P L D 1966 Supreme Court 132 (PLP)

HAMOODUR RAHMAN, J.-This appeal, by special leave, has been filed by the Government of West Pakistan, through its Chief Secretary, against the judgment and order of a Division Bench of the High Court of West Pakistan, setting aside an order passed by the appellant on the 26th March 1963, compulsorily retiring the respondent herein under rule 5.33(6) of the Civil Services Rules (Punjab), Volume II. The respondent, who was at the relevant time a District and Sessions Judge, was born on the 25th of December 1903, and joined the Provincial Civil Service (Judicial) on the 8th of April 1935. In the ordinary course he would have completed 25 years' qualifying service on the 8th of April 1960, and attained the age of 55 years on the 25th of December 1960. But the appellant Government by its Circular Letter No. S. O. XII-2-5/60, dated the 20th August 1960, intimated to all Secretaries and .attached departments that it had decided to raise the age of superannuation from 55 to 60 years, subject to the condition that the competent authority would scrutinize the cases of all Government servants serving under them at two stages; namely, when they complete 25 years qualifying service and when they attain the age of 55 years. However, since the appropriate amendment of the rules for providing a procedure for. such review had not yet been finalized, all Heads of administrative and attached departments were requested to continue in service all those who were due to retire on or after the 22nd of June 1960, if they wished to continue in service. This was an interim arrangement and all officers retained in service were to be told in clear terms that their retention was subject to the express condition that their con tinuance in service would depend upon the final orders passed in their respective cases after the scrutiny contemplated. In accordance with the above instructions the High Court by its letter No. 11488-Gaz./XXIX K-19, dated the 24th of August 1960, forwarded the character rolls of all gazetted officers to the Government. Thereafter, on the 11th of January 1961, the Government by its confidential letter No. S. O. 111-9-1/61, intimated to the High Court that the Committee set up by Government to scrutinize the records of District and Sessions Judge, who had completed 25 years of service or reached the age of 55 years on or before the 31st of December 1960, had done so and found the character rolls of 8 officers, including the respondent herein, "all right". The High Court however, by its D. O. No. 259/RHC, dated the 3rd of March 1961, while acknowledging the receipt `of the earlier letter of the 11th of January 1961, informed the Government that the Chief Justice and Judges of the High Court would like to again scrutinize the record of each judicial officer failing within the above categories and would then intimate their recommendations to Government. This scrutiny was carried out and on the 17th of November. 1961, the High Court intimated to Government that -they had again scrutinized the records of three of the District and Session Judges, including the respondent, in the light of the Government's instructions and recom mended that they may be allowed to continue in service beyond the age of 55 years. In the meantime, however, the appellant Government had again issued a circular No. S. O. XII-2-251/60, on the 4th of September 1961, to all Secretaries and heads of administrative and attached departments, including the Registrar of the High Court of West Pakistan, to the effect that pending the framing of rules the instructions contained in the said circular letter should be followed. The instructions contained in this letter, inter alia, prescribe that:- "In case of those Government servants who have already completed 25 years of service qualifying them for a pension and have also completed 55 years of age, the appointing authorities should review their record in case this had not been done at the appropriate stage and decide whether they should be retired under the West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960, and take further action accordingly." After the despatch of the High Court's letter of the 17th of November 1961, certain complaints were received against the respondent by the learned Chief Justice of the said High Court during his tour of Bahawalpur in that month. The Registrar of the High Court, presumably on the instructions of the Chief Justice, intimated to the Government on the 22nd of November, 1961, by his D. O. No. 14731/Gaz. that "the Chief Justice would like to reconsider the recommendations in the light of certain facts which have since come to his notice" and, as such, the letter of the 17th of November 1961, should be returned and no further action taken on the basis thereof. On the 29th of November 1961, again the High Court intimated to the Govern ment that the learned Judges of the High Court were considering the case of the