P L D 1967 Lahore 938 (PLP)

SARDAR MUHAMMAD IQBAL, J.‑The petitioner was a member of the West Pakistan Electricity Department and by notification No. ADSEC/1CW‑28‑3‑/59, dated the 28th of March 1959 issued by the Governor of West Pakistan in exercise of the powers conferred on him by section 17 of the West Pakistan Water and Power Development Authority Act, 1958, he was transferred to WAPDA as Senior Superintendent. He was given promotions from time to time and was finally appointed on the 3rd of June 1966 as Assistant Director (Administration). The Governor of West Pakistan in the exercise of his powers under sub‑clause (b) of clause (4) of Article 178 of the Constitution ordered the retirement of the petitioner with effect from the afternoon of the 31st of July 1966. The petitioner has challenged the said order under Article 98 of the Constitution.

2. The petition was admitted to hearing on the contention that the Constitution (Sixth Amendment) Act of 1966 was not a valid piece of legislation inasmuch as it had not been passed by the two‑thirds of the validly elected members of the National Assembly as required by Article 209 of the Constitution. The same question has since been decided by the Full Bench in A. M. K. Leghari v. Government of Pakistan (P L D 1967 Lab, 227) and it has been held that the validity of the said Amendment Act could not be examined under Article 98 of the Constitution. The contention raised in this behalf, therefore, is no longer available to the petitioner.

3. It was next contended by the learned counsel for the petitioner that the petitioner was not a person in the service of Pakistan and the Constitution (Sixth Amendment) Act of 1966 was not applicable to him. This contention also is devoid of force for the reason that the petitioner was serving in the West Pakistan Electricity Department before the 1st of January 1959. He was acting in connection with the affairs of the Provincial Government and was, therefore, in service of Pakistan. All persons serving in the Electricity Department were transferred by the Government to WAPDA in the exercise of its power under section 17 of the West Pakistan Water and Power Develop ment Authority Act of 1958, as amended by Ordinance X111 of 1959. For convenience of reference, clause (1) of section 17 is reproduced: "

17. Employment of officers and servants.‑(1) The Authority may from time to time employ such officers and servants, or appoint such experts or consultants, as it may consider necessary for the performance of its functions, on such terms and conditions as it may deem fit. Provided that all persons serving in connection with the affairs of the Province in the Electricity and Irrigation Departments shall be liable to serve under the Authority, if required to do so by the Government, on such terms and conditions as the Government may, in consultation with the Authority, determine but shall not be entitled to any deputation allowance: Provided further that the Government may, in relation to any such person as aforesaid delegate such administrative, disciplinary and financial powers to the authority as the Govern ment may deem fit: Provided also that the terms and conditions of service of any such person as aforesaid shall not be varied by the Authority to his disadvantage." In the exercise of this power, the Governor of West Pakistan by. the notification dated the 28th of March 1959 directed that all persons serving in whatever. capacity in the Electricity Department of West Pakistan will stand transferred for service under WAPDA with effect from the 1st of April 1959. Among other conditions. it was provided in clause (5) that the Authority would not bb competent to dismiss, remove from service or reduce in rank such persons in whose case the appointing authority was the Government. The employees of the Electricity Department; therefore, continued to remain in the service of Pakistan but had, only been transferred to the WAPDA in terms of the notification dated the 28th of March 1959. This being so, Article 178 of the Constitution has been applicable to such persons at all times and for that reason the Constitution (Sixth Amendment) Act of 1966 applies to them as well. The petitioner was working in the WAPDA on account of his transfer from the Government. He, therefore, could serve under the said Authority so long as he continued to remain in the service of Pakistan acting in connection, with the affairs of the Provincial Government. On his retirement: from the said service, he could not continue with the WAPDA unless the latter Authority under its own orders were to employ him on its own terms and conditions. In that case, such a person could have no connection with the Government. What the Governor did was to retire him from the service of the Provincial Govern ment which he was competent to do in the exercise of his powers under sub‑clause (b) of clause (4) of Article 178 of the Constitution.

