P L D 1959 (W (PLP)

Note 8." In view of the occurrence of the word "ordinarily" in clause (b) of this rule a ministerial Government servant can be retired from Government service between the age of 55 and 60 years on grounds other than those of efficiency and in such a case he has no claim to be retained in service up to the age of 60 years, nor is he entitled to any compen sation for loss of his appointment. This rule does not confer upon Government servants any right to be retained in service up to a particular age, but prescribes the age beyond which they may not be retained in service ".

4. This means that as early as 1932, the interpretation placed on Fundamental Rule 56 was that there is power to retire a ministerial servant at fifty‑five, and when the Government of India Act, 1935, brought the new Constitution, and Rule 56 was adopted by the Governor as Civil Service Rule 3.28 in pursuance of his rule‑making power under section 241 of the Act, it was adopted with the aforesaid interpretation. And to place the matter further beyond doubt, note 8 also was added to the rule.

5. Earlier still, in 1925, Fundamental Rule 56 was interpreted in connection with the grant of leave, and this resulted in the addition of para. (5) to the Audit instructions. The cor responding provision under Rule 3.28 is Note 7, which is as follows :‑ Note 7." The date on which a ministerial Government servant who is governed by clause (b) (i) of this rule must compulsorily retire is ordinarily the date on which he attains the age of 60 years, but in the case of a ministerial servant who is required to retire between the ages of 55 and 60, the date of compulsory retirement is the date from which he is required to retire. It follows from this that the restric tion imposed by rule 8.21 or 8.22 does not operate in the case of a ministerial servant between the ages of 55 and 60 years unless an order is passed requiring him to retire ".

6. Rule 8.21 mentioned in the note deals with the exten sion of leave to a person who is on leave preparatory to retirement, while rule 8.22 states that leave at the credit of a :Government servant in his leave account lapses on the date of compulsory retirement. Note 7 explains that in the case of a ministerial servant the date of compulsory retirement is the date on which he is required to retire between the ages of 55 and 60 years.

7. Our brothers at Karachi who decided Liaquat Ali Khan's case were faced more with the question whether termi nation of service against the rules constitutes removal within the meaning of Article 81 than with the actual interpretation of Fundamental Rule 56, and having held that removal was not necessarily removal as a measure of punishment, they proceeded to hold that opportunity to show cause against removal was implicit in any removal. We agree‑and the majority of us in this Court have generally been of the view‑that " removal " cannot be confined to removal for punishment, but we have never been so generally of the view that termination of service in any case constitutes removal. For if retirement at the age of fifty‑five were removal, then it would be removal at sixty also, and no person could at all be retired at any age without first confronting him with a charge of insufficiency. That would be unfortunate, because most of us want to retire without being regarded inefficient and some even want to retire young at sixty. The question whether " retirement " constitutes removal is irrelevant in this context, because if F. R. 56 or p C. S. R. 3.28 provides for retirement at a given age, then this is a condition of service and there is no escape from it. If, therefore, the rule is interpreted to mean that a ministerial servant may be retired at fifty‑five, with or without reason, it becomes unnecessary to decide what exactly the term removal means.

8. Nor is the question of compulsory retirement after twenty‑five years' service any more relevant, for that also is a condition of service. When our brothers were referred in this connection to the decision in Muhammad Ismail v. The Punjab Province (P L R 1956 Lah. 213 : P L D 1956 Lah. 129), they distinguished it largely on the ground that " there is no such rule applicable to the Central Govern ment servants". Apparently, the provisions of Civil Service Regulation 465‑A and Note 1 thereto were not brought to their notice. These Regulations are as much applicable to Central Government servants as the Fundamental Rules, and Regula tion 465‑A is as follows :‑ "465‑A. For officers mentioned in Article 349‑A, the rule for the grant of retiring pension is as follows :‑ (1) An officer is entitled, on his resignation being accepted, to a retiring pension after completing qualifying service of not less than 25 years or in the case of officers of Imperial Services of the Forest, Geological Survey, Public Works, Railway and Telegraph Departments and any others covered by Article 635 who entered the service before the 6th day of December, 1932, not less than twenty years. (2) A retiring pension is also granted to an officer who is required by Government to retire after completing twenty five years' qualifying service or more. "Note 1.‑Government retains an absolute right to retire any officer after he has completed twenty‑five years' qualifying service without giving any reasons, and no claim to special compensation on this account will be entertained. This right will not be exercised except when it is in the public interest to dispense with the further services of an officer ".

