P L D 1966 Supreme Court 788 (PLP)

CORNELIUS, C. J.‑By its judgment under appeal, which is dated the 12th February 1964, a Division Bench of the High Court purporting to act under Article 98 of the Constitution quashed an order made on the 19th December, 1959 by the Collector of Central Excise and Land Customs at Chittagong dismissing the respondent Waliullah Chowdhury, who was described in the order as Deputy Superintendent of Central Excise and Land Customs. The writ petition was filed in the High Court on the 7th February 1963. The intervening period was spent in an appeal to the Central Board of Revenue, which was rejected after remaining pending for over two years, on the 19th `' September 1962. In the circumstances, it cannot be said that there was inordinate delay in moving the writ petition. There were other delays in the administrative department besides that indicated above. The ground for dismissal was that on the 25th August 1952, Waliullah Chowdhury was convicted of an offence under section 384, P. P. C., by a Magistrate and the conviction was subsequently upheld in appeal by a Sessions Court and in revision by the High Court. It was not until the 17th February 1959, that he was asked by notice to show cause why he should not be dismissed from service. This notice was issued by an Under‑Secretary in the Ministry of Finance, and was evidently based on belief that the power of dismissal vested in the Central Government as by an order of the 20th April 1956, the status of Deputy Superintendents in the Central Excise and Land Customs was raised to Class II non‑gazetted. As will presently be seen, it is a question whether Waliullah Chaudhary was ever a substantive Deputy Superintendent. However, by a delegation dated the 24th April 1959, the Central Government empowered Collectors both to appoint as well as to punish Deputy Superintendents, and consequently further proceedings upon the show‑cause notice ware conducted before the Collector until their finalisation in the order of dismissal dated the 19th December 1959. This order sets out that the show‑cause notice of the 17th February 1959, had been communicated to Waliullah Chowdhury on the 12th March 1959, but he had deliberately failed to submit any statement in his defence despite ample opportunity and a number of reminders. Thereupon, the case had been decided ex parte. The case presented in the High Court was founded on the basic assumption that with effect from the 20th April 1956, when Deputy Superintendents were raised to Class II status, Waliullah Chowdhury became substantively a Class II officer, without further enquiry into the soundness of this claim, the High Court proceeded to consider whether on the date of the dismissal order, the Collector had the power to dismiss a Deputy Superintendent whose appointment dated prior to the year 1956. The learned judges found that by an order of the year 1954, Collectors had been empowered to appoint and dismiss Deputy Superintendents, but this was at a time when Deputy Superintendents were in Class III. When in 1956, they were raised to Class II, power of appointment and dismissal became vested exclusively in the Central Government by virtue of the Civil Services (Classification, Control and Appeal) Rules of which rule 34 is relevant. They proceeded to hold that the delegation of April 1959 by the Central Government of the power of dismissal of Deputy Superintendents did not extend to the dismissal of Deputy Superintendents, who had been appointed as such prior to April 1959, because in their opinion, the delegation had no retrospective application. Treating Waliullah Chowdhury as a Deputy Superintendent, who had been appointed as such by the Central Government, the learned judges held that the order of the Collector dismissing him from that post was ultra vires, and they accordingly quashed it. Leave to appeal against this order was granted for consideration of two questions, namely: (1) that in fact, Waliullah Chowdhury at the time of his dismissal was only officiating as a Class II officer and his sub stantive rank was that of Inspector of Customs, which was a Class III post; and (2) that in any event the Collector at the date of order of dismissal was competent even to dismiss a Class II officer. We have heard the Deputy Attorney‑General in support of the appeal and Mr. K. Hussain, who gave a reply on behalf of Waliullah Chowdhury. The order of the High Court is, in our opinion, liable to revision on the ground that it has not taken into account the facts apparent on the record concerning the appointment of Waliullah Chowdhury to the post of Deputy Superintendent. The only relevant order placed on the record is one of August 1949, when along with 15 other substantive Inspectors of Customs, he was "promoted to officiate as temporary Deputy Superintendent of Central Excise." Mr. K. Hossain admits that no order was subsequently made, which could have the effect of improving in relation to Waliullah Chowdhury, the status which he gained by virtue of this order. He could only urge that later a number of posts of Deputy Superintendents were made permanent, but this could only mean that an equivalent number of persons, who had been holding those posts temporarily could then have been confirmed in that status. But in order to sustain a finding that Waliullah Chowdhury was confirmed in such post, it would be necessary to place before the Court a specific order made by competent authority to