P L D 1959 Supreme Court (Pak (PLP)

SHAHABUDDIN, J.‑This is an appeal by special leave presented on behalf of the State against the judgment of the High Court of West Pakistan, Karachi Bench, directing the issue of a writ to the effect that the respondent Liaquat Ali Khan, a permanent Superintendent in the Ministry of Foreign Affairs and Common wealth Relations, who had been ordered to retire on account of superannuation should continue in service till such time as action is taken in accordance with the rules of compulsory retirement. There is no dispute as to the main facts. The respondent who had entered Government service in 1927 as a Third Division Clerk was transferred to the Foreign and Political Department of the Government of India in 1936. At the time of Partition he was Superintendent in that department and when he opted for Pakistan he was posted as a Superintendent of the Indian Branch of the Ministry of Foreign Affairs. He attained the age of 55 years on 30th October 1956 and a notice dated 14th January 1957 was sent to him stating that he should retire from service from 16th July 1957 whereupon he applied to the High Court for a writ ordering the withdrawal of the said notice and directing that he should be allowed to continue in service till he attained his 60th year. The rule of superannuation applicable to the ministerial servants is rule 56 (b) (i) of the Fundamental Rules which is as follows: "A ministerial servant who is not governed by sub‑clause (ii) (below) may be required to retire at the age of 55 years, but should ordinarily be retained in service, if he continues efficient, up ‑to the age of 60 years. He must not be retained after that age except in very special circumstances, which must be recorded in writing, and with the sanction of the Local Government. (ii) A ministerial servant‑ (1) who enters Government Service on or after the 1st April 1938, or; (2) who being in Government service on the 31st March 1938, did not hold a lien or a suspended lien on a permanent post on that date, shall ordinarily be required to retire at the age of 55 years. He must not be retained after that age except on public grounds which must be recorded in writing and with the sanction of the Local Government and he must not be retained after the age of 60 years except in very special circumstances". Under Fundamental rule 4 these powers can be exercised by the Governor‑General in respect of all other Government servants not under the administrative control of the local Government. The case of the respondent before the High Court was that clause (b) (i) of the above rule applied to him as he entered service before 1st April 1938‑that under the said clause he had a right to remain in service till he attained the age of 60 years unless he was found inefficient, that he was never found to be inefficient and that therefore the order asking him to retire was invalid as he was not given an opportunity to show cause against compulsory retirement as required under Article 181 of the late Constitution. The difference in language between the above mentioned clause of the rule and clause (2) thereof which relates to officers entering Government service on or after 1st April 1938 was relied upon as indicating that while the former class of ministerial servants should ordinarily be retained till they attain 60 years, the other class of officers should ordinarily be retired on their attaining 55 years; and it was argued that this showed that the respondent had the right to continue beyond the date from which he was required to retire. The position taken on behalf of the State, on the other hand, w s that under the above rule Government had absolute discretica to retire a ministerial Government servant at the age of 55 and that compulsory retirement did not amount to "dismissal" or "removal from service" or "reduction in rank" within the meaning of Article 181 and, therefore, no question of issuing a notice to the respondent for showing cause against compulsory retire ment arose. On the last‑mentioned point reliance was placed on behalf of the State on several decisions including the decision of the Supreme Court of India in Shyamlal v. State of Uttar Pradesh (AIR 1954 S C 369) where the view taken was that "removal from service" occurring in Article 311 of the Constitution of India which corresponds to Article 181 of the late Constitution generally implies that the officer concerned is regarded as in some manner blameworthy or deficient i.e., guilty of some misconduct or lacking in ability or capacity or will to discharge duties and that compulsory retirement did not amount to dismissal or removal from service within the meaning of the abovesaid provision of law. The learned Judges of the High Court in the present case dissented from this view as in their opinion it restricts unreasonably the scope of the constitutional guarantees. They came to the conclusion that removal from service included also termination of service against the rules and conditions of service. As regards the other point they held that under the rule in question the respondent was entitled to remain in service till he attained the age of 60 years. The learned Judges, therefore, issued the writ referred to above. Before us the learned Attorney‑General raised a preliminary point. He contended that the writ applied for by the respondent and granted by the High Court could not be said to be one provided for in the Laws (Continuance in Force) Order, 1958 and therefore the entire proceedings in the case should be held to have abated under cl. (7) of S. 2 of the said Order. As for its section 6 under which members of services continue on the same terms and conditions as before, his argument was that the protection afforded under Art. 181 of the late Constitution could not be said to be a condition of service; and for this he relied on the fact that the expression "condition of service" occurs in Art. 182 and not in Art.

