P L D 1966 (W (PLP)

SARDAR MUHAMMAD IQBAL, J.‑This order will dispose of Writ Petitions Nos. 1116/64, 308/64, 664/64, 1872/65, 184/65, 1286/64, 1362/65, 785/65, 505/65, 834/64, 1365/65, 615/65, 70/65, 1025/64, 673/65 and 217/65. The petitioners in all these cases were in the service of Pakistan acting in connection with the affairs of the Government of West Pakistan. The Governor of West Pakistan or the persons whom he had appointed his delegates ordered the petitioners to retire after they had completed either twenty‑five years of service qualifying them for pension or had attained fifty‑fifth year of age. None of them had attained the age of sixty which was the age of supcrannuation. Their cases were also not reviewed for the purposes of retirement at the time when they were about to complete twenty‑five years of service qualifying them for pension or when they were about to complete the fifty‑fifth year of their age. The review was done only after they had crossed either or both these stages. The action was taken against them by virtue of the first proviso to rule 4 of the West Pakistan Government Servants (Further Usefulness ire Public Service) Rules, 1963. The petitioners filed the petitions under Article 98 of the Constitution Of the Islamic Republic of Pakistan to challenge the orders of their retirement as illegal and ultra vires the provisions of the Con stitution.

2. It is contended on behalf of the petitioners that they were under law to retire only on the completion of their sixtieth birthday and a person, in the service of Pakistan can be retired earlier only at two stages either when he is about to complete twenty‑five years of service qualifying him for pension or when he is about to complete fifty‑fifth year of his life and that since they had already completed both these stages, they could not under law be retired prior to their completing the sixtieth birthday. The action was taken against them under the West Pakistan Government Servants (Further Usefulness in Public; Service) Rules, 1963, and they took exception to that on the ground that the Rules to the extent they affected adversely their right to continue in service till they completed their sixtieth year of age were ultra vires the provision, of Articles 178(3) and 234 of the Constitution.

3. To deal with the contentions of the petitioners, it is necessary to refer to the law, the Rules and the amendments which were, from time tan time, made concerning the age of the retirement of persons. The age of compulsory retirement of public servants, except those who belonged to the old Indian Civil Service, was fifty‑five years. The Rules applicable to the Provincial Services in this respect were uniform. The Constitution of the Islamic Republic of Pakistan was abrogated on the 7th of October 1958 and the guarantees given to the public servants under the Constitution as to the terms and conditions of their services also, like all other rights arising from the Constitution, came to an end. The President by his first supra‑constitutional document, Laws (Continuance in Force) Order (President's Order No. 1 of 1958) declared in Article No. 6 that "all persons who immediately before the proclamation were in the service of Pakistan . . . . . shall continue in service on the same terms and conditions and shall enjoy the same privileges if any." The age of superannuation of such a person was guaranteed and he was, therefore, to compulsorily retire only on attaining fifty‑fifth year of his age. The President by a subsequent Order No. 10 of 1959 promulgated on the 23rd of May 1959, added an explanation to Article 6 whereby the President in the case of 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 a Province was empowered to grant an extension of service to persons who were liable to compulsorily retire on reaching the age of superannuation. The effect of this amendment was that whereas a person automatically retired on attaining fifty‑five years of age, he could be retained in service by the President or Governor by giving him extension.

