P L D 1969 Dacca 74 (PLP)

SIDDIKY, J.‑This rule was obtained by the petitioner upon a petition in which he prayed for a declaration that Order No. CA‑XI/CE & LC/OUT/369 dated 10‑3‑1967 of the Accountant-- General East Pakistan, Dacca‑respondent No. 1 has been passed mala fide, without lawful authority, and is of no legal effect and for a direction on the said respondent No. 1, to pay at once the pay and allowances of the petitioner with effect from. 28‑11‑1966 up to the date of filing of the petition and also to pay his arrears of pay and allowances from 1‑3‑59 to 27‑11‑1966 as per pay bills submitted by him to the said respondent No. 1: and for a declaration that the petitioner is on duty as Superintendent, Land Customs, Dacca with effect from. 28‑11‑1966 and also for an order as to why the respondent No. 1 shall be not restrained from paying the salary and allowances of the post of Superintendent, Land Customs, Dacca,‑ to any one other than the petitioner. The petitioner's above‑mentioned prayers were based on the following facts: The petitioner alleged that he was Superintendant, Central Excise and Land Customs since 1950. That sometime in March 1959 his services were terminated as a result of some mala fide actions on the part of the Collector of Central Excise and Land Customs in conspiracy with some of his subordinates by order dated 14th March 1959 passed by respondent No. 2 Pakistan, represented by the Secretary, Ministry of Finance Revenue Division. The petitioner was thus forced to file Title Suit No. 6 of 1962 against the respondent No. 2 in the Court of the 3rd Subordinate Judge, Dacca, which was decreed on 26‑11‑1966. According to this judgment the termination of the service of the petitioner was held illegal, void and not binding on the petitioner. Having obtained this decree from the Court of the 3rd Subordinate Judge, Dacca, the petitioner alleges to have reported for duty on 28‑11‑1966 in the office of the Superintendent of Central Excise and Land Customs, Dacca, and he submitted his joining report in the office of the Collector of Central Excise and Land Customs, East Zone, Chittagong, who has been named as respondent No. 3 in this petition and happened to be the petitioner's immediate superior officer. He further alleges that he submitted copy of his joining report to the Accountant -General, East Pakistan, Dacca. It is then alleged by the petitioner that the joining report was accepted by respondent. No. 2's Officer‑member, Central Board of Revenue, and res pondent No. 1 without any objection whatsoever. Then it is alleged by the petitioner that he was directed to attend the Office of his immediate superior namely, respondent 3 which the petitioner did and submitted his fortnightly diary of the work done by him to the said respondent No. 3, which it is again alleged, were accepted by respondent No. 3 without any objection. He has appended to this petition copies of his diaries being Annexures `D, E, F, G, H, & L' Next it is alleged that after acceptance of the joining report of the petitioner (Annexure B') respondent No. 1 wrote a letter dated 8‑12‑1966 (Annexure `C') to respondent No. 2 giving his decision that the petitioner was entitled to be treated in service with effect from the date of discharge, i.e. 14‑3‑59, and to full pay and allowances and sought for the orders of the respondent No. 2 on the subject. There after it is said that the petitioner called on respondent No: 2 at Islamabad for decision with regard to his promotion which is due to him and in this connection saw the Member, Central Board of Revenue. This is sought to be proved by Annexures F & G, namely, copies of his diary. It is then alleged that in course of discussion, the Member, Central Board of Revenue, representing, respondent No. 2, became reluctant to pay arrears of pay and allowances on the ground that these are bounties of State and it is at the discretion of the employer to pay it or not. The member, Central Board of Revenue again came to Dacca on 10‑3‑67 where the petitioner alleged to have met him for his arrears of salary and promotion but to no result. In fine the case of the petitioner is that he is entitled to salary from 28‑11‑1966 on the basis of acceptance of his joining report by his immediate superior and acceptance of his diary that he has been submitting since 28‑11‑1966 and also on the basis of the letter of Accountant‑General, East Pakistan (Exh. C) dated 8‑12‑1966. Having obtained no result of his representation to the authorities with regard to the payment of his current and arrear salaries and allowances in spite of his being allowed to join the post the petitioner was forced to come before this Court for a writ of mandamus. Respondent No. 1 has appeared, through one Mr. Yousfuzzaman Siddiqui Additional Accountant‑General, East Pakistan, who has sworn an affidavit controverting the allegations made in the petition. Respondent No. 3 has put in appearance and filed an affidavit‑in‑opposition through one Fazlur Rahman, Assistant Collector, Central Excise and Land Customs. In the affidavit‑in‑opposition filed by Mr. Yousfuzzaman Siddiqui Additional A.‑G., E. P. on behalf of the respondent No. 1 it is said that no indication was given to respondent No. 1 by respondent No. 2 with regard to the acceptance of the joining report of the petitioner and the petitioner also did not produce any communication to prove that his joining report was accepted by the respondent No.

