1984 PLP (C (PLC(CS))

7. We have carefully gone through the service record of the appel lant. He is a graduate, S. A. S. departmentally. He is Intermediate from the Professional Institute of Cost and Management Accounts London with an additional paper on Statistics.

8. The D. P. C. which was convened on 15th, 16th October, 1975 for induction of officers into the I. D. C. says the following about the appellant: ‑‑ "Not recommended. Mr. 1kram earned average grading against 4 items in Part 11 for 4th September, 1974 to 31st December, 1974. His reports for 1972‑73, and part of 1974 are not available as he was P O W. His C. R. for 1969 shows him average. His report for 21st July, 1968 to 5th December, 1968 is average and contains unfavourable remarks. His past record also contains average grading in many reports."

9. We would comment on the above quotation by saying that q everything negative was highlighted. The appellant earned average against four items in C. R. for the period 4th September, 1974 to 31st December, 1974 and there being nothing wrong with it, it was highlighted but his intelligence and mental alertness graded as A‑1, his judgment ‑and sense of proportion‑A, initiative and drive‑A, power of expression, written and spoken‑A, Ability to plan, organise and supervise‑A, Quality and Output of work‑A, Capacity to guide and train subordi nates‑A. Co‑operation and Tact‑A, Sense of responsibility‑A, Persona lity‑A were all ignored. The reporting officer has graded him good with remarks "Mr. Muhammad Ikramullah is very intelligent, co‑operative and obedient. His work and conduct has been satisfactory." The counter s signing officer has agreed with the report, which is good,

10. We have brought out the above sample only to show the approach of the D. P. C. who saw nothing but failings in the appellant.

11. Another factor which has gone against the appellant is that there were no A. C. Rs. on him for the years 1972‑73 and part of 1974 because he was P O W ?

12. True, there are adverse remarks here and there in A. C. Rs. as there would be in respect of any human being but there are more remarks which speak highly of the appellant than those which do not and this would have been quite easy to pick out provided, of course, pains had been taken by the D. P. C. to go into the case of the appellant. We have no hesitation in remarking that the appellant did not receive a fair deal at the hands of the D. P. C. and that the D. P. C. manipulated such evidence so as to confirm what they desired. The reason for this attitude may have been a consideration that larger number of P. M. A. D. officers were candidates for induction into the

1. D. C. who were also very senior and that their induction at one and the same time would have meant more promotions and openings for the said officers. The appellant was one of them. If inducted, he would have had to be placed at Serial No. 3 of the

1. D. C. seniority list of 247 Grade‑17 officers prepared for the first time in December, 1975. This position was highlighted by the appellant and we find substance in it.

13. We have carefully gone through the A. C. Rs. of the appellant and have come to the conclusion that, on the basis of this record, there should have been no reason or justification to apply section 13 (ii) in his case Again, as contained in the memo of appeal and as argued before us, the reason for this action of the authorities concerned was that the appellant had been agitating for his induction, as of right, into the

1. D. C. According to the appellant, the law did not provide that he being in Grade‑17 should be selected, once again, by a D. P. C. from Grade‑17 to Grade‑17 (of the

1. D. C.). According to the learned coun sel for the appellant, at the time of formation of the Accounts Cadre, all officers of Grade‑17 of the services were deemed to have become part of the I.D.C automatically. We do not, however, think that this was the correct position. Paras.4 (a) and (b) of O. M., dated 3rd Mars 1996dealing with the account; Group are reproduced: ‑‑ "

4. Inter‑Departmental Cadre. ‑ (a) All posts in Grade‑17 which were formerly borne on the cadre of the former Accounts Services and 25% of Grade‑17 Accounts posts in the T & T Department and Pakistan Posts Office Department shall be borne on an Inter‑Departmental Cadre. Pots in Grade‑17 sanctioned after 20th August, 1973 will be distributed between the Departmental and Inter. Departmental Cadres in the ratio of 3:

1. The cadre shall in addition com prise all posts in Grade‑18 and above in the Accounts Group. Officers of the Inter‑Departmental Cadre will be transferable from one Department to the other. (b) Appointments to posts in Grade‑17 on the initial formation of the Inter‑Departmental Cadre will be made by allocating posts to the promotee officers and the direct recruits in Grade‑17 in the ratio of 50 : 50, on year‑to‑year basis. Future appoint ments to Grade‑17 posts in the cadre will also be made by allocating vacancies arising in that grade to officers of the Departmental Cadre and the direct recruits in the ratio of 50 :

