1988 PLP 13 (PLD)

SHAFIUR RAHMAN, J.‑‑Leave to appeal was granted under Article 212(3) of the Constitution to the Federation of Pakistan as well as to the civil servant concerned to examine whether the Service Tribunal has by its Judgment dated 17‑12‑1980 correctly held that the oral orders of the Chief Martial Law Administrator were of no avail for retiring the civil servant under section 13, clause (ii) of Civil Servants Act and that the grounds of such retirement, namely, public interest, was not open to scrutiny and adjudication before Service Tribunal in appeal filed under section 4 of the Tribunals Act.

2. The Establishment Secretary recorded a note on the 16th of February, 1978, which is reproduced hereunder in extenso:‑ "ESTABLISHMENT DIVISION The Advisor has given directions that the CMLA has been pleaded to approve of the following:‑ (i) Posting of Mr. Mohammad Anisur Rahman Arif, O.S.D., Establishment Division as Managing Director, Police Foundation. (ii) Mr. Ata Hussain,

0. S . D . , Establishment Division who has completed 25 years of service on 6‑1‑1978 will be retired in the public interest in accordance with the Article 13(1) of Civil Servants Act 1973. He may be given 10 days notice of retirement and can apply for leave within 15 days of notification.

2. Action will be taken accordingly. Formal Summary for the CMLA will be sent in consolidated form after some time because some other changes may be made in the normal course. The Advisor had expressed a desire that individual cases should not be sent. Sd/ ( N . H . Jafarey ) Establishment Secretary" 16‑2‑1978. It was followed by a notification dated 23rd of February, 1978 in the following words:‑ "Whereas Mr. Ata Hussain on Special Duty (Inquiries) Grade 20), Establishment Division, Islamabad (an Officer of the Police Group) has completed 25 years of service qualifying for pension or other retirement benefits; Now, therefore, in exercise of the powers conferred by Clause (11) of Section 13 of the Civil Servants Act, 1973, the President is pleased to direct in the public interest that Mr. Ata Hussain shall retire from service on 5th March, 1978, or, if any leave preparatory to retirement is applied for,by him within 15 days of the date of this notification and granted to him, on the expiry of such leave. Sd/‑ Abdul Khaliq Awan, Deputy Secretary to the Government of Pakistan." Mr. Ata Hussain filed a Review Petition against the order of his retirement on 4th of March, 1978. It was put up with a summary to the Chief Martial Law Administrator pointing out that such a review petition was not competent. The recommendation was that it should be rejected. It was received from the C.O.S. to C.M.L.A. duly approved.

3. Mr. Ata Hussain then filed a Service Appeal under Section 4 of the Service Tribunals Act. The grounds taken up by him in the Appeal were that this order of retirement was by way of punishment at it was preceded by inquiry into his conduct which cleared him of every allegation levelled against him. It was also alleged that it was mala fide and on account of personal bias. At a subsequent stage a ground was added that it was not ordered by the competent authority.

4. The Service Tribunal allowed this appeal on the ground that the retirement of Mr. Ata Hussain was neither initiated by the Chief Martial Law Administrator under written orders nor was it subsequently approved. The subsequent rejection of the review petition of Mr. Ata Hussain was held not to sanctify the order of retirement previously passed.

5. The plea of Mr. Ata Hussain that the order was mala fide and not in public interest and was by way of punishment was rejected mainly for the reason that an order of retirement passed under Clause (ii) of Section 13 of the Civil Servants Act was not justiceable before the Service Tribunal. In holding this view, the Service Tribunal was guided by the law laid down by this Court in CPSLA No.188 of 1978 Muhammad Ayub Qureshi v. Province of Sind and others decided on 12th of March, 1978.

6. Aggrieved by the judgment of the Service Tribunal, two appeals were filed. The Federation felt aggrieved on account of it being held that only the written orders of the competent authority could be of avail for retiring a civil servant under Section 13, Clause (ii) of the Civil Servants Act and that oral orders could not achieve that object. Mr. Ata Hussain felt aggrieved by the finding that, on the facts and circumstances of the case, it was not held that order of retirement was by way of punishment and also that the requirement of public interest, which was a justiceable matter, was not satisfied in ordering his retirement.

