Article 170 of the Constitution that the Respondent (2) should arrange to pay whatever is due to petitioner by way of salary or other emoluments on the footing that he continued to hold a selection grade stenographer s post from 1st January 1949 up to the date of his retirement . " The second respondent to the petition was the Financial Adviser and Chief Accounts Officer, N. W. R. Thereafter, the Railway authorities made an unavailing effort to have this order reviewed, after which they applied for and were given special leave by this Court to appeal against the order of the High Court particularly upon the ground appearing in paragraphs 9 and 10 of the petition in the following words:‑ "Salary being on the bounty of the Crown payment of salary cannot be ordered by a Court and the High Court in exercise of power of writ jurisdiction have no such power. That the learned Judges of the High Courts directing payment of salary went beyond their jurisdiction and they exercised jurisdiction that they did not possess ". In the second case Mr. Muhammad Ashraf Beg was an Assistant Station Master in the North‑Western Railway, when he was discharge with effect from the 24th May 1952, with a month's pay in lieu of notice. This order purported to be made " in terms of service conditions " and it seems that the correct reference was to the " service agreement ", which indeed provides in the case of officers of the status of Mr. Muhammad Ashraf Beg that their services may be terminated without cause shown upon a month's notice given by‑ the Railway, in lieu of which notice may be paid a month's salary. On the 26th July 1952, Mr. Muhammad Ashraf Beg filed a suit for a declaration that the order of discharge was void and inoperative and that the plaintiff continued in service. A decree was awarded in these terms. The Court relied on the words of the notice of discharge, that it was being given in accordance with the terms of service conditions for rejecting the plea that discharge was in terms of the service agreement. Treating the case as one of removal from service, and finding that no notice had been given to Mr. Muhammad Ashraf Beg to show cause why he should not be removed, the Court held that there had been a violation of section 240 of the Government of India Act and that therefore the purported removal was void in law. No appeal was filed against this decision by the Railway authorities. On the 31st October 1955, an order was made that Mi. Muhammad Ashraf Beg (along with certain other officials who had been dismissed at about the same time) were ‑reinstated in their former position with immediate effect. They were directed to assume their duties after passing certain tests, but a direction was added that " the period, of their absence from 24th March 1952, to the dates they resume duty is treated as dies non ". Two days later, a further condition was added that in the case of Mr. Ashraf Beg, he should refund the amount of Rs. 965‑9‑0 which had been paid to him upon his discharge as the amount to his credit in the Railway Provident Fund, before he could resume service. On the 5th December 1955, Mr. Ashraf Beg wrote a letter to the Railway authorities declining to accept the dies non condition. He did not resume duty, but on the 28th August 1956, applied in the High Court for a writ of mandamus or other appropriate writ or direction asking for reinstatement free of conditions and specially the condition of dies non as " his seniority, increment, grade and all incidental advantages were to be wiped out for the inter vening period resulting in a great loss ". The Railway authorities replied that Mr. Ashraf Beg had been reinstated and directed to resume duty, subject to the condition of dies non and refund of the Provident Fund money, that he did not resume duty, but protested about the dies non condition as to which he was told that the question of dies non could not be reconsidered unless the Provi dent Fund money was first refunded and he came back to duty. Accordingly, they placed the blame upon Mr. Ashraf Beg for the failure of the order of reinstatement. The order of the High Court in the case is dated the 12th December 1956. It is to the effect that the Railway authorities had conceded that they were bound to implement the decree of the Court, that the plea that Mr. Ashraf Beg was in default had no force because while the Railway had attached an " illegal condition " to the order of reinstatement, they offered to Mr. Ashraf Beg nothing more than a mere promise to reconsider this condition and finally the order was made that Mr. Ashraf Beg should forthwith be reinstated in terms of the Civil Court's decree, Mr. Ashraf Beg next applied to the High Court on the 13th June 1957, for action to be taken against the General Manager, North‑Western Railway for con tempt of the High Court's order alleging that, contrary to the direction given, the Railway had reinstated him with effect from the date of his discharge, but had also directed that from that date to the date of resumption of duty, he would be treated as 'laving been on leave without pay. A report was called for from the respondent, and thereafter on the 24th July 1957, a notice was sent to the respondent to show cause why he should not be committed for contempt. In the reply to this notice, the Railway authorities first pleaded that the direction of the High Court had been complied with. They proceeded; it seems without reason, to point out that the High Court had made no order for payment of arrears of salary and that under the law, a decree for salary due to