P L D 1969 Dacca 430 (PLP)

A. S. CHOWDHURY, J.‑This appeal is at the instance of the plaintiff Nazimuddin Ahmed and directed against the judgment and decree passed by M. M. M. Ishaque, Subordinate Judge, 3rd Court, Dacca on 30‑7‑66, dismissing the Title Suit No. 72 of 1.964 instituted by the plaintiff for declaration to the effect that he was in Government service. The plaintiff's case briefly is stated that he became a member of the Bengal Civil Service (Executive) after successfully competing at an examination held in 1931 and thereafter he served in various capacities in different districts and held charge of five important outlying sub‑divisions. He was promoted to the listed post, it is claimed, in recognition of his meritorious services and was posted as Additional District Magistrate, Bakerganj in the year 1951. He was appointed District Magistrate and Collector, Bogra in 1958. At the time of his being subjected to a screening proceedings, he was working on special duty in the Home Department and was placed in charge of the East Pakistan Government Press at Tejgaon. On 25‑3‑59 be received a notice from the Chairman of the Provincial Screening Committee No. 1, of the Government of East Pakistan asking him to show cause why disciplinary action should not be taken against him for unsatisfactory service'. The plaintiff submitted a written expla nation claiming that he enjoyed the reputation of being an efficient and honest officer and reiterated the same when he personally appeared before the Screening Committee. The said Committee, however, recommended his compulsory retirement on the ground of his service being unsatisfactory. He, thereafter, made a representation to the Chief Secretary to the Government complaining about the inadequacy and vagueness of the charge against him and maintaining his earlier stand about efficiency and honesty. The government, however, ordered compulsory retire ment of the plaintiff with effect from 1‑6‑59 on the ground of inefficiency by Notification No. 2742‑GA, dated 29‑5‑

59. The said order was modified by Notification No. 6013‑GA, dated 7‑10‑59, by which he was retired from 30‑11‑

59. It is stated the proceedings were purported to have been conducted under the Public Conduct (Scrutiny) Ordinance of 1959 (Ordinance III of 1959) read with Public Conduct (Scrutiny) Rules, 1959. It is specifically pointed out that on 28‑2‑

59. Clause (c) of rule 2, of the Public Conduct (Scrutiny) Rules, 1959, which speaks about the inefficiency was omitted. It is, therefore, contended that the order purported to be made thereunder was without jurisdiction and the order as notified under subsection (b) of clause (5) of Article 6 of the Laws (Continuance in Force) Order, 1958, on the ground of inefficiency was without any charge or enquiry under that law and that order was also void and without jurisdiction. The suit was contested by the Province of East Pakistan and the defence was mainly founded on the ground that the Civil Court had no jurisdiction to entertain the suit as the order of retirement of the plaintiff was passed in exercise of the executive power of the defendant through the Screening Committee under the provisions of Laws (Continuance in Force) Order, 1958. The allegations made in the plaint were generally denied and it was also specifically denied that the plaintiff dis charged his duty faithfully and properly and to the satisfaction of the Government, enjoying reputation of honesty and efficiency. The allegation regarding the proceedings being mala fide was also denied. It was specifically stated at paragraph 10, of the written statement: "The promotions were routine matters and the Screening Committee fully considered all these facts before giving their findings and recommendations; inquiries if any made from the plaintiff' regarding his willingness to work in the Secretariat are also more or less routine matters and such inquiries are by no means evidence of efficiency and suitability. It is wholly incorrect to say that the Screening Committee did not apply its mind to the matter before giving findings and recommendation against the plaintiff." It was also denied that the screening proceeding was resorted to tin the interest of certain officers of the Government and it was ultimately urged that "the plaintiff was rightly retired from service under the Executive Orders of the defendant on weighty reasons according to law", and it was further stated. "Hence the Screening Committee on the basis of materials on record found the plaintiff inefficient and under the instruction of the executive authority of the Government recommended for compulsory retirement of the plaintiff from his service and accor dingly the appointing authority passed orders for retirement of the plaintiff with effect from 30‑11‑59 and subsequently modified the date of retirement to allow the plaintiff the benefit of leave due to his credit" on these ground the defendant claimed that the plaintiff was not entitled to any relief what soever. The plaintiff examined himself as P. W. 1 in this case and maintained that his retirement was recommended by the Screening