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Petitioner: SABIR AHMED CHOUDHURY VS Respondent: PROVINCE OF EAST PAKISTAN
P L D 1960 Dacca 1025
P L D 1960 Dacca 1025
Before Murshed and Idris, JJ
SABIR AHMED CHOUDHURY‑Petitioner
versus
PROVINCE OF EAST PAKISTAN AND ANOTHER---‑Respondents
Writ Petition No. 59 of 1960, decided on 13th September 1960.
(a) Laws (Continuance in Force) Order (Post‑Proclamation No. 1 of 1958), Art. 6 (5) (b)‑Public Conduct (Scrutiny) Ordinance (III of 1959), S. 4‑Order of compulsory retirement of Govern ment servant‑Governor may rescind on review or re‑consideration General Clauses Act (X of 1897), S. 21 applicable.
After proceedings under the Public Conduct (Scrutiny) Ordinance (III of 1959), the Governor, on 28th June 1959, passed an order of compulsory retirement of the Government servant concerned under section 4 of the Ordinance, and accord ingly a Notification dated 30th June 1959, was issued notifying the fact of retirement with effect from 30th June 1959. On 29th June 1959, the Governor, on review, rescinded the order dated 28th June 1959, and accordingly, a Notification dated 13th July 1959 was issued in the following terms :‑
"On review of the order dated the 28th June 1959, directing retirement of Mr. A. Salam, Superintending Engineer, Public Health Engineering, East Pakistan, the Governor has been pleased to revoke that order by his order dated the 29th June 1959. Hence the notification No. 150‑PHE, dated the 30th June 1959, issued on the basis of the order dated the 28th June 1959, in absence of the knowledge of the subsequent order of Governor passed on 29th June 1959, shall be treated as vacated and withdrawn and shall be of no force and effect"
Held, that on a proper consideration of the Laws (Continuance in Force) Order (I of 1958), and of the Public Conduct (Scrutiny) Ordinance (III of 1959), the principles enunciated in section 21, General Clauses Act (X of 1897), are by necessary implication attracted to the Order and the Ordinance. There is nothing in the said Order and the Ordinance to negative such an implication. On the contrary, their scheme and provisions, by necessary implication, attract the principles of clause 21 of the said General Clauses Act. It would seem strange that the Governor would not be able to correct or rescind an order of dismissal even if it was made by mistake.
The impugned order of the Governor was to be reviewed in its background. It was patent that there was some mistake somewhere, the Governor, therefore, had the power to rescind an order which he had been empowered to make under the afore said Order as well as the Ordinance. In these circumstances, the order passed by the Governor on the 29th of June 1959, revoking an earlier order passed by him on the 28th of that month was a perfectly legal order.
D. N. Ganguly and others v. State of Bihar and others A I R 1956 Pat. 449 and State of Bihar v. D. N. Ganguly A I R 1958 S C 1018 considered.
If the Governor had power to rescind and revoke an order made by him, he could only do so on a reconsideration of the order rescinded or revoked.
Muhammad Tufail v. Abdul Ghafoor P L D 1958 S C (Pak.) 201 considered.
(b) Writ‑Laches‑Delay of one year after accrual of cause of action‑Fatal‑Constitution of Pakistan (1956), Art. 170.
(c) Writ‑Petitioner guilty of making misleading statements, misrepresentations and of suppression of material facts‑Not entitled to issue of writ‑Constitution of Pakistan (1956), Art. 170.
(d) Government servant‑Promotion‑Whether Government servant can claim promotion as a matter of right.
Asrarul Hussain with M. A. Rab for Petitioner. A. S. Choudhury, Advocate‑General with K. M. Subhan for Respondents.
Dates of hearing : 6th and 7th September 1960.
JUDGMENT
MURSHED, J.‑This is an application for the issue of a writ of mandamus or an appropriate writ of the like nature directing the respondents to recall and rescind and/or withdraw Notification No. 325‑PHE/IE‑24/59, dated the 13th of July 1960, and to forbear from giving effect to the same and also for a writ of quo warranto directing respondent No. 2 to exhibit under what authority he is acting as the Chief Engineer of the Public Health Engineering Department.
