P L D 1969 Lahore 98 (PLP)

SARDAR MUHAMMAD IQBAL, J.‑S. Gulzar Hussain Bokhari, petitioner, was born on the 24th of August 1907 He joined the Irrigation Department as an Overseer on the 4th of June 1938. Before the Constitution (Sixth Amendment) Act of 1966, his age of retirement was sixty years. Under the West Pakistan Govern ment Servants (Further Usefulness in Public Service) Rules, 1963, his case was reviewed on his completing the fifty‑fifth year of age, but no action was taken for his retirement. On the enforcement of his Constitution (Sixth Amendment) Act. The Chief Engineer, Irrigation, Lahore Region, by his order, dated the Ist of July 1966, directed under sub‑clause (b) of clause (4) of Article 178 the retirement of the petitioner from Government Service with effect from the 15th of July 1966 (forenoon). The petitioner has challenged this order through this petition under Article 98 of the Constitution.

2. The petition was based on the ground that the Constitution (Sixth Amendment) Act of 1966 was not validly made inasmuch as two‑thirds of the members of the National Assembly did not vote for the amendment. The precise question was considered by the Full Bench in A. M. K. Leghari v. Government of West Pakistan (Writ Petition No. 1104 of 1966) and it was field that the Amending Act was immune from challenge under Article

98. The petition, therefore, cannot succeed on the basis of this contention.

3. Learned counsel for the petitioner, however, contended that after the case of the petitioner was reviewed under the West Pakistan Government Servants (Further Usefulness in Public Service) Rules, 1963, he had a vested right to continue in service till he attained the age of sixty. There is no denying the fact that under President's Order No. I of 1958, as amended from time to time, the age of retirement was fixed at sixty. Since, on the review of his case, the petitioner was not retired under the West Pakistan Government Servants (Further Usefulness in Public Service) Rules, 1963, he had indeed the right to continue till he had attained the age of sixty. He had, therefore, a vested right, but this right has been taken away by the Amending Act and the relevant portion of clause (4) reads as : "A person whose terms and conditions of service are governed by Article 127 or Article 154 or Article 176 (not being a member of the Armed Forces of Pakistan) or paragraph (b) of Article 181 shall, notwithstanding anything contained in this Constitution or in any law or in the terms and conditions of his service, retire from service" "if he has completed before, or completes within a period of six months from, the commencement of the Constitution (Sixth Amendment) Act, 1966, the fifty‑fifth year of his age, on such date after such completion, being a date within the said period, as the competent authority may direct, or in the absence of such direction, ran the expiry of the said period, or on the completion of the sixtieth year of his age, whichever be earlier." By the amendment of the Constitution the right which was already created in favour of the petitioner under President's Order No. 1 of 1958 to retire at the age of sixty was taken away, and since he had already attained the age of fifty‑five years before the commencement of the Constitution, the competent authority could direct his retirement from any date between the 31st of March 1966 and the 30th of September 1966. In the absence of any such direction from the competent authority, such a person retired automatically on the afternoon of the 30th of September 1966. The right of the petitioner already existing in his favour to retire at the age of sixty was, therefore, taken away and under the Amending Act the slate of his retirement had to be determined under sub‑clause (b) of clause (4) of Article 178.

4. It was next contended by the learned counsel for the petitioner that under sub‑clause (b) of clause (4) of Article 178, the petitioner was to retire on the 30th of September 1966 and the order of the competent authority directing his retirement with effect from the 15th of July 1966 (forenoon) was illegal inasmuch as the competent authority 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 in 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 it" a person has completed the age of fifty‑five years before the coming into force of the Constitution, he could be retired by the competent authority on any date within a period of six' months from the commencement of the Consti tution. The exercise of such a power by the competent authority was not made dependant 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 not 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, unten able. In Muhammad Ismail v. Punjab Province (P L D 1956 Lah. 129) it was held that "a Government servant may be required by Govern ment 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 com municate it to the Government servant concerned." It was further held that "the order of retirement in such a case does not amount to removal within the meaning of section 277 of the Government of India Act, 1935 car Rule 14.10 of the Civil Services Rules, Vol. 1, 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 Lah. 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 optional 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 alone. In Pakistan v. Liaquat Ali Khan (P L D 1959 S C (Pak.) 37) it was held that Rule 56(b)(i), Fundamental Rules "gives unfettered discretion to the Govern ment 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 Govern ment 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 15th of July 1966, the principles of natural justice do not apply to his case.

5. It was also contended that the Chief Engineer had acted mala fide in ordering the retirement of the petitioner before the 30th 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 has 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): " The correct attitude in estimating the actions of Government is indeed that they must be regarded having been taken bona fide until and unless the contrary is established."

6. It was next contended that since the petitioner held the substantive rank of an overseer and he was only officiating as S. D. O. which gave him no right to hold that office and unless he had been confirmed as S. D. O., he was non‑gazetted employee. The learned counsel relied on the instructions of the Government of West Pakistan to contend that he 'had been granted extension in service up to the 30th of September 1967, by order of the Chief Secretary. We find it unnecessary to go into the question whether or not the petitioner in fact belonged to the ministerial service at the time impugned order was passed because even it be assumed that it was so, no extension was granted by these instructions. The letter lays down certain principles for the guidance of the competent authorities to take action under clause (5) of Article

178. Under clause (5) it was for the competent authority to grant or refuse the extension. If the competent authority ignores these instructions and refuses 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 male 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 semb lance 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) : "no letters

issued by the executive authorities could take the place of the properly framed Rules and they could not 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 instruc tions by the Chief Secretary could not override the constitutional provisions.

7. The petitioner has, by operation of the constitutional provision, retired on the 15th of July 1966. 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 he had not a vested right, he cannot complain of any actionable wrong. The petitioner is, therefore, not an aggrieved person within the meaning of Article 98 of the Constitution. It was held in Badrul Haque Khan v. Election Tribunal, Dacca (P L D 1963 S C 704) that a petition under Article 98 of the Constitution could be by an aggrieved party. Again in Muhammad Abdus Salam v. Chairman, East Pakistan Election Authority (P L D 1965 Dacca 231) it was held by the Dacca High Court 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. A. E. Appeal dismissed.