1968 SCMR 628 (PLP)

MUHAMMAD YAQUB ALI, J.-The facts giving rise to this appeal by special leave of the Court are as follows:- Younus Ali, appellant, was on 8-1-1952 appointed as Assis tant Teacher in the pay scale of Rs. 50-2-60/E-B 4-100 by the Assistant Director, Education, Karachi, in the Narain Pura Urdu , Boys School; ;;arachi, and served in that post for a littlemore than seven years when on the 14th March 1959, Sardar Karim Nawaz, Secretary to the Chief Commissioner, Karachi, in the Directorate of Education, informed him that from the study of his confidential reports and oral evidence of his superior officers the "Screening Committee" had come to the conclusion that he was incapable of performing his duty in an efficient manner and was, therefore, called upon to show cause why he should not be retired compulsorily. In reply the appellant submitted a lengthy explanation which was not accepted by the Screening Committee and on 1st of June 1959, he was informed that the Screening Committee had found him inefficient as borne out by, the entries in his character rolls from 1952 to 1958 showing that his working was not satisfactory, he was quarrelsome, unfit, disobedient, unsympathetic and short-tempered. Against the findings of the Screening Committee the appellant submitted a fresh explanation which was not accepted and on the 4th of June 1959, the appellant was informed that having considered the explanation submitted by him, the Screening Committee had come to the conclusion that he was inefficient and should be retired from Government service and that if he wished to appeal against the recommendation of the Screening Committee he might appeal to the Secretary, Ministry of Interior, direct within a period of 15 days. On the 8th of June 1959, the appellant submitted an appeal to the Secretary, Ministry of Interior, but it is not known if any decision was at all taken on the appeal. However, on the 29th of June 1959, Mr. K. M. Murtaza of the Ministry of Interior, Karachi, informed Mr. Mumtaz Ahmad, Secretary to the Chief Commissioner, Karachi, that they had no appeal, from any of the officers and staff of the Administration of Karachi, against whom action was recommen: ded by the Screening Committee, pending with them and final orders in respect of the persons may, therefore, be issued by the 30th June 1959, positively. Until this time the action against the appellant was being taken under the Public Conduct (Scrutiny) Rules, 1959, but at this stage a departure was made and the order retiring the appellant from service was passed, by Sardar Karim Nawaz on the 29th June 1959 under sub-clause (b) of clause (5) of Article 6 of the Laws (Continuance in Force) Order, 1958, which was to the effect:- "6. . . . (5) Nothing in this Article or in any law, rule or instrument having the force of law shall prevent a person mentioned in clause, (1) from being- (a) suspended, reduced in rank, removed or dismissed for being corrupt or for misconduct or for inefficiency after such inquiry as may be held under the orders of the Central Govern ment, or (b) retired for any cause mentioned in the preceding sub-clause, or for having the reputation of being corrupt, on such pension, if any, as may be admissible to him, proportionate or otherwise, by an order of the authority mentioned in clause (3) made before the first day of July 1959 or in the case of a Chairman or Member of a Provincial Public Service Commission the sixteenth day of February 1960, and no appeal shall lie against such order nor shall such order be called in question in any Court." After the Martial Law was lifted and the Constitution of 196:2 was enforced the appellant on 21-2-1963 moved the High Court in exercise of its constitutional jurisdiction for setting aside the order of his compulsory retirement from service as being with out lawful authority and directing the respondent No. 2, Director Education, Karachi, to re-instate him with effect from the data of his illegal retirement and to allow him all the benefits of service including pays, allowances, etc. In support of the plea that the impugned order was without lawful authority the appellant pointed out certain irregularities in the conduct of the proceedings of the Screening Committee and the failure of the Secretary, Ministry of Interior, to dispose of his appeal and relied on the following observation in the case of Zafar-ul-Ahsan v. The Republic of Pakistan (P L D 1960 S C 113): "It was contended that although under Article 6 (5) (b) no inquiry is necessary, but if an inquiry was commenced under the Public Conduct (Scrutiny) Rules, 1959, and the proceedings in that inquiry suffered from any illegality and order made in pursuance to such an inqviry was without lawful authority and liable to be At aside in writ jurisdiction by the High Court." The learned Judges found that the proceedings initiated again the appellant under the Public Conduct (Scrutiny) Rules, 1959 were misconceived and any illegality in the conduct of tilos, proceedings was immaterial in so far as the order retiring the appellant from service was passed under Article 6(5) (b) of the Laws (Continuance in Force) Order, 1958, which did not contemp late any inquiry. Support for this view was found from the fact that in spite of the observations in Zafar-ul-Ahsan v. The Republic of Pakistan .reproduced above it was found in that case, that section 10 of the Public Conduct (Scrutiny) Ordinance, 1959, ousted the jurisdiction of all courts and on this view the appeal by Mr. Zafar-ul-Ahsan was dismissed. Leave to appeal was granted in the case to consider the following questions:- (i) whether Sardar, Karim Nawaz, Secretary to the Chief Commissioner was competent to pass an order of removal from service as clause (3) of Article 6 of the Laws (Continuance in Force) Order, 1958, expressly provided that such authority vested in a person or an authority not below the appointing authority; and (ii) whether the order of compulsory retirement is within the A meaning of the expression "dismissal" and "removal" employed in Article 181 (1) of the Constitution of 1956, and if not, whether they are not provisions in the Civil Service Rules, or the rules of the Education