Sarjoo Prosad, C.J. - (1.) THESE Rules arise out of applications under Article 226 of the Constitution. They came up for hearing before a Division Bench of this Court presided over by my learned colleagues, Rain Labhaya and Delta JJ. That Bench was of opinion that these cases involved questions of general importance and it was, therefore, desirable that they should be heard by a larger Bench of this Court. In pursuance of that recommendation contained in their order, dated 23 -6 -53, this Full Bench was constituted to hear these Rules.
(2.) THE facts involved in the two cases are substantially common and they also involve common questions of law. They can be, therefore, conveniently disposed of together by this judgment. The material facts have been set out in the aforesaid order of reference, but it would be just as well to recapitulate the relevant details there. Civil Revn. No. 58 of 1951. Briefly stated, the Petitioner's case is that immediately preceding the partition of India he was a Gazetted Officer in Class II of the Assam Educational. Service and had been holding the post of a Lecturer in Bengali in Murarichand College, Sylhet. He had a starting salary of Rs. 195/ -per mensem beginning from 19 -2 -47 with annual increment falling due on the 19th of February of each subsequent year and also with prospect of promotion to Class I. The partition, as is well known, came into effect on the 15 -8 -1947, splitting up India into two Dominions known respectively as India and Pakistan. In July of that year, the Petitioner (along with other Government servants of Gazetted rank) received a confidential letter No. C. 175/47/20, dated, Shillong, the 25 -6 -1947 (Home Department), over the signature of the then Chief Secretary to the Government of Assam, together with a Questionnaire to be filled in by him conveying his option to serve in either of the two Dominions after partition. These papers which are popularly known as 'Option Papers' are marked as Annexure 'A' to the petition and appear to have been circulated by the State Government according to the policy and direction of the Government of India. The papers contained an assurance guaranteeing the Petitioner the same terms and conditions, of service as existed before the date of partition and creation of the two Dominions, and his provisional choice of service was not in any way to prejudice his seniority and conditions of service. The Petitioner exercised his option in favour of the Dominion of India and submitted his answers to the Questionnaire accordingly. As a result of a referendum held on 6th and 7th of July 1947, a greater, part of the District of Sylhet went to Pakistan with effect from 15 -8 -1947. By that date the Government of Assam had withdrawn from the District of Sylhet all their employees who were natives of Assam, but many of those employees at Sylhet who were natives of that District or of Bengal, like the Petitioner, were left behind in spite of their exercise of the option for service in favour of India. It is suggested in the application that these employees were deliberately left behind and even attempts were made to transfer from other parts of Assam as many Bengali employees as possible to Sylhet. On 1 -9 -1947, the employees of the Government of Assam left behind at Murarichand College, Sylhet, including the Petitioner, were served with notices by the Government , of East Bengal in Pakistan to hand over charge and the Petitioner was thus relieved of his duties with effect from that date. They were further advised to report themselves to the Government of Assam immediately. On the same date, the Petitioner, therefore, applied to the Chief Secretary to the State Government for a direction as to when and where he should report himself for duty. While yet the Petitioner was awaiting a reply to his communication from the Government of Assam, the District Magistrate of Sylhet served a notice on him to vacate his quarters within three days. The Petitioner was, therefore, compelled to leave that place with his family in the 3rd week of September 1947 and come over to the Indian Union with the intention of permanently settling here. Since then he has been residing in the Indian Union and was thus a citizen of India. He moved the Government of Assam from time to time for his posting, but the Government kept him on ex -gratia leave on half average pay from 1 -9 -1947 to 31 -3 -1948, in spite of his protests against any leave being forced upon him. On the 21st of April of that year, the Petitioner received a letter from the office of the Director of Public Instruction, Assam, intimating that his services were dispensed with on and from 1 -4 -1948. The letter bears Memo. No. 14423A/ 2E -1/23/47, dated 21 -4 -1948, and is Annexure 'B' to the petition. It purports to bear the signature of the Assistant Director of Public Instruction, Assam. The reason assigned in that letter for dispensing with the services of the Petitioner is said to be "due to the transfer of a major portion of Sylhet with its institutions to East Bengal." The letter gave three months' notice of discharge with effect from 1 -1 -1948, even though the intimation itself came in April, 1948, and was actually received by the Petitioner in the first week of May, 1948. The Petitioner represented against the order dispensing with his services and prayed for his absorption in service, but he was informed by the Assistant Director of Public Instruction, Assam, by his Memo. No. 27125A/1P/48/48, dated 31 -8 -48, which is Annexure 'C to the petition, that "Government had not been able to procure any Pakistan vacancies suitable for his appointment." The Petitioner was, therefore, directed to submit his application for pension or gratuity. He, under protest, submitted his pension papers on 23 -3 -1949, as demanded by the Government of Assam, reserving full rights to take necessary legal steps for recovery of damages on the premature termination of his services. On receipt of those papers, the Government, under Memo No. F.M.P. 3/50/17, dated 3 -4 -50, sanctioned for the Petitioner a compensation pension of Rs. 30/9/ - per month with effect from 1 -4 -48, but the Petitioner has not yet accepted that compensation.
(3.) THE Petitioner submits that the order dispensing with his services is altogether illegal and has caused serious loss and damage to him. The petition then goes on to recite various facts which, according to the Petitioner, establish mala fides of the State Government in dispensing with his services and in seeking to discriminate between one set of employees and another on the ground that the Petitioner and some other employees were of Bengali origin. The Petitioner states that he was appointed to the Assam Educational Service under the Government of Assam by the Secretary to the Government in the Department of Education, as would appear from the Gazette Notification, but the order of his dismissal from service, as contained in the above Memo, of 21 -4 -48, was issued by the Assistant Director of Public Instruction, which officer was subordinate to the Secretary and had no power to dismiss or discharge the Petitioner or terminate his services. Any delegation of power to dismiss an officer was void and illegal and the order of Government, No. P.G. 45/48/1/, dated 1 -4 -48, which is Annexure BB to the Supplementary Affidavit filed by the Petitioner, it is claimed, cannot be regarded as a valid order of dismissal or discharge inasmuch as the order does not mention any person or persons who are to be served with notice of dismissal or discharge, and it does not fulfil the requirements of Section 240 of the Government of India Act, 1935, and the rules of services of the Assam Government. The above orders were further made without giving any reasonable opportunity at all of showing cause against the action proposed to be taken. It is also stated that under the Service Rules, the Petitioner had lien on the Cadre of his service, and since the illegal order dispensing with his services, the Respondent Government had filled up many vacancies in the cadre with fresh recruits in utter disregard of the Petitioner's right to be reinstated in the service.;