The petitioner, Sabir Ahmed Choudhury, has, inter alia, averred in his petition that he had opted as an executive Engineer in the Public Health Engineering Department to serve in East Pakistan and that in the usual course of service he was promoted to the rank of Superintending Engineer in the year 1957. He has also made, inter alia, several other averments some of which are embodied in paragraphs 4 to 9 and 14 to 16 of his petition. They are to the following effect:
That one Mr. A. Latif, the permanent Chief Engineer of the said Department, made over charge to the petitioner on the 13th of June 1960, before going on leave ; that by some manipulation in the Secretariat respondent No. 2, Mr. Abdus Salam, was appointed in the first permanent vacancy in the rank of an Executive Engineer ; that the petitioner and respondent No. 2 were promoted to the rank of Superintending Engineer on the same day, namely, on the 14th of December 1957 ; that under the Public Conduct (Scrutiny) Ordinance (Ordinance III of 1959) (hereinafter referred to as the Ordinance) the Governor passed an order for the compulsory retirement of respond ent No. 2 ; that long after the said Ordinance ceased to be in operation the Governor illegally passed an order cancelling the order passed by him for the compulsory retirement of the said respondent No. 2.
The petitioner has also made various allegations with regard to the competency, honesty and integrity of respondent No. 2 and he has, furthermore, challenged the legality of the appoint ment of respondent No. 2 to act as Chief Engineer in the absence of Mr. A. Latif on leave. In paragraphs 14, 15 and 16 of the application the petitioner has made the following aver ments:
"14. That your petitioner, however, was surprised to find that by a Notification No. 325‑P.H.E./I.E./24/59, dated the 13th July 1960, Mr. A. Salam has been appointed to act as Chief Engineer in place of the permanent Chief Engineer Mr. A. Latif who has proceeded on leave and who had given over charge to your petitioner as the only other person holding the post of Superintending Engineer.
15. That your petitioner, therefore, had to hand over charge to Mr. A. Salam on 14th July 1960.
16. That your petitioner submits that the said appointment of Mr. A. Salam by Notification No. 325‑P.H.E./I.E./24/59 dated the 13th July 1960, is illegal and bad for the following amongst other grounds."
The petitioner laid special stress on the following notifications and order:
(1) Notification No. 150/P.H.E., dated the 30th of June 1959, of the Government of East Pakistan, Works, Housing and Settle ment (P.H.E.) Department, which is as follows :‑
"In exercise of the powers conferred on him by sub‑clause (b) of clause (5) of Article 6 of the Laws (Continuance in Force) Order, 1959, the Governor has been pleased to order retirement of Mr. A. Salam, Superintending Engineer, Public Health Engineering, East Pakistan with effect from the 30th June 1959, (afternoon) for having the reputation of being corrupt.
By order of the Governor Sd. M. Masud Secretary to the Government of East Pakistan."
(2) Order No. 180‑P.H.E., dated the 13th of July 1959, of the Government of East Pakistan, Works, Housing and Settle ment (P. H. E. & D. I. T.) Department which is as follows :‑
"On review of the order dated the 28th June 1959, directing retirement of Mr. A. Salam, Superintending Engineer, Public Health Engineering, East Pakistan, the Governor has been pleased to revoke that order by his order dated the 29th June 1959. Hence the Notification No. 150‑P.H.E., dated the 30th June 1959, issued on the basis of the order dated the 28th June 1959, in absence of the knowledge of the subsequent order of Governor passed on 29th June 1959, shall be treated as vacated and withdrawn and shall be of no force and effect.
By order of the Governor, Sd. M. Masud Secretary."
(3) Notification No. '25‑P.H.E./I.E. 24/59 dated the 13th of July 1960, of the Government of East Pakistan, Works, Housing and Settlement (P. H. E.) Department, which runs thus
"Mr. A. Salam, Superintending Engineer, Public Health who was deputed to Messrs Ralph M. Parsons Coy. for employment in connection with preparation of the I. C. A. Aided Dacca and Chittagong Comprehensive Water Supply and Sewerage Projects in Notification No. 309‑P. H. E., dated 4‑9‑1959 is, on his reversion, temporarily appointed to act as Chief Engineer, Public Health vice Mr. A. Latif on leave.
By order of the Governor, Sd. Deputy Secretary."
