The petitioner was holding the post of General Manager, Telecomunica tions, Islamabad, in National Pay Scale 20, when he was suspended from service for unspecific period, vide letter No. S. 46-8/78, dated 4th September 1978, by the Secretary (Communications). It appears from the record that the order had been passed with the verbal approval of the Chief Martial Lave Administrator.
2. On coming to know of the reasons of the action taken the petitioner on 6th September, 1978, submitted an application to the Secretary (Communications), explaining that he could not be held responsible for the disruption of the call of the Chief Martial Law Administrator, from Islamabad to New Delhi as 3/4 other independent. Regions were also involved en route. Another application to the same effect was submitted on 14th September, 1918. The Secretary (Communications), however, did not respond to any one of the two applications.
3. Mr. Muhammad Zakariya Khan, Director of Telegraphs vide letter dated 17th September, 1978, asked the petitioner to appear on the same day at 10 p.m. Before a Board constituted to inquire into the incident of the disruption of the call of the Chief Martial Law Administrator. Late: on, a notice dated 29th October, 1978, was served on the petitioner asking him to show cause why any one of the penalties as specified in the Government Servants (Efficiency and Discipline) Rules, 1973 should not be imposes on him. It was stated in the notice that the petitioner, as head of the Region, having failed to set the pattern of efficiency and vigilance for the officers and staff' of his region, was prima facie guilty of 'inefficiency'. The petitioner submitted his reply on 15th November, 1978, but no further action has been taken so far.
4. The original order of suspension was also subsequently extended by the President, on 21st January, 1979 to 3rd March, 1979. The learner Deputy Attorney-General has placed on record a copy of the summary put up to the President. He referred to its contents to show that originally the suspension had taken effect under the verbal orders of the President and that the subsequent extension was also under his orders.
5. The only two questions arising for consideration, in this petition are whether the petitioner could be suspended from service on a charge of inefficiency and if an oral approval of the President can result in a valid action.
6. As regards the first point the learned counsel went through rule 5(l) of the Government Servants (Efficiency and Discipline) Rules, 1973, to show that the petitioner could not be suspended from service for a charge of inefficiency. Rule 5(1) reads as under : "5.-(1) In case where a Government servant is accused of subversion, corruption or misconduct, the authorised officer may require him to proceed on leave or, with the approval of the authority suspend him, provided that any continuation of such leave or suspension shall require approval of the authority after every three months."
7. _ The contents of the above rule, without any doubt or ambiguity, show that suspension could take place only for charges of subversion corruption or misconduct. Admittedly the petitioner was being proceed against on the charge of 'inefficiency', in view of the show-cause notice referred to above and not for any of the above offences. The wording o the rule being so clear, the learned Deputy Attorney-General could no contest this contention. The impugned order, therefore, merits getting quashed on this short ground.
8. As for the second point, it is a well-established position of law and practice that the public functionaries have to pass all orders in writing. It is necessary for the purpose of record and responsibility and to judge their B validity. So far as the orders of the President are concerned, they have go to be in writing in view of Article 48(3) of the Constitution, also as the require, for their validity, the Countersignature of the Prime Minister. No sanctity can thus be attached to oral orders and they can neither confer any rights nor impose penalty.
9. In this case, the only order by the competent authority in writing, is the order of extension of suspension. It was passed on 21st January, 1979. That is, therefore, the first effective order authorising suspension of the petitioner from his service. It is, however, well established that the executive orders cannot be applied or enforced retrospectively. Reference be made to Government of West Pakistan v. Nasir Muhammad Khan (PLD 1965 SC 106). Consequently the petitioner shall be deemed never to have been suspended from a date prior to that.
10. The learned Deputy Attorney-General argued that the Secretary (Communication), who, according to him, is the authorised officer in this case, could himself suspend the petitioner from service, provided he obtained even subsequently, an approval of his action, from the President.
According to him, the rule 5(1) of Government Servants (Efficiency and Discipline) Rules did not specify that there must be a prior approval.
11. I am afraid, I cannot pursuade myself to interpret the provision 'the authorised officer may with the approval of the authority suspend him' in that way. In this setting of the words, it was not necessary that the word `prior' must have been there to give it that meaning. The very power of suspension has been made dependent on the approval of the authority in this clause. In my view, therefore, the approval of the competent authority is a condition precedent to the action and it must be obtained not only to give validity to the action but must precede it. The reason for this view is quite obvious from the plain reading of the provision. The rule clearly shows that the p Legislature intended to provide a protection and a guarantee to the Government servant, so that the suspension will take place, only after the competent authority is satisfied, from the circumstances of the case, laid before him that such an action is called for.