Committee on "filmsy grounds". The only witness examined on behalf of the defendant was .one Mr. Mir Md. Ali who has described himself as Section Assistant in Service and General Administration Department of the Government of East Pakistan. He merely proved signatures on orders relating to the plaintiff. The learned Subordinate Judge on a consideration of the materials, oral and documentary, placed before him reached the conclusion that the grievance of the appellant to the effect that the specific charges were not given to him, was of no substance. He also found that the plaintiff failed to establish that the order was a malicious one. He held that the orders made in this case were in accordance with law and therefore, no interference was called for. He was however, of the opinion that the Court had jurisdiction provided it was satisfied that the order was passed in excess of the authority conferred by the relevant statutes. He accordingly dismissed the suit and left the parties to bear their own costs. Mr. Kazi Serajul Islam, learned Advocate for the appellant, argues that the notice served on the appellant asked him to show cause why disciplinary action should not be taken against him for "unsatisfactory service" but by an amendment, dated 28‑2‑59 clause (c) of rule 2, of Public Conduct (Scrutiny) Rules, 1959, was omitted and therefore even assuming that "unsatisfactory service" comes within that term being equated within efficiency clause the recommendation of the Screening Committee made on 24‑4‑59, on the ground of "unsatisfactory service" was made at a time when the said Committee had no jurisdiction to consider such a ground. In short, learned Advo cate submits that the recommendation is founded on a ground which was not available to the Screening Committee constituted under the said Ordinance and the rules framed thereunder Mr. ‑S. A. Chowdhury learned Assistant Government Pleader, appear ing for the respondent, Province of East Pakistan, strenuously argues that no enquiry for retirement on the ground of ineffici ency is necessary when an order is passed under the Laws (Continuance in Force) Order, 1958, as in this case. His further contention is that merely because an enquiry had been made under the Ordinance III of 1959 the impugned order made under Laws (Continuance in Force) Order will not be vitiated.. In answering a question put to him he submits that the enquiry regarding the service of the appellant was made under Ordinance No. III of 1959 and the Rules framed thereunder, and the ultimate order had been passed by the appointing authority under Laws (Continuance in Force) Order on the basis of the recommendation of the Committee after the said enquiry. Learned Advocate for the respondent raised a preliminary objection and urged that the appeal was not maintainable on the ground that it was barred by law of limitation. His con tention is that the judgment was pronounced on 30‑7‑

66. The decree was signed on 24‑8‑66, and that the application for certified copies for the judgment and decree was submitted on. 2z‑8‑66, and the requisites were called on 26‑8‑66, and the same were put in on that very date. The office was ready with the: copy on 30‑10‑66 and the appeal was presented to this Court on 2‑12‑66 without requisite court‑fee which was affixed for the first time, according to the learned Advocate for the respondent on the 5‑5‑

67. He concedes that the appeal was filed on 2‑12‑66 within the time allowed by law but as court‑fee was not affixed on that day it was no filing of the appeal in the eye of law. He submits that the court‑fee was affixed on 5‑5‑67 when the appeal was already barred by law of limitation. As soon as Mr. S. A. Chowdhury finished his submission,, learned Advocate for the appellant, Mr. Islam, produced a receipt issued by the office of this Court to the effect that the court‑fee of Rs. 20 was filed on 2‑12‑66, that is on the very date of the presentation of the Memorandum of Appeal. In that view of the matter while proceeding with the hearing of the case on merits, we asked the office to explain the position and the officer concerned as endorsed by the Deputy Registrar of this Court submitted a report. The material part of the report is in the following terms: "The reason for the apparent anomaly as to the difference in date, i.e. 5‑5‑67, on the court‑fee of Rs. 20 affixed on, the Memo. of Appeal and on the court‑fee of Rs. 3 on the Vakalatnama at flags `W' and `U' respectively is due to the fact that the court‑fees on the Memo. of Appeal and the Vakalatnama were punched and sealed on 5‑5‑67 the date on which the case was checked and the report we submitted by the Stamp Reporter duly attested by the Assistant Registrar‑in‑charge. As it is not possible to check and report cases on the very date of filling, the court‑fee stamps are sealed and punched on the date of S. R's report in accordance with the age long practice obtained from the. Calcutta High Court." The report of the office reveals the real position and we, checked some other memorandum of appeals and found that the reason assigned for the difference in date was correct, for seals