P L D 1962 Supreme Court 71 (PLP)

CORNELIUS, C. J.‑

The Province of East Pakistan appeals against a writ of mandamus issued by a Division Bench of the High Court of Dacca to recall two notifications of the 29th June 1959, issued in respect of the respondent Mr. M. S. A. Mazumdar, who is a member of the East Pakistan Civil Service. The first notification read as follows :‑ "In exercise of the powers conferred on him by sub‑clause (a) of clause (5) of Article 6 of the Laws (Continuance in Force) A Order, 1958, the Governor has been pleased to reduce Mr. Mohammad Sajjad Ali Mazumdar, Officiating Magistrate and Collector, Bogra to his substantive rank in the E. P. C. S. (Executive) with effect from the afternoon of the 30th June 1959, for inefficiency." The second notification was Issued by way of correction, viz., to add the words "and misconduct" at the end of the first notification. The necessity for the correction arose in the following way. Mr. Mazumdar was placed under enquiry before the Provincial Screening Committee No. 1 of East Pakistan on two charges, namely, firstly, that he had a general and persistent reputation for corruption, and secondly, that he was "guilty of conduct contrary to rules regulating the conduct of Government servants and/or unbecoming your office". In the enquiry, the allegation of corruption was found not to be sustained. As to the charge of irregular or unbecoming conduct, the particulars specified were as follows :‑‑ "In order to get your transfer order from Jessore cancelled, you sent your wife to Dacca to approach senior officials and Ministers." It should be mentioned that the screening took place under the Public Conduct (Scrutiny) Ordinance, 1959, and the charges were laid under a provision in rule 2 of the Public Conduct (Scrutiny) Rules, which in its original form provided for an enquiry when the Screening Committee should have reason to believe that the respondent was "guilty", in the case of a Government servant of conduct contrary to the rules regulating the conduct of Govern ment servants, and, in any other case, conduct unbecoming his office". On the 21st of March 1959, however, this provision had been replaced by one requiring that the respondent should be believed to have been "guilty of conduct contrary to good order or unbecoming his office or employment". The proceedings against Mr. Mazumdar were commenced on the 26th March 1959, and since the second charge against him expressly referred to conduct "unbecoming your office", it is natural to conclude that 9t was framed with reference to the amended rule. The judgment of the High Court, however, proceeds upon the basis that the rule applicable was the unamended rule, and since the conduct of which complaint was made did not infringe any rule regulating the conduct of Government servants, the learned Judges came to the conclusion that the action taken against Mr. Mazumdar was outside the purview of the Ordinance. We are satisfied that this view was not well‑founded, and was reached because of the failure of the Provincial Government to place before the Court the amended form of the rule. There was no charge of inefficiency, and therefore the reference to inefficiency In each of the two notifications issued by the Government was otiose. The learned Judges of the High Court were satisfied that it was made as the result of "an unfortunate and deplorable clerical error". It might have been thought that when that error came to light, the reference to Inefficiency in the second notification would have been omitted altogether, but its mere presence, meaningless as it is, does not affect the validity of the order as based upon the other finding of misconduct. We do not agree that it indicates that the Government failed altogether to apply its mind to the case before issuing this order. Mr. Suhrawardy appearing for the respondent argued that the conduct imputed to his client and found established did not amount to misconduct. He admitted that the expression "miscon duct" was nowhere defined in the statute or rules, but yet urged that it should be interpreted by the Court narrowly in the sense of an infringement of a binding rule of conduct applicable to Government servants. We are unable to agree. The expression "misconduct" in the notification appears to us to have been used in the wide sense of improper conduct. The Screening Committee's opinion has been placed on the record, and may be reproduced with advantage :‑ "As regards the second charge that on the occasion of his transfer from Jessore, Mr. Mazumdar sent his wife to approach Ministers in Dacca, the officer has admitted that his wife did request the then Chief Minister to stay the transfer order, although ate denies that he asked her to do so. However, the Committee took the view that this approach to the Chief Minister must certainly have been done with the officer's full approval and this action constituted conduct unbecoming his office." The finding is of "conduct unbecoming" but the charge is described at the commencement of the order as a charge of "misconduct". This again indicates that the expression "misconduct" has not been used in these proceedings in any restricted sense, with refer ence to any particular rules of conduct. Mr. Suhrawardy urged that his client had put forward expla nations which show that although his wife had visited Dacca at about the relevant time, and she had met the Chief Minister, Mr. Ataur Rahman Khan, and had asked him to stay the order of her husband's transfer till her daughters had taken their matri culation examination, she did so on her own initiative and responsibility and without any suggestion froth him. The explana tion which Mr. Mazumdar gave in writing makes several very significant admissions. He said that he received the transfer order at Jessore after his wife land left Jessore for Dacca where she stayed for a week, and there she carne to know about the transfer order and spoke to him about it on the telephone and "ascertained my views about it". He only asked her to come back early, but never "asked her to see anybody for the cancellation of the order". Upon those admissions, it seems to us that the finding of the Screening Committee that "this approach, to the Chief Minister must certainly have been done with the officer's full approval", is both reasonable as well as natural. There can be no question but that such conduct is entirely improper in a Government official holding the important office of a District Magistrate. It is not difficult to imagine the, lowering of morale and the mal administration in the public service which would result of such conduct by female relations of public servants were allowed to become common practice. Accordingly, on a correct reading of the relevant law and the record of the case it appears quite clearly that the matter was properly brought under the Public Conduct (Scrutiny) Ordinance, 1959, and that the proceedings as well as the final order are correct as to procedure and within the given powers. The final order of the Government however betrays another and a deeper error than that already noticed viz., the erroneous mention of inefficiency. The order expressly purports to reduce Mr. Mazumdar to his sub stantive rank in the East Pakistan Civil Service. Mr. Mazumdar was merely officiating in a "listed post" of District Magistrate, to which he was not entitled, as of right, by virtue of his substantive status in the Provincial Civil Service. In reverting him to his substantive position, the Government deprived him only of his officiating rank, and to treat such an action as constituting reduc tion is clearly misconceived. The error came before this Court in the case of Pakistan v. Hikmat Hussain (P L D 1959 S C (Pak.) 107), where it was clearly held that when a person is reverted from an officiating appointment to his substantive position there is no question of reduction in rank. The reason is that the officiating position which he holds is of a tentative and conditional nature, dependent on the exigencies of the public service, as well as the opinion formed by his superior officers as to his capacity for performing' the duties of the higher office in which he is being tried. He does not hold the rank in any vested sense, but only tentatively and subject to a number of contingencies, as well as to the opinion of his superiors. His true rank in the sense of a status which belongs to him as of right is his substantive rank in the service to which be belongs, and if he were reduced below that rank, as a punish ment or otherwise, certain legal consequences might arise. But p‑sb6hconsequences arise where the officer is withdrawn from temporary occupation of a position superior to that to which by the rules of his service he is entitled, and therefore, the action of the Government in respect of Mr. Mazumdar, despite the use of expressions indicating reduction in rank, does not in fact amount to such reduction. Such an action could have been taken in consequence of the enquiry, by reason of the conduct which was brought to light, but it was unnecessary to describe it as a punishment imposed under the law relating to the enquiry. In other words, it was entirely within the unfettered discretion of the Government to terminate the officiating appointment of Mr. Mazumdar and to restore him to his substantive position in the service to which he belongs. Consequently, the action of Government is not susceptible of control by a writ of mandamus or otherwise howsoever. For these reasons, we allow this appeal and direct that the writ issued by the High Court should be recalled. There will be no order as to costs. A. H. Appeal accepted.