P L D 1980 Lahore 697 (PLP)

This order shall also dispose of other Writ Petitions Nos. 1666, 1789, 1912, 1913, 1914, 2070, 2075, 2148, 2251-5 of 1980, which involve the same questions of law as being agitated in this petition,

2. The facts leading to this petition are that the petitioner, who joined the Punjab Food Department, as an Assistant Inquiry Officer, on 15th March 1944, was serving as Deputy Director Food in Grade 18, on 5th January 1980, when respondent No. 1 directed under section 12 (ii) of the Punjab Civil Servants Act, 1974, that he shall retire from service in public interest as he had already completed 25 years of service qualifying him for pension or other retirement benefits. The petitioner has not challenged that order by way of an appeal before the departmental authority or the Service Tribunal but has sought for the Constitutional remedy under Article 199, praying that the impugned order be declared to be without lawful authority.

3. The learned counsel for the respondents raised a preliminary objection as to the maintainability of this petition in view of the bar contained in Article 212 of the Constitution. It is provided in Article 212 that notwithstanding anything contained in the earlier part of the Constitution the appropriate Legislature may by Act provide for the establishment of one of more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of matters relating to the terms and conditions of persons, who are or have bean in the service of Pakistan, including disciplinary matters. Article 212 of the Constitution will thus operate to place a curb on the operation of Article 199.

4. Article 212, as said above, curtails the jurisdiction as conferred on this Court by Article

199. The jurisdiction under Article 199 is also not absolute and may not be exercised if there is another adequate remedy available to a petitioner elsewhere. It may transpire from the above that whereas the ouster under Article 199 is in the presence of another adequate remedy the Article 212 denies exercise of power under Article-199 where there is a remedy before a Tribunal constituted by an appropriate Legislature by virtue of Article

212. The ouster under Article 212 is thus absolute, if the necessary jurisdictional facts are obtainable but the same, in the other situation, is discretionary. Further, as the ouster under Article 212 also depends on certain factors, this Court would be entitled to go through the matter to satisfy itself that the necessary factors ousting the jurisdiction are present. Reference b0 made to Tariq Transport Co. v. Sargodha-Bhera Bus Service (1) where their Lordships held : ". . , . . If a tribunal has no jurisdiction either in respect of the subject-matter of litigation or the parties before it or the territory to which the dispute relates or because of its own defective constitution or the illegality of the order, the proceedings are void ab initio, and an appeal in such a case is an unnecessary step and mere prolongation of the proceedings which eventually the Court must hold to be void for lack of jurisdiction , . . . . . ." Similarly in Muhammad Tufail v: Abdul Ghafvor (2), 'the Supreme Court approved the observation made in State v: Mask & Go. (3) that; "It is settled law that the exclusion of the jurisdiction of the civil Courts is not to be readily inferred, but that such exclusion must either he explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been .complied with, or the statutory tribunal has not acted iti conformity with the fundamental principles of judicial procedure." (1) P L D 1958 S C 437 (2) P L D 1958 S (Pak.) 201 (3) ?A T It 1940,)' C 105

5. A perusal of section 4 of the Punjab Administrative Tribunals Act, shows that an appeal before the Tribunal is competent if (i) there should be a final order of a departmental authority ; (ii) it should be about the terms and conditions of service including disciplinary matters ; (iii) the alleged violation should be about terms and conditions other than those given in section 4 (b).

6. An Administrative Tribunal has also been constituted under section 3 of the Punjab Administrative Tribunals Act, 1974, to exercise jurisdiction under that law by virtue of Article 212 of the Constitution. The Act also provides that it shall have exclusive jurisdiction in respect of, inter alia, matters relating to terms and conditions of persons who are or have been in the service of Pakistan including disciplinary matters. Clauses (b) and (c) of section 4, however, create certain exceptions in which no appeal lies. Chapter II of the Punjab Civil Servants Act, 1974, deals with the `terms and conditions of service of civil servants'. Section 12 is its part and the subject of `retirement' is not one of the exceptions mentioned in section 4, referred to above. Thus any order passed with regard to the exceptionable terms an conditions or disciplinary matters will not be appealable before the Adminis?trative Tribunal. No jurisdiction, what to speak of exclusive jurisdiction, will be available with the Tribunal there. In view of the above, the exclu?sion of jurisdiction is not all pervasive but limited to the extent of the jurisdiction of the Tribunal. Thus any civil servant can directly approach this Court despite Article 212 of the Constitution in a case where no appeal lay to the Tribunal in view of the exception created in section 4(b), (c) referred to above. Reference be also made to the case of Mujeebulluh Aijaz (1) wherein the following views were expressed by a Full Bench on the same point;