with dates were given an the dates of checking up by the Stamp Reporter. We directed the receipt produced by the learned Advocate for the appellant to be retained in the record of this Court and we accept the same unhesitatingly as genuine. The preliminary objection raised by learned Advocate for the respondent is overruled as a frivolous one. Coming back to the merits of the case, learned Advocate for the respondent has submitted, as already noticed, that the enquiry was made under the Ordinance No. III of 1959. We have ourselves looked into the record of the case as printed in the paper book as well as in the original record and we find that the proceeding throughout has been under the said Ordinance and the Rules framed thereunder. After Screening Committee recorded its finding on 24th April 1959, in its report, it was approved by the Advisory Committee and the Governor wrote thereafter "I accept the advice. Z. Hossain, 21‑5‑59." It is, therefore, clearly established that the proceeding was throughout under the Ordinance No. III of 1959 and the Rules framed thereunder. When pointed out to the learned Advocate for the respondent that his claim that the Order is sustainable as no enquiry is necessary under the Laws (Continuance in Force) Order cannot be accepted, for, we are concerned not with law in the abstract but with what has happened in this particular case. We then pointed out to him observation of his Lordship Munir, C. J., in the case of Zafar‑ul‑Ahsan v. The Republic of Pakistan (P L D1960 S C 113), to the effect that if any enquiry is held under the Ordinance it has to be in accordance with law. Learned Advocate for the respondent then corrected himself and submitted that no enquiry was necessary but the enquiry that was held was also lawful and the jurisdiction of the Court was therefore ousted. It appears to us that the Ordinance No. III/59 provides for appointment of Committee to scrutinise the conduct of a person to whom this Ordinance applies and it is not denied that the Ordinance applies to the plaintiff. It is also provided in section 4 of the Ordinance that a finding recorded by a Com mittee constituted under the Ordinance shall be submitted to the appointing authority who shall pass order thereon according to law. Section 10 of the said Ordinance is indeed very important. That section is as follows: "No order, proceeding or finding of a Committee or of an. appointing authority shall be questioned in any Court." Section 8 of the Ordinance authorised the Central Government to make Rule and it accordingly framed the Public Conduct (Scrutiny) Rules, 1959 on 24‑1‑

59. On that date rule 2, was as follows: "Where a Committee is of the opinion that there is reason to believe that person to whom the Ordinance applies: (a) is corrupt, or may reasonably be considered corrupt because‑ (i) He has the general and persistent reputation of being corrupt; or (ii) he is, or any of his dependents or any other person through him or on his behalf is, in possession (for which he cannot reasonably account) of pecuniary resources or of property disproportionate to his known sources of income; or (iii) he has assumed a style of living beyond his ostensible means or above his station; or (b) is guilty, in the case of a Government servant, of conduct contrary to the rules regulating the conduct of Government servants, and in any other case of conduct unbecoming his office ; or (c) is inefficient or has ceased to be efficient and is not likely to recover his efficiency it may so inform that person and call upon him to explain any act or circumstances appear ing against him." As already noticed, clause (c) was omitted on 20‑2‑

59. As a result of this omission, according to learned Advocate for the appellant, the Screening Committee is not authorised to go into the question of inefficiency of an officer. Learned Assistant Government Pleader, Mr. Chowdhury, submits that the impugned order dated 29th May 1959, was made by the Governor under sub‑clause (b) of clause (5) of Article 6, of the Laws (Continuance in Force) Order, 1958, and the Governor was authorised thereunder to retire an officer for inefficiency. But the fact remains that the screening of the appellant was done under the Ordinance (III of 1959) and the Rules framed thereunder. It has been very strenuously argued on behalf of the appellant that inefficiency is different from what is called "unsatisfactory service" and further that on 24th April 1959, when the recommendation was made, the Screening Committee could not under the Public Conduct (Scrutiny) Rules, go into the question of inefficiency even if unsatisfactory service" could be called inefficiency. Learned Advocate for appellant further argues that for compulsory retirement of a Government servant on the ground of inefficiency a separate set of rules called East Pakistan Government Servants (Discipline and Inefficiency) Rules, 1959, was promulgated by the Governor of East Pakistan on 18‑3‑

