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Art. 102-Limitation-Suit. for recovery of arrears of pay by .Government servant-No suit for recovery of arrears of pay being competent before - judgment of Supreme Court cited as Mrs. A. V. Issac's case (P L D 1970 S C 415) delivered on 10th July, 1970 any attempt by aggrieved Government servant in such regard before 10th July, 1970 would have been futile-Supreme Court judgment, nevertheless, not operative retrospectively so as to alter flow of time of limitation already started running from before and Legislature having not amended law to take advantage of its beneficial effects, commencement of period of limitation, held, to be regulated by Art. 102 and starting point of limitation in case in hand not date of pronouncement of judgment in Mrs. A. V. Issac's case but date of resumption of duty by aggrieved Government servant. [Limitation].

Mrs. A: V. Issac's case P L D 1970 S C 415 ; Province of Punjab v. Tara Chand A I R 1947 F C 23 ; High Commissioner for India and Pakistan v. L M. Lail P L D 1948 P C 150 ; Federation of Pakistan v. All Ahrnad Hussain Shah and another P L P 1955 F C 522; Noorul Hassan and others v. Federation of Pakistan P L D 1956 S C (Pak.) 331 ; State of Pakistan v. Mehrajuddin P L D 1959 S C (Pak.) 147 ; Government of West Pakistan v. Fazal-e-Hag Mussarrat P L D 1960 S C 208 ; Pakistan v: Naseem Ahmad P L D 1961 S C 445 ; Pakistan v. Muhammad A. Hayat P L D 1962 S C 28 and Divisional Superintendent, A: W. R. v. Muhammad Sharif P L D 1963 S C 340 ref. .

Syed Ali Shah for Appellant.

lftikhar Ahmad for Respondent.

Dates of hearing : 10th, 20th February and 16th March, 1981.

This appeal against the order of the learned Additional District Judge, Lahore, dated the 5th November, 1976, accepting the appeal of the respondent against the dismissal of his suit recorded by the learned Civil Judge, Lahore, on the 14th July, 1975, arises out of the following circumstances. Khawaja Ghulam Qadir, respondent, was serving as Sub-Head in the office of the Divisional Superintendent of the then North-Western Railway, Lahore, when he was suspended from service on the 4th April, 1950. His service were terminated by the Railway Administration on the 22nd June, 1950. However, he succeeded through Court decision dated the 20th March, 1954, to get set termination of his services at naught. The Government's appeal against the decree of the learned Civil Judge was dismissed by the learned Additional District Judge, Lahore, on the 14th February, 1955. On his re-instatement in service, he resumes duty on the 30th June, 1.955. Nevertheless, he was not paid arrears of salary for the period he did not actually serve the Department. that is, from the 5th April, 1950, to the 29th, June, 1955. His respresentations to get arrears of salary for the aforementioned period did not fetch any favourable response from the Department which finally informed him through its Letter No 774/E/4/1194-PL, dated the 9th August, 1962, of its refusal to oblige him.

2. After declaration of the law by the supreme Court of Pakistan in Mrs. A. T : Issac's case (P L D 1970 S C 415) on the 10th July, 1970, that arrears of salary no longer constituted bounty of State and an action for their recovery lay in Court, the respondent instituted suit on the 9th July, 1973, to realize from the appellant arrears of his salary for the period from the 5th April, 1950, to the 29th June, 1955. The appellant resisted the suit, inter alia, on the ground that it was time-barred. The learned trial Court settled the following issue for preliminary hearing,-

Whether the suit is barred by time O. P. D.The respondent's contention that he could initiate legal action for recovery of arrears of pay only after the Supreme Court had laid down law declaring such a suit to be competent did not prevail with the learned trial Court which formed the view that Supreme Court judgment had no retrospective effect. It thought that the respondent ought to have instituted suit within three years of the appellant's refusal to make payment of arrears of his salary. Holding the suit to be time-barred, it dismissed the same.

3. The learned Additional District Judge concluded that the period of limitation started from the date of pronouncement of the judgment in Mrs. A. V. Issac's case by the Supreme Court on the 10th July, 1970, because no Government servant had any right to recover arrears of his salary which was taken to be just a bounty of State before. The suit having been brought within three years of delivery of judgment by the Supreme Court was held to be within time. The appeal was consequently accepted and suit was remanded to the learned Civil Judge for deciding it on merits in accordance with law. Feeling aggrieved the appellant has come up in appeal to this Court.

