2003 PLP 1804 (SCMR)

NAZIM HUSSAIN SIDDIQUI, J.

This judgment will dispose of Civil Petitions Nos. 1339, 1340 and 1341 of 2002, in which common questions of facts and law are involved. In these matters, the judgment dated 27-4-2002 of learned Federal Service Tribunal, Islamabad, has been impugned, whereby Appeals Nos.197, 212, 213(R)/CS/2001, preferred by petitioners, Muhammad Qadeer, Khan Bahadur and Mahboob Ali Nadeem respectively, were dismissed.

2. The petitioners were the employees of respondent No.2 and served in the various factories under the Pakistan Ordnance Factories Board (POFs Board). Muhammad Qadeer and Mahboob Ali Nadeem were retired from service on 3-1-2001, while Khan Bahadur on 12-2-2001, with all pensionary and other retirement benefits under section 13 of Civil Servants Act, 1973, hereinafter referred to as "the Act", as amended by the Civil Servants (Amendment) Ordinance, 2000. They filed department appeals before competent authority, which were dismissed. They then preferred appeals before learned Tribunal, under Section 4 of Federal Service Tribunals Act, 1973, which were dismissed by the common judgment, which has been impugned in these petitions.

3. Section 13 of the Act, as amended reads as under:-- "

13. Retirement from service:

A civil servant shall retire from service

(i) on such date after he has completed twenty five years of service qualifying for pension or other retirement benefits as the competent authority may, in public interest, direct; or (ii) where no direction is given under clause (i), on the completion of the sixtieth year of his age.

2. No disrection under clause (i) of subsection (1) shall be made until the civil servant has been informed in writing of the grounds on which it is proposed to make the direction, and has been given a reasonable opportunity of showing cause against the said direction."

4. Petitioner, Muhammad Qadeer, during tenure of his service out of 31 ACRs on 26 times, he was found "Average".

5. Petitioner, Bahadur Khan had earned 25 times "Average" out of 33 ACRs. In seven ACRs, he was communicated "Advisory Remarks". During his service period, he availed 366 days' leave on different occasions without approval from the competent authority.

6. Petitioner, Mahboob Ali earned 27 times "Average" out of 33 ACRs. His 7 ACRs contained "Advisory Remarks" and 2 "Adverse Remarks".

7. It appears that subsection (2) of section 13 was complied with by A the respondents before the petitioners were retired. Perusal of above section 13 reveals that a civil servant shall retire from service on completion of 25 years of service qualifying for pension or other benefits, as the competent authority may, in public interest, direct and where no direction is given under clause (i) in that eventuality on completion of 60 years. Subsection (2) lays down that no direction under clause (i) of subsection (1) shall be made until the civil servant has been informed in writing of the grounds on which it is proposed to make the direction, and has been given a reasonable opportunity of showing cause against the said direction. Under section 13, the Government has clear option to retain or not to retain a civil servant in service after 25 B years service. Of course, it is subject to the subsection (2) of said section, but the fact remains that under section 13, the Government now is competent to curtail the service period to above extent, which otherwise would have gone to 60 years of age. Once it is established that the Government has correctly exercised its powers under section 13, the Tribunal would have no power to grant any extension in service for the simple reason that the powers so exercised by the Government conclusively remains within the domain of terms and conditions of service.

8. It is significant to note that Shariat Appellate Bench of this Court comprising of five Hon'ble Judges in the case reported as Pakistan and others v. Public at Large and others (PLD 1987 SC 304), while hearing appeals from the judgment dated 26-9-1983 and 27-3-1984 of Federal Shariat Court, Islamabad in Ss. No.263/A/83, Shariat Petitions Nos.2/L, 1/I, 3/L of 1983 and 12 Nos.LS. Ms. of 1983 and 1984 by majority held as follows:-- "The provisions of the statures and statutory rules - specified below, under challenge, :u these appeals, are found to be repugnant to the Injunctions of Islam; insofar as they do not provide for due notice of the action proposed to be taken and opportunity of showing cause against such action: (i) Section 13, clauses (i) and (ii) of Civil Servants Act, 1973 (ii) Section 12, clauses (i) and (ii) of Punjab Civil Servants Act, 1973. (iii) Section 13, clause (i) of Sindh Civil Servants Act, 1973 (iv) Section 13, clauses (i) and (ii) of Baluchistan Civil Servants Act, 1974. (v) Section 1-3, clause (i) of the N.-W.F.P. Civil Servants Act, 1973. (vi) Sub-rule (3) of rule 44 of Pakistan Cantonment Servants Rules, 1954 framed under the Cantonments Act, 1924. The competent authorities are hereby allowed a period of six months from today (11-3-1987) to amend the law so as to bring into conformity with the Injunctions of Islam, failing which they shall cease to have legal effect. "

