P L D 1957 (W (PLP)

MUHAMMAD BAKHSH, J.

In this case I had delivered judgment on 5th August 1954, dismissing the plaintiff's suit as a result of my finding on issue No. 2, wherein I held that the notice under section 80, Civil P. C. given by the plaintiff to the defendant was not proper. Issue No. 2 had been taken up by consent as a preliminary issue. The plaintiff went in appeal and the Appellate Court agreed with my view but they were of the opinion that this technical difficulty should be got over in appeal. The Appellate Court accordingly allowed the plaintiff to amend his plaint by the deletion of a portion of sub-para. (ii) of para. 15 of the plaint. That was done and the suit has been remanded to me for trial upon further issues. A reference may therefore be made to my original judgment dated 5th August 1954. I will now take up the remaining issues. In fact, the whole case of the plaintiff depends on issue No. 1 which reads as follows :- "Has any cause of action accrued to the plaintiff for the suit." Many documents were by consent admitted in evidence and I have heard the learned Advocates for both the parties at a considerable length. The main question in this case pertains to the interpretation of Fundamental Rule 56 (b) (i). This rule reads as follows :-- "A ministerial servant . . . , may be required to retire at the age of 55 years, but should ordinarily be y retained in service, if he continues efficient, upto the age of 60 years. He must not be retained after that age except v in very special circumstances, which must be recorded in writing, and with the sanction of the Local Government." It is an admitted ground that the plaintiff attained the age of 55 years on 8th March 1948. On 27th March 1948, he was given orders to relinquish his post. This order reads as follows :- "As per orders conveyed through A. D. S. Mr. Waliullah H/C issue section is to be relieved today afternoon. The H/C Staff Section, and the accountant will please note this. The question of his retirement or leave will be decided in due course of time." The plaintiff was relieved on that day. On 22nd September 1948, came the following order (Exh. 26) :- "Mr. A. K. Walliullah Head Clerk, Circle Office, Karachi, who attained the age of superannuation viz., 55 years on the 8th March 1948, been granted by the Director-General Pakistan Karachi an ex post facto sanction to his retention in service from 8th March 1948 to 27th March 1948 and is placed on the retired list with effect from the 28th March 1948." The learned Advocate for the plaintiff has argued that under Fundamental Rule No. 56 (b) (i) the plaintiff could not be retired before attaining the age of 60 years unless and until it was proved that he was inefficient. He has relied for his view on a copy of a Memorandum issued by the Director-?General, Posts and Telegraphs, New Delhi to all Heads of Circles on 18th August 1938. The relevant portion of this Memorandum reads as follows :- "It should be noted that in the case of a ministerial Government servant, the date of compulsory retire?ment is not the date of his attaining 56 years of age but the date from which he is required to retire which may be either 55 or later. The learned Advocate has also referred to sub-rule (iv) on page 104 of Volume I, Fundamental Rules and Supple?mentary Rules which reads as follows :- "In view of the occurrence of the word `ordinarily' in Fundamental Rule 56 (b) a ministerial Government servant can be retired from Government service between the ages of 55 to 60 years on grounds other than those of efficiency and in such a case he has no claim to be retained in service upto the age of 60 years nor is he entitled to any compensation for loss of appointment. The purpose of Fundamental Rule 56 is not to confer upon Government servants any right to be retained in service upto a particular age, but to prescribe the age beyond which they may not be retained in service;" Then the learned Advocate has also relied on the copy of communication, dated, 7th May 1946 (Exh. 9) from the Director-General of Posts and Telegraphs, New Delhi to all Heads of Circles. This communication reads as follows : - "After a detailed examination of the whole question it has been decided by the Government of India that the retention of ministerial servants in service after the age of 55 years should be continued to be governed according to the principle laid down in Fundamental Rules 56 (b) (i) and the issue of any executive instructions compulsorily retiring them before attaining the age of 60 would be an adverse change in their conditions of service. Instructions have, however, been issued to all Heads of Offices that the ministerial servants should not be retained in service after the age of 55 years, as a matter of course, but each case should be decided on its merits." The learned Advocate has further relied on a ruling of the Government of India on this point. This is to be found in a slip at page 234 of the Fundamental Rules, Volume I. It reads as follows :? "It has been held in consultation with the Advocate? General of India that the retirement of a ministerial Government servant governed by Fundamental Rule 56 (b) (i), after the age of 55 years but before attaining the age of 60 years, either due to efficiency or otherwise, would?????? attract the provisions of section 240 (3) of the Government of India Act, 1935. Ir. other words, no ministerial Government servant to whom Fundamental Rule 56 (b) (i) applies, and who has attained the age of 55 years but has not attained the age of 60 years, can be required to retire from service unless he has been given a reasonable opportunity to show cause against the proposed retirement and unless any representation that he may desire to make in this connection has been duly considered before final orders in the matter are passed. This ruling may be noted for future guidance." The learned Advocate Mr. Nasiruddin appearing for the Government relied on three documents viz., Exhs. 48, 49 and