59. According to, him, in order to compel a Government Servant to retire on the ground of in efficiency, the proceeding has to be drawn under the said Rules. Mr. S. A. Chowdhury's sheet anchor, however, is that the Laws (Continuance in Force) Order, 1958 makes an independent provision therein by which the Governor can retire a person on the ground of inefficiency without any enquiry whatsoever and such an order is prohibited from being called in question in any Court. To be precise Mr. Chowdhury's contention is that Article 6, gives assurance that all persons who were in the service of Pakistan before the proclamation, shall continue on the same terms and conditions and shall enjoy the same privi leges. After having given the said assurance, an exception is made under clause (3) of Article 6, wherein, according to Mr. Chowdhury, it has been specifically stated that notwithstanding anything contained in clause (1) of Article 6, a person in the service of Pakistan if he is found, inter alia, inefficient he may be compulsorily retired by an authority not subordinate to the authority by which he was appointed and Mr. Chowdhury relies on sub‑clause (b) of clause (5) of Article 6, to claim that no enquiry whatsoever is necessary for retirement on the .ground of inefficiency. In the case of Zafar‑ul‑Ahsan v. The Republic of Pakistan the Supreme Court observed: "If a statute provides that an order, made by an authority acting under it shall not be called in question in any Court, all that is necessary to oust the jurisdiction of the Courts is that the authority should have been constituted as required by the statute; the person proceeded against should be subject to the jurisdiction of the authority, the ground on which action is taken should be within the grounds stated by the statute, and the order made should be such as could have been made under the statute. These conditions being satisfied, the ouster is complete even though in following the statutory procedure some omission or irregularity might have been committed by the authority." Their Lordships of the Supreme Court have, therefore, clearly held that the action can be taken on a ground which is available in the statute. In this case it is patent on the face of the record that the show‑cause notice was issued on 15‑3‑59, on the ground of "unsatisfactory service" although no such ground was mentioned in the statute. As we have already said, even if unsatisfactory service means inefficiency, the ground for inefficiency was already omitted on 28‑2‑59, and the recom mendation of Screening Committee was made on 24‑4‑

59. There fore, the entire proceeding before the Screening Committee of, the ground of inefficiency took place at a time when the Screening Committee had no authority to go into the question of ineffi ciency. Therefore, the impugned order which is founded on the said unauthorised recommendation is clearly outside the jurisdiction of the Ordinance III of 1959 and the Rules framed thereunder. It may again be mentioned that the Advisory Committee in accepting the recommendation of the Screening Committee, acted in excess of its authority for, it could not accept such a recommendation on the ground of inefficiency. The Governor did not make the order under any other law or proceedings. He merely accepted the recommendation of the Screening Committee which had no authority whatsoever to go into this question. This acceptance of the recommendation on ground of inefficiency was not available under the Ordinance of III of 1959 and the Rules framed thereunder. The impugned order passed on the basis of the said recommendation cannot, therefore, be sustained in law. The Supreme Court reiterated its view on the subject also in the case of Sardar Muhammad Zaman Khan v. M. R. Nishat and others (P L D 1962 S C 22). We have clearly indicated that the recommendation having been beyond the scope of the statute, the acceptance B thereof would also be equally beyond the provisions thereof. Similar question arose in the case of Province of East Pakistan and others v. M. Amir Hussain (P L D 1963 S C 185). In that case a Public servant was called upon to answer a charge of "unsatisfactory service." He was, however, subsequently compulsorily retired on the ground of misconduct. In that case Cornelius, C. J. observed: "The Ordinance and the Rules do not expressly give deter minative force to the finding or the recommendation of a Screening Committee, in respect of the order to be made thereon by the appointing authority, yet reading these instruments as a whole, the conclusion is unavoidable that in the absence of a finding of guilty, the appointing authority is in no position to come to a conclusion of guilt, since it has only the finding, the recommendation and the appeal, to go upon. Where the Screening Committee finds "not guilty" there may well be no appeal. The position is different in the case of a depart mental enquiry, which results in recording of the evidence and a report, which the punishing authority may or may not accept. But under the Ordinance and Rules here, it is clear that the finding of guilty by a Screening Committee has a definitive and determinative effect, and, consequently it must be allowed in favour of the effected person, that he may challenge that finding when it is found to