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Civil Appeal No. 40 of 1959, decided on 12th November 1959.

(On appeal from the judgment and order of the High Court of West Pakistan, Karachi Bench, Karachi, dated the 11th December 1958, in Writ Petition No. 564 of 1958).

(a) Writ-Relief-Grant of relief should follow as legal result from right alleged and found-Prayer for writ of mandamus --Court granting in substance writ of prohibition-Error funda mental-Order of High Court set aside-Constitution of Pakistan (1956), Art. 170.

It is of the very essence of judicial proceedings that the relief to be granted should follow as a legal result from the right alleged and found. The error in the proceedings is fundamental where the relief granted is different from the one prayed and flows not from the right alleged but from a right which has not been pleaded and as to which the Court has never heard the parties.

This is true in all proceedings but more so in proceedings for prerogative writs where the Court does not generally act ex debito justitiae but confines the petitioner to a specific right and a specific relief.

The petitioner had asked for a writ of mandamus or any other appropriate writ requiring the Government of Pakistan to let the respondent continue in office as Joint Secretary, National Assembly, for a further period of two years, but the writ or direction actually issued was not in accordance with this prayer and restrained the Government from inter fering with the rights of the respondent as an employee for the remaining period of his service. Thus in place of a writ of mandamus, a writ of prohibition in substance was issued against the Government, requiring it not to interfere with the rights of the respondent as an employee of the Government. Thus the High Court granted to the petitioner a relief which was never claimed by him and as to which there had been no argument before the High Court.

The order of the High Curt was set aside.

(b) Writ-Relief-Post regarding which relief claimed validly abolished by Government-Relief becoming infructuous-Petition to be dismissed Constitution of Pakistan (1956), Art. 170.

The relief prayed for by the petitioner had ceased to be available to him because the post of the Joint Secretary to the National Assembly in which the petitioner wanted to retain for another two years had been abolished before the announcement of the judgment. On the day the judgment was rendered the High Court could not have issued a writ of mandamus requiring the Government to reinstate the respondent to a post which had been validly abolished.

The proceedings becoming infructuous, the Supreme Court set aside the judgment of the High Court and dismissed the petition.

Nazir Ahmad Khan, Attorney-General of Pakistan (Abdul

Hague, Advocate Supreme Court, with him), instructed by Iftikharuddin Ahmad, Attorney for Appellant.

Khalid M. Ishaque, Advocate, Supreme Court, instructed by Muhammad Ali Sayeed, Attorney for Respondent No. 1.

Respondent No. 2 : struck off.

Date of hearing : 12th November 1959.

.-This appeal by the Government of Pakistan from the judgment of a Karachi Bench of the High Court of West Pakistan arises in the following circumstances.

The respondent, Mr. Khondkar Ali Afzal, was to retire from service as Joint Secretary to the National Assembly due to his superannuation on 19th August 1957. The Speaker of the National Assembly recommended his retention for another three years and Prime Minister Suhrawardy agreed with him. But, before this decision was given formal shape and notified in the official Gazette, the Government changed and the question was reconsidered by the succeeding Ministry of Prime Minister Malik Firoz Khan Noon. As a result of this reconsidera tion, the respondent was given an extension of service for only one year i.e., up to 18th August 1958, and a notifica tion to this effect was published in the Gazette of Pakistan of 16th May 1958.

Apparently, having learnt of these facts Mr.Afzal moved a petition before the Karachi Bench of West Pakistan, alleging that the Government of Pakistan was bound by the earlier order of Prime Minister Suhrawardy; that the notification by which his service had been extended for only one year was invalid, and praying "that this Honourable Court will be pleased to issue a writ of mandamus or any other appropriate writ, direction or order

(a) ordering the respondents to continue the petitioner in office as Joint Secretary, National Assembly, for the remaining period of 2 years on such terms, emoluments and benefits as the petitioner is entitled to,

(b) to quash the notification dated 5th May 1958, reducing the term of petitioner's service from three years to one year,

(c) any other relief that this Honourable Court may deem fit."

The Government of Pakistan opposed the petition on the ground that Prime Minister Suhrawardy's order was not final and was liable to reconsideration and that since the only decision communicated to the respondent was that of 16th May 1958 it was that decision which was final and governed the rights and obliga tions of the parties.

The petition was heard in the High Court on several dates i.e., from the 27th August to the 17th of September 1958.

The Constitution was abrogated on 8th October 1958, and the post of Joint Secretary to the National Assembly was abolished on the 23rd October 1958. The judgment of the High Court, written and signed by the Bench which heard the petition is not dated, and was announced to the parties by Chief Justice Kayani on 11th December 1958. The operative part of that judgment is as follows;

"We are satisfied on the whole that the order of Mr. Suhrawardy dated the 9th of April 1957 extending the service of the petitioner for three years is binding on the parties. We, therefore, quash the notification dated the 6th of May 1958, which purports to extend the term of his service for one year and order the respondents not to interfere with the rights of the petitioner as an employee of the Government for the remaining period of his service according to the order of Mr. Suhrawardy."

The Government of Pakistan were permitted by this Court to appeal from the judgment of the High Court, and having heard the learned Attorney-General in support of the appeal and Mr. Khalid Ishaq on behalf of the respondent we are of the opinion that the appeal must be allowed and the order of the High Court set aside on two simple grounds. Firstly, they respondent in his petition had asked for a writ of mandamus or any other appropriate writ requiring the Government of Pakistan to let the respondent continue in office as Joint Secretary, National Assembly, for a further period of two years, but the writ or direction actually issued is not in accordance with this prayer and restrains the Government of Pakistan from inter fering with the rights of the respondent as an employee of the Government for the remaining period of his service. Though it is not stated in the judgment, it appears that the learned Judges at the time of writing the judgment were aware of the fact that the post of the Joint Secretary to the National Assembly had already been abolished and that therefore the specific relief claimed by the respondent had become infructuous. It is for this reason that in place of a writ of mandamus, a writ of prohi bition in substance was issued against the Government, requiring it not to interfere with the rights of the respondent as an employee of the Government it is thus obvious that the High Court granted to the respondent a relief which was never claimed by him and as to which there had been no argument before the High Court. Secondly, the relief prayed for in the petition had ceased to be available to the respondent because the post; of the Joint Secretary to the National Assembly had been abolishes; before the announcement of the judgment. On the day the judgment was rendered the High Court could not have issued a writ of mandamus requiring the Government to reinstate tile respondent to a post which had been validly abolished. Though; this aspect of the matter must have been present to the minds of the learned Judges, there is not one word about it in the judgment and the matter has been decided and a writ issued against the Government in respect of a matter to which the attention of the parties was never directed. It is of the very essence of judicial proceedings that the relief to be granted should follow as a legal result from the right alleged and found. The error in the proceedings is therefore fundamental where the relief granted is different from the one prayed and flows not from the right alleged but from a right which has not been pleaded and as to which the Court has never heard the parties. This is true in all proceedings but more so in proceedings for prerogative writs where the Court does not generally act ex- debito justitiae but confines the petitioner to a specific right and a specific relief. We allow this appeal, set aside the judgment of the High Court and dismiss the respondent's petition for a writ. In the circumstances, we have mentioned, parties will bear their own costs.

A. H. Appeal allowed.

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