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First Appeal from Original Decree No. 124 of 1959, decided on 15th March 1961.
Arts. 188 & 190‑Public Service Commission, a consultative body‑Recommendations re recruitment to Civil Services etc., not binding on Government though the latter expected to accept them except in exceptional cases.
Age deficiency‑Government com petent to condone‑ Appointment valid‑Decision not revisable except for unsatisfactory work during probation.
Pointing out illegality of Government action‑Government expected to honour declaration.
Court competent to see whether service rules and departmental instructions have been complied with or not irrespective of their having any force of law.
Syed A. B. Mahmud Hossain for Appellant.
S. R. Pal, B. N. Chowdhury and Abu Backkar for Respondents.
M. R. KHAN, J.‑
This first appeal by the Province of East Pakistan is directed against the judgment and decree of the Subordinate Judge, 3rd Court, Dacca, passed in Title Suit No. 18 of 1958, declaring that the Government's Orders Nos. 49 and 50, dated the 5th January 1957, removing the plaintiff from the post of Professor of Pathology, Dacca Medical College are illegal, inoperative and not binding upon him and that the plaintiff is still in service as Professor of Pathology in the said College.
2. Dr. K. A. Mansur, M. B. (Cal.) D. B. (London) D. C. P. (London) a highly qualified person in the medical profession is the plaintiff of the connected suit. He was appointed by the Provincial Government as Assistant Surgeon in the year 1947. In 1954, he was posted as Assistant Professor of Pathology, Dacca Medical College. In January, 1955, the post of Professor of Pathology in the said College was advertised by the Provincial Public Service Commission at the instance of the Provincial Government. The plaintiff applied for that post and had an interview with the Public Service Commission. Pending selection of a candidate for the post of Professor of Pathology, the plaintiff was first placed in charge of the current duties of the said post on the 5th May 1955, and then appointed temporarily to that post with effect from the 16th of August 1955 vide Exhs. 1, 1 (a) and 1 (b). Soon thereafter, the plaintiff, who was already holding an officiating appointment as Professor of Pathology, Dacca Medical College, was given a substantive appointment in the same post on 24‑8‑55 and was put on probation for a period of one year with effect from that date, vide the Government Order No. 3146‑Medl, dated the 1st September 1955 Exh. 1 (c). The plaintiff completed the probationary period to the complete satis faction of the superior authority, namely, the Surgeon‑General with the Government of East Pakistan and continued to hold that post substantively when on the 5th January 1957, the Govern ment of East Pakistan, to the utter surprise of the plaintiff, suddenly passed Order No. 49‑Medl. appointing Dr. Anwar Ali as Professor of Pathology, Dacca Medical College in place of the plaintiff. Simultaneously, the Government passed Order No. 50 Medl., placing the plaintiff on supernumerary duty at the Medical College Hospital, Dacca. Copies of the said orders were forwarded to the plaintiff with direction to make over charge to Dr. Anwar Ali. The implication of the said orders was not quite clear in the beginning as they did not expressly terminate the plaintiff's appointment as Professor of Pathology, but it soon became clear that those orders had the effect of demoting the plaintiff to the lowest post of Assistant Surgeon, and this not only reduced him in rank but also seriously affected his service career. Being aggrieved by those orders, the plaintiff made successive representations to the Government, but these proved abortive. In one of his representations, the plaintiff pointed out that since his appointment to the post of Professor of Pathology, Dacca Medical College was a substantive one, he was entitled to the full pay and status of that post even while on supernumerary duty. This was turned down, and the plaintiff was allowed to draw pay in the scale of Assistant Surgeon which resulted in the reduction of his pay from Rs. 900 to Rs. 390 per month. Failing to get any redress from the Government, the plaintiff brought the suit on the above allegations for a declaration that the Orders Nos. 49 and 50, dated the 5th January 1957, are illegal, void, inoperative and not binding on him and that he is still Professor of Pathology, Dacca Medical College.
