P L D 1965 (W (PLP)

(2) No such person as aforesaid who having been appointed by the Secretary of State or the Secretary of State‑in‑Council continues after the establishment of the Federation to serve under the Crown in Pakistan shall be dismissed from the service of His Majesty by any authority subordinate to the Governor General or the Governor according as that person is serving in connection with the affairs of the Federation or a Province, and no other such person as aforesaid shall be dismissed from the service of His Majesty by any authority subordinate to that by which he was appointed. Mr. Iqbal, the learned Advocate for the respondent, in reply to the contention of Mr. Sadiq made two‑fold submissions. He, contended, in the first place, that the order of 18th December 1952, dismissing the appellant from service was passed under the direction of Director‑General of Health and, therefore, was a valid order. In the second place, it was contended that under section 42 of the Specific Relief Act the Court has a discretion to grant the declaration sought for. In the circumstances of the present case the learned Advocate submits that the discretion should be refused to the appellant. I propose to consider these, two submissions separately.

3. In my opinion the constitutional guarantee that no civil servant can be dismissed from service by a person below an i authority than the appointing authority is absolute. Keeping in view the constitutional guarantee as provided under subsection (2) of section 240 of the Act it is clear that the mere fact that some order was passed by a subordinate under the direction of the 4 appointing authority would not validate the order dismissing the appellant from service. If the impugned order was passed by the appointing authority and it was only communicated by some Officer, subordinate to the appointing authority the situation) perhaps would have been different. In this case the relevant impugned order of the Officer‑in‑Charge dated the 18th December 1952, reads as under:‑-- "With reference to his explanation dated the 16‑12‑52 Mr. Muhammad Alam, Lab.‑Assistant is informed that the explanation given by him is unsatisfactory and unconvincing and cannot be accepted. He has intentionally and deliberately disobeyed repeated Government orders to move to Dacca and has thus been guilty of grave misconduct. He is, therefore, dismissed from service with immediate effect and also debarred from future employment under Government." This order is signed by N. A. Kuraishy as Officer‑in‑Charge, Anti Mosquito Organisation, Karachi. There is nothing in the above order to indicate that Mr. Kuraishy had passed the order dismissing the appellant from service under the orders of the Director‑General of Health. In this connection it was also submitted by Mr. Iqbal, the learned Advocate for the respondent, that the final order discharging the appellant from service was passed by the Director‑General of Health on 3rd March 1953. He submits that this order at any rate was passed by the appointing authority and therefore is not in violation of section 240 of the Act. The order dated the 3rd March 1953, was passed on appeal. The relevant portion of the order reads as under:‑-- "After careful consideration on the appeals of the four members of the staff of the Malaria Institute of Pakistan, noted in the margin who have been dismissed and debarred from future Government service for their refusal to go to Dacca, The Director‑General, Health is pleased to decide now that the punishment awarded to them may be modified as `Discharge' from Government service instead of dismissal with effect from 18th December 1952." I do not think that an order that has been passed in appeal b an authority competent to dismiss can save the order dated the 18th December 1952. Under section 240 (2) of the Act it is the appointing authority which has to apply its mind and to reach a conclusion whether the person appointed by him should be dismissed or not and not a person subordinate to that authority. In this connection reference may be made to two cases High Commissioner for India and others v. I. M. Lall (PLD1948PC150) and North‑West Frontier Province v. Suraj Narain Anand (PLD 1949PC1). Mr. Sadiq relied on these decisions in support of his contention that the constitutional guarantee under section 240(2) of the Act cannot begot over by these means. He submits that the order of dismissal must be by the appointing authority. The order passed by the appointing authority in appeal could not be sufficient compliance of section 240(2). He relied on a single bench decision in the case of Azamuddin v. The Federation of Pakistan (P L D 1955 Sind 357). It was contended in that case that the action taken by the Assistant I. G. "subject to confirmation" by the I. G. Police who was the appointing authority, and therefore the action of the Assistant I. G. was sufficient compliance of section 240(2) of the Act. It was held in that case that the action taken by the Assistant I. G. was a fraud on the provision of section 240 (2). Another case is a Division Bench decision of this Court: Afzal Baig v. Government of West Pakistan (P L D 1957 Lah.467). The relevant portion of that decision reads as under:‑-- "It was strenuously contended by the learned Assistant Advocate‑General that by his note the Additional Chief Engineer clearly expressed approval of the action taken by the Superintending Engineer and, therefore, it must be held, by implication, that it was the Additional Chief Engineer himself who removed the petitioner. In the first place, approval, although it may have been actually intended, was not expressed as would appear from the expression "as considered suitable by him (the Superintending Engineer) under the appointment conditions". Secondly, the constitutional requirement laid down in subsection (1) of Article 181 for the benefit of public servants must be complied with in letter as well as spirit. Fundamental requirements of the Constitution cannot be got over either by straining logic or by resorting to possible implications and inferences. Unless the authority competent to dismiss of remove applies its own mind to the case and makes an order which is its own, the mere approval of an action taken by an unauthorised person cannot be treated as valid dismissal or removal within the meaning of Article 181 (1)."