" . . . . . . It would thus appear that an appeal to the Service Tribunal constituted under the Baluchistan Service Tribunals Act would not tie in the following cases :‑ (1) when the Civil Servant punished is excluded from the definition of Civil Servant by section 2(1) (b) of Baluchistan Civil Servants Act ; (2) when the order passed is not a final order ; (3) when the punishment imposed is not that of dismissal, removal or compulsory retirement ; (4) when the impugned order relates to the decision of a departmental authority determining the fitness or otherwise of a particular post or to be promoted to a higher post or grade ; and (5) when the order is not passed by a competent departmental authority and is for such reason void." 7. 1 may also mention here that the view as given at serials 3 and 5 is not in conformity with the law laid down by the Supreme Court in the case of M. Yamin Qureshi (2) and of Muhammad Ismail (3) and even the wording of section 4 of the Service Tribunals Act, 1923, and Punjab Administrative Tribunals Act, 1974. (1) P L, J 1978 Quetta 108 ??????????????????????? (2) .P L. D 1980 S C 22 (3) 1979 S C M R 498

8. The above statement requires further clarification. There may be certain orders which may, prima facie, attract an appeal under section 4 but .might have been passed either by an authority not empowered or they may not be governed by any provision of the Civil Servants Act. Again, the above defects may either be discrnible on. the face of the record or an inquiry into facts may be called for to ascertain the true position. The practice of this Court on the basis of the law laid down by the Supreme Court has been that the exclusion clause will not affect the jurisdiction in case of an ultra vires, void or coram non judice orders provided the defect is apparent on the far of the record.

9. The above view is supported by the observations of the Supreme Court in Yusuf Ali v. Aslam Zia (1) which run as under :‑ ". . . Where the Legislature clothes an order with finality, it 'always assumes that the order which it declares to be final is within the powers of the authority making it, and no party can plead as final an order made in excess of the powers of the authority making it, in the eye of law such order being void and non‑existent . . . . . ."

10. Similarly their Lordships in Naghna Silk Mill v. l.‑T. O. (2) observed as under :‑ "Even where a particular statute takes away certiorari (and that result can only be achieved by express negative words) the English Courts have decided that certiorari may be granted where the inferior Tribunal has acted without or in excess of jurisdiction, for in such a case the Tribunal has not brought itself within the terms of the statute taking away certiorari."

11. The views expressed in 'Murree Brewery Co. v. Pakistan (3) run as under :‑ ". . . If it had succeeded in establishing that the impugned acquisition was ultra vires the Ordinance, its appeal under section 36 would have been an exercise in futility . . . ." Their Lordspips of the Supreme Court went a step further in State v. Ziaur Rehman (4) where they, ruled that :‑ ". . . High Court would be entitled to go into the question of mala fides or colourable exercise of power, for such exercise of power is not regarded to be action in accordance with law.? It will thus be seen that, so far as this Court is concerned, it has con?sistently held the view that a male fides act stands in the same position as an act without jurisdiction, because, no Legislature when granting a power to do an act can possibly contemplate the perpetration of injustice by permitting the doing of that act mala fide, I am, there?fore, of the opinion that the words `purported to be dons or dope in the purported exercise of powers' cannot cover acts which were not done by persons empowered under the statute or the legislative measure to so act or were clearly beyond the scope of the powers given by the statute or were done male fide or by practising a fraud upon the statute for a colourable purpose. I, therefore, agree with the majority view which prevailed in the High Court that clause (2) of Article 281 of the Interim Constitution does not validate acts which are coram non judice or without jurisdiction or done male fide." (1) P L D 1958 S C (Pak.) 104. ??????????????????????? ??????????????????????? (2) P L D 1963 S C 322 ????????? (3 )? P L D 1972 S C 279 ??????????????????????? (4) P L D 1973 S C 49 I may also refer to the following observations in the case of Muhammad Swaleh (1) "It should be remembered that if an order be a nullity then every Court before whom it is brought is not only entitled, but bound to ignore it. If it be held that the taking up of a case not on the date fixed, but on any other day, renders the proceedings totally void, the result would be that even the Court of a 3rd Class Civil Judge could hold that the High Court or the Supreme Court in taking up a case on a particular day without proper notice acted without jurisdiction and judgment delivered was a nullity . . . . . . "