4. The learned counsel for the petitioner next contended that under sub‑clause (b) of clause (4) of Article 178, the peti tioner was to retire on the 30th of September 1966 and the order of the Governor directing his retirement with effect from the afternoon of the 31st of July 1966 was illegal inasmuch as he had not given any show‑cause notice to him before such an order was passed and, therefore, the order being in violation of the principles of natural justice was without lawful authority. This point was not taken m the writ petition. We, however, do not find any substance in this point. There was no right created in favour of the petitioner to continue till the 30th of September 1966. In sub clause (b) of clause (4) it is provided that if a person has completed the age of fifty‑five years before the coming into force of the Constitution (Sixth Amendment) Act, he could be retired by the competent authority on any date within a period of six months from the commencement of the Constitution (Sixth Amendment) Act. The exercise of such a power by the competent authority was not made dependent on any condition. The competent authority was given an absolute power to order retirement of such a person on any date within such period. It was only if the competent authority did not pass any such order that a Government servant could continue till the 30th of September 1966. Once an order was made and a Government servant was directed to retire from a particular date, that date by virtue of the constitutional provisions became the date of his retirement. The contention that the petitioner had the right to continue till the 30th of September 1966 and the direction of the competent authority to retire him from the 15th of July 1966 had affected any right vested in him for which a show‑cause notice was necessary is, therefore, untenable. In Muhammad Ismail v. Punjab Province (P L D 1956 Lah. 129) it was held that a Govern ment servant "may be required by Government to retire on his completing 25 years' qualifying service. When Government takes action under Rule 5.33 (b) it is not necessary for it to state any reason or to communicate it to the Government servant con cerned" It was further held that the "order of retirement in such a case does not amount o removal within the meaning of section 277 of the Government of India Act, 1935 or Rule 14.10 of the Civil Services Rules, Vol. I for which a regular inquiry is necessary in terms of section 240, Government of India Act, 1935." In Muhammad Khalil v. Government of West Pakistan (P L D 1959 Lab. 229) it was held that Fundamental Rule 56 and Rule 3.28 of the Civil Services Rules were "entitled `compulsory retirement', which means that they are concerned more with the date on which a servant must retire than with the age up to which he may be retained." It was further held: "A person falling in this sub clause `should' `ordinarily' be retained up to the age of sixty, if he continues efficient, but he may be required to retire at fifty‑five. Thus there is power to retire him at fifty‑five, though its exercise is option, but if that power is exercised, the succeeding provisions‑that he should ordinarily be retained up to sixty if he continues efficient‑.obviously do not come into play." The principle enunciated in this case is aptly applicable to the facts of the present case also. In Pakistan v. Liaquat Ali Khan (P L D 1959 S C (Pak.) 37) it was held that Rule 56(b)(i), Fundamental Rule "gives unfettered discretion to the Government to require a ministerial servant to retire after he has attained 55 years, that it does not give him any right to continue in service after that stage and that therefore Government was not bound to give the respondent an opportunity of showing cause against compulsory retirement." In this view of the matter, since the petitioner had no right in him to continue beyond the 15th of July 1966, the principles of natural justice do not apply to his case.

5. It was also contended that the Governor had acted mala fide in ordering the retirement of the petitioner before the 30th of September 1966 and further in not granting him extension under clause (5) of Article 178 of the Constitution. The petitioner did not base his petition on this ground. He had also not given the facts to show that he acted mala fide. It was held in Sai Muhammad v. West Pakistan Province (P L D 1958 S C (Pak.) 181) that "the correct attitude in estimating the actions of Government is indeed that they must be regarded as having been taken bona fide until and unless the contrary is established".

6. It was next contended that since the petitioner belonged to a subordinate service he was granted the extension up to the 30th of September 1967 by the order of the Chief Secretary to Govern ment of West Pakistan contained in his letter No. S. O. IV (S & GAD)‑4‑7/66, dated the 7th of May 1966. We are unable to accept this contention. No extension is granted by these instructions. The latter lays down certain principles for the guidance of the competent authorities to take action under clause (5) of Article

178. Under clause (5) it is for the competent E authority to grant or refuse the extension. If the competent authority ignores these instructions and refused to grant any extension, it does not furnish the Government servant with any cause of action. It was also argued that these instructions are in the nature of the rules made by the Government and their violation is actionable. These instructions were issued by the Chief Secretary to the Government of West Pakistan. They were not intended to be the rules and according to their tenor it is impossible to hold that they have even the remote semblance of the rules. If the Government had really wanted to make the rules, there was no difficulty for them to frame such rules. The instructions issued by the Chief Secretary cannot take the place of the properly framed rules. It was held in Government of West Pakistan v. Nasir M. Khan (P L D 1965 S C 106) that "no letters . . . . issued by the executive authorities could take the place of properly framed Rules and they could override any general rules of the service that had relevance." In the present case, the competent authority had the power to grant or refuse extension under clause (5). The instructions of the Chief Secretary could not override the constitutional provisions.

7. The petitioner has, by operation of the constitutional provision, retired on the afternoon of the 31st of July 1966. He had no right to continue in service. He could be given extension under clause (5) which he was not granted. He cannot maintain that it was his right to get the extension. Since there was no right vesting in him, he cannot complain of any actionable wrong. The petitioner is not an aggrieved person within the meaning of Article 98 of the Constitution. It was held in Muhammad Abdus Salam v. Chairman, East Pakistan Election. Authority (P L D 1965 Dacca 231) that the "words 'aggrieved party' or 'person aggrieved' do not really mean a man who is disappointed of a benefit which he might have received if some other order had been made. A 'person aggrieved' must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something, or wrongfully refused him something, or wrongfully affected his title to something." The petition has no merit and is dismissed. There shall be no order as to costs. K. B. A. Petition dismissed.