4. It would appear from a perusal of the judgments of the Courts below that it had been conceded that the appointing authority was the Director‑General of Health. In this connection Mr. Sadiq also relied upon a document at page 121 of the record of the Sub‑Judge First Class in support of his contention that it was the Director‑General of Health who was the appointing authority of the petitioner. The order is dated the 24th March 1949, which was passed by the Assistant Secretary to the Government of Pakistan, Ministry of Food, Agriculture and Health on an appeal by the present appellant before me. The relevant portion of the order relied upon reads as under:‑-- "Technically, the order of dismissal passed by the Assistant Director, Malaria Institute of Pakistan, was invalid as under the Civil Services (Classification, Control and Appeal) Rules, the penalty of dismissal cannot be imposed by any authority lower than the appointing authority. The penalty of dismissal from service awarded by the Director, General Medical Services in consultation with the Director, Malaria Institute of Pakistan has, therefore, to be regarded as the original penalty and should have been communicated to Mr. Muhammad Alam, Laboratory Assistant." The learned Advocate submits that it was conceded by the Assistant Secretary of the Department that the Director of the Malaria Institute was not the appointing authority. He submits that the position taken by the Department before the Courts below was, as would appear from their judgments, that the Director‑General was the appointing authority. I would hold that the Director‑General of Health was the appointing authority of the petitioner, and therefore, competent authority to take action under section 240 (2) of the Act.

5. Mr. Iqbal, the learned Advocate for the respondent, relied on a Division Bench decision of the Calcutta High Court, Ramesh Chandra v. State of West Bengal (A I R 1953 Cal. 188) in support of his contention that section 42 of the Specific Relief Act gives discretion to the Court not to grant declaratory relief in certain circumstances. In the Calcutta case, though there was violation of section 240 (2) of the Act the Court held that in the peculiar circumstances of that case the declaration should not be granted. In that case the Government rervant had already retired from service when the order of discharge was passed. Moreover he was aged about 70 years. That the relief of declaration is a discretionary one finds support from the observation made by my Lord Cornelius, J., as he then was, in Noorul Hasan v. Federation of Pakistan (P L D 1956 S C (Pak.) 331). His Lordship was considering the decision of the Judicial Committee in Venkatta Row's case. He observed :‑-- "The grant of a declaration is a matter within the discretion of a Court and presumably the Judicial Committee acted in awareness of the facts and circumstances which inclined them in favour of refusing the declaration." It is not a matter of absolute right to obtain a declaratory decree. It is discretionary with the Court to grant it or not, and in every case the Court must exercise a sound judgment as to whether it is reasonable or not in the circumstances of the case to grant the relief prayed for. In the present case the plaintiff‑appellant was charge‑sheeted for refusing to take over his office at Dacca. The position at the time when the plaintiff was charge‑sheeted was that the Malaria Institute together with all posts had moved to Dacca. The question of the plaintiff working in Karachi, therefore, did not arise. The plaintiff‑appellant maintained that he was not liable to transfer to Dacca as he had opted for West Pakistan. The finding of the learned Civil Judge on this issue was against the appellant. The learned Civil Judge held that the appellant had opted for Pakistan and, therefore, he was liable for transfer to Dacca also. This finding has not been challenged before me. The appellant in cross‑examination stated as under: "I had always taken the stand that I was not prepared to go to Dacca as I had opted for West Pakistan." As the appellant was not willing to go to East Pakistan and the Department to which he belonged had been shifted to Dacca, he could not, on the face of it, be retained in service. To give a decree for a declaration that the plaintiff‑appellant continues in service in the face of his refusal to take his posting in East Pakistan would be very unfair to the employer. There is nothing on the record to show that the appellant was willing to go to Dacca without any condition. The appellant being a Central Government servant could be transferred to any part of Pakistan subject to any terms or agreement between him and the Government. It would appear from the finding of the learned Sub‑Judge that the appellant failed to prove any such term or agreement. I would, in these circumstances, decline to exercise my discretion in favour of the appellant to grant a declaratory relief. The appeal is dismissed. I would, in the circumstances of the case, make no order as to costs. K.B.A. Appeal dismissed.