P L D 1959 Supreme Court (Pak.

) 147

Present: Muhammad Munir, C. J., M. Shahabuddin, A. R. Cornelius, and Amiruddin

Ahmad, JJ

Civil Appeals Nos. 36, 65 and 77 of 1958, decided on 20th January 1959.

Civil Appeal No. 36 of 1958

THE STATE OF PAKISTAN and

another-Appellants

Versus

MEHRAJUDDIN-Respondent

(On appeal from the order of the High Court of West Pakistan, Lahore dated the 21st January,
1957, in Writ Petition No. 344 of 1956).

Civil Appeal No. 65 of 1958

THE GENERAL MANAGER, N. W. R.
LAHORE-Appellant

Versus

MUHAMMAD ASHRAF BEG-Respondent

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the
12th December 1956, in Writ Petition No. 449 of 1956).

Civil Appeal No. 77 of 1958

THE GOVERNMENT OF
PAKISTAN-Appellant

Versus

ALI AKBAR KHAN-Respondent.

(On appeal from the order of the High Court of West Pakistan, Lahore, dated the 27th November
1956, in Writ Petition No. 276 of 1956).
(a) Writ---

Distinction between " writ " of mandamus, etc., and " order " of mandamus, etc.-To whom
mandamus can be issued and when-Mandamus will not issue for enforcement of declaratory
decree declaring that a person continues to be invested with a certain status in public
service-Obligation to pay salary to public servant not covered by expression " public duty
"-Mandamus will not issue where no statutory or public duty is involved or legal right
claimed-Constitution of Pakistan (1956), Art. 170- Power to issue " directions " or " orders " not
a power in excess of or beyond the confines of power to issue writs.

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 manda mus, prohibition and certiorari should no longer be issued by the
High Court, but that in cases where the High Court formerly had jurisdiction to order the issue of
a writ of mandamus requiring an act to be done, or a writ of prohibition prohibiting any
proceeding 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 any
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 there fore latitude was required to
be allowed to the Courts to employ such forms of word 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 said terms of a mandamus, a new description 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 jurisdic tion requiring them to do some specific thing therein particularised, 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 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.

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 an Act of Parliament. The order is only granted to compel the perfor mance of a
duty of a public nature.

Where Railway servants had sought, by petitions for writs of mandamus to enforce decrees of
civil Courts, declaring that they continued to be invested with a certain status in Railway service.

Held, that 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 enforce ment of
which the writ of mandamus was by long practice and precedent almost exclusively reserved.

A simple declaratory decree was not capable of execution, and the Courts granting the decrees in
question had not made any order from which a clear and immediate right could be construed to
obtain the satisfaction which the High Court had seen fit to give in each case.

The duty of paying salary to a public servant could not be regarded as falling within the
expression " public duty."
In the absence of proof that any statutory duty was involved or that any legal right was being
enforced, or that the perfor mance of a public duty was being claimed, a mandamus or an order
of mandamus could not have issued, consistently with the relevant practice and precedent.

The power given to the High Courts by Art. 170 of the Constitution (1956) to issue" directions "
or " orders " was not a power in excess of and going beyond the confines of the power given by
the same Article to issue writs in the nature of the five writs specified and it was riot permissible
for 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.

Extraordinary Legal Remedies by Ferris (Thomas Law Book Company, U. S.) and Halsbury's
Laws of England (Vol. 11, Third Edition) ref. Each of the three orders passed by the High Court
under their writ jurisdiction was set aside as being without jurisdiction, and respondents directed
to restore to the Railway administration any satisfaction received under the orders.

(b) Specific Relief Act (I of 1877),

S. 42-Purpose underlying Court's power to grant relief by way of declaration: prevention of

future litigation and removal of existing sources of controversy.

(c) Specific Relief Act (I of 1877),

S. 42-Declaratory suits by Government Servants seeking relief against dismissal or removal in

contravention of law of Constitution-Competent.

(d) Government Servant-

Salary-Right cannot be enforced by suit or writ-Salary not a " contractual debt " but a claim on
bounty of State-Civil Procedure Code (V of 1908), S. 60 --Circumstance that a moiety of salary
can be attached in execution of a decree does not affect nature of remuneration.

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 remuneration, which can be enforced in a Civil Court of
justice, and that for the purpose of recovering his remuneration, from the State his only remedy,
by necessary implication from his contract lies in an appeal of an official or political kind.

The mere fact that there is a statutory provision in section 60, Civil Procedure Code (V of 1908)
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 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.

I. M. Lall's case P L D 1948 P C 150 and Ali Ahmad Hussain Shah's case P L D 1955 F C 522
ref.

Since this has been the law of the country at any rate since the year 1948 (I. M. Lail's case), if the
High Court, in the purported exercise of its jurisdiction under Art. 170 of the Constitution
(1956), constitutes itself as an agency for the recovery of salary or other dues of a public servant,
the High Court contravenes that law.

(e) Government Servant-

Officiating appointment-Tentative-- Reversion from, does not involve reduction in rank.

An officiating appointment gives no vested right and it 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. Government could
at any time terminate the officiating appointment of the officer and revert him to his original
position; such an action involves no question of reduction in rank. Officiating appointments me
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 appointments 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.

Qazi Hikmat Hussain's case P L D 1959 S C (Pak.) 107 and Aqil Ahmad's case Civil Appeal No.
64 of 1958, decided on the 15th December 1958 re-affirmed.

(f) Precedents-

Law laid down by Privy Council or Federal Court of pre-partition period-Remains binding in
Pakistan after Partition.

The Government of India Act, 1935, enacted 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. That law
remained applicable to the Courts in Pakistan after the Partition of the sub-continent.

(g) Contempt of Court-

Proceedings to enforce order ok mandamus-Permissible only where mandamus is of an absolute

character-Order re-instating Government servant not of such character-Enforcement by
commitment for contempt disapproved.

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
exami nation 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 a
proceeding in contempt.

Civil Appeal No. 36 of 1958.

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.

JUDGMENT

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.