a public servant could not be awarded. Yet, in conclusion, the submission was made that " if on account of non‑payment of arrears of salary, this Court comes to the decision that the respondent has in any way injured the dignity (which was never the intention of the respondent the respondent is prepared to pay the arrears of salary, and offers unqualified apology etc . . . . . . . ". The suggestion regarding payment of salary seems thus to have been first made by the Railway authorities. Some further proceedings followed, and in the interval it appears that a cheque for a certain amount was prepared and submitted to the Court which ordered on the 13th November, 1957 that it should be delivered to Mr. Ashraf Beg against security in case the High Court's orders were set aside. This was necessary because in the meantime on the 12th September, 1957, the General Manager of the Railway had moved this Court for special leave to appeal against the orders of the High Court issuing a notice of contempt to him, and leave to appeal had been granted on the 11th October 1957 to consider a number of questions including the question whether the "notice of con tempt was only an indirect means of forcing the Railway to do what they arc not bound to do". In the third case, Mr. Ali Akbar Khan was office superin tendent at Multan when he was dismissed on the 13th July, 1953, by an order directing that he would receive a month's pay in lieu of notice. He filed a suit on the 6th July, 1954 for a declaration that the termination of his service was void, and for payment of " Rs. 32,200 plus interest till 21st April, 1957 the date of his retirement as pay, dearness allowance, P. I. Fund and special contribution in gratuity plus compound interest on P. I. Fund". Later, the money claim was withdrawn and the suit proceeded only for a declaration that the order of dismissal was illegal. The Railway authorities relied upon a service agreement, and it appears that they pleaded that the particular service agreement signed by Mr. Ali Akbar Khan had been lost in the course of transfer of documents to Pakistan on Partition. It seems that an attempt was made to establish that under the rules applicable to Mr. Ali Akbar Khan, he was required to bind himself by such a service agreement in a prescribed form. In the judgment of the Civil Judge, Lahore decreeing the suit for declara tion, it was observed that the allegation of an agreement:‑ " Seems to be merely a wishful thinking of the defendant and not a least iota of proof has been brought on the file to prove the bare existence of any such contract among the parties. Merely by the deduction that it is provided in the rules of the defendant railway that such agreement is to be entered into with the employees, does not go to prove that actually any such agreement was actuated. I do not think in these circum stances, there is any requirement of discussing the legal value of such an agreement which is only a note‑existence fantasy only in the minds of the defendant. Defendant was, rather served with a notice by the plaintiff to produce, any such agreement, but they failed to do so." An appeal was filed in the Court of the Senior Civil Judge, Lahore, but after the lapse of time. Furthermore, it was allowed to be dismissed for default of appearance. An application for restoration was later dismissed on the ground that the cause shown was insufficient. A second appeal was attempted in the High Court which was dismissed on the 26th November, 1956. In the meantime on the 14th November, 1955, Mr. Ali Akbar Khan applied to the Railway authorities to be permitted to rejoin duty in consequence of the order of the High Court. Previously he had made several applications of the same kind after obtaining the Civil Judge's decree of the 26th February 1955 and after the dismissal of the appeal by the Senior Civil Judge, without receiving any reply. Then on the 5th June 1956, he filed a petition in the High Court asking for a writ of mandamus or any other appropriate writ to be issued to the Railway authorities "ordering them to reinstate the petitioner immediately in accordance with his seniority and to pay him his salary and other emoluments with effect from 14th August, 1953 till the date of his reinstatement". The case came up before a Division Bench on the 14th November, 1956 when it was made to appear that the second appeal from the appellate order of the Senior Civil Judge was still pending. As has been seen, this appeal was dismissed on the 26th November, 1956 and on the following day, the writ petition was taken up for disposal by a Division Bench of the High Court, which made an order in which it was said firstly that the Civil Court's decree had been allowed to become final through the negligence of the Railway authorities and that they could not be allowed to go behind it, and further that though the decree was "undoubtedly in declaratory form but it is conclusive of the rights of the parties". The learned Judges expressed themselves as having. " no doubt what the duty of the Railway administration should be in regard to it. They have to honour the decree in letter as well as in spirit." A direction was made that the petitioner should be reinstated with effect from the date of his wrongful dismissal. Mr. Ali Akbar Khan applied again to the Railway authorities on the 3rd December, 1956 for reinstatement and submitted reminders on the 10th December, 1956 and the 3rd January, 1957. Gaining no redress, and since his date of retirement viz, 21st April, 1957 was approaching, he filed an application in