P L D 1965 Dacca 104 (PLP)

SATTAR, J.‑In this application under Article 98 (2) of the Constitution, the petitioner Mohammad Abbasuddin has called in question the order passed by the Executive Engineer, B. & R. City Building Division Dacca, which reads as follows: "Office of the Executive Engineer, (B & R) City Building Division, Dacca. Office Order With reference to Chief Engineer's Memo. 1852 (4) dated 30‑8‑62 Mr. Abbasuddin, Sectional Officer, attached to Dacca Sub‑Division is hereby relieved of his duties from this Division with effect from 10‑12‑62, the date from which he proceeded on leave, with direction to report himself for duties to the Executive Engineer (C & B) Jessore Building Division, Jessore, with immediate effect. If he does not comply with this order he will do it at his own risk. In view of the exigencies of public service, his services are required in this Department and so, his leave as applied for is refused as per clause 151 of E. B. S. R. part I. (Sd.) S. A. Waheed, Executive Engineer, B. & R. City Building Division, Dacca." The petitioner's case is that he is a permanent incumbent under the Province of East Pakistan and was at the relevant time posted as Sectional Officer attached to the Dacca Sub‑Division under the City Building Division, Dacca. The petitioner was governed by the East Bengal Service Rules, Part I and later on when the Prescribed Leave Rules, 1959, came into force under Finance (Audit) Department Notification No. F(LA)/3L‑96/59/212, dated the 2nd October 1959, the petitioner opted to be governed by these under clause (2) of the said Notification In August‑1962 when the petitioner was on deputation to Savar Sub‑Division with headquarters at Dacca for supervision of works in Savar Sub -Division as well as a Manikganj which had no Sub‑Division, he was transferred to Jessore by Chief Engineer's Memo. No. 1852 (4) dated the 30th August 1962, but due to pressure of work in the Sub‑Division the petitioner was not relieved to join his post at Jessore and he continued as Sectional Officer on deputation at Savar Sub‑Division till the end of November 1962. On creation of a new Sub‑Division at Manikganj, the petitioner handed over charge of that Sub‑Division on the 6th December 1962 and was carrying on his duties at Savar Sub Division. The petitioner, on the 8th Decemeber 1962, suddenly fell seriously ill due to strain and exhaustion on account of over‑work and he submitted an application for earned leave for one month with effect from the 10th December 1962, on medical grounds. The petition was supported by a certificate from the petitioner's Physician. The Executive Engineer, however, directed the petitioner to appear before the Civil Surgeon,. Dacca for medical examination and furnish certificate in support of his application for leave Thereafter, the petitioner had himself examined by the Civil Surgeon who recommended two months' leave to the petitioner, As the petitioner's illness persisted he again got himself examined by the Civil Surgeon at Dacca on the 9th February 1963, and according to his advice submitted an application for further leave for two months. Then again the petitioner submitted another application for extension of leave as his health instead of improving further deteriorated and that application was also supported by a certificate granted by the Civil Surgeon. On the 14th of April 1963, however the peti tioner received the impugned order from the office of the Executive Engineer, City Building Division, in which he was directed to report at Jessore immediately and his prayer for leave was refused. On receipt of the aforesaid office order, the petitioner addressed a representation dated the 20th April 1963, to the Chief Engineer of the C. & B. Directorate through proper channel but received no reply to the same. The petitioner has challenged the impugned order on the ground that the said order has been passed on a wrong interpretation of rule 151 of the East Bengal Service Rules, part I to his disadvantage. An affidavit‑in‑opposition has been filed on behalf of the respondent and this affidavit has been affirmed by Mr. S. A. Waheed, Executive Engineer, City Building Division. In this affidavit it has been stated that the petitioner is not a permanent incumbent of the Province of East Pakistan. It has been pointed out that the petitioner was originally appointed as a Manual Instructor of the Pabna Zilla School. That appoint ment, no doubt, was permanent but as the petitioner was granted lien on that appointment up to the 1st March, 1955 and he was never appointed permanently in the Communication & Building Department he cannot be said to be a permanent employee of the Government of East Pakistan. The fact that the petitioner elected to be governed by the Prescribed Leave Rules of 1959 has been denied in this affidavit. It has further been stated that it is not a fact that the petitioner was on deputation to the Savar Sub‑Division for supervision work as the said Sub‑Division was not under the administrative control of the City Building Division. It has been asserted that until the creation of Manikganj C. & B. Sub‑Division all works at Manikganj were under the Sub‑Divisional Officer C. & B Dacca Sub‑Division where the petitioner was attached as a Sectional Officer. The petitioner was in charge of supervising all works at Manikganj. Subsequently, when the Savar Sub‑Division was transferred from the Construction Division II to the Dacca City Building Division, Dacca, all works at Manikganj which were previously under the jurisdiction of the Sub‑Divisional Officer, C. & B., Dacca Division were transferred to the City Building Division and allotted to the Sub‑Divisional Officer, Savar Sub‑Division. After the above administrative change came into force, the petitioner continued supervision of works at Manikganj. It has then been stated that it is a fact that the petitioner submitted an application for leave to the office of the City Building Division, Dacca with effect from the 10th December 1962, that is to say, from the next day of handing over charge of his section on the 9th of December 1962, although according to the acknowledged procedure, the petitioner ought to have submitted the said application to the Executive Engineer, Jessore Building Division, Jessore under