P L D 1965 (W (PLP)

(a) Precedent‑

Supreme Court's remarks on point of law only of nature of "tentative opinion"‑High Court tinder the circumstances proceeded to examine question "independently". (b) Government servant‑

Civil Service Regulations, Art. 465‑A, Note 1‑Not applicable to C. S. P. Officers‑Fundamental Rules, r. 56(b) (i)‑Lairs (Continuance in Force) Order (I of 1958), Art. 6 (3) (9) Government Servants (Efficiency and Discipline) Rules, 1960 Government Servants (Further Usefulness in Public Service) Rules, 1962‑Government Servants (Further Usefulness in Public Service) Rules, 1963‑Right alleged to vest in Government under Note 1 to Art. 465‑A, Civil Service Regulations to retire an officer after completion of 25 years' service "without giving any reasons" stands repealed‑Constitution of Pakistan (1962), Arts. 225 (2), 250 read with Art. 178 (3). The petitioner joined the former Indian Civil Service (now the Civil Service of Pakistan) in the year 1938 and completed twenty‑five years of service on the 24th of October 1963. On the 18th of June 1961 he received the following notice dated six days earlier:‑ "Whereas you have completed 25 years qualifying service and it would be in the public interest to send you on retirement, (2) Now, therefore, it is‑'proposed to send you on retirement from public service under Note 1 below Article 465‑A of the Civil Service Regulations with effect from 1‑8‑1964. (3) You may show cause against the action proposed within ten days from the date of receipt of this notice". Held, that the operation of Note 1, to Article 465‑A of the Civil Service Regulations is confined to officers governed by the Article itself and cannot be pressed into service against those officers who do not fall within the orbit of the Article. The new Articles 349‑A and 465‑A introduced into the Regulations were based on Rules announced on the 15th of November 1919, in a Resolution published in Gazette of India of that date as No. 1085‑E.A. emanating from the Finance Department. Two outstanding facts which emerge from this Resolution are: first that the provision which was subsequently incorporated as Note 1 to Article 465‑A of the Civil Service Regulations was a substantive rule in the new Rules published vide the aforesaid Resolution, and second, that the Members of the Indian Civil Service were specifically excluded from the operation of those Rules. The combined effect of these two facts was to lead to the inescapable conclusion that Note 1 to Article 465‑A of the Regulations could not possibly be held to apply to officers of the Indian Civil Service and their successors, the officers of the Civil Service of Pakistan. Pakistan v. Liaguat All Khan P L D 1959 S C (Pak.) 37 considered. Taking into consideration the relevant provisions of the Laws (Continuance in Force) Order and those of the three sets of rules namely: Government Servants (Efficiency and Discipline) Rules, 1960; Government Servants (Further Usefulness in Public Service) Rules, 1962 and 1963, the right alleged to vest in Government under Note 1 to .Article 465‑A of the Regulations to retire any officer after he has completed twenty‑five years of service without giving any reasons stands repealed. Held further, that without expressing any opinion as to the general validity of Government Servants (Further Usefulness in Public Service) Rules, 1963 the contention of the petitioner that they could not legally be applied to him was correct. The position is that although, under Article 225 (2) of the present Constitution the Order stood repealed as from the commencing day, the same clause provided that the repeal should not affect any existing laws made thereunder. As the Government Servants (Further Usefulness) Rules of 1962 came into force on the 25th of May 1962, i.e., before the commencing day, and had statutory force, they are an existing law within the meaning of the above clause. Rule 4 (1) of the 1962 Rules laid down that a case of a person falling within its scope could be considered at only two stages, namely, before such person completed twenty‑five years of service qualifying him for pension and before he completed the fifty‑fifth year of his age, subject, of course, to the Second proviso to Article 6 (9) (c) of the Order. . The case of the petitioner could, therefore, only have been reviewed under the 1962 Rules on or before the 25th of November 1962. Moreover, even if no rules had been framed under the Order, clause (c) of Article 250 of the Constitution lays down that the repeal of a law shall not affect any right, obligation or liability acquired, accrued or incurred under the law. Finally, Article 178 (3) of the Constitution lays down that the rules made for the purposes of clause (2) of the Article (prescribing the terms and conditions of service of persons serving in a civil capacity in the Service of Pakistan) shall be so framed as to ensure that the terms and conditions of service of a person (in so far as those terms and conditions relate to remuneration or age fixed for superannuation) are not varied to his disadvantage. As the period of six, months prescribed by the 1962 Rules had been allowed to expire without any action being taken against the petitioner, he thereby acquired the right that his case should not again be reviewed under any rules relating merely to his further usefulness until he completed the fifty‑fifth year of his age. JUDGMENT ORTCHESON, J.