the High Court that action be taken against the General Manager (Personnel) N. W. R. for contempt of the orders of the High Court. Notice was issued and later an order was made that the Court would not accept the apology of the General Manager (Personnel) in the matter and that a notice should be sent to the General Manager, N. W. R. to appear in person and show cause why he should not be dealt with for contempt. On the 25th March 1957, the General Manager appeared and submitted an apology, but this was not immediately accepted, and the Division Bench recorded an order as follows:‑ " The last‑named (i.e. the General Manager) has put in a written statement disclaiming any intention to disobey orders of this Court and pleading that he was kept in the dark about the orders of this Court. He admits however that the petitioner has not yet been paid his arrears of emoluments even till today. We have explained the implications of the conduct of the Railway authorities to the General Manager and directed him to appear tomorrow to state whether full arrears have been paid to the petitioner or not. We will then consider further steps to be taken in the case." It is important to note here that although in the writ petition, a prayer for payment of arrears of salary and other emoluments had been included, the order of the Division Bench did not include any direction on this point, but was merely to the effect that Mr. Ali Akbar Khan should be reinstated with effect from the date of his wrongful dismissal. The petition for action in contempt stated correctly the direction given by the Division Bench, but in a later paragraph a complaint was made that " in spite of the clear orders and direction to the respondent by the Division Bench" the petitioner had been "neither reinstated nor the dues have been paid by the respondent". The interim order of the High Court of the 25th March, 1957 for the first time refers to the question of arrears of salary. On the 26th March, 1957 the General Manager appeared in person and it was stated that by this time the arrears of emoluments had been paid to Mr. Ali Akbar Khan in full. Recording this the learned Judges went on to note that the General Manager had expressed unqualified regret for the occurrence and accepted his apology in the result, the notice of contempt was discharged. On the 30th April, 1957 a petition was filed for leave to appeal to this Court, which was granted on the 10th October, 1957. Reference was made in the order granting leave to appeal to the fact that the peremptory process in contempt had been used to obtain payment of arrears of salary to a public servant, and a question of general importance arose namely, whether some thing had been done which tended to "divert the due and orderly administration of the law into a new course, which may be drawn into an evil precedent in future." We have heard the Attorney‑General of Pakistan in support of these appeals, and replies have been heard from M. Mushtaq Hussain in the case of Mr. Mehrajuddin, Mr. Mazhar Ali Azhar in the case of Mr. Muhammad Ashraf Beg and Mr. Mushtaq Hussain Khan in the case of Mr. Ali Akbar Khan. These cases have provided cause for serious and anxious consideration in view of the extraordinary nature of the orders which have been made by the High Court in each case. The reliefs which superior Courts have power to give by the issue of writs is classed, in the category of "Extraordinary Remedies". Such relief was originally furnished by the Courts in the exercise of the sovereign prerogative, as a short‑handed means of rectifying wrongs traceable in the main to excess or failure of jurisdiction, by judicial and quasi‑judicial bodies as well as by administrative or executive bodies acting under statutory powers. The system of writs derives from ancient English practice, but it is to be noted that by law in England, since 1938*(The Administration of Justice (Miscellaneous Provisions) Act, 1938.) it has been directed that the prerogative writs of mandamus, prohibition and certiorari should no longer be issued by the High Court, but that in cases where the High Court formerly had juris diction to order the issue of a writ of mandamus requiring an act to be done, or a writ of prohibition prohibiting any proceed ing or matter or a writ of certiorari removing any proceeding or matter into the High Court, the Court may make an order Requiring an act to be done, or prohibiting or removing and proceedings or matters as the case may be; these are known as orders of mandamus, prohibition and certiorari respectively. It is clear that there has been change of terminology without change of substance. The occasions for the issue of, for instance, a mandamus remained precisely as they were before as settled by long judicial practice and precedent. By the change in law it does not appear that there has been any extension of the process by way of mandamus into any fields where previously by practice and precedent, it was not available as a mode of relief. The jurisdiction of the High Court to issue a mandamus remaining the same, the order is to be described for the future not as a mandamus, but as an order of mandamus. Conceivably, the reason for the change is that the form of words prescribed for e.g. a mandamus, not by law, but by practice and precedent in the superior Courts, had become too rigid and limited for adaptation to the varying needs of an ever‑developing legal system, and therefore latitude was required to be allowed to the Courts to employ such forms of words in issuing a mandamus for the future, as