P L D 1959 Supreme Court (Pak (PLP)

CORNELIUS, J.‑This appeal is brought before the Court by the Province of East Pakistan on the strength of a certificate under Article 158 of the late Constitution granted by the Dacca High Court, that the case involves interpretation of Article 181 of the said Constitution. The order against which it is sought to appeal is a writ of mandamus issued by the Dacca High Court to the Provincial Government, canceling an order made by the Judicial Secretary of that Government on the 22nd October 1957, upon the appeal of one Maulvi Abdul Marian, a stenographer in a Subordinate Judge's Court at Tippera. The order was worded as below:‑ "The appeal is allowed and the order of the District Judge appointing Maulvi Abdu Mia as District Judge's Sheristedar is set aside. The District Judge will appoint a suitable man as Sheristedar after considering seniority and efficiency of officers" The respondent to this appeal Maulvi Abdu Mia, was working as stenographer in the District Judge's office when on the 7th May 1956, he was appointed by the District Judge to be Sheristedar of his Court, substantively but on one year's proba tion. Under the rules applicable to the service to which the post relates, and appeal against this order could have been filed by a rival claimant within six months on the making of the order and the rules also provide that an appeal which is preferred snore than six months after the date on which the appellant was informed of the order appealed against" may be withheld by the authority which makes the order, if "no reasonable cause is shown for delay". Maulvi Abdul Marian filed an appeal against the appointment of Abdu Mia on the 9th May 1957. By order dated the 29th June 1957, the District Judge of Tippera withheld his appeal under the above‑mentioned provision in r. 18 of the Bengal Subordinate Services (Discipline and Appeal) Rules, 1936, enabling him in that behalf. On the same day, viz., 29th June 1957, the District Judge confirmed Abdu Mia as Sheristedar of his Court with effect from the 16th May 1957. The effect of withholding of an appeal in these circumstances is not equivalent to dismissal of such an appeal. As has been seen, limitation commences from the date of the knowledge of the appellant, and is liable to be extended on the ground of reasonable cause. Moreover, r. 18 provides that every appellant whose appeal is withheld shall be informed of the fact and the reasons for it. Rule 19 lays down that no appeal shall lie against the withholding of an appeal by a competent authority, but under r. 20 such an authority is required to forward quarterly to the appellate authority, which in this case was the Judicial Secretary, a list of appeals withheld under r. 18 with the reasons for withholding them. Power is reserved to the appellate authority to interfere in relation to the subject- matter of any appeal which has been withheld, by r. 21 which reads as follows: ‑ "An appellate authority may call for the records of any appeal withheld by an authority subordinate to it which under these rules may be made to it and may pass such orders thereon as it considers fit" The fact of withholding of Maulvi Abdul Marian's appeal having come to the notice of the Judicial Secretary, it may be under r. 20, or otherwise, that appeal was entertained, and after further enquiry, an order was made by the Judicial Secretary in the terms already reproduced. Against that order Maulvi Abdu Mia moved the Dacca High Court by an application dated the 23rd November 1957, and as stated above, the writ as prayed was issued by the High Court on the 13th January 1958. The grounds upon which the High Court thought that interference with the Judicial Secretary's order was necessary were briefly as follows. The authority of the Judicial Secretary must be exercised in accordance with the Rules and law. Abdu Mia had already been confirmed in the post of Sheristedar and was no longer on probation when the "Judicial Secretary thought of intervening in the matter". The learned Judges thought that, at that stage, "the Judicial Secretary could not have, in the exercise of his power of revision, removed" Abdu Mia from the post of' Sheristedar. They further thought that the contention that the order of reversion of Abdu Mia was "quite illegal and without jurisdiction", possessed "every force". They thought that all sense of security in service would be destroyed if the Government were allowed power in revision to call for the files of every confirmed civil servant simply because there was once an appeal against his appointment, and "to decide his fate arbitrarily on subjective consideration". The check against such action lay, in the opinion of the High Court, in Article 181 of the late constitution which provides that the person shall be dismissed or reduced in rank without being given a reasonable opportunity of showing cause against action of this nature as proposed against him. They found that the post of Sheristedar was higher in rank than that of stenographer and that consequently Abdu Mia before he could be reduced from the post of Sheristedar to that of stenographer, was entitled to an opportunity to show cause against such reduction, which oppor tunity had not been allowed to him, and therefore he was entitled to the writ prayed for. It has been pointed out by the learned Advocate‑General of East Pakistan appearing for the appellants, that the order of the Judicial Secretary, while it had the effect of depriving Abdu Mia of the appointment which had been given to him by the District Judge, did not purport to fill the vacancy by the appoint ment of any other person, but merely required the District Judge to make a fresh appointment "after considering seniority and efficiency of Officers". Appointment to the post of Sheristedar is to be made by selection on the basis of seniority‑cum‑efficiency and the fault which the Judicial Secretary as appellate authority found with the order of the District Judge was that his selection of Abdu Mia was not visibly and explicitly based upon a comparison of the merits of the various claimants, on that principle. There was nothing to prevent Abdu Mia from being appointed again in compliance with the Judicial Secretary's order, provided that after the proper tests had been applied, the District Judge by his order should find that upon comparison of his merits with those of the other claimants to the post, he was the best entitled to appointment on the basis of seniority cum‑efficiency. Moreover, the order of the Judicial Secretary was not an order passed in revision. For revision, there is a special rule, vie. r. 22 of the Rules mentioned above which declares