P L D 1965 Dacca 433 (PLP)

SATTAR, J.‑

The petitioner obtained this Rule upon the respondents, namely (1) The Secretary, Home (Police) Department Government of East Pakistan, (2) The Director‑General, East Pakistan Rifles, (3) The Inspector‑General of Police, and (4) Deputy Director‑General, East Pakistan Rifles, to show cause why an order passed by the Secretary Home Department, as contained in Memo. No. P2P‑8,/60 (1)‑211‑PL. dated the 26th April 1960, cancelling leis previous order contained in Memo. No. 3‑P‑I dated 5th January 1950 should not be declared to have been passed without lawful authority and as such of no legal effect. The petitioner's case in short ‑is that he was enrolled in the Army, and after Partition on his release from the Army, was appointed Inspector of Police (Wireless) in the Police Wireless Department. He was given an assurance that he would be made permanent when the said East Pakistan Police Wireless Organisation would be made permanent. Subsequently, however, the Wireless Organisation and the existing temporary posts including those of Wireless Inspectors were made permanent under Government Order No. 2025‑PL dated the 24th May 1951 and the Wireless Organisation was placed under the control and administration of the East Pakistan Rifles (hereinafter referred to as the E. P. R.). When the Wireless Organisation including the hosts of the Inspector of Police was made permanent in terms of the above Government Order, the petitioner submitted a representation to the Inspector‑General of Police through the Wing Commander, Signal Wing, and Commandant E. P. R. who forwarded the said representation with his recommendation to the Assistant Inspector‑General of Police, Dacca, for the confirmation of the petitioner in the post of Inspector of Police (Wireless). The petitioner continued to work in the said post of Inspector of Police but all on a sudden he was shown to have been confirmed by the Wing Commander, Signal Wing, E. P. R. in the rank of a Subedar‑Major which is subordinate to the post of Inspector of Police. After this order of confirmation was made known to the petitioner. The petitioner made representations stating that the aforesaid post of Inspector of Police was specially created to take the petitioner from his service in the Army, and the Inspector- General of Police way the appointing Authority and he could not be designated as a Subedar‑Major. As a result of the said representation, the Government of East Pakistan issued G. O. No. 1510 PL, dated the 12th June 1958 declaring the petitioner and one S. A. Qayum as Inspectors and accordingly the Wing Commander, Signal Wing, E. P. R. Dacca re‑designated the petitioner and the said Mr. S. A. Qayum as Inspectors of Police. In July 1958, E. P. R. was again reorganised but in such reorganised set‑up the petitioner's post of Inspector of Police was not shown. The petitioner, therefore, submitted a representation to his appointing Authority, the Inspector‑General of Police, through the E. P. R. for his confirmation in the rank of Inspector of Police. The representation, however, was not forwarded by the E. P. R. The petitioner was intimated from the Office of the Wing Commander, Signal Wing, E. P. R., Dacca, by Memo. No. PF/W0001/2872 dated the 30th July 1958 cancelling the previous order passed by the Wing Commander, that there was no post of Inspector of Police in the reorganised E. P. R. and the petitioner could only be retained as Subedar‑Major. The petitioner was further asked to indicate his willingness to serve in the said post of Subedar‑Major in a declaration form attached therewith by the 15th August 1958, failing which it would be considered that the petitioner was not willing to serve as Subedar‑Major and further action would accordingly be taken. Against this order dated the 30th July 1958 the petitioner made a representation to the respondent No. 2, the Director‑General, E. P. R., stating that the Appointing Authority was the Inspector‑General of Police, East Pakistan and his case should therefore be referred to the Inspector‑General of Police and to the Government of East Pakistan for clarification and final decision. Instead of getting any decision on his said representation the petitioner was served with an order of termination of service under the signature of the Deputy Director‑General, E. P. R. Against this order of termination of service, the petitioner made a representation on the 11th Inlay 1959 to the respondent fro. I praying for the cancellation of the aforesaid illegal order of termina tion of service dated the 16th April 1959. On considera tion of the said representation of the petitioner and perusing all the relevant papers and records and after taking reports from the respondents 2 and 3, namely, the Director -General, E. P. R. and the Inspector‑General of Police, the Secretary Home (Police) Department passed an order allowing the said representation dated the 11th May 1959. As a result of the said order the petitioner was re‑instated in service as Inspector (Wireless) with immediate effect, and the order of the petitioner's confirmation a, Subedar‑Major was cancelled and he was confirmed as Inspector (Wireless) from the due date. On receipt of the said Government Order, the petitioner reported for duty on the 11th January 1960 to the Sector Commander, E. P. R., Rajshahi under whom he last served and submitted to him a joining report as required under rules. The petitioner continued to attend office regularly, He was, however, servers all on a sudden, with a copy of the impugned memo which was passed by the Government of East Pakistan. The impugned order was passed without giving the petitioner any hearing. An affidavit‑in‑opposition on behalf of the respondents has been filed and this