' S. ABDUL JABBAR KHAN (CHAIRMAN).-In this appeal filed on 21st October, 1974, by M. Ghulam Sadiq Wadhera, Superintending Engineer in the Irrigation Department, the appellant had challenged his dismissal under M. L. R. 58 by the order of the President of Pakistan. The appellant had claimed the following reliefs:- ' The dismissal order of the appellant be set aside and the respondent be asked to re-instate the appellant with all service benefits and the cost be also awarded to the appellant against the respondent."
' During the pendency of the appeal the appellant died issueless on 6th of June, 1980 and had already attained superannuation by that time. By an application dated 3-7-1980 the widow, the mother and the brother of the deceased appellant have applied to be added as legal representatives to continue the proceedings. The application is resisted by the department according to whom no right to sue survived in favour of the applicants as the deceased wanted to enforce the personal right to office which came to an end firstly, on the appellant's attaining superannuation and secondly by his death.
2. The parties were heard. The applicants contended that in term of the relief the deceased appellant had claimed not only the right to personal service but also "other service benefits" which included pay, pension, etc. According to applicants the right for salary, pension, etc., was a heritable one. Thus the legal representatives of the deceased are entitled to continue and press the appeal to its logical and notwithstanding the death of the deceased. In this behalf Mst. Lal Bibi v. Mir Baluch Khan (1) was relied upon. In that case the legal representatives of the deceased who claimed to be the heirs to the property of the deceased were added to the proceedings although the Dastural Amal Diwani of Kalat State (now defunct) did not make any specific provision to that effect. The applicants also cited PLD 1977 SC 52 in which the appellate Court allowed the legal representative of the respondents to be added after his death. Lastly, In re : Muhammad Afzal v.
House Building Finance Corporation (2) was cited in which the appellant challenged the order of the Corporation dismissing him from service and also claimed the salary and the damages amounting to Rs, 50,000 as a consequential relief. In this case Mr. Justice Zaffar Hussain Mirza held that termination of the service of the appellant was covered by the terms of his employment and he was not entitled to the salary beyond the period of three months which had already been paid to him. However, on the question as to whether the legal representatives of the deceased were entitled to be brought on record, the learned Judge observed as under :- "As regards the additional issue the contention of Mr. Zari is that the rights claimed in the suit were of personal nature, pertaining as they did to the service rights of the deceased plaintiff and as such on his death the suit abated. He referred to several cases from the Indian jurisdiction as well as some Pakistani cases. I do not wish to burden this judgment with the decision of the case cited.
Suffice it to say that none of the cases is directly on the point. In all these cases the right claimed was strictly a personal right and, therefore, could not survive in favour of or against the Legal Representative of the deceased. In the present case as stated above one of the reliefs claimed in the suit was for recovery of arrears of salary accruing by way of consequential relief and accordingly an ascertained sum was being claimed, which had fallen due to the deceased in his lifetime if the case had succeeded. I, therefore, hold that the right to sue did survive to the Legal Representatives of the deceased plaintiff."
' The applicants also submitted that the right to get salary is now well established as held by the superior Courts of Pakistan In re : Muhammad Anwar v. Government of Punjab (3) With these submissions the applicants claimed to be substituted for the deceased to continue this appeal.
3. The respondents, on the other hand, contended that in substance the appellant had been seeking enforcement of the right of personal service which right did not survive after his death.
According to the respondent the case was covered by the principle of "Action personalis moriture cum persona", which means that personal right dies with the person. It is contended that it had been consistently held by the Courts that right to office is a personal right which did not survive after the death of the plaintiff. The respondent vehemently relied upon {{FOOT NOTE}}
(1) P L 1) 1972 Quetta 28 (2) PLD 1978 Kar. 1121 (3) PLD 1962 Lah. 443 {{FOOT NOTE}} ' PLD 1973 Note 108 at p.
164. In this case Mr. Justice Nasim Hasan Shah on 15th February, 1971, in a writ petition held that after the death of the petitioner who sought to enforce his right to office, the petition abated. As regards the Karachi case, the learned counsel submitted that in that case it was held by the learned Court that the termination of plaintiff's services was in accord with his terms and conditions of service and he was entitled to damages only. Thus the observation regarding entitlement of the appellant to be added as legal representative appeared to be in the context of this claim. The decision in that case proceeded on the premise that an ascertained sum of money had been claimed by the appellant deceased which claim if established could been forced by the legal representatives of the deceased, In PLD 1977 SC 182, the suit in that case had been decreed and the right had already accrued to the deceased and the legal representatives acquired a valid right. The Quetta case did not deal with the substantive right at all. The learned counsel for the respondents also submitted that in terms of section 4 of the Punjab Service Tribunal Act only a civil servant could file an appeal.
4. After hearing both the parties we are of the view that the appeal could not proceed and had abated. Primarily under section 5 of the Punjab Service Tribunals Act, 1974, it is the right of a civil servant only to maintain an appeal to enforce his terms and conditions of service. We are in agreement with the respondents that the decision of the Karachi High Court was in a different context. In fact it is quite evident that in the said case the terms and conditions of service of the deceased who was the employee of a Corporation, were regulated by the principle of master and servant. He was not entitled to enforce his right to office and was entitled only to claim the damages. In fact it is so observed by the learned Court that the appellant was entitled merely to the damages. Thus, in substance in the Karachi case the claim was to the liquidated damages. But even in the case of damages there is divergent opinion between the Calcutta High Court and other Courts of Indian jurisdiction. According to Calcutta High Court the right to sue survived whereas all other High Courts including the Supreme Court of India were of the view that the right in suit did not survive. Thus the proposition is not free from doubt, rather the preponderance of judicial authority is to the contrary. However, the decision of the Labor High Court in PLD 1973 Lahore (Notes) 108 is to the point and appears to be on all fours. We are in accord with the above cited view and hold that the appeal has abated and the right to suit did not survive.
5. Consequently the application fails and is rejected accordingly.