P L D 1958 (W (PLP)

WAHIDUDDIN, J.

‑ This writ petition is directed against the order of the respondent dated 14th January 1947 informing the petitioner about the decision of the State Government to retire him from Government service with effect from 16th July 1957. This order is reproduced below :‑ "Mr. Liaqat Ali Khan, a substantive permanent Superin tendent in this Ministry, is informed that it has been decided to retire him from Government service, with effect from the 16th July 1957 ". The petitioner at the time of the impugned order was the Superintendent, P. V. (VI) Branch (C. P. O.) Ministry of Foreign Affairs and Commonwealth Relations, Karachi. He entered Government service in the year 1927 as 3rd Division Clerk. In 1936 he was transferred to the Foreign and Political Department of the late Government of India and at the time of Partition was holding the post of Superintendent in that Department He opted for Pakistan and was again posted as Superintendent of India Branch of the Ministry of Foreign Affairs. On 30th October 1956 the petitioner attained the age of fifty‑five years and was compulsorily retired from 16th July 1957. Mr. Muhammad Sadiq, the learned counsel for the peti tioner contended that there are two set of rules for the age of retirement of Ministerial Government servants, namely those that govern the case of the Government servant who enterea Government service before 1st April 1938 and lay down their age of retirement as 60 years and the other that govern the case of those Government servants, who entered Government service or after 1st April 1938 and lay down their age of retirement as 55 years. The learned counsel urged that the case of the petitioner is covered by the former as he entered Government service before 1938. The relevant Fundamental Rule applied to the servants of the Central Government is reproduced below :‑ "F. R. 56 (b) (i). A Ministerial servant who is not govern ed by sub‑clause (ii) below may be required to retire at the age of 55 years, but should ordinarily be retained in service, if he continues efficient, upto the age of 60 years. He must not be retained after that age, except in very special circumstances which must be recorded in writing, and with the sanction of competent authority. (ii) A ministerial servant‑ (1) who enters Government service on or after the 1st April 1938, or; (2) who being in Government service on the 31st March 1938, did not hold a lien or a suspended lien on a permanent post on that date, shall ordinarily be required to retire at the age of 55 years. He must not be retained after that age except on public grounds which must be recorded in writing, and with the sanction of the competent authority and he must not be retained after the age of 60 years except in very special circumstance". On comparison of the two rules it is strenuously argued that the petitioner was entitled to remain in service till the age of sixty and could only be retired at the age of fifty‑five if he is found to be inefficient. On these premises it is further urged that the petitioner's service record has always been good, that he is working in the Passport Office since 10th October 1955 ; that his work and capacity have never been in doubt there ; that he was never informed about his inefficiency and that in any case he ought to be given a chance that he was efficient and fit for service and could not be retired from service before the age of sixty years. Respondent has strongly opposed this application. Shah Jamil Alam, the learned counsel for the respondent, conceded that the petitioner's case is governed by the rules applicable to Government servants employed before 1938 but contended that under this rule the Government has absolute discretion to retire the Government servant at the age of fifty‑five years. According to the respondent the petitioner attained the age of superannuation on 31st October 1956 and was ordered to compulsorily retire from 30th July 1956 (sic). Mr. Habibullah, Assistant Secretary, Ministry of Foreign Affairs made the following assertions in para. 2 of the affidavit filed on 19th June 1957. Paragraph 2 of his affidavit is as follows :‑ "That the statement made in para. 2 of the petition is partly incorrect and partly distorted. The true and correct facts are that the petitioner attained the age of superannu ation on 31st October 1956, on which date he became 55 years of age. In May 1956, his case was considered for continuation of his services and he was allowed to continue in service for 6 months with effect from 1st November 1956, for purposes of consideration whether the petitioner should continue in service upto his next succeeding birthday i.e. 31st October 1957. This was done in order to give him a further opportunity as his work was unsatisfactory and he was superseded more than once. In January 1957, after considering the petitioner's work and record, it was decided not to retain him in service, but as under the instructions contained in the Establishment Division's O. M. No. 5/6‑55 SE. 11, dated 21st February 1955, the competent authority is required to give 6 months notice prescribing