P L D 1953 Lahore 295 (PLP)

KAIKAUS, J.‑--Khaliq Dad Khan respondent was a member of the Punjab Provincial Service and was dismissed by the Punjab Government on 23rd of October 1940 pursuant to an enquiry conducted against him by Mr. Broadbent, I. C. S. into allegation of corruption. On 20th of June 1942 he filed a suit impeaching his dismissal. The suit was dismissed by the trial Court but was decreed on appeal by the High Court on 20th of May 1948 in the usual terms viz., that the order of dismissal was void and the plaintiff was a member of the Punjab Civil Service on the date of the institution of his suit. The ground of decision was want of opportunity to show cause against action proposed to be taker. On or about 8th of October 1948, the respondent received a notice from the Punjab Government, accompanied by a copy of the report of Mr. Broadbent, informing the respondent that in view of the finding of Mr. Broadbent the Punjab Government proposed to dismiss him and requiring him to show cause why he should not be dismissed. After the receipt of a reply from the respondent the Punjab Government, by an order dated 21st of February 1949 again dismissed the respondent with effect from 1st of November 1943. Later on the date from which dismissal was to take effect was changed to 16th of December 1947 the date on which the respondent attained the age of superannuation. On 20th of February 1950, the respondent filed the suit out of which this regular first appeal arises again impeaching his dismissal. The suit has been decreed by the trial Court and the Punjab Govern ment have appealed. The suit was based on three grounds which are: (1) the plaintiff bad reached the age of superannuation on 16th of December 1947 and was no longer a member of the Punjab Civil Service when notice to show cause against dis missal was served upon him; (2) there was no proper opportunity to show cause against dismissal; and (3) a dismissal could not be based on the same charges as had been the subject‑matter of the first suit. The trial Judge found in favour of the plaintiff on all the three points, though his finding on third point does not quite agree with the plaintiff's contention, the learned Judge's conclusion being that a second enquiry was necessary. We have found it unnecessary to go into all the three grounds urged by the plaintiff in view of our decision on his first contention. On the question of fact which is involved in the first conten tion i.e., whether the plaintiff was a member of the Punjab Civil Service on 8th of October 1948 when the notice to show cause was served, there is an admission by the defendant in the written statement that the plaintiff was not a member of the service on that date. Learned counsel for the appellant concedes that if the plaintiff in fact was no longer a member of the Service on 8th of October 1948 the matter is concluded by R. T. Rangachari v. Secretary of State (A I R 1937 P C 27) which lays down that an order of removal from service at a time when the person concerned had ceased to be in the service is a nullity. The object of the whole argument addressed to us on the point is to prove that the respondent in fact was still a member of the Punjab Civil Service on 8th of October 1948. In view of the fact that the admission of the Punjab Government in their written statement would be decisive against them we propose to examine the position of the Govern ment with respect to this matter in some detail. The respondent had reached the age of superannuation on 16th of December 1947, i.e. during the pendency of his appeal in the High Court which as already stated was decided on 20th of May 1948. When pursuant to a notice to show cause an order of dismissal was passed on 21st of February 1949, it does not seem to have been noticed that he had already attained the age of superannuation. It does not appear from the record why 1st of November 1948 was selected as the date from which the order was to take effect. On 4th of March 1949; the Punjab Govern ment sent letter Exh. P. 3 to its Accountant, General informing him of the dismissal of the respondent with effect from 1st of November 1948 and directing him to pay him one‑forth of salary from the date of his first dismissal up to 1st of November 1948 as subsistence allowance because the Government were treating the period subsequent to his first dismissal as period of suspension. To this payment of suspension allowance till Ist of November 1948, the Accountant‑General appears to have taken objection on the ground that the respondent had reached the age of superannua tion on 16th of December 1947. At this the letter Exh. P. 4 was sent by the Punjab Government to the Accountant‑General on 8th of April, 1949. It runs:‑ "I am directed to invite a reference to the correspondence resting with your letter No. GI/PCS/3348 dated the 22nd March 1949, and to say that Mr. Khaliq Dad Khan may be considered to have been dismissed from 16th December 