The averments of the petitioner have been traversed in an affidavit sworn on behalf of the respondents by one Mr. S. M. Rahman, Section Officer, Works, Housing and Settlement (P. H. E.) Department of the Government of East Pakistan. The said Mr. S. M. Rahman, in his said affidavit has, inter alia, made the following averments in paragraphs 7 to 11, 13, 15, 20, 24 which are as follows:
"7. The statements made in paragraph 4 of the said petition do not disclose the correct position. The fact is that when Mr. Latif, Chief Engineer of Public Health Engineering .suddenly had to go on leave, he made over the charge to the petitioner, without prior intimation or approval of the Govern ment, in the absence of Mr. Salam who was then on deputation to the I. C. A. aided firm in connection with the preparation of some important water supply and sewerage projects for Dacca and Chittagong. In view of the importance of the projects and Mr. Salam's efficiency, experience and seniority he was sent out for the same and in his absence the taking over charge by the petitioner was merely a matter of routine nature and the Petitioner was never appointed by the Government to act as the Chief Engineer of the Public Health Engineering Directorate.
8. The statements made in paragraph 5 of the said petition are inaccurate and do not disclose the correct position. It is absolutely false to say that the respondent No. 2 Mr. Salam was appointed Executive Engineer through the manipulation of interested party, Mr. Serajudulla Khan . . . . . . . . . . . . It is on the recommendation of the Chief Engineer and on consideration of suitability, merit and higher Technical qualifications that the then Secretary of the Department Mr. Hatch Barnwell suggested confirmation of the Respond ent No. 2 and the then Minister Mr. Md. Habibullah Bahar approved of the said order of confirmation of Mr. Salam as Executive Engineer with effect from the 1st April 1950. The Respondent No. 2 Mr. Salam having thus been confirmed as Execu tive Engineer in preference to the petitioner, became senior to him ........
9. The statement made in paragraph 6 of the said petition is yet another attempt to distort facts. The Respondent No. 2 Mr. Salam, who was already senior to the petitioner, retained his seniority even though they were promoted to the rank of the Superintending Engineer on the same date i.e., on 14‑12‑1959. In the relevant notification appointing the Respondent No. 2 Mr. Salam and the petitioner as Superintending Engineer, the name of Respondent No. 2 Mr. Salam appeared first and that of the petitioner second because Mr. Salam was senior to the petitioner. The fact is that the Respondent No. 2 Mr. Salam became senior of the two Superintending Engineers.
10. The allegations contained in paragraph 7 of the said petition are false. It is firmly asserted that neither Mr. Yahya nor anybody else ever recommended suspension of the respondent No. 2 for corruption or for anything else.
11. With regard to the statements contained in paragraphs 8 and 9 of the said petition it is respectfully stated that though the Screening Committee recommended for compulsory retirement Respondent No. 2 Mr. Salam, this recommendation was not accepted by the Advisory Committee consisting of the Martial Law Administrator, the Chief Secretary to the Government of East Pakistan and Member, Board of Revenue Mr. S. M. Hasan, C. S. P., as they were of opinion that Mr. Salam had been the victim of Departmental intrigue and that this was not a fit case for compulsory retirement and that Mr. Salam is an efficient officer he should be profitably kept in the Department. The Advisory Committee has further advised the Governor that there should be a thorough (sic) Probe Into the affairs of Public Health Engineering Directorate. As a result of this advice (sic), probing in the said Directorate has already started. Though the Gover nor had passed an order for compulsory retirement at the first instance, later on he, however, revoked the said order on the 29th June 1959. The order for compulsory retirement was issued on the 30th June 1959, which was not, however, published in the Gazette as was done in other screening cases. The Department concerned issued the said notification in the absence of knowledge of the subsequent orders of the Governor passed on 29‑6‑1959, revoking his earlier order dated 28‑6‑1959. On receipt of the said subsequent order dated 29‑6‑1959, another notification, being No. 180‑P.H.E., dated the 13th July 1959, was issued revoking the said order of compulsory retirement of Respondent No. 2 Mr. Salam . . . . . . For the period from the 1st to 13th July Mr. Salam was, however, granted leave by the Government in consideration of forced absence from duty and as such his con tinuity of service was preserved.
13. It is respectfully stated that the Respondent No. 2 Mr. Salam officiated as Chief Engineer of Public Health Engi neering whenever vacancy arose and that previous to this he has officiated as Chief Engineer as many as six times and his present officiating appointment is the 7th occasion for him to officiate as Chief Engineer.
15. With regard to the statement made in paragraph 12 of the said petition it is respectfully stated that in consideration of his high academic qualifications and technical knowledge Mr. Salam was deputed in preference to the petitioner to work under the I. C. A. Aided Firm in connection with major and important project of water supply and sewerage in Dacca and Chittagong and that the said firm has conveyed their high appre ciation of the work of the respondent No. 2 Mr. Salam.
