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Appeal from Appellate Decree No. 223 of 1962, decided on 29th March 1967.

, dated 28‑2‑1959]‑Government Servant cannot be screened out on ground of "inefficiency" under Public Conduct (Scrutiny) Ordinance (III of 1959).

Province of East Pakistan v. A. K. M. Rezaul Karim and another Appeal from Appellate Decrees Nos. 803 and 804 of 1965 distinguished.

Md. Jani Alam, Senior Government Pleader and Md. T. H. Khan, Assistant Government Pleader for Appellant.

Farid Ahmed with Muhammad Korban Ali, M. Nurullah and Giasuddin Bhuiya for Respondent No. 1.

Dates of hearing: 28th and 29th of March 1967.

.‑This appeal raises a very simple point and it arises out of the following circumstances Respondent No. 1 Murzuqullah was, during the year, 1959, a Deputy Magistrate under the appellant, Namely, Government of East Pakistan. He was then serving as a Circle Officer in the Sub‑Division of Cox's Bazar in the District of Chittagong. Proceedings were started against him at the instance of the Sub -Divisional Officer of Cox's Bazar under the Public Conduct (Scrutiny) Ordinance, 1959. Several notices were served on him. The final notice on which the impugned action was taken against the plaintiff was in pursuance of a notice which was marked as Exh. 3 in the trial Court. The Screening Committee recorded a finding that the plaintiff was considered to be unsatisfactory in respect of his work as such Deputy Magistrate. In pursuance of the recommendation of the Screening Committee the Govern ment finally passed an order retiring him compulsorily from the service on the ground of inefficiency. Before the proceedings leading to the recommendation of the Screening Committee and the aforesaid compulsory retirement, plaintiff was put under suspension.

Being aggrieved by the order of compulsory retirement as passed by the appellant‑Government of East Pakistan, plaintiff instituted a suit for a declaration that the order which was passed to the effect that plaintiff be retired compulsorily from service was illegal, ultra vires and not binding upon the plaintiff. He furthermore asked for various other reliefs with which we are not concerned at the present moment.

In the plaint which was filed, serious allegations were made against the said Sub‑Divisional Officer of Cox's Bazar who was made a party to the suit. The Sub‑Divisional Officer of Cox's Bazar did not controvert them by any written statement which he had filed. Normally, in the eye of law, the averment in the plaint against the Sub‑Divisional Officer would be deemed to have been admitted. However, since we are not called upon to adjudicate upon the question, we are not giving any final opinion on the point. Curiously enough, the allegations which were leveled personally against the Sub‑Divisional Officer, were vicariously refuted by a written statement filed on behalf of the appellant, i.e. Government of East Pakistan. It is rather a curious way of contesting the averments in the plaint which are directed against an individual person. We are also not concerned with this point and we prefer to leave it here. One of the contentions taken in the written statement filed on behalf of the appellant was that the learned Subordinate Judge before whom the suit was pending was not competent to try the same. This was heard as a preliminary issue and it was held by the learned Subordinate Judge that he had jurisdiction to entertain the suit if the impugned order was outside the purview of the aforesaid Ordinance as amended at the time when action was taken under it. On this point we hold that the learned Subordinate Judge was right in deciding that he had jurisdiction to try the suit having regard to the fact that under the amended provisions of the Rules made in respect of the said Ordinance the word "inefficiency" was excluded as a ground for screening an Officer from Government service. The impugned order itself being outside the scope of the Ordin ance itself, the bar imposed in this behalf is not applicable. No authority is needed in support of the proposition which has been held by the learned Subordinate Judge. The point is well‑settled now.

The next question is whether the impugned order was mala fide and furthermore, whether it was ultra vires of the provisions of the Public Conduct (Scrutiny) Ordinance, 1959, as amended by the subsequent Rules. We have perused the paper book which was filed in this Court in respect of the appeal and if we were called upon to do so, we might have said that the order itself was mala fide. The point was not, however, agitated because of the simple fact that the impugned order was patently ultra vires of the power of the appellant under the aforesaid Ordinance. On this point the recommendation of the Screening Committee may be quoted as follows:‑

"Finding and Recommendation.