4. As to the age of superannuation, the change was introduced on the 23rd of October 1960 by the President's Order No. 23 of 1960. Clause (9) .was added to Article 6 of President's Order No. 1 of 1958. By sub‑clause (a) the date of compulsory retirement, of a person in the service of Pakistan was fixed as "the date on which he attains his sixtieth birthday". Whereas earlier he was to supperannuate at fifty‑five years, now he was to retire at sixty years of his age. This increase in the age of retirement was subject to the conditions contained in sub clause (c), viz. "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." The review at these two stages is for the purpose of satisfying himself about "that person's further usefulness to the public service." On being satisfied that it was not useful to retain such a person, the President or the Governor could direct "his retirement from service upon his completing the qualifying service or year of age." The purpose of adding sub clauses (a) and (c) to clause (9) of Article 6 was that a person in the service of Pakistan should ordinarily retire at the age of sixty and exceptionally where it is not useful to retain him, he may on review of his case by the President or the Governor at two stages, namely, when he is about to complete twenty‑five years of his qualifying service or fifty‑five years of his life, be retired earlier at these two respective stages. The President or the Governor could under sub‑clause (d) make rules for carrying into effect the provisions of sub‑clause (c). The Governor, however, could not make the rules unless he had sought the previous approval of the President. There was no provision in the President's Order No. 23 of 1960 for the delegation of his authority by the President or the Governor. to any person. No provision was made by rubs either to delegate such an authority. It means that under President's Order No. 23 of 1960, the President or the Governor (as the case may be) could alone retire a person after return his case at the two stages mentioned above. It was not possible for the President or the Governor to review every case himself. Notwithstanding this, the power was retained by them. It clearly implies that the power of retiring a person prior to his attaining the age of sixty was .not intended to be used normally and was provided for to be used only here a person had really lost his usefulness. Whether or not a person was useful was again not left to the whim of any person which he could exercise at any time. This question had to be decided at two definite stages and they were specified to be at a time when he was about to complete twenty‑five years of service or fifty‑five years of his age. The word "about" in the context meant prior and not subsequent to his reaching those two stages. If a person, therefore, had already completes 25 years of his service or fifty‑five years of his age, he could not under these provisions he retired prior to his reaching the age of superannuation which was fixed at sixty.

5. The President on the 16th of March 1962 promulgated President's Order No. 2 of 1962 and added Article 6‑A to the President's Order No. 1 of 1958 whereby the Governor of West Pakistan was empowered to determine in consultation with the Public Service Commission the terms and conditions of service of persons serving in connection with the affairs of Province of West Pakistan subject to a proviso' that the terms and conditions of service relating to pay, pension, leave and age of superannuation of any such person could not be varied to his disadvantage. The age of superannuation or, fixed by President's Order No. 23 of 1900 and the Governor could not in the exercise of his rule‑making authority alter the same to the detriment of such a person. The President on the 12th of May 1962 promulgated yet another Order (President's Order No. 17 of 1962) and substituted sub‑clause (c) by a new clause. It provided like the earlier sub clause (c), for the review of the case of a person at two stages, i.e., when he was about to complete twenty‑five years of service or fifty‑five years of his age. Unlike the earlier sub‑clause (c), under the substituted sub‑clause, it no longer remained necessary to retire such a person immediately on the completion of twenty‑five years of service or fifty‑five years of his life. He be ordered to retire on completing twenty‑five years of service or fifty‑five years of his life as the case might be or from any subsequent date. To review the cases of those persons who had already crossed the two stages, provision was made in the proviso to sub‑clause (c), which reads as:‑‑ "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 year 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." It implies in the proviso that the case of a person could not under sub‑clause (c) be reviewed after he had completed 25 years of his service or fifty‑fifth year of his age, and a necessity was felt to make a special provision for it by way of this proviso. No such action, however, could be taken under President's Order No. 17 of 1962 itself. It could be done only by rules made under sub‑clause (d) of clause (y) of Article 6 by the President or by the Governor with the approval of the President, as the case might be. Unless the rules were so made, the case of such a person could not be reviewed at all. The power could again be exercised for a maximum period of six months from the date of the making of the rules. The period of six months, having been provided by the supra‑constitutional document, could neither be reduced nor increased by the rules or by any subordinate legislation. Thus if rules were not made, this power could not be exercised to retire such a person prior to his attaining sixtieth year of his birthday. The exercise of the power was, therefore, dependent on the making or the existence of the rules made under sub‑clause (d). The President did make the rules on the 25th of May 1962, and he could thus review the case of such a person by or before the expiry of six months of the making of these rules, i.e., the 25th of November 1962. A new sub‑clause (e) bad also been added to clause (9) of Article whereby the President or the Governor could "delegate to a body consisting of more than one officer their power under sub clause (c)." The President in the exercise of the power so given to him also delegated his authority to the body of persons whom he duly nominated in this behalf. It may be noted that the Governor did not make any such rules before the Constitution was enforced on the 8th of June 1962.

