1984 PLP (C (PLC(CS))

(2) An employee may, at any time after he has completed twenty‑five years of service qualifying for pension, gratuity or other retirement benefits, apply for retirement from service by giving not less than three months' notice of his intention to retire". The definition of the `employee' and 'competent authority', as given in Regulation No. 2, is as follows :‑ "I

2. Definitions.‑In these regulations, unless there is anything repug nant in the subject or context :‑ (a) "Employee" means a person transferred to the Corporation under subsection (1) of section 12 of the Pakistan Broadcasting Corpora tion Act, 1973 (XXXII of 1973), and includes a person employed by the Corporation on or after the twentieth day of December, 1972 but does not include a person serving in the Corporation on deputation from the Federal Government or a Provincial Govern ment; and (b) "Competent authority" means the appointing authority or a person duly authorised by the appointing authority in that behalf, not being a person lower in rank than the employee concerned". The petitioner on 1st of September, 1981 addressed a letter to the Minister for Information and Broadcasting, expressing apprehension that the authorities may try to throw him out of service on the pretext that he had completed 25 years of service and saying that any such action if taken would be mala fide and that the appeal filed by the Corporation against the decision of the Lahore High Court is still pending. The petitioner also received a memo dated 28th of October, 1981 of the Director‑General to the effect that his representation had been rejected by the Information Secretary/Chairman, Pakistan Broadcasting Corporation as at present he was not considered fit to hold the appointment of Director of Administra tion and Public Affairs. The petitioner in reply asked for the supply of the said appointment. It is the case of the petitioner that instead of supplying him reasons and allowing him to perform his full duties in the capacity of Controller Administration, he was handed over the impugned order of retirement. 5.The grounds taken to assail the order of retirement are (i) that as only the person and not the service was transferred to the Corporation, the service as an employee of the Federal Govern ment prior to appointment in the Corporation cannot be reckoned for calculating the service of the Corporation and as admittedly the petitioner had not completed 25 years service in the Corporation, be cannot be retired in exercise of the powers conferred by Regulation 3 of the Regulations (ii) the exercise of power is mala fide as the earlier attempt of the res pondents to oust the petitioner from the Corporation remained futile in view of the acceptance of the writ petition by the High Court. Elaborating the submission, it was submitted that the appointment letter Exh. Z/7 with the rejoinder is sufficient to show that the appointment in the Corporation was a fresh appointment as the petitioner was required to serve probationary period of 12 months although in Radio Pakistan the petitioner was a confirmed Director, and that the petitioner having admittedly not served for 25 years in the Corporation, cannot be said to have completed 25 years' service qualifying for pension. In support of the plea of mala fides the orders passed, whereby powers were delegated and reallocated were pressed into service. The petitioner also relied on the orders passed earlier transferring him to Muzaffarabad as Regional Director and then posting him as Director (Audience and Research), which were impugned in the earlier Writ Petition.

6. Learned Deputy Attorney‑General in reply argued that the peti tioner before joining the Corporation was a member of the Civil Service of Pakistan and after transfer, the Corporation service has also been declared to be service of Pakistan under Ordinance 13 of 1978, and he having admittedly completed 25 years' service in the service of Pakistan, the petitioner is debarred from challenging the impugned order of retire ment by Article 13 of the Provisional Constitution Order. According to him, the only remedy open to him was to submit a review petition as pro vided by Article 13 (2) of the Provisional Constitution Order. According to the learned Deputy Attorney‑General, as provided by Article 13, a High Court has no jurisdiction to entertain any proceedings on any ground what soever calling in question the validity of the orders of retirement passed by the competent authority.

7. Learned counsel for the petitioner argued that the respondents are estopped from raising the plea that the petitioner is a Civil Se‑\ant or that the Corporation service is service of Pakistan, as in the written state ment filed by them preliminary objection taken is that the case was governed by the ratio of R. T. H. Janjua's case (P L D 1974 S C 146). He submitted that even in the previous Writ Petition (W. P. No. 5223‑S‑78) and the Intra‑Court Appeal (I. C. A. No. 192 of 1979) filed by the respondents, the position taken is that the petitioner being employee of the Corporation, his terms and conditions of service were governed by the law of "Master and Servant." This point was, however, not contested seriously by the learned counsel for the petitioner as the question "as to what is the real nature of the employment of the petitioner" is a question of law, and there cannot be any estop pel against law.