3. The Province of East Pakistan contested the suit by filing a written statement. The allegations made in the plaint are generally undisputed. What, however, was stated in substance in the written statement is that the post of Professor of Pathology, Dacca Medical College, could not be filled on a regular basis for want of a suitable candidate. In 1949, the said post was advertised by the Public Service Commission. Pending recruit ment through the Public Service Commission, Dr. Anwar Ali was appointed to act as, Professor of Pathology. The Commission, however, did not find Dr. Anwar Ali suitable for that post and recommended one Dr. Med. W. Gerlach, an outsider, but the Government could not accept that recommendation. Meanwhile, Dr. Anwar Ali was sent abroad for post‑graduate training for one year. After Dr. Anwar Ali's return from abroad, the said post was again advertised by the Public Service Commission in July, 1953, and Dr. Anwar Ali again applied for the same. The Commission, however, could not find any suitable candidate for the post. Col. B. E. Shortt was then appointed to that post on an honorary basis under the Colombo Plan, and Dr. Anwar Ali was sent out to a district as Civil Surgeon. As Col. Shortt was leaving the Province, the post of Professor of Pathology was again advertised by the Public Service Commission in January, 1955, in response to which Dr. An war Ali, Dr. K. A. Mansur, Dr. K. A. Khaleque and Dr. Mazibar Rahman applied for the same. Of them the Public Service Commission found the first three candidates qualified and suitable for appointment to the said post, but Nos. 2 and 3 having been found to be less than the minimum requisite age of 36 years, the Commission recommended Dr. Anwar Ali for appointment to that post. The Government, however, did not accept the Commission's recommendation, and appointed the plaintiff to the post of Professor of Pathology, on probation for one year with effect from 24‑8‑55 with the approval of the then Minister‑in‑charge and the Chief Minister. Dr. K. A. Mansur's work having been found satisfactory, the Surgeon General recommended his confirmation in the said post. But the matter was re‑opened during the regime of the next Ministry and the Cabinet of the time, at its meeting held on 1‑1‑57, decided to appoint Dr. Anwar Ali to the post of Professor of Pathology with immediate effect, and in pursuance of the Cabinet decision, the Government, by its Order No. 49‑Medl., dated 5‑1‑57, appointed Dr. Anwar Ali to the said post on probation in place of Dr. K. A. Mansur who, on reversion, was placed on supernumerary duty at the Medical College Hospital in the scale of pay of Assistant Surgeon. Dr. Anwar Ali was subsequently confirmed in that post with effect from 9‑1‑57, the date of his joining. In defence of its action, the Province of East Pakistan stated further in the written statement that the appointment of the plaintiff to the post of Professor of Pathology, Dacca, Medical College, was made in defiance of the recommendation of the Public Service Commission and in violation of the administrative procedure for recruitment and, as such, the appointment was void and irregular and that the irregularity was rectified by the subsequent appoint ment of Dr. Anwar Ali to the said post.
4. The trial Court decreed the suit on the finding that the appointment of the plaintiff, as Professor of Pathology is valid and operative in law and that he was demoted and reduced in rank in contravention of Article 181 of the late Constitution.
5. The facts of this case are generally admitted or un disputed. It is clear from those facts that after the advertisement of the post of Professor of Pathology, Dacca Medical College, for the third time in January, 1955, the Public Service Commission found the plaintiff, Dr. Anwar Ali and Dr. K. A. Khaleque qualified and suitable for appointment to that post, but the Commission recommended Dr. Anwar Ali alone, inasmuch as the other two candidates age fell short of the minimum requisite age of 36 years. The Government, however, did not accept the Commission's recommendation and, by its letter No. 1462‑Medl., dated the 20th April 1955‑Exh. A, referred back the matter to the Commission for reconsideration and a fresh recommendation. In that letter, the Government stated the reasons for its objection to Dr. Anwar Ali's selection and expressed its preparedness to relax the rules regarding age‑limit in order to condone a few months' age deficiency of either of the remaining two candidates. The Commission sent a reply, to the Government on the 28th April 1955‑[Exh. A (1)] adhering to its previous recommendation about Dr. Anwar Ali and stating that the plaintiff and Dr. K. A. Khalique were still below 36 years. In spite of the Commission's adherence to its previous recommendation, the Government decided to appoint the plaintiff as Professor of Pathology on a regular basis in which post he was officiating from before. Accordingly, the Government condoned the age deficiency of the plaintiff and issued the following order‑Exh. 1 (c) appointing the plaintiff to the said post: ‑
"No. 3146‑Medl., Dated, Dacca, the 1st September 1955.
