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Civil Appeal No. 43-D of 1959, decided at Dacca on 29th January 1960.

(On appeal from the judgment and order of the High Court of East Pakistan, Dacca, dated the 29th January, 1959, in Writ Petition No. 134 of 1958).

(a) Bengal Service Rules, Part I, Chapter V, rr. 54 & 72 "Next below Rule"-Applicable subject to "Guiding Principles " Not applicable in case of inefficiency or unsuitability of Government servant, or of leave-Government, sole judge of suitability for promotion-Courts unable to interfere except for proved mala fides.

The next below rule' does not apply to cases where the officer was said to be inefficient, unsuitable or was on leave:

In view of the "guiding principle" for the application of the next below rule' a Government servant is only entitled to the benefit for the period during which he was considered neither inefficient nor unsuitable.

So far as suitability for promotion to a particular post is concerned, the sole judge is the Government and Courts are unable to interfere except possibly in a case of proved mala fides.

(b) Government servant-Adverse remarks in character roll ---Within exclusive competence of superior officers-Presumption of regularity of official acts-Mala fide remarks-Whether Courts have jurisdiction to expunge-Non-communication of remarks to Government servant-Matter not justiciable.

S. R. Pal; Advocate Supreme Court, instructed by B. N. Chowdhury, Attorney for Appellant.

B. A. Siddiky, Advocate-General, East Pakistan (K. Hossain, Advocate Supreme Court with him), instructed by Shahabuddin Ahmed, Attorney for Respondents.

Date of hearing : 29tH January 1960.

.-This is a certificated appeal from the judgment and order of the High Court of East Pakistan disallowing in part the appellant's petition for issue of a writ on the Province of East Pakistan and the Chief Secretary, Government of East Pakistan.

The appellant entered the Indian Police Service in the year 1930. After Independence in 1947 when he held the rank of Superintendent of Police he was appointed Director of Anti- Corruption Department and crossed the efficiency bar in 1948. Between the 10th February 1949 and the 17th March 1949 Superintendents of Police junior to him were promoted to act as Deputy Inspector General of Police. In 1950 he was transferred to Karachi as Senior Superintendent of Police and while he was away at Karachi another Superintendent of Police junior to him was promoted to officiate as Deputy Inspector General of Police from May 10, 1951. He stayed at Karachi till the 31st October 1951 and then went on leave from November 1951 till he joined as officiating Deputy Inspector General of Police on March 10, 1952 in which post he was confirmed with effect from the said date. It was on his representation that the, appellant was given an officiating promotion to the post of Deputy Inspector General of Police on 10th March 1952. In the circumstances, the appel lant claimed the benefit of Next Below Rule' of the Bengal Service Rules, Part I, Chapter V, Rules 54 and 72, for the period between February 16, 1949 and March 10, 1952, during which his juniors were promoted over his head. In the writ petition the appellant also alleged that various adverse remarks were made in his confidential character rolls from time to time between 1943 and 1954 and prayed for their expunction from the record. The respondents contested the writ petition and alleged that as the appellant was not considered suitable for officiating promotion till May 1951, his juniors were promoted in preference to him; that he could not be promoted in May, as the Central Govern ment did not release him before October 1951, after which the appellant went on leave from November 1951 for four months, and he could not avail himself of the promotion before March 1952 and therefore was not entitled to the benefit of the Next Below Rule'. As no rule was issued by the High Court on the question of expunction of adverse remarks, the respondents did not consider it necessary to say anything with regard to it.

In reply to his representation against his being passed over in the matter of appointment as a Deputy Inspector General of Police from February 16, 1949 to March 10, 1952 he was informed by the Joint Secretary to the Government of East Pakistan in his letter No. 162-G. A. C., dated the 9th February 1957, as follows

"The representation which is said to have been submitted by you in 1950 to the Central Government was not received by this Government. The representation submitted by you in April, 1951 was, however, received from the Central Govern ment and on a careful consideration of the same the Provincial Government tentatively decided to appoint ,you as Deputy Inspector-General of Police on reversion from the Centre.

As regards the assurances stated to have been held out to you by the Inspector-General of Police, East Pakistan and the Ministry of the Interior, the Provincial Government think that they are not concerned with these assurances in any way.

While promoting Messrs A. Z. Obaidullah, K. A. Hoque and A. K. M. Hafizuddin to the rank of the Deputy Inspector General of Police, your case was also considered by the Provincial Government along with theirs. It was on the ground of merit and suitability that your juniors mentioned above were appointed as Deputy Inspector-General of Police in super session of your claim. The question of granting the pay of Deputy Inspector General of Police under the next below rule' due to the promotion does not arise.

