P L D 1969 Supreme Court 1 (PLP)

In pursuance of this recommendation, the Governor made the following order on the 2nd of June 1959 :‑ "In exercise of powers conferred on him by sub‑clause (b) of clause (5) of Article 6 of the Laws (Continuance in Force) Order, 1958, the Governor has been pleased to order retirement of Moulvi Marzuqullah, Deputy Magistrate and Deputy Collector, on probation, lately employed Circle Officer, Cox's Bazar, Chittagong (under suspension) from service with effect from the date of this order for `inefficiency ". The respondent challenged this order as well as the report of the Screening Committee as illegal, void and mala fide by a suit in the Court of the Sub‑Judge, Chittagong. Besides the declaration about the illegality of the order, the respondent sought relief for his re‑instatement in service. The appellant resisted the suit on the two main grounds that the order in question was passed legally in due exercise of powers of the Governor as conferred on him by law and that the order was neither illegal nor mala fide and further that it could not be questioned before the Courts of law. The first Court decreed the respondent's suit except in regard to the relief for re‑instatement and the High Court has affirmed the decree by dismissing the appellant's appeal preferred against it. In brief, both the Courts below have accepted the contention of the respondent that the ground of inefficiency on which he was pre‑maturely retired was not available to the appellant at the time when this action was taken against him. It was pointed out that rule 2(c) of the Public Conduct (Scrutiny) Rules, 1959, which were framed under section 8 of the Public Conduct (Scrutiny) Ordinance of 1959, as originally enacted on the 21st of January 1959, did permit such a course, that is, the retirement of the public servants on the ground of inefficiency, but by a subse quent amendment made on the 28th of February 1959, this rule was omitted so that from since that date inefficiency ceased to be a valid ground for the scrutiny of the officials and for their retirement from service. The trial Court was also of the opinion that unsatisfactory service of the respondent, as adjudged by the Screening Com mittee, was not the same thing as "inefficiency" but this view has been expressly dissented from by the High Court, which, while discussing the recommendation of the Screening Committee, has observed as follows :‑ "There can be no manner of doubt whatsoever that the recommendation of the Screening Committee was to compul sorily retire the plaintiff on the ground of his "inefficiency". This is the plain meaning of the language quoted above. It is incapable of any other meaning." We regret to say that both the trial Judge and the High Court have gone off the mark in seeking guidance from the provisions of the Public Conduct (Scrutiny) Ordinance, 1959 and the rules made there under, as they were wholly irrelevant in the decision of this case. The High Court in particular had itself pertinently posed the question whether the officer could be retired compulsorily on the ground of inefficiency under the powers quoted in the impugned order. Yet, while reaching its conclusion, it totally lost sight of the nature and extent of that power. The source of the power for retiring the respondent compulsorily, as quoted in the Governor's order, cited above is sub‑clause (b) of clause (5) of Article 6 of the Laws (Continuance in Force) Order, 1959. This clause as well as clauses 3 and 4 were added to Article 6 of the Order by the Laws (Continuance in Force) (Amendment). Order of 1959 (President's Order No. 1 of 1959), promulgated on the 9th of March 1959 and made effective as from the 22nd of November 1958. Clause (5) was subsequently amended by President's Order No. 5 of 1959 promulgated on the 23rd of April 1959. 'the two sub‑clauses (a) and (b) of clause 5 which are inter‑linked, as amended, may here be usefully reproduced: Article 6, clause (5): -- "Nothing in this Article or in any law, rule or instrument having the force of law shall prevent a person mentioned in clause (1) from being :‑ (a) suspended, reduced in rank, removed or dismissed for being corrupt or for misconduct or for inefficiency, after such enquiry as may be held under the orders of the Central Government; or (b) retired for any cause mentioned in the preceding sub -clause, or for having the reputation of being corrupt, on such pension (if any) as may be admissible to him, proportionate or otherwise by any order of the authority mentioned in clause (3) made before the 1st of July 1959, . . . . . . and no appeal shall lie against such order nor shall such order be called in question in any Court." It will be seen that sub‑clause (b) by reference to sub‑clause (a) Includes 'inefficiency' as a ground for the compulsory retirement of a person in the service of Pakistan, if the order of his retire ment is made before the 1st of July 1959. This provision which a is part of a super‑constitutional law, namely the Laws (Continu ance in Force) Order of 1959, is independent of any other law and has an overriding effect, notwithstanding anything inconsistent therewith or having the contrary purpose, in any other law rule or instrument having the force of law. It is also clear that for action under clause (5) (b) aforesaid, no enquiry was at all necessary and the one made in this case by the Screening Committee was merely gratuitous. Nonethe less it did afford an opportunity to the respondent to explain and vindicate his position qua the charges levelled against him. He was not entitled as of right to any statutory show‑cause notice before action was ‑ taken against him under clause (b) aforesaid, but the inquiry which was instituted wards off the objection that could have been made, in the absence of an inquiry, that he was condemned unheard against the principles of natural justice. As the order for the compulsory retirement of the respondent was made on the ground of his inefficiency before the 1st of July 1959, both the conditions of its validity as required by the relevant provision were satisfied, further, as the order was passed by a competent authority namely the Governor, against the respondent who was subject to his authority on a ground, which fell within the ambit of the relevant statute, the Impugned order was fully protected by the "preclusion" clause in the same statute, ousting the jurisdiction of the Courts to entertain a challenge to the order, in terms of the rule enunciated by this Court in the case of Zaffarul Ahsan v. Republic of Pakistan (P L D 1960 S C (Pak.) 113). In the result we accept this Appeal. The respondent's suit thus stands dismissed. We leave the parties to bear their own costs. K. B. A. Appeal accepted.