1981 PLP (C (PLC(CS))

MUHAMMAD DAUD KHAN (CHAIRMAN)

‑ Vide Notification No. 10(21)78 Police dated 23rd February, 1978 Mr. Ata Hussain, the present appellant, then an Officer on Special Duty in the Establishment Division carrying Grade 20, was retired from service under section 13(ii) of the Civil Servants Act, 1973. Order specifically mentions about completion of 25 years' service qualifying for pension and other retirement benefits and President's pleasure directing retirement in the public interest. The order is Annex. 'A' on the file. Appellant joined Police Service of Pakistan in the year 1973. Prior thereto, he was in service elsewhere. In due course of time he became Inspector General of Police, Punjab in Grade 20, to remain as such uptil 22‑3‑1977. Thereafter he was posted as Officer on Special Duty, Government of the Punjab. In the same capacity he was transferred to the Establishment Division, Rawalpindi, where from he retired on 23‑2‑1978. Appellant submitted review petition to the President of Pakistan. It was rejected vide order No. 10/21/71 Police on 17‑5‑1978, received after 20‑5‑1978. He takes his retirement on completion of 25 years' service, to be a punishment, and as such prays for scrutiny of causes thereof. The contention is based on sanctity of the service record, which in his view; places him above average and free from all blemish. He supports his submission by a further assertion that his promotion to senior post as Inspector‑General of Police is a clear indicator of his integrity, efficiency and worth. In the context of service record and appointments good faith of the authority in retiring him becomes questionable, when such action should bear reference to letter No. D. 366‑S/Advisor/78, dated 18th March, 1978, a D. O. issued by the Adviser on Establishment Division to all the Secretaries. In para. 4 it lays down future policy in following words :‑ "On the civil side such a screening is only carried out after a Government servant has completed 25 years' service, The retirement of inefficient or' corrupt officers at this stage should not cause any unnecessary anxiety to those who are efficient and are serving the Government to the best of their ability. There is no Intention to carry out a mass purge or do any witch‑hunting." The letter was an appendage to Policy communicated to the Secretaries vide letter No. 1/7/74‑CV, dated 22nd August, 1974. It visualised creation of committees to scrutiniso the record of all Grade 17 and above officers to enjoin proper reporting on officers considered unfit for further retention. It was similarly laid down that basis for such determination would be the last three reports. The appellant has urged for examination of his earlier record in this context. Other rounds taken up in the pleadings arc scrutiny of his conduct in service various Agencies on the basis of data furnished. Appellant was subjected to inquiry by Martial Law Commission No. 1, Zone 'A' which found the allegations as ill‑founded. Other recriminations like rigging of General Election, and accumulating assets beyond known means were also examined by Chief Martial Law's Commission and Income‑tax authorities. Nothing untoward was ever found against the appellant. As such when the Department did not recommend his screening out and other allegations were unfounded, the retirement under section 13(ii) does not, according to him, seem to be in public interest. He increased the scope of his appeal by inserting para. 4 in cross-objections, setting up mala fide intention, in the competent authority, applying section 13(ii) of the Civil Servants Act, when it was not attracted. It was tantamount to abuse of powers and victimization. The cross‑objections were submitted on February 11, 1979. For proof an application under section 151 of the Civil Procedure Code was filed on 26‑5‑1980 to admit two documents, namely: (i) a letter written by the appellant to the President of Pakistan on 5‑2‑1979; and (ii) reply of the President dated 24-3‑1979. Documents so submitted, were objected to, by respondent (Establishment Division). It took strong exception to their admission, not on the ground of delay or distinctness of cause now set up, but for its nature. It urged that private letters cannot form part of the record. Value of letters to the appellant, and objection against admission will be taken up in due course. Respondents have raised three objections. Want of jurisdiction in the Tribunal to hear against cases of retirement under section 13(ii), question able form of appeal and it being barred by limitation. Respondents did not enter into merits of public interest' wherefore the appellant was retired. The first technical point raised; which can be decided without reference to any involved arguments; is the question of limitation. The respondent assort that petition of appeal registered on 17‑6‑1978, when the final order is dated 17‑5‑1978, it is one day too late. The submission ignores that the order may not have been communicated on the same day. There is no counter‑affidavit that it was so delivered, therefore, the appeal filed on 17‑6‑1978 is well within time. The other point is about maintainability of appeal. The learned counsel for the respondents has not been able to suggest any deficiency going to the root of the cause. Petition of appeal does bring out date of retirement, date of the order, the section under which he was retired and the reason he claims exception front its effects. There is no other form prescribed to support the objection raised by the respondents. Anyway no argument was advanced to deserve discussion. The technical hurdles thus brushed aside, the point in controversy reduces itself to a very simple issue. It is whether respondents have an unfettered and un-justifiable right to retire a person on completion of 25 years' service and that mere narration of done "in public interest will immunize the order from appellate jurisdiction. In other words, is the discretion of the competent authority exerciseable on purely subjective consideration or must there be objective criteria available for determining public interest. It need not be said that appellant wants it to be subjected to Tribunal's scrutiny and that authorities must demonstrate that the action was in public interest before dismissal could be prayed for from any Tribunal. Lengthy arguments were advanced on behalf of the appellant based on the Constitution of the Islamic Republic of Pakistan as interpreted by P L D 1969 S C