12. It may further be noted that according to rule 5(1) reproduced above, any continuation of suspension requires approval of the authority after every three months. This provision also makes it further clear that not only the contemplated suspension but the continuation must be preceded by approval. This view is further supported by the official interpretation of the Department, as given in Office Memo No. 7/2/75-DI, dated 22nd February, 1975, issued by the Establishment Division of the Cabinet Secretariat, Government of Pakistan. The relevant portion maybe reproduced with advantage :- "(a) Since under rule 5 of the Government Servants (Efficiency and Deciplinary) Rules, 1973, the 'authorised Officer' can only suspend a Government servant after obtaining the approval of the 'authority', on the basis of the principle embodied in section 25 of the General Clauses Act, 1897, the 'authorised officer' would be competent to re-instate the Government servant only with the approval of the 'authority'.
(b) Since continuation of forced leave or suspension beyond a period of three months again requires the approval of the 'authority' it would appear that on expiry of the said period of three months the Government servant who has been placed under supension or forced to proceed on leave would be deemed to have been re-instated unless, before the expiry of the said period the approval of the 'authority' to the Government Servant continuing to be under suspension or on leave has been obtained."
13. As found above, the respondent acted in violation of its own interpretation in suspending the petitioner from service. It may be noted in this context that the Government itself is not only bound by the instructions g it issues for the guidance of its officers and the public but is also obliged to follow and implement its own interpretation of a particular provision of law, unless the same are found to be in clear violation of any law. Reliance is placed on the following observation in Nasir Ahmad v. Pakistan (PLD 1970 SC 453)
"The Departmental practice has followed the right course in the implementation of the relevant rule but whether right or wrong, it will be extremely unfair to make a departure from it now after a lapse of so many years and to disturb rights that have been settled by a long and consistent course by this practice. In the case of the appellant, the seniority initially accorded to him has held the ground continuously for ten long years until it was disturbed by the impugned order. This, to say the least, is bound to weaken the faith of the employees in the attitude and behaviour of the Department. A passage from Crawford's Statutory Construction (1940 Edn., p. 399) may be usefully reproduced to point out the effect of "departmental construction", that is to say, the construction which is placed in practice on the provisions of a statute or rules by the administrative authorities who are charged with the execution of the statute or the rules. The learned author observes : "Where the executive construction has been followed for a long time an element of estoppel seems to be involved. Naturally many rights will grow up- in reliance upon the interpretation placed upon a statute by those, whose duty it is to execute it. Often grave injustices would result should the Courts reject the construction adopted by the executive authorities."
14. The above view appears to have a universal following. I may quote two passages from pages 92-93 and 103-104 of Legal Control of Government by Bernard Schwartz and H. W. R. Wade "American law has not made any distinction between substantive and procedural rules in respect of their legally binding effect. There are numerous cases in which agencies are held legally bound by their own procedural rules, even when made informally. This principle has been applied to procedural rules governing discharges of Government employees, deportation proceedings, tax proceedings, and other cases. It makes no difference that' the procedures established by the agency are more generous than is required by Constitution or statute. Agency violation of its own procedures is considered arbitrary action, which 'cannot be reconciled with the fundamental principle that ours is a Government of laws'.
The American Courts have not limited their application of this principle to cases where the procedures are promulgated under statutory authority, formally labelled 'rules' or 'regulations' and adopted with strict regard to the requirements of the Administrative Procedure Act. Thus the Supreme Court has held an agency bound by its own internal 'order', and other Courts have done the same with regard to a Federal Communications Commission 'rule' which, though not formally promulgated, had been established by the F. C. C's. 'usual practice', a Department of Defence 'Directive', and even a procedure enunciated in a 'News Release'. Thus there are certain kinds of rule-making which can have legal effect without any statutory authority whatever. It might almost be called legislation by estoppel."
"Recent British decisions may ---now have paved the way to similar developments, since the Court has held that it has power to enforce non-statutory rules. A lady made a claim to the Criminal Injuries Compensation Board, a body established in 1964 for compensating victims of violent crime.
Neither the Board nor the compensation scheme were statutory : they were set up merely administratively, the Government explaining the details to Parliament and Parliament voting the money. The applicant claimed that she was entitled to an award under the published rules of the scheme, which covered 'personal injury directly attributable either to a criminal offence or to an arrest or attempted arrest'. She had been knocked down while a suspected thief was being chased, and the Board held that since she was a mere bystander she could not qualify. The Court quashed this decision for error of law on its face, and thus for the first time enforced non legal rules."
In view of the above discussion, the impugned order of suspension I eclared to be without lawful authority and of no legal effect. The result p ill be that both suspension and the extension-in- suspension made were affective and inoperative ab initio and the same shall be deemed to have ever taken place. There will be, however, no order as to costs.