1974 SC M R 535 (PLP)

HAMOODUR RAHMAN, J.‑This petition has been filed by the Govern ment of Pakistan for special leave to appeal from the judgment and order of a Special Bench consisting of three learned Judges of the High Court of West Pakistan declaring a notice dated the 12th of June 1964, proposing to send the respondent herein on compulsory retirement from public service under Note 1 of Article 465‑A of the Civil Service Regulations with effect from the 1st of August 1964, of no legal effect and illegal. The respondent, who joined the Indian Civil Service in the year 1938, is now a Member of the Civil Service of Pakistan. He completed 25 years of service on the 24th of October 1963. He challenged the validity of the notice served upon him firstly on the ground that Article 465‑A of the Civil Service Regulations did not apply to the members of the former Indian Civil Service, and secondly that even assuming that it did apply, it stood abrogated by Articles 6(3) and 6(9)(c) of the Laws (Continuance in Force) Order, 1958. This argument found favour with the High Court and it was held that the respondent could only be compulsorily retired under the procedure laid down in the Government Servants (Further Usefulness in Public Service) Rules, 1962, namely, when he is about to complete 25 years of service qualifying him for pension and when he is about to complete the 55th year of his age or within six months of the date of the publication of the said Rules. As all the said periods had expired, the action proposed could not be taken in 1964. Learned counsel appearing in support of this petition does not contest the correctness of the High Court's decision but seeks special leave to appeal on the ground that the law has undergone a change since the announce ment of the High Court's judgment on the 6th of January 1965, by the amendment of Article 178 of the Constitution itself by the Constitution (Third Amendment) Act XV of 1965, which was published in the Gazette, Extraordinary, on the 12th of August 1965. In support of the contention that such a change in the law since the announcement of the High Court's judgment can furnish a ground for special leave to appeal reliance has been placed on a decision of this Court in the case of Sayeedur Rahman v. Chief Election Commissioner, Dacca and others (P L D 1965 S C 157) and it is urged that this Court should take notice of the change in the law during the pendency of the proceedings. That was a case where the law had been changed during the pendency of the petition for special leave and the change in the law had the effect of retrospectively removing a disqualification for election as a member of a National or a Provincial Assembly. Here too the position is the same. The petition for special leave was filed on the 5th of March 1965 before the amendment of the Constitution. No doubt, when a proceeding is pending in this Court the Court can take into account the provisions of a new law enacted during the pendency thereof and grant relief accordingly. But in this case even if this change in the law is taken into account, it will not validate the action already taken against the respondent for, even under the amended provisions of Article 178 of the Constitution the action that has to be taken is to be subject to the provisions of Articles 185 and

186. Under Article 185 in the case of a compulsory retirement under paragraph (a) of clause (4) of Article 178, consulta tion with the Central Public Service Commission appears to be necessary except to the extent otherwise provided by the President after consulting the Commission in the case of persons belonging to the All‑Pakistan Services. No such consultation has been made and the notice challenged in the High Court is clearly not relateable to action under the new law. In the circumstances, even the new law will not be of any assistance in the present case. We are, therefore, of the view that no sufficient ground for interference exists in the present case. Leave is, accordingly, refused and the petition is dismissed with costs, as notice of the petition had been directed to be served on the respondent who is represented before us through counsel. Petition dismissed.