respondent but their recommendations with regard to the other officers could be acted upon. It appears that an enquiry was thereafter initiated into the complaints against the respondent. In this enquiry it was found that the respondent had been guilty of both judicial misconduct and inefficiency justifying his immediate retirement. The Government was, accordingly, intimated on the 21st of June 1962, by D. O. No. 665/RHC that orders for his compulsory retirement may be issued and communicated to the High Court as soon as possible. While the case of the respondent was pending with the Government his file was again put up before the then Chief Justice of the High Court and on the basis of the opinion expressed by him the matter went before the Administration Committee of the High Court which came to the conclusion that as the stages for compulsory retirement had already expired, action could only be taken against the respondent under the West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960. A show-cause notice was, therefore, drafted and sent to the Government for its approval on the 22nd of March 1963, by D. O. No. 266/RHC. The appellant Government, however, instead of taking action in accordance with the recommendation of the Administration Committee on the 26th of March, 1963, passed the impugned order compulsorily retiring the respondent in the purported exercise of its powers under rule 5.33 (b) of the Civil Services Rules (Punjab), Volume II. The respondent thereupon challenged the validity of this order by a petition under Article 98 of the Constitution. His contentions before the High Court were that the aforesaid rule 5.33 (b) had stood automatically repealed as soon as Articles 6 (3) and 6 (9)(c) of the Laws (Continuance in Force) Order, 1958, came into operation and that even upon the principles enunciated by the appellant Government in its circular letter No. XII-2-225/60, dated the 4th of July 1961, compulsory retirement after a Government servant had passed both the stages at which scrutiny of his service record wag required to be made, could only be ordered after following the procedure laid down in the West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960. Furthermore, even such action under the Efficiency and Discipline Rules could only be taken in accordance with the Government's own circular letter No. S. O. XII-2-251/60, dated the 4th September 1961, if the records of the officer concerned had not already been scrutinized at the appropriate stages. In the case of the respondent this had been done and, therefore, he was entitled to continue in service till he attained the age of 60 years, for action even under the Efficiency and Discipline Rules of 1960 was no longer possible in his case. The High Court substantially accepted the contention that rule 5.33 (b) had been impliedly repealed and set aside the order of the 26th of March 1963, compulsorily retiring the respondent, but made it clear that this did not exonerate him of the charges of inefficiency and judicial misconduct detailed in the show-cause notice sent by the High Court to the Government for its approval on the 22nd of March 1963 for which further action could still be taken in accordance with law. Leave was granted in this case, as questions of interpretation of a complicated set of legal instruments were involved and as the case was one of first impression. Learned counsel appearing in support of this appeal has contended that no Government servant has any legal right to continue in service after attaining the age of superannuation, namely, 55 years. The continuance in service thereafter is at the discretion of Government. The satisfactory clearance of the scrutiny contemplated under the circularized instructions of the Government pending the framing of the West Pakistan Govern ment Servants (Further Usefulness in Public Service) Rules, 1963, did not amount to a continuance of the benefits of service. Notwithstanding such clearance a Government servant could still be retired under rule 5.33 (b). The High Court, according to the learned counsel, was also wrong in taking the view that this rule stood automatically repealed by Articles 6 (3) and 6 (9) (c) of the Laws (Continuance in Force) Order. It had, it is urged, failed to notice that Article 6(9) (d) of the said Order itself preserved the powers of the Governor with respect to all disciplinary matters, which were vested in him under any law or rule for the time being in force. This provision actually saved rule 5.33 (b) and not repealed it, as held by the High Court. It was also sought to be contended on behalf of the Government that the departmental instructions relied upon by the High Court were issued under a misconception of law and were, therefore, not binding upon the Government. Lastly it was urged that the High Court had failed to notice that at the time the impugned order was made the new Constitu tion had come into operation and under