‑The facts leading up to this petition under Article 98 (2) of the Constitution briefly are that the petitioner, Mr. A. M. K. Leghari, C. S. P., joined the former Indian Civil .Service (now the Civil Service of Pakistan) in the year 1938 and completed twenty‑five years of service on the 24th of October 1963. In 1959‑60 the records of almost all senior Government officers were scrutinized, but, though a number of C. S. P. officers, both senior and junior to the petitioner, were screened out, no action was taken against him. On the 13th of August 1961, he was promoted to the post of Member, Board of Revenue.

2. On the 6th of March 1964, the petitioner had an interview with the Establishment Secretary, Government of Pakistan, at the request of the latter, and was informed that notice was being issued to him under the Government Servants (Further Usefulness in Public Service) Rules, ‑1963, on the ground that his record contained such entries as that he was "over‑zealous" and that some of his proposals were "unbalanced." On the 15th of March 1964, the Secretary advised the petitioner to persuade the Governor to write to the Central Government on his behalf. On the 30th of March the above advice was repeated, and the Secretary also claimed that Government had absolute power to retire the petitioner under Article 465‑A of the Civil Service Regulations (hereinafter referred to as "the Regulations").

3. On the 19th of March 1964, the petitioner received the notice dated the 14th of February 1964 (copy Annexure `A') referred to by the Establishment Secretary. It was issued in the latter's capacity of Chairman of the Review Committee for C. S. P. and P. S. P. officers, required him to show cause why he should not be retired under the provisions of the Government Servants (Further Usefulness in Public Service) Rules, 1963, and called upon him to appear before the Review Committee on Saturday, the 11th of April 1964.,The petitioner's preliminary objection to the vires of the rules was not accepted and under protest he appeared before the Committee on the 27th of April 19,64, (the date had apparently been changed). As he was only given what he describes as "a hurried and casual hearing," one of the Members of the Committee having to catch a plane, the petitioner submitted a written reply to the charges against him vide D. O. No. 6/sec. dated the 28th of April 1964, copy of which is Annexure `C' to the petition. 4., On the 12th of June the Establishment Secretary informed the petitioner by telephone that Government had been re‑assured of their absolute right to retire him and asked him if he had made up his mind to tender his resignation as an alternative to action against him. He refused to resign, and on the 18th of June 1964 he received the following notice dated six days earlier, copy of which is Annexure `E' to the petition :‑ "Whereas you have completed 25 years' qualifying service and it would be in the public interest to send you on retirement.

2. Now, therefore, it is proposed to send you on retirement from public service under Note I below Article 465‑A of the Civil Service Regulations with effect from 1‑8‑1964. (3) You may show cause against the action proposed within ten days from the date of receipt of this notice."

5. The following day (the 19th of June) the petitioner filed the present petition against the Government of Pakistan through the Secretary,. Establishment Division, Rawalpindi. The action taken by Government is challenged on the following grounds: (a) Members of the Civil Service of Pakistan are expressly excluded from the purview of Article 349‑A of the Regulations and the petitioner's terms and conditions of service could not be altered (the petitioner presumably means, altered to his disadvantage). (b) The Regulations do not deal with conditions of service but only with salary, leave, pension and travelling allowance, the rules relating to conditions of service being contained in the Fundamental Rules which have been continued in force subject to certain amendments. (c) So far as officers under the rule‑making control of the then ‑Secretary of State are concerned, compulsory retirement is dealt with in Chapter IX of the Fundamental Rules. (d) As Article 465‑A occurs in the Chapter of the Regulations headed "conditions of grant of pension", he said rule is, therefore, not the source of the "absolute right" claimed by Government even in respect of those officers` to whom ‑the rule applies. (e) The above Chapter is not applicable to C. S. P. officers, the relevant Chapter so far as they are concerned being XXV. (f) Even assuming, without conceding, that Article 465‑A applies to C. S. P. officers and that Note 1 thereunder confers the right claimed by Government to retire compulsorily a C. S. P. officer, the rule in question stands abrogated by :‑ (i)???????? Articles 6 (3) and 6 (9) (c) of the Laws (Continuance in Force) Order, 1958 ; (ii)??????? The Efficiency and Discipline Rules, 1960 ; and (iii)?????? The Further Usefulness Rules, 1962 and 1963. (g) In Ghulam Sarwar's case (Ghulam Sarwar v. Pakistan P L D 1962 S C 142) it was held that the claim to an absolute and unfettered power of discharge by notice, without assign?ment or ascertainment of reasons, is inconsistent with the provisions of section 240 (3) of the Government of India Act, 1935. (h) The action of the respondent is mala fide.