the exigencies of the occasion might require. Since in form such an order would, in numerous cases of novel origin, require to be expressed in terms different from those which had become the set terms of a mandamus, a new descrip tion was necessary and hence the description, " order of mandamus." The writ or order of mandamus is a direction issued to any natural person, corporation or inferior Court within the juris diction requiring them to do some specific thing therein parti cularised, and which appertains to their office or duty. Its object usually is to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers.. when there is no other adequate and specific legal remedy and without which there .would be a failure of justice. A mandamus could not confer a new authority and is neither a law nor a source of law. The person claiming a mandamus, in R order to be entitled to receive it must at least have a clear legal right to the performance by the respondent of the particular duty sought to be enforced and in the case of a public officer the duty must be one which is clearly defined, imposed or enjoined by law as a duty resulting from the office. A right founded purely on private contract, however clear it might be, is not enforceable by mandamus. These statements regarding the nature of the writ of mandamus have been borrowed from a valuable monograph on the subject, entitled "Extraordinary Legal Remedies" by Ferris. (Thomas Law Book Company, U. S.) In Halsbury's Laws of England (Volume 11, Third Edition), the following statements of the relevant law are found. If public officials or a public body fail to perform any public duty with which they have been charged, an order of mandamus will lie to compel them to carry it out. In accordance with this principle a mandamus will issue to Government officials in their capacity as public officers exercising public duties which affect the rights of private persons. Such a mandamus might even issue to the Lords of the Treasury in their capacity as public officers invested by statute with public duties affecting the rights of private persons. An applicant for a mandamus must show that he has a legal right to the performance of a legal duty by the party against whom a mandamus is sought. The prosecutor must be clothed with a clear legal and equitable right to something which is properly the subject of a writ, as a legal right by virtue of a Act of Parliament. The order is only granted to compel the performance of a duty of a public nature. Now, in each of these cases before the High Court what was sought by the petitioner was a writ of mandamus and in the alternative any other appropriate writ or order or direction. If regard be had to the incidents which are requisite for the issue of a writ or order of mandamus, there can be no question but that the requisite of the petitioner in each case was an order falling strictly within the four corners of mandamus, since it was sought to be directed to the North‑Western Railway administration, requiring it to do a specific thing particularised, which appertained to the office or duty of that administration. Therefore, it would have been proper for the High Court to have considered in the first instance whether the circumstances which are necessary for the issue of a writ or order of mandamus were proved to exist. Cases in which the duty of the public body, which was sought to be enforced by mandamus, arose out of anything not contained in a statute are, it seems, very rare. No such case has been placed before us and our researches have failed to produce any such case. It is plain that here the duty sought to be enforced by means of the writ which was claimed was not a duty deriving strictly from a law i.e. it was not a statutory duty of the kind for the enforcement of which the writ of mandamus has been by long practice arid precedent almost exclusively reserved. Secondly, a mandamus may be claimed for the implemen tation of a legal right, i.e., a right which is derived from a law. Here, it is clear that the right claimed by the petitioners, was not a right derived directly from any law. But even if that strict sense be not insisted upon and if it be assumed, without conceding, that a judicial order might serve as a foundation of aright such as may be enforced by mandamus, it still remains to be asked whether there was a clear right of a legal nature deriving from the decrees awarded by the Courts in these three cases which could have been enforced by mandamus. What the three petitioners had succeeded in obtaining were simple declaratory decrees. They had not by their plaints sought anything more. It is significant that in the solitary case in which a decree for money had been sought, that claim had been withdrawn in the course of the proceedings. It was conceded before us that this was done because of the state of law as it then was but learned counsel who advanced this proposition was unable to deny drat the 'state of law to which h: referred has been in existence for a great many years, and that it has not been validly altered at any stage up to the present time. This question will be considered somewhat more fully later on, but in the present discussion of the question whether the petitioners who have been awarded the orders made by the High Court in these cases had a legal right to obtain these orders, it falls to be said further, firstly that a decree for a declaration is well under stood not to be capable of execution, and that there was nothing in any of the decrees in question or in any subsequent order made f by the