Union Of India v. Hafiz Abdus Shakur — 1960 DIGILAW 125 (PAT)

Judgment Raj Kishore Prasad, J. 1. This appeal, by the defendants The Union of India representing Post and Telegraph Department -- is from a judgment of reversal of the learned Additional Subordinate Judge, Patna. The learned Judge of the Court of appeal below decreed the plaintiffs suit in part and granted the plaintiff the declaration "that he has a right to rejoin his original post of a Postal, Clerk under the Post and Telegraph Department of the Government of India, which he held prior to his provisional option for Pakistan in 1947." The learned Judge, however, held that "the plaintiff cannot be deemed to have continued in service as a clerk in the Post and Telegraph Department of the Indian Union", and, further observed that "since bis right to be absorbed as a clerk in the Post and Telegraph Department of the Indian Union is declared, it is for the Department to decide what terms and conditions of service will be applicable on the plaintiffs rejoining his post." 2. Against the above judgment and decree of the court of appeal below, both the parties have come up to this Court. The defendant has come up in appeal against the judgment of the court of appeal below holding that the plaintiff revised his option for India Final in his declaration sent under registered cover dated the 16th January, 1948 (Ext. 2) within six months from the date of his original declaration electing to serve in Pakistan Provisionally in 1947. 3. The plaintiff also has preferred a cross-objection against the latter part of the judgment of the court of appeal below holding that the plaintiff cannot deemed to have continued in service as a clerk in the Post and Telegraph Department of the Government of India, and that the Department concerned will be applicable to the plaintiff on his rejoining his post. 4. In order to appreciate the case of the parties, the material facts for the decision of the appeal are these: 5. The plaintiff was admittedly a permanent Postal Clerk at Bhagalpur City in the Post and Telegraph Department of the Government of India in Bhagalpur Postal Division before 1947. At the time of partition of India in 1947, the Postal employees of the Government of India were given the right to opt for Pakistan either provisionally or finally. The plaintiff was admittedly a permanent Postal Clerk at Bhagalpur City in the Post and Telegraph Department of the Government of India in Bhagalpur Postal Division before 1947. At the time of partition of India in 1947, the Postal employees of the Government of India were given the right to opt for Pakistan either provisionally or finally. In the case of provisional option the optee had a right to revise his option for India Final or Pakistan Final on or before the 14th February, 1948, as will appear from the Memorandum (Ext. B/8) from the Director General, Posts and Telegraphs, New Delhi, to the Post Master General, Bihar and Orissa, and others, wherein the relevant decision of the Partition Council is mentioned in paragraph 1(b) of the said Memorandum, which is as below. * * * * (b) A person who has given a "provisional option should "be permitted to change his option only once and that before the 15th February, 1948, i.e. within six months of the transfer of power. The option so exercised shall be treated as "final". All provisional options not altered before the 15th February 1948 will be deemed as "final" on that day," 6. The plaintiffs case was that he elected to serve in Pakistan provisionally and gave a declaration accordingly opting provisionally for Pakistan, and was, thereafter, relieved on the 19th September. 1947; on being relieved from India, he joined as a postal clerk at Rajshahi in the Rajshahi Division of East Pakistan; that subsequently he revised his option and sent his declaration, revising his option for India Final, under a registered letter No. 167 dated the 16th January, 1948 from Tahirpur post office in Rajshahi Division addressed to the Superintendent of Post Offices, Rajshahi Division, in East Pakistan; that the Post Master General of East Bengal Circle, Dacca, sent two letters, one on the 25th August, 1953 (Ext. B-3) and another to the Post Master General, Bihar Circle, Patna, enquiring whether the plaintiff had opted for Pakistan provisionally or finally in order to dispose of his registered letter, referred to before, and relieve him from Pakistan; that as no reply was given, the plaintiff was not relieved, and, therefore, he went on leave and finally left Pakistan on the 25th November, 1950 in order to move the authorities of the Government of India, to allow him to rejoin his former post; and that, meanwhile, the authorities of Pakistan Government intimated that as the plaintiff had absented himself from duty continuously for a period of five years from December 1959 (sic), he had ceased to be in the service of Pakistan Government. 