9. The only passage in Liaqat Ali Khan's case which is devoted to the interpretation of Fundamental Rule 56 (b) (ii) is the following :‑ "We have carefully considered the Fundamental Rule 56(b)(i), and in our opinion the language of this rule makes it perfectly clear that a ministerial Government servant is entitled to remain in service till the age of 60 years, but the Government is entitled to retire him at the age of 55 if he is found to be inefficient. Under this rule the efficiency of the Government servant cannot be decided on subjective considera tion but must be arrived at after giving an opportunity to show cause. This is implicit in the rule under consideration. We also consider that this rule is one of the conditions of service of the petitioner and unless the procedure laid down in Article 181 of the Constitution is followed, the petitioner cannot be made to retire .at the age of 55 years on the ground that he held office at the pleasure of the President."

10. We have already given reasons why this interpretation cannot be accepted. We have no doubt that if the rule in question had been read tq our brothers, as we have ‑read it, they would have given a different decision. We are surprised that on behalf of the Central Government more emphasis was laid in that case on the fact that Liaqat Ali Khan was inefficient than on the interpretation of the rule, which has only a secondary connec tion with efficiency.

11. We are now in a position to address ourselves separately to each petition. Writ Petition No. 264 of 1958.‑(Nazir Ahmad and another v. District Board, Montgomery). The petitioners are clerks in the service of the District Board recruited before 1938, and the Board has adopted for its servants the rules "from time to time" in force for servants of the Punjab Government as to conditions of service. In 1941, the Government made a rule (Rule 9 of Part I) by virtue of its power under section 55, District Boards Act, that "it shall be the duty of a District Board to terminate the appointment of every servant of the Board other than a ministerial servant upon his reaching the age of 55 years", and in 1954 it amended rule 9 so as to replace the word "ministerial" by "menial", thus lowering the age of retirement in the case of ministerial servants to

55. The petitioners contend that this alters the conditions of their service, but there is no guarantee that a District Board E servant's conditions of service cannot be altered. It is true that the District Board itself is in favour of extending their terms, but the Government has power to make rules, and if the Board does not act according to these rules, the Government has a supervisory capacity in section 50 and may annul the proceedings of the District Board, "which it considers not to be in conformity with law". The proceedings would obviously be illegal if they offend a rule of retirement made by the Government.

12. Writ Petition No. 677 of 1958.‑(Hafiz Karam Elahi). The petitioner was officiating as H. V. C. in the office of the Deputy Commissioner, Sheikhupura when he was retired, and, apart from the general ground based on the interpretation of rule 3.28, has an additional ground in support of his petition, namely that his date of birth as entered to his service book could not be altered. The date so entered is 24th June 1904, and it has been altered by order of the Government to 7th June 1903. The latter is the date of birth shown in the petitioner's matriculation certificate. The reason why the entry in the service book was altered is that it was found to have been altered for the benefit of the petitioner. The original entry showed the year of birth as 1902: it had been changed into 1904, in order to give him two more years of service. It was in these circumstances that he was called upon to furnish proof of age, and he himself produced the matriculation certificate. 'His counsel argued that since according to C.S.R. 12.4 every step in a Government servants' official life must be recorded in the service book, the entry as it stood, though altered, should have been accepted. We think there is remarkable insolence in this claim, for the rule in question also says that every entry and every alteration must be attested by the head of office, and there is no such attestation here. There is no question but that the alteration is dishonest, and Government would have been justified in restoring the original entry, and in addition, in reducing the pension. The contention that an altera tion in age could be effected, according to para. 3.14 of the District Office Manual, only within two years of entering service is again erroneous, because the limit of two years has been prescribed for the Government servant himself, "as against the Government servant in question ; "whereas the Government, it is expressly stated, can at any time make a correction in the recorded age if satisfied that the existing entry is incorrect. The further contention that para. 3.22 of the same Manual requires that a pension case should be considered for retirement four months before the date on which it is proposed to retire him is equally futile. This is a provision for ad ministrative convenience, not for the retiring official's con venience, and at least the petitioner could not complain, after he had assured the alteration of the service book entry and necessitated an enquiry, that he had not sufficient notice.