2. It has been denied in clear terms that respondents Nos. 1 and 3 had accepted the joining report of the petitioner and that no objection was raised against his joining report by the said two respondents. It was further stated in para. 4 of the affidavit‑in‑opposition, that the so‑called joining report of the petitioner (Annexure W) did not receive any official recognition and was not treated as such. An explanation has been given with regard to the contents of the letter Exh. C issued by the office of the respondent No. 1 under signature of one B. Zaman Assistant Accounts Officer, dated 8‑12‑1966 (Annexure `C'). It is stated that in this letter the Assistant Accounts Officer sought for the order of the Central Government regarding propriety or otherwise of the claim of the petitioner for his salary and allowances and the same could not mean anything other than this. According to this affidavit the petitioner has sought to give a distorted meaning to the letter in question. The relevant portion of the Annexure `C' dated 8‑12‑1966 on which the petitioner has laid stress about the acceptance of his joining report by respondent No. 1 is to be found in the last 2 paras. of the said letter which runs thus :‑ "In view of the above judgment Mr. Aqil Ahmad is to be treated as a Superintendent with effect from the date he was discharged from Government service and entitled to full pay and allowances admissible under the service rules applicable to him. It is, therefore, requested that necessary order of the Government on the subject may kindly be furnished to this office at an early date for enabling us to take further action." In para. 6 of the affidavit‑in‑opposition it has been stoutly denied that the joining report of the petitioner was accepted by respondent No. 1 or that the respondent No. 1 had given any decision or direction with regard to the joining of the petitioner. In the said para. it is stated :‑ "Under the Government rules and procedure and established practices the following requirements are to be fulfilled before a Government servant can be paid. (a) A Gazette Notification by the competent authority to the effect that a certain individual has been appointed to a certain post. In this case Central Board of Revenue was the competent authority and there was no such notification by Central Board of Revenue ; (b) There has to be a budget provision without which disbursement to a Government servant could not be made. In this case the question of budget provision becomes more relevant in view of the fact that Mr. Aqil Ahmed was claiming the `entire dues' from the date of his termination of service. (c) There has to be a charge report accepted and issued by the competent authority saying that a certain Government servant has taken over charge of a specified appointment. No such charge report was produced or submitted to the A.‑G., E. P. by the petitioner . . . . . . . . ." Then it is submitted that in the absence of any order from the Government of Pakistan Accountant‑General, East Pakistan was incompetent to pay any money to the petitioner. In the affidavit‑in‑opposition on behalf of the respondent No. 3 it has been averred by the Assistant Collector of Central Excise and Land Customs, Dacca, that the appointment of the petitioner was temporary and was terminable on 15 days' notice and the same was terminated in accordance with the terms of the said letter of appointment in 1959. All other allegations of malice, mala fide, conspiracy, ill‑will and grudge, alleged in the petition against some of the responsible officers of the Government have been stoutly denied in this affidavit and it has been submitted that these allegations have been made by the petitioner with ulterior motive. The termination of the service of the petitioner, according to the respondent No. 3, has been fair and was not as a result of any mala fade action on the part of any of the officers concerned. This deponent has further stated in para. 11 of his petition that when the Member, Central Board of Revenue was at Dacca. the petitioner gave him a letter dated 28‑11‑1966 stating, in short, the facts of his removal and giving the gist of the Court's judgment and prayed for payment of his arrear dues but no copy of this letter was sent to respondent No.