7. On the above allegations, the plaintiff brought the suit claiming, inter alia, the following relief, in paragraph 16(i) of his plaint: "That it may be declared that the right of the plaintiff to rejoin his original post at Bhagalpur in the Bhagalpur Division of the Post and Telegraph Department under the defendant remains unaffected and the plaintiff should be deemed to have continued in service as a clerk in the Post and Telegraph Department of the Indian Union." 8. The suit was contested by the defendant. The main defence was; (1) that the plaintiff had opted for Pakistan finally, although the original declaration given by the plaintiff was not available in the office of the Post Master General, Bihar Circle, and (2) that no application of the plaintiff revising his option for India Final, as alleged by him, was available in the office of the Post Master General, East Bengal Circle, Dacca. The defendant, therefore, alleged that the plaintiff was not entitled to any relief; 9. The trial Judge, who heard the suit in the first instance, held: (1) that the plaintiff had opted For Pakistan provisionally, as alleged by him, and, not finally, as alleged by the defendant, and, (2) that the plaintiff did not revise his option for India finally within the requisite period. He, therefore, on the second finding dismissed the plaintiffs suit. 10. He, therefore, on the second finding dismissed the plaintiffs suit. 10. On appeal to the Court of appeal below, the learned Additional Subordinate Judge affirmed the finding of the first court that the plaintiff had opted for Pakistan provisionally, and, not finally; but, in disagreement with the first court, held that the plaintiff revised his option for India Final, in his declaration under the registered letter No. 167 dated the 16th January, 1948 (Ext. 2). He accordingly, held that the plaintiff was entitled to the declaration that he had a right to rejoin his original post as the postal clerk under the Indian Union which he held prior to his provisional option for Pakistan in 1947. He, however, as stated earlier, held that the plaintiff cannot be deemed to have continued in his service as a clerk in the Post and Telegraph Department of the Indian Union. He, therefore, decreed the plaintiffs suit in part only. 11. On Second appeal to this Court, the only point urged by the learned Government Pleader, Mr. Ray Paras Nath, who appeared on behalf of the defendant-appellant, in support of the appeal was that the finding of the court of appeal below that the plaintiff exercised his option for Indian Final before the required date 15th February, 1948 is wrong, in that, it is based merely on Ext. 2, which does not support it. 12. The question whether the plaintiff revised his option and changed his option for India Final before the required date is purely a question of fact, and, therefore, if the impugned finding of the court of appeal below is supported by any evidence, it cannot be interfered with in second appeal by this Court. I would, however, presently show that it is not correct to say that this disputed finding is based only on Ext. 2, and, that Ext. 2 does not support it. Ext. 2 is the registration receipt of the registered letter no. 167 sent from Tahirpur Post Office in Rajshahi Division on the 16th January, 1948. It is true that the seal of the post office on Ext. 2 does not give the year nor, I have been able to find the digit "8" appearing at one end, as observed by the court of appeal below. Nevertheless, on the bottom of the receipt, it is mentioned in pencil "183 dated 16-1-48". It is true that the seal of the post office on Ext. 2 does not give the year nor, I have been able to find the digit "8" appearing at one end, as observed by the court of appeal below. Nevertheless, on the bottom of the receipt, it is mentioned in pencil "183 dated 16-1-48". It, therefore, appears that this registered letter was sent, as alleged by the plaintiff, on the 16th January, 1948. It will further appear, as rightly observed by the court of appeal below also, that there is a reference to this registered letter No. 167 dated the 16th January, 1948 in the letter (Ext. B/3) sent by the Post Master General, East Bengal Circle, Dacca, to the Post Master General, Bihar Circle, Patna, on the 25th August, 1953. From Ext. B/3, it further appears, as rightly observed by the Court of appeal below also, that the records for 1948 are not now available. It is nowhere said either by the defendant or the Post Master General, East Bengal Circle, Dacca, that no such registered letter No. 167 dated the 16th January, 1948, was sent from Tahirpur Post Office in Rajshahi Division, as alleged by the plaintiff. It is true that from Ext. 2 the writing as to whom it was addressed cannot be deciphered as it was written in pencil. There is, however, no evidence on behalf of the defendant that the seal purporting to be of Tahirpur post office is not of that post office, or that on the 16th January, 1948, this seal was not in use or that at that time the year also used to be contained in the postal seal. 13. On a consideration of Ext. 2, Ext. B/3 and the other documents mentioned by the court of appeal below and its reasonings; I hold, in agreement with it, that Ext. 2 is a genuine document. I would, therefore, affirm the finding of the court ol appeal below that the plaintiff did revise his option for India Final before the requisite date. I, therefore, hold that the finding of the court of appeal below on this question is a good finding supported by Ext. 2 and other evidence and is not vitiated in law in any manner. 