The officer was served with a notice charging him with unsatisfactory service, as evident from his record. The Committee pursued the officer's explanation and also granted him interview at which relevant extracts from his confidential Character Roll were read out to him. It was found from the officer's record that throughout his service as a Gazetted Officer, he had displayed a marked lack of initiative and power of taking responsibility. He had never given any impression of being able to rise even to the average level of efficiency required of a Circle Officer. At the time of wholesale absorption in the E. P. C. S. of all remaining Special Officer Debt Conciliation in January 1958 this officer was the senior-most special officer, having been superseded for promotion to the EPJCS by numerous Special Officers Junior to him.

(2) The Committee did not form a good impression of this officer at the time of interview. He appeared to be of a very poor personality and to lack completely that much of presence which is essential in a Deputy Magistrate. The Committee, accordingly came to the conclusion that his services were not being satisfactory and that he was not fit to hold a post of Deputy Magistrate. The Committee, therefore, recommended that Maulvi Murzuqullah be compulsorily retired from service.

K. A. Haque

Member‑Secretary

for Chairman."

There can be no manner of doubt whatsoever that the recommendation of the Screening Committee was to compulsorily retire the plaintiff on the ground of inefficiency. This is the plain meaning of the language as quoted above. It is incapable of any other meaning and it cannot certainly be construed as a recom mendation against the plaintiff on the ground of misconduct which is a well‑understood term of such a context. In pursuance of the aforesaid recommendation the impugned order reads as follows:‑

(4) "In exercise of powers conferred on him by sub‑clause (b) of clause (5) of Article 6 of the Laws (Continuance in Force) Order, 1958, the Governor has been pleased to order retirement of Maulvi Murzuqullah, Deputy Magistrate and Dy. Collector, on probation, lately employed Circle Officer, Cox's Bazar, Chittagong (under suspension) from service with effect from the date of this order for inefficiency.

By order of the Governor

(Sd.) M. Azfar,

Chief Secy. to the Govt. of

East Pakistan."

The impugned order is an order of compulsory retirement of the plaintiff on the ground of inefficiency as plainly and expressly stated in the order itself.

The question now is: Can an Officer under the Government be compulsorily retired on the ground of inefficiency under the powers quoted in the impugned order With regard to this we would like to quote the language of the Rules which permitted the screening out of an official on the ground of inefficiency. Rule 2 (c) of the Public Conduct (Scrutiny) Rules, 1959 initially permitted such a course and reads as follows:‑

"(c) is inefficient, or has ceased to be efficient and is not likely to recover his efficiency‑

The Rule came into force on the 21st of January 1959. Thereafter on the 28th of February 1959, the aforesaid Rule was amended and it was notified on the said date as Public Conduct (Scrutiny) Rules, 1959 (Amendment) and marked as S. R. O. 87, 28th February 1959 (Gazette Extraordinary, 2nd March 1959), which reads as follows:‑

"In exercise of the powers conferred by section 8 of the Public Conduct (Scrutiny) Ordinance, 1959. The Central Government is pleased to direct that the following amendments be made in the Public Conduct (Scrutiny) Rules, 1959, namely :‑

In the said Rules,‑

(a) in rule 1, sub‑rule (3) shall be omitted;

(b) in rule 2, clause (c) shall be omitted."

The legal position, therefore, is that on and after the 28^th February 1959 there cannot be any screening of an official under the aforesaid Ordinance on the ground of inefficiency. This follows from the plain language of the amendment itself:

The appeal, therefore fails before us on the two grounds which were canvassed on behalf of the appellant. We accordingly dismiss the appeal without any order as to costs.

Before parting with this case we would like to observe that on behalf of the appellant our attention was drawn to an unreported judgment pronounced on 8‑2‑1967 by a Division Bench of this Court in Appeal from Appellate Decrees Nos. 803 and 804 of 1965 (Province of East Pakistan v. A. K. M. Rezaul Karim and another).

It should be noticed that there the purported order was on the ground of misconduct. We are not called upon to say whether in the light of the facts of the aforesaid case misconduct was proved or not. But the point to be noticed is that in the aforesaid case the impugned order was not passed on the ground of inefficiency as in this case. This is the plain point of distinction between the two cases and it is important to remember this.

We would further like to observe that the attention of the Court was not drawn to the amendment, as stated above. In any event, we are not concerned with the point because in the case before us the impugned order was passed on the ground of inefficiency.

.‑I agree.. .

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