72. Exhibit 48 is an office memorandum issued by the Government of Pakistan, Cabinet Secretariat on 21st November 1949. It reads as follows :? "In continuation of the Cabinet Secretariat (Establish?ment Branch) Office Memorandum No. 5/4/49-S.E. II, dated the 15th November 1949, on the above subject, the under? signed is directed to say that, for the purposes of para. 1 (i) of that Office Memorandum the date of retirement in the case of ministerial staff will also be the date on which the Government servant concerned attains the age of 55 years. Attention in this connection is invited to the late Government of India's order No. (2) printed on page 200 of the Posts and Telegraphs Compilation (Second Edition) of the Fundamental and Supplementary Rules, which lays down that Fundamental Rule 56 (b) does not confer any right on a ministerial Government servant to be continued in service after the age of 55, and that he can, therefore, be retired when he reaches the age of 55 years, even if he continues to be efficient." Exhibit 59 is an Office Memorandum issued by the Cabinet Secretariat, Government of Pakistan on 22nd February 1951. It reads as follows :- "In supersession of the orders contained in the Cabinet Secretariat (Establishment Branch) Office Memorandum No. 5/4/49-SE II, dated the 15th November 1949, 21st November 1949 and 15th December 1949, on the above subject the under-signed is directed to say that the grant of extensions of service beyond the age of compulsory retire?ment and the re-employment of retired persons should be regulated by the following instructions :- (i) A Government servant should be retired at the age of his compulsory retirement, as determined by clauses (a) or (b) of Fundamental Rule 56, as the case may be, and no extension of service should be granted beyond that date. (ii) Where it is considered in the public interest to utilise the services of a person who has retired under Fundamental Rule 56 (a) or (b) as the case may be, he may be re-employed, provided he is physically fit and suitable for re-employment." Exhibit 72 is a very important document. It is an Office Memorandum issued by the Cabinet Secretariat, Government of Pakistan on 14th June 1952. Para. 4 which is the relevant paragraph reads as follows :- "As regards inefficiency, the question has been raised whether this has to be proved after regular proceedings being drawn up. This is not the case. The competent authority has f ull discretion to retire ministerial servants at the age of 55, or at any time between the ages of 55 and 60, without disclosing the reasons for doing so, if he holds them not to be efficient for any reason. This can be done, not by way of penalty, but for reasons which he may take into account but need not disclose. Compulsory retirement is distin?guishable from removal from service and does not attract the provision of section 240 (3) of the Government of India Act, 1935." According to me the interpretation of the rule in question as disclosed in Exh. 72 above, appears to be the correct interpretation. It is entirely left to the competent authority to determine the date when the ministerial servant should be made to retire. That date may follow immediately at the end A of 55 years or on any date thereafter upto the limit of 60 years. I am also of the opinion that the question of efficiency does not attract the provisions of section 240 (3) of B the Government of India Act, 1935 as was held in the ruling of the Government of India. I am therefore, of the opinion that the retirement of the plaintiff with effect from 28th March 1948, was perfectly justifiable and the plaintiff had no cause of action. I accordingly give my finding on issue No. 1 in the negative. Issues 3 to 5.-The questions involved in all these issues rest on the result of issue No. 1, and since I have already held on issue No. 1 against the plaintiff, I give my findings on all these issues in the negative. Issues 6 to 7.-In the result, I dismiss the plaintiff's suit and make no order as to costs. A. H. ?????????????????????????????????????????????????????????????????????????????????????????????????? Suit dismissed.