P L D 1967 Dacca 820 (PLP)

M. R. KHAN, J.‑The plaintiff who has preferred this second appeal was a stenographer in the Malaria Institute of Pakistan at Dacca. On the 28th November 1955, the Director General of Health, Pakistan passed the following order terminating his services:‑ "The services of Mr. Muhammad Siraj, Stenographer in the Malaria Institute of Pakistan are hereby terminated with immediate effect. His pay for one month in lieu of notice will be paid to him." This Order Exh. 4(d) was passed at Karachi. On the said date this order was communicated to the plaintiff by the Assistant Director‑in‑charge of Malaria Institute at Dacca, vide Exh. B(3). The plaintiff brought the suit for a declaration that the order terminating his services is void, ultra vires and inoperative. He also prayed for arrear salary amounting to Rs. 2,925‑1‑

0. The facts relevant for the purpose of this appeal which are either admitted or undisputed are as follows: The plaintiff was appointed Stenographer in the ordinary grade on a temporary basis in the Malaria Institute of India on 12‑8‑

46. He opted for services in Pakistan and joined the same post in the Malaria Institute of Pakistan at Karachi on 15‑8‑

47. Subsequently, he was appointed `A' grade clerk in the Institute on 1‑11‑

47. Later on, he was appointed Assistant to Director of the Malaria Institute on 6‑11‑

47. He was next appointed Stenographer (selection grade) in the same Malaria Institute on I‑11‑

49. On 30‑9‑50, the plaintiff was suspended from service and departmental proceedings were started against him which ended in his dismissal from service on 6‑11‑

50. The plaintiff then instituted a suit in the Sind Chief Court at Karachi challenging the validity of the order of his dismissal. As the result of the suit, the plaintiff was re‑instated on 11‑8‑

