P L D 1957 (W (PLP)

KAIKAUS, J.‑

This revision petition arises out of a suit filed by the respondent for a declaration with respect to a resolution passed by the petitioner, the District Board of Lahore, fixing certain scales of pay. The plaintiff was employed by the District Board, Lahore, on the 1st of August 1947 as a draftsman on the pay scale of 100‑6‑

142. There were a number of subsequent resolution. by the District Board varying this scale, but all those resolu tions were set aside by the Deputy Commissioner, Lahore, in the exercise of the power that he possesses by virtue of section 27 of the District Boards Act. Ultimately the District Board passed the resolution dated the 29th of February 1956 which is the subject‑matter of the present suit. By this resolution the District. Board provided for different scales of pay for qualified and unqualified draftsmen. In purported compliance with this resolution the plaintiff‑respondent was placed in the scale applicable to unqualified draftsmen. In the present suit which was filed on the 16th of April 1956, the resolution of the District Board dated the 29th of February 1956 was attacked on grounds appearing in paragraph 12 of the plaint which is reproduced below :‑ "That this distinction between the qualified and the unqualified draftsmen is illegal and entirely uncalled for regard being had to the following circumstances :‑ (a) There is no basis warranting such a distinction. The Examiner Local Funds has made his suggestions arbitrarily and the defendant Board, acting on adopted this distinction arbitrarily and without any rhyme or reason. (b) No such distinction exists in the Government staff and the qualified and non‑qualified staff is getting pay in the one and the same time scale. (c) The Board has laid down no proper or set rule for ascertaining the qualified and unqualified staff. The words 'qualified' and 'unqualified' have not been defined." It is further stated in the plaint that in treating the plaintiff as an unqualified person and paying him as such the District Board acted in an arbitrary, oppressive and wanton manner for the plaintiff was in fact a qualified person. The District Board objected to the maintainability of the suit on grounds which will appear from the following pre liminary issues :‑ (1) Whether the suit is not maintainable under section 42, Specific Relief Act ? (2) Does not the plaint show any cause of action ? (3) Whether the Provincial Government is a necessary party ? All the issues were found in favour of the plaintiff and the suit was held to be maintainable. In this revision petition the District Board prays that the order of the trial Court on the preliminary issues be set aside and the suit be dismissed as non‑maintainable. Reliance has been placed on behalf of the petitioner on Mir Allah Bakhsh v. District Board, Rawalpindi (P L D 1951 Lah. 52) wherein it has been held that the servants of the District Board are not entitled to protection of section 240 of the Government of India Act and at the same time a breach of the District Board Rules providing for a show‑cause notice to the servant before he is dismissed would not furnish a cause of action, the result being that a servant of the District Board can be dismissed at pleasure. It is contended that if the servant can be dismissed at pleasure ex hypothesi his pay can be reduced for he can always be told by the District Board that his services are dispensed with unless he agrees to the new scale of pay. Reliance is also placed on section 27 of the District Bcards Act which provides for the powers of the District Board to employ and pay such officers and servants as may be necessary. It is urged too that the relations between the servants of the District Board and the District Board are regulated by the District Boards Act and any right to any relief which the servant claims can only be based on the provisions of that Act. I agree that the dismissal of a servant of the District Board would not, in the absence of a contract protecting the servant, affore, any cause of action and I agree too that the f power of dismissal without even a notice to show cause would necessarily imply a power to reduce the salary. If the District Board can dismiss at pleasure it can always say to the servant: "We no longer need your services unless you are willing to continue in service at such and such salary." The power to fix the salary would also be covered by section 27 which empowers the District Board to pay the salary of their servants. If the present suit was based on the plea that the District Board had no power to fix a scale of pay or reduce the pay of the plaintiff, I would have little hesitation in holding the suit to be non‑maintainable. That, however, is not the case of the plaintiff. He contends that the order of the District Board is arbitrary, wanton and oppressive. It cannot be doubted that any powers that are granted to the District Board and in fact to any public body are always subject to an important limitation, namely, that they are to be exercised fairly, justly and reasonably. Any exercise. of power which is arbitrary, oppressive and wanton is an abuse. and is not an exercise of power within the mean ing of the Statute at all. All abuse is excess. The plaint in the present case proceeds on the basis (and in fact the learned counsel for the present respondent has expressly declared this before me to be the only ground of attack) that in passing the impugned resolution as well as in placing the plaintiff in the category of the unqualified draftsmen the District Board acted in