whom he was transferred. The deponent has then stated that, as the petitioner could be seen moving about in or about the office premises. It seemed that he had applied for leave with the intention to evade his transfer to the Jessore Sub‑Division and as such the Medical certificate produced by him could not be relied upon and hence in pursuance of the provisions of the East Bengal Service Rules in that regard he was directed to appear before the Civil Surgeon, Dacca for examination. The further statement in this affidavit is that the petitioner no doubt submitted an application praying for sanction of his leave and payment of his leave salary but in the exigencies of public service the leave could not be granted and he was informed about it by Memo. No. 1792 (6)‑CD dated the 10th April 1963, which contained the impugned order. In spite of the said order, the petitioner again submitted an application for extension of leave for a further period of two months with effect from the 10th April 1963. The said leave application was returned to him and he was asked to submit the same to the Jessore Building Division, Jessore, where he had been transferred. The deponent has then asserted that the petitioner's statement that he was not relieved either from the Savar Sub‑Division or the Dacca Building Sub Division till he received the office order dated the 10th April 1963, is incorrect. It has then been said that there was no question of the petitioner being relieved from Savar Sub‑Division. He had already handed over charge on the 9th December 1962, and was free to be relieved from the City Building Division, Dacca. It has then been stated that the Dacca Building Sub‑Division is a subordinate office of the City Building Division, Dacca and so no formal release order was issued from the Executive Engineer, City Building Division, Dacca. It has then been said that it is not a fact that the petitioner did not receive any reply to his represen tation to the Chief Engineer, C. & B. Directorate as alleged in the petition. The Assistant Chief Engineer, by his Memo. No. 1095‑E/1 dated 21‑5‑63 (Annexure B') addressed to the petitioner, directed the petitioner to proceed to Jessore immedia tely and report for duty to the Executive Engineer, Jessore, within a fortnight failing which disciplinary action was proposed to be taken against him. The petitioner did not carry out the said order of the Assistant Chief Engineer. The deponent has then asserted that it is true that the petitioner was under order of transfer to the Jessore Building Division but in the interest of Government works in the City Building Division he could not be relieved before the 9th December 1962. In the meantime, however, in the month of November 1962, repeated request and reminders by telegrams were received from the Jessore Building Division to relieve the petitioner immediately as the works of that Division were suffering. The petitioner handed over charge on the 9th December 1962, in the aforesaid circumstances and instead of proceeding to Jessore to join his duties the petitioner by one leave application after another since after the date of his handing over charge, has been deliberately trying to avoid his transfer. An affidavit‑in‑reply has been filed in this case and in this affidavit the statements made in the petition have mostly been reiterated. The petitioner has stated that the refusal of leave on medical grounds was unreasonable and mala fide inasmuch as leave on medical ground cannot be refused. Today, before the delivery of judgment, the petitioner has submitted a further affidavit in which he has asserted that he is a permanent employee of the Government of East Pakistan and his lien could not be terminated as pointed out in the affidavit- in‑opposition. Mr. Khondkar Mahbubuddin Ahmed, in support of this Rule, has drawn attention to rule 151 of the East Bengal Service Rules, Part. I. He has submitted that, in view of Note 2 to that rule, the leave application of the petitioner asking for leave on and from the 19th April 1963, for a period of two months which was supported by a medical certificate granted by the Civil Surgeon of Dacca, could not be refused. The relevant portion of rule 151 reads as follows " Leave cannot be claimed as of right. When the exigencies of the public service so require, discretion to refuse or revoke leave of any description is reserved to the authority empowered to grant it. * * * * * Note 2.‑Leave of any description should not be granted to an extent which would unduly deplete the strength of a service or Department available for active duty. Consequently, when the duty strength has been reduced to a point which in the opinion of Government is for the time being an essential minimum, no further leave of any description will be given save in case of the most absolute necessity, such as sickness or most urgent private affairs until the strength available for duty has increased. In applying this principle, special consideration may be given to the case of Government servants who applied for leave on average pay in Pakistan, for as they can be readily recalled, if necessary, they stand on a different footing from Government servants who are out of convenient reach. * * * * * * * * * * * * * * * * * * * * * * Before we proceed to consider the merit of this submission, we may point out that Mr. Ishtiaq Ahmed, who appears for the respondents has drawn our attention to paragraph (b) of clause (3) of Article 98 and has submitted that, in view of the provisions contained in this paragraph, the present application under Article 98 (2) of the Constitution does not lie. The relevant portion of clause (3) reads as follows:‑ "(3) An order shall not be made under clause (2) of this Article‑ (a) On application made by or in relation to person in the Defence Services of Pakistan in respect of his terms and condi tions of service, in respect of any matter arising out of his service or in respect of any action taken in relation to him as a member of the Defence Services of Pakistan ; or (b) on application made by or in relation to any other person in the service of Pakistan in respect of his terms and conditions of service, except a term or condition of service that is specified in this Constitution." Learned Advocate for the petitioner