Dr. K. A. Munsur M.B. (Cal.) D.C.P., D.B. (London) officiating Professor of Pathology, Dacca Medical College is appointed to be on probation in the post for the period of one year with effect from the 24th August 1955.
By order of the Governor,
(Sd.) M. A. Kasem,
Deputy Secretary.
No.3146/1 (2)‑Medl.
Copy forwarded to the: --‑
(1) Surgeon‑General with the Government of East Bengal.
(2) Accountant‑General, East Bengal, for information. Government have been pleased to condone the officer's age deficiency to the extent of about six months for purpose of this substantive appointment."
6. Mr. Mahinud Hossain, the learned Government Pleader has attacked the validity of the plaintiff's appointment as Professor of Pathology and contends that his appointment as per Exh. 1(C) was invalid, the same having been made in defiance of the re commendation of the Public Service Commission. Therefore, the Government, according to him was entitled to revise the appointment and the revision actually made by it was based on justice, equity and good conscience. This contention, however, is not sound. It is true, the Government is required to consul the Public Service Commission on all matters referred to in Article 188 of the late Constitution, including the matter of recruitment to Civil Services and posts unless such consultation is dispensed with by regulations made under that Article. But it appears equally true that the requirement of consultation with the Public Service Commission, a consultative body, does not extend to making the advice of the Commission on those matters binding on the Government. This is clearly indicated by Article 190 of the late Constitution, according to which the Provincial Public Service Commission is required to present to the Government annually a report on the work done by the Commission stating, among others, the cases, if any, in which the advice of the Commission was not accepted and the reasons therefore. That the Government itself does not consider the advice of the Commission invariably binding on it is illustrated by section 7 and section 10(2) of Chapter XT of the Secretariat Manual which run thus :‑
"7. On the receipt of the advice of the Commission on any case, the department will examine the case in order to ascertain whether any exceptional circumstances exist which would justify Government in differing on any point from the advice of the Commission."
"10 (2). When it is proposed not to accept any recommenda tion of the Commission, the department concerned will submit to the Governor the reasons for the proposal."
7. Thus the Government can, in law, refuse to accept and abide by the recommendation of the Public Service Commission in the matter of recruitment to Civil Services and posts under its control and make recruitment thereto in accordance with its best judgment. In practice, however, occasions for overriding the Commission's advice by the Government will arise rarely, for the Government is normally expected to accept the Commission's advice in all cases except in exceptional cases warranting special) considerations. In the present case, the Commission, no doubt, recommended Dr. Anwar Ali for appointment to the post of Professor of Pathology. But the Commission also found the plaintiff to be qualified and suitable for appointment to that post. As, however, the plaintiff's then age fell short of the requisite age of 36 years by a few months, the recommendation went in favour of Dr. Anwar Ali alone. In its letter, dated the 20th April 1955, to the Commission Exh. A the Government gave reasons against the selection of Dr. Anwar Ali and expressed its willingness to condone the age deficiency of the plaintiff or that of the other eligible candidate, Dr. K. A. Khaleque. Later, the Government, as Exh. 1 (c) shows, did, in fact, condone the plaintiff's age deficiency of about six months. The Government as appointing authority is competent to condone age deficiency of any candidates in any given case. D. W. 1 the only witness for the Government in this case also deposed to the effect that condo nation of age deficiency rests with the Government alone. In the present case, the Government had informed the Commission of its preparedness to condone the age deficiency of the plaintiff before actually condoning it. In these state of things, the plaintiff's appointment as Professor of Pathology, Dacca Medical College, on probation for one year as per Exh. 1 (c) with effect from 24‑8‑55 was valid and operative, although the appointment was made contrary to the recommendation of the Public Service Commission. When the plaintiff's appointment was a valid appointment, the question of its revision could not arise at all except on the ground of un satisfactory work of the plaintiff during the period of probation As regards his work, it has been admitted in paragraph 8 (i) of the written statement that "his work having been found satisfac tory, the Surgeon General recommended his confirmation in the said post." Thus, the contention of Mr. Mahmud Hossain as to the alleged illegality of the plaintiff's appointment as Professor of Pathology and the Government's right to revise it falls through entirely.