be devoid of any basis at all, an attack upon the consequential order determining his service, by way of punishment." We would respectfully say that this weighty observation clearly applies to the facts of this case and the consequential order as based on the recommendation of the Screening Committee cannot be sustained. It will, therefore, appear that the Screening Committee served a show‑cause notice on the plaintiff on 28‑3‑59, on a ground which was not in the statute. It is now necessary to consider the alternative argument of Mr. Chowdhury that the impugned order was made by the Governor under the Laws (Continuance in Force) Order which mentions inefficiency as a ground for compulsory retirement. Real position obtaining this case is that the Governor has simply accepted the recommendation of the Screening Committee made in pursuance of an enquiry under the Public Conduct (Scrutiny) Ordinance (No. 111) of 1959 and rules made thereunder. The impugned order was issued solely on the recommendation of the Screening Committee performing quasi judicial functions. Though the final order as issued to the plaintiff‑respondent puported to be one under clause (b) of subsection (5) of section 6 of the Laws (Continuance in Force) Order, 1958, it was by no means an executive order as held by the Court below and as consideration of an order contemplated under clause (b) of ‑section 6 (5) of the laws (Continuance in Force) Order, it is necessary to quote here the provisions of subsections (3) and (5) ‑of that section which are as follows: "(3) Notwithstanding anything in clause (1) a person in the service of Pakistan may, if he is found inefficient or guilty of subversive activities, corruption or misconduct, under rules made in that behalf by the President or a Governor, be suspen ded, compulsorily retired (whether he has reached the age of retirement or Not), reduced in rank, removed or dismissed in accordance with those rules by an authority not subordinate to that by which he was appointed. (4) . . . . . . . . . . (5) Nothing in this Article or in any law, rule or instrument 'having the force of law shall prevent a person mentioned in clause (1) from being‑ (a) suspended, reduced in rank, removed or dismissed for being corrupt or for misconduct, or for inefficiency after such enquiry as may be held under the orders of the Central Government, or (b) retired for any cause mentioned in the proceeding sub- clause or for having the reputation of being corrupt on such pension (if any), as may be admissible to him proportionate or otherwise by an order of the authority mentioned in .clause (3) made before the first day of July 1959 or in the ,case of a Chairman or Member of a Provincial Public Service Commission the sixteenth day of February 1960, and no appeal shall lie against such order nor shall such order be called in ‑question in any Court." From the provisions of subsections (3) and (5) quoted above, it is clear that the normal procedure for taking any action against any public servant would be as laid down under subsection (3) on the basis of a proper enquiry under the rules in that behalf. Under subsection (5) an extraordinary right has been reserved for the President and Governor to take action under clause (a) of subsection (5) after such enquiry as may be held under the orders of the Central Government, and under clause (b) without any enquiry at all. "Inefficiency" as a ground of action at first occurred in clause (b) only and not in clause (a) of sub section (5) (b) but by an amendment dated 9‑3‑59, is was included in clause (a) and excluded from clause (b) (presumably as unneces sary because of inclusion in clause (a) with the result that for punishment of a public servant under clause (a) even for inefficiency after 9‑3‑59, there was to be such enquiry as may be held under the order of the Central Government. But in case of retirement of a public servant under clause (b) no enquiry was called for. Now, the proceeding against the plaintiff was clearly purported to be under the Public Conduct (Scrutiny) Ordinance of 1959 and the Rules made thereunder and the acceptance of the recommendation of the Screening Committee set up under the Public Conduct (Scrutiny) Order, was also on the assumption that the scrutiny of the plaintiff's conduct was under the pro visions of the same Order and the Rules made thereunder. It is clear that at no time was that it contemplated that the plaintiff should be made the subject of punishment by way of compulsory retirement by exercise of the extraordinary executive powers of punishment reserved under the subsection (5) of section 6 of the Laws (Continuance in Force) Order, 1958. The show‑cause notice, Exh. 1, dated 25‑3‑59 issued to the plaintiff and the proceeding thereafter were the usual notice and proceeding by the Screening Committees constituted under the Public Conduct (Scrutiny) Order and the Rules made thereunder and there is nothing in the notice or proceeding against the plaintiff to show that they were in respect of an enquiry under section 5 (a) of the Laws (Continuance in Force) Order, 1958. The entire proceeding against the