20. With regard to the ground No. (a) of the said petition it is respectfully submitted that the circular in question does not in any way affect the right of the Respondent No. 2 Mr. Salam being appointed as Chief Engineer.
22. With regard to ground No. (c) of the said petition it is respectfully submitted that granting of leave does not mean that Mr. Salam was out of service. It only means that Mr. Salam was in service, as it is clear that an officer not in service cannot be granted leave.
24. . . . . . . . . . . It is respectfully stated that the petitioner was never appointed as officiating Chief Engineer. He merely held the charge of current duties during the absence of Mr. Salam. The impugned Notification is made in the best interest of public service.
26. That the statements made in ground No. "H" is false and motivated and it is stated that Mr. Salam is competent, efficient, and qualified to hold the post of officiating Chief Engineer. The petitioner is not considered fit for promotion."
On the application of the petitioner, this Court issued a Rule nisi calling upon the respondents to show‑cause why the writs as prayed for should root issue.
At the hearing of the application Mr. Asrarul Hussain, counsel for the petitioner, has challenged the legality of the order of the Governor passed on the 29th of June 1959, as incorporated in Order No. 180‑P.H.E., dated the 13th of July 1959, which has been set out above. The order states that the Governor was pleased to pass an order on the 29th of June 1959, revoking his earlier order dated the 28th of June 1959, by which the Governor was pleased to order the retirement of Mr. A. Salam, Superintending Engineer, Public Health Engineering, East Pakistan, with effect from the 30th of June 1959, (afternoon). Thus on the 28th of June 1959, the Governor, acting in exercise of the powers conferred on him by sub‑clause (b) of clause (5) of Article 6 of the Laws (Continuance in Force) Order, 1958, (to be hereinafter referred to as the Order), was pleased to order the retirement of the said respondent No. 2, Mr. A. Salam, and, again on the day following, i.e., on the 29th of June 1959, he was pleased to revoke the said order.
Mr. Asrarul Hussain has challenged the legality of the order passed by the Governor on the 29th of June 1959, on the ground that neither Article 6 of the Order nor the Ordinance empowers the Governor to revoke an order which he has already made under the Order read along with the Ordinance.
This is the main, and, in fact, the only attack on behalf of the petitioner. On a decision on this point it would also be decided whether the petitioner is entitled to ask for the writs prayed for by him.
On this point Mr. A. S. Choudhury, learned Advocate -General of East Pakistan, has advanced the following arguments:
(1) This Court cannot adjudicate upon the legality of the impugned order passed by the Governor in view of clause (4) added by amendment in Article 6 of the Order, which reads as follows:
"(4) No rule made under clause (3) or order expressed to be made in accordance with any such rule shall be called in question in any Court."
Furthermore, our attention was drawn to section 10 of the Ordinance, which reads as follows :
"10. No order, proceeding or finding of a Committee or of an appointing authority shall be questioned in any Court."
Upon the aforesaid provisions of the Order and the Ordinance, the learned Advocate‑General has submitted that there was a complete ouster of the jurisdiction of this Court from adjudicating upon the legality of the impugned order.
(2) His next contention was that, even if the Order and the Ordinance do not specifically empower the Governor to revoke an order which he has already made, by virtue of the well‑known principle of interpretation of statutes as incorporated in clause 21 of the Central General Clauses Act (Act X of 1897) the Governor has, by necessary implication, the power to revoke or rescind an order which he has already made. Clause 21 of the General Clauses Act runs as follows:
"Where, by any Central Act or Regulation, a power to issue notifications, orders, rules, or bye‑laws is conferred, then that power includes a power exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye laws so issued."
(3) The next point made was that the petitioner is not entitled to challenge the validity of the impugned order as he has not been directly aggrieved by the said order.
(4) It was further argued that the petitioner is not entitled to any relief because of laches and delay in making the appli cation.
(5) He further submitted that the petitioner is not entitled to the issue of discretionary writ of mandamus inasmuch as he has been guilty of gross misrepresentation and mis‑statements and of suppression of material facts.
(6) Lastly, it was contended that the petitioner could not also ask for a writ of quo warranto. He has argued that neither the petitioner was entitled to ask for such a writ nor an appoint ment in an office like that of the Chief Engineer could be challenged by way of writ of quo warranto.
