1981 PLP (C (PLC(CS))

(ii) alters or interprets to the disadvantage of a person any rule affecting his terms or conditions of service ; or (iii) terminates the employment or a person otherwise than upon his reaching the age fixed for superannuation, he shall, except where the order is made by the President or a Governor, have at least one appeal against the order ands where the order is made by the President or a Governor, he shall have the right to apply to the President or the Governor for a review of the order." This Article was amended by the Constitution (Fourth Amendment) Act, XV of 1965 and three new sub‑Articles were added sub‑Article (3) of Article

178. These three newly added sub‑Articles were then substituted by the Constitution (Sixth Amendment) Act II of 1966. Only sub‑Article (4) is relevant for the purposes of this appeal which read as follows :‑ "(4) A person whose terms and conditions of service are governed by Article 127 or Article 154 or Article 176 (not being a member of the Armed Forces of Pakistan) or paragraph (b) of Article 181 shall notwithstanding anything contained in this Constitution or in any law or in the terms and conditions of his service, retire from service‑‑‑ (a) on such date after he has completed twenty‑five years of service qualifying for pension or other retirement benefits as the competent authority may, in the public interest and subject, to the provisions of Article 185, to the provisions of Article 185 or, as the case may be, Article 186, direct ; or (b) if he has completed before or completes within a period of six months from, the commencement of the Constitution (Sixth Amendment) Act, 1966, the fifty‑fifth year of his age, on such date after such completion, being a date within the said period, as the competent authority may direct, or in the absence of such direction, on the expiry of the said period, or on the completion of the sixtieth year of his age, whichever be earlier ; or (c) in any other case, on the completion of the fifty‑fifth year of his age." By the newly added sub‑Article (4), the competent authority was authorized in public interest and subject to the provisions of Article 185 or Article 186, to give a direction for the retirement of a Government servant after he had completed 25 years of service qualifying for pension or other retirement benefits, on such date as might be specified in the direction. According to Mr. Ghiasuddin Baloch, Articles 185 and 186 referred to in sub‑Article (4) of Article 178 are not applicable to the case of the appellant and the appellant could only be retired prematurely if it was in "the public interest". The contention of the learned counsel for the appellant is that the order of retirement dated 1-4‑1967 does not make any reference to "public interest". Exh. 37 which is the order dated 1‑4‑1967 may be reproduced here :‑‑ No. D. 8./‑419 Larkana, dated 1‑4‑1967 Retirement: As per Government of West Pakistan Services and General Administra tion Department Vide No. S. D. IV (S&GAD)‑4‑23/66 dated 18th October 1966, and the recommendation of Chairman, Advisory Committee No. 17 and D. I. G. P., Bahawalpur Range, the following upper subordinates of Larkana District are made to retire from service with effect from 1‑4‑1967 F. N. (1) A. S. I. Izhar Hussain Shah son of Muhammad Umar. (2) A. S.I. Muhammad Yar son of Ali Bux Pathan. (3) A. S. I. Muhammad Ramzan son of Wahid Bux (appellant). (4) A. S.I. Gul Muhammad son of Jan Muhammad. (5) A. S. I. Muhammad Amir Shah son of Muhammad Hussan Shah. (6) A. S, I. Ali Murad son of Inayat Ullah. The above upper subordinates can apply for leave. (Sd.) S. A. Rabb, Superintendent of Police, Larkana." Mr. Ghiasuddin Baloch, the learned counsel for the appellant, did not attack the order in question on the ground of hearing not having been granted to the appellant or prior notice not having been given to the appellant before his retirement was ordered. Mr. Ghiasuddin Baloch, further conceded that the question whether the retirement was in public interest or not was a matter of subjective satisfaction of the competent authority on which the Courts cannot sit in judgment. His argument was short that the impugned order of retirement does not contain the words "Public interest" and requirements of Article 178(4) of the 1962 Constitution were not complied with and the order of retirement as a necessary consequence is illegal and void. Both the lower Courts rejected this plea taken by the appellant. The learned Civil Judge in his judgment dated 14‑7‑1970 referring to this contention held that it was not necessary that the retirement order should have been couched in the words to the effect that it was in public interest that the action was taken and since the action was taken in consequence of a particular constitutional provision, it was presumed that it was taken on the ground mentioned in the Constitution. He further stated that an inference could be drawn from the action taken against appellant that it was in public interest and the order of his retirement could not be spelt out in any other manner. The learned District Judge, Larkana in his judgment dated 23‑1‑1971 dealing with this contention held as follows :‑ "It is not necessary that the orders of compulsory retirement should mention that the action had been taken in public interest. Since nothing illegal or abusive had been done, it is to be presumed that the orders have been passed in good faith and public interest." The order of retirement dated 1‑4‑1967 makes reference to the Memo. No. S. D. IV (S&GAS) 4‑23/66 dated 18th October, 1966, of Government of West Pakistan Services and General Administration Department and also to the recommendations of the Chairman of Advisory Committee No.