that. "nothing in these rules shall preclude the Local Government from revising, whether on its own motion or otherwise, any order passed by an authority subordinate to it" Under the said Rules the order of the Judicial Secretary was clearly an appellate order made under r. 21 which applies expressly to appeals which have been withheld by a subordinate authority. Therefore, it was argued, the order of the Judicial Secretary was made in the exercise of powers expressly vested in him. It was made after obtaining a report from the District Judge, although without reference to Abdu Mia who should have had' no ground for believing that by the mere withholding of Maulvi Abdul Marian's appeal under r. 18, his confirmation as Sheristedar had become safe from interference by any higher authority under the Rules. Mere withholding of an appeal could not in any circumstances be regarded as, in itself, a decision of the appeal, where the authority empowered to with hold is merely a receiving agency, having no power to decide the appeals. In this case, the District Judge on the same day as he withheld the appeal also confirmed Abdu Mia as Sheristedar. The learned Judges in the High Court had thought that by the order of confirmation Abdu Mia acquired a permanent right to the post of Sheristedar which could not be taken away from him otherwise than under Article 181 of the Constitution. This view was not correct, for at the time when the District Judge made the order of confirmation, he must be presumed to have been aware that his order of the same date withholding the appeal of a rival claimant must be communicated to the Judicial Secretary under the provisions of r. 20, and that the Judicial Secretary could in his discretion interfere with the order appealed against, viz., the order of the 7th May 1956. The conferment by the District Judge upon Abdu Mia of a higher rank by means of the order of confirmation dated the 29th June 1956, must therefore be regarded as being subject to any order which might be made upon that appeal by the Judicial Secretary. The subsequent interference with that order by the Judicial Secretary cannot therefore be regarded as a reduction in rank within the meaning of Article 181 of the late Constitution. The reply to this argument was mere repetition of the finding of the High Court that the order of confirmation of the 29th June 1957, gave to Abdu Mia a permanent status of which he could not be deprived without being given the opportunity provided by Article 181 to show cause against such reduction. In our opinion, the learned Judges of the High Court, in issuing the writ here under appeal, did not place the correct interpretation either upon the order of the District Judge dated the 29th June 1957, in favour of Abdu Mia, or upon the Judicial Secretary's appellate order setting aside that order. We consider that the Judicial Secretary's order is not to be construed merely as an' order reverting Abdu Mia, but as an order setting aside the District Judge's order on the ground that it had not been made in compliance with the relevant Rules and that a fresh order should now be made in accordance with such Rules. There was nothing in the order which could preclude the selection of Abdu Mia as we have already indicated. The provisions of Article 181 of the late Constitution are not attracted by such an order. Moreover, in construing the District Judge's order of the 29th June 1957 confirming Abdu Mia as his Sheristedar, as if it were an order giving absolute and permanent right to Abdu Mia to occupy the post of Sheristedar, in terms of that order, the learned Judges have overlooked the fact that under the relevant Rules the very fact of the institution of Maulvi Abdul Manan's appeal, which the District Judge withheld by an order of the same date had the effect of rendering the order of con firmation subject to any order which may later be made upon Maulvi Abdul Marian's appeal. On that consideration alone, the appellate order setting aside the District Judge's order cannot be regarded as an interference with any appointment permanently held by Abdu Mia, and again the case would fall outside the scope of Article 181 aforesaid. This case affords an instance of the great importance which attaches, in cases where the validity of orders made by Govern ments or official authorities in service matters is called in question, to the need for very careful examination of the order in all its aspects before the very serious step is taken of setting it aside. In this case, an order of the Judicial Secretary made nearly two years ago, which was made with the object of ensuring that a matter of promotion within a certain service should be regulated as intended by the rules, has been held in abeyance. The substitute arrangements being tentative, seriously impair the development of claims to promotion among the staff in general, by meritorious service in the posts to which they are rightfully entitled. The general efficiency of the entire staff is adversely affected by the continuation of a state of uncertainty, and by the retention of certain persons in posts to which their claims are doubtful, for a protracted period. Had the order of the Judicial Secretary been allowed to be implemented a satisfactory situation, conducive to contented and efficient operation of the staff, might have been reached within a fortnight of that order. It is helpful to bear in mind in such cases that there is a presumption that official acts have been regularly performed, i.e., with due regard to the relevant formalities and within the relevant powers. A conclusion of excess and irregularity is therefore not to be lightly reached. And in matters affecting the public service, results deleterious to the public interest can readily follow if questions of application of service rules are approached as if the duty is merely to assert rights vested in the public servant who is the complainant. The paramount purpose and principle in these matters, applicable to the complainant as to all his colleagues and to the section of the administration in which they serve, is that the integrity and efficiency of that section shall be main tained, in the interests of the public service and of the public generally. The due dispensation of justice in respect of claim of an individual public servant is possible only if the question of his private right is approached from the point of view of the larger public interest of which such private right forms only a small part. For these reasons, we allow this appeal and recall the writ issued against the appellant‑Government. In the circumstances of the case, we make no order as to costs. A. H. Appeal allowed.