Z. A. CHANNA , J.-By this constitutional Petition, the petitioner, who was serving in the Police Department of the Government of Sind, has prayed for directions to the Government to pay him the salary due to him for the period from 7-9-1951 to 15-6-1966.
2. The case of the petitioner is that on migration to Pakistan he was appointed as a Sub-Inspector in the Police Department of Sind with effect from 17-2-1948. However, on 4-1-1950, he was suspended and thereafter he was discharged from service on 7-9-1951. The petitioner challenged the orders of his discharge by means of a civil suit and the civil Court, by a judgment and decree dated 30-5-1958, held that his discharge from service was void and inoperative and that he continued to be in the service of Government as a Sub-Inspector of Police. On re-instatement, the petitioner made several representations for payment to him of his salary for the period that he bad been unauthorisedly kept out of service but the Government did not concede to his request for the payment of his past salary. The matter, so far as the Police Department is concerned, appears to have been finally decided by their letter, dated 13-1-1969, from the Inspector-General of Police to the D. I. G. Karachi Range, and copy sent to the petitioner, through the Superintendent, Karachi Central Prison, as apparently the petitioner was confined in the said prison at that time. 1n this letter, which was based on the advice of the Solicitor to the Government of West Pakistan, tendered in his communication of 16-9-1968, the Police Department took the stand that arrears of pay and allowances were bounty of the State and their payment cored not be enforced, this being the prevalent view that time. Despite this very clear rejection of the petitioner's demand for payment of arrears of salary, the petitioner made further representations to the Police Department in support of his claim, but all these proving unsuccessful, he filed Constitutional Petition No. 171/1974, to enforce his claim. The said petition came to be dismissed on 7-4-1977 by reason of the statement made by the Finance Secretary, Government of Sind, in the Court that no reference had been made to him by the Home Department in regard to the case of the petitioner, but if any such reference were made, he would ensure that the reference would be disposed of by the Finance Department within a week to 10 days. It appears that reference was subse4uently made to the Finance Secretary by the Home Department, but as the latter Department did not support the case of the petitioner, the Finance Department expressed its inability to assist the petitioner. The petitioner, not getting any redress from the Government in spite of the rather favourable statement made by the Finance Secretary in Court, was forced to file the present petition on 2-2-1978.
3. The petitioner, who appeared in person, submitted before us that since his discharge from service has been held to be illegal by a civil Court, by its decree of 30-5-1958, which has not been challenged by the Government or the Police Department by way of appeal or otherwise, it had obtained finality and hence he was entitled to arrears of pay for the period from 7-9-1951 to 15-6- 1966, when he was illegally kept out of service. He further submitted that in view of the decision of the Supreme Court in the case of Pakistan v. Mrs. A. V. Issacs (PLD 1970SC415), the plea of bounty of State was not available to the Government and be could not be deprived of his past emoluments onthat account.
4. Mr. Abdul Sattar Shaikh, the learned Assistant Advocate-General, who appeared for the respondents opposed the petition on two grounds. His first objection was that the petition was barred by section 6 of the Sind Service Tribunals Act, 1973. The learned counsel submitted that as the petitioner could approach the Tribunal constituted under the said Act for redress of his grievance and grant of relief, the Courts, including the High Court exercising constitutional jurisdiction, were barred from entertaining any petition, application or suit in this behalf. The learned Assistant Advocate-General, however, conceded that if any matter was not within the purview of the Tribunal under the said Act, there would be no bar at least under that Act to the filing of a constitutional petition or seeking other legal remedy for the enforcement of the claim. Now, clause (b) of the proviso to section 4 of the Act, as amended by Sind Act IX of 1974, excludes the jurisdiction of the Tribunal in respect of orders or decisions of departmental authorities made prior to 1-7-1969. We have already pointed out that the Police Department, by its letter dated 13-1-1969, had finally rejected the claim of the petitioner for arrears of salary, and it is by that letter that he is aggrieved Mr. Abdul Sattar Shaikh, however, submitted that even thereafter the Government had examined the case of the petitioner and it was only by -its letter of 31-1-1978 that it finally decided to reject the claim of the petitioner for arrears of salary. We have examined this letter and we find that it merely refers to the earlier letters of the Police Department and the Government and simply states that by reason of the letter of the Police Department of 13-1-1969 the matter is considered closed and cannot be re-opened. It thus seems to us clear that the Government or the Police Department in fact did not re-examine the case after the decision communica--ted by the Police Department's letter of 13-1-1969. The letter of 31-1-1978 is merely an intimation of the fact that the rejection of the claim was decided finally by the letter of 13-1-1969. We, therefore, are of the view that the letter of 31-1-1978 cannot be considered to be an order or decision of a departmental authority against which the petitioner could prefer an appeal to the Tribunal. His case stands concluded by the Department's letter of 13-1-1969, and as he cannot prefer an appeal to the Tribunal against that letter, we are firmly of the view that neither the Sind Service Tribunal Act, 1973, nor the provisions of Article 211 of the Constitution are an impediment to the entertainment by us of the present constitutional petition and the grant of appropriate relief to the petitioner.
5. The second objection which the learned Assistant Advocate-General took to the petition was that the petitioner had another remedy available to him which was quite efficatious. The learned counsel submitted that after the decision of the Supreme Court in Mrs. Issac's case, the petitioner could have filed a civil suit. No doubt, the petitioner had the right to file a civil suit. But we find that it was the conduct of the respondents which prevented him from filing such a suit. This conduct consisted in the Department asking the petitioner to furnish an affidavit to the effect that he had not engaged in any profitable business during the period for which the arrears of pay were being claimed by him. The demand for this affidavit naturally engendered an expectation in the mind of the petitioner that his claim was about to be granted by the Government, as such an affidavit would not normally be demanded except for the purposes of calculation of arrears of salary, from which the earnings of the Government servant from any business or calling during the period that he remained out of service have to be deducted. We, therefore, are of the view that it is not open to the respondents to raise such an objection. As observed by the Supreme Court is North Western Railway v. Abid Ali Shah (1969 SCMR 695), Government is expected to have high ethical notions and to be conscious of its moral obligations and is expected to act in each case honestly and conscientiously and is not expected to refuse arrears of salary irrespective of the merits of the case.
6. We are rather disturbed to find that although the Supreme Court in Mrs. Issac's case had finally laid to rest the ghost of bounty of State, some zealous Government servants are still trying to take shelter behind this theory. The petitioner cannot be denied the arrears due to him for the period that he was wrongly kept out of his service. As pointed out by A the Supreme Court in Divisional Superintendent P. W. R. v. Bashir Ahmad (PLD 1973 SC 589) after the decision in Mrs. Issac's case, the recovery of arrears of salary by a Government servant is an enforceable legal right.
7. The upshot of the above discussion is that we hold that the petitioner has been wrongly denied his arrears of salary for the period from 7-9-1951 to 15-6-1966 and we direct that the same should be paid to him. The petition is accordingly allowed with costs.