1988 PLP (C (PLC(CS))

5. We have heard the arguments of the learned counsel for the appellant and perused the record. The Additional Advocate‑General has submitted his arguments in rebuttal. 1t has been argued on behalf of the appellant that the provisions of section 12(ii) of Civil Servants Act, 1976 are not attracted. According to the learned counsel for the appellant, the appellant was to retire after the completion of sixtieth year of his age. In this respect, the due date of his retirement was August, 1998 ‑ but the appellant was compulsorily retired on 1‑12‑1982, vide the recommendations of review committee. According to the learned counsel, no one should be condemned unheard. Appellant was neither given a chance of hearing nor he was served with a show cause notice. Order of retirement does not fulfil the legal requirements as envisaged by section 12(ii) of Civil Servants Act, 1976. The report submitted by the Committee is not in accordance with law. 1t has been further stressed by the learned counsel that appellant had the marvellous service record. Speaking on the point of limitation, it has been argued by the learned counsel that due to sickness, the appellant was handicapped to submit review petition, in time. Further, he was not informed about the fate of his review petition, well within time. According to the learned counsel, the period of limitation can be condoned because the appellant has shown sufficient cause. To this effect, the statement of the appellant is on record and other documentary record also proves the fact. The counsel for the appellant relied on P L D 1965 Kar. 621, A I R 1934 1911, 367, A I R 1942 Nag. 311, 1968 S C M R

962. It is further contended that the basic order is illegal. Hence, question of limitation does not arise.

6. On the other hand, controverting the arguments on behalf of the respondent, the learned Additional Advocate‑General (A.A.G.) submitted that the order of retirement is self speaking and the Government respondent is empowered to make such order under section 12(ii) of Civil Servants Act of Azad Jammu & Kashmir. It is argued that no terms and conditions of appellant's service are violated. There is no penalty imposed, the committee recommended the case and then the order of retirement was made. The proceedings were done in the light of the record. It is further stated by the Additional Advocate‑General that after the impugned order of retirement, appellant remained busy in getting his case of pension finalized. The appellant submitted the review petition after a period of one year and that too in the light of a report of the newspaper. It is further argued that there is no sufficient cause and ground to bring the appeal, within limitation. According to the Additional Advocate‑General, the case law cited by the learned appellant's counsel does not apply to the casein hand. The appeal is hopelessly time‑barred. The Additional Advocate‑General has relied on 1982 P L C (Service) 748, 1983 P L C (C.S.) 50 and 1983 P L C 256.

7. We have given our considered thought to the arguments, advanced by the appellant's counsel and the Additional Advocate‑General. The relevant record placed on the file has been perused and the service record of the appellant has also been taken into consideration. The impugned order of retirement and the dismissal of the review petition of the appellant have been critically examined. The respondent/Government by Notification No. S&GAD/9127/SO‑82, dated 27‑6‑1982, formulated a Review Committee No. 11‑to probe into the service matters of those public servants of Forests Department of Grade No. 1 to 15, who have completed the 25 years of service, on 31‑12‑1979 and 31‑12 1981. The Committee was to submit its recommendations and in this connection, the period was extended upto 31‑10‑1982. Keeping in view the recommendations of the Committee, the appellant alongwith some other person was retired on 1 12‑1982. The record shows that the report of the Committee is quite clear and the proceedings were conducted in this behalf in accordance with the service record (i.e., Service Book only).

8. Before proceeding further it is necessary and it would be of advantage to reproduce here section 12(ii) and (iii) of the civil Servants Act 1976, which reads as follows:‑‑ "12(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 (ii) on the completion of sixtieth years of his age." Keeping in view the state of facts and law and other relative circumstances, we think that the main question for determination before the Tribunal are as under:‑‑ (a) whether the impugned order of retirement and other proceedings, by the Review Committee are illegal and ultra‑vires? (b) Whether the appeal is time‑barred? (c) Is their any ground for the condonation of period of limitation. (d) Whether the orders under appeal are against the principles of Islam and natural justice? (e) Whether it was necessary that appellant should have been given an opportunity of hearing?