12. The views as reproduced above do not mean that a right of appeal provided in law shall give way. Rather the Service Tribunal always has the jurisdiction in respect of the orders concerning terms and conditions of service under section 4 of the Administrative Tribunals Act, read with Article 212 of the Constitution. Reference be made to Manzoor Elahi v. N: W. F. P. (2) and M. Yamin Qureshi v. Islamic Republic of Pakistan (3). Further, the Service Tribunal is bound to consider the case on merit as held in Muhammad Israr Nabi v. Province of Punjab (4). What is being said, however, is that though the right of appeal before the Tribunal subsists, yet the jurisdiction of a High Court in certain situations will not be barred. The result is that an appeal shall always lie to the Tribunal against a final order in accordance with section 4 of the Administrative Tribunals Act, 1974, provided that this Court may also intervene if the order is void or coram non judice on the face of the record.

13. In view of the above this Court has the jurisdiction to see if a Tribunal has no jurisdiction either in respect of the subject-matter of the litigation or the parties before it or the territory to which the dispute relate or because of the defective constitution of the Tribunal or that the order impugned is coram non judice or void ab initlo. Similarly, if the authority passing the order had no power under the relevant law to pass the order o if the jurisdiction8l facts were absent no finality would be claimable for such an order and the ouster of jurisdiction will not be attracted.

14. On merit it is contended by the learned counsel that as the case of the petitioner had been once earlier scrutinized under section 12(ii) of the Civil Servants Act, no second exercise could be undertaken under the same provision of law. The precise contention is that as the retirement is to be in public interest and as the Civil Servants (Efficiency & Discipline) Rules, continue to be applicable to every civil servant till he reaches age of super- annuation, the power referred to above is available only once and that-too within; a reasonable time after a civil servant has completed 25 years of service.

15. It is further argued that once such an exercise is undertaken, after completion of 25 years of service, a civil servant shall be allowed to continue without any harassment or fear uptil the age of 60, under section 12(iii) of the Act-unless he is retired compulsorily under the Efficiency and Discipline Rules, It is submitted that the Legislature never intended that a sword of Democles shall go on hanging over the head of every civil servant all the time after he has completed 25 years of service and even after his record had been scrutinized once as it will create a timid and inefficient service. The argument does appeal to wisdom and may be logically sound but it will not be accepted if it goes against the express provisions of law. Thus our endeavour has to be to correctly bring out the intention of the Legislature about section 12(ii) of the Civil Servants Act. (1) P L D 1964 S C 97 ??????????????????????? (2) P L D 1960 Pesh. 81 (3) P .L D 1980 S -C 22??????????????????????? (4) N L R 1980 Service (S C) 1