14. It affords an inalienable guarantee to every citizen to be dealt with in accordance with law without any discrimination. It was observed: "It is in this sense that an action which is male fide or colourable is not regarded as action in accordance with law. Similarly action taken upon extraneous or irrelevant considerations is also not action in accordance with the law. Action taken upon no ground at all, or without proper application of the mind of (an) authority would also not qualify as action in accordance with the law and would therefore have to be struck out as action taken in an unlawful manner." The authority according to the learned counsel prescribes a touch of available grounds and due application of mind. Orders not conforming to the standard would be a colourable exercise and would not be deemed to be in public interest. The learned counsel has surveyed further into the field by suggesting that even in the restricted scope of writ jurisdiction it has been laid down, time and again that the executive does not exercise any unfettered and unjusticiable power. Even when subjectivity is allowed the Courts have decreed that the subjective judgment must itself be controlled by some minimum standards of reasonableness and objective relationship of the order to the prescriptions in the Statute. The law does not know any unfettered and arbitrary executive power. He has relied on P L D 1964 S C 1 for the above enunciation. The relevant portion at p. 7 goes on as under :.‑ "Even under the section as it originally stood the interpretation of `public interest', 'other similar purpose', etc., was a matter for the determination of the Courts." The same year the principle was reaffirmed. In the case of Abul A'la Maudoodi v. Government of Pakistan. It demanded presence of conditions for application of any law and their application by the competent authority. These were matters within the larger principle of the judicial review and a power possessed by the Courts for the correction of excessive action under law. In Malik Ghulam Jilani's case, the principle was reiterated. It was said to be too late in the day to assume unfettered power in the given authority. Whether the authority has acted within its competence is a matter for the Courts who must ascertain reasonableness of the grounds. The proposition was amplified in the case of Abdul Baqi Baluch v. Government of Pakistan (PLD 1968 SC 313). It was held that mere ipse dixit of an authority is not sufficient and Courts have to determine whether sufficient material was available with the executive or administrative authorities to act in the case as they did. Similar view prevailed in Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 SC 14). Sum total of these citations is that in criminal cases, mere issuance of warrant of detention is not sufficient. Authorities, besides, have to show that such detention is called for and is based on some reasonable grounds. The reasons therefore are quite evident because both Constitutions of 1962 and 1973 guaranteed absolute liberty to an individual. The Constitutional guarantee can be taken away by law but then law must be strictly enforced. Courts can look into the matter whether reasonable ground existed for the proposed action. Proceedings before us are quite distinct, not alone for lack of Constitutional assurance, but because of provisions enacted to cover such cases. Service conditions are governed by a statute which itself provides: "A civil servant shall retire from service‑‑ (i) . . . . . . . . (ii) in any other case, on such date after he completed twenty‑five years of service qualifying for pension or other retirement benefits as the competent authority may, in the public interest, direct." The competent authority has been defined in the explanation appended to the aforementioned section, as under :‑ "In this section `competent authority' means the appointing authority or a person duly authorised by the appointing authority in that behalf, not being a person lower in rank than the civil servant concerned." Thus it is not only a liability but very term and condition of service that in public interest an official can be retired on completion of 25 years' service. There was much about pervasive nature of Tribunal's jurisdiction. It had right to go into the facts as well as other aspects of any question before it'. It may in appeal confirm, set aside, vary or modify any order passed by departmental authority. Mr. M. Yamin Qureshi v. Government of Pakistan (P L D 1980 S C 22) interpreted the extent of such jurisdiction it was said, even without it, provisions of section 5 .of the Service Tribunals Act, and nature of proceedings before the Tribunal leave no scope for any doubt. Exclusiveness of jurisdic tion and its comprehensiveness is not uncertain. The only point is whether a departmental order violates any terms and conditions of service. The only issue concerns justiciability of public interest and if the order was made competently. The learned counsel on the analogy of the aforementioned authorities and P L D 1975 S C 37 and others has forcefully urged that public interest is justifiable, and unless reasonable grounds are borne out by the record, section 13(ii) or (i) will not apply. It is already mentioned that authorities under the criminal law proceed on different