P L D 1967 Dacca 708 (PLP)

SALAHUDDIN, J.‑This rule nisi was issued upon Respondent No. 1, the Chairman and Trustees of the Port Trust, Chittagong, to show cause why the office Order No. 100 dated the 9th of November 1962 passed by respondent No. 1 (Annexure `D' to the Petition) purporting to post the petitioner as Secretary of the Port Trust, Chittagong, should not be declared to be without lawful authority and of no legal effect. On the prayer of respondent No. 2, Gholam Kibria, he was added as respondent No. 2 to the petition by an order of this Court dated the 9th of August 1965. The case of the petitioner may briefly be stated thus: Having been the second senior most Officer in the Traffic Department of the Chittagong Port Trust, he was promoted iii absentia, while he was on deputation to the Pakistan Tea Association, as Traffic Manager in the Junior Administrative Grade in the Traffic Department of the said Trust. The promotion appears to have been done in pursuance of Resolution No. 103 of the Trustees dated the 17th of October 1962. The petitioner was subsequently confirmed provisionally as a Traffic Manager. Nevertheless, by the impugned order dated the 9th of November 1962, the petitioner was appointed to officiate as Secretary in the General Department and the added respondent No. 2, Mr. Gholam Kibria, who had already been appointed as a Traffic Manager, was directed to continue as such. The impugned order put the petitioner on a fixed salary of Rs. 1,250 plus a personal allowance of Rs. 150 making up a total sum of Rs, 1,400 per month which is equivalent to the salary of Traffic Manager. It is the petitioner's case that he joined the post of Secretary under protest and intimated this fact to the Chairman of the Trust by the former's letter dated the 10th of November 1962 (Annexure `E' to the petition). The petitioner has stated that he continued to work as Secretary on the assurance that he will be given his proper rank as soon as an additional senior post was created in the Department. The petitioner's grievance is that, although he is senior to respondent No. 2 Mr. Kibria and has been appointed and provisionally confirmed as Traffic Manager, the latter actually holds the post of Traffic Manager and is being treated as the substantive holder of the post. It is complained that the impugned order amounts to a reduction of the petitioner in rank without affording him any reasonable opportunity to show cause against such reduction and therefore, there has been a contravention of the provisions of Article 177 (b) of the Constitution. The post of Secretary, which the petitioner has held on protest on the assurance that it was a temporary arrangement, is stated to be very lower in rank and status and in other respects and also carries a lower pay than those of the Traffic Manager. The petitioner states that, as he was all along given to understand that he would be appointed to an appropriate post, he did not approach this Court earlier for relief. Besides, a situation of Emergency was created due to the strike by the Port employees and the petitioner could not leave his station earlier to seek relief. An affidavit‑in‑opposition on behalf of Respondent No. 1 sworn by a Deputy Secretary to the Trustees of the Port of Chittagong has been filed. In this Affidavit the maintainability of the petitioner's application as well as the merits of this case have been challenged. It has been submitted that the application is liable to be rejected on the ground of inordinate delay and also on the ground that the petitioner has not availed of the remedy of appeal provided in section 36 (2) of the Chittagong Port Act (Bengal Act V of 1914). It is also stated that the Central Government, being the controlling and supervising authority under the said Act whose approval was necessary for all appointments to posts the maximum scale of which is Rs. 1,100 or more, is a necessary party to this petition and should have been added as such. Respondent No. 1 has admitted and accepted the lien of the petitioner to his post in the Port Trust and appears to have acted on it without any challenge from any quarter at least up to the passing of the impugned order. It is stated that Resolution No. 103 of the Trustees dated the 17th of October 1962 promoting the petitioner as Traffic Manager but posting him as Secretary was subject to approval of the Central Government but this resolution was never approved by the Central Government. On the contrary, it is asserted that the Central Government approved the appointment of the petitioner as Secretary. It is asserted that the letter of the Government of Pakistan dated the 6th of October 1964 (Annexure 'G' to the Petition) confirming the petitioner provisionally as Traffic Manager is the result of direct corres?pondence between the petitioner and the Government and is not based upon any resolution of the Trustees which was sent to the Central Government for approval. The respondent has, therefore, declined to accept Annexure 'G' as a valid document. The respondent has also denied that it gave any assurance to the petitioner as regards his appointment to an appropriate senior post as soon as it was created. The respondent has also denied that the posting of the petitioner as Secretary amounts to his reduction in rank. It is stated that respondent No. 2, Mr. Kibria, was promoted as Traffic Manager on the 18th May 1962 and has since been working as such. It is further stated that the matter of confirmation of the offices of the Traffic Department is still under consideration and a seniority list is under preparation. Respondent No. 2 has also filed an affidavit which is sub?sequently the same as the affidavit of respondent No.