8. The next contention of Mr. Mahmud Hossain is that the plaintiff's appointment as Professor of Pathology was liabe to be re‑opened and re‑considered by the Government inasmuch as the administrative procedure for recruitment as contained in the Secretariat Manual and the Rules of Business were not complied with. As regards the Secretariat Manual, our attention has been drawn to section 10 (2) of Chapter XI thereof, already quoted hereinbefore. The said section, which is, in the nature of an executive instruction, lays down that when it is proposed not to accept any recommendation of the Public Service Commission, the department concerned should submit to the Governor the reasons for the proposal. As regards the Rules of Business, our attention has been drawn to rule 17 of the Rules of Business as re‑issued on the 17th February 1949. The said rule 17 provides that the following cases, amongst others, should be submitted to the Prime Minister (i.e., the Chief Minister of the Province) after considera tion by the Minister‑in‑charge, but before the issue of orders:‑
(1) Nomination and proposed appointment to any of the posts specified in Schedule II to the Rules of Business (Schedule II includes the post of Professor of Pathology) and
(2) Any case in which it is proposed to override the re commendation of the Public Service Commission.
Now, Mr. Mahmud Hossain submits that the procedure as laid down in section 10 (2) of Chapter XI of the Secretariat Manual and rule 17 of the Rules of Business issued in 1949 not having been complied with in the present case, the plaintiff's appointment as Professor of Pathology called for reconsideration by the Govern ment. It seems that in making this submission, Mr. Mahmud Hossain overlooked paragraph 8 (e) of the written statement according to which the department concerned, did in fact, place the matter before the Governor who was then in power under section 92‑A of the Government of India Act, 1935, and, the Ministry having been installed in the meantime, the Governor by his order, dated 13‑6‑55, directed that the case should be sub mitted to the Chief Minister. It further appears from the said paragraph 8 (e) that consequent upon the Governor's direction the plaintiff's appointment was made with the approval of the then Minister‑in‑charge and the Chief Minister. Thus, the adminis trative procedure outlined in the Secretariat Manual and the Rules of Business was definitely complied with in the given case, and as such, Mr. Mahmud Hossain's contention in this regard is without any substance.
9. In this connection, Mr. Mahmud Hossain further submits that, pursuant to rule 29 of the said Rules of Business, the Education Minister, by his letter dated 29‑12‑55 requested the Chief Minister for placing the question of the plaintiff's appoint ment as Professor of Pathology before the Cabinet for decision that the plaintiff's appointment was accordingly re‑opened and that the Cabinet, at its meeting held on 1‑1‑57, reversed his appointment and appointed Dr. Anwar Ali in his stead rule 29 of the Rules of Business on which reliance is placed for justifying the above action of the Government runs thus:
"29. A Minister may at any stage submit a case to the Prime Minister (i.e., the Minister of the Province) with a view to‑‑‑
(a) circulation of the case or a memorandum thereof to the Ministers for opinion either in turn or simultaneously, or
(b) bringing a specific matter before the Council for decision."
Now, the italicised words "at any stage", in relation to the present case, mean at any stage before the order appointing the plaintiff as Professor of Pathology was passed and given effect to, but does not mean at any stage during the service career of the plaintiff after his appointment as Professor of Pathology. The plaintiff's appointment to the said post was reversed by the Cabinet more than 16 months after the date of the appointment, i.e., even several months after the plaintiff's successful completion of the probationary period. This was hardly permissible under rule 29 of the said Rules of Business. Moreover, the reversal of the plaintiff's appointment, as we shall state hereinafter, offended against Article 181 (2) of the late Constitution, and as such, the said rule 29 could be of no avail. It may be pointed out here that the said Rules of Business were re‑issued on the 17th February 1949, merely as Draft Rules but not in the final form. Thus, those Rules of Business cannot b: relied on as Rules in force at the relevant time. This, however, is not very material inasmuch as the Rules of Business issued in 1946 which were in force at the relevant time contained provisions in rules 20 and 32 thereof similar to those of rules 17 and 29 of the Draft Rules of Business of 1949.