has been affirmed by Mr. Md. Ramjan Ali Mia, Section Officer, Home Department. The deponent in this affidavit has stated that the petitioner after retirement from Army Signal Corps was re‑employed as temporary Inspector in the former Police Wireless Organisation of East Pakistan on the 2nd May 1949. It has then been said that the petitioner accepted the rank of Subedar‑Major under the E. P. R. The deponent has then said that, on re‑organisation of the E. P. R., all previous order relating to the establishment of E. P. R. were superseded by Government Order No. 219‑Pls dated the 8th July 1958 and in this organisation no Post of Inspector was, retained. It is admitted in this affidavit that the Government of East Pakistan passed the order dated the 5th January 1960 re‑instating the petitioner in service. It is however stated that later on the Government after giving further consideration and after thoroughly investigating into the case cancelled the said Government order. It is submitted that the later order was passed in the interest of justice after full consideration of the entire matter right from beginning to end and as such it is a legal order. Mr. Ghulam Hafiz who appears for the petitioner has argued that the impugned order by which the previous order of the petitioner's re‑instatement was cancelled has been passed without any lawful authority. It is said that in cancelling the previous order no reason has been given for the same nor was the petitioner heard before it was passed. It has further been argued that such an order of cancellation could not at all be passed. We have already seen that the representation of the petitioner after his removal from service was accepted by the Provincial Government and he was re‑instated. The petitioner has annexed a copy of the letter that he wrote to the Sector Commander, E. P. R., Rajshahi on the 11th January 1960 when he reported for duty in compliance with the Government order. This is Annexure `C' to the petition. Annexure `Cl' is the copy of a letter written by the petitioner on the January 1960, to the Assistant Secretary, Home (Police) Department, Government of Pakistan, in which he informed the Government that he had, in compliance with the Government's direction on the previous day, reported for duty to the Sector Commander, E. P. R., Rajshahi. The Government Order accepting the representation of the petitioner, as contained in Memo. No. 34 Pls dated the 5th January 1960 runs as follows:-- BY SPECIAL MESSENGER Government of East Pakistan Home (Police) Department. No. 34‑Pl. Dated Dacca, the 5th January 1960. From: W. Rahman, Esqr., B. A. Deputy Secretary to the Government of East Pakistan. To: The Director‑General, East Pakistan Rifles, Dacca. Subject: Petition dated 11th May 1959 of Mvi. I. A. Rashid formerly Inspector of Police (Wireless) against the order of his confirmation and his subsequent termination of service from E. P. R. Sir, I am directed to say that Government have carefully con sidered the above petition of Mvi. I. A. Rashid, your report dated 22nd July 1959, and also the report dated 16th October 1959 obtained from the Inspector‑General of Police, East Pakistan. It appears that:‑‑ (i) When Mvi. I. A. Rashid was appointed as an Inspector of Police (Wireless), the Inspector‑General of Police, was the appointing authority in respect of Inspectors of Police and he used to make appointments to these posts. Mvi. I. A. Rashid, who belonged to the Army Signal Corps was appointed by the Inspector‑General of Police as Inspector of Police (Wireless) on 2nd May 1949, with an assurance that he would be made permanent in that post when the Wireless Organisation were made permanent. Subsequently, the Wireless Organisation and the existing temporary posts including those of Wireless Inspector, were made permanent under G. O. No. 2025‑P1., dated the 24th May 1951. In accordance with the assurance given to Mvi. I. A. Rashid, the then Commandant, E. P. R. submitted a proposal to the Inspector‑General of Police in that year 1954 for confirmation of Mvi. I. A. Rashid as Inspector of Police (Wireless) but the matter was not finalised and he continued to work as Inspector (Wireless) in the Signal Wing of the E. P. R. until July 1957, when he was confirmed as Sub- Major in the Signal Wing by the then Commandant, E. P. R., although the posts of Inspector (Wireless) were not abolished or down‑graded to the posts of Sub‑Major. The position with regard to the posts of Inspector (Wireless) was reiterated in G. O. No. 1510‑Pl. dated 12th June 1958. Thus by his confirmation in the rank of Sub‑Major, the status of the petitioner was lowered without any authority and without any justification. The confirmation of the petitioner as Sub‑Major instead of Inspector (Wireless) was therefore clearly irregular. (ii) When the E. P. R. was re‑organised in July 1958 and the posts of Inspector (Wireless) were excluded from the E. P. R., the case of the petitioner was not referred to the Government and as such Government could not issue any orders in respect of the incumbents of the posts of Inspector (Wireless). (iii) In September 1958, the petitioner submitted a representation to the Director‑General, E. P. R. against his confirmation as Subedar‑Major, but instead of considering his representation, the petitioner was called upon to submit a declaration whether he was willing to serve as Subedar‑Major in the E. P. R. and that if the declaration was not received by 15th August 1959 it would be presumed that he was not willing to serve in the E. P. R. When the petitioner declined to furnish the declaration and instead submitted a further representation placing his grievances before his superior officer, he was discharged from service with effect from 1st May 1959.