6. On the grounds mentioned above the petitioner seeks the following declarations :‑ (a) That the show‑cause notice dated the 12th of June 1964 (Annexure `E') is without lawful authority, void and inoperative. (b) That the proposed action of the respondent is mala fide. (c) Any other just declaration and directive.

7. In reply to the affidavit accompanying the petition, the respondent filed a counter‑affidavit through Mr. A. K. M. Siddiqullah, Section Officer. As this Court is concerned only (with the legality or otherwise of the action taken by the respondent he relevant paragraph of the counter‑affidavit is No. 14, in which the respondent states that Government have been advised that the action taken and proposed to be taken against the petitioner is legally correct.

8. Two main questions arise in this petition (i) Whether Note 1 under Article 465‑A of the Regulations applies to C. S. P. officers. (ii) If the answer to the first question is in the affirmative, how is the validity of the Note affected by the Laws (Continuance in Force) Order, 1958, the Efficiency and Discipline Rules, 1960, and the Government Servants (Further Usefulness in Public Service) Rules, 1962 and 1963 ? Before proceeding to discuss the first question, reference must be made to a ruling of the Supreme Court, Pakistan v. Liaquat Ali Khan (P L D 1959 S C (Pak.) 37). In that case Liaquat Ali Khan respondent, a permanent Superintendent in the Ministry of Foreign Affairs and Commonwealth Relations, attained the age of 55 years on the 30th of October 1956. He received a notice dated the 14th of January 1957 stating that he should retire from service from the 16th of July 1957. He applied to the High Court for a writ ordering the withdrawal of the said notice and directing that he should 6e allowed to continue in service till he attained his 60th year. His prayer was granted and Government filed an appeal in the Supreme Court. Although the case was decided on the language of Fundamental Rule 56(b) (i), the learned Judges, in the course of their judgment, made .the following observations : ‑ "That the present case was not governed by a similar rule of compulsory retirement after 25 years of service was the contention of the learned Advocate for the respondent before us: but under rules 465‑A and 465‑AA of the Civil Service Rules (pages 108 and 109 Ist Edn.) which apply to Government servants of Central Services are found notes to the effect that Government retains an absolute right to retire any officer after he has completed 25 years qualifying service without giving any reasons. The rules themselves no doubt do not apply to the respondent as he does not come in the lists of officers to which they relate; but the note, which is to general terms, appears to apply to all officers of the Government of Pakistan. However, as the State does not appear to have relied on it we think we should decide this case on the language of the rule in question, i.e. Fundamental Rule 56 (b)‑ (i):"

9. Although the above remarks are of course entitled t the utmost respect, they are only in the nature of a tentative opinion, and, I therefore feel myself free to examine the question independently.

10. Article 465‑A. runs: "465‑A. For officers mentioned in Article 349‑A the rule for the grant of retiring pension is as follows :‑ (1) An officer is entitled, on his resignation being accepted, to a retiring pension after completing qualifying service of not less than 25 years or in the case of officers of Central Services of the Forest, Geological Survey, Public Works, Railway and Telegraph Departments and any other covered by Article 635 who entered the service before the 6th day of December 1932, not less than twenty years. (3) A retiring pension is also granted to an officer who is required by Government to retire after completing twenty‑five years qualifying service or more. Note 1.‑

Government retains an absolute right to retire any officer after he has completed 25 years' qualifying service without giving any reasons, and no claim to special compensation on this account will be entertained. This right will not be exercised except when it is in the public interest to dispense with the further services of an officer. Note 2.‑