Mr. Asrarul Hussain has urged that the principle enunciated in clause 21 of the General Clauses Act cannot apply to the aforesaid Order or the Ordinance. For this proposition he has relied on a decision of a Division Bench of the Patna High Court in the case of D. N. Ganguly and others v. State of Bihar and others (A I R 1956 Pat. 449). Furthermore, he has also relied on a decision of the Supreme Court of India in the case of State of Bihar v. D. N. Ganguly (A I R 1958 S C 1018).
The learned Advocate‑General has pointed out that both the aforesaid decisions relate to the construction of the Industrial Disputes Act, 1947, having regard to its special and specific provisions. He has contended that the aforesaid cases have no manner of application to the construction of the Order or Ordinance under our consideration in this case.
With regard to the decision cited by Mr. Asrarul Hussain, the Division Bench of the Patna High Court has, on a construction of the entire statute, held that section 10 (2) and the proviso to section 10 (1) of the Industrial Disputes Act, 1947, are not merely enabling provisions ; they do not merely give a power to the State Government to make a reference in its discretion. On the contrary, these statutory provisions impose a duty upon the State Government to make a reference of the industrial dispute to the Tribunal if the prescribed conditions are satisfied. There is no express provision either under section 10 or any other section of the Act empowering the State Government to withdraw a reference after it has, been made to the Industrial Tribunal. As a matter of construction, the State Government has no implied power to cancel or withdraw a reference which has already been made to the Industrial Tribunal under the provisions of section 10. The Division Bench has further held that section 21 of the General Clauses Act is only a rule of construction and the question as to the existence of an implied power of cancellation must be determined with reference to the context and the subject‑matters of the statute. It has been further held that it is a well‑known rule of interpretation that effect must be given to all parts of the statute and an interpre tation should not be adopted which would nullify any portion of the statute or render it ineffective.
The decision of the Supreme Court of India cited by Mr. Asrarul Hussain is also on similar lines.
Upon a consideration of the entire provisions of the Industrial Disputes Act and its scheme, the Patna High Court as well as the Supreme Court of India held that a power to rescind or revoke a reference made under section 10 (1) of the Act cannot be implied under the said Act, and that such Impli cation is negatived by the scheme and specific provisions of the Act. Both these Courts have held that to hold that such a power of revocation or rescission exists would render nugatory several other provisions of the said Act and would be against the scheme and intendment of the said Act.
It was also held that, on a consideration of the scheme and purpose of an enactment, it should be decided as to whether the principles of clause 21 of the General Clauses Act would be attracted to it.
The aforesaid decisions cannot help the petitioner in this case. On a proper consideration of the aforesaid Order ands Ordinance, we hold that, by necessary implication the principles enunciated in clause 21 of the General Clauses Act are attracted to them. There is nothing in the said Order and the Ordinance to negative such an implication. On the contrary, their scheme and provisions, by necessary implication, attract the principles of clause 21 of the said General Clauses Act. It would seem strange that the Governor would not be able to correct or rescind an order of dismissal even if it was made by mistake. As has been set out above, it will be seen that the recommendation of the Screening Committee was not accepted by the Advisory Committee, which is a high‑level body consisting of the Martial Law Administrator, the Chief Secretary and Member, Board of Revenue. The Advisory Committee was something in the nature of a superior and revisional authority and it was of opinion that respondent No. 2 should not be compulsorily retired. It was of further opinion that the said respondent No. 2 was an efficient officer, whom Government should profitably retain in the Department. It also recorded a finding that the respondent No. 2 was a victim of a departmental intrigue and gave a clean bill to him. In this background the impugned Order should be viewed. It is patent that there was some mistake somewhere. We hold that the Governor had the power to rescind an order which he had been empowered to make under the aforesaid Order as well as the Ordinance. In these circumstances, the order passed by the Governor on the 29th of June 1959, revoking an earlier order passed by him on the 28th of that month is a perfectly legal order.
Mr. Asrarul Hussain attempted to show that the impugned order passed by the Governor on the 29th of June 1959, could not be a valid order inasmuch as it was made after the expiry of the life of the Ordinance on the last day of June 1959. He has for that purpose relied upon the date of the notification of the said order passed by the Governor, i.e., the 13th of July 1959. The basis of the argument is that the powers of the Governor are based on law and inasmuch as the law had expired he could not make the order. The short answer to…
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