the date on which the Government servant concerned shall be retired the petitioner was informed in time that the Government had decided to retire him with effect from 16th July 1957. The notice of retirement given to the petitioner was in time". The learned counsel for the respondent further urged that the order of compulsory retirement is neither a dismissal, nor a removal, nor reduction in rank within the meaning of Article 181 of the Constitution and therefore this Court cannot interfere in this matter and cannot grant any relief to the petitioner. There are thus two questions for consideration in this matter, firstly whether the respondent had absolute right to compulsorily retire the petitioner at the age of fifty‑five or is he entitled to remain in service till the age of 60 years and could only be retired after a show‑cause notice was given to him or, the finding that he was inefficient and secondly, whether this Court can grant any relief to the petitioner. So far as the last question is concerned, this Court in several matters has taken the view that the dismissal, removal and reduction in rank contemplated in Article 181 of the Cons titution is not used in any technical sense but in a popular sense. It is our considered view that the interpretation of these terms cannot be narrowed down simply because under the rule framed the removal and dismissal of a Government servant can only be imposed for misconduct and indiscipline c and any order not based on these grounds should be treated as termination of the employment of a Government servant under Article 180 because the Civil servants hold office at the pleasure of the President and the Governor as the case may be. The contention that the State has the power to terminate their employment at pleasure at any time for any reason stated or unstated, and that right of the State cannot in any way be abridged or controlled or clogged by any rule made by the Government or a Department of the State with regard to the age of retirement, is not correct aid has been negatived in those decisions. Similar contention was repelled by Their Lordships of the Privy Council in Clifford B. Reilly v. Emperor (A I R 1934 P C 60). Their Lordships observed at page 61 of the report :‑ "The petition of right is founded on averments that there was a contract between the suppliant and the Crown and that the contract had been broken. Both Courts in Canada have decided that by reason of the statutory abolition of the office Mr. Reilly was not entitled to any remedy, but apparently on different grounds. Maclean, J., concluded that the relation between the holder of a public office and the Crown was not contractual. There never had been a contract and the foundation of the petition failed. Order J's. judgment in the Supreme Court seems to admit that the relation might be at any rate partly contractual ; but he holds that any such contract must be subject to the neces sary term that the Crown could dismiss at pleasure. If so, there could have been no breach. Their Lordships are not prepared to accede to this view of the contract, if contract there be. If the terms of the appointment definitely prescribe a term and expressly provide for a power to determine "for cause" it appears necessarily to follow that any implication of a power to dismiss at pleasure is excluded. This appears to follow from the reasoning of the Board in Gould v. Stuart 1826 A C

575. This was riot the case of a public office, but in this connexion the distinction between an office and other service is imma terial. The contrary view to that here expressed would defeat the security given to numerous servants of the Crown ill judicial and quasi‑judicial and other offices throughout the Empire, where one of the terms of their appointment has been expressed to be dismissal for cause". The protections given to the Government servant under Articles 181 and 182 of the Constitution are substantial and not imaginary and the termination of the employment of any Government servant in disregard of the condition of the service will always be looked with disfavour by Court of law and the writ jurisdiction of this Court can be invoked for the redress of such grievances. We entirely agreed with the submission of the learned counsel for the petitioner that the Article 180, Article 181 and Article 182 should be read together. The terms dismissal removal and reduction in rank are not defined in the Constitu tion. The argument that these terms were known at the time of the framing of the Constitution in the same sense as applied in the Fundamental Rules and therefore the framers of the Constitution must have known and should be taken to have used them in the same sense cannot stand the test laid down for the interpretation of the Constitution. We have carefully considered the contrary view expressed on this subject in the Indian decisions particularly in Satish Chandra Anand v. The Union of India (A I R 1953 S C 270), that Article 311 of the Indian Constitution comes into operation only when an employee is dismissed or removed from service for misconduct. This view is also based on the ground