Courts which granted these decrees which might enable the conclusion that any of these Courts had made any order from which a clear and immediate right could be construed to obtain the satisfaction which the High Court has seen fit to give in each case. If the decrees had been of executory nature for the implementation of which a warrant of execution could issue, it might have been thought that a legal right to obtain such satisfaction arose in consequence of the decrees. That is not to say that such decrees are capable of enforcement by a writ of mandamus, and the point is mentioned only for the purpose of showing that in the three case; here in question, there was no clear, formal, positive order of a kind which by mere enforcement could procure for these petitioners the satisfaction which has been awarded to them by the High Court. Thirdly, the question might be asked‑can the duty of paying salary to a public servant be regarded as falling within the' expression "public duty"? Prima facie it is a mere discharge o if an obligation between master and servant. The person making the payment acts, on behalf of the Government which is the? employer, to satisfy a condition of the service of an employee, relating to him. That simple act is clearly not an act in the performance of any "public duty". For, the latter phase must be understood in the sense of duty to the public at large or to a particular member of the public who is entitled in the specified circumstances, to receive the service which by law or contract the public servant is appointed to render. In the absence of proof that any statutory duty was involved or that any legal right was being enforced, or that the performance of a public duty was being claimed, it is clear that a mandamus or an order of mandamus could not have issued, consistently with the relevant practice and precedent. It seems however that the learned Judges of the High Court were careful to avoid saying that they were issuing a writ of mandamus. They have in each case purported to make an order under Article 170 of the late Constitution which was expressed in the following terms:‑ "Notwithstanding anything in Article 22, each High Court shall have power, throughout the territories in relation in which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, for the enforcement of any of the rights conferred by Part 11 and for any other purpose". The learned Judges appear to have acted in the belief that the power given to them by the Constitution to issue directions and orders was a power in excess of and going beyond the confines o H the power given by the same Article to issue writs in the nature of the five writs specified. We find it impossible to support this inference, if indeed it forms the basis of the orders issued by the High Court in the present case. It seems to us that it could not have been the intention of the framers of the Constitution of 1956, when they enacted Article 170 containing specific references to five writs of a kind whose nature and scope was well settled by centuries of practice, not only in the country of their origin, namely, England, but also in the United States as well as the Dominions, in which the system of British justice was in full operation, to give to the High Courts of Pakistan a complete power of overriding everything contained in the law and practice delimiting the functions and jurisdiction of the High Courts, and all other laws defining legal rights and jurisdictions generally. In these cases what has been done involves extension of previously well defined powers into fields where they hitherto have never been exercised. The orders which are clearly in the nature of orders of mandamus have been made in cases where no statutory right or legal right or public duty was involved. They have been made in clear and unmistakable implementation of decrees for simple declaration, which have always been held to be incapable of execution. They have been made moreover in a manner so as to override the very carefully demarcated boundaries between the judicial power and the power of the executive in relation to public servants, in the relevant respects. We are unable to find justification for this extraordinary extension of powers assumed by the High Court in the mere addition of the words "directions" and "orders" in Article 170 of the late Constitution It is indeed somewhat extraordinary that this Article should authorise the issue of writs, when in fact there are no settled forms of writs other than the writ of habeas corpus in this country such as there were at one time in England, and that this should have been done at a time when by English law the issue of a number of such writs had been abolished and they had been replaced by orders to be worded by the Courts in accordance with the exigencies of each case, to be described as orders of mandamus etc The addition of the words "directions" and "orders" seems to us to be clearly relatable to the amendment of the English law in 1938 by which certain writs were abolished, but orders of the same kind were directed to be issued. We cannot conceive that by the wording of Article 170, anything more was intended than was carried info effect by the amendment of the English Law of 1938. In the present cases we have seen that what was sought by the petitioners in each case was clearly an order falling within the four corners of a mandamus, as understood and defined as a result of long practice and precedent. It was in our view not permissible for the learned Judges in the High Court to issue orders which