8. The question whether the service of the Corporation is a service of Pakistan, thus requires to be determined first: In this context, learned Deputy Attorney‑General relied on Corporation Employees (Special Powers) Ordinance, 1978. Learned counsel for the petitioner argued that section 3 of the Ordinance makes the employees of the Corporation Civil Servants for a limited purpose and that section 5 of the Ordinance would only apply in case of such persons who were removed from service or reduced to rank under section

3. He argued that this Ordinance was brought on the Statute Book for achieving a limited purpose of providing remedy to the persons removed from service or reverted to lower post or grade and these are the persons who were appointed and promoted during the period from the first day of January, 1972, to the fifth day of July, 1977. The said purpose having been achieved, the Ordinance has lost its efficiency, sec tions 2, 3 and 5 of the Ordinance are quoted for ready reference: ‑ "Section

2. Definition.‑In this Ordinance, unless there is anything repugnant in the subject or context, "person in Corporation service" means every person who is in the employment of a Corporation or an institution set up, established, managed or controlled by the Federal Government, and includes the Chairman and the Managing Director of, and the holder of any other office, such Corporation or institution." Section

3. Certain persons to be liable to removal or reversion.‑ "Notwithstanding anything contained in any law for the time being in force, or in the terms and conditions of service, a person in Cor poration service appointed or promoted during the period from the first day of January, 1972, to the fifth day of July, 1977, may be removed from service, or reverted to his lower post or grade, as the case may be, without notice, by the President, or a person authorised by him in this behalf, on such date as the President, or as the case may be, the person so authorised may, in the public interest, direct. Section

5. Service of Corporation to be service of Pakistan, etc. "Service of a Corporation is hereby declared to be service of Pakistan and every person in Corporation service who is removed from service, or reverted to a lower post or grade, under this Ordinance, not being a person who is on deputation to a Corporation from any Province, shall be deemed to be a civil servant for the purpose of the Service Tribunals Act, 1973 (LXX of 1973)."

9. The precise question raised before us was considered by a Division Bench of the Karachi High Court in Farid Ahmad v. Karachi Shipyard do Engineering Works Ltd. and another (P L D 1993 Ku. 576) and the said Bench returned the verdict as under : ‑ "Section 5 can fairly be divided in two separate, independent parts. The opening sentence of section states that every person in the service of a Corporation is declared to be in the service of Pakistan. This is a declaratory provision confirming the status of all employees of Corporations as persons in the service of Pakistan. The later portion of section 5 which is joined with the former portion is linked by the use of the word "and". In this latter portion some venue of relief was sought to be provided for such persons who had been removed or demoted in exercise of power under section 3 of the Ordinance. These persons were by legal fiction termed to be civil servants for purposes of Service Tribunal Act, 1973. It would) thus mean that section 5 operates to achieve two objects and such objects are stated distinctly and separately though joined by the word "and". In the first part of the section, status of Corporation employees has been determined; that they shall have the same right as persons in service of Pakistan in their service matters and the latter part of section 5 attempts to achieve another object b providing remedies to those persons who had been removed unde section

3. Mr. Nasim Farooqi, has canvassed before us that section 5 would only apply in case of such persons who have been removed) or reduced under section

3. We are afraid, we cannot accepted this/ interpretation because of the plain language of section

5. By accept ing this interpretation, we could virtually be holding the opening sub‑clause in section 5 to be redundant and meaningless. Redun dancy is rarely ascribed to the legislation." We respectfully agree with the abovequoted view taken by the learned Judges of the Karachi High Court.

10. We may add that Article 260 of the 1973 Constitution defines "Service of Pakistan" as under :‑ "Article 260.‑.......................................................................... "'Service of Pakistan' means any service, post or office in connection with the affairs of the Federation or of a Province, and includes an All Pakistan Service, service in the Armed Forces and any other service declared to be a service of Pakistan by or under Act of Parliament or of a Provincial Assembly, but does not include services as Speaker, Deputy Speaker, Chairman, Deputy Chairman, Prime Minister, Federal Minister, Minister of State, Chief Minister, Provincial Minister, Attorney‑General, Advocate‑General, Parliamentary Secretary or Chairman or member of a Law Commission, Chairman or member of the Council of Islamic Ideology, Special Assistant to the Prime Minister, Adviser to the Prime Minister, Special Assistant to a Chief Minister, Adviser to a Chief Minister or member of a House or a Provincial Assembly ; It will, therefore, be seen that any other service declared to be service of Pakistan, by force of this definition is to be treated as service of Pakistan. This declaration that the service of Corporation is service of Pakistan, was made by section 5 of the Ordinance, 1978. Moreover, if the object was to provide a remedy to the persons who were removed from service or reverted to a lower post or grade under section 3 of the Ordinance, the said objective could be achieved by only providing that such persons shall be deemed to be civil servants for the purposes of Service Tribunals Act, 1973 (Act LXX of 1973). The necessary consequence of holding that the Corporation service of Pakistan, is that the provisions of Article 212 of the Constitution are attracted. The petitioner, however, admittedly cannot invoke the jurisdic tion of the Service Tribunal as according to the learned Deputy Attorney General no Court or Tribunal, including the Supreme Court, a High Court and a Service Tribunal, has any jurisdiction to entertain any proceedings calling into question the validity of the orders of the competent authority on any ground whatsoever. This, on the very own showing of the learned Deputy Attorney‑General, ousts the application of Article 212 of the Constitution.