3. It is said that the Board did not reply to this letter of Aqil Ahmad, instead filed an appeal against the decision of the learned Subordinate Judge in this Court on 2‑3‑1967. The position taken up in this affidavit by the respondent No. 3 which the learned Deputy Attorney‑General states to be the case of the respondent No. 2 as well that the Government view in the matter is, that the petitioner has not been in service since the order of termination dated 11‑3‑1959 and therefore filed an appeal in this Court against the judgment of the learned Subordinate Judge and did not or could not take any decision in the matter until the judgment of the learned Subordinate Judge has reached its finality after hearing of the appeal. This letter of the petitioner therefore addressed to the member, Board of Revenue, has not been and could not be treated as his joining report. It is further stated by respondent No. 3 that according to the established procedure, rule and convention that is that before any person is allowed to join his post or is re‑instated to his former post an order or direction has to be issued from the relevant department of the Govern ment and then the said officer is asked to join his post and then submits his report in a printed form meant for the purpose and thereafter a Gazette Notification is issued on the authority of Government order. In the present case the Government has not either accepted the joining report of the petitioner nor it has directed him to resume his duties and no notification in the Gazette has been published to that effect nor any intimation has been sent to the A: G., E. P. which will authorise the said officer to make payment to the petitioner. It has been squarely denied that the petitioner has joined or resumed his duties or that he submitted his joining report. Further it is stated that the submission of the diaries by the petitioner in no way concerns the Department concerned because he was assigned no duty nor he was accepted back in the Department as an officer on re‑instatement. He could not be given any work nor he did perform any official work since 28‑11‑1966. On 8‑3‑1967, it is said that a letter was written to the petitioner by the Collector to the following effect: ‑ "Since an appeal in the High Court has been filed against the lower Court's judgment and decree, the question of your being taken in service by the department cannot be taken up till the appeal is finally adjudicate upon. In the circumstances submission of your diary to the department is obviously not acceptable and it will not confer on you any right or claim specifically or by implication. Any such communication addressed to any office or officer of this department shall be deemed `not entertained ab initio'. " The petitioner did not receive the letter whereupon the same was sent by registered post to his address at 46, Subabose Avenue, Dacca, on 11‑3‑1967 which again he did not accept and the same was returned to the sender with the endorsement `no ex‑Superintendent of Excise'. It is further stated that A.‑G., E. P. is not the competent authority to receive the joining report of the petitioner and it is Central Board of Revenue which could accept the joining report of the petitioner .;and issue orders for his re‑instatement, and notify his assumption of charge and forward the second copy of the notification to the Accountant‑General concerned for payment ‑of his salary. None of these things have been done by the Central Board of Revenue and as such there is no question that the petitioner has been allowed to join his post or the depart ment has accepted his diaries. The petitioner in affidavit‑in opposition reiterated the facts stated in his petition and asserted his claim on the same basis that his diary has been accepted, he was given work he has done certain work in the department since 28‑11‑66 and now therefore the department cannot turn back and say that he will not be given pay as his joining report has not been accepted. The petitioner argued the case before us and quite fate intelligently. In view of the denial of respondent No. 3 with regard to the petitioner having been assigned any duty we asked the petitioner to tell us as to the nature of work that he has done since 28‑11‑66 and also if he could give us the number of files that he was dealt with or even the subject contained therein or names of the parties whose files he dealt with. The petitioner in reply to our question stated that he dealt with the policy file of control of gold in Pakistan and then almost in the same breadth he said he dealt with a number of files but he was not able to give the reference numbers of those files. So we, asked him to give .us the name of the party so that we can get the file from the department. On this the petitioner stated that he could not disclose the name of the party openly but will give the names to us confidentially. We then asked him to write out the name of the party in a slip of paper and hand it up to us. The petitioner took up a piece of paper and was on the point of writing but suddenly he changed his mind. Ultimately the petitioner has not been able to give us either the name of the party or reference number of the files which he has dealt. This leaves us with the impression that the petitioner has not been allotted any duty since 28‑11‑66 and has not done any work since that date as claimed by him. In para. 17 of his affidavit‑in -reply the petitioner has, stated that when he joined his post on 28‑11‑1966, or any date thereafter nobody objected to his going to office, or resisted his taking seat and nobody obstructed him from doing his official duties. The actual words used by the petitioner in the paragraph of his affidavit‑in‑reply on the point are as follows: ‑‑ ". . his joining report Annexure B was received, not objected to, and was not resisted or opposed by the respondent No. 2 and the act of joining and attending office was physically performed in proof whereof this petitioner submitted his diaries from 28‑11‑1966 onward to his immediate superior respondent No. 3, without his objection or opposition so much so that he shared his room and even the table with this petitioner for over four months thus causing and per mitting this petitioner to believe that his joining report was accepted and he was allowed to join duty as Superintendent, if and Customs, Dacca with effect from 28‑11‑1966 . . . . . . ." When we asked him as to why he could not have a separate room or a table as is customary in the Government offices specially when he holds such a high post as that of Superintendent, Land Customs, he could not give us any satisfactory answer. The fact of his sitting at the same table with his immediate superior rather suggests that his joining report was not accepted, he was not assigned any duties and he had no official status in the office. As an old officer of the Department no one objected to his going to office and sitting at the table of his superior and enjoying his hospitality but that does not certainly mean that he was doing his duty there. Now the question is whether the petitioner is entitled to a writ of mandamus, upon respondent No. 1 directing him to recall, rescined and cancel the impugned letter and to pay him the salary claimed etc. The impugned letter Annexure `L' of the petition is dated 10‑3‑1967 addressed to the petitioner. We would rather quote this letter in extenso ‑‑ "Office of the Accountant‑General, East Pakistan, Dacca, the 10‑3‑1967. No. CA‑II/CE & LC/OUT/369. From: The Accountant‑General, East Pakistan To: Mr. Aqil Ahmad, Superintendent, Land Customs, Dacca, 46, Subhas Bose Avenue, Dacca. Subject : Regarding payment of arrear pay and Allowance Bills. Sir, Kindly refer to your letter No. Nil dated 26‑2‑1967 regarding payment of your pay bills for the period from 1‑3‑59 to 26‑2‑67 amounting to Rs. 61,995/55. The bills are, being returned to you with the following observations: ‑ (1) Your service was terminated vide Notification No. 7Z‑R/59, dated 3‑7‑59 by the competent authority. This office is not ing a position to make the payment without an express order for making payment from that authority. (2) Your charge assumption report does not appear to have been received by this office. However, Administrative Department is the proper authority to accept or not to accept any charge assumption report. No notification of your acceptance of charge report or any information from the C.B.R. has yet been received by this office. As such no action can be taken by this office at this stage. (3) No budget provision has been made for making such huge payment. The bills may please be sent through the: C. B. R. Enclos: Three bills for (1) Rs. 870 (2) Rs. 31,773.96 (3) Rs. 29,351.59 along with pay bill extracts. (Sd.) Badiuzzaman, Assistant Accounts Officer, 11‑3‑67." There is nothing illegal for the respondent No. 1 to have written Annexure 'L'. If it is sought to be argued in view of Annexure `C' that respondent No. 1 could not have written Annexure `L' we can dismiss such an argument without wasting our time. Since the Accountant‑General is not the authority to receive the joining report of the petitioner nor is the authority to declare him to be in service on the basis of the judgment of the Subordinate Judge he cannot be said to have bound himself by the letter Annexure `C' which has been explained in the affidavit of respondent No.

