1981 PLP (C (PLC(CS))

SHAMEEM HUSSAIN KADRI, ACTG. C. J.‑This Intra‑Court Appeal calls in question the judgment of the learned Judge in Chambers dated 20‑2‑1980, whereby he dismissed the writ petition filed by the appellant, is which one of the grievances raised was that he being an Officer in NPS‑16 of Accounts Department. Pakistan Railways, was not retired by the Financial Adviser and Chief Accounts Officer, who is the authority competent to pass such an order. The appellant has been compulsory retired on completion of 25 years service by the Finance Member, under section 13 of the Civil Servants Act, 1973 by his order dated 2‑2‑1980.

2. The sole point argued before us was that the authority competent to pass the order of compulsory retirement of the appellant was the Financial‑ Adviser and Chief Accounts Officer of Pakistan Railways and not' the Finance Member of the Railway Board. In order to solve the controversy we have to examine the law ever since the introduction of Government of India Act, 1935, which was adapted with necessary amendments after the Partition of Sub‑Continent, by the Government of Pakistan. Chapter XX of Pakistan Railway Establishment Code, Vol. 11, printed in 1952 deals with Railway Fundamental Rules‑Service Conditions, Pay and Deputation. Under the head of 'Compulsory Retirement' at page 21 (F. R. 56) the date of compulsory retirement of a railway servant, other than a ministerial servant is the date on which he attains the age of 55 years. However, he can be retained upto the age of 60 years with the sanction of the competent authority on public grounds which should be mentioned in writing. According to sub‑rule (5) of F. R. 9 competent authority in relation to the exercise of any power under the Rules, means the Governor‑General or any authority to which such power is delegated in Appendix XXXII. (See also rules 2282 and 2283). Appendix XXXIII at page 237 of the aforementioned Code provides list of the Officers, who were declared to be Heads of Departments. According to Item No. 9 Financial Adviser and Chief Accounts Officer is the Head of Department. According to Chapter I of Pakistan Government Railway Code for the Accounts Department, Part I published in 1953 (para. 102), the head of the Accounts Department is designated, on the State managed railways as the Financial Adviser and Chief Accounts Officer. Appendix VI of this Code at page 256 mentions the Schedule of powers of the Financial Advisers and Chief Accounts Officers, Pakistan Government Railways, in establishment and General matters so far as they affect or relate to their own offices, including those subordinate to them. Rule 1(3) deals with the creation, abolition or revision of pay of pensionable posts. It reads as under: ‑ "The previous sanction of higher authority is required‑‑to the creation of any new or the abolition of any existing permanent or temporary post, or revision of pay of any such post or of the pay drawn by the incumbent of any such post." These Rules were framed under Article 241 of the Government of India Act, 1935, which as earlier stated, was adapted by the Government of Pakistan in 1947 Constitution.

4. By Article 221 of 1956 Constitution the Government of India Act, 1935 and the Indian Independence Act, 1947 together with all enactments amending or supplementing those Acts, were repealed. However, it was provided that the repeal of the provisions of Government of India Act, 1935 shall not affect Article 230 until the first day of April, 1957. By virtue of Article 224 all laws including Ordinances, Orders‑in‑Council, orders, rules, bye‑laws, regulations, notifications and other legal instruments in force in Pakistan or in any part thereof, or having extraterritoral validity, immediately before the Constitution Day were allowed to remain in force until altered repealed or amended by the appropriate Legislature or other competent authority.

4. With the promulgation of Constitution of 1962, Article 225 kept alive all existing laws. The term `existing law' has been explained it sub‑Article (7) of Article 225 as "all laws (including Ordinances, Orders‑in‑Council, Orders, Rules, Bye‑laws, Regulations having the force of lava) . . .' Similarly the Interim Constitution of Islamic Republic of Pakistan, 1972 in its Article 280(8) saved the existing laws as mentioned above. Article 26b(7) of 1973 Constitution unequivocally saved the existing laws. It is thus abundantly clear that the Railways Codes for Establishment and Accounts dealing with rules etc. framed from time to time have been saved and are existing laws.

5. On 27‑8‑1959, Railway Board Ordinance, 1959 was promulgated and by section 4(b) the Central Government by notification in the official Gazette, was authorised to invest the Railway Board, either absolutely or subject to conditions with the power of the officer referred to in section 47 of the Rail ways Act, IX of 1890. After 1962 Constitution, President's Order No. 33 of 1962 was enforced on. 9‑6‑1962, under para. 3, Provincial Railway Boards were created both for East Pakistan and West Pakistan, which were to be constituted by the Governor with the prior approval of the President. By virtue of para. 4 of the said Order the Railway Board Ordi nance, 1959 stood repealed and all powers and functions of the Central Government under the Railways Act, 1890 exerciseable by the Railway Board constituted under the said Ordinance, other than those under Chapters II and IV of the said Act and the power to make general rules under section 47 thereof shall in relation to that province, subject to the other provisions of this Order, vest in the Board (Provincial Board). All actions taken by a Railway Board in the discharge of its functions had to be put in black and white and were to be signed by the Secretary of the Board or by some other Officer authorized by it. By para. 9 of this Order the services of the Railway servants were transferred to Provinces. Under para. I1 power to make rules was, however, kept by the Central Governments in the following words: ‑ "The Central Government may, by notification in the official Gazette, make rules to carry out the purposes of this Order."