9. At the time when aforesaid judgment was delivered then section 13 was as follows:-- (i) in the case of a person holding the post of Additional Secretary to the Federal Government or any equivalent or higher post, on such date as the competent authority may, in the public interest, direct; (ii) in any other case, on such date after he has completed twenty five years of service qualifying for pension or other retirement benefits as the competent authority may, in the public interest, direct; or (iii) where no direction is given under clause (i) or as the case may be, under clause (ii), on the completion of the sixtieth years of his age."

10. It is thus clear that present section 13 of the Act is in line of the principles laid down in aforesaid reported case in the way that subsection (2) now clearly lays down that a civil servant cannot, be retired, unless he has been informed in writing of the grounds on which C action is proposed against him and reasonable opportunity of showing cause against said direction is given to him. The validity and proprietary of section 13, as it now stands, are not disputed. It is in the interest of civil servant and the Government, as well.

11. It is contended on behalf of the petitioners that their retirement basically was a punitive measure and such orders are not sustainable in law. He further submitted that the petitioner were compulsorily retired, as is evident from the letters dated 3-1-2001 and 12-2-2001.

12. Of course in the title of these letters, initially words were "compulsory retirement from service", but in their contents, it was clearly stated that the competent authority approved the retirement from service on completion of 25 years service qualifying for pension. Further, the words of "Compulsory Retirement" were substituted by the words "Retirement from Service and not Compulsory Retirement". Such letter is available on record and it is dated 20-3-2001.

13. There is a basic difference in terms of compulsory retirement within the meaning of section 4(b)(ii) of Government Service Rules, 1973 and section 13 of the Act Under the Rules of 1973. Compulsory Retirement is a punishment, while under section 13, it is not a punishment and a civil servant under this section gets all service benefits without any stigma.

14. The object of section 13 is to improve the efficiency and discipline in the civil service and for that purpose the civil servants, who have completed 25 years' service, yet, have not done anything good for the department, are retired from service. Their retirement, in fact, is in public interest. The civil servants, who for 25 years served with a II minimum level of efficiency, cannot legitimately be expected to do better if permitted to continue thereafter. The experience has shown that after completion of 25 years of service, if not all, at least sufficient numbers of them, do not take pain in performing their duties and only want to stay with that sort of performance, which may be in their interest, but certainly not in the interest of public. Those, who perform their duties diligently, are even re-employed after they attain the age of superannuation. An efficient civil servant is always an asset and is well looked after, whereas those, who do not possess, such qualities are retired and that too without causing any harm to them. Section 13 is linked with the principles of good governance, which is basic requirement now a day.

15. Learned counsel also argued the order retiring the petitioners is mala fide, as amendment in section 13 was introduced on 1-6-2000, while these petitioners were retired on 3-1-2001 and 12-2-2001. According to him, such order, if any, could be passed with in a few months after said amendment. After completion of 25 years service and before reaching the age of superannuation, at the most there may be a period of four to six years. A civil servant is retired under this section only when he ceases to be efficient or on the basis of past performance, I which was unsatisfactory or of near about said category. The deficiency in performance can occur any time, therefore, each case shall be decided on its own merits. No hard and fast rules can be laid down, as to when a Government servant shall be retired after completion of 25 years service. There may be cases that till the age of sixty years, the civil servants may be fit to do their duties at the highest level of efficiency. On the other hand, there may be cases of those, who after 25 years of service become a parasite for their department. It is significant to note that the legislature I in its wisdom has not fixed any period for retirement but has left it to the discretion of the competent -authority, saying that on such date, as the competent authority may direct in public interest, a civil servant shall retire. Fixation of any period would not be in accordance with the spirit of Section 13 of the Act. No interference is warranted:

16. In consequence, leave to appeal is refused and the petitions are dismissed. M.B.A./M-875/S Petitions dismissed.