plaintiff having been beyond the authority of the Screening Committee, it is not open to the learned Assistant Government Pleader to turn round and assert that the enquiry was one under subsection (5) of the Laws (Con tinuance in Force) Order, nor is it open to him to argue that as no enquiry at all was necessary for retirement under clause (b) of section 6 (5) of Laws (Continuance in Force) Order, the impugned order cannot be questioned, even if enquiry was held under the Public (Scrutiny) Ordinance, 1959. It will be difficult for any one to reasonably contend that while accepting the recommendation of the Screening Committee or at any time before it, the Governor had in his mind the contemplation of punishing the plaintiff by compulsory retirement for alleged unsatisfactory service, by exercise, of his extraordinary t powers under clause (b) of subsection (5) of section 6 of the Laws (Continuance in Force) Order. In the circumstances, it is futile to invoke the exercise of such powers in support of the impugned order. It has been very strenuously argued before us by Mr. Islam that the Screening Committee founded its recommendation on the materials which were not disclosed to the plaintiff. It has also, been argued that no charge was framed against the plaintiff in contravention of the Rules under which the Screening Committee functioned. Suffice it to say that we have already found that the ground on which the recommendation and the consequential order were beyond the scope of the relevant statute and it is therefore not necessary for us to consider these arguments relating to the irregularity of procedure. Mr. Islam however, invites us to consider that these irregularities were deliberately committed owning to malice and they were at victimisation of the appellant and he cites these instance of irregularity as evidence of what may be called malice in law. His argument is that the brilliant service record of the appellant was not considered and in total disregard of the amendment which the Screening Committee was expected to be aware, such a recommendation was made when the very basis was removed. A part from that, it has been argued with vehemence that the appellant was senior in service to two Officers, namely, Mr. A. Salam Chowdury and Mr. A. Q. Ansari. Our atten tion was drawn to the following statement of P. W. 1, the plaintiff. "I had crossed the efficiency Bar in the Senior Scale of C. S. P. in 1957, vide Government Order (Exh. 7) and I got promotion in the selection grade‑executive by Government order marked Exh. B. Thereafter there was the modification of the order by which I was promoted to the Selection grade and I was made Junior to Mr. A. S. Chowdhury and A. Q. Ansari although the said Officers were Junior to me. This is the modified order Exh. 9." The witness then proceeded to say: "Mr. Ansari was then Joint Secretary of the Home Department. "The witness has further stated Mr. Sobhan, another member of the Screening Committee, had been S. D. O., Patuakhali, while I was second Officer under him. There was a hitch between him and me there. Mr. Sobhan when he was member of the Screening Committee reached a higher rank than mine though he also was a listed post‑holder on promotion from the provincial service." These statements of the plaintiff have not been challenged in cross‑examination. The witness has also stated that be had previously annoyed Mr. Ebwer, the Member‑Secretary of the Screening Committee over promulgation of an order under section 144 of the Code of Criminal Procedure. It is also argued that M. Ansari was holding a key position in the Home Depart ment and he had a hand in the reference of the case of the plaintiff to the Screening Committee. It is further argued by Mr. Islam on the basis of the evidence quoted above that he bad an animosity with a Member of the Screening Committee who himself, Mr. Islam submits, should have refused to sit on judg ment over a person with whom at an earlier stage, he had some misunderstanding. It has also been argued by Mr: Islam that the representation, Exh. 11 against the supersession of the plaintiff by the aforesaid two Officers was still pending and in order to frustrate the efforts made by the plaintiff through the said representation, his name was sent up to the Screening Committee and it is, therefore, strenuously argued that the whole proceeding culminating in the order of compulsory retirement was mala fide. It has also been argued by Mr. Islam that consideration of adverse remarks which were not communicated to the plaintiff is an instance of impropriety in consequence of malice, Mr. Chowdhury, however, argues that these departmental rules for the communication of adverse remarks cannot be enforced by a Court of law. Mr. Islam's approach to the question is however different. He' considers that disregarding of the departmental rules shows that the Committee acted mala fide. Learned Advocate for the plaintiff places the entire character roll as printed in the paper book and claims that on fair assessment of remarks made therein it will be clearly found that he was not inefficient and that reference of such