that dismissal or removal as envisaged in the Constitution is in the same sense as used in the Fundamental Rules. With due respect to the learned judges of the Indian Supreme Court, this approach to the constitutional provisions is not warranted by the language of Article 181 of our Constitution. The learned judges over looked the fact that in section 240 of the Government of India Act only dismissal was used and therefore the Fundamental Rules dealt with the cases of dismissal of Government servants. Under section 277 of the old Government of India Act, 1935. the term "dismissal" was also defined to include "removal" and therefore the term "removal" was also taken to connote the same idea as dismissal. Under the present Constitution, however, in ‑Article 181 of our Constitution, the words "dis missal" and "removal" are mentioned separately and used in contradistinction to each other and must carry different meanings. Dismissal means terminating the services of tile Government servant for misconduct and indiscipline and remo val means terminating the services for any other reason than misconduct and indiscipline and not in accordance with the rules and conditions of service. It appears to us that this approach will make the constitutional guarantees given to the Government servants effective and the view taken by the Indian decision will unreasonably restrict the scope of the constitutional provision and will expose the hollowness of the constitutional guarantees. Can the State Government termi nate the services of permanent employees on the pretext that they are inefficient or on the ground that the retention of particular set of permanent Government servants is not liked by the political party in power without complying with the provision of Article 181 of the Constitution ? The answer should be an emphatic No I It appears to us that any other interpretation will make the provision of the Constitution wholly nugatory and is bound to result in chaos, confusion and dissatisfaction in the services concerned. It is a well established principle of interpretation of statutes that the constitutional provisions should be construed in a liberal manner unless there is something in the Constitution itself which makes obligatory to interpret them in a narrow sense. We are unable to discover anything in the Constitution to give such a narrow interpretation and hold that the termknation of the employment of a Government servant against the rules and conditions of service will be a removal within the meaning of the provisions of Article 181 of the Constitution. This brings us to the most important question involved in this matter namely, what is the precise scope and nature of the rule governing the case of the petitioner. Admittedly the petitioner's case is governed by Rule 56 (b) (i) of the Funda mental Rules. The plain reading of this rule shows that if the petitioner continues efficient, he is entitled to be retained in service upto the age of 60 years. The learned counsel for the respondent urged that the petitioner's case was considered by the authorities, he was found to be inefficient and therefore ordered to compulsorily retire before the age of 60 years. He also contended that under the relevant rule the petitioner was not entitled to any notice to show cause as contemplated under Article 181 of the Constitution and the Government on subjective consideration was entitled to relieve him before the age of 60 years. In support of this contention the learned counsel placed reliance on Raghunath Narain Mathur v. Union of India (A I R 1953 All. 352); Ramesh Chandra Chatterjee v. Director General of Observatories and another (A I R 1953 Cal. 767); Satish Chandra Anand v. The Union of India (A I R 1953 S C 250); Shyamlal v. State of Uttar Pradesh and another (A I R 1954 S C 369); Jai Ram v. Union of India (A I R1954 S C 584) and Munshiram v. State of Madhya Bharat (A I R 1954 M B 54). The sheet anchor of the respon dent's counsel in this case was a decision of their Lordships of the Lahore High Court. consisting of Munir, C. J. and Rahman J, reported in Muhammad Ismail v. The Punjab Province (P L R 1956 W P Lah. 213 : P L D 1956 Lah. 129). We will first examine the last mentioned case reported in Muhammad Ismail v. The Punjab Province (P L R 1956 W P Lah. 213 : P L D 1956 Lah. 129). In that case the learned Judges were considering the question of the compulsory retirement of a Deputy Collector in the irrigation Department of the Province of West Punjab, This employee was to complete his 55th year of age on 16th July 1957 and on this date he was due to retire under rule 3.28 of the Revised Civil Service Rules (Punjab) Volume