10. The third point urged on behalf of the Government is that the condo nation of the age deficiency of the plaintiff alone was an instance of injustice as the age deficiency of the other eligible candidate was not similarly condoned and, as such, the reversal of the plaintiff's appointment as Professor of Pathology in order to undo the injustice was justified. This contention appears to be without any substance and futile. As already said, both the plaintiff and Dr. K. A. Khaleque were found by the Commission to be qualified and suitable for the post of ,Professor of Pathology, but the age of both of them fell short of the requisite age of 36 years. Of them, the plaintiff had, at that time, more academic qualifications than those of Dr. K. A. Khaleque and was senior to him in the service. It appears from the Government Notifications Exh. 1 (a) and 1 (b) that while the plaintiff was officiating as Professor of Pathology, Or. K. A. Khalequ: was officiating in the admittedly lower post of Associate Professor Thus, the selection of the plaintiff for the post of Professor of Pathology on account of his seniority, more academic qualifications and higher service status in preference to Dr. K. A Khaleque and the condo nation of the age deficiency of the plaintiff alone for the purpose of his selection can never be construed as an act of injustice to the other candidate, namely, Dr. K. A. Khaleque.
11. The fourth point urged by Mr. Mahmud Hossain is that the plaintiff was not demoted and reduced in rank and that the plaintiff's reversion to the post of Assistant Surgeon was justified inasmuch as on the reversal of his appointment as Professor of Pathology no other post was available in which he could have been accommodated. On the other hand, the learned Advocate for the plaintiff respondent submits that as the plaintiff's appoint ment to the post of Professor of Pathology was a substantive one, the impugned Orders Nos. 49 and 50 dated 5‑1‑57 reverting the plaintiff from his said substantive appointment to the lowest post of Assistant Surgeon without affording him any opportunity of showing cause, clearly amounted to his reduction in rank within the meaning of Article 181 of the late Constitution and, for that reason, the said orders are illegal, void, inoperative and not binding on the plaintiff.
12. Although the plaintiff was kept on probation for one year, it appears that his appointment as Professor of Pathology was substantive in character. As a matter of fact, the substantive character of the appointment was clearly stated in the very order of appointment Exh. 1 (c), the material portion of which is as follows :‑
"Government have been pleased to condone the officer's age deficiency to the extent of six months for purpose of this substantive appointment."
Moreover, "Probationer" as defined in rule 5 (46) of the East Bengal Service Rules means "Government Servant employed on probation in or against a substantive vacancy in the cadre of a department". According to Note below the said rule 5 (46), "The status of probationer is to be considered as having the attributes of a substantive status except where the rules prescribed otherwise". There, however, does not appear any rule pres cribing the contrary. Thus, the fact remains that the plaintiff's appointment as Professor of Pathology was a substantive one. Admittedly, the post of Assistant Surgeon is inferior to that of the Associate Professor of Pathology which, in its turn, is inferior to the post of Professor of Pathology. Now, the impugned Orders Nos. 49 and 50, dated 5‑1‑57 had, in effect, reverted the plaintiff from the highest post of Professor of Pathology to the lowest post of the Assistant Surgeon.. This is also abundantly clear from the last sentence of paragraph 8 (j) of the written statement. Thus, the reversion of the plaintiff from his substantive post of Professor of Pathology to the lowest post of Assistant Surgeon definitely amounted to his reduction in rank' within the meaning of Article 181(2) of the late Constitution and, as such, the said impugned orders are void, the same having been made in contravention of the mandatory provision of the Article. After having acted illegally, it is not justified on the part of the Govern ment to justify its illegal action by contending that no post other than the post of Assistant Surgeon was available for the plaintiff's accommodation.