1. Even in Annexure `C' it will be found that the respondent No. 1 was seeking an order from the Government on the subject. The respondent No. 1 on the contrary is bound under the law not to make any payment to any person unless he is armed with an order from the relevant authorities, in the present case, from the Government of Pakistan. Therefore the respondent No. 1 has not in writing Annexure 'L' violated any legal provision for which we may declare the same to be without any lawful authority or declare the same to be void or mala fide. We must here observe that the language of Annexure `C' i.e. the letter of respondent No. 1, dated 8‑12‑1966 is not happy. But certainly this letter does not confer any right en the petitioner nor it binds the respondent No. 1 to the extent that he could not write Annexure 'L' for the simple reason that even in Annexure `C' the respondent No. 1 had requested for a Government order to act in favour of the petitioner. This may be the result of either the foolishness of the officer who drafted and signed the letter or may as well be an act done by the officer concerned without understanding the full import thereof or he was made to write the letter in that language. The position taken up by the Accountant‑General in this regard has been clearly stated in Annexure `I', the letter dated 10‑3‑67, and in the affidavit filed by the said respondent No.

1. The learned Deputy Attorney‑General has referred us to Articles 44 and 166 of the Audit Code issued under the Authority of Auditor‑General of Pakistan. From these provisions the learned Deputy Attorney‑General wanted to show us that the authority for the Accountant. General Office for any payment, there should exist a sanction either special or general granted by competent authority authorising expenditure. In the present case the amount claimed by the petitioner for his arrears of pay and allowances is more than Rs. 60,000.00 and there is no sanction from the competent authority to the Accountant‑General for making the said payment and therefore it was neither possible nor legal for the Accountant‑General to make any payment in the absence of such sanction. Therefore be contended that there must be a budgetary provision for such payment for this huge amount‑more than Rs. 60,000.00. There is no budgetary pro vision and as such the Accountant‑General could not make any payment to the petitioner and cannot do so without Government sanction. Apart from that since we have held that the Accountant‑General is not the authority to accept the joining report of the petitioner nor he is authorised to permit the petitioner to join his service, Annexure `C', the letter dated 8‑12‑66 does not in any way confer any right on the petitioner to obtain a writ from this Court. Under the writ jurisdiction under Article 98 of the Constitution we cannot direct payment of money to the petitioner by the respondent No.

1. In cases where the facts are controversial no writ can be asked for. In the present case the facts are certainly controversial. With regard to the prayer B of the petitioner we would observe that since the petitioner has already resorted to alternate remedy by filing a suit which is under appeal in this Court writ jurisdiction under Article 98 of the Constitution is not available to him. The petitioner has obtained a decree. The Government has appealed against it and the matter is sub judice. There are controversial questions involved in that suit and in the circumstances we cannot hold that the petitioner is entitled to a declaration from this Court under Article 98 of the Constitution. The 3rd prayer of the petitioner is to the effect that respondent No. 1 be restrained from paying the emoluments of the post of Superintendent of Land Customs, to anyone other than the petitioner. Since the petitioner has not been able to make out a same for our interference in this case .he is not entitled to a declara tion from us under Article 93 in regard to this prayer No. 3 of his petition. In the result, therefore, this application fails and the case is dismissed and the Rule is discharged. There will be no order as to costs in this application. The connected Civil Rule C. R. 472(f)/67 is also disposed of vide order recorded therein separately. MAHMUD HUSAIN, J.‑I agree. A. H. Rule discharged.