14. The appeal of the defendant, accordingly, fails and is dismissed with cost. Cross-objection: 15. As regards the cross-objection, Mr. I, therefore, hold that the finding of the court of appeal below on this question is a good finding supported by Ext. 2 and other evidence and is not vitiated in law in any manner. 14. The appeal of the defendant, accordingly, fails and is dismissed with cost. Cross-objection: 15. As regards the cross-objection, Mr. P, R. Das, who appeared on behalf of the plaintiff-respondent, argued that the court of appeal below is wrong in refusing the plaintiff the second declaration sought by him, to the effect that he should be deemed to have continued in service as a clerk in the postal Department of the Union Government of India. He submitted that the period of service, rendered by the plaintiff after the 19th September, 1947, under the Government of Pakistan, must be treated as foreign service, and, therefore, the plaintiff must be deemed to have continued in service of the Government of India, during that period. In support of his contention Mr. Das relied on Item No. 9, of Government of Indias decision, mentioned under Fundamental Rule No. 26, ol Chapter IV, at page 58, of Posts and Telegraphs Compilation of the Fundamental Rules and Supplementary Rules, Volume I, corrected up to the 31st December 1958, Third Edition (Reprint). 16. Fundamental Rule 26(9) is to the following effect: xx xx xx 9. The period of service rendered after the 14th August, 1947, under the Government of Pakistan by the Provisional optees who subsequently changed their option to "India Final, and by the final optees for India, who were retained in the service of Pakistan under the "stand still" agreement, will count for increment, leave and pension etc.. in the same manner and to the same extent as other periods of foreign service. Since under F. R. 26(e) foreign service counts for increment in the post in which a Government servant holds 3 lien or would hold a lien, had his Hen not been suspended, a question was raised whether the benefit of the aforesaid orders would accrue to the persons who were not holding any permanent post is a substantive capacity in the Dominion of India (i.e. to temporary and officiating employees). The position is that the period of service rendered after the 14th August, 1947, under the Government of Pakistan has been treated as foreign service under special circumstances, and it was not the intention to deny the benefit to temporary and officiating Government servants. The services rendered in Pakistan by such employees in temporary and officiating capacity should, therefore, count for increments in the scale applicable to posts which they would have held in India but for their service in Pakistan subject to the fulfilment of the usual conditions. It has further been decided that permanent Government servants should also be permitted to count for increments in permanent posts, which they would have held in India but for their retention in Pakistan, the period between 15th August, 1947 and the date of actual creation of supernumerary posts notwithstanding the fact that they are technically without lien during this period. xx xx xx 17. From Fundamental Rule 26(9), quoted above, which was then in force during the material period, it is manifest that the plaintiffs period of service, from after the 19th of September, 1947, when he was relieved from India for Pakistan," being under the Government of Pakistan, must be treated as foreign service, and, therefore, will count for increment, leave and pension, etc., in the same manner and to the same extent as other periods of foreign service. This aspect of the case has not been considered by the court of appeal below, probably because its attention was not drawn to Fundamental Rule 26(9). The second paragraph of Fundamental Rule 26(9) clarified further by providing that permanent Government servants should also be permitted to count for increments in permanent posts, which they would have held in India, but for their retention in Pakistan, the period between the 15th August, 1947, and, the date of actual creation of supernumerary posts, notwithstanding the fact that they are technically without lien during this period. The plaintiff being admittedly a permanent Postal employee under the Government of India, before he opted for Pakistan provisionally in 1947, would certainly be entitled when, as held by me, in agreement with the court of appeal below, the plaintiff did revise his option and change his option for India Final within the period fixed, to the benefits of the above decision of the Government of India. In view of Fundamental Rule 26(9), referred to above, it appears to me, that the decision of the court of appeal below that the plaintiff cannot be deemed to have continued in service as a clerk in the Post and Telegraph Department of the Government of India is not correct. 