17. The memo dated 18‑10‑1966 gives the subject of the said memo. as "Retire ment of Provincial Government's servant in pursuance of paragraph (a) of clause 4 of Article 178 of the Constitution". The body of the said memo. refers to the powers of the competent authority to retire in public interest Government servants who had completed 25 years of service, This memo. further refers to the setting up of Advisory Committee for making recom mendation to the competent authority for taking action under Article 178(4)(a) of the 1962 Constitution. The order of retirement dated 1‑4‑1967, which refers to the said memo. dated 18‑10‑1966, must be read in the light of the contents of the said memo. Reading these two together there is no escape from the conclusion that the order of retirement dated 1‑4‑1967 has been passed under Article 178(4) (a) and although the retirement order itself does not mention two words "public interest". It has to be assumed that the order of retirement was passed in public interest. The only other ground that was urged by the learned counsel for the appellant was that the order of retirement was in fact a punishment and,' therefore, a show‑cause notice was necessary which has not been given to the appellant. According to Mr. Ghiasuddin a reference to the order dated 26‑6‑1967 passed by the D. I.‑G., Khairpur dismissing the appeal of the appellant against the retirement order shows that the retirement order had been passed as a punishment for the adverse reports that had been given to the appellant. Mr. Babubhai Huddah, learned counsel for the respondents' reply was that this was a case of retirement under Article 178(4)(a) of the 1962 Constitution and not a case of termination of service and no show‑cause notice was necessary prior to the exercise of the powers by the competent authority under the aforesaid provision of the Constitution. He relied upon a judgment of the Lahore High Court reported in P L D 1967 Lah.

938. This contention of the learned counsel for the appellant has no force. Action for the retirement of the appellant was taken by the competent authority under Article 178(4) of the 1962 Constitution and as I have held, the action was in "the public interest". Mr. Ghiasuddin, Advocate had conceded, as stated earlier, that in case it is found that the order was in the public interest, he could not challenge the same as this was a matter for the subjective satisfaction of the competent authority. Having conceded on this point, it cannot be argued that the order of retirement was passed as a punishment and, therefore, such order could not be passed before the issuance of a show‑cause notice. It is not denied that the file of the appellant was before the impugned order was passed. There could be various reasons and factors before the competent authority takes a decision to, retire a person prematurely after having completed 25. years of service and the presence of adverse reports could be one such reason. In any case the competent authority, after having seen the record of the appellant, too the decision in "the public interest", which decision, as conceded by the learned counsel, being a subjective decision, is not open to challenge. It was not necessary for the competent authority to issue a show‑cause notice before passing an order under Article 178(4) (a) of the 1962 Constitution as has been held in P L D 1967 Lah.

938. This appeal accordingly fails and is dismissed but with no order as to costs. Appeal dismissed.