2. In view of the above facts and in view of the assurance given to the petitioner at the time of his appointment, Government hold that the petitioner's confirmation as Subedar‑Major and his discharge from service have been irregular and without justification. They are, therefore, pleased to order that:‑ (i) that the petitioner viz. Mvi. I. A. Rashid, should be re‑instated in service as Inspector (Wireless) with immediate effect; (ii) that the order of his confirmation as Subedar‑Major should be set aside and he should be confirmed as Inspector (Wireless) from the due dates ; (iii) that one of the posts of Subedar‑Major in the Wireless Section of the E. P. R. sanctioned in G. O. No. 219‑Pls., dated 8th July 1958 should be upgraded to the post of Inspector (Wireless) for so long as Mvi. I. A. Rashid continues in service. (iv) that the period of absence of the petitioner from duty due to his irregular discharge should be treated as leave as admissible under the rules

3. This has the concurrence of the Finance Department of this Government.

4. The Service Book of the petitioner is returned herewith.

5. The petitioner is being' informed direct with instructions to report for duty immediately. Your obedient servant, (Sd.) W. Rahman. Deputy Secretary to the Govt. of East Pakistan." The Government, however, on the 26th April 1960, passed the impugned order, and it is contained in memo No. P2P‑8/60 (1) 211‑PL. This memo runs as follows: "Form No. XXXIX S. M. 1941. Government of East Pakistan. Home (Police) Department. No. P2P‑3/60 (1)‑211‑PL. dated Dacca, the 26th April 1960. From: M. N. Haq, Esqr Section Officer to the Government of East Pakistan. To: Maulvi I. A. Rashid, 76, Hara Nath Ghosh Road, Lalbagh, Dacca. Subject: Petition dated 11‑5‑59 from Mvi. I. A. Rashid, formerly Inspector of Police (Wireless) against the order of his confirmation and subsequent' termination of his services from the E. P. R. The undersigned is directed to refer to this Department Order No. 34‑PI., dated the 5th January 1960 in which he was re‑instated in service and to say that Government have since reviewed his case and decided that he should not be re‑instated in service. This Department Order No. 34‑PI., dated the 5th January 1960 should accordingly be deemed to have been cancelled. (Sd.) M. N. Haq. 26‑4‑

60. Section Officer to the Govt. of East Pakistan." The memo in question does not disclose any reason for cancelling the previous order by which the petitioner had been re‑instated. The order of re‑instatement contains cogent reasons for setting aside the order of the dismissal of the petitioner. This order clearly indicates the grounds which weighed with the Provincial Government for retaining the petitioner as an Inspector under the E. P. R. Organisation and confirming him in that post. We have already seen that in the affidavit‑in‑opposition all that has been stated on behalf of the Provincial Government is that the order of cancellation of the previous order was passed in the interest of justice. It is not disputed that before passing this order the petitioner was not at all heard though the order evidently was passed to his prejudice. Learned Advocate for the respondents has not been able to point to any legal basis for the impugned order nor any justifiable reason for the same. As we have already pointed out, there are weighty reasons in the order of re‑instatement for passing that order, and in the absence of any indication as to what led the Provincial Government to pass the subsequent order and particularly when the petitioner was not heard, we are unable to sustain the same. The order in our view, has been passed to the prejudice of the petitioner without any lawful authority and nothing has been placed before us as to the reasons that led the Government to do so. In these circumstances, we must declare that the order has been passed without any lawful authority and as such is void. The result, therefore, is that this Rule is made absolute and it is declared that the order contained in memo. No. P2P‑8/60 (1) 211‑Pl. dated the 26th April 1960 was passed without any lawful authority and is as such of no legal effect. The petitioner will be entitled to the costs of this petition which we assess at ten Gold Mohurs. SIKANDAR ALI, J.‑--I agree. K. B. A. Petition accepted.