P L D 1967 Lahore 877 (PLP)

S. A. MAHMOOD, J.‑This is a petition by Abdur Rahim Shah Labour Officer (Divisional), Lahore, under Article 98 of the Constitution of Islamic Republic of Pakistan, praying that the order of his retirement on attaining the age of 55 years made under rule 6 of the West Pakistan Government Servants (Further Usefulness in Public Service) Rules, 1963 (hereinafter called the rules), dated the 4th of December 1964, be declared to be without lawful authority and of no legal effect. 2. The petitioner was born on the 15th of January 1910. He joined service on the 14th of November 1935. On the 2nd of October 1963, when he was Assistant Labour Officer, a notice was issued to him by the Appropriate Committee to show cause why the Committee should not recommend that he be retired under the said rules on completion of 25 years of service. He appeared before the Committee. On the recommendation of the Committee it was decided to retain him up to the age of 55 years. The age of retirement then was 60 years. On the 28th of October 1964 a notice was issued to him by the Appropriate Committee to show cause why it should not recommend that he should be made to retire under the said rules on attaining the age of 55 years. As required, he appeared before the Committee on the 3rd of November 1964. The Committee recommended that he should be retired from Government service subject to the approval of the Public Service Commission from the date he attains the age of 55 years, which he was to attain on the 15th of January 1965. He was actually retired with effect from the 12th of May 1965. He filed an appeal before the Board of Revenue on the 30th of April 1965, but his appeal was dismissed on the 31st of August 1965, as the learned Member Board of Revenue found that his efficiency was graded as `average' or even `below average' or `hardly average'. While for continuing beyond the age of 55 years more than average efficiency was needed. His order of retirement at the age of 55 years is impugned, as stated already, by 'this writ petition. 3. It is contended firstly that the aforesaid rules are ultra vires of the rule‑making power of the Governor in so far as the previous approval of the President was not obtained to their promulgation, secondly, that the amendment of the proviso to sub‑rule (1) of rule 4 extending the period of six months was ultra vires of Article 178(3) of the Constitution and thirdly, that the order of retirement was made mala fide. For the first two contentions the learned counsel for the petitioner relies on the observations of the Division Bench in Karamat Ullah Khan v. Gov ernment of West Pakistan (P L. D 1966 Lah. 881) at page 895. Having gone through this case, we find that Sardar Muhammad Iqbal, J, who delivered the judgment of the Division Bench, held in this case that the proviso to rule 4(1) is ultra vires of the provision in Article 178(3) of the Constitution and the amendment made in the proviso, whereby the period of review of the cases of such persons was extended from time to time is on the same reasoning invalid and ultra vires of the Constitution. The case before the Division Bench was one in which action was taken during the extended period provided in the proviso and is not a case which fell within sub‑rule (1) of rule 4 itself. The main reason for holding the proviso to be ultra vires was that it violated the guarantee in Article 178(3) to the effect that the terms and conditions of service of a person in so far as those terms and conditions relate to superannuation are not varied to his dis advantage. The proviso was held to vary the terms and conditions relating to superannuation, but the main rule cannot be held to be ultra vires, because similar provision was there, in sub‑clause (c) of clause (9) of Article 6 of the Laws (Continuance in Force) Order (hereinafter called the Order), which, provided as follows:‑ "(c) Notwithstanding anything contained in sub‑clauses (a) and (b), the President, in the case of a person who is a member of an All Pakistan service or a person serving in connection with the affairs of the Federation and the Governor, in the case of a person serving in connection with the affairs of a Province, may in order to satisfy himself of the further usefulness of any such person in public service, review the case of that person at two stages only, namely, when he is about to complete twenty‑five years of service qualifying him for pension and when he is about to complete the fifty‑fifth year of his age and if the President or the Governor, as the case may be, is not so satisfied, he may direct that on or after the completion of twenty‑five years of service qualifying such person for pension, or on or after the completion of the fifty -fifth year of his age such person be retired." Under Article 234 of the Constitution, a person, who was, immediately before the commencing day, in the service of Pakistan, shall, as from that day, continue in the Service of Pakistan on the same terms and conditions as were applicable to him immediately before that day. Rule 4(1) of the aforesaid rules reproduced below, is also a provision to the same effect, as sub‑clause (c) of clause (9) of Article 6. It provides as under:‑ "4(1) Notwithstanding anything contained in rule 3 the case of every person to whom these rules apply shall be referred by the Appropriate Authority to the Appropriate Committee appointed by the Governor, in order to determine the further usefulness of such person in service, at two stages only, namely, when he is about to complete twenty‑five years of service qualifying him for pension and when he is about to complete the fifty‑fifth year of his