In the case of an officer who was in the service on or before the 15th November 1919 and who fulfils the conditions of clause (1) of this Article, acceptance of his resignation will in no circumstances be deferred beyond a period of six months from the date on which his application to feign was submitted." In order to decide whether Note 1 above is (or was) applicable to C. S. P. officers, it is necessary to place the Article in its proper context. It occurs in Part IV of the Regulations, which is headed: "Ordinary Pensions" and comprises Chapters XV to XXI. The first Article in the said Part 348‑A, lays down that all pensions are to be held to have been granted subject to the conditions contained in Chapter XXI (relating to the re‑employment of pensioners). It would further appear that the rules in Part IV as originally framed placed all officers other than those enumerated in Article 349 on the same footing in the matter of qualification for pension. Shortly after the passing of the Government of India Act, 1919, however, the Regulations were amended by the addition of a number of supplementary Articles. As will be seen later, those amendments were based on new rules announced on the 15th of November 1919. The first of the new Articles in Part 1V, No. 349‑A, gave more favour-able terms in the matter of qualification for pension to officers belonging to Services, or holding appointments, listed in the Article itself, it being further provided, vide clause (2), that other gazetted Services or appointments might be added to the list if their duties were so important that they could not be regarded as subordinate. The manner of effecting the improvement in conditions was to make other new Articles, namely, 404‑A, 465‑A, 474--A and 475‑A applicable, in place of the corresponding original Articles, to those officers who either (a) joined their appointments after the 29th of August 1919, or (b) were in service on the 29th of August 1919, but definitely elected in writing with the permission of Government to come under them.

11. Sometime after the year 1938, however, a new category of officers belonging to the Services, or holding the appointments, listed in Article 349‑A, was created, namely, those who (1) entered Government service on or after the 1st of October 1938, or (2) having entered such service before that date, did not hold a lien or a suspended lien on a permanent pension-able post before that date, or (3) were transferred on or after the 1st of October 1938, permanently from service under a Provincial Government or a Local Fund administered by Government to service under the Governor‑General and did not hold a lien or a suspended lien on a permanent pension-able post under the Provincial Government or the Local Fund before that date. The position of such officers in respect of pension was more favour-able than that of officers to whom Article 349‑A did not apply, but less favour-able than that of those governed by the Article in question.

12. To illustrate the above statement, reference may be made to Articles 465, 465‑A and 465‑AA of the Regulations. The officers governed by Article 465 were only permitted to retire after completing qualifying Superior Service for thirty years unless a shorter time was prescribed. In the case of officers governed by Article 465‑AA, although the period of qualifying service continued to be thirty years, they were granted the concession that it was not necessary that the whole of the qualifying service should be Superior. The officers falling within the scope of Article 465‑A, on the other hand, became entitled to a retiring pension after completing qualifying service of not less than twenty‑five years in the case‑of same Services or twenty years in the case of others, as compared with the thirty years required of officers falling within the orbit of the other two Articles.

13. It is important to note that officers belonging to the then Indian Civil Service (now the Civil Service of Pakistan) were specifically excluded from the operation of Article 349‑A. On the basis of that exclusion, the learned Attorney‑General attempted to argue that the officers in question must be governed by Article 349‑AA. This argument is untenable. I have pointed out that both Articles 349‑A and 349‑AA refer to officers belonging to the same Services or holding the same appointments, the only difference being that they were placed in different categories according to the date of their appointment. Officers in the Civil Service of Pakistan, on the other band, had their own special terms of pension, and were unaffected by either Article 349‑A or Article 349‑AA.