13. Under the Explanation to rule 49 of the Civil Services (Classification, Control and Appeal) Rules then in force, the Government could have discharged the plaintiff from the post of Professor of Pathology during the period of probation on the ground of his unsatisfactory work, and such discharge not being a penalty would not have attracted .the provision of Article 181 (2) of the late Constitution. But here the case is quite different. As already said, the plaintiff's work as Professor of Pathology, according to the admission in paragraph 8 (i) of written state ment, was satisfactory, and the Surgeon‑General recommended his confirmation in the said post. Thus, the plaintiff would have been eventually confirmed in the said post in the normal course had he not been illegally reverted to a lower post. When the plaintiff was not discharged during the period of probation his reversion to a lower post long after the expiry of the probationary period in spite of his satisfactory work and for no fault of his, was highly improper, apart from being illegal. Such reversion adversely affected the plaintiff's service career in various ways; it affected his status, seniority, pay and prospects, his junior Dr. K. A. Khaleque who was previously working under the plaintiff in a subordinate capacity and also Dr. Rouf, another junior, have since gone above him and his pay of Rs. 900 as Professor of Pathology came down to as low as Rs. 390. It appears from the evidence of D. W. 1 that the plaintiff was appointed as Professor of Pathology when the Sarkar Ministry was in power, but he was reverted to a lower post after the coming into power of the Awami League Ministry. This tends to show that the plaintiff became a victim of circumstances, namely, the likes and dislikes of the political parties coming into power in quick succession. Be that as it may, when the impugned Orders Nos. 49 and 50‑Medl., dated 5‑1‑57 caused the plaintiff's reduc tion in rank in contravention of the mandatory provision of Article 181(2) of the late Constitution, those orders are illegal, void, inoperative and not binding on the plaintiff, and the plaintiff is entitled to a declaration to that effect.
14. Mr. Mahmud Hossain then submits that the declaration sought for by the plaintiff should not be given inasmuch as a declaratory decree with no consequential relief is not capable of execution. In order to support this point of view, he has cited a decision of this Court in Gladston Wylie & Co. Ltd. v. Badsha Miah (P L D‑1960 Dacca 305). It is true, a mere declaratory decree is not capable of execution. But a declaration in the present case to the affect that the Government orders reverting the plaintiff's appoint ment as Professor of Pathology were illegal, void, inoperative and not binding on him will be a very valuable gain to him, for the declaration will demonstratively vindicate his position and point out the illegality of the action of the Government. More over, the Government of the day, out of respect for law and legal decisions, is expected to give effect to the declaration of its own accord. In a similar case, namely, Noorul Hassan and others v. Federation of Pakistan (P L D 1956 S C. (Pak.) 331), their Lordships pave a serious con sideration to the propriety of granting a mere declaration and granted a declaration in that case to the effect that the petitioner's dismissal from service was illegal, void and inoperative. There fore, we reject the above contention of Mr. Mahmud Hossain as untenable.
15. The last point raised by Mr. Mahmud Hossain is that the suit was barred by limitation. He contends that the suit was governed by Article 14 of the Limitation Act and that the suit not having been brought within one year of the impugned orders was barred by limitation. Article 14 applies when the order complained of is sought to be set aside. In this case, the plaintiff has not prayed for setting aside the impugned orders; he has only prayed for a declaration that those orders are illegal, void, inoperative and not binding on him and that he is still a Professor of Pathology. Having regard to the declaration sought for by the plaintiff, we find that the suit is governed by the residuary Article 120 of the Limitation Act and not by Article 14. There fore, the suit which was brought on the 27th May 1958 i.e., within 1 years after the passing of the impugned orders was not barred by limitation. It may be pointed out that the question of limitation was not at all raised before the trial Court.
16. Now, coming to the question of relief, we find that the learned Subordinate Judge has given a declaration that the im pugned orders are illegal, inoperative and not binding on the plaintiff. He has given a further declaration that the plaintiff is still in service as Professor of Pathology, 3j;icca Medical College, It seems to us that a decree declaring the impugned orders to be illegal, void, inoperative and not binding on the plaintiff is ade quate for the purpose of this case, and no further declaration as to the plaintiff still remaining in service as Professor of Pathology appears necessary.
17. In the result, we dismiss the appeal, with costs. The judgment and decree of the trial Court are affirmed with the modi fication that the plaintiff is granted a declaration to t;‑e erect that the Government Orders Nos. 49 and 50‑Medl., dated the 5th January 1957 are illegal, void, inoperative and not binding on the plaintiff.
18.
I agree. It is surprising for us to hear an argument advanced by the learned Government Pleader that what has been done by the Government has been done according to the departmental instructions and service rules and the Civil Court has got no jurisdiction to inquire. Our view is H that, whether those departmental instructions and service rules have any force of law or not, Civil Court has got jurisdiction to see and even then whether the authority has acted according to the departmental instructions and the service rules, and it cannot be said that Civil Court has got no jurisdiction to inquire and deal with what the Government has done following the service rules and departmental instructions: --‑
S. B /A H.
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