1. The employee had completed 25 years of service but his reputation and work were not satisfactory. The scrutinising Committee came to the conclusion that because of inefficiency and doubt ful honesty, he should be asked to retire from service or; pension. Consequently a letter was written to him that since he had completed 25 years of service, the Government consi dered that he was no longer a useful member of the service and that he be retired under rule 5'33 (b). He was also supplied with the adverse reports and was called upon to show cause within ten days against his intended retirement. The Government after considering the reply ordered his com pulsory retirement. The only question, before the learned judges, was whether the retirement under rule 5.32 (5.33 revised) amounted to removal to which the restrictions impos ed by section 240 read with section 277 of the Government of India Act applied. The learned judges came to the following conclusion :‑ "We are, therefore, of the view that the retirement in the present case did not amount to the penalty of dis. missal, or removal, that no inquiry into the appellant's conduct was necessary, that the Government had an absolute right to retire him on his completing 25 years' qualifying service, that the right to so retire him was one of the conditions of the appellants service that the appellant had no enforceable claim that he must be allowed to continue in service till he attains the age of 55 and that his compulsory retirement before attaining the age of 55, Government being willing to grant him a pension on the basis of 25 years' qualifying service, gave him no cause of action against this Government". This conclusion was largely based on the following Departmental Note under clause (b):‑ Government retains an absolute right to retire any Government servant 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 a Government servant such as on account of inefficiency or dishonesty. Thus the rule is intended for use :‑ (i) against a Government servant whose efficiency is impaired but against whom it is not desirable to make formal charges of inefficiency, or against one who has ceased to be fully efficient (i.e., when a Government servant's value is clearly incommensurate with the pay which he draws) but not to such a degree as to warrant his retirement on a compassionate allowance ; and (ii) in cases where corruption is clearly established even though no specific instance is likely to be proved under the Punjab Civil Services (Punishment and Appeal) Rules, Chapter XIV of Volume 1 of these rules, or the Public Servants (Inquiries) Act XXXVII of 1850." The learned Judges also came to the conclusion that these rules occur in the Chapter which deals with "Con ditions of Service" and must therefore be considered to embody in them that a Government servant may be required by Government to retire on completing his 25 years of service. There is no such rule applicable to the Central Government servants. The note does not appear either in the conditions of service or any other rules applicable to these servants and therefore the reasoning in the Lahore judgment cannot be made applicable to the facts of the present case. There are certain observations of the learned judges in that case which the learned counsel for the respondent contended are applicable in this case. The learned counsel pressed for our consideration the following observations If this interpretation of the rule be correct then the order of retirement in the present case cannot be described to be an order of removal within the meaning of section 277 of the Government of India Act or Rule 14.10 of the Civil Services Rules, Volume I, for which a regular inquiry under Punishment and Appeal Rules or the Public Servants (Inquiries) Act is necessary, and an omission to follow which procedure may amount to refusing to the Govern ment Servant a reasonable opportunity to show cause against the action intended to be taken against him as enjoined by section 240 of the Government of India Act. It is true that an involuntary retirement is in a sense removal from service but the essential question is whether such retirement is 'removal' within the meaning of section 247 of the Government of India Act or rules 14.10 of the Civil Services Rules, Volume I where this word clearly appears to have been used to signify removal for misconduct. There is no provision in the Civil Services Rules which specifically declares that a Government Servant shall not be made to retire before he attains the age of

55. Though rule 3.28 provides that the date of compulsory retirement of a Government Servant is the date on which he attains the age of 55 years, that rule means no more than that, irrespective of the length of a Government servant's service, he cannot except in certain cases be kept in service on his attaining the age of 55 years because after that age a Government servant generally becomes physically unfit to discharge the duties of his office. Even where a person is employed by Government say at the age of 50 years, he must under the rules retire at the age of 55, and the same will be the result if he was employed much earlier and has even completed 25 years service before he attains the age of