14. To repel the argument of the learned Attorney‑General and the learned Advocate‑General that Note I below Article 465‑A applies to all officers irrespective of their service (thus including C. S. P. officers) Mr. Brohi pointed out that the same Note also occurred under Article 465‑AA, and argued with considerable justification that if Note 1 to Article 465‑A was ‑applicable to officers of all Services, there was no need to repeat it in Article 465‑AA. This argument is reinforced by a consideration to which learned counsel did not draw our attention. If the Note in dispute is of universal application, it must ex hypothesis apply to those officers who are governed by Article 465 of the Regulations. The gist of the Article has been given above, but it may, for convenience, be repeated here verbatim "A retiring pension is granted to an officer who is permitted to retire after completing qualifying Superior Service for thirty years or such less time as_ may for any special class of officers be prescribed." It will be noted that the above Article, unlike Articles 465‑A and 465‑AA, does not make an officer who is required by Government to retire after completing twenty‑five years' qualifying, service eligible for a retiring pension. If no less time has in fact been prescribed for any special class of officers as permitted by Article 465, the result of making the Note applicable to an officer governed by that Article would be that, although he does not qualify for a pension until completing thirty years of service, Government can compulsorily retire him after twenty‑five years' service, thus depriving him of his pension and denying him any claim to special compensation. The injustice of such a procedure is so glaring that the rule‑making authority cannot readily be credited with any such intention.

15. Chapter XXV of the Regulations, by which C. S. P. officers are. governed, contains the following provisions: "

561. An officer who has been twenty‑five years in the service, counting from the date of his covenant or from the date of the dispatch of the late Secretary of State announcing his appointment (whichever may have been earlier) and who has rendered twenty‑one years active service; is entitled, on his resignation of the service being accepted, to an annuity. It is to my mind highly significant that Article 561, unlike Articles 465‑A and 465‑AA, is not accompanied by the disputed Note, and I find it extremely difficult to accept that S. P. officers, whose rules of pension are specifically excluded from Part IV of the Regulations, should be governed by a note appended to a rule which has been expressly made inapplicable to them. It may be added that the absence of the disputed Note from Article 561 does not mean that a C. S. P. officer, however inefficient or otherwise undesirable, must be allowed to continue till the age of superannuation. Article 564‑C provides for the grant of an annuity to an officer of the Civil Service of Pakistan who is proved to be unfit for further advancement and is removed from service.

16. In clause (c) of paragraph 14 of the petition it is stated: "In the Fundamental Rules made by the Secretary of State for members of services under his rule‑making control. Chapter IX specifically provides for compulsory retirement. In this Chapter there is no provision for the absolute right claimed by the respondent." Mr. Brohi also relied upon this argument, but appears to have failed to notice that the expression "compulsory retirement" occurring in rule 56 of the Fundamental Rules has an entirely different meaning from that which it bears in the disputed Note. In the Note it refers to retirement before the date of superannua?tion, whereas in Fundamental Rule 56 it means the date of superannuation itself. This is clear from clause 1 (a) of the said rule, which runs: "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 on which he attains the age of 55 years. He may be retained in service after the date of compulsory retirement with the sanction of the Local (now the Provincial) Government 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." Again, clause (c) lays down that a member of the former Indian Civil Service must retire after thirty‑five years service. The petitioner's argument on this point should, therefore, be that Fundamental Rule 56 contains no provision for forced retirement before attaining the age of superannuation.

17. Another difficulty in the way of the respondent is that the right claimed by Government to retire any officer after he has completed twenty‑five years qualifying service is much too important and far reaching to be created by a mere note. This was conceded by the learned Attorney‑General, who very frankly stated that the language of the Note is such as to give it the appearance of a reminder that the right in question already existed. Neither he nor the learned Advocate‑General was, however, able to establish the origin of the right. The learned Advocate‑General suggested that it derives from the principle that Members of all Services, including Members of the then Indian Civil Service, held their appointments at the pleasure of the Crown. This is correct, but both he and the learned Attorney ?General appears to have failed to notice that the above principle has been embodied in a statutory provision which, to my mind, sets the whole controversy at rest.