1. He has stated that the Traffic Manager and Secretary are both Heads of their respective Departments and that the one is not lower in rank than the other. It is asserted that this fact is clear from the petitioner's own statements in Annexure I to the petition wherein he has stated thus:‑ "I was, however, seconded to work as secretary maintaining my status, pay and Seniority in the Junior Administrative rank even though the post of Secretary carries lesser scale of pay. But strangely enough Mr. Kibria was allowed to occupy the post of Traffic Manager while I was transferred to another department with protection of pay and rank which I accepted in good faith and in consideration of the understanding given to me that this arrangement is purely temporary . . . . ." (Vide Annexure I page 39 to the petition). From the facts stated above, there can hardly be any doubt that this application is by a person in the service of Pakistan in respect of his terms and conditions of service which are not' specified in the Constitution and is therefore barred under Article 98, clause (3) (b), of the Constitution. A perusal of the provisions of the Chittagong Port Act unmistakeably shows that the‑Central Government have real and substantial control over the Board of Trustees and its adminis?tration of the Port of Chittagong and this is clear, inter alia from section 95 of the Act which says "All acts and proceedings of the Trustees shall be subject to the control of the Central Government and the Central Government may cancel, suspend or modify any such acts or proceedings." Article 242 of the Constitution defines "Service of Pakistan" to mean inter alia "any service, post or office in connection with the affairs of the Centre or of a province". Item 18 of the Third Schedule of the Constitution is "Declaration and delimitation of major ports and the Constitution and powers of port authorities in such ports." The Chittagong Port Act contains subject‑matters of the latter description. Reading the aforesaid provisions together, there is no doubt about the fact that the petitioner is employed as a servant in connection with the affairs of the Centre and is therefore a person in the service of Pakistan within the meaning of Article 98 (3) (b), of the Constitution. Mr. Hamidul Huq Choudhury appearing on behalf of the petitioner has adroitly contended that the petitioner's application under Article 98 is not in respect of his terms and conditions of service but is purely directed towards the right of respondent No. 1 to pass the impugned order. This contention does not conceal the fact that the aim and object of the petition is to obtain relief in respect of the terms and conditions of service of the petitioner. The gist of the petitioner's case is that under the terms and conditions of service not only he has a valid lien on his post under the Chittagong Port Trust but also he has been legally and validly appointed as a Traffic Manager and therefore he is entitled to get that post including its salary and all the amenities attached to that post. The petitioner makes this claim on the basis of certain resolution passed by the Trustees of the Board of Chittagong which has been alleged to have been approved by the Central Government as required under the Chittagong Port Act. On the contrary, both the respondents have contended that the very resolution, namely, Resolution No. 103 dated the 17th of October 1962, upon which the petitioner bases his claim, although passed by the Trustees, was never forwarded to the Central Government, and the Central Government never gave its approval to the resolution as required under the Act. The facts and the contentions clearly disclose that there is a dispute in respect of the terms and conditions of service of the petitioner. That being so, it is clearly barred under the provisions of Article 98, clause (3) (b), of the Constitution. Apart from this fact, there are certain facts of a highly controversial in nature. For example, as we have already indicated, the very basis of the petitioner's claim, namely, the aforesaid Resolution No. 103, is seriously disputed. On the one band, it is claimed that the resolution was validly passed and transmitted to the Central Government upon which the Central , Government issued their letter, viz. Annexure 'G' to the petitioner directing that the petitioner should be deemed to have been promoted as officiating Traffic Manager with effect from the 18th of May 1962 and provisionally confirmed as Traffic Manager as subject to certain conditions. On the other hand, the respondents assert that this resolution, although passed by the Trustees, was by another resolution put in abeyance until the return of the Chairman of the Trust, who at the relevant time had been away from‑the Country and that the resolution was never forwarded to the Central Government and therefore the Central Government could not legally issue any such letter as Annexure `G' to the petition. It is asserted on behalf of the respondents that, as a matter of fact, respondent No. 1 was surprised to receive the said letter, (Annexure 'G' to the petition) and on receipt of it the Chairman of the Board of Trustees wrote a letter to Commander, L. Jackson, P. N. Director of Ports and Shipping, Ministry of Communication, Government of Pakistan, dated the 27th of March 1965 asking for a copy of the proceedings of the Board's meeting held on the 19th of September 1963 along with the observations dated the 28th of September 1963, which was forwarded under the Board's letter dated the 7th of October 1963 and also for a copy of the Board's forwarding letter. In reply the Director of Ports and Shipping in his letter dated the 26th April 1965 wrote to the Chairman of the Port Trust that the aforesaid papers had been destroyed after about a year of their receipt and so they could not be supplied. This is undoubtedly a disputed fact of a nature which cannot conveniently be disposed) of in a summary proceeding like the one before us. The respondents have also challenged the maintainability of this application on two other grounds, namely, (1) that the petitioner had an adequate remedy in the shape of an appeal under section 36, subsection (2) of the Act but he failed to avail D of it, and (2) that the petition should be dismissed in limine on account of inordinate delay in making it. As regards the first ground it has not been challenged before us that no appeal is provided under the Act. As a matter of fact, in such cases, an appeal is provided in section 36(2) of the Act which runs thus: "36. (1) .????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? . (2) In the case of an order passed by a Head of the Department or other officer in exercise of the power delegated to him under subsection (1) an appeal shall lie to the Chairman and in the case of any other order under that subsection to the Central Government and the orders of the Chairman or the Central Government, as the case may be, in such appeal shall be final. (3) ?????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? ." Admittedly, the petitioner never appealed to the Central Government. As regards the second ground, namely, delay, the impugned order was passed as far back as the 9th of November 1962 and the petition was moved on the 14th of June 1965. Prima facie there is indeed an inordinate delay in making the application. The explanation given by the petitioner, namely, that by had been lulled into a sense of security by the assurance given by the Authorities that his appointment was a temporary arrangement and he would be appointed to an appropriate post as soon as the post was created, and that due to a situation of emergency creation by a strike of the Port employees, particulars of which have not been stated, the petitioner was unable to approach this Court for redress of his grievances earlier, does not appeal to us. It may further be stated that in course of the hearing of the case a letter from Mr. M. I. Rehmani, Director of Ports, Government of Pakistan, Karachi addressed to the Chairman, Chittagong Port Trust, Chittagong being No. KP‑4(29)/65 dated the 5th May 1966, was produced before us which shows that the present Secretary, namely, the petitioner, and the Traffic Manager, have now been put on par so far as their salary is concerned, namely, both have the following scale of pay Rs. 1,600‑50‑1,

700. This takes away the sting (sic) from the petitioner's attack on the impugned order. For the reasons stated above, pie discharge the rule but make no order as to costs. K. B. A. Rule discharged.