6. The terms and conditions of service of a person who was in the service of Pakistan were guaranteed under clause (1) on Article 234 of the Constitution. It reads as:‑ "234.‑(1) Subject to this Constitution and the law, any person who, immediately before the commencing day, was in the service of Pakistan shall, as from that day, continue in the service of Pakistan on the same terms and conditions as were applicable to hits immediately before that day." The age of retirement of a person in the service of Pakistan at sixtieth birthday and his liability to retire earlier was provided by President's Order No. 1 of 1958 as amended from time to time. The said Order was repealed by Article 225 of the Constitution but it was provided in clause (c) of Article 250 that the repeal oil the Order "shall not affect any tight, privilege, obligation of liability acquired, accrued or incurred under the law." It gave constitutional recognition' to the effect of repeal as is enacted in section 6 of the General Clauses Act. It is also the general effect of a repeal that unless it is unmistakably provided in the "Repealing Act" itself, the rights and liabilities arising under the then law remain unaffected. It was provided in the proviso to sub‑clause (c) as was substituted by President's Order No. 17 of 1962 that the rules could be made in this behalf, and within six months of the making of the rules the case of a person who had' already crossed the limit of twenty‑five years of service or fifty -five years of age could be reviewed. Was this not a condition of his service and, did he thereby not incur the liability of such rules being made, and if so, could this term and condition be enforced against him after the Constitution?

7. The Governor in exercise of the powers conferred upon him by Article 178(2) made on the 19th of July 1963, the West Pakistan Government Servants (Further Usefulness in Public Service) Rules, 1963. It was again provided in rule 3 that the date of compulsory retirement of a person shall be the date on which he attains his sixtieth birthday. This was a reproduction of sub‑clause (a) of clause (9) of Article 6 of the President's Order No. 1 of 1958. Rule 4(1) (without the proviso) contains the same provisions which were contained in sub‑clause (c) of clause (9) of Article 6 which was added by the President's Order No. 23 of 1960, except that they also laid down same procedure for carrying into effect those provisions. By these rules (except provisos to rule 4) nothing was added to the terms and conditions of a person who was in the service of Pakistan before the Commencing Day". Even without those rules the age of retirement of such person was sixty years, and he could be retired by the Governor or his delegate earlier than that on the review of his case before he attained fifty‑fifth year of his life or completed 25 years of his service. The rules so made did not violate Article 234 and there was no bar for the Governor to the making of such rules under .Article 178(2) and moreover, these rules did not within the meaning of Article 178(3) operate to his disadvantage as to his superannuation. 7‑A. We may now examine the extent and the scope of proviso to rule

4. The proviso as it existed prior to amendments along with clause (1) of rule 4 reads as:‑ "4. (1) Notwithstanding 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 fifty‑fifth year of his age: Provided that the case of a person, who has completed before, or completes on, or 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." We have already dealt with clause (1) of rule

