1989SCMR856 (PLP)

MUHAMMAD AFZAL ZULLAH, J.‑‑In this un‑defended service appeal, ,special leave was granted by following order:‑‑ "Leave to appeal is grant is from the judgment of Punjab Service Tribunal dated 1‑3‑82, whereby the order of the retirement of the respondent (Police Sub‑Inspector) under section 12(ii) of the Punjab Civil Service Act, 1974 on completion of 25 years of service, was set aside. The question for examination would be: (a) Whether the appeal pending before the Tribunal would not be deemed to have abated on the coming into force of the Provisional Constitution Order, 1981. (b) 1f so with what further effect, if any. "The order passed earlier by this Court suspending the effect of the impugned judgment shall continue to be in force till the decision of the appeal, which shall be made ready on the present record with liberty to the parties to file additional documents." Argument noted in the above order has been reiterated by the learned Asstt: Advocate‑General. He has, in this behalf, relied on the provisions of Paragraph 13 of the Provisional Constitution Order, 1981, as it then was: 13. (1) Where a person in the service of Pakistan has been or is retired from service under the orders of the competent authority after he has completed twenty‑five years of service qualifying for pension or other retirement benefits, no Court or tribunal, including the Supreme Court, a High Court and a Service Tribunal, shall have any jurisdiction to entertain any proceedings calling in question the validity of the orders of the competent authority on any ground whatsoever and any such proceedings pending before any such Court or tribunal immediately before the commencement of this order shall abate forthwith. "(2) Any person in respect of whom an order such as is referred to in clause (1) has been or is made may, within thirty days from the commencement of this Order or the date of the making of the order, whichever is later, apply to the competent authority for a .review of the order." The plea that the appeal of the respondent which was pending at the time of the promulgation of the Order, 1981 would be deemed to have abated under para. 13, has force. However, on our own, the questions; whether, the respondent had completed 25 years service, and whether, he was retired by competent authority, have been examined. The impugned judgment of the Tribunal has not proceeded on the assumption that the required 25 years service had not been completed. Nor it has proceeded on the basis of a finding that the order impugned before the Tribunal was not passed by the competent authority. The judgment has been based on the finding that competent authority did not pass a proper order on the assumption that it was influenced by the recommendations of a Scrutiny Board. This, by itself, it is obvious could not save B the appeal of the respondent from abatement under Paragraph 13 of the P.C.O. That being so we accordingly, while allowing this appeal, set aside the impugned judgment. No costs. AA./S‑248/S Appeal allowed.