18. It has already been pointed out in paragraph 10 above that the new Articles 349‑A and 465‑A introduced into the Regulations were based on Rules announced on the 15th of November 1919. That, statement must now be amplified (A) supplement to the Gazette of India bearing the above date published a resolution, No. 1085‑E. A., emanating from the Finance Department. It is headed: "Resolution sanctioning the recommendation of the Public Services Commission in regard to the pensions of gazetted officers of certain Services." The relevant provisions of the Resolution run: "The Government of India have been in correspondence with His Majesty's Secretary of State for India regarding the recommendations made in paragraphs 87 to 92 of the Report of the Royal Commission on the Public Services in India, for the improvement of the existing rules relating to superannuation and retiring pensions of gazetted officers in certain of the civil services in India, and they are now pleased, with his approval, to announce the following new rules, which shall relate to such pensions of the officers (other than military officers or members of the Indian Civil Service) and services specified below :‑ .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? (1) These rules only apply to officers joining the above services or appointments after the 29th August 1919, and to those existing incumbents who elect in writing to come under the provisions of these rules in their entirety, and to forego finally all privileges in relation to pension for which they were eligible under the former rules and which are not definitely continued in the new rules. .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? II: Ordinary Pensions. .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? (4) Government will have an absolute right to retire any officer after he has completed twenty‑five years' service, without necessity to give reasons and without any claim for compensation in addition to pension, and in that event the pension admissible to the officer will ordinarily be regulated on a scale not exceeding that prescribed in clause (1) or clause (1) above, in the case of optional retirements of officers of the service to which he belongs. .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? (3) The necessary additions and corrections to the Civil Service Regulations will be issued in due course."

19. The outstanding facts which emerge from the above are, first, that the provision which was subsequently incorporated as Note 1 to Article 465‑A of the Regulations was a substantive rule in the new Rules published vide the aforesaid Resolution, and second, that the Members of the Indian Civil Service were specifically excluded from the operation of those Rules. The combined effect of these two facts is to lead to the inescapable conclusion that Note 1 to Article 465‑A of the Regulations cannot possibly be held to apply to officers of the Indian Civil Service and their successors, the officers of the Civil Service of Pakistan.

20. For the above reasons I have no hesitation in holding that the operation of Note 1 to Article 465‑A of the Regulations, is confined to officers governed by the Article itself and cannot be pressed into service against those officers who do not fall within the orbit of the Article. I would, therefore, answer the first question accordingly.

21. Coming to the second question, namely, the effect on the disputed Note of the Laws (Continuance in Force) Order, 1958, (hereinafter referred to as the Order) and the Rules mentioned in paragraph 8 above, the argument of learned counsel for the petitioner that the. Note, even if it be held applicable to C. S. P. officers, is no longer valid, must prevail.

22. The relevant provisions of Article 6 of the Order run: "6 (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 suspended, 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." "6 (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) nothing in clause (a) shall affect‑ (i)???????? any term or condition of service applicable to any such person immediately before the twenty‑second day of June 1960 under which he may retire before his sixtieth birthday ; or (ii)??????? any term or condition of service applicable immediately before the twenty‑second day of June 1960 to a member of the former Indian Civil Service, or to a person who immediately before that day was a Chief Engineer of the Public Works or Railways Department, under which he might be permitted to serve for a limited period beyond the time for compulsory retirement otherwise applicable to him ; (c) Notwithstanding anything contained in sub‑clauses (a) and (b), the President, in the case of a person who is a member of 'an All‑Pakistan Service or a person serving in connection with the affairs of the Federation, and the Governor, in the case of a person serving in connection with the affairs of a Province, may, in order to satisfy himself of the further usefulness of any such person in public service, review the case of that person at two stages only, namely, when he is about to complete twenty‑five years of service qualifying him for pension and when he is about to complete the fifty‑fifth year of his age, and if the President or the Governor, as the case may be, is not so satisfied, he may direct that on or after the completion of twenty‑five years of service qualifying such person for pension, or on or after the completion of the fifty fifth year of his age such person be retired: Provided that if a person retired under this sub‑clause is fit for a lower post he may be re‑employed in that post; "Provided further that the case of a person, who has completed before, or completes op, or will complete within six months of the commencement of the rules made tinder sub‑clause (d) twenty‑five years of service qualifying him for pension of the fifty‑fifth year of his age, may be reviewed within six months from the commencement of said rules for the purpose of this, clause in the manner provided in such rules. Explanation I‑The second proviso shall not apply to a person whose case has been reviewed before the commencement of such rules for the purpose of retirement on the completion of twenty‑five years of service under any rule then in force, but shall apply to a person whose case has not been reviewed for the purpose of retirement on the attainment of 55 years of age. Explanation II.‑‑(Irrelevant for the purposes of the present case). ' (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 any disciplinary power vested in the President or a Governor under any law or rule for the time being in force; (e) the President or the Governor, as the case may be, may, except in respect of persons in relation to whom he is the appointing authority, delegate to a body consisting of more than one officer his powers under sub‑clause (c)."