4. It is re affirmation of sub‑clause (c) of clause i9). Such an action was contemplated in sub‑clause (c) itself, So far as the proviso is concerned it 'enabled the Governor or his delegate within six months of the making of the rules to review the case of a person who completed on the date on which the rules were made, i.e., on the 19th of July 1963 or was to complete within six months of the commencement of the rules, i.e., by the 19th of January 1964, twenty‑five years of service or fifty‑five years of his age. At first sight there may not appear any difference in this proviso and proviso to sub‑clause (c) of clause (9) of Article 6 of President's Order No. 1 of 1958, but the analysis and scrutiny of these provisions reveal significant and substantial difference. Sub clause (c) with the proviso reads as: "(c) notwithstanding anything contained in sub‑clauses (a) and (b), the President, in the cast of a person who is a member of an All Pakistan Service 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 a Province, may, in order to satisfy himself of the further usefulness of any such person in public service, review the case of that person 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 fifty‑fifth year of his age, and if the President or the Governor, as the case may be, is not so satisfied, he may direct that on or after the completion of twenty‑five years of service qualifying such person for pension, or on or after the completion of the fifty‑fifth year of his age such person be retired. Provided that if a person retired under this sub‑clause is fit for a lower post he may be re‑employed in that post: 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 year 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" Under the proviso to sub‑clause (c) itself no person in the service of Pakistan if be bad crossed the stages of twenty‑five years service and fifty‑five years of age could be retired until the: rules were made under sub‑clause (d) and again the order of retirement was passed within six months of the commencement of the rules. Rules under sub‑clause (d) bad to be made by the' Governor with the previous approval of the President. If no such rules were made, such a person could not be retired before be completed sixty years of his life. A provision could have been made in the Order itself for the exercise of such a power for a temporary period of six months. This was not done. On the other hand the proviso to rule 4 had different consequences to flow out of it and a person in the service of Pakistan if he had already completed these two stages, he could still be retired within six months of the making of these rules. Whereas under proviso to rule 4 an action could be taken under the rules themselves, no such action was possible under proviso to sub clause (c) itself. This difference becomes prominent when we consider these provisions in the light of the terms and conditions of service as to superannuation applicable to the persons in the service of Pakistan immediately before the commencing day and the guarantees given to such persons under the Constitution The age of retirement had been increased from fifty‑five to sixty by President's Order No. 23 of 1960. It was undoubtedly to the advantage of the persons in the service of Pakistan. It was at the same time not intended to extend the age of superannuation of the persons who had lost their utility. A provision was made to review the cases of such persons before completing twenty -five years of service or fifty‑five years of age. The review, could not be done in a number of cases and the result was that under the supra‑constitutional legislation such of the persons who had lost their usefulness also benefited by the increase of the age of superannuation. To get rid of such persons the provision was made by way of proviso to sub‑clause (c). By the delay in the enforcement of the proviso, such persons could continue in service, and this would have been the negation of the very purpose for which the provision was made. There was indeed no express provision that the power given by the proviso should be used immediately but such an intention is explicit in the proviso itself. Obviously it was intended to be used without any delay. It, moreover, could not be the intention of the law makers to use this provision as a Sword of Democles hanging over the head of the public servants who had crossed these two stages. It may be for this reason that the President did make the Government Servants (Further Usefulness in Public Service) Rules on the 25th of May 1962, almost contemporaneously with the promulgation of President's Order No. 17 of 1962. The power conferred by the proviso, therefore, became effective as from that date and could be exercised for a limited period of six months, i.e., up to the 25th of November 1962, in respect of the persons acting in connection with the affairs of the Centre. The Governor could also make the rules with the previous approval of the President. No such approval was sought, and no rules were made by the Governor. The authority given by the proviso, therefore, remained ineffective as regards the persons acting in connection with the affairs of the Province of the West Pakistan. The fact that the Rules were not made, implies that the Governor did not want to exercise this power. This is also borne out by the special circumstances. The proviso to sub‑clause (c) of clause (9) of Article 6 of President's Order No. 1 of 1958 was introduced on the 13th of May 1962. The Constitution was enacted on the 1st of March 1962. It was, therefore, known that as from the commencing day, i.e., the 8th of June 1962, the very provision by which a power was created to take such an action would come to an end by its repeal under Article 225 and only the rights and liabilities arising under that law would remain enforcible by virtue of Article 250 of the Constitution. The liability to be retired under the proviso could arise only if the rules were made. Notwithstanding all this, the rules were not made in the absence o: the rules, the persons serving in connection with the affairs of the Province and having crossed the two stages had incurred no liability immediately before the commencing day to be retire prior to their completing sixtieth birthday.