7. Mr. Sajjad Ahmad Sipra, the learned Deputy Attorney‑General, contended that Mr. Ata Hussain was, at the relevant time, a Grade‑20 Officer in respect of whom the necessary delegation of powers had been made to the Adviser, Establishment and independently of the CMLA, the Adviser could as well pass such an order of retirement. Besides it is contended that the oral orders duly recorded by the Establishment Secretary, when it was received by him through the Adviser, was sufficient to retire the civil servant and an order in writing was not necessary. He has referred in this context to a decision of this Court in Civil Appeal No.6 of 1980 Federation of Pakistan v. Mr. Mazhar Ali. 8‑. Mr. Aitzaz Ahsan, the learned counsel for the civil servant has not pressed his appeal with regard to the two grounds, namely, the justiceability of the ground of public interest required for passing an order of retirement under Clause (ii) of Section 13 of the Civil Servants Act and also the ground that the order of retirement impugned before the Tribunal was in fact an order of punishment and had to conform to the procedure prescribed therefor. His appeal therefore stands dismissed as not pressed.

9. It is clear from the pleadings of the parties and the arguments addressed before the Service Tribunal that the case put forward by the Federation was that in fact the Chief Martial Law Administrator had passed an order retiring Mr. Ata Hussain. It was orally communicated to the Adviser Establishment, who had orally communicated it to the Establishment Secretary, who had made a record of it and proceeded to take action accordingly in the name of the President, who was the competent authority to retire him. As there exists a duly authenticated order dated 23rd of February, 1978, there was a strong .presumption of its having been passed by the competent authority as held in Province of Punjab v. Abdur Rahman Khan Durrani P L D 1979 S C

711. Nevertheless as this fact has been looked into in greater depth before the Tribunal and a finding of fact has been recorded that in fact no written orders by the President of the Chief Martial Law Administrator or anyone duly authorised by him had been passed, it is necessary to go behind that presumption and to look at the validity or otherwise of the order resulting in the retirement of Mr. Ata Hussain. In Sibnath Banerji and others AIR 1945 P C 156 the Privy Council approved the following observation of the Federal Court in words that follow:‑ "Their Lordships agree with the statement by the learned Chief Justice of the Federal Court, viz,: It is quite a different thing to question the accuracy of a recital contained in a duly authenticated order, particularly Where that recital purports to state as a fact the carrying out of what I regard as a condition necessary to the valid‑making of that order, In the normal case the existence of such a recital in a duly authenticated order will, in the absence of any evidence as to its inaccuracy, be accepted by a Court as establishing that the necessary condition was fulfilled. The presence of the recital in the order will place a difficult burden on the detenu to produce admissible evidence sufficient to establish even a prima facie case that the recital is not accurate. On this point the Federal Court was unanimously against the Crown" So the authentication of the order is not the complete answer to the question in issue.

10. The principal of sub‑delegation or a civil servant acting as his minister's alter ego also does not get attracted to the case because the reference is to the exercise of the power by the CMLA and by none‑else. This principle is expressed in Halsbury's Laws of England Vo1.I Para 32 on administrative law as hereunder:‑ "A civil servant is his minister's alter ego, and a decision taken by a civil servant in the name of the minister or the department is not open to objection as a form of unauthorised sub‑delegation, provided at least that the servant has actual or implied authority so to act and the matter is not so important as to demand the minister's personal attention. The powers of other public bodies are, in general, exercisable by their servants or agents. Local authority functions may under the Local Government Act 1972 be delegated either to officers or to committees or sub‑committees of the authority."

11. The same principle has been dealt with in De Smith's Judicial Review of Administrative Action Fourth Edition at page 307 in following words:‑ "Special considerations arise where a statutory power vested in a Minister of a department of State is exercised by a departmental official. The official is the alter ego of the Minister or the department, and since he is subject to the fullest control by his superior he is not usually spoken of as a delegate. (A different analysis must, of course, be adopted where powers are expilicitly conferred upon or delegated to an official by a law‑making instrument). The Courts have recognised that "the duties imposed on Ministers and the powers given to Ministers are normally exercised under the authority of the Ministers by responsible officials of the department. Public business could not be carried on if that were not the case". In general, therefore, a Minister is not obliged to bring his own mind to bear upon a matter entrusted to him by statute but may act through a duly authorised officer of his department. The officer's authority need not be conferred upon him by the Minister personally; it may be conveyed generally and informally by the officer's hierarchical superiors in accordance with departmental practice. Whether it is necessary for the authorised officer explicitly to profess to act on behalf of the Minister is not certain."