23. In exercise of the powers conferred by the Order (which has constitutional force) two sets of rules were promulgated. The first is the Government Servants (Efficiency and Discipline) Rules, 1960, which were framed under the powers conferred by Article 5 (3) of the order. Rule 3 of the aforementioned Rules empowers the "authority" as defined in rule 2 (1), to impose on a Government servant falling within the scope of the rule the penalties prescribed in rule 4: Those penalties are divided into two categories, minor and major, and one of the major ‑penalties is compulsory retirement (rule 4 (1) (e). Rule 6 (5) lays down an elaborate procedure to be followed before the penalty in question can be imposed, in complete contrast to the so‑called "right" of Government to retire a Government servant compulsorily without giving reasons.

24. The second set of rules above referred to is the Government Servants (Further Usefulness in Public Service) Rules, 1962, framed in exercise of the powers conferred by sub‑clause (d) of clause (9) of Article 6 of the Order. Rule 4 (1) empowers the competent authority, as defined in rule 2 (c), to consider or cause to be considered the further usefulness in public service of a person to whom the rules apply at the same two stages only, namely, before such person completes twenty‑five years of service qualifying him for pension and before he completes the fifty‑fifth year of his age. The second proviso to the above sub‑rule lays down that the cases of person specified in the second proviso to sub‑clause (c) of clause (9) of Article 6 of the Order may be considered within six months from the commencement of the rules, while sub‑rule (2) prescribes that action under sub‑rule (1) shall be taken early enough to enable the order made under sub‑rule (3) or rule 6 or rule 7 to be communicated to the person concerned as far as possible at least six months before such person completes the qualifying service or year of age, and in the case of a person referred to in the second proviso to sub‑rule (1), within six months from the commencement of the rules. It may be mentioned that the second proviso to sub‑clause (c) of clause (9) of Article 6 of the Order lays down that the case of a person who has completed before, or completes on, or will complete within six months of the commencement of the rules made under sub‑clause (d) of Article 6 (9) of the Order twenty‑five years of service qualifying him for pension or the fifty‑fifth year of his age may be reviewed within six months from the commencement of the‑ said rules.

25. On the 8th of June 1962, (the commencing day) the present Constitution came into force in its entirety. On the 4th of December 1963, purporting to act in exercise of the powers conferred by paragraph (a) of clause (2) of Article 178, the President promulgated the rules known as the Government Servants (Further Usefulness in Public Service) Rules, 1963, Under rule 1 (3) the Rules came into force at once and were to be deemed to have taken effect on the commencing day. Rule 3 (1) of the above Rules again empowers the President or "the delegate", as defined in rule 2 (c), to review the case of a Government servant at the two stages laid down in the Order, namely, when he is about to complete twenty‑five years of service qualifying him for pension and when he is about to complete the fifty‑fifth ear of his age. The second proviso to rule 3 (1) runs: "Provided further that the case of a person who has complete before, or completes on, or will complete within six months of, the date of publication of these Rules in the official Gazette, twenty‑five years of service qualifying him for pension or entitling him to other retirement benefits, or the fifty‑fifth year of lus age, maybe reviewed within six months from the date of such publication for the purpose of this rule in he manner provided in these Rules. Explanation.‑-The second proviso shall not apply to a person whose case has been reviewed .before the date of publication of these rules in the official Gazette for the purpose of retirement on the completion of twenty‑five years of service under any rule then in force, but shall apply to a person whose case has not been reviewed for the purpose of retirement on the attainment of fifty‑five years of age." Sub‑rule (3) lays down that if the President or the delegate is of the opinion that the person whose case he has considered or caused to be considered under sub‑rule (1) should be proceeded against under that sub‑rule, he shall refer the case to the appropriate Committee to examine the further usefulness in public service of such person and to make recommendation with respect thereto. Under rule 4 the Committee is to consist of not less than three members. Rule 5 directs the Committee to examine the case giving the person concerned an opportunity of being heard and to make its recommendation in writing as to whether any action is necessary under rule