55. The rule cannot be construed so as to infer from it a positive rule that no Government servant can he asked o retire unless he attains the age of 55 years On the contrary there is. as pointed out above, rule 5.33 clause (b) which expressly provides that a person may be required by Government to retire after completing 25 years qualifying service and rule 5.36 which directs all competent authorities to retire Govern ment servants who have completed 25 years qualifying service if such retirement is considered necessary in the public interests. These rules occur in the chapter which deals with 'Conditions of Service and must therefore be considered to embody in them the condition that a Government 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 concerned. The procedure of communicating confidential remarks in the service book to the servant whom it is intended to retire is adopted not because it is a legal or departmental necessity but merely with a view to giving him an opportunity of showing that the adverse remarks on the strength of which action is proposed to be taken against him were in fact unfounded or that they were made by the superior officer maliciously or on the basis of false or incorrect data. Section 277 of the Government of India Act reads a s under :‑ "Interpretations, etc.‑(1) In this Part of this Act‑the expressions 'all‑India Services' 'Central Service Class I' 'Central Service Class II,' 'Railway Service Class I' 'Railway Service Class II, and 'Provincial Service' mean respectively the services which were immediately before the commencement of Part III of this Act, so described respectively in the classification rules then in force under section ninety‑six B of the Government of India Act ; and references to dismissal from His Majesty's service include references to removal from His Majesty's service." It will be seen that under this interpretation clause references to dismissal from His Majesty's service includes references to removal from His Majesty's service. There is no such interpretation clause under the present Constitution and for this reason also the conclusion of their Lordships of Lahore High Court cannot be applied to the facts of the present case. On the contrary under the present Consti tution in Article 218, the services of Pakistan have been defined as under :‑ " 'Service of Pakistan' means any service or post in connection with the affairs of the Federation or of a Province, and includes any defence service, and any other service declared as a service of Pakistan by or under an Act of Parliament or of a Provincial Legislature, but does not include service as Governor‑General, President, Governor, Speaker or Deputy Speaker, of the National or a Provincial Assembly, Minister of the Federal or a Pro vincial Government, Minister of State or Deputy Minister of the Federal Government, Deputy Minister or Parlia mentary Secretary of a Provincial Government, Judge of the Supreme Court, or a High Court or Comptroller and Auditor‑General ; and 'servant of Pakistan' shall be con strued accordingly :" The learned judges, however, in that case were dealing entirely with a different situation. They came to the conclusion that there was a specific rule empowering the Government to retire a Government servant on the com pletion of 25 years service on grounds of public policy and under the rules such employee was not entitled to a show- cause notice. These observations must therefore be read in that context and should not be extended further than that. This case is clearly distinguishable and has not laid down any general rule or law that all Government servants irres pective of any rule can be retired by the Government compulsorily before the age of superannuation and on the contrary the learned judges while considering the rules for the services of Punjab without the note observed that the said rule, "merely affirms the principle that on the attainment of the age of 55 years a Government servant who is not in ministerial service generally becomes physically unfit to discharge his duties. In the case of a ministerial servant where the nature of public duties is to some extent different from that of other Government servants, the age of com pulsory retirement is 60 years". The same is the case of Government servants governed by Fundamental rule 56 (b) (i). The reading of this section makes it quite clear that the ordinary age of retirement of a ministerial servant is 60 years unless found to be inefficient at the age of

55. The Indian decision on the question under consideration however supports the contention of the learned counsel for the respondent, but judgment of all the High Courts in India except Raghunath Narain Mathur v. Union of India (A I R 1953 All. 352) are based on the decision of the Supreme Court of India in Satish Chandra Anand v. The Union of India (A I R 1953 S C 250) and Shyamlal v. State of Uttar Pradesh (A I R 1954 S C 369). The reasoning in those judgments is based on the grounds that the removal and dismissal contemplated under Article 311 of the Indian Constitution is only of that nature where a public servant has been ordered to be removed or dismissed on account of any misconduct or indiscipline. We have already held that this view of their Lordships of the Supreme Court of India is not in accordance with the provisions of Article 311 of the Indian Constitution and also Article 181 of our Constitution and cannot be accepted by us as sound. In