12. The Law (Clause (11) Section 13, Civil Servants Act) empowers the competent Authority and none else to give direction in public) interest as to retirement of a civil servant "on such date after he I has compeleted twenty five years of service qualifying for pension or other retirement benefits as the competent authority may, in the public interest direct". The Provisional Constitutional Order (Article 13) excludes the jurisdiction only where such an order is passed by the Competent Authority and only where the civil servant concerned has completed twenty‑five years qualifying service. If any of these conditions is wanting the bar of jurisdiction is in terms not attracted. The Adviser, even if exercising the delegated power, has not himself passed the order of retirment. He does not claim to have exercised his own powers as a delegate. Instead. what he claims is the exercise of powers by CMLA himself. The learned Deputy Attorney‑General could not, therefore, on these facts impute the exercise of delegated powers either by the Minister or by the Establishment Secretary.

13. There were two statutory instruments in the field. There was the order of the Chief. Martial Law Administrator dated 15th July, 1977 to the following effect:‑ "

1. The Chief Martial Law Administrator is pleased to authorise Major‑General K.M.Arif, Chief of Staff to the Chief Martial Law Administrator, to make, issue and execute orders and other instruments or documents in the name and on behalf of the Chief Martial Law Administrator with his approval and the orders, instruments or documents so made, issued or executed shall be deemed to have been duly made, issued or executed by the Chief Martial Law Administrator.

2. This order shall be deemed to have taken effect on the fifth day of July, 1977. Sd/ General (M. Zia‑ul‑Haq )" Sub‑para 4 of para 15 of the Rules of Business framed under Articles 90 and 99 of the Constitution provides as hereunder:‑ "(4) In case in which the Prime Minister's orders are obtained in oral discussion by a Minister, Minister of State, Special Assistant to the Prime Minister, Secretary‑General, Deputy Chairman, Planning Commission, Secretary or by any other officer of the Government, a written note containing a brief record of the discussion and the orders of the Prime Minister shall be submitted to the Prime Minister's Secretariat (Public) for the information of the Prime Minister." These two requirements, the one under the express orders of the Chief Martial Law Administrator and the other, that of the Rules of Business reproduced, make it clear that not the Adviser but only the COS was authorised to act as the alter ego of the CMLA and if the Adviser recorded oral orders of the CMLA the requirement of Rules of Business had to be satisfied. That requirement not being satisfied in terms of these two dispensations, the Tribunal's view that the order communicated by the Adviser and recorded by the Establishment Secretary as one emanating from the Chief Martial Law Administrator does not enjoy legal sanctity and efficacy, would appear to be unexceptionable.

14. The two decisions of this Court (C.A. No.60/80 and in C.P.349‑R/84) relied upon by the learned Deputy Attorney‑General are, strictly speaking, not very helpful to him. In one (C.P. 349‑R/84) the following was the basis of decision:‑ There is nothing in the record placed before us that the concerned functionaries issued the notifications without bringing the matter to the notice of the President. Moreover, it is a question of fact involved in these cases and is not a question of law of public importance for the examination of which alone leave to appeal can be granted under Article 212 of the Constitution. Same would apply to the inclusion of the element of public interest in the notifications. We are also unable to hold that the CMLA had passed no orders against the petitioners and that the Adviser had done so on his own."

15. The second case related to continued suspension of a civil servant proceeding on following find of fact:‑ "A reference to the record establishes two facts, firstly that every time the President had himself authorised the suspension of the respondent, on the first occasion the minute was recorded by the Adviser, and on subsequent occasions by C.O.S. to President. The President had attended to the entire case on 24‑2‑1979 starting with the first suspension and himself noted down the orders with regard to further course of action to be taken. The initial suspension and its pericate continuation had all been fully brought out in the summary to the President on which these orders were passed."

16. The Deputy Attorney‑General has by an application dated 24‑2‑1986 sought permission to place on record certain additional l1 documents not earlier brought to the notice of the Service Tribunal. Not only there is inordinate delay in filing of these documents, it amounts to setting up of a new case, different than the one set out before the Tribunal. There is no reason given for earlier omission to plead and place on record these documents fox consideration. Hence that application is rejected.

17. The result is that the appeal filed by the Federation is dismissed with no order as to costs. M.B.A../I‑22/S Appeals dismissed.