were in substance indistinguishable from orders of mandamus, in cases where such orders were not competent or, permissible, in the guise of issuing a direction or order by virtue of Article 170 of the late Constitution. We proceed now to consider the state of the law in regard to the reliefs which have been granted in these cases by the High Court. We may commence the discussion by mentioning that by the terms of the Specific Relief Act, 1877 any person entitled to a legal right or character may institute a suit against any person denying such right or character and the Court may in its discretion make a declaration that he is so entitled, provided that no declara tion may be given where a further or consequential relief deriving from the declaration which could have been claimed by way of relief in the same Court and in the same suit has not been claimed. The purpose of this jurisdiction vested in the Civil Courts is plainly to prevent future litigation, and to remove existing sources of controversy. The power of Civil Courts to grant declarations to save the statuts of public servants who have been dismissed or removed from service in contravention of the law of the Constitution, is not in doubt. The leading case on the subject is that of I. M. Lall (L R 75 I A 225=P L D 1948 P C 150) before the Privy Council. In that case, the final advice of the Privy Council to His Majesty was that a declaration should be made that the order purporting to remove Mr. I. M. Lall from the Indian Civil Service was void and inoperative and that he remained a member of the Indian Civil Service at the date of the institution of his action. On the question whether Mr. I. M. Lall was entitled to recover by his action arrears of pay from the date of purported dismissal up to the date of action, the observations of the Judicial Committee were as follows:‑ "It is unnecessary to cite authority to establish that no action in tort can lie against the Crown, and therefore any right of action must either be based on contract or conferred by statute. It is sufficient to refer to the judgment of Lord Blackburn in the Scottish case of Mulvenna v. The Admiralty 1926 S C 842 in which the learned Judge, after reviewing the various authorities states. These authorities deal only with the power of the Crown to dismiss a public servant, but they appear to me to establish conclusively certain important points. The first is that the terms of service of a public servant are subject to certain qualifications dictated by public policy, no matter to what service the servant may belong, whether it be navel, military or civil, and no matter what position he holds in the service, whether exalted or humble. It is enough that the servant is a public servant, and that public policy, no matter on what ground it is based, demands the qualification. The next is that these qualifications are to be implied in the engagement of a public servant, no matter whether they have been referred to when the engagement was made or not. If these conclusions are justified by the authorities to which I have referred, then it would seem to follow that the rule based on public policy which has been enforced against military servants of the Crown, and which prevents such servants suing the Crown for their pay on the assumption that their only claim is on the bounty of the Crown and not for a contractual debt, must equally apply to every public servant‑See Leaman v. King (1920) 3 K B 663, Smith v. Lord Advocate (1897) 25 R 112 and other cases there referred to. It also follows that this qualification must be read, as an implied condition, into every contract between the Crown and a public servant, with the effect that, in terms of their contract, they have no right to their remuneration which can be enforced in a Civil Court of justice, and that their only remedy under their contract lies "in an appeal of an official or political kind". 1926 S C 859‑

60. Their Lordships are of opinion that this is a correct statement of the law. In the present case there is no obligation as to pay in the respondent's covenant, as already mentioned. The respondent sought to establish a statutory right to recover arrears of pay by action in the Civil Court; he made reference to certain sections of the Government of India Act, 1935, namely, section 179, sub-section 9, section 247, subsection 4, sections 249 and 250, but it is enough to state that their Lordships are unable to derive from them any statutory right to recover arrears of pay by action. He also referred to section 32 of the Government of India Act of 1919, which by subsection 2, provides the same remedies against the Secretary of State in Council as might have been had against the East India Company if the Govern ment of India Act, 1858, and the Act of 1919 had not been passed, but it has been settled ever since Gibson v. East India Company (1839) 5 Bing. N C 262, that pay could not be recovered by action against the Company, but only by petition, memorial or remonstrance. It follows that the respondent fails in his claim to arrears of pay". That passage was referred to in one of the judgments delivered in the Federal Court of Pakistan in the case of Ali Ahmad Hussain Shah (P L D 1955 F C 522). In the circumstances of that case it was not necessary to express direct approval of that passage, as will appear from the following passages which we extract from the judgment:‑ "Reliance was placed for this proposition upon the decision of the Judicial Committee in the case of Mr. I. M. Lall (cited above) In that case, the agreement of service