that effect. Waliullah Chowdhury in his petition merely said that in 1956, he "was raised to the status of Class II officer from that of Class III officer for his very good record of service." As the case developed subsequently, it became apparent that his reliance was only on the general order referred to already whereby on the 20th April 1956, the status of Deputy Superintendents was raised to Class Ii The mere making of such an order by the Central Government would not have the effect of improving the position of persons who were temporarily officiating as Deputy Superintendents to that of confirmed Deputy Superintendents. Moreover, the claim of a "very good record of service" was obviously male by Waliufah Chowdhury disingenuously for, as has been seen, he had been convicted for a criminal offence in 1952, and thereafter he was engaged in pursuing an appeal before the Sessions Court and a further revision in the High Court. A person in that condition can hardly claim to have a "very good record of service". It is thus evident that Waliullah Chowdhury was pursuing his case for treatment as a substantive Deputy Superintendent without having any proof whatsoever in his possession of appointment as such. The power of appointment of Deputy Superintendents even as Class III officers was still vested in the Central Government until a date in 1949, and when they were raised to Class II in 1956, that power was re‑vested in the Central Government. If in 1956 or on any date subsequent to that and prior to the 24th April 1959, Waliullah Chowdhury was given a permanent appointment as Deputy Superintendent, that could only have been by a written order to that effect emanating from the Central Government. Mr. K. Hossain admits that there is no such order in existence. Consequently, the conclusion must be that from August 1949 up to the date of his dismissal in December 1959, Waliullah Chowdhury continued to be a person who had been promoted to officiate temporarily as a Deputy Superintendent, but remained throughout the substantive holder of a Class III appointment as an Inspector. There is no question but that it was within the power of Collector to promoted an Inspector to be a Deputy Superintendent in an officiating capacity. When, however, an official is placed on charges involving possible punishment of dismissal, it is from the substantive post which lie holds that he is so dismissed in proper form, As for reversion from the officiating post to his substantive post, that is a matter of discretion with the competent officer, which is not controllable under the Constitutional safeguards. Consequently, the order of dismissal do against Waliullah Chowdhury, although it describe him as Deputy Superintendent must be understood, as an order of formal dismissal from his substantive appointment as Inspector:, the necessary termination of iris officiating appointment as Deputy Superintendent being deemed to be included within the order. On this view of the matter, there is no doubt whatsoever that the order of the Collector of Customs dismissing Waliullah Chowddhury from Government service was competent, since his permanent appointment, which he could hold under the consti tutional safeguards was that of an Inspector in Class III. The judgment o: the High Court proceeds on the unfounded assumption that Waliullah Chowdhury has been confirmed Deputy Superintendent in 1956, for coming to the conclusion that the order of dismissal, by the Collector was made without lawful authority; The learned Judges appear to have thought that, on the strength of certain circumstances, the lack of a positive order of appointment as Deputy Superintendent by the Central Government could be made good by a process of deeming. The terms of Article 181 (1) of the Constitution of 1956, on which the High Court has relied for quashing the order of dismissals, clearly exclude such an inference the assumption under laying the clearly is that all appointments and dismissal shall be made by written orders of officers whose authority to make them appears visibly from their designations. "Art. 181.‑(1) No person who is a member of a civil service of the Federation or of a Province, or of an All Pakistan Service, or holds a civil post in connection with the affairs of the Federation, or of a Province, shall be dismissed or removed from service, or reduced in rank, by an authority subordinate to that by which he was appointed." The dismissal is to be by an authority, and equally the appoint ment is to be by an authority, and in each case, by a specific order, and that is it accordance with the settled practice of the British Government in India for over a hundred years which has been continued in Pakistan since the Partition. The constitutional provision does not contemplate either deemed dismissals or deemed appointments. in the total absence of expression. Moreover, it is clear that in point of fact, Waliullah Chowdhury was dismissed by an authority, namely the Collector, which was not subordinate to the authority by which he was J appointed to his substantive post, and the requirement of Article 1.81: (1) has therefore been met. Consequently, the order of the High Court cannot be maintained and accordingly allow this appeal and setting aside the order of the High court, direct that the writ issued by the High Court on Waliullaii Chowdury's petition be re‑called, and that petition be dismissed. We make no order as to costs. A. H. Appeal allowed.