age; Provided that the case of a person who has completed before, or completes on or will complete within one year and two months of, the commencement of these rules, twenty‑five years of service qualifying him for pension or the fifty‑fifth year of his age, may be reviewed within one year and two months from the commencement of these rules 'in the manner provided hereafter, if such person's case was not reviewed before the coming into force of these rules for the purpose of retirement on the completion of twenty‑five years of qualifying service or on the attainment by him of fifty‑five years of age, as the case may be, under any rules then applicable to him." Sub‑rule (1) of rule 4 in no way goes beyond or adversely changes the terms and conditions stated in clause (c). This may be otherwise in the case of the proviso mentioned above. The case before the Division Bench was one, which fell under the proviso, but the case before us falls directly under sub‑rule (1) of rule 4. The petitioner's case was referred to the Appropriate Committee when he was about to attain 55 years of age reference of his case before attaining the age of 55 years cannot be held to be invalid, since such reference was permitted by sub- clause (c) of clause (9) of Article 6. In this view of the case, sub‑rule (1) of rule 4 cannot be held to be invalid or ultra vires of Article 178(3) of the Constitution. 4. The contention of the learned counsel for the petitioner that the case of the petitioner could not be referred to the appropriate Committee on the expiry of six months of the promulgation of the rules, has no force. It is under the proviso to sub‑rule (1) of rule 4 that reference to the appropriate Committee within six months of the promulgation of the rules is permitted, where a person has completed 25 years of service or attained the age of 55 years, but where a person is about to attain either of the two stages, his case falls under sub‑rule (1) itself and it is impossible to deny its application to a case, where he is about to reach the two stages, at which the case can be reviewed. To contend that the cases of Government servants can in no case be reviewed beyond six months of the promulgation of the rules is to render nugatory sub‑rule (1) of rule 4 for all times and to deprive it of its meaning and effect. Sub‑rule (1) of rule 4 is obviously intended to apply to all cases at two stages, namely, when they are about to complete 25 years of service or to attain 55 years of age, whenever it may happen. 5. With regard to the first contention that the previous approval of the President not having been obtained, the rules were invalid, it is enough to say that these rules have been framed under Article 178(2)(6) of the Constitution, which is a fundamental provision. The Constitution is the supreme law of the land and as sub‑Article (2) of Article 178 confers powers on the Governor in the case of persons, not being members of All Pakistan Service, who were serving in connection with the affairs of a Province, the rule‑making power cannot be denied to the Governor. His competency to frame rules cannot be denied, though their legality maybe challenged on the ground that they are violative of sub‑Article (3) of Article 179 of the Constitution, which is not the case here. When Sardar Muhammad Iqbal, J. observed that the rules were not referred to the President for his previous approval, he was dealing with the legality of the proviso and held that it was rendered ultra vires of the Constitution by reason of Article 178(3) and the guarantees which a public servant had acquired to serve up to the age of sixty years. It is apparent that he was referring to the proviso from the following observation:‑ "The rules contemplated in the proviso had to be made by the Governor with the previous approval of the President. Such rule‑making authority does not exist under the Constitution. There being no authority to make the rules, even if the proviso to sub‑clause (c) be held to be a term and condition of service, it cannot be invoked against him after the Constitution." As we interpret the decision in the above cited case, it was not laid down that the Governor was deprived of the power to make rules regarding the review of cases of public servants at two stages, namely, when they are about to complete 25 years of service or to reach 55 years of age. It has clearly been accepted by our learned brothers that if a public servant has not attained 55 years of age or completed 25 years of service, his case can be reviewed when he is about to reach either of the two stages and he can be retired if it is found that he has lost his usefulness. This contention has, therefore, no force. 6. The learned counsel for the petitioner also argued that as the petitioner was promoted after his screening on completion of 25 years of service, we should presume that there was no material against the petitioner for his compulsory retirement on attaining the age of 55 years. We can draw no such conclusion. The order of the Appellate Authority shows that his service record was average or below average or hardly average. In the circumstances, it was for the Appropriate Committee and the Appellate Authority to decide whether the petitioner should be retired or not. 7. As we have held above, the case of the petitioner falls under sub‑rule (1) of rule 4 of the West Pakistan Government Servants (Further Usefulness in Public Service) Rules, 1963, which rule is, in our view, valid and the retirement of the petitioner on attaining the age of 55 years is not invalid. This petition has, therefore, no force and is dismissed, but there will be no order as to costs. S. A. H. Petition dismissed.