6. After the Constitution of 1973 the Railways were transferred to the Central Government by promulgation of Ordinance VII of 1978. By this Ordinance, Article 2 of the President's Order No. 33 of 1962 amended by substitution of the words "the Railway Board" for the words "a Provincial Railway Board". According to section 3 of the aforementioned Ordinance the Railway Board was constituted to be consisting of 5 members, including the Chairman, who were to be appointed by the. Federal Govern ment. Subsection (5) of section 3 declared the Chairman of the Railway Board as Chief Executive Officer of the Railway Administration. To assist the Board in the discharge of its functions a Secretary and other Officers and servants could be appointed by the Railway Board under section 3(7).

7. Under President's Order No. 33 of 1962 Organization Order No. 1 was issued by the West Pakistan Railway Board on 20‑9‑1963. . Pare. 4 provides for 'Secretariat Functions of the Board. Procedure was described as to how the Members and the Chairman of the Railway Board shall deal with the Ministers of the Central and the Provincial Governments. The Secretary of the Board bad to assist the Board in its policy making functions etc. According to para. 7(7) the Finance Member was declared to be administrative head of Accounts and Finance Establishment. This paragraph of the Organization Order No. I is sold to have created the problem in issue as to whether the Finance Member is the competent authority to compulsory retire the appellant or the Financial Adviser and Chief Accounts Officer as mentioned in the Rules discussed above.

8. The respondent along with his rejoinder has filed S. A. O. No. 68 dated 12‑2‑1931 which was issued by the F. A. & C. A. O.'s Office, Pakistan Railway Lahore showing that the appellant was sanctioned L. P. R. w.e.f. 5‑2‑1980 to 3‑2‑1981 in compliance with the Office Notice No. P/25/ Admn/Review/80 dated 2‑2‑1980. It was argued by Mr. Muhammad Ismail Bhatti learned counsel for the Finance Member, Pakistan Railways that since the appellant has acquiesced to the order, he cannot claim relief as his writ petition was incompetent and the appeal has no legs to stand upon. In support of his submission be cited Secretary. Government of Punjab, Food and Co‑Operation Department v. Shamoon Bahadur (P L D 1979 S C 835). The judgment however, is clearly distinguishable, for, in the instant case the appellant did not ask for retirement voluntarily on completion of 25 years' service. It was held that the respondent (in that case) expressing his desire to withdraw the application for permission to retire could not ask for the revocation of the option which he had once exercised. In the instant case the L. P. R. sought by the appellant was not in pursuance of the option exercised by the appellant but was on account of the compulsory order by the Department itself. Even otherwise this document dismantles the entire case of the respondent, for the competent authority in case of passing the order of retirement was the Financial Adviser and Chef Accounts Officer, Pakistan Railways and not the Finance Member as provided by para. 7(7) of the Organization Order.

9. In our view Ordinance VII of 1978 has only partially amended President's Order No. 33 of 1962 and it does not speak of the powers of rulermaking of the Board. Para. 4 of President's Order No. 33 of 1962 could not remain in force on account of abolition of the Provincial Boards. The said para. is, therefore, in conflict with the Ordinance VII of 1978. The provision of Finance Member as the administrative head of Accounts and Finance Establishment by virtue of para. 7(7) of West Pakistan Railway Board Organization Order No. 1 cannot have superiority over the aforesaid President's Order, paragraph 11 of which confers the rule‑making power on the Central Government. The Organization order would in any case be nothing more than an instruction issued by the Board and cannot override the Rules which are protected by the various Constitutions ever since their promulgation. In view of the above discussion we are of the view that the appellant was compulsory retired by an authority which was incompetent under the law to pass such an order.

10. It was vehemently argued that the appeal is incompetent as the appellant was bound to file an appeal before the Service Tribunal. Section 13 of the Civil Servants Act, 1973 had been cited in support of this submission. There is no substance in the submission made, for the explana tion clearly mentions "in this section competent authority means the appointing authority or a person duly authorised by the appointed authority in that behalf not being a person lower in rank than the civil servant concerned." Section 4 of the Punjab Service Tribunals Act, 1974 provides for' an appeal, against a final order passed by a 'Departmental Authority' which according to explanation means any authority which is competent to make an order in respect of any of the terms and conditions of civil servants. Both the said sections read together would clearly show that the appeal in this case to the Service Tribunal would not be competent, for, the order is not passed by the competent authority. It is now well settled law that where an order is passed by a person not clothed with the authority to do so, it is void ab initio, without jurisdiction and coram non judice. I am fortified in this view by a Full Bench judgment of Peshawar High Court, Mian Amanul Mulk v. N.‑W. F. P. through Chief Secretary (P L D 1981 Pesh. 1 ), and M. Yamin Qureshi v. Islamic Republic of Pakistan (P L D 1980 S C 22). Headnote (k) at page 4 of the first citation makes it abundantly clear that there can be no ouster of jurisdiction under Article 199 where the order was not made by the authority competent to make any order in respect of any of terms and conditions of service. At page 23, headnote (b) of the Supreme Court judgment it is clearly mentioned that validity and immunity from judicial review, however, enjoyed only by proceedings, orders, or acts, duly taken under law but does not extend to acts etc. being without jurisdiction coram non judice or mala fide. The objection of the learned counsel fails.

11. For the foregoing reasons we accept the appeal, set aside the judgment of the learned Single Judge and declare the impugned order dated 2‑2‑1980 passed by the respondent Finance Member to be without lawful authority and of no legal effect. However, the parties shall bear their own costs. S. Q Appeal accepted.