1947, the date on which he attained the age of superannuation, and not 1st November 1948, as erroneously intimated in the West Punjab Government letter No. 6196‑G‑48/22314 dated 4th March 1949. He will thus be on suspension from 23rd October 1940 to the 16th December 1947." The position of the Government clearly was that the respondent continued in service only till 16th of December 1947, the age of his superannuation. So when the respondent stated in his plaint in paragraph 6:‑ "That the plaintiff had attained the age of superannuation on the 16th December 1947, and that the plaintiff was not a member of the Provincial Civil Service at the time when the aforesaid notice was given." The Punjab Government replied in their written statement, "Paragraph 6 is not denied." Not only this but in paragraph 9 of the written statement the Punjab Government reiterated their position thus:‑ "That paragraph 9 is admitted to the extent that as the plaintiff attained the age of superannuation on the 16th December, 1947, the orders were revised and the Accountant-General was informed that the suspension allowance should be given from 23rd October 1940 to the 16th December 1947, instead of 23rd October 1940 to 1st November 1948." On a consideration of all this no doubt is left in one's mind‑ as to the clear position of the Government. They had decided to treat the period after the first dismissal as suspension period. If he were regarded as still in service after 16th of December 1947, the Government would have to pay him subsistence allowance for the subsequent period. Even apart from their admission in the written statement it is blowing hot and cold to grant subsistence allowance only up to 16th of December 1947 and to maintain that he was still in service on 8th of October 1948 when the notice was served. As their Lordships of the Privy Council pointed out. In Eshenchunder Singh v. Shamochurn Bhutto, Koilashunder Singh and others (11 M I A 7), the determination in a cause should be founded upon a case either to be found in the pleadings, or involved in or Consistent with the case thereby trade". We do not see how we can find in favour of the defendant on a case inconsistent with the defendant's written statement. However, we have even examined the position otherwise and have reached the conclusion that the respondent could not be regarded as in service on 8th of October 1949. The argument put forward on behalf of the appellant is that until an order is passed declaring that a person has retired from, service tire mere attaining of (lie age of super annuation does not effect a termination of service. The relevant provisions of the Civil Services Rules (Punjab' ace given below:‑ "Volume 1 Chapter III. 3.26 (a) Except as otherwise provided in the other clause: 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; 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." "Note to sub‑clause (1) of rule 3.26, as inserted by Correction Slip No. 272 dated the 18th February 1949, read with Punjab Gazette, Part 1, 1952, p.

777. A.P.C.S. Officer holding the post of Legal Remembrancer and Secretary to the Legislative Department shall retire at the age of 55." "Note 3.‑Military Officers serving in posts borne on the cadre of the Provincial, Subordinate or Specialist Services shall cease to be in civil employ on reaching the age of 55 years." "Note 5.‑The grant under rules 8.21 or 8.22 of leave extending beyond the date on which a Government servant must compulsorily retire, or beyond the date up to which a Govern ment servant has been permitted to remain in service, shall be treated as automatically sanctioning as extension of service up to the date on which the leave expires and a formal extension of service preliminary to the grant of leave is not necessary. The Government servant will retain a lien on his post till he actually retires." Volume II, Chapter IV, Section IV.‑Superannuation Pension. A.‑--Conditions of Grant. "5.27. A superannuation pension is granted to a Govern ment servant in Superior service entitled or compelled, by rule, to retire at a particular age. See rule 5.28 infra, and rule 3.26 of Volume I of these rules. No claim to compensation will be entertained from a Govern ment servant who is required to retire at a particular age under the rules." "5.28 A Government servant in Superior service who has attained the age of 55 years may, at his option, retire ors a superannuation pension." B.‑‑Procedure "5‑