an arbitrary, oppressive and wanton manner. As the Court has yet to decide only the preliminary issues, we are not concerned with whether the resolution and the subsequent treatment of the plaintiff as an unqualified drafts man are in fact arbitrary, wanton and oppressive acts. We are only concerned with the question whether on the allega tions in the plaint the suit is maintainable and there can be little doubt that on those allegations it is maintainable. It is urged in this connected that even though the orders of the District Board be ultra vires it is necessary for the plaintiff to show that he has a legal right which is being infringed before he can maintain a suit and he has no legal right either to be retained in service or to be paid a particular salary. The contention is based on a misapprehension. A person employed by the District Board, though he does not acquire a right as against the District Board to continue in service or to receive a particular salary (I am considering cases apart from contract) does get an important right, namely, the right to continue in the office and to get the salary fixed by a valid resolution of the Board till there is another valid resolution terminating his services or varying the amount of salary. When the resolution which was impugned in the suit was passed there was some salary which the plaintiff was entitled to. That salary he is entitled to receive unless there is a resolution in accordance with law taking away his right to the whole or part of that salary. If the Civil Court were to hold that the impugned resolution is in fact void or illegal, the respondent would be entitled to the salary which in accordance with some resolution of the District Board he was already receiving. It cannot be said, therefore, that even if the resolution be ultra vires the plaintiff had no right to sue because no legal right of his is affected. I would hold, therefore, that on the facts stated in the plaint the plaintiff has a cause of action. The next point to consider is the objection that the suit does not fall within the scope of section 42 of the Specific Relief Act as no right to property or legal character is involved. Let me state that once the existence of some legal right is established the objection that the right is neither a "right to property" nor the basis of a "legal character" is futile. Section 42 follows the division by jurisprudence of rights into proprietary and personal rights. This division, which will be found stated at p. 256 of Salmond's jurispru dence (1947 Edition) and p. 145 of Keetons' Elementary Principles of jurisprudence (1949 Edition) is exhaustive and comprehends within its scope legal rights of all kinds, I have no intention of burdening this judgment with a dis cussion of the true basis of the distinction between proprietary and personal rights‑whether it lies in non‑transferability of the right as some earlier writers on jurisprudence stated or whether it lies in the existence or absence of value as Salmond regards it‑for it cannot be denied that the distinction does exist and that the division is exhaustive. It may be asked: if the section covers all rights why did the legislature take the trouble of dividing rights into two categories and why did section 42 not simply refer to all rights ? The answer is that by providing for "legal character" the legislature went a step further than granting declarations as to rights themselves and even provided for declarations as to those personal conditions or attributes which are the basis of rights, for that is the meaning of the words" legal character." Minority, for instance is a legal character. It is, however, not a right by itself. It is a personal condition that gives rise to a number of rights. But a declaration can be granted with respect to it. Same may be said of legitimacy, wifehood, etc. The objection, therefore, that section 42 does not cover the case can be disposed on this short ground. However, even if we consider the specific claim of the plaintiff in this case there can be little doubt that he is seeking a declaration as to his status or legal character. The office which a person holds, his rank as well as the grade of pay to which he is entitled, are all parts of his legal character for they are personal attributes of a person which are the foundation of his rights. The plaintiff has even sought a declaration in the alternative that he is a qualified draftsman within the meaning of the resolution passed by the defendant. This too is a declaration with respect to a legal character if it be held that qualified draftsmen have certain legal rights. The objection that the Government is a necessary party is without force. A necessary party is one in whose absence no effective decree can be passed. Here the plaintiff claims a right only against the District Board. If the District Board is bound by the decree the plaintiff shall be sufficiently protected for he will be entitled to receive the salary that he claims in spite of the resolution of the District Board. The mere fact that an officer of the Provincial Government is entitled to exercise control over the acts of the Committee does not mean that the Government becomes a necessary party to every suit filed against the District Board in respect of such acts. I hold that the suit is maintainable. I make it clear, however, that it is maintainable only on account of the alleged arbitrary, wanton, oppressive or capricious nature of the action of the District Board. This revision petition is dismissed without any order as to costs. A.H. Petition dismissed.