8. There is yet another aspect of the case. The rules contemplated in proviso to sub‑clause (c) were the rules which could be made under sub‑clause (d) which the Governor could make only with the approval of the President. To seek the approval of the President was a departure from the normal legislative or rule‑making power of 'the Governor. Under Article 2(1) of President's Order No. I of 1958, "Pakistan" was "to be governed as nearly as may be" in accordance with the late Constitution. This provision was interpreted by the Supreme Court in Iftikhar‑ud‑Din v. Muhammad Sarfraz (P L D 1961 S C 585) and it was held as:‑ "We have ourselves found no difficulty in holding that the word `governed' in Article 2 of the Laws (Continuance in Force) Order includes the exercise of legislative power. In its ordinary connotation the word `Government' includes legislative, judicial and executive functions, and the ordinary connotation should be adopted in the absence of any indication to the contrary. Not only is there no indication to the contrary in the Order, but there are considerations almost conclusive which would go to show that the exercise of legislative power was in the present case included in the word `Government'." The word, 'governance' also included the legislative and rule‑making powers of the Governor under the old Constitution of 1956. The Governor, therefore, was competent to make the rules. The President, however, again conferred on him almost the same power by President's Order No. 2 of 1962 which was' promulgated on the 16th of March 1962. The restriction on him to obtain the previous approval of the President to make rules for the compulsory retirement of the persons under sub‑clause (c), however, continued to exist. It clearly means that the restriction was real and not an artificial or superficial one. It was made with a purpose and an object. The age of retirement had been extended from fifty‑five to sixty. It was a substantial concession given to the Government servants. They, however, could be retired earlier than that only under sub‑clause (c). The power given thereby bad to be used in special and exceptional cases' and by no means in a manner as to render the very extension of age of retirement nugatory. It appears that for this reason only it was provided in sub‑clause (d) that "for carrying into effect the provisions of sub‑clause (c)" the rules could be made by the Governor with the previous approval of the President. The President, who bad the Constitution making power, at the relevant time, increased in exercise of those powers the age of retirement by Order No. 23 of 1960 and he also provided for the retirement earlier under sub‑clause (c) but he intended the same to be done only as an exception rather than a rule. He gave the rule‑making power to the Governor in respect of persons acting in connection with the affairs of the Province, but at the same time did not concede an absolute power to the Governors. He kept to himself the right to see what rules they were making and unless he gave an approval, they could not be made. This he obviously did with a view to seeing that no such rule was made as to render the extension in age of superannuation as an unreal thing. This was indeed a salutary provision because by this it was intended to insure a sense of security of tenure to the Government servants. The officials from the Permanent; Executive: they are not at all to belong to any party and for the matter of that even to the party in power. They have to, maintain the efficiency and continuity of administration irrespective of the happenings and the landslides on the political sphere of the country. They cannot do so unless they have a security of tenure and are ensured of it by legal and constitution of provisions. It is the security of tenure which creates honesty of purpose among the officers and makes them efficient in the discharge of their duties. They can be immune from political influence and be above political bias if they know that their tenure at any stage is not at the mercy of those who form the `Political Executive'. While it was considered essential by him in the national interest that a power should be reserved to retire persons at the age of fifty‑five or on the completion of twenty‑five years of service qualifying them for pension and to get rid of them on the ground that they had lost their usefulness, the President at the same time thought it essential in the national interest that they should be provided reasonable, degrees of security of tenure and prospects. On the 6th of June; 1962, i.e., the "Commencing Day" of the Constitution, President's Order No. 1 of 1958 with all the amendments made in it from time to time stood repealed and with this the provision of making rules under sub‑clause (d) also came to an end. On behalf of the persons who bad crossed either or both the stages of fifty‑five years of age and twenty‑five years of service it was asserted and maintained that the proviso to sub‑clause (c) if it was to be pressed into service against them as a term and condition of their service, it could be done in no other manner except in the one provided in sub‑clause (b). The rules contemplated in the proviso had to be made by the Governor with the previous approval of the President. Such a rule‑making authority does not exist under the Constitution. There being no authority to make the rules, even if the proviso to sub‑clause (c) be held to be a: term and condition of service it cannot be invoked against him after the Constitution. The Governor made the West Pakistan Government Servants. (Further Usefulness in Public Service) Rules, 1963. These, Rules were made by him in the exercise of his power under clause (2) of Article

176. The approval of the President was not obtained nor is it contemplated in the Constitution. These rules were, therefore, not made by the same authority which was competent to make the rules under sub‑clause (d) of clause (9) of Article 6 of President's Order No. 1 of 1958, nor were they made by any authority which may have had a proximate resemblance with that authority. The West Pakistan Government Servants (Further Usefulness in Public Service) Rules were not, therefore, the rules as were contemplated in sub: Clause (d) of clause (9) of Article

6. Assuming that the making of a rule under sub‑clause (c) was a condition of his service, the Rules of 1963 were not made in accordance with the terms and conditions of .the persons who were in service of Pakistan before the 8th of June 1962. This condition became incapable of enforcement after the enforcement of the Constitution.

9. Since it is not possible under the constitution to make the rules as were required to be made under sub‑clause (d) of clause (9) of Article 6 for retiring a person after the completion of the two stages, the terms and conditions as to the age of superannuation of such a person on the commencing day were that he is compulsorily to retire on the sixtieth year of his birthday, and if he has not attained fifty‑five years of age or twenty‑five years of service, his case can be reviewed when he is about to reach either of these two stages, and he can be retired if it is found that he has lost his usefulness. To retire him in any other case (unless it was by way of disciplinary action) before the age of sixty is by all means to militate against him and is to operate to his disadvantage. The age of superannuation is guaranteed by the Constitution and the right so granted could not be taken away without a constitutional amendment.