Ramesh Chandra Chatterjee v. Director General of Observatories and another (A I R1953 Cal.767) Sinha, J. observed as under :‑ Of course, compulsory retirement at 55 when a man might work till 60, is in a sense dismissal or removal and neither Article 311 (2) nor rule 55 C. S. (C. C. A.) speaks about misconduct or indiscipline. But the law has now been interpreted by the Supreme Court and I am bound to hold that the dismissal or removal there contemplated must be read with rule 49 C. S. (C. C. A.) There are some Indian decisions cited by the learned counsel for the petitioner holding a contrary view namely, Shambhu Dayal v. Patiala and East Punjab States Union (A I R 1952 Pepsu 152) and S. Anup Singh v. The State (A I R 1953 Pepsu 24) but these two authorities have not been followed by a later decision of the Pepsu High Court in Nitmochinder Singh Gurdial Singh v. State of Patiala and East Punjab States Union (A I R 1955 Pepsu 65) in view of the decision of the Indian Supreme Court in Shyamlal v. State of Uttar Pradesh and another (A I R 1954 S C 369). The learned counsel for the respondent has also relied on Saubhagchand M. Doshi v. State of Saurashtra (A I R 1954 Saurashtra 146). The learned judges in that case held :‑ "A premature compulsory retirement on the ground of inefficiency or dishonesty or such other cause amounts to either dismissal or removal of the servant within the meaning of Article 311". But in that case there was a specific rule which empowered the Government to retire a Government servant from service on the ground of inefficiency only after a show -cause notice is given to the employee. This case also does not lay down any general principle of law which can be useful to the present case. The learned counsel for the respondent, however, invited our attention to the case in Jai Ram v. Union of India (A I R 1954 S C 584) to show that this question is still open in Indian Courts and there is still conflict of opinion on the question under consideration: In that case a similar rule as the one under consideration was the subject of dispute, Although the learned Judges decided the matter on the ground that the Government servant concerned had himself applied to retire from service before the age of 60 but there are certain observations which are very pertinent for the decision of this case. Mukherjea, J in the course of his judgment observed :‑ "We think that it is a possible view to take upon the language of this rule that a ministerial servant coming within its purview has normally the right to be retained in service till he reaches the age of

60. This is conditional undoubtedly upon his continuing to be efficient. We may assume, therefore, for purposes of this case that the plaintiff had the right to continue in service till 60 and could not be retired before that except on the ground of inefficiency. But that by itself affords no solution of the question that requires consideration in the present case. Here the plaintiff; was not compelled or required to retire by anybody. If the Government required him to retire in terms of the Fundamental Rule 56 (b) (i), it might be argued that he should have been given an opportunity to show that he was still efficient and able to discharge his duties and consequently could not be retired at that age. But here the situation was entirely of the plaintiff's own seeking and his own creation". Their Lordships however observed :‑ "When a servant has attained the age of 55 years and for some reason or other himself confesses his inability to continue in service any longer and seeks permission for retirement we consider it to be a useless formality to ask him to show cause as to why his service should not be terminated. Section 240 (3) of the Government of India Act, 1935 could not have any possible application in such circumstances. The first contention of the appellant must, therefore, in our opinion fail." These observations of the learned Judges of the Supreme Court of India were on an analogous provision of the rules and support the view pressed on behalf of the petitioner. 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 5 if he is found to be inefficient. Under this rule the efficiency of the Government servant cannot be decided on subjective consideration but must be arrived at after giving an oppor tunity 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. There is not an iota of evidence on the record to show that the petitioner was at any time before the order of retirement informed that he was inefficient and his case will be considered again for the purposes of retirement under the relevant rule. We are clearly of the opinion that the State Government in the present case committed breach of the condition of the service and this is a fit case to exercise jurisdiction under Article 170 of the Constitution. For the reasons given above, the petition is allowed. A writ will be issued to the respondent that the petitioner continue in service till such time as an action is taken in accordance with the rules for compulsory retirement. The respondent will pay the costs of this petition. A. H. Petition allowed.