assumption, herein Constitutional guarantee is lacking which inspired restriction. Public purpose mentioned in P L D 1975 S C is in the case of requisition of land which itself details the public purpose for which the property can be acquired. Public purpose so defined could have no similarity with an enactment where public interest is left fluid and undefined. Reliance is placed on Policy letter issued by the Government to guide competent authorities in their assessment of public servant's worth, to bring out similarity with public purpose. But that it is only one aspect of public interest. Inefficient or unfit official cannot be retained and his report for threes years must disclose the defect which is being pressed into service for retirement. But public interest is not limited to fitness or otherwise of a particular person. It can be decided that retention of most of the persons would not be desirable because younger generation has to be given an opportunity or in the interest of promoting others. Similar considerations of bad reputation‑a nebulous aspect, may induce such inclination. Besides A. C. Rs. may be good but not relatively so. That is why the supreme Court in its judgment in C. P. S. L. A. No. 188 of 1978 decided that public interest is not justiciable and we quote: "We also agree that the view of the Tribunal that the question whether retirement of the petitioner was in the 'public interest' was not a question into which the Tribunal was competent to enquire, because it was within the subjective satisfaction of the Government." We are aware that while determining rival jurisdictions of High Court and the Tribunal, Full Bench of the Peshawar High Court decided in Case No. W. P. 856 of 1979 that in their opinion Tribunal can examine if required so to do, whether an order passed by the departmental authority retiring a person on completing 25 years' service qualifying for pension, is in public interest or not because the Tribunal in this respect has to examine the matter in the same manner in which the other departmental authorities do and it cannot refuse jurisdiction by saying that it cannot interfere with the subjective satisfaction of the departmental authority and that the order is made in public interest. This interpretation of law goes counter to Supreme Court's decision cited earlier. The Supreme Court's view that public interest cannot be enquired into by the Tribunal, must under the Constitution prevail. Supreme Court's authority is the final word in interpretation. We are bound to accept it. The matter is no longer open for any further interpretation. Even otherwise, public interest not being restricted to fitness of an official, other considerations equally pertinent to public interest may be given priority. It would be opening Pandoras' Box if it is insisted that in each case public interest involved should be discovered. It will amount to depriving the authority of exercise of legal jurisdiction. Besides, retirement after completion of 25 years' service is an option which is available to the authority as well as to the public servant. Both can exercise the right and depriving one will mean to give him preference over the other. This would not be in the fitness of things. Above all, Courts/Tribunals are not law‑making authorities. They cannot legislate. Their scope is limited to interpretation. If intention of a Statute is clear, no question of hardship should cloud the issue. Herein right given to both, debars any inquiry into merits. Retirement is within competence of the authorities, and can only be challenged if not competently made. The learned counsel for the appellant has referred to certain other notifications which discover the need of even‑handed justice to civil servants and bring out irresponsible and repressive attitude of the earlier authorities but they do not afford any guidelines. Each case has to be decided on its own merit and if no incompetence is proved, the appeal shall have to her dismissed. As mentioned in the beginning, final version was retirement with mala fide intentions. Two letters, written during the pendency of these proceedings were placed on record. They were letters addressed by the appellant to the President and the reply thereto. In appellant's letter, he invoked a former incident wherein Commander‑in‑Chief, as the President then was, had rung him up in the interest of one Maj. Niazi. Appellant had failed to help which according to him annoyed the then Commander‑in‑Chief, now President to enforce retirement. The letter has not been denied because it is acknowledged by the President in his response. Letter by the President being very short is reproduced below: "Thank you for your letter of 5th February, 1979. I am glad that you wrote to me, as it will help you to be relieved of the mental constraint you have been experiencing. I will like to take this opportunity to wish all the best for the future." Respondents have taken strong exception to their admission and consideration. The only excuse put in is that it was a private correspondence which should not be publicised. If the letter had not been written by the appellant or received, the plea would be acceptable. But when recipient of one letter and author of the other is himself the tenderer there can be possible objection, nor is there any law which will make them immune from scrutiny. Question of their value in evidence is different. First of all letters were written during the pendency of appeal. It appears to be an effort to create evidence. Secondly the mention made of the recommendations by the Commander‑in‑Chief about Maj. Niazi nowhere shows personal involvement of the then Commander‑in‑Chief. He, as a Commander‑in‑Chief was duty bound to look into the welfare of his subordinates. If in that context he recommended to the Inspector‑General to see the aforementioned Officer, his failure to do so would be a default which he should not be