an officer to the Screening Committee was itself mala fide. In support of his contention he points out that even in 1958 the Commissioner of Rajshahi Division observed about him: "An honest and hard working officer whose knowledge of his work is very sound. Health rather poor. Integrity beyond doubt." It is further argued that when an officer receives such commen dation from the Commissioner in 1958 his reference to the Screening Committee shortly afterwards raises a strong belief in the mind of the plaintiff that it was the outcome of his repre sentation against supersession by two officers one of whom held a key post in the Home Department. It is true these elements as pointed out by Mr. Islam may raise a strong suspicion of malice but in order to enable us to record a finding in this behalf it is to be shown clearly as to what part was played by him. We would, however, say that since we have already found that the impugned order was made in excess of the authority conferred by relevant law as noticed above, it is neither necessary nor possible to reach a conclusion with certainty about the impugned action being a mala fide one. Exh. 8 clearly shows that only on 12‑8‑57 the Government thought that the promotion of the officers should be in the following order: "(1) Mr. Abdul Aziz, Inspector General of Registration. (2) Mr. Naziruddin Ahmed, District Magistrate, Bogra. (3) Mr. Sajjad Ali Majumdar, District Magistrate, Jessore. (4) Mr. A. Salam Chowdhury, District Magistrate, Dinajpur. (5) Mr. A. Q. Ansari, Joint Secretary, Home Department." This order was modified without giving any opportunity to the plaintiff to show cause against such modification. It was mentioned as an evidence of malice. To the contention of Mr. Islam that the service record as a whole would clearly indicate that the plaintiff was not an inefficient officer, we would say that it is not necessary for us to go into the merits of the case, nor under the law the Court can go into merits of the decision of the Screening Committee. We are to see whether the impugned order is within the purview of the statute and we have already held that it is not. Mr. S. A. Chowdhury argues that the plaint has been filed beyond one year from the date of the making of the impugned order and as such the suit itself is barred by the Law of Limitation by reason of the provisions of Article 14 of the Limitation Act which reads as follows:‑ "

14. To set aside any act or "one year from the date of the act or order" order of an officer of Government in his official capacity, not herein otherwise expressly provided for." We are unable to accept this contention of the learned Assistant Government Pleader, for, the order challenged before us is not an order of an officer of the Government but of the Governor himself. Mr. Chowdhury, however, argues that the Governor is also an officer of the Government. This argument we have no hesitation to reject, for the Governor holds a constitutional E office and is not an officer of the Government. That is clear .even from the Laws (Continuance in Force) Order, Article 6 of the said Order reads as follows: "All persons who immediately before the Proclamation were in the service of Pakistan as defined under clause (1) of Article 218 of the late Constitution and those persons who immediately before the Proclamation were in office as Governor, Judge of the Supreme Court or a High Court, Comptroller, and Auditor‑General, Attorney‑General, or Advocate‑General shall continue in the said service or in the said office on the same terms and conditions and shall enjoy the same privileges, if any." If the Governor would have been an officer who is a person, "in the service of Pakistan", it would not have been necessary to name him under Article 6 of the said just quoted Order. This is enough to show that the Governor holds a constitutional office and is not a person "in the service of Pakistan", that is and officer of the Government. Our attention has been drawn by Mr. Islam to Article 242 of the Constitution in which it is defined that the Governor means a Governor of a Province, It does not say a person in the service of Pakistan or an officer of the Government. Con fronted with this situation, Mr. Chowdhury argues that the impugned order has been made by the Chief Secretary and not by the Governor. In order to succeed on the question of limi tation, Mr. Chowdhury has argued that the order of retirement has been passed by the Chief Secretary without realising that if the Chief Secretary passed the order, it would be declared illegal on the ground that the plaintiff was appointed to the Bengal Civil Service by the Governor and as such his services cannot be terminated by an authority subordinate to the Governor. At any rate, the contention of Mr. Chowdhury that the order was made by the Chief Secretary is not a correct appreciation of the impugned order dated 29‑5‑

