' This is a revision petition against a decree passed by Mr. Muhammad Aslam, Additional District Judge, Sahiwal, dated 19th April, 1974 by which he maintained the judgment and decree of the learned trial Court dated 3rd November, 1973 in a suit for declaration about the respondent's entitlement to salary for the period of his suspension from the service, filed by him. The respondent was appointed as a Patwari in 1938 and was confirmed in that capacity in the year 1940. He was suspended on charges of misconduct on the 12th of October, 1966, and an inquiry was initiated against him. After holding the inquiry he was dismissed from service on the 24th of April, 1967. This order of dismissal was, however, set aside in appeal by the Commissioner on the 4th of June, 1969.
Thereafter a fresh inquiry was conducted and after exonerating him from the charge the Collector re-instated him on the 7th of September, 1969. Since the period of his suspension from the 12th of October, 1966 to the 7th of September, 1969, was treated as leave without pay, the respondent filed an appeal before the Commissioner which was dismissed on the 2nd of April, 1970. He then filed a suit for declaration simplicitor on 11th October, 1970 that he was entitled to his salary during the period of suspension.
2. This suit was decreed by the learned trial Court on the 3rd of November, 193, and that decree was maintained in appeal by the impugned judgment and decree dated 25th April, 1974.
3. The petitioner had taken objection to the form of the suit on which the following issue was framed as Issue No, 2 :- ' Whether the suit is not maintainable in its present form ?
' The learned trial Court held on the basis of Pakistan v. Mrs. A. Y. Issacs (1), that a suit for simple declaration in regard to salary of a public servant is competent. In that case it was held that a civil servant has and always had the right to recover from the Crown salary already accrued due to him, in spite of the fact that he held service during the pleasure of the Crown.
4. This authority is clearly distinguishable since the appeal before their Lordships of the Supreme Court arose out of a suit for declaration that the order of discharge of the plaintiff from her service was wrongful, void, illegal, inoperative and ultra vires and the matter of salary was consequential upon the decree for declaration. Such a suit for declaration that the order passed in contravention of the constitutional guarantee has been held to be competent vide I. M. Gall's case (2). This principle will not, however, apply to a case where the order of removal or dismissal itself is not in question. In case of salary the matter will be governed by provisions of section 42 of the Specific Relief Act which provides in its proviso that no Court shall make any such declaration where the plaintiff being able to seek further relief than mere declaration, of title omits to do so. There is no doubt that the plaintiff could have filed a suit for recovery of the actual amount of salary claimed by him. In these circumstances the suit is barred under the proviso to section 42 of the above Act.
5. I, therefore, allow this petition with costs throughout, set aside the judgments and decrees of the learned Courts below and dismiss the respondent's suit. {{FOOT NOTE}}
(1) PLD 1970 SC 415 (2) PLD 1948 P C 150 {{FOOT NOTE}}