1992 PLP 32 (SCMR)

SHAFIUR RAHMAN, J: ‑‑Leave to appeal was granted under Article 212(3) of the Constitution as reported in Hussain Ali Chandio v. The Secretary, Ministry of Communication Government of Pakistan and 8 others 1985 SCMR 1730 to examine whether there was any material in the order to show that the removal of the appellant had taken place in public interest as required by the Corporation Employees (Special Powers) Ordinance, 1978 (Ordinance NOXIII of 1978 hereinafter referred to as the Ordinance).

2. The appellant was appointed as Deputy Manager (Personnel) by the Board of Trustees, Karachi Port Trust, on 28‑5‑1977. His appointment was approved by the Federal Government on 10‑6‑1977. He was confirmed at the expiry of his period of probation and allowed increment of salary. On the promulgation of the Ordinance, he was removed from service by an order dated 23‑1‑1975 w.e.f. 31‑1‑1979. He challenged this removal by a Constitution Petition (No.1100 of 1979) in the High Court of Sindh which was withdrawn by him in order to seek further relief from the Federal Government. Not obtaining the same, he approached the Service Tribunal which too dismissed his appeal on the ground that it was hopelessly time‑barred, that .he was not qualified for the post for which he had been appointed and that his appointment was in violation of the rules and "doubtlessly a case of political appointment".

3. In challenging the action of the competent authority and the dismissal of the appeal by the Federal Service Tribunal, the learned counsel for the appellant (Mr. S.M. Abbas) contended that the requirement of removal in public interest was a justiciable issue and there was nothing on the record to suggest that removal of the appellant was in public interest. Besides, according to him, the appellant had rendered commendable service after appointment and had earned confirmation and increment. Even if he suffered from disqualification at the time of appointment, such performance entitled him to continue in service.

4. The provisions of the Ordinance have been the subject‑matter of interpretation by this Court in the following cases:‑‑ (i) Printing Corporation of Pakistan v. Province of Sindh and others PLD 1990 SC 452; (ii) Mahboob Khan v. Agricultural Development Bank of Pakistan 1989 SCMR 41; (iii) Mohd Khan v. Islamic Republic of Pakistan and others 1989 SCMR 345; (iv) Kanwar Sarfraz Umar Khan v. Federal Service Tribunal and others 1986 SCMR 1092; (v) Mian Muhammad Qureshi v. The Secretary to the Government of Pakistan and others PLD 1985 SC 369 and (vi) Hussain Ali Chandio i.e. the present petitioner case when leave was granted 1985 SCMR 1730.

5. The specific question whether retirement or removal of a public servant in public interest is justifiable issue or not, was examined in depth by this Court in the case of Lt.‑Col. Farzand Ali and others v. Province of West Pakistan through the Secretary, Department of Agriculture, Government of West Pakistan, Lahore PLD 1970 SC 98 and the finding recorded was as hereunder: ‑‑ "It appears to me, therefore, that in the absence of any words in the statute limiting the discretion of the Government this must be so, for, it is difficult to lay down any yardstick by which `public interest' can be measured in this connection. There may well be circumstances apart from inefficiency or dishonesty which may be relevant for considering the suitability of an officer for being continued in public service. An overpunctilious or over fastidious person may well in certain circumstances be just as unsuitable as a lax or careless officer having regard to the nature of his employment. But this is a matter which the employer alone can determine, and therefore, it must of necessity be left to the subjective satisfaction of the employing authorities." 6.It is correct that the case of Farzand Ali PLO 1970 SC 98 was one of exercise of Constitutional jurisdiction while in the case before us it is the appellate jurisdiction of the Federal Service Tribunal which is in issue. The jurisdiction of the Tribunal, as held by this Court in M. Yamin Qureshi v. Islamic Republic of Pakistan and another PLD 1980 SC 22, is wider than the jurisdiction exercised on a Constitution petition and, on the view taken in the case of M. Yamin Qureshi, it may be possible to hold that the issue is justiciable.

7. The relevant provision of the Ordinance i.e. section 3, is reproduced as hereunder:‑‑ "

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 corporation 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."

8. The specification of the period in the provision of law attracting the jurisdiction of the competent authority itself suggests that the enquiry was restricted to the appointments made during the period that the political Government was in power and to examine whether such appointments had been made in accordance with law. The facts which appear from the record are not disputed are the following:‑‑ (1) The appointment of the appellant had been made by the Minister who was not the competent authority, though it was approved subsequently by the competent authority namely, the Karachi Port Trust and the Federal Government. "' (2) The appointment had been made without advertising the vacancy without inviting the applications and without competition from any quarters whatsoever. (3) The qualification of live years experience required for the post was waived by the Minister who had no authority as Minister to do so.

9. In the background of these facts, the Tribunal was justified in recording the following finding:‑‑ "We find that the other requirements of the KPT Rules, which were violated, were that the post was not advertised and no selection procedure was gone through. Obviously, therefore, the appellant had been appointed in violation of the rules and was, doubtlessly, a case of political appointment. We are satisfied that the Review Board acted in accordance with the mandate entrusted to them and legally and justly removed the appellant after due application of mind and in accordance with section 3 of Ordinance XIII of 1978."

10. In this background, we cannot but uphold the conclusion of law arrived at by the Tribunal. No case is made out for our interference and the appeal is dismissed with no order as to costs. A.A./H‑136/S ???????????????????????????????????????????????????????????????????????? Appeal dismissed.