9. The appellant has not taken the plea of mala fide or colourful exercise of powers, by the respondent. He has agitated that the impugned order of his retirement is illegal and in this connection, the proceedings of the Review Committee are also without jurisdiction. We have given our anxious thought to the points, mentioned above. In our considered view, the contention of the learned counsel for the appellant is tenable. The order under appeal is illegal and ultra vires. Before going into further depth and discussion, it is necessary to have a background of the impugned order. The respondent/Government through notification S&GAD/127/SO‑1/82, dated 27‑6‑1982 constituted the Review Committee to review the cases of all civil servants, who have completed 25 years service, qualifying for pension, between the period of 31st December, 1979 and 31st December, 1981. In this respect, Committee No. II was to review the cases of Civil Servants of Forests Department of National Pay Scale 1 to

15. It is correct and there are no two views about it that under the provisions of section 12 of the Azad Jammu and Kashmir Civil Servants Act, 1976, the Government has the power to retire a Government servant, who has completed 25 years service, qualifying for pension. But this right of the Government is subject to a condition and that condition is the public interest. Therefore, if a civil servant has completed 25 years of service, qualifying for pension, if his case is not to be dealt with under the provisions of Efficiency & Discipline Rules, then his retirement will be made in public interest. So far as the facts and the circumstances of the present case are concerned, the respondent Government did not express in any way that the retirement of the appellant was being ordered in the public interest. The impugned order of retirement, dated 1‑12‑1982 of the appellant has not the slightest reference to section 12 of the Civil Servants Act, 1976. We cannot probe into the matter merely on presumptions. The Review Committee was to review the case of appellant, according to the directions attached to the abovementioned notification, given by the President and in this respect Clause (a) was to be followed strictly. Here, we would like to reproduce clause (a) of para. 2, of D.O.No. CSA‑Sec.13(ii)/Rev/82, dated 18‑4‑1982, which is read as follows:‑‑ "The review shall be mainly based on the Annual Confidential Reports, more weight age being given to the record of the preceding 10 years:" The Review Committee concerned probed into the matter but the report which has been submitted in case of appellant, shows that the Committee has not taken into account A.C.R. record of the appellant. It is reported that the A.C.R. record of the appellant was not available. Furthermore, the Committee while submitting its report has not mentioned that the retirement of the appellant is in public interest. There is no reference to any rule or regulation. It is necessary to place here these few lines of the report of the Committee, which reads as follows:‑‑ This report of the Committee does not disclose an iota of fact that the recommendation for retirement of appellant was made in the public interest, as it is a condition under section 12(ii) of Civil Servants Act, 1976. A Government servant, who enters into regular service after the period of probation, gets a right to remain in service till the age of superannuation, unless his services are terminated or he is removed under any provision of rules and regulations. The age of superannuation is 60 years as mentioned in section 12(ii) of the Civil Servants Act, 1976. The powers under section 12(ii) of the Civil Servants Act are no doubt available to the Government to retire a Government servant, who has completed 25 years service, qualifying for pension, where the retirement is made in the public interest. Where there is no expression about the public interest in the order under dispute, nor there is any documentary evidence to this effect, then how it can be said that the appellant's compulsory retirement is made in the public interest. A public servant, who has got the valuable right that he will retire at the age of 60 years, will not be thrown out only on the presumptions and sweet will of the Government. The impugned order of retirement of the appellant dated 1‑12‑1982 is not made in the public interest. The material placed before us does not disclose that the action of the respondent Government was taken in the public interest. It is correct that it is difficult to lay down any yardstick by which public interest may be measured. There may well be circumstances apart from inefficiency or dishonesty, which may be relevant for considering the suitability of an official. Law provides protection to the Civil servants. A perusal of record shows that the report of the Committee was submitted on 7‑11‑1982 and through a process it reached the Chief Executive (President) respondent Government. The initial order of the respondent/Government dated 15‑11‑1982 reads as follows:‑‑ It is in the light of this sanction of the Chief Executive that the impugned order of retirement of appellant was made on 1‑12‑1982. Nowhere, this sanction leads us I to believe that it was given in the best public interest. Unless the Government comes to this conclusion that the retention of a civil servant in service after the completion of 25 years service, is not in public interest, it is not lawful for the Government to retire such a civil servant. Protection of law enacts that equal protection and security of the law should be given to all under like circumstances and conditions in the enjoyment of their civil rights. The recommendations of the Committee, sanction of accepting the recommendations by the respondent/Government and later on the order of retirement of the appellant are violative of law and the basic principles of service rights. This order of retirement is bad in the eye of law and is contrary to the basic service rights of the appellant. The respondent/Government has rejected the review petition of the appellant on 10‑1‑1984, but this order too is against the vested rights of appellant because the impugned order of retirement is void, illegal and against the norms of justice. It is a nullity and not binding on the appellant.