59. The impugned order has, in fact, been made by the Governor and not by the Chief Secretary; for the order reads as follows: "In exercise of the powers conferred on him by sub‑clause (b) of clause (5) of Article 6 of the Laws (Continuance in Force) 1958, the Governor, has been pleased to order retirement of Mr. Naziruddin Ahmed, Deputy Magistrate and Deputy Collector now employed as officer on special duty, Home Department in charge of the East Pakistan Government Press, Tejgaon, Dacca, from service with effect from 1st June 1959 for inefficiency. By order of the Governor, (Sd.) M. Azfar, Chief Secretary to the Governor, East Pakistan." I have already quoted the order of the Governor, dated 21‑5‑59 accepting the recommendation of the Screening Committee. It is clear that the order just quoted was issued on the basis of the said order dated 21‑5‑

59. The order itself says "Governor has been pleased to order retirement of Mr. Naziruddin Ahmed." The order is made by order of the Governor. The Supreme Court held in the case of F. A. Khan v. The Government of Pakistan (P L D 1964 S C 520), that the Article applicable to a declaratory suit is Article 120 of the Limitation Act. It has also been held in the case of Pakistan v. Md. Abdul Kuddus (P L D 1961 Dacca 616), by a Division Bench of this Court consisting of Chowdhury, C. J. and M. R. Khan, J. that‑ "Apparently it does not come within this Article 14 of the Limitation Act, nor Mr. Mesbahuddin has been able to point out any other Article applicable to the case. in such circum stances, the only Article applicable in the case is the residuary Article 120 of the Limitation Act which provides that for a suit for which no period of limitation is provided elsewhere: in the schedule, the period of limitation is six years when the right to sue accrues." It is not contended before us that the suit was filed beyond six years from the time when the right to sue accrued to the plaintiff. We are in respectful agreement with the decision referred to above and we are of opinion that the point of limitation as raised by the Assistant Government Pleader is of no substance. Before we part with this judgment, we must say that the written‑statements, specially those on behalf of the Govern ment should be filed with a full sense of responsibility and expected care. In paragraph 5 of the written statement, it has been stated: "That the statement contained in paragraphs 1 and 2 o r the plaint are more or less correct but the statement contained in paragraph 3 of the plaint that the plaintiff discharged hi duties faithfully, properly and/or to the satisfaction of the Government enjoying reputation of honesty and efficiency are not true or correct." In the entire character roll of the plaintiff nobody has however, questioned his honesty. The Government Pleader in the Trial Court in drafting the written‑statement should not have included the word `honesty' therein. The irresponsible deponent of the said written statement, proceeded further to say. "It is also incorrect to say that the plaintiff left the reputation of honesty . . . ." Mr. Chowdhury, learned Assistant Government Pleader failed to show an iota of evidence from the record to justify such a contention. On a reference to the record of the case, only to mention of few of the remarks, we must notice that on 2‑I1‑48, the Commissioner of Rajshahi Division remarked "An officer of outstanding ability and integrity. "Mr. D. K. power himself on 4‑6‑52, observed "His integrity and moral character are unquestioned". On 14‑4‑51, Mr. M. A. Majid, District Magistrate, Mymensingh, observed: "An Officer of integrity and character." Mr. S. M. Hasan as Commissioner of Chittagong Division remarked on 25‑5‑59 "Integrity unim peachable" on 23‑9‑57, the Commissioner of Rajshahi Division remarked "Integrity beyond doubt." We have referred to the character roll only for the purpose of showing how irresponsibly a written‑statement affecting the reputation of the plaintiff as a citizen of the country was drafted Reputation of honesty is a very charished possession of a person. The aforesaid statement is absolutely incorrect and contrary to Government record itself. It is regrettable that the trial Court totally failed to notice it and draw appropriate pro ceeding against the deponent. We would, however, at this belated stage leave the matter with a warning that makers of such incorrect and irresponsible statements will be severely dealt with. The Government Pleader in the trial Court who filed the written‑statement has also revealed negligence for non -examination of the record before filing a written‑statement in Court. After having considered all the points raised by the learned Advocates for the appellant and respondent as noticed above, we have reached the irresistible conclusion that the impugned order in appeal is allowed with costs throughout. The judgment and decree of the trial Court are set aside and the suit is decreed and it is declared that the order of the compulsory retirement of the plaintiff by the Government of East Pakistan vide Notifica tion No. 2742‑GA., dated 29th May 1959, and subsequent order of modification under Notification No. 6013/GA, dated 7th October 1959, are illegal and inoperative and that the applicant was still in service on the date of filing of the suit. . A. H. KHAN, J.‑I agree. A.B./S.A.H. Appeal allowed.