the provisions thereof the Laws (Continuance in Force) Order of 1958 itself stood repealed and as no rules had been framed under Article 6 (9) (d), the right to serve until the age of 60, if any, given by it had itself dis appeared. It was reintroduced only on the 19th of July 1963, under the West Pakistan (Further Usefulness in Public Service) Rules, but the respondent could not avail of the benefits of these rules, for, they did not apply to his case which was disposed of before these rules came into force. An examination of the relevant rules in the Civil Services Rules (Punjab), reveal that under rule 3.28 (Volume 1), which deals specifically with compulsory retirement, it has been provided that :- "(a) Except as otherwise provided in the other clauses of this rule the date of compulsory retirement of a Government servant, other than a ministerial servant, is the date or which he attains the age of 55 years. He may be retained in service after the date of compulsory retirement with the sanction of competent authority on public grounds which must be -recorded in writing, but he must not be retained after the age of 60 years except in very special circumstances." Then rules 5.33 and 5.36 of the Civil Services Rules (Punjab), Volume 11, which lay down the conditions for the grant of pension and the procedure to be followed in the case of a Government servant who has completed 25 years qualifying service, prescribe as follows :- "5.33. (a) A retiring pension is granted to a Government servant who is permitted to retire after completing qualifying superior service for twenty-five years or such less time as may for any special class of Government servant be prescribed. (b) A retiring pension is also granted to a Government servant who is required by Government to retire completing twenty-five years qualifying service or more." 5.36. Authorities competent to retire Government servants should carefully examine the record of every Government servant who has completed 25 years qualifying service with particular reference to his integrity or otherwise, and if it is desirable in the public interest that he should be retired action should be taken accordingly." The first note appended under rule 5.33 also indicates that the "Government retains an absolute right to retire any Govern ment servant after he has completed twenty-five years' qualifying service, without giving any reasons and no claim to special compensation on this account will be entertained." The combined effect of these rules, therefore, is that no one has a right to continue in service after the age of 55 years. But the question here is whether these rules were, as held by the High Court, impliedly repealed by the later provisions of the Laws (Continuance in Force) Order? The relevant provisions of clauses (3) and (9) of Article 6 of the Laws (Continuance in Force) Order, 1958, which are appli cable in the present case, are as follows:- "(3) Notwithstanding anything in clause (1) a person in the service of Pakistan may, if he is found inefficient or guilty of subversive activities, corruption or misconduct, under rules made in that behalf by the President or a Governor, be sus pended, compulsorily retired (whether he has reached the age of retirement or not), reduced in rank, removed or dismissed in accordance with those rules by an authority not subordinate to that by which he was appointed." "(9) Notwithstanding anything in clause (1) but subject as hereinafter provided- (a) the date of compulsory retirement of a person in the service of Pakistan shall be the date on which he attains his sixtieth birthday; (b) .. (c) notwithstanding anything in the two foregoing clauses the President in the case of a person who is. a member of 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 (not being a member of the Civil Service of Pakistan) serving in connection with the affairs of a Province may review the case of any person in the service of Pakistan, when he is about to complete twenty-five years of service quali fying him for pension, and when he is about to complete the fifty-fifth year of his age, in order to satisfy himself of that person's further usefulness to the public service and if he is not so satisfied may direct his retirement from service upon his completing the qualifying service, or year of age; (d) the President or the Governor (as the case may be) with the previous approval of the President may make rules for carrying into effect the provisions of sub-clause (c) but nothing in this clause shall affect arty disciplinary power vested in the President or a Governor under any law or rule for the time being in force." It will be noticed that Article 6 of the Laws (Continuance in Force) Order, 1958, provides for two kinds of "compulsory retirement", one as a punishment under clause (3) and the other as a condition upon which the new, right granted by clause (9) to continue in service till the sixtieth birthday can be enjoyed: The