P L D 1960 Dacca 717 (PLP)

"I do not remember if any one working as U. D. Assistant in Calcutta was appointed as L. D. Assistant in East Bengal after Partition besides the plaintiff." In cross‑examination, he stated as follows: "In East Bengal there is no institution identical with the Lake Hospital Store." P. W. 8 Mr. Ayenuddin Ahmed, Assistant Surgeon‑General, deposed as follows: "After I took over charge as Assistant Surgeon‑General, plaintiff Fazlur Rahman represented before me his grievances regarding his appointment as Lower Division Assistant. Plaintiff was an Upper Division Assistant in the Lake Hospital, Calcutta, before Partition of the country for a short time. I cannot say why he was appointed here as Lower Division Assistant. I heard of a circular from undivided Government of India to the effect that every optee's rank and privileges should be respected by the Dominion for which he might opt. I have not seen the circular. I do not remember if I sent any reply to plaintiff. He made representation to Government and Government intimated theirs decision to him. If any injustice has been done to the plaintiff, the proper person who can redress the grievances is the Secretary, Health and L. S. G. Department, Government of East Bengal." The evidence of P. W. 6 (the plaintiff) is as follows: "Besides me there were other U. D. Assistants serving in the Lake Hospital Store. They opted for East Bengal and have been absorbed by the East Bengal Government Late Md. Gani, Mahfuz Ali Chowdhury, Bahar Ali, Enayet Hossain and others were Assistants in the Lake Hospital Store. The former were U. D. Assistants. At the time of partition of India, I gave an option to serve in East Bengal. Accordingly, Capt. Srimani gave an order to me to proceed to Narayanganj and report myself there. Dr. Wajih also asked me to go to Narayanganj to join there. Government issued circular that optees of either Dominion will not lose any interest and their position and status will not be prejudiced in (any) way as a result of their option to serve either Dominion. I joined at Narayanganj and drew T. A: and Pay as U. D. Assistant for 1st 14 days of August 1947. I came hereon 20th August 1947 and began to work at Narayanganj as U. D. Assistant where set up was prepared by Dr. Wajih. My name was shown as store‑keeper in the Equipment Section on a pay of Rs.

80. I objected to it. Dr. Wajih told me that if I did not agree to accept the post of store‑keeper, he would appoint me as a L. D. Assistant. I said that he could do what he liked. My name was then shown in the set‑up as L. D. Assistant and the set‑up was sent to the Surgeon‑General for approval. I filed petitions of objection. These are the copies of the two petitions that I filed before Surgeon‑General. Both the originals and the copies bear my signature. These are the copies Exhs. 5 and 5 (a) (Original called for). My wife submitted a representation to Hon'ble Minister‑in‑charge. The original was signed by my wife. This copy was signed by me for her. Exh. 5 (b) (Original called for). A reply was sent to my wife. It is not true that I did not get any posting order. I was compelled to work on a pay of Rs.

60. At the Lake Hospital my post was a substantive temporary one." , P. W. 3 Md. Chand Miah, who was also an Upper Division Assistant in the Lake Hospital Stores stated in his deposition as follows: "I know plaintiff from before. He was U. D. Assistant at the Lake Hospital Stores, Ballyganj. when I was Office Super intendent there. His pay was Rs. 110 p.m. plus other usual allowances. I came over to East Bengal about 8 months after Partition. I had been detained there to take East Bengal's share of the Stores. Plaintiff got the proceeding order from S. C. Srimani Officer‑in‑charge, Lake Hospital Stores, Ballyganj, to proceed, to East Bengal. This is the proceeding order. Exh.

1. My present pay is Rs. 175 p.m. In East Bengal I joined as U. D. Assistant. I know Mahfuzali Chowdhury. He was serving in the Lake Hospital Stores as U. D. Assistant when I was Office Superin tendent there. Most probably plaintiff was senior to Mahfuz Ali Chowdhury in service. Mahfuz Ali Chowdhury is now serving in the Medical Directorate, Eden Buildings, Dacca, as U. D. Assistant."

9. This being the state of evidence and also of law as con tained in section 7 (1) of the Pakistan (Provisional Constitution) Order, 1947, we asked the learned Senior Government Pleader as to how the Government could resist the claim of the plaintiff who admittedly, as it appears apart from the evidence, was in 'the service of the Government of undivided Bengal immediately before Independence‑we say admittedly because in the written statement it has been expressly stated that the plaintiff was appointed as temporary Upper Division Assistant in the Lake Hospital, Calcutta. We also pointed out to him that it was also admitted by the Government that the plaintiff opted for Pakistan, to serve in East Bengal and Exh. 1, dated the 13th/14th of August 1947, signed by Mr. S. C. Srimani, Officer‑in‑charge (S), Lake Hospital, was served on the plaintiff and other employees directing them to proceed to Narayanganj and report for duty to the Deputy Surgeon‑General and he actually gave evidence to the effect that he joined Narayanganj on the 20th of August 1947, and drew his pay as an Upper Division Assistant for the first fourteen days of August 1947. The learned Senior Government Pleader had no answer to all these and had also to concede that by the provision of subsection (1) of section 7 of the Pakistan (Provisional Constitution) Order, 1947, the terms, conditions, status and privileges of all optees who were in the service of the Govern ment of undivided Bengal were guaranteed. The learned Senior Government Pleader, however, contended that in any view of the matter there were no materials on the record to show that the plaintiff had established his inflated claim for scale of salary or increased scale of pay on account of war service. So, we asked both the learned Advocates for the appellant and the respondents to calculate and give us the amount due to the plaintiff in the event of our holding that the plaintiff was an Upper Division Assistant in the Lake Hospital Calcutta, opted out to serve the Government of East Bengal and is entitled to the same terms, conditions, rights and privileges of an Upper Division Assistant as he enjoyed before Independence. Simply on this basis the learned Advocates have given us the figures in a piece of paper jointly signed by both the learned Advocates for the appellant and the respondents which has been kept in the records. This excludes the other inflated claim for scale of pay and claim for war service and this was so calculated as the learned Advocate for the appel lant stated that in view of lack of materials he would not press these claims.

10. We hold on the evidence, oral and documentary, that the plaintiff was in the service of the Government of undivided Bengal as an Upper Division Assistant, opted out for Pakistan immedi ately before Independence and, under the provision of the Pakistan (Provisional Constitution) Order, 1947, is entitled to the, same terms, conditions, scale of pay, rights and privileges as he enjoyed before Independence. On calculation, details of which are given in the separate piece of paper mentioned above, he is entitled to recover from the defendants Rs. 6,642‑6‑0 only. We may also state here that it is conceded by the learned Government Pleader that, in the event of our holding that the plaintiff was entitled to hold the post of Upper Division Assistant in East Bengal immediately after Independence, the plaintiff would be entitled to this amount.

11. In the result, the appeal is allowed with proportionate costs ; the judgment and decree of the Court below are set aside and the suit is decreed for Rs. 6,642‑6‑0 with proportionate costs, except that neither the plaintiff‑appellant nor the defendants respondents will get the Pleader's fee in the lower Court. The rest of the plaintiff's claim is disallowed. The amount of court fees due and payable by the plaintiff‑appellant on account of the claim in the plaint and on the memorandum of this appeal that is disallowed may be set off against the decretal amount including the court‑fees to be realised from the defendants‑respondents.

12. Let a copy of this judgment and that of the decree be forwarded to the Collector, Dacca. KHAN, J.‑I agree with my Lord the Chief Justice. K. B. A. Appeal partly accepted.