11. This brings us to the question "whether under Article 13 of the Provisional Constitution Order ouster of jurisdiction is complete or whether the jurisdiction will be ousted only in those cases where the impugned order was passed by the competent authority, and in case of an employee who has completed 25 years of service qualifying for pension or other retirement benefits." The argument of the learned Deputy Attorney‑General was that the ouster is complete as the jurisdiction to entertain any proceedings to call in question the validity of the order of the competent authority on any ground whatsoever, does not exist. According to him, if the proceedings cannot be entertained, no question will arise of going into the validity of the orders passed and determining whether the order was passed by the competent authority or on completion of the requisite period. He submitted that all such questions can be raised only through a review petition addres sed to the competent authority. In this connection, he relied on an unreported judgment delivered by a learned Judge of this Court in the case of Ch. Muhammad Danishmund v. The Cantonment Board and another (Writ Petition No. 444 of 1983). Learned counsel for the respondent, however, relied on Syed Mahmood v. Pakistan Railways Board and another (1) In this judgment, another learned Judge of this Court held that the High Court is first to determine whether the order of the retirement was passed by a competent authority after the completion of 25 years of service and it is only after this issue has been decided that the question "whether this Court has the jurisdiction to deal with such a petition," will arise‑. The learned Judge noting that the same question had been raised in other Con stitution Petitions and Intra‑Court Appeals, directed that the petition of Syed Mahmood be laid for hearing before another Division Bench. We have been informed that these petitions are still pending and have not been decided. As the other petitions and appeals are pending adjudication on the question of interpretation of Article 13 of the Provisional Constitution Order, we would have also directed the hearing and adjudiction of this petition alongwith the said petitions in the interest of justice, but we have not adopted this course as we have come to the conclusion that even on merits, the impugned order warrants not to be interfered with and as such, there is no necessity to go into the question of interpretation of Article 13 of the Provisional Constitution Order. Our reasons for coming to this conclusion are that under the Pakistan Broadcating Corporation Em ployees (Retirement from Service) Regulation," employee "means" a person transferred to the Corporation under subsection (1982 P L C (C S) 231) of section 12 of the Act, and includes a person employed by the Corporation on or after the 20th day of December, 1972." The "competent authority" means‑"the appointing authority or a person duly authorised by the appointing authority in that behalf." The appointment of the petitioner was made with the approval of the Chairman, Pakistan Broadcasting Corporation as is evident from order, dated 27th of February, 1973 (Annexure Z/7 with the rejoinder). The appointing authority of the petitioner was, therefore, the Chairman, Pakistan Broadcasting Corporation and the order of retirement was also passed by the Chairman of the Corporation. The petitioner had admittedly completed 25 years of service qualifying for pension before his transfer to the Corporation from the Radio Pakistan and in his previous service also, he could be retired on completion of 25 years' service and, as such, the mandate contained in section 12 (4) of the Act to the effect that the terms and conditions of service of the persons so transferred shall not be altered by the Corporation to their disadvantage, was not violated in any manner by including such person so transferred by promulgating the Retirement Regulations, 1980. The petitioner squarely falls within the definition of the term "employee" defined in Regulation 2 of the Retirement Regulations and, as such order of retirement could be passed in the case of the petitioner. In this context, the arguments that the two services cannot be clubed together‑for calculating 25 years of service qualifying for pension, and that it were the persons who were transferred and not the service, are not relevant. The person having been transferred can be dealt with under the Regulations as such persons so transferred Navel been specifically included in the definition of the term "employee."

12. The plea that the order of retirement passed was mala fide, hall also no merit. We have already held and observed in I. C. A. No. 192 of 1979 that the observations made by the learned Single Judge in the judgment delivered in Writ Petition No. 5223 of 1978 do not apply to the Chairman. D The additional factors relied upon for raising the plea of mala fide, are also not sufficient to establish that the power available under the Retirement Regulations, 1980, was exercised for reasons extraneous to the Regulations or that the order was result of any personal vendetta or bias.

13. For the reasons given above, we find no merit in this petition and the same is dismissed. The parties are, however, left to bear their own costs. M. Y. H Appeal dismissed.