13. Finally, it was argued that the retiring authority being the Commissioner, the Deputy Commissioner's order of retirement was beyond his power. It was found however that the original order of retirement was by the Commissioner. This matter we shall discuss below in another case.

14. Writ Petition No. 467 of 1958.‑(Chaudhri Muhammad Khan). The petitioner was retired as Superintendent, Deputy Com missioner's office, Rawalpindi, by the Commissioner of Rawalpindi, notwithstanding the Deputy Commissioner's recommendation that lie should be retained. It was argued with reference to item 12 of Chapter XVI, Civil Service Rules, Vol. 1, Part I that the power of requiring superintendents to retire between the ages of 55 and 60 years had been delegated by the Government to Financial Commissioners (now replaced by the Board of Revenue) and that the Commissioner was not, therefore, competent to retire the petitioner. The Commissioner, while forwarding to the Board of Revenue the petitioner's representation that he may be retained in service remarked that the petitioner had been retired "in accordance with the existing policy of Govern ment on the subject". The existing policy, as stated by Govern ment repeatedly, is that "keeping in view the large‑scale unemployment in the country, it has been decided that the grant of extension of service or the re‑employment of pensioners should not be resorted to in future, except when such re‑employ ment is absolutely essential in the public interest." (17th June 1948). Referring to this letter on the 2nd December 1948, the Chief Secretary informed all heads of departments that the age of superannuation should be taken "to be the age when a Government servant attains the age of 55 years in the case of ministerial staff" and attention was invited to Note 8 below Rule 3.28 C. S. R., "under which a Government servant can be retired after reaching the age of 55 years even if he continues to be efficient." It should, therefore, be regarded now to be an order of Government that ministerial servants should be retired at the age of 55, and since the power to retire has been merely delegated by the Government to the Board F of Revenue, it should be deemed to have been exercised by the Government itself if a subordinate authority retires an official in pursuance of those orders, unless the Board of Revenue .now certifies that the petitioner's retention is absolutely in the public interest.

15. It is advisable, however, that an order retiring a Superin tendent or Head Vernacular Clerk should be passed by the Board of Revenue itself.

16. Writ Petition No. 65 of 1958.‑--(Muhammad Yunus v. General Manager, N. W. R.) The petitioner in this case was a Superintendent in the office of the Divisional Superintendent, N.W.R. and was governed by F. R. 56 in the matter of retirement. It was contended for him that although he could be retired only by the‑ Central Government, he had been retired by the Divisional Superin tendent. It was found, however, that the Divisional Superin tendent had made only a proposal and the General Manager had accepted it. The General Manager is the head of the department, and Appendix XXXII, item 13 in the Railway Code empowers a head of department to retire Superintendents.

17. Writ Petition No. 70 of 1958.‑(Saiful Malook v. General Manager, N.W.R.) The petitioner in this case was retired on 5th August 1956, as Junior Commercial Officer (lower gazetted), re‑employed on the 22nd of October 1956, and retired again on 20th July 1957. The question in this case is whether he is aministerial servant. Rule 2003 (17) of the Pakistan Railway Establishment Code Volume It defines a ministerial servant as "a railway servant of a subordinate service whose duties are entirely clerical, and any other class of servants specially defined as such by general or special order of a competent authority". In Appendix XXX of this Code at page 153 there is a decision of Government that "those members of Class II service whose duties are predominantly clerical shall be classed as ministerial servants for the purpose of clause (17) of Rule 2003". There is also a note that the competent authority was to decide whether a person's duties were or were not predominantly clerical. We have a certificate from the Director General, which has been issued after institution of the present petition, that the duties of a Junior Commercial Officer are not predominantly clerical. Prima facie the petitioner does not appear to be a ministerial servant ; but we do not go into this question conclusively, because on our interpretation of F. R. 56 the petitioner would not be entitled to a retention of service.

18. Writ Petition No. 155 of 1958.,‑(M. Saeed etc. v. General Manager, N.W.R.) The questions involved in this petition are the same as in Writ Petition No. 77 of 1958 and Writ Petition No. 185 of 1958, it being questionable whether the petitioners in this case could be regarded as ministerial servants.

19. The remaining petitions do not require individual attention.

20. In the result, we dismiss all these petitions with costs A. H. Petitions dismissed.