18. I would, accordingly, hold that the plaintiff, being a provisional optee, having subsequently changed his option for India Final, was entitled to the benefits conferred on such employees by Fundamental Rule 26(9). 19. The crucial question, however, is, can the Court grant the second relief claimed by the plaintiff, and, declare him. as prayed for, that he should be deemed to have continued in service as a clerk in the Post and Telegraph Department of the Government of India? I think this question must be answered in the affirmative. That such a declaration can be granted, and, it would be within the competence of the Court to give such a declaration seems to be clear from, and, supported by also the two decisions of the Supreme Court in State of Bihar v. Abdul Majid, AIR 1954 SC 245 , and, Om Prakash Gupta V/s. State of Uttar Pradesh, (S) AIR 1955 SC 600 . In both these cases, the plaintiff of those cases, besides claiming arrears of salary, had also claimed the declaration, on certain grounds that he should be regarded as continuing in office, and, he was given the declaration sought, as, also his arrears of salary. 20. I, therefore, hold, in disagreement with the court of appeal below, that the plaintiff is entitled to the second declaration also as claimed by him. 21. My attention was drawn to Fundamental Rule 113, at page 193, of Fundamental Rules and Supplementary Rules, Volume I, Third Edition (Reprint), corrected upto the 31st December, 1958, and also to Article 764, Chapter XXXIX-Foreign Service at page 264, of Civil Service Regulations, Fifth Edition Eighth Reprint, corrected up to 30th September 1949, 1957 Edition, in support of the contention that the plaintiff on rejoining his post in India would be entitled to the same salary, increment and the like which he otherwise would have earned it he had not opted for .Pakistan. It apperas, however, from page 438 of Chaudris Compilation of the Civil Service Regulations, Vol. It apperas, however, from page 438 of Chaudris Compilation of the Civil Service Regulations, Vol. I, corrected up to the 30th April, 1958, 3rd Edition, 1958, that the above Chapter XXXIX, containing Articles 749A to 782, has not been printed, because., as the footnote indicates "This Chapter is now obsolete and is awaiting" deletion at the time of re-codification.." Be that us it may, we are not here concerned, in the" appeal, with the question of plaintiffs, salary, increment., or, the like. The plaintiffs suit is simplicity for a declaration, and nothing more. He has not claimed any consequential relief, and, these questions therefore do not fall to, be considered and decided in the appeal. In these circumstances, the court of appeal below has rightly observed, and, I too endorse its. observation, that on the plaintiffs rejoining his post, as he has now the right, by virtue of the declaration granted by the Court to be absorbed as a clerk in the Post and Telegraph Department of the Government of India, it would be for the appropriate authority of the Postal Department of the Government of India to decide what terms and conditions, of service will be applicable to the plaintiff in view of the Fundamental Rules, referred to above, then in force, during the material period. 22. The cross objection of the plaintiff, therefore, succeeds and is allowed with cost. 23. The net result, therefore, of the defendants appeal having failed and, the plaintiffs cross-objection having succeeded, is that the plaintiffs suit U now decreed in its entirety and he now gets the entire declaration prayed for in the suit. Declaration Granted . 24 It is, accordingly, declared "that the right of the plaintiff to rejoin his original post at Bhagal pur in the Bhagalpur Division of the post arid Telegraph Department under the defendant remains unaffected, and, the plaintiff should be deemed to have continued in service as a clerk in the Post and Telegraph Department of the Indian Union." 25. The court of appeal, below, while partly decreeing the plaintiffs suit, directed the parties to bear their own costs throughput. That order will stand. 26. The plaintiff, however, will be entitled to his cost, both of the appeal and of the cross-objection, of this Court.