50. The ratio is subject to review after 5 years ", The above quotation should be enough to place, in perspective, the arguments of the learned counsel. In accordance with the law extent, the appellant will have to take his place in the Grade‑17 of

1. D. C. w. e. f. the date of approval by the competent authority which, in this case, was received in May, 1981.

14. It is obvious that if the appellant had been retired under section 13 (ii) of the Civil Servants Act, 1973 after rejection by the D. P. C. held in August. 1980, he would have bad no case. However, the fact that the appellant was cleared by the said D. P. C. did indicate that he was considered useful to the service and to retire him in November, 1980, within three months of his approval by the D. P. C. does show male fide as alleged by the appellant. As such the action of his retire ment, in the circumstances of the case, cannot be sustained.

15. Section 13(1) of the Provisional Constitution Order, 1981, bars our jurisdiction in respect of cases of retirement under section 13 (ii) of the Civil Servants Act, 1973. Such a bar would, however, apply only in cases where a person so retired has completed 25 years of service qualifying for pension or other retirement benefits and his retirement has been ordered by an authority competent to do so. In the present case these requirements appear to have been fulfilled. We use the word "appear" by way of doubt because, despite our clear orders to produce before us the relevant record, the office of the Auditor‑General have failed to do so. We shall, therefore, be within our right to draw an adverse conclusion and to express doubts as to whether or not the appellant had actually been retired by the competent authority. Defiance of our order to produce the record in original, lends further support tot appellant's assertion that he had been maliciously retired.

16. We have no doubt left that .the retirement of the appellant has, indeed, been a mala fide act. As held by the learned Supreme, Court in the case of State v. Zia‑ur‑Rahman (P‑L D 1973 S C 49) (and quoted from he case of Abdul Rauf v. Abdul Hamid Khan): ‑ 'A male fide act is by its nature an act without jurisdiction: No Legislature when it grants power to take action or pass an order contemplates a male fide exercise of power. A male fide order is a fraud on the statute. It may by explained that a mala fide order means one which is passed not for the purpose contemplated by the enactment granting the power to pass the order, but for some other collateral or ulterior purposes." And further: "It will thus be seen that, so far as this Court is concerned, it has consistently held the view that a male fide act stands in the same position as an act done without jurisdiction, because, no Legis lature when granting a power to do an act can possibly contem plate the perpetration of injustice by permitting the doing of that act male fide." In the case of Federation of Pakistan v. Saeed Ahmad (1) it is held: ‑ Indeed, mala fide acts stand on the same footing as acts done without jurisdiction."

17. We have come to the conclusion that the retirement of the appellant has been a male fide act both in fact and in law. As ruled by the learned Supreme Court in the cases cited by us, we hold the retire ment of the appellant under section 13 (ii) of the Civil Servants Act, 1973 to be incompetent, unlawful and of no legal effect. Such being the legal position and the order of appellant's retirement being without jurisdiction, we have full jurisdiction of adjudication in this case, section 13 (P L D 1974 S C 151) of the P. C. O. 1981 notwithstanding.

18. In view of the foregoing averments, we set aside the order o appellant's retirement under section 13 (ii) of the Civil Servants Act, 1973 and reinstate him into service w. e. f. 17th November, 1980 as he had never retired. His date of birth being 1st May, 1925 he has yet to reach the age of superannuation.

19. The appellant shall be deemed to have been inducted into the I. D. C. from May, 1981 by virtue of approval of the competent authority to this effect. His seniority in the list of Grade‑l7 officers of the

1. D. C. shall be fixed accordingly and he would be considered for promotion to Grade‑18 (now B‑18) with effect from the date his immediate junior was promoted in the I. D. C.

20. All financial benefits flowing from this order would be available to the appellant.

21. Appellant's period of L: P. R. which he availed of, as well as pensionary benefits, if any, drawn by him, would be regularised in a manner most beneficial to him under the rules.

22. The appellant also agitated before us that even though he was in Grade‑17, he had been holding the charge of a Grade‑18 post for a long time mentioned at para.5 (c) but had not received the pay of the post but only 10% as additional pay and that he may be paid the requisite arrears due to him. We cannot, it is regretted, take Cognisance of this claim of the appellant because it was not contained in the memo of appeal. The appellant has a right to agitate the issue and after exhausting the departmental remedy, he could come up in appeal before us should he so desire.

23. No order as to costs.

24. Parties be informed. A, E. Appeal accepted.