181. This contention overlooks the fact that Art. 181 affected the tenure of office of persons employed in civil capacities. Article 180 was to the effect that subject to exceptions provided expressly a public servant held office at the pleasure of the President if employed in the Central services or of the Governor if employed in the service of the Province. Exceptions to this rule were provided in Article 181 and the protection given under that provision extended to every member of the services referred to in the Article. In Gould v. Stuart (1896 A C 575) the power of Crown to dismiss at pleasure a civil or military officer was referred to as a term of service as is seen from the following observation "These provisions, which are manifestly intended for the protection and benefit of the officer, are inconsistent with importing into the contract of service the term that the Crown may put an end to it at its pleasure". Similarly in Dunn v. The Queen ((1896) 1 Q B 116 at p. 119), where it was held that servants of Crown civil as well as military except in special cases where it is otherwise provided by law held their office during the pleasure of the Crown, the power of the Crown to dismiss at pleasure was referred to as a term or condition of service. Lord Herschell observed "So I think that there must be imported into the contract for the employment of the petitioner the term which is appli cable to civil servants in general, namely, that the Crown may put an end to employment at its pleasure." Therefore Art. 180 which embodies the rule of public servants holding office at the pleasure of the head of the State can appropriately be regarded as a term or condition of service. That being so; Art. 181 must also be regarded as a term or condition of service. If the argument of the learned Attorney- General is accepted Art. 180 would not be a term or condition of service and cannot, therefore, be considered to be in force now, but his main argument was based on the rule that the post in question was held at the pleasure of the President. As pointed out above, both Articles 180 and 181 relate to the tenure of the members of the services and, therefore, they are as much terms and conditions of service as those referred to in Art.

182. We, therefore, hold that the protection afforded to 4 services under Art. 181 is preserved under the Laws (Continuance in Force) Order, 1958. But to avail himself of this protection the respondent had to establish that he was at the relevant time entitled to continue in service. In other words, he had to show that the rule of superannuation quoted above gave him the right to continue in service till his 60th year. This is the main point in the case for even if "removal from service" is given the wider meaning ascribed to that expression by the learned Judges it has to be established that the compulsory retirement of the respondent was against the rules and conditions of his service. That being so, one would have expected a fuller consideration of the language of the rule in question in the judgment of the High Court, but the learned Judges have not considered the several expressions in the rule which, as shall be seen presently, make it clear that the ministerial servant cannot, as a matter of right, continue till his 60th year even if he is efficient. They have however, relied on observations in two cases which no doubt appear to support their conclusion, but are clearly in the nature of obiter dicta. For instance, after discussing at some length the decision of the High Court of Lahore in Muhammad Ismail v. The Punjab Province (P L D 1956 Lah. 129.), which was relied on for the State the learned Judges observed "This case is clearly distinguishable and has not laid down any general rule or law that all Government servants irrespective of any rule can be retired by the Government compulsorily before the age of superannuation and on the contrary the learned Judges while considering the rules for the services of Punjab without the note observed that the said rule, `merely affirms the principle that on the attainment of the age of 55 Years a Government servant who is not in ministerial service generally becomes physically unfit to discharge his duties. In the case of a ministerial servant where the nature of public duties is to some extent different from that of other Government servants, the age of compulsory retirement is 60 years. The same is the case of Government servants governed by Fundamental Rule 56 (b) (i). The reading of this section makes it quite clear that the ordinary age of retirement of a ministerial servant is 60 years unless found to be inefficient at the age of 55." The question in the above Lahore case related to a Deputy Collector in the Irrigation Department of the Province who was to retire on attaining the 55th year. Under the rules governing his service the Provincial Government had retained the