16. To achieve the above objection it may be necessary to scan the historical aspect of this provision. Prior to 1956 Constitution, the age of superannuation of a civil servant was 55 years. This aspect was again guaranteed under Laws (Continuance in Force) Order, 1958, after 1956 Constitution was abrogated. An Explanation was, however, added to Article 6, vide President Order 10 of 1959, by which the President or the Governor, as the case may be, could grant an extension in the service period. The age of superannuation was later enhanced to 60 years vide clause (9) added to Article 6 on 23rd October 1960, by President Order 23 of 1960. It was, however, subjected to the following condition as in sub-clause (c) : "The President in the case of a person who is a member of the Civil Service of Pakistan or a person serving in connection with the affairs of the Federation and the Governor in the case of a person serving in connection with the affairs of the Province may review the case of any person in the service of Pakistan, when he is about to complete twenty-five years of service qualifying him for a pension and when he is about to complete the fifty-fifth year of his age." Thus two stages for review of the case of a civil servant were fixed i.e. while was about to complete twenty-five years of service or fifty-fifth year of his age. The subjective satisfaction of this situation rested with the President or the Governor of a Province. However, the Governor had to make rules with the previous approval of the President to achieve the above object.

17. On 16th March 1962, Article 6-A was added to the Laws (Continuance in Force) Order, vide President Order 11 of 1962, whereby the Governor, in consultation with the Public Service Commission, was empowered to determine the terms ;end conditions of service, subject to the condition that the terms and conditions of service relating to pay, pension, leave and age of superannuation could not be varied to the disadvantage of a Civil servant.

18. The President on 12th May 1962, promulgated yet another Order (President Order XVII of 1962) and substituted sub-clause (c) by a new clause providing that a civil servant could be ordered to retire on completing twenty-five years of service or fifty-fifth year of his age with the following ,proviso : "Provided further that the case of a person, who has completed before, or completes on,. or will complete within six months of the commencement of the rules made under sub-clause (d) twenty-five years of service qualifying him for pension or the fifty-fifth years of ,his age, may be reviewed within six months from the commencement of said rules for the purpose of this clause in the manner provided in such rules." An action could be taken under the above provision only in accordance with the rules, made under Article 6(9)(d) of the Laws (Continuance in Force) Order, 1958, by .the President or the Governor, with the approval of the President, and that too within six months of the making of the rules. Rules were made thereafter by the President and power was also delegated but no such rules were made by the Governor.

19. The Constitution guaranteed the previous terms and conditions of a civil servant under Article 234(1) of 1962 Constitution. On 19th July, 1963, the Governor framed the West Pakistan Government Servants (Further Usefulness in Public Service) Rules; 1963. The retirement was again provided to take effect on attaining sixtieth birthday. However, rule 4 of the above rules which concerns the present discussion may be reproduced with advantage : "4.-(1) Notwitstanding anything contained in rule 3, the case of every person to whom these rules apply shall be referred by the Appropriate Authority to the Appropriate Committee appointed by the Governor in order to determine the further usefulness of such person in service, at two stages only, namely, when he is about to complete twenty-five years of service qualifying him for pension and when he is about to complete the fifth-fifth year of his age Provided that the case of a person, who has completed before, or completes on, will complete within six months of the commencement of these rules, twenty-five years qualifying him for pension or the fifty ??????????????????????? fifth year of his age, may be reviewed within six months from the commencement of these rules in the manner provided hereinafter, if such person's case was not reviewed before the coming into force of these rules, for the purposes of retirement either on the completion of twenty-five years of qualifying service or on the attainment by him of fifty-five years of age, under any rules then applicable to him." The High Court in the case of Koramatullak Khan v. Government of West Pakistan (1), however, declared the above proviso and the amendment made to the proviso, extending the time of review, to be ultra vires the provisions of the Constitution of 1962.

20. The 1973 Constitution which governs the situation in hand, did not provide for any Constitutional guarantees to the servants performing functions in connection with the affairs of the Centre or the Provinces. Articles 240 and 241 of the Constitution which dealt with the subject, may, however, be reproduced below :- "

240. Subject to the Constitution, the appointments to and the conditions of service of persons in the service of Pakistan shall be determined; (a) in the case of the services of the Federation, posts in connection with the affairs of the Federation and All-Pakistan Services, by or under Act of Parliament ; and (b) in the case of the services of a Province and posts in connection with the affairs of a Province, by or under Act of the Provincial Assembly. Explanation

In this Article, `All-Pakistan Service' means a service common to the Federation and the Provinces, which was in existence immediately before the commencing day or which may be created by Act of Parliament.