has, however, drawn our attention to paragraph (b) (ii) of clause (3) of Article 178 of the Constitution. He has pointed out that this provision requires that rules are to be framed by Government under clause (2) of the Article which provides that subject to this Constitution and law the terms and conditions of service of persons serving in a civil capacity in the service of Pakistan shall be as prescribed, in the case of a person who serving in connection with the affairs of a Province‑by rules made by the Governor of the Province or by a person authorized by the Governor in that behalf. Then paragraph (b) (ii) of clause (3) of the said Article lays down that rules made for the purposes of clause (2) of this Article shall be so framed as to ensure that where an order is made which alters or interprets to the disadvantage of a person, any rule affecting his terms and conditions of service, he shall, accept where the order is made by a Governor, have at least one appeal against the order. Learned Advocate's contention is that, as against refusal of leave under rule 151 of the East Bengal Service Rules no provision has been made for an appeal against such an order of refusal, it amounts to violation of a term and condition of service provided for in the Constitution, and therefore the petitioner's present application is maintainable. The argument needed is ingenious; but, if the provisions on the basis of which it has been advanced are closely examined, it will be seen that it has no foundation. The language of Rule 151 is unambiguous and no question of interpreting the Rule in a manner disadvan tageous to the petitioner arises which entitles him to an affect. We have already seen that the Executive Engineer refused leave to the petitioner mainly on the ground that the petitioner had already been transferred to Jessore and he had been relieved from the Dacca Division. It has further been stated in the affidavit‑in‑opposition and we find that the statement is wholly borne out by the facts appearing in the file produced before us that the petitioner's application for leave from the 10th April 1963, was returned to him and he was asked to submit it to the Executive Engineer, Jessore Division. The leave application was sent to the petitioner under registered cover addressed at 6/2, Plassy Barrack, Dacca‑2 where the petitioner has been residing up till now. The envelope containing the leave application and the memo with which it was sent came back with the endorsement "Refused". This clearly indicates that the petitioner was aware of the contents of the envelope and this conclusion will not be unusual to draw in the facts and circumstances of the case. This clearly indicate the conduct of the petitioner. Coming now to the question of merits of the petitioner's contention that under the rules the Authorities were bound to grant him leave in view of Note 2 to rule 151, we find that the Note does not at all point to such a conclusion. The rule clearly reserves the right of the authorities to refuse leave and the Note does not take away that right. On the contrary, if reference is made to rule 173 which specifically deals with medical leave, it will be found that in spite of the possession of medical certi ficate the authorities are not bound to grant leave. It says that under rule 151 the possession of a medical certificate does not in itself confer on the Government servant any right to leave. Note 2 to this rule goes on further to say that in extreme cases it may be necessary to refuse leave altogether in order that the Government servant may be invalidated from service. We are, therefore, of the view that there is no substance in the conten tion of the learned Advocate for the petitioner that, as there has been no provision with regard to appeal against refusal of leave and the petitioner has been refused leave in spite of a medical certificate, the petitioner is entitled to maintain an' application under Article 98 (2) of the Constitution. We cannot induce ourselves to hold that such matters can be the basis for maintaining an application under Article 98 (2) of the Constitu tion. On the contrary, the provisions of paragraph (b) of clause (3) of Article 98 of the Constitution, which fully apply to the present case, have clearly prohibited maintenance of such applications. On merits also, we are not convinced that, simply because the petitioner produced a medical certificate from the Civil Surgeon, the authorities were bound to grant leave. There is no question of a different interpretation being put to rule 151 other than which has been given by the Executive Engineer in refusing the leave of the petitioner. Therefore, both on merits and in view of the provisions of paragraph (b) of clause (3) of Article 98, we feel that this application must fail. So far as the question whether the present employee is a permanent employee of the East Pakistan Government or not we have felt that it is not necessary to go into that question it raises disputed questions of fact particularly we have held that the present petitioner's application is not maintainable in view of the constitutional provisions and on merits. Before we leave this matter, we cannot but put on record our strong disapproval of the conduct of the present petitioner. We have examined the entire file with regard to the transfer of the petitioner from Dacca to Jessore and the leave applica tions which he filed from the next day after he was relieved from Dacca. While we are convinced that the authorities at Dacca have very sympathetically dealt with the petitioner, the petitioner has all along taken the attitude that he would not obey the orders of his superior officers and by filing this application he has asked for nothing but sanction from this Court of such a conduct. The petitioner we are informed by Mr. Mahbubuddin Ahmed even to day is in Dacca and has not joined at Jessore. We, therefore, discharge the Rule with costs which we assess at ten Gold Mohurs. The learned Advocate for the petitioner prays for a certi ficate under Article 58 (2) (a) of the Constitution for appeal to the Supreme Court. We do not think that this is a fit case in which the provisions of this Article can be invoked. The leave prayed for is refused. A. M. SAYEM, J.‑I agree. K. B. A. Petition dismissed.