10. Reliance was placed on behalf of the Government that under clause (2) of Article 178 of the Constitution, the terms and conditions of service of a person who is serving in connection with the affairs of a province can be prescribed by rules by the Governor. It is, however, provided in clause (3) that "Rules made for the purpose of clause (2) of the Article shall be so framed as to ensure (a) that the terms and conditions of service of a person (in so far as these terms and conditions relate to remuneration or age fixed for superannuation) are not varied to his disadvantage. "By the proviso to rule 4, it was provided to retire also a person who completed on the 19th of July 1963 or was to complete within six months of the making of the Rules. To this extent, it is to the disadvantage of such a person as to his age of superannuation. The constitutional protection given to the persons in service of Pakistan in this respect could not be rendered nugatory by a simple rule‑making power. The proviso to rule 4 (1) is Cleary hit by clause (3) of Article 178‑and is thus, ultra vires the provisions of the Constitutions. It was, however, argued by the learned Advocate‑General that this provision was consistent with sub‑clause (c) of clause (9) of Article 6 and was, therefore, intra vires. We may, at this stage, also note that this has been the consistent argument of the learned Advocate‑General during the hearing of all these petitions that no rules could be made after the commencing day in terms of the proviso to sub‑clause (c) providing for taking action of retirement after the completion of the two stages, namely fifty‑five years of age or twenty‑five years of service because the proviso came to an end by its repeal under Article 225, and could not in form or manner be invoked. The position taken by the learned Advocate‑General is in accordance with the law which we have already discussed. We are, however, unable to subscribe to his view that the proviso to rule 4 is consistent with sub‑clause (c) of clause (9) of Article

6. Under the said sub‑clause the case of a person could be reviewed only when he was about to complete twenty‑five years of service or fifty‑five years of age. The words "about to" in the sub‑clause (c), as already observed, cannot be‑interpreted to mean anything except that the "Review" contemplated therein has to be prior to such a person reaching either of these two stages. If this were not the case, why the framers of the Order (Order No. 23 of 1960) felt the necessity of adding first proviso to sub‑clause (c) by a subsequent amendment (which proviso is like the proviso to rule 4). Obviously it was for the reason that under sub‑clause (c) the case of a person who had crossed these stages could not be reviewed for retirement and he had under law to retire only on the completion of sixtieth birthday. The position taken by the learned Advocate‑General is untenable.

11. It was next contended by him that the provision in sub‑clause (c) that the case of such a person should be reviewed when he is about to reach either of the two stages even if it is interpreted to mean that it has to be prior to these stages, is only directory and not mandatory, and the review of the case of such a person after those stages and the consequent action of retirement before the age of sixty is perfectly valid and is in no way unconstitutional. Sub‑clause (c) providing for the review and retirement of a person on reaching the age of fifty‑five or completing twenty‑five years of service is an exception to the ordinary rule of compulsory retirement of a person at the age of sixty. It has, therefore, to be strictly interpreted. Sub‑clause (c), however, is couched in an unmistakable language. It is not capable of any two meanings. It makes a positive provision for the review of the case of such a person prior to his completing twenty‑five years of service or fifty‑five years of his age. It is difficult to interpret that under this sub‑clause such a review can be done even after the completion of the two stages. Such a view' will, moreover, be contrary to the intention of the law‑makers which is manifest, as observed earlier, in the fact that they made a specific provision for this situation by way of a proviso to that very sub‑clause (c). Moreover, if sub‑clause (c) was capable of this meaning, then rule 4 of the rules which is like sub‑clause (F) should have the same meaning. Why then proviso was added to rule 4 also to meet the same situation. The contention raised by the learned Advocate‑General in this behalf is devoid of force. The proviso to rule 4 of the rules made on the 19th of July 1963 being ultra vires the provisions of the Constitution is a nullity.

