1984 PLP (C (PLC(CS))

S. ABDUL JABBAR KHAN (CHAIRMAN). ‑Munshi Ghulam Muhammad Patwari (Retd.) has filed an appeal under section 4 of the Punjab Service Tribunals Act, 1974 against his retirement order, dated 18th November, 1977 passed by Mian Faiz Rasul, Assistant Commissioner/Collector, Vehari. He has prayed that the said order being illegal the same cannot sustain and he may be reinstated in service. 2. The brief facts of the case are that the appellant, who had completed 30 years and 3 months of service, was found, according to his service record, to be not a capable Patwari. He was also weak to eye sight and old and was earlier suspended and reinstated after administra tion of warning. The learned Assistant Commissioner found his work unsatisfactory and retired him from service on the 18th of November, 1979 with immediate effect. He was informed vide letter, dated 27th October, 1979 (Subject of which was `Compulsory Retirement of Patwaris after attaining 25 years' service) that he should appear before the Review Board constituted to decide the cases of Compulsory Retirement of Patwaris after attaining 25 years service. Lt.‑Col. Nisar Ahmad Khan, the learned Commissioner, Multan Division, heard the appellant in person and decided his case as a service appeal filed by the appellant and dismissed the same as being without any force, hence this appeal. 3. We have heard the learned appellant as well as the learned counsel, have perused the record of this case carefully with the assistance of District Attorney representing the Department. What we find is that the impugned order, dated 18th November, 1979 does not mention the relevant section 12 (ii) of Civil Servants Act of 1974 and the observation made therein is that the appellant is being retired after it was found that he was incapable, old, weak in eye‑sight and a warning existing on his record. This order would be liable to be set aside on this score only as it has not been made under the relevant rules which empowered the competent authority to proceed against the appellant. Adverse observation with regard to the efficiency of the appellant in his service record would convert this case automatically to a case of Efficiency and Discipline Rules, 1975, rather than of retirement simpliciter. Further, the order, dated 27th October, 1979 has clearly mentioned that the appellant .has been compulsorily retired and was advised to appear before the Com mittee on 28th October, 1979 at 9‑30 A. M. whereas the learned Com missioner, Multan Division, heard the appellant and treated his appeal as service appeal filed by him against order, dated 18th November, 1979 passed by Assistant Commissioner/Collector Vehari and dismissed the same, accordingly. This would be another flaw as the appellant could not be compulsorily retired unless and until Efficiency and Discipline Rules, 1975, were applied and he was given a show‑cause notice to explain the charges against him. It seems that the confusion arising out of the original order of the Assistant Commissioner/Collector became worst confounded. The learned Commissioner also treated the matter as service appeal whereas under rule 12(ii) of Civil Servants Act, 1974 no appeal is admissible before the appellate authority. Without going into the merits of the case and service record of the appellant we find that both the impugned orders are illegal and cannot be sustained. The same are set aside as being without any force. The result is that the appeal is accepted. The appellant would be treated in service from the date of his retirement so made, without any fetters on the competent authority to proceed against him under section 12(ii) of Civil Servants Act, 1974, if so advised. M. I. Appeal allowed.