P L D 1963 Supreme Court 233 (PLP)

CORNELIUS, C. J.--‑The question raised in this appeal is whether a right of franchise allowed to the citizens of Pakistan by the Basic Democracies Order, 1959, has been rightly denied to the appellant, Mahmudul Haq. He was removed from the elected status of member of the Dharampur Union Council, in the District of Chittagong, of which Council he had been elected Chairman, by order of the Chairman of the District Council, made on the 3rd April 1961, which was later confirmed by a resolution of the District Council, after obtaining an explanation from him. The ground of removal was that he was a whole time salaried official in the service of Government, when he was elected. The relevant facts and dates are as follows. The appellant was an official of the Post and Telegraphs Department, and was dismissed from his post in 1951. He filed a suit against the Government challenging the validity of the order of dismissal, and obtained a decree in 1958 declaring that the order was void and that he was still holding the office from which he had been removed. The Government appealed against the decree, but the appeal was dismissed on the 16th March 1959. No further appeal or revision was attempted, nor did the Government take any steps to comply with the decree. In the meantime, the appellant had become a Union Councilor, and on the 15th February 1960, he was elected Chairman. It was thereafter that in July 1960, he received a letter from the Post Master of Chittagong asking him to appear. He appeared on the 14th July 1960, on which day, (1) he was allowed to rejoin in his old office; and (2) he was at once suspended and placed on a subsistence grant of Rs.60 per month and charges were prepared and an enquiry in proper form was commenced, which ended on the 25th July 1961, when he was again dismissed. He had submitted a resignation on the 9th November 1960, which was not accepted. In the meantime a fellow councilor of his who had been a rival candidate for the chairmanship challenged the right of Mahmudul Haque to be a councilor on the ground that at the time of his election he was a whole‑time salaried officer in the service of the Government. The matter came before the Chairman of the District Council of Chittagong, and he was directed to vacate his office on the ground that his election was void ab initio. Thereupon, the appellant moved the High Court on the writ side, seeking mandamus to cancel, withdraw or rescind the resolution whereby he had been held to be disqualified. A rule was issued by the High Court and the case being heard on contest before a Division Bench, the rule was discharged. It was held by the High Court that after he had obtained his decree, the appellant "was in the eye of law continuing in service," that the mere fact that the decree could not be enforced either for securing re‑instatement or for recovery of salary made no difference, because it was sufficient that as a result of the decree he became entitled to receive a salary, and thirdly, that pursuant to that decree he had actually been re‑instated. Special leave was given to Mahmudui Haque to appeal against this decision, and we have heard an argument by Mr. Farid Ahmad in support of the appeal. The question argued before us is whether as a result of the decree or of his very temporary re‑instatement, the appellant assumed the status of a "whole‑time salaried official" which status debars him from being the holder of an elected office under the Basic Democracies Order. On the one hand, it is evident that the decree declaring him to be still in service, and that the order dismissing him was of no effect, did not by itself operate to invest him with an office, or entitle him to a salary, or impose upon him any obligation to give his whole time to the service of the Government. In fact, it is more than likely that he was giving his whole time, after his dismissal, and equally after, as before, the decree was awarded, to some private occupation for the purpose of earning a livelihood. He held no office and could, therefore, hardly be termed as an official in any real sense. He neither received, nor by virtue of the decree itself, became entitled to receive, any salary. The fact of re‑instatement undoubtedly takes the matter somewhat further, because from that time onwards, he began to receive a suspension allowance to which he could only be entitled in the capacity of an official, although under suspension. As no work was required of him, it can hardly be said that he was a whole‑time official, and as for the suspension allowance it is a mere fraction of the salary attached to such post as, according to his grade and seniority, the appellant was entitled to occupy. It is arguable that such an expression as "whole‑time salaried official" should not be under stood by giving a wholly attenuated meaning to each of the three aspects of a whole‑time salaried official, namely, of whole time duty, of being salaried, and of being an official, for the purpose of deprivation of so fundamental a right as that of electoral franchise. At the same time it is not without importance to maintain the authority of the Government over its officials, even when they are under suspension and only in receipt of a pittance by way of subsistence allowance, and although they are not required to give any of their time in the service of the Government. The question has not been examined in these precise aspects in the High Court, but as we find it possible to decide this case on another ground, which appears to us to be of a more fundamental nature in the circumstances of the case, we propose to say nothing further on this question. It is not a question of general importance, or one that is likely to arise very frequently. It is a rare occurrence for an official under suspension to seek electoral office, and if at any time it should show signs of becoming popular, the danger could easily be avoided by making a slight addition to the relevant instrument, so as to include a suspended official within the disqualification. The ground which we see as constituting a bar to the grant of the writ, which is claimed is that if it be allowed, the effect might be to oblige the relevant authorities to confer electoral status upon a person who is disqualified by reason of having been dismissed from Government service. It was clearly stated by the Controlling Authority in this case that Mahmudul Haque was dismissed for the second time on the 25th July 1961. It is a feature of this case that neither party has chosen to state on what grounds Mahmudul Haque's dismissal for the second time was based. (We note that the statement in the judgment of the High Court, viz., that the learned Judges could "not come to any other conclusion than that the gentleman is in Government service even now," is based on a misconception.) Mandamus is a writ of discretion, as a general rule, and is not granted as of right or issued as a matter of course. It does not necessarily issue in consequence of a decision upon the points of controversy raised in the case, but regard must be had to all the special circumstances of the case before such a direction may issue to a public authority to enjoin upon it the doing of an act which lies within its functions. We consider that in the present case, the issue of a mandamus to restore Mahmudul Haque to his electoral office may amount to an injunction to the authorities concerned, to act in violation of the law. Under section 25 (2) (a) of the Basic Democracies Order, 1959, read with the Second Schedule, of which Part 11, section 2 (f) is relevant, and with section 5 (1) (a) of the Elective Bodies (Disqualification) Order, 1959, a person who is removed from the service of the Government on a charge other o than inefficiency is disqualified. We note here that the expiry of the Elective Bodies (Disqualification) Order 1959, does not affect the incorporation of this particular direction in the Basic Democracies Order. The appellant has, nowhere, made any I clear statement of the grounds upon which he was dismissed for the second time, but in paragraphs 5 and 6 of his writ petition he made it clear that the charges against him, upon which he was first dismissed, were in connection with his endeavourer "to uphold the legitimate interest of the employees:" in other words, for Union activities or it may even be activities of a subversive character. In paragraph 14 of the same petition he stated that the charge‑sheet given to him in July 1960, was on the same allegations. The respondents to the petition made no effort to clarify this aspect of the matter further. On what is stated in the petition itself, it is a lively possibility that the charges against Mahmudul Haque were in the nature of insubordination or inciting fellow employees to insubordination, or activities of a generally subversive character. In any case, it seems to us that when a petitioner in a case like the present, seeking restoration of electoral office, has, at any time during the pendency of his petition for a mandamus undergone dismissal from Government service, it is his duty since the matter is specifically within his knowledge, to affirm that his dismissal was for a charge other than inefficiency, and in the absence of any clear evidence on the record adduced by either party, it must be held that the burden being upon the petitioner, who seeks restoration to office, the petition must fail on that ground. The absence of proof that the disqualification has been incurred on the fresh ground of dismissal in the present case, is in our view, a circumstance of a specially strong character, which must stand in the way of the grant of mandamus. Accordingly, but for different reasons, we support the order of the High Court and hereby dismiss the appeal. Since it is being dismissed on a ground, which was not raised or argued, we leave the parties to bear their own costs. A. H. Appeal dismissed.