10. The next point pertains to limitation. It is contended by the respondent and in the written objections categorically this matter is taken up. Prima facie, the appeal seems time‑barred but on one hand the appellant has given the explanation and he has submitted the documentary proof. He himself has appeared as a witness. On the other hand it has been agitated that the proceedings of the Committee and the impugned order under appeal are void, illegal and ultravires. It has been already declared that the order under appeal is a nullity. Therefore, there is no question of limitation, the case law referred to in this respect by the Additional Advocate‑General is of no help to the respondent. The order of retirement was passed on 1‑12‑1982, although the appellant submitted the review petition after a lapse of one year before the Government. No doubt he remained busy in conducting his pension case. It also transpires from the record that appellant submitted two or three applications for the know how of his review petition. A perusal of record shows the review petition was rejected on 10‑1‑1984 and the appeal was preferred on 19‑12‑1985. But as it is already declared that the basic proceedings are without jurisdiction, order dated 1‑12‑1982 is illegal and ultra vires, therefore, there is no question of period of limitation in the present appeal. The provisions of section 4 of the Service Tribunals Act, 1975 arc not attracted. The objection of the respondent is not tenable. The matter of condonation of period of limitation does not arise.

11. We have also examined the other relative aspects of the appeal. Service matters are regulated by service rules and regulations and in this connection Efficiency and Discipline Rules and the Civil Servants Act provide the penalties and the safeguards. Any action by the Government or the competent authority, under the guided principles against a civil servant cannot be termed against principles of natural justice. It is not necessary to give an opportunity of hearing to an official in respect of whom a retirement order is proposed to be under section 12(ii) of the Civil Servants Act. In this respect, we are of the view that the plea of learned counsel for appellant is not tenable. In fact the learned counsel for appellant could not substantiate this plea by any proposition of law.

12. A collective assessment of the relevant service record of appellant shows that recommendations of the Review Committee were not in accordance with the given directions and in particular the directions in clause (a) of Notification No. 127 were not followed. The proceedings in this connection are not in the ambit of settled principles, rules and regulations. The review should have been based on the Annual Confidential Reports and in this connection more weight age was to be given to the record preceding 10 years as required by clause (a) of the directions, attached to the notification, dated 27‑6‑1982. The Committee, while reviewing the case of appellant has cited 8 penalties awarded to the appellant. But most of them do not pertain to the preceding 10 years service record. Not only this but the report was not submitted by the Committee, within the statutory period. The Committee was to submit the report before 31‑10‑1982. By Notification S&GAD/G‑127/1, dated 23‑10‑1982, the period was extended upto 31‑10‑1982. It also transpires from the nothings on the recommendation of the Review Committee, that after 21‑11‑1982, Secretary Forest, who was the Chairman of the Review Committee, did not submit any comments. The orders of the Respondent/Government dated 1‑12‑1982 and 10‑1‑1984 rest upon the proceedings of Review Committee. The proceedings of Review Committee are not in accordance with law, hence the impugned order of retirement of appellant is a nullity. The order, dated 10‑1‑1984 of rejecting the review petition, therefore, does not stand on better footing.

13. The upshot of the above discussion is that appeal is accepted. The orders of respondent/Government passed on 1‑12‑1982, pertaining to appellant and the order, dated 10‑1‑1984 are set aside. The appellant is reinstated to service, with back benefits, from the date, he was relieved from service, as if he was never retired. The respondent/Government or the competent authority, may proceed afresh in accordance with law, if it so desires. A.A./62/Sr.A Appeal accepted.