30. Each Government servant's case should be taken tip when he is approaching the age of superannuation and before the expiry of each extension of service. Extensions may not be granted for any period exceeding one year at one time." No other provision has been referred to in the arguments before us. Learned counsel for appellant relies on rule 3.26 of Volume I Chapter 111, but the wording of the rule goes against him. I! provides for the retention of the officer only on public grounds which must be recorded in writing". This means that it is only an order in writing that be can be retained. As rote 5.30 of Volume II, Chapter V, shows questions of extension are to be taken up before the age of supperannuation. The power to grant extension can under rule 5.31 be exercised only by the authority competent to fill the post, so that obviously an order by such an authority is needed before there can be an extension. We have asked learned counsel for the appellant whether, if a Government servant went on working say for three months after, attaining the age of superannuation without any order of extension, the Accountant‑General would or could pay him his salary for this period of three months. Learned counsel is unable to reply in the affirmative. The words `compulsory retirement' have, in our opinion, the same meaning as the words `shall retire' in the note to (c) (i) of rule 3‑26, and learned counsel for the appellant is unable to suggest any other meaning. The words `required to retire at a particular age under the rules' used in rule 5.27 of Volume II, only mean that the rules themselves require the servant to retire and not that an order requiring him to retire is to be passed. As far as we are aware no such order is ever passed in cases where the rules prescribe an age of superannuation. Such an order may be passed, however, in other cases where an option is given to the Government to compel a servant to retire though he has not attained the age of superannuation. The option given in rule 5.28 of Volume II only means that the servant cannot be forced to remain in service after the age of 55 and does not mean that he has the option to remain in service far rule 3.26 of Volume I is quite clear on the point. Learned counsel for appellant relied on note 5 to rule 3.26 as showing that an express order is not necessary but the necessity for putting in the note in fact strengthens the opposite view. A special provision has in this rule been made for cases of leave which extends beyond the age of superannuation. If a servant were to continue in service till an order of retirement was passed the note would be altogether, unnecessary. Note 2 to rule. 32.6, on the other hand, clarifies that the servant would cease to be in service at

55. Though the note relates to Military servants in civil employ the principle is of general application. We hold that a servant governed by rule 3.26 (a) automatically retires from service can attaining the age of superannuation subject to the passing of an order of extension. Even if an order, or an intention to terminate the service, was required, the Government did take a decision on the matter when they ordered that subsistence allowance was to be paid only up to 16th of December 1947, when the respondent attained the age of superannuation We are also of opinion that in a case like the present no question of extension arises. The occasion for the exercise of the power to grant extension arises only when the Government consider that they still require the services of the servant concerned. The object of the extension is to avail of his further services. No such occasion arose in this case. The Punjab Government regarded the respondent as a person unfit to hold office. An extension would even imply a decision that the respondent was fit to be retained in service. The mere fact that the Punjab Government wanted to dismiss him would not be a proper reason for continuing him in service. It is clear too that from 16th of December 1947 to 20th of May 1948, when the High Court decreed the previous suit, the Punjab Government did not regard him in service and after the judgment all that they wanted was to get rid of his claim. There is little room for saying that there was any extension, It may also be mentioned that the order of dismissal was passed on 21st of February 1949 and it is not the appellant's case even now that on that date the respon dent was still their servant. We have been referring to the order of dismissal passed by the Punjab Government which purports to take effect from the previous date without comment. Let it not he understood that we accept the authority of the Government to pass, orders with retrospective effect. It is only the Legislature than can give retrospective effect to what it ordains. The Government have only power to dismiss and a power to dismiss does not imply a power to say "a dismissal shall be deemed to have taken place on such and such a date." At least in the absence of an authori ty from the Legislature, express or necessarily intended, no such power can exist. We hold that the respondent being no longer in the service) of the defendant, the order of dismissal was void and inoperative. Whatever remedy the Government may have against a servant who has already retired, in respect of alleged mis conduct, an order of his dismissal from service is not an order either valid or appropriate. The appeal fails and is dismissed with costs. A. H. Appeal dismissed.