was embodied in a covenant which gave the servant no right to pay, and mainly concerned with the duties he was to discharge, I he Privy Council, dealing with the prayer of Mr. I. M Lall r or arrears of pay from the date of the purported order of dismissal up to the date of action, quoted from the well known case of Mulvenna v. The Admiralty, (cited above) a passage to the effect that there is a rule of public policy applicable to every public servant which prevents them from suing the Crown for their pay, on the assumption that their only claim is on the bounty of the Crown and not for a contractual debt, and consequently `their only remedy under that con tract lies in an appeal of an official or political kind'. The prayer was disallowed. In the present case, there is an undertaking to pay salary to the servant so long as he remains in service, (Para. 8 of contract of service, Exh. P. W. 1/16), which is relied upon by Mr. Anwar for the respondent, for the purpose of distinguishing the I. M. Lall case. On the other hand, there is the fact that the respondent was duly dismissed by an order made some time after the 10th August 1940, which subsequent order the respon dent has not challenged. The respective rights and liabilities as between the employer and the employee, as respects the period between the date of his suspension and the date of his dis missal in proper form, are subject to express provisions con tained in the Civil Service Rules and the Fundamental Rules. No ground appears why the operation of these provisions should be interfered with. In the circumstances it seems to me that the relief to be awarded to the plaintiff should be confined to a declaration that on the 10th August 1940, he was still in the service of the North Western Railway". The case of Ali Ahmad Hussain Shah also arose out of dismissal of a Railway employee and it may be that in the present cases as well, there are similar undertakings to pay salary. If such there be, they have not been relied upon before us, and indeed they could not have been successfully made the basis of any claim, in view of the decision in Ali Ahmad Hussain Shah's case. But, as to the weighty pronouncement of the Judicial Committee in the case of Mr. I M. Lall as set out in the long passage which has been quoted above, we have no hesitation in expressing, with due respect, our entire approval of the statement concerning the nature of the right to remuneration, belonging to a public servant, as against the Government, viz. that there is an implied condition in every contract between the State and a public servant that in point of remuneration, the claim of a public servant is not for a contractual debt, but is on the bounty of the State and that it must be deemed to be a term of the contract of service of every public servant that he has no right to remuner ation, which can be enforced in a Civil Court of justice, and that for the purpose of recovering his remuneration, form the State his only remedy, by necessary implication from his contract lies in an appeal of an official or political kind., It was pressed before us by Mian Mushtaq Hussain on behalf of the respon dent Mehrajuddin that the Judicial Committee did not take into account the circumstance that under section 60 of the Civil Procedure Code, the law permits the attachment of the salary of a public servant up to a moiety thereof, from which circums tance learned counsel wished to draw the inference that the State assumed the position of a garnishee in relation to a debt payable by itself to the public servant amounting to half of the salary due to him per month. This is not the only conclusion that may be drawn from the existence of this special law. 1n our opinion, the mere fact that there is a statutory provision enabling the attachment of a part of the salary of a public servant does not affect the principle that the claim of the public servant himself n against the State is not for a contractual debt, but can be addressed only to the bounty of the State, and may therefore be pressed only by an appeal of an official or political kind. That has been the law of the country at any rate since the year 1948. It was enacted in the Government of India Act, 1935, that the law laid down by the Federal Court and the Privy Council should be binding upon all the Courts of the sub‑continent of India, and after 1947 that law remained applic able to the Courts in Pakistan. Therefore, it must be taken that at the time when the High Court made the orders under appeal, the law was that remuneration cannot be claimed against the State by a public servant in a Civil Court of justice. It cannot be argued and it was not argued before us that the High Court in dealing with the present cases acted otherwise than as Civil Court of justice. It is clear therefore that in constitution itself in the purported exercise of jurisdiction under Article 170, as an agency for the recovery of the salary, and other due, of three public servants in these cases, the High Court contravened that law. We are unable to see that the High Court had any power to do so, which could be derived from Article 170 of the late Constitution. The petitioners had acted strictly N in accordance with law in not claiming remuneration in their suits. We feel no hesitation in saying that the later attempts which they made to secure implementation of the declarations which they had obtained, by invoking the jurisdiction of the High Court under Article 170 of the late Constitution, wholly misconceived, and it is in our view a matter of regret that