53. After his re‑instatement, he was transferred to the Malaria Institute at Dacca on 14‑10‑

53. Soon thereafter, that is, on 9‑11‑53, he was against proceeded against departmentally on certain charges. The departmental proceedings were, however, withdrawn on 25‑10‑55 but on 28‑11‑55 his services as Stenographer were terminated by the order of the Director General of Health by the order quoted hereinbefore. The plaintiff claimed that he was holding these various appointments substantively. In particular, he claimed that he was a permanent stenographer in the Selection Grade when the order terminating his services was passed. He claimed that as he was holding the said post in a substantive capacity, his services were not terminable by notice and that the termination of his services in the above manner without giving him an opportunity of being heard amounted to a penalty and was, therefore, violative of the provision of subsection (3) of section 240 of the' Government of India Act, 1935. The Federation of Pakistan, defendant No. 1 in the suit, entered appearance and' filed a written statement denying the plaintiffs fight to get any relief. It was contended by that defendant that the plaintiff held the various appointments including the post of stenographer on a temporary basis and that at the time of termination of his services, he was a stenographer in the ordinary grade. The further contention of the defence is that as the plaintiff was a temporary stenographer, his services were liable to termination by notice of payment of salary in lieu of notice. The trial Court held that the plaintiff was a quasi‑permanent stenographer in the selection grade at the material time, that his services were not terminable by notice and that order terminating his services offended against the provisions of section 240(3) of the Government of India Act and in this view of the matter, that Court decreed the suit declaring the impugned order to be invalid and illegal. The trial Court also passed a decree in respect of the arrear salary claimed by the plaintiff. On appeal by the defendant, the Additional District Judge, 1st Court, Dacca, reversed the judgment and decree of the trial Court on the finding that the plaintiff was a temporary stenographer and that his appointment being a temporary one was liable to termination by notice or offer of salary in lieu of notice as was done in this case. As regards the claim for arrear salary, the learned Additional District Judge held that the suit for arrear salary was not maintainable. The present appeal has been preferred by the plaintiff against the decision of the lower appellate Court. The validity or otherwise of the impugned order by which the services of the plaintiff were terminated depends upon the nature of his appointment. Except the service book Exh. A, there is hardly anything on the record to show the nature of the appointments held by the plaintiff from time to time. The entries in the service book show that he held various appointments except the post of Assistant to the Director temporary. He held the post of Assistant to Director in a substantive temporary capacity. The service book further shows that the last post held by him was stenographer in the ordinary grade. This appointment was also temporary. The lower appellate Court found the entries in the service book to be authentic, although the trial Court was of the view that those entries could not be fully relied on. The entries in the service book were made in the regular course, and we find no reason why these should not be taken to be authentic as has been held by the lower appellate Court. The plaintiff, however,, relied on certain documents to show that he was treated to be a permanent Government servant by his Department. According to Circular No. 42/32/48 Ests. (M. E.), dated the 19th January 1949, and the circular of even number dated the 3rd June 1949, (the circulars are on the record but were not marked exhibits in this case), 60 percent of all the temporary posts were to be placed on a permanent footing and persons holding temporary posts could be confirmed against the posts so made permanent. The plaintiff's contention is that the post of stenographer held by him was the only post in the Malaria Institute and as such the said post became permanent and with it he also became confirmed in that post. The learned Deputy Attorney‑General appearing on behalf of the defendant‑respondent submits that while the post of stenographer in the Malaria Institute was made permanent consequent upon the said circular, the plaintiff was not appointed to that post substantively and he continued to hold that post on temporary basis. It appears from paragraph 5 of the said circular that incumbents to temporary posts were not to be automatically confirmed in their posts and that the persons declared fit for permanent retention could alone be confirmed. There is nothing to show if the plaintiff was considered fit for confirmation in the post of stenographer and was also confirmed in that post.. Exhs. 2 and 3 were relied on by the plaintiff to show that he was asked to give his choice as to whether he would like to be governed by the old pension rules or the new pension rules introduced later on. It is true that the plaintiff was asked to make such a choice, but it does not necessarily follow therefrom that he was a permanent Government servant. The retirement benefits, it appears, were also admissible to temporary Government servants, in the shape of gratuity. Exhs. 2 and 3 do not, therefore, necessarily show that the plaintiff was a permanent Government servant. Lastly, the plaintiff relied on Exh. 4(b) which is an extract from Memo. No. 24‑61/53 M(2), dated 5‑1‑54 of the Director‑General of Health. In this Memo., it was stated that the plaintiff was not supernumerary. The mere fact that the plaintiff was not supernumerary does not mean that he was a permanent Government servant. As against these documents, there are entries in the plaintiff's service book which clearly show that his appointment to the post of stenographer was a temporary one. The lower appellate Court, therefore, rightly held that the plaintiff was a temporary stenographer in the Malaria Institute. The post of stenographer has been in existence throughout from the time of Independence. That post was made permanent in accordance with the 60 per cent. formula contained in Circular No. 42/32/48 Exhs. referred to hereinbefore. The plaintiff held the post of stenographer on 15‑8‑47 and was again