Your claim for the benefit of the next below rule' for the period the 10th May, 1951, to the 31st October, 1951, due to the promotion of Mr. Y. A. Sayeed as the Deputy Inspector General of Police on the 10th May, 1951, during your deputa tion to Karachi is, however, under the consideration of the Provincial Government. Their decision, as soon as arrived, at, will be communicated to you."

It was thus the case of the Government that so far as the appointments up to 10th May 1951, were concerned, his case was also considered along with those of others and it was on the ground of merit and suitability that his juniors were appointed as Deputy Inspector General of Police in supersession of his claim. They, however, promised to consider his case for the benefit of the Next Below Rule' from 10th May 1951 to 31st October 1951 when he was on deputation to Karachi and was actually on duty there, after which he went on leave before joining as Deputy Inspector General of Police on 10th March 1952. With regard to his supersession the Government, however, have not produced any express order superseding him by his juniors. After another letter in which it was stated that the question of his claim to the benefit of the Next Below Rule' for the limited period from 1,0-5-51 to 31-10-51 was under consideration, he was informed on the 31st May, 1958 that this also was turned down by the Government. The provisions of the fundamental Rules relating to the Next Below Rule', on which the appel lant relies and which have been considered by the High Court, were to be applied subject to certain "Guiding Principles", the relevant portions of which are as follows :---

"The intention of the so-called rule was apparently that an officer out of his regular line should not 'suffer by forfeiting acting promotion which he would otherwise have received had he remained in his regular line. From that it follows that the fortuitous acting promotion of some one junior to an officer who is out of the regular line does not, in itself, give rise to a claim under the 'next below rule'. Before such a claim is established it should be necessary that all the officers junior to the officer who is out of the regular line have been given acting promotion, and also the officer next below him, unless in any case the acting promotion is not given because of ineffici ency, unsuitability or leave. In the event of one of these three bars being applicable to the officer immediately below the officer, outside his regular line, then some other officer, even more junior should have received acting promotion and the officers, if any, in between should have been passed over for one of these reasons."

The Next Below Rule', therefore, does not apply to cases where the officer was said to be inefficient, unsuitable or was on leave. According to the Government's case, the appellant was found unsuitable for acting promotion during the period before 10th May 1951, and during the period 1st November 1951 to 9th March 1952 he was not on deputation but was on leave. The High Court, on this consideration, held that he was not entitled to the benefit of the Next below Rule' for the earlier and the later periods but that he was entitled to get the benefit for the period from 10th May 1951 to 30th October 1951. In view of the "Guiding Principle" for the application of the Next Below Rule's quoted above, we agree with the High Court that he was only entitled to the benefit for the said period. So far as suitability or promotion to a particular post is concerned, the sole judge is the Government and the Courts are unable to interfere except possibly in a case of proved mala fides.

This brings us to the question of adverse remarks against this officer in his confidential character rolls from 1943 to 1954, some of which had evidently weighed with the Government in finding him unsuitable for promotion in 1949. In support of his case for expunction of the adverse remarks the appellant in his petition for writ has given a list of good work that he did as an officer and has relied upon a letter dated the 15th January 1946 from the Deputy Inspector General of Police of his Range appreciating in very high terms his work as Superintendent of Police, Tippera. He also stated that there was an incident in which the Divisional Commissioner of Chittagong was annoyed with him. He also suggests that he earned unpopularity with some European Officers, as he reported misdeeds of his European colleagues to higher authorities and that he had a difference at one time with his Inspector General of Police. There is nothing to show that the adverse remarks were caused to be made under the influence of the officers with whom he had differences, or that they were made by the Inspector General of Police out of malice. The materials before us are wholly insufficient to show mala fides of those remarks. On the other hand, there is a presumption of regularity of official acts. It is difficult to infer that the series of adverse remarks spreading over a number of years against the appellant were all mala fide. Besides, it is within the exclusive competence of superior officers to express themselves freely as to their own opinion, which may be right or wrong, with regard to the appreciation of work and character of their subordinates having a bearing on their duties. The appellant also stated that he was unaware of these remarks, as they were not communicated to him. It is regrettable if they were not communicated to him, as it would have given him an opportunity to correct himself in time; but this is a matter which could be dealt with by the Government on its administrative side and is not a matter which is justiciable in a Court of law. The appeal is accordingly dismissed.

A. H. Appeal dismissed.

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