241. Until the appropriate Legislature makes a law under Article 240, all rules and orders in force immediately before the commencing day shall, so far as consistent with the provisions of the Constitution, continue in force and may. be amended from time to time by the Federal Government, or, as the case may be, the Provincial Government." (1). P L D 1966 Lash. 881

21. On 4th June 1974, the Legislature enacted the Punjab Civil Servants Act, 1974, under the above Constitutional provisions. In view of Article 241, all the Service Rules gave way to it and no guarantees except the terms and conditions as given in the above Act were available to a civil servant. Now it is in the above background that it is to be seen if the Legislature intended that the Law laid down any age of retirement and if the case of a civil servant completing 25 years of service qualifying him for pension or other retirement benefits could be gone into only once on finding him fit if he was entitled to continue to serve till the age of 60 years without fear or any other scrutiny or order of retirement. The relevant provision of section 12(ii) is as under :

12. A civil servant shall retire from service, (I )???????????????? (II) in any other case, on such date, after he has completed 25 years of service qualifying for pension or other retirement benefits, as the competent authority may in the public interest direct ; or (III) . ???????????.

22. The conspicuous departure made from the past is as under : (a) No Constitutional guarantee inter alia as to age of superannuation is available ; (b) all rules and orders in force immediately before. the commencing day lapsed and became inapplicable after the appropriate Legislature made the Punjab Civil Servants Act, 1974. The essential pre-requisites to pass an order of retirement under section 12 (ii) are that : (i) there must be a civil servant (ii) he must have completed 25 years of service qualifying him for pension etc. ; (iii) the authority passing the order must be either the appointing authority or one authorised by him ; (iv) the order must be made in public interest ; (v) a date to retire must be specified. It will thus be seen that there is nothing like scrutiny of the record of a civil servant. The power conferred is to retire. It appears that the Legislature by removing the Constitutional guarantees and altering the provisions about the period and date of retirement wanted to leave the entire power in the hands of the competent authority, after a civil servant has completed 25 years of service qualifying him for pension and other retirement benefits.

23. There thus appears to be neither a provision for scrutiny nor any restriction on the number of times the record of a civil servant should be looked into. Rather, it appears that the conduct or the record of a civil servant may be under constant watch or scrutiny so that the competent authority may pass its order at any time it thinks it is in public interest. The learned counsel appearing for the preset-. and other petitioners had relied more on clause (iii) of section 12 to argue that a civil servant was entitled to continue till 60 pears of age if no direction was given under clause (ii). Clause (iii), however, does not help them at all. Rather, it permits the competent authority to pass its order at any time before a civil servant reaches the age of

60. In other words, clause (iii) remains subject to and is dependent on clause (ii). Clause (iii) thus becomes inoperative as soon as a direction under clause (ii) is given. A similar situation was considered by the Supreme Court in Muhammad Yusuf v. Government of West Pakistan (1) where their Lordships observed as under : " . . . . The plea is wholly devoid of force as the concluding clause applies only if the competent authority does not issue directions for retirement from service within the period of six months and the person to be retired completes the age of sixtieth year before the expiry of that period . . . . "

24. Again, the power under clause (ii) is to issue a direction to retire. There is a restriction only with regard to the commencement of power but neither a time limit nor a period is provided as it was there prior to 1962 Constitution. The import of word `after' used in section 12(ii) as against the words `within', `on', or `about' as employed in the provisions, prior to the 1962 Constitution, also leads to the conclusion that the Legislature wanted to remove all those restrictions on the power to retire a civil servant on his completing 25 years of service qualifying him for pension etc. 25. 1 am, therefore, of the view that the competent authority could act with jurisdiction to order retirement at any time after a civil servant has completed 25 years of service, qualifying him for pension or other retirement benefits. The bar in Article 212 of the Constitution is thus attracted to thi case and so no relief under Article 199 of the Constitution can be dispensed to the petitioner. These petitions are accordingly dismissed with no order as to costs. S. Q?? Petition dismissed. (1)PLD1970SC-219 (1) ?