the attempts were allowed to succeed. It is relevant at the present stage to mention that this Court has, in two cases decided recently, namely, those of Qazi Hikmat Hussain (P L D 1959 S C (Pak.) 107.) and of Aqil Ahmad (Civil Appeal No. 64 of 1958, decided on 15th December 1958 (unreported).) laid down the law in relation to (1) the legal effect of reversion of public servants from officiating appointments to their substantive appointment, and (2) the validity of the termina tion of service of a public servant by notice under the conditions applicable to the service. In Qazi Hikmat Hussain's case it was declared that an officiating appointment gave no vested right and if the Government thought fit to appoint an officer who had been given an officiating appointment to another post not lower than the one he was holding before his officiating appointment, he could have no grievance. It was said also that the Government could at anytime terminate the officiating appointment of the officer and revert him to his original position and that such an action involves no question of reduction in rank. We confirm our adherence to these observations and may usefully add that officiating appointments are by their very nature tentative, i.e. in the form of a trial of the officer, to test his capacity and competency for higher responsibilities than that of his permanent post, and consequently officiating appointment must always be assumed to be made subject to termination if the work of the officer is not found to be up to the standard necessary for the higher appointment which has been temporarily given to him: This is a principle which might have been can vassed in the case of Mr. Mehrajuddin. In the other two cases, the termination was by notice. Without touching the question whether proof of the existence of such a condition in the terms of service was led or was available in these cases, we think that it may be of advantage to state that in the case of Aqil Ahmad, this Court held the termination of his service by notice in terms of his service agreement to be valid in the special circumstances. In making these observations we must not be thought to be, in any way, giving approval to the manner in which these three cases were conducted in the original and Appellate Courts on behalf of the Railway administration, or of the manner in which that administration dealt with the requests made by the petitioners gain satisfaction of the decrees which they had obtained in their suits. We cannot refrain from observing that the conduct of the defence in each of the suits was marked by degree of negligence which, in the case, of a public department, is entirely inexcusable, and it must also be observed that the Railway authorities failed to show proper regard either to the decrees which had been awarded against them or to the needs and interests of their servants who were involved in the cases. It remains to consider the propriety of the proceedings in contempt commenced in two of these cases by the High Court. It is true that the usual method of enforcing a judgment granting an order of mandamus is by commitment for contempt, but such a mandamus must be of an absolute nature. An order directing the reinstatement of a person in a great public Department is not one which can be executed on the instant. It involves a great many considerations such as seniority, suitability, salary, and treatment of the period of absence etc., which are exclusively within the competence of the relevant executive authorities and can only be decided by those authorities after a good deal of examination and care, involving the exercise of discretion and judgment in regard to many complex matters. Therefore, an order directing the reinstatement of a person cannot be regarded as an absolute order of mandamus, non‑compliance with which may peremptorily be visited by proceeding in contempt. In the present case, the orders of mandamus were themselves incompetence and therefore for that reason as well, the High Court should have hesitated before issuing the notice, in contempt which they did These notices were directly instrumental on securing payment of sums of money to two of the peti tioners, and although in the case of Mr. Ashraf Beg, the Railway administration itself appears to have suggested the making of the payment, it is clear that in the case of Mr. Ali Akbar Khan, the amount was paid under a direct threat of peremptory action against the General‑Manager personally. We can see no ground upon which this action can conceivably be held justifiable within the legal rights appearing in the case, and the jurisdic tion of the High Court. It represents a diversion of the due and orderly administration of the law into a new and (we say so with due respect) an improper course, which cannot be supported, and must not be allowed to become a precedent for the future. We are clearly of the opinion that each of the three orders which are before us in appeal has been made without jurisdiction, and they are accordingly liable to be set aside. We therefore allow these appeals and setting aside each of those orders direct that any satisfaction which has been received under any one of these orders by the respondents shall be restored to the Railway administration. The learned Attorney‑General undertakes that the Railway administration will not recover from any one of the respondents any sums which are found, upon due and just accounting to be due to them from the Railway. In all the circumstances, we leave the parties to bear their own costs. A. H. Appeals accepted.