12. The West Pakistan government Servants (Further Usefulness in Public Service) Rules, 1963, were also amended from time to time. Under the proviso to rule 4, the action could be taken within six months, i.e., by the 19th of January 1964. By an amendment of the first proviso to rule 4 made on the 13th of January 1964, it was provided to take action within ten months of the making of the rules. By another amendment on the 7th of May 1964, the words "one year and two months" were substituted, and subsequently by an amendment dated the 12th of September 1964 for the words "one year and two months" in the proviso the words "one year and six months" were substituted. Lastly on the 12th of January 1965, the entire proviso to sub -rule (1) of rule 4 was repealed and it was provided that the case of a person who completed or was to complete 25 years of service qualifying him for pension or the fifty‑fifth year of his age after the 30th of April 1965 may be reviewed by the 30th of April, 1965. These amendments were made to the original rules of the 19th of July 1963. The proviso to rule 4 is ultra vires the provisions of the Constitution and the amendments made to the proviso whereby the period for the review of the cases of such persons was extended from time to time are on the same reasoning invalid and ultra vires the Constitution.

13. We may also note another argument which was presented on behalf of certain persons whose cases were reviewed after the expiry of the period of six months as contemplated in the original proviso to rule 4 of the Rules. It was contended on their behalf that even if it be assumed that the rules made on the 19th of July 1963 were ultra vires the Constitution and the Governor was competent to make them under Article 178 (2) of the Constitution, then too he could not subsequently amend the proviso because there was a bar for him to do so under clause (3) of Article

178. The precise argument was that once the rules were made, the case of a person to retire him before he attained the age of sixty could be reviewed either when he was about to complete fifty‑five years of his age or twenty‑five years of his service and in case he had completed before or completed on or was to complete within six months of the making of the rules his case could be reviewed only by or before the 19th of January 1964. This, therefore, became his term and condition of service so far as his age of superannua tion was concerned. The Governor having made these rules once could not again make rules under Article 178 (2) to the disadvantage of such a person as to his age of superannuation. The argument is formidable and even if it be assumed (though it is not so) that the rules of the 19th of July 1963 are valid then too the subsequent amendments which provided for the review of the cases of such persons after the 19th of January 1964 are contrary to the provisions of clause (3) of Article 178 and hence ultra vires. In this view of the matter, the orders of retirement of the petitioners either under the first proviso to rule 4 of the West Pakistan Government Servants (Further Usefulness in Public Service) Rules, 1963, or under the amendments as were made from time to time of the same proviso, who had completed before twenty‑five years of service qualifying for pension or the fifty‑fifth year of age, are illegal, inoperative and ultra vires the provisions of the Constitution.

14. The learned Advocate‑General also relied on sub‑clauses (a) and (b) of clause (4) of Article 178 of the constitution which were added by the sixth amendment of the Constitution to state that the petitioners are liable to be retired under these provisions and, therefore, it would not serve any useful purpose to issue any writ in their favour. He relied on Rehmatullah v. Deputy Settlement Commissioner (PLD 1963 SC 633) where at p. 645 it was held by the Supreme Court thus :‑ "The Court will not grant a writ to produce a certain effect when the law provides power to one of the parties affected by the writ, to nullify the Court's writ unilaterally and the circumstances enabling such action are found to be present." The petitioners are indeed liable to retire under clause (4) of Article 178 of the Constitution. No order, however, by virtue of those provisions can be passed against them so as to take effect from the dates from which they were retired by the impugned orders. The Government, therefore, cannot nullify the Court order and that being so, the principles laid down in that authority cannot be successfully invoked by the learned Advocate‑General in aid of his contention. Moreover, by virtue of clause (5) of Article 178 the competent authority can extend the services of a person or re‑employ him after the date of his retirement, and it will not be unreasonable to expect that the competent authorities will use the same discretion in favour of the petitioners or some of them notwithstanding that they had been directed to retire by l the impugned orders.

15. On behalf of some of the petitioners, it was also seriously contended before us that the orders of compulsory retirement passed against them are mala fides and the impugned orders were challenged also on other grounds. We, however, feel it unnecessary, to deal with those questions for the reason that the orders of their compulsory retirement are otherwise illegal and void being in flagrant disregard of the constitutional protection which had been granted to them.

16. The petitions are accordingly accepted and the orders of compulsory retirement of the petitioners are declared as without lawful authority and of no legal effect. There shall be no order as to costs. A. H. Petition accepted.