proud of. Secondly it does not show that President was in any way personally hurt. From reply no ill‑will or malice is reflected. President was not bound to respond to a private citizen. His good wishes clearly depict grace and benevolence of the President. It is being misconstrued and misused by the appellant. It was an effort to place a construction on the letters, which they do not warrant. Apology tendered after removal from service shows lack of self respect, while bringing letters on record pinpoint the person who is harbouring a grudge. He has let down himself by late apology. The effort distorts the projected image. The President on the other hand has ignored his harsh words to wish him all the best in future. Thus any suspicion that may have lurked about colourable exercise is washed away, prejudicing the appellant's case. No colourable exercise of jurisdiction or male fide is established by these letters. Mala fide is absent. Retirement of such senior official who had excellent reports will be for some grave reasons of public policy which the departmental authority was forced to accept in public interest. Some such reasons are also apparent for appellant's alleged involvement with political parties, his requisition of house in Shadman Colony, his misuse of office to procure timber in Azad Kashmir for which he was enquired against. Though full evidence was not available it may even be sufficient reasons to retire such officer whose credit is under clouds. Be that as it may, we are bound to accept Supreme Court's view that public interest is not justiciable and retirement there under cannot be questioned. However, what cannot be questioned, is retirement made in accordance with the law contemplating such action. Section 13(ii) as quoted in the beginning of the judgment requires competent authority to enforce retirement in public interest. If the order is made by some one who is not competent, it is no order in the eye of law. Such an order shall have to be vacated. In the present case order of retirement dated 23‑2‑1978 runs as under :‑ "Advisor has given directions that the C. M. L. A. has been pleased to approve of the following (i). . . . . . . . (ii) Mr. Ata Hussain, O. S. D. Establishment Division who has com pleted 25 years of service on 6‑1‑1978 will be retired in the public interest, in accordance with the Art. 13(1) of the Civil Servants Act, 1973. He may be given ten days' notice of retirement and can apply for leave within fifteen days of notification. (2) Action will be taken accordingly. Formal summary for the C. M. L. A will be sent in a consolidated form after some time because some other changes may be made in the normal course. The Advisor had expressed a desire that individual cases should not be sent." The Notification is signed by Mr. N. H. Jafry, Establishment Secretary. It is admitted that Chief Martial Law Administrator has been substituted for the Prime Minister and is the authority in the case of Grade 20 Officers. No further delegation is set up in the context of explanation to section 13 of Civil Servants Act. It is also admitted that no summary was sent to the Chief Martial Law Administrator either before or after this order. The order itself is evidently bad because it proposes action in future and under Art. 13(1) instead of section 13(ii) of the Civil Servants Act, 1973. Section 13(i) referred to as Article is only applicable in case of Grade 21 and 22 Officers. It is not evident either that proposed future action was ordered to be taken forthwith. But these are technical flaws which may not be fatal. What does go to the root of .the case is want of order by the competent authority i.e. the Chief Martial Law Administrator. Learned counsel for the respondent has argued that Chief Martial Law Administrator could have given even a verbal order but he ignores the provision of Rules of Business. Rule 15 specifically enjoins that no order shall be issued without the approval of the Prime Minister in certain cases. In sub‑rule (2) the procedure of how summaries are to be submitted is detailed. In sub‑rule (4) the orders verbally given are provided for. It is laid down that when orders have been obtained from the Prime Minister is oral, discussion by Minister, Secretary General etc., a written note containing a brief record of the discussion and the orders of the Prime Minister shall be submitted to the Prime Minister' Secretariat (Public) for the information of the Prime Minister. It is not the case of respondents that such as summary was ever submitted. Consequently the retirement, under sec tion 13(ii), of the appellant was neither initiated by the Chief Martial Law Administrator under written orders nor was it subsequently approved. Another contention is that Chief Martial Law Administrator being the President as well, these rules do not apply. But then provisions of Article 48 of the Constitution would require written orders by the President so that it could be countersigned by the Prime Minister/C. M. L. A. Absence of written orders clearly leaves the notification without authority, even if such orders are deemed to have been made. The appellant as such, not retired by competent authority cannot be deprived of his office. Next submission of the learned defence counsel is that order being subsequently reviewed at the instance of the appellant by the President, rejection of appeal would amount to sanctification of the order of retirement. This is something which cannot be accepted. When there is no order to be appealed against, neither appeal nor review order will carry any effect. It was an exercise in futility. It cannot affect the consequential benefits, accruing from absence of orders. Net result is that retirement being without sanction of the competent authority, is void. The order is vacated. Appellant is re‑instated into service and will be entitled to any back benefits allowed by law. Appeal allowed.