4. Admittedly three years' period of limitation prescribed by Article 102 of the First Schedule of the Limitation Act, 1908 (IX of 1908), for instituting suit for recovery of arrears of salary in dispute was to commence when the salary accrued due. Relying upon the rule laid down by the Federal Court in the Province of Punjab v. Tara Chand (A I R 1947 F C 23) that Article 102 applied to a suit by a Government servant to recover arrears of pay, the learned counsel for the appellant maintained that the arrears of salary became due to the respondent on the 30th June, 1955, when he was re-instated in service and the suit having been brought long. after the expiry of period of limitation was time-barred. The learned counsel supported the finding of the learned trial Court that the decision of the Supreme Court in Mrs. A. Y. Issac's case was not retrospective and could not help the respondent to enlarge time of limitation which had already run out long since before. Assuming, though not conceding, that the cause of action accrued to the respondent on the 9th August, 1962, when he had been finally told that the Government was not prepared to pay him arrears of his salary, the learned counsel contended that action initiated by the respondent was out, of time.

5. On the other hand, the learned counsel for the respondent pointed out that before pronouncement of judgment in Mrs. A. A. Issac's case the law laid down by the highest Courts of the realm in an unbroken chain of authorities beginning with High Commissioner for India and Pakistan v. I. M: Lall (P L D 1948 P C 150), and running through Federation of Pakistan v. Ali Ahmed Hussain Shah and another (P L D 1955 F C 522), Noorul Hassan and others v. Federation of Pakistan (P L D 1956 S C (PaL) 331), State of Pakistan v. Mehrajuddin (P L D 1959 S C (Pak.) 147 ), Government of West Pakistan v. Fazal-e-Haq Mussarrat (P L D 1960 S C 208), Pakistan v. Naseem Ahmed (P L D 1961 S C 445), Pakistan v. Muhammad A. Hayat (PLD1962SC28) and Divisional Superintendent, N. W. R. v. Muhammad Sharif (PL D1963SC340), the salary of a Government servant constituted no more than bounty of State and no action for recovery of its arrears lay in Court of law held the field. Consequently, the learned counsel contended, any suit brought by the respondent to recover the arrears of salary in question before the Supreme Court laid down new rule of law in Mrs. A. Y. Issac's case making recovery of arrears of salary justiciable would have been simply unsustainable in the eye of law and would have been thrown out by the Court. According to him a suit for such a purpose became competent only after the Supreme Court endorsed its maintainability in its judgment in Mrs. A. Y. Issac's case. He argued that the cause of action in favour of the respondent could not be said to have completely arisen before the judgment of the Supreme Court as the remedy could not have been effectively availed of before. On the basis of this process of reasoning he submitted that the suit having been brought within three years of the enunciation of the enabling rule by the Supreme Court was within time.

6. There is no denying the fact that according to law laid down by the superior Courts of the country no suit for recovery of arrears of pay could succeed in a Court of law before the judgment of the Supreme Court Mrs. A. V. Issac's case was delivered on the 10th July, 1970. Therefore., any attempt made by the respondent by way of suit for recovery of arrear of salary before the 10th July, 1970, would have proved just an exercise in futility. Nevertheless, the pertinent point to be kept in view is that the Supreme Court judgment in Mrs. A. V. Issac's case does not operate retrospectively so as to alter in any manner the flow of time of limitation, which had already started running before and the Legislature in its wild not having thought it fit to amend the law to entitle the Govern men employs to take advantage of its beneficial effects for pressing their claim whose enforcement by legal action was barred by limitation under the existing law commencement of period of limitation prescribed for filing suit for realization of arrears of salary is to be regulated by Article 102 it stands. In that view of the matter the date of the 30th June, 1955, when the respondent resumed duty, and not date of pronouncement of the judgment in Mrs. A. Y. Isaac's case by the Supreme Court, would be take to be the starting point of the period of limitation set down by Article 102, which period had expired long before the respondent filed suit. The suit was, h therefore, time-barred and rightly dismissed by the learned trial Court.