1969 PLP 291 (SCMR)

HAMOODUR RAHMAN, C. J.‑This is a petition for special leave to appeal from a judgment and order of a Division Bench of the High Court of West Pakistan, dismissing a constitutional petition filed by the present petitioner in limine. The petitioner, who was originally appointed as a Lower Division Clerk in the Contracts Directorate of the Master General of Ordinance, General Headquarters, India, in 1939, was, after opting for Pakistan, promoted as a Superintendent in the Ministry of foreign Affairs and Commonwealth Relations in 1950. He was confirmed in that post in 1954. In March 1959, he was served with a notice by the Screening Committee which ultimately decided to compulsorily retire him from service, but on appeal the notice was withdrawn. On the 14th of May 1960, a notice was again issued to him under Rule 3 of the Government Servants (Efficiency and Discipline) Rules, 1960, to show cause as to why he should not be compulsorily retired or dismissed from service, as he was reasonably considered to be corrupt. The Enquiry Officer exonerated him of the charges and the case was ultimately closed. He was, in September 1963, promoted as Section Officer, but in February 1964, while he was serving on deputation with the East Pakistan Industrial Development Corporation as an Administrative Officer, he was again served with a notice under Rule 5 of the Government Servants (Further Usefulness in Public Service) Rules, 1963, to show cause as to why he should not be compulsorily retired from service on the ground of unsatisfactory service and corruption. The Review Committee, after considering his explanation, on the 19th of March 1964, recommended his compulsory retirement. This recommendation was accepted by the Central Public Service Commission and the petitioner was ultimately given the order of compulsory retirement on the 12th of August 1964, under the directions of the President of Pakistan, with effect from the 14th of September 1964, on which latter date he completed his 25 years of qualifying service. A petition for review filed by the petitioner was rejected by the President on the 8th March 1965. Thereupon, the petitioner moved the High Court of East Pakistan under Article 98 of the Constitution, but the same was rejected on the ground that the High Court of East Pakistan had no jurisdiction in the matter, as the impugned order had been made in West Pakistan. Thereafter, the petitioner filed another writ petition in the High Court of West Pakistan which was heard and ultimately dismissed in limine on the 1st April 1968. The petitioner now seeks special leave to appeal. Only two points, it appears, were argued before the High Court, namely, (i) that the impugned order had been made mala fide, as evidenced by the repeated attempts made to throw him out from 1959 onwards, and (ii) that the action taken was illegal, as the proceedings were not commenced (a) within six months of the publication of the relevant Rules or (b) within six months of the date on which he completed 25 years of service. The High Court rejected both these grounds, holding that the proceedings against the petitioner under the Rules promulgated on the 4th of December 1963 were commenced on the 28th of February 1964, and concluded on the 12th of August 1964, before he completed 25 years of service on the 15th of September 1964. The action was, therefore, legal and in accordance with the Rules. The allegation of mala fides was unsubstantiated, as no facts were alleged to show that any particular officer or the President of Pakistan had any personal ill‑will towards the petitioner. It is now sought to be contended on behalf of the petitioner that the Government Servants (Further Usefulness in Public Service) Rules, promulgated on the 4th December 1963, were themselves ultra vires being in contravention of Article 178 of the Constitution. These Rules were made in exercise of the powers given by paragraph (a) of clause (P h D 1959 S'C 37) of Article 178 of the Constitution, but reliance is placed on a decision of this Court in the case of Government of West Pakistan v. Karamat ullah Khan and others (P L D 1968 S C 292), where the validity of the proviso to Rule 4 of the West Pakistan Government Servants (Further Usefulness in Public Service) Rules, 1963, came up for con sideration and it was held that it was violative of the provisions of clause (3) of Article 178 and Article 234 of the Constitution, which contain solemn guarantees of continuity of the old terms and conditions obtaining prior to the enforcement of the Constitution. It may; however, be pointed out that even in this case it was mentioned that so far as the main sub‑rule (P L D 1968 S C 292) of this Rule 4 was concerned, it had "in no sense, varied the existing position concerning the liability of Government servants to be retired at two stages in their careers earlier than the attainment of the superannuation age", So the main provision of the Rule, which is similar to sub‑rule (P L D 1968 S C 292) of Rule 3 of the Central Rule applicable to the petitioner, was not in doubt. In the present case, as pointed out by the High Court, action has been taken against the petitioner under the main provisions of Rule 3 and not under the provisos thereto. The contention, therefore, that the Rule itself is ultra vires is of no substance, for, even under the provisions of the Laws (Continuance in Force) Order, 1958, as amended from time to time, the age of superannuation was raised to 60, provided the case of the persona concerned had been reviewed at two stages, namely, (i) when he was about to complete 25 years of service dualifying him for a pension and (ii) when he was to complete 55th year of his age. Prior to this, as pointed out in the case of Pakistan v Litaqat Ali Khan (P h D 1959 S'C 37), under Rules 465‑A and 465‑AA of the Civil Service Rules applicable to Government servants of Central services, the Government had an absolute right to retire any officer after he had completed 25 years qualifying service without giving any reasons. The petitioner is under a mis‑conception in thinking that he had any right to serve for 30 years. The next contention advanced is that the petitioner's case of mala fides had not received proper consideration in the High Court. We have examined the grounds filed by the petitioner in the High Court in support of his writ petition and are satisfied that the High Court was right in taking the view that there were no specific allegations therein showing any animus on the part of any particular officer or the authorities competent to make the impugned order. The mere fact, therefore, that two previous abortive attempts had been made to compulsorily retire him from service, is not sufficient to spell out a case of mala fides. This petition is, therefore, without any substance and is, accordingly, dismissed. Leave refused.