3. The rule further provides that if such action is recommended, the Committee shall give reasons therefore.

26. Leaving aside for the moment the question whether the 1963 Rules are applicable to the petitioner, it is clear that, taking into consideration the relevant provisions of the Order and those of the three sets of rules mentioned above, the right alleged to vest in Government under Note 1 to Article 465‑A of the Regulations to retire any officer after he has completed twenty‑five years of service without giving any reasons stands repealed. ?In this connection it is interesting to refer to West Pakistan Government letter No. S. O. XII‑2‑251/60 dated the 4th of July 1961, cited in Writ Petition No. 958 of 1963, decided on the 1st of April 1964. Paragraph 2 of that letter runs: "The matter has been examined further in consultation with the Law Department and it has been held that the following rules as far as they deal with `compulsory retirement' contained in the C. S. R. (Civil Service Rules) of the various integrating areas stand automatically repealed by the provisions of Article 6 (3) read with West Pakistan Government Servants (Efficiency and Discipline) Rules, and Article 6 (9) (c) of the Laws (Continuance in Force) Order, 1958: (a) Rule 5.33 of C. S. R. (Pb.) Volume II. . (b) Regulation No. 465‑A of Central C. S. Regulations. (c) Regulation 208 of Bahawalpur C. S. Rules. (d) Regulation 196 of Khairpur State C. S. Regulations: (e) Rule 165‑A of Sind C. S. R., Volume I. The provisions of law under which a Government servant can be compulsorily retired are: (i) Article 6 (3) of the Laws (Continuance in Force) Order, 1958, read with the West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960. (ii) Article. 6 (9) (c) of the Laws (Continuance in Force) Order, 1958." It would appear that the Central Government did not agree with the above assessment of the legal position, which is, however, undoubtedly correct.

27. Learned counsel for the petitioner has further contested the vires of the Government Servants (Further Usefulness) Rules, 1963. Without expressing any opinion as to their general validity. I am clearly of the vice that the contention of the petitioner that they cannot legally be applied to him is correct. F The position is that although, under Article 225 (2) of the present Constitution the Order stood repealed as from the commencing day, the same clause provided that the repeal should not affect any existing laws made thereunder. As the Government Servants (Further Usefulness) Rules of 1962, came into force on the 25th of May 1962, i.e., before the commencing day, and had statutory force, they are an existing law within the meaning of the above clause. It has already been pointed out that rule 4 (1) of the 1962 Rules laid down that a case of a person falling within its scope could be considered at only two stages, namely, before such person completed twenty‑five years of service qualifying him for pension and before he completed the fifty‑fifth year of his age, subject, of course, to the second proviso to Article 6 (9) (c) o the Order. The case of the petitioner, could, therefore, only have been reviewed under the 1962 Rules on or before the 25th o November 1962. Moreover, even if no rules had been framed G under the Order, clause (c) of Article 250 of the Constitution lay down that the repeal of a law shall not affect any right, obligation or liability acquired, or accrued or incurred under the law. Finally, Article 178 (3) of the Constitution lays down that the rules made for the purposes of clause (2) of the Article (prescribing the terms and conditions of service of persons serving in a civil capacity in the service of Pakistan) shall be so framed as to ensure that the terms and conditions of service of a person (in so far as those terms and conditions relate to remuneration of age fixed for superannuation) are not varied to his disadvantage. As the period of six months prescribed by the 1962 Rules had been allowed to expire without any action being taken against the petitioner, he thereby acquired the right that his case should not again be reviewed under any rules relating merely to his further usefulness until he completed the fifty‑fifth year of his age. It may be for this reason that the respondent‑Government abandoned its original intention of proceeding against the petitioner under the 1963 Further Usefulness Rules and made an unavailing attempt to fall back on the disputed Note. It may incidentally be remarked that the notice served on the petitioner may be described as calling upon him to do the impossible. The first paragraph makes the vague general statement that it would be in the public interest to send him on retirement, while the last paragraph purports to give him the opportunity of showing cause against the action proposed to be taken: Unless he was made aware of the reasons for which it would be in the public interest to retire him. it is difficult to see how the petitioner could show effective cause.

28. For the reasons given above I would accept this petition and grant the petitioner a declaration that the notice dated the 12th of June 1964 proposing to retire him from public service is without lawful authority and of no legal effect, and that any action pursuant thereto taken by the respondent will be wholly illegal. In the circumstances, however, I would pass no order as to costs. ABDUL AZIZ KHAN, C. J.‑

I agree. S. A. MAHMOOD, J.‑

I agree. A. H. A. H. Petition accepted.