Department of the Karachi Administration as it was then established giving authorities by which an order of compulsory retirement may be made. In the case Zafar-ul-Ahsan y. The Republic of Pakistan the construction of Article 6 (5) (b) of the Laws (Continuance in Force) Order, 1958, also came under consideration. It was observed: " ... because sub-clause (b) of clause (5) in its terms materially differs from sub-clause (a) inasmuch as while no inquiry seems to be contemplated by clause (b), such inquiry as the Central Government may direct is a sine qua non in sub-clause (a). tinder the latter clause a Government servant may be suspended, reduced in rank, removed or dismissed for being corrupt or for misconduct whereas under the former, the only order that can be made against him is that of retirement on the grounds mentioned in sub-clause (a) or for his having the reputation of being corrupt. Retirement is a much less serious punishment and it seems that by clause (5) the Central Government intended to acquire the power to inflict such punishment without any inquiry, because if an inquiry had been considered to be necessary there is no reason why that condition should have been omitted from sub-clause (b) after it is having been prominently mentioned in sub-clause (a). A difference in the phraseology of the two, provisions appears to be deliberate and the obvious reason for it seems to be that retirement was considered to be a lighter penalty than reduction in rank, removal and dismissal. Since servants of the State hold their office during the pleasure of the Head of the State, by enacting sub-clause (b) the President intended to confer on the Central Government the power to retire a Government servant without the formality of an inquiry if it were of the opinion that the servant concerned was guilty of corrupt or misconduct or had the reputation of being corrupt." In conclusion it was said that if Mr. Zafar-ul-Ahsan had been retired for any of the reasons mentioned in sub-clause (b) without any inquiry he would have no remedy, but the actual position in that case was that Mr. Zafar-ul-Ahsan's case was referred to a Screening Committee and the Screening Committee had acted in ' professed exercise of the powers conferred on it by the Public Con duct (Scrutiny) Ordinance and the Rules framed thereunder. On this premises it was observed: "There is nothing in sub-clause -(b) to prevent the Central Government from ordering an inquiry if action is intended to be taken under that sub-clause and if 'the enquiry ordered is regulated by a law the Committee is bound follow that law even though such inquiry was not necessary and the action actually taken could have been taken without such inquiry." The decision of the United States Supreme Court in Viterally v. Seaton (US 3 L 2d Ed. 1012) was noticed in this context and it was observed: "In the present case, therefore, the Central Government having ordered a statutory enquiry, though for the action taken no enquiry need have been held, the Committee appointed to hold the enquiry was bound to follow the statutory procedure and an omission to comply with such procedure in some material respect would have vitiated the result of the enquiry, provided a Court of law had jurisdiction to question the alleged irregularity and to declare its effect on the result of the enquiry." As mentioned above the jurisdiction of the Court to call in question the proceedings of the Screening Committee was found to be barred by section 10 of the Public Conduct (Scrutiny) Ordinance, 1959, and the order made by the President retiring Mr. Zafar-til Alisan from service under Article 6 (5) (b) was held to be immune from scrutiny by any Court. Up to this point the facts of the present case and the case of Mr. Zafar-ul-Ahsan run parallel to each other. However, before the notice dated 14-3-1959 was issued to the appellant the cause of "inefficiency" was on 2-3-1959 deleted from the Puplic Conduct (Scrutiny) Rules, 1959, and added on 24-4-1959 to clause (a) of Article 6(5) of the Laws (Continuance in Force) Order. The proceedings against the appellant under the Public Conduct (Scrutiny) Rules, 1959, for inefficiency were, therefore, from their inception misconceived. The only provision which remaind in' the field under which the appellant could for inefficiency be retired from service was clause (b) of Article 6(5) and no inquiry was necessary under that clause to sustain the impugned order of Sardar Karim Nawaz dated the 29th June 1959. The second ground on which leate to appeal was granted also does not hold good. As mentioned in the beginning the appellant was on 8-1-1952 appointed an Assistant Teacher by the Assistant Director, Education, Karachi. At the relevant time Karachi was a Chief Commissioner's Province and the Chief Commissioner was the Head of its Administration. Sardar Karim Nawaz as Secretary to the Chief Commissioner in the Directorate of Education, therefore, performed functions equivalent to that of an Education Secretary in the other provinces. A copy of letter No. 8/3/58-Karachi dated the 4th August, 1959, from Mr. K. M. Murtaza, Assistant Secretary to the Government of Pakistan, Ministry of interior, to the Accountant-General, Pakistan Revenues, Karachi, mentions "that the post of Secretary to the Chief Commissioner (now Administrator) is a senior scale C. S. P. cadre post and only those officers are appointed to it who are considered suitable for appointment as Deputy Secretary to the Central Government and that Mr. Karim Nawaz Khan may be considered as mature for appointment to this post". The special pay of Rs. 300 was also considered admissible to Sardar Karim Nawaz so long as he held the post of Secretary. No doubt is thus left that Sardar Khan was not an authority below the Assistant Director, Education, who had appointed the appellant as Assistant Primary reacher and was, therefore, within Article 6(3) of the Laws (Continuance in Force) Order, 1958, competent to retire him from service Both the grounds which could possibly be urged in support of the appeal thus fail. The appeal is accordingly dismissed, but in the circumstances of the case we make no order as to costs. Appeal dismissed.