condition being, as laid down in sub-clause (c) of clause (9), that his case will be reviewed at two stages, i.e. when he is about to complete 25 years of service qualifying him for pension and when he is about to complete the fifty-fifth year of hi age. The West Pakistan Government Servants (Efficiency and. Discipline) Rules, 1960, were framed to prescribe the procedure enforcing the punishment of compulsory retirement under clause (3) but no rule's were framed in exercise of the power given under sub-clause (d) of clause (9) for carrying into effect the provisions of sub-clause-(c). It is for this purpose that the B Government issued general circulars from time to time for carrying out the review contemplated by sub-clause (c) as a decision had to be taken in the cases of Government servants at the stages mentioned in sub-clause (c). The case bf the respondent was dealt with in accordance with those general circulars and he was allowed to successfully cross both these hurdles. It is, therefore, not open to the Government now to contend that there was no review of the case of the respondent in accordance with-clause (c). It will also be observed that this supra-constitutional provi sion clearly stated that the date of compulsory retirement shall be the date on which a Government servant attains his sixtieth birthday. This was clearly contradictory to rule 3.28 of the Civil Services Rules (Punjab), Volume I. The two could not possibly stand together, Rule 3.28 had, therefore, to yield to the provi sions of this supra-constitutional instrument and as from the date from which clause (9) of Article 6 came into effect a Govern ment servant acquired the, right to continue in service until he attained his sixtieth birthday, subject to the power of review given by sub-clause (c) thereof. Rules 5.33 and 5.36 of the Civil Services Rules (Punjab), Volume II, have to be read along with rule 3.28 of the Civil Services Rules (Punjab), Volume I, and can not be considered to be still subsisting in the face of the provi sions of clause (9) of Article 6 of the Laws (Continuance in Force) Order, which clearly impliedly repealed rule 3.28. The various circulars issued by Government in consultation with its law department clearly took the same view though it is now said that this -was done under a misconception of law. It appears to us, however, that the view taken by the law depart ment was the correct view and the efficacy of rules 5.33 and 5.36 was rightly determined. These rules cannot, in our opinion, now be invoked or compulsory retirement ordered under Article 6 (9) of the Laws (Continuance in Force) Order. If any action has now to be taken it can only be done by following the procedure prescribed under the Efficiency and Discipline Rules, of 1960 framed fort forcing compulsory retirement as a punish ment under clause (3) of Article 6 or under the West Pakistan Government Servants (Further Usefulness in Public Service) Rules, 1963, which have been made in exercise of the powers conferred by Article 178 of the Constitution and came into force on the 19th of July 1963. The High Court was, therefore, right in holding the order impugned in this case to be without legal authority. The argument that the position had altered since the coming into force of the new Constitution is also untenable by reason of the provisions of Article 234 of the Constitution under which all persons in service immediately before the commencing day were to continue in service on the same terms and conditions as were applicable to them immediately before that day. Imme diately before the commencing day the provisions of the Laws (Continuance in Force) Order were applicable to the respondent and he had thereunder acquired a vested right to continue in service until he attained his sixtieth birthday, subject to the review contemplated by sub-clause (c) of Article 6 (9) thereof. We are also unable to accept the contention that since sub-clause (d) of clause (9)- of Article 6 of the Laws (Continuance in Force) Order, 1958, itself preserved the disciplinary powers of the President and the Governor under any law or rule for the time being prevailing, rule 3.28 of Volume I and rules 5.33 and 5.36 of Volume II of the Civil Services Rules (Punjab) were kept alive for the obvious reason that these rules do not relate to disciplinary, matters. 1n any event, since rules for enforcing compulsory retirement as a punishment had already been framed in 1960 by the West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960, even the earlier disciplinary rules were to that extent superseded. As already stated, the rules contemplated under sub-clause (d) of clause (9) could not be in the nature of disciplinary rules and this is what was sought to be clarified by expressly preserving the disciplinary powers. For these reasons we are in agreement with the conclusions of the High Court and accordingly dismiss this appeal with costs. A. H. Appeal dismissed.