appointed stenographer in the selection grade on 1‑1‑49 after he bad held some other appointments temporarily. He was again appointed stenographer in the ordinary grade on 18‑3‑55 as it appears from the service book. His appointment as stenographer was not for any fixed period, nor is there anything to show if his appointment as stenographer was terminable by notice or offer of salary in lieu of notice. In the state of things, it appears that the plaintiff's appointment as stenographer, though temporary was of indefinite duration. As temporary appointment of indefinite duration does not stand on the same footing as a temporary appointment which is liable to termination by notice in accordance with the conditions of employment, an employee holding an appointment indefinite in duration, though described as temporary was entitled to the same protection under section 240(3) of the Government of India Act, 1935, as was available to permanent Government servants. In other words, in order to remove or dismiss a Government servant holding an appointment of indefinite duration or to reduce him in rank it was necessary under section 240(3) of the Government of India Act, 1935 to give him an opportunity of showing cause against the action proposed to be taken in regard to him after complying with the elaborate procedure of departmental proceedings. In a similar case namely the case of Abdul Majid Sheikh v. Mushafee Ahmed and another (P L D 1956 S C (Pak.) 208), it was held by their Lordships of the Supreme Court as follows:‑ "We are in no doubt that the law requires, for the removal of the appellant from his office, a procedure altogether more elaborate and thorough than the mere issue of a notice of discharge. This Court has held, in the case of Ghulam Sarwar (cited above) that the termination of a railway employee's employment, by notice purporting to issue under a term in his contract of employment, where the facts showed that he had incurred the displeasure of his superior officers, but without a show‑cause notice, was a violation of the guarantee of employment conveyed by section 240(3) of the Act of 1935. The employment in that case was permanent, but in this respect, an employee holding an appointment indefinite in duration, although not in a substantive capacity, but expressly described as temporary is in no worse case, as was held in the case of Noor‑ul‑Hassan P L D 1956 S C 331." It has been seen in this case that the plaintiff was twice proceeded against departmentally but the charges failed or were withdrawn ultimately and he was re‑instated every time. The last charges drawn against him were dropped on 25‑10‑55 and within a little over one month, that is, on 28‑11‑55 his services as stenographer were terminated by notice. The impugned order was passed at Karachi on 28‑11‑55, but on that very date the Assistant Director incharge of the Malaria Institute communicated that order to the plaintiff by his office Order No. 181 issued from Dacca. It is difficult to understand how the impugned order which was passed at Karachi could be communicated to the plaintiff the same day at Dacca by an order issued from Dacca. The plaintiff specifically alleged in the plaint that the impugned order is vindictive and that it was passed on account of the grudge borne against him by the Director‑General and the Assistant Director. Whether the impugned order was an outcome of grudge or not, the facts revealed in this case and as pointed out by the trial Court show that he had incurred the displeasure of his superior officers. However, when the plaintiff's appointment as stenographer though temporary, was of indefinite duration, his services could not be terminated except in compliance with the provisions of section 240(3) of the Government of India Act, which, however, was not done in this case. Apart from this, there is nothing on record to show if the termination of the plaintiff's services by notice or by offer of salary in lieu of notice was one of the conditions of his employment. At the request of the learned Deputy Attorney‑General, this case was adjourned at some stage for enabling him to produce papers to show the conditions of employment of the plaintiff, but no paper showing the conditions of his employment could be produced by him. On behalf of the defendant, a copy of the Memo. No. 13/26/50 Exh. (SEL) dated 24‑1‑51 was filed in this case but it was not formally exhibited. However, this was taken into consideration by the Courts below. Paragraph 2 of that circular runs thus: "In a case where the services of a person employed on condition that the temporary employment can be terminated on prescribed notice on either side without any reason being assigned are proposed to be terminated, for any reason other than as a disciplinary measure, it will be in order if he is given notice for the prescribed period or pay in lieu of notice for that period, and this services dispensed with." Thus even according to this circular, a temporary appointment of a person can be terminated by notice or offer of salary in lieu of notice only if such termination is one of the conditions of his employment. In the present case, as already stated, there is nothing on record to show if termination of the plaintiff's services by notice or offer of salary in lieu of notice was one of the conditions of his employment. Hence the services of the plaintiff as temporary stenographer could not be terminated by a notice or offer of salary. Consequently, the impugned order is bad in law in any view of the matter. As regards arrear salary claimed by the plaintiff, the lower appellate Court rightly,, dismissed that claim on the ground that a suit for arrear salary is not maintainable. Since it to refer to the decision in the case of State of Pakistan v. Mehrajuddin (P L D 1959 S C (Pak.) 147), which still holds the field. In the result, we allow the appeal in part with costs throughout, set aside the judgment and decree of the lower appellate Court in so far as there dismiss the plaintiff's suit for a declaration that the order dated 28‑11‑55 terminating his services is void, ultra vires and inoperative and affirm the judgment and decree of the Court in so far as these relate to the claim for arrear salary. We declare that the termination of the plaintiff appellant's services by the order, dated 28‑I1‑55 is illegal, void and inoperative. In calculating costs, the Court‑fees paid on the amount of arrear salary claimed shall be excluded. MAKSUM‑UL‑HAKIM, J.‑I agree. S.Q' Appeal partly allowed.