right to compulsorily retire an officer after he had completed 25 years' qualifying service. It was held that when Government could act under that rule it was not necessary for it to state any reason or communicate it to the Government servant concerned as to why he was being retired and that the order of retirement in such a case did not amount to a removal within the meaning of S. 277 of the Government of India Act, 1935 for which a regular enquiry was necessary under S. 240 of the said Act. That was not a case of a ministerial servant. That being so, the observation that in the case of a ministerial servant the age of compulsory retirement was 60 years was obviously meant to bring into prominence the fact that under the rules the officer in that case had to retire on attaining his 55th year. It is not fair to the learned Judges to regard this observation as their considered opinion on the present question which was not before them. This decision was distinguished in the present case on the ground that there was a note in the Punjab rules to the effect that Government retain an absolute right of retiring a servant who had put in 25 years' qualifying service which the learned Judges deciding that case considered as forming part of conditions of service while in the present case such a note did not appear in the conditions of service or any other rules applicable to the service to which the respondent belonged. It was, therefore, held by the learned Judges in the present case that the reasoning in the above decision did not apply. That the present case was not governed by a similar rule of compulsory retirement after 25 years of service was the contention or the learned advocate for the respondent before us, but under rules 465‑A and 465‑AA of the Civil Service Rules (pages 108 and 109 lst Edn.) which apply to Government servants of Central services are found notes to the effect that Government retains an absolute right to retire any officer after he has completed 25 years, qualifying service without giving any reasons. The rules them selves no doubt do not apply to the respondent as he does no come in the lists of officers to which they relate; but the note which is in general terms appears to apply to all officers of the Government of Pakistan. However, as the State does not appear to have relied on it we think we should decide this case on the language of the rule in question, i.e., Fundamental Rule 56 (b) (i). The other decision on the observation in which reliance was placed by the High Court, is that of the Supreme Court of India in Jai Ram v. Union of India (AIR 1954 S C 584). There a ministerial Government servant who had himself applied thrice for retirement from service before attaining the 60th year, but failed to get per mission, succeeded in his fourth attempt, but changed his mind at the last moment. It was held that in these circum stances it would be a useless formality to ask him to show cause under S. 240 (3) of Government of India Act, but in the course of judgment it was observed that it was a possible view to take upon the language of rule 56 (b) (i) of Chapter 9 of the Fundamental Rules that a ministerial servant coming within its purview has normally the right to be retained service till the attains 60th year. But this is hardly a decision on the point. It only refers to a possible view. Turning to the language of the rule we consider that words "may be required to retire at the age of 55" occurring therein clearly indicate that the Government has the right to require the ministerial servant to retire at that stage. After attaining the age of 55 his tenure changes and thereafter it is in the discretion of the Government to continue him till 60 or not. If the intention was that a ministerial servant should be given the right to continue in service till the 60th year subject to his remaining efficient the rule would have been worded to the effect that the ministerial servant might be required to retire if not efficient, The fact that the words used are without any qualification shows that Government is given unfettered discretion in the matter. As for the words that follow, viz., "but he should ordinarily be retained in service" they are clearly advisory and not mandatory. It is significant that the rule does not say that the ministerial servant shall be retained in service. The difference made in this regard between the ministerial servant who entered service before 1st April 1938 and those who joined service after that date does not help the respondent as in both the cases the discretion is vested in the Government. It is of interest to note that in the audit instructions to the rule in question it is stated that the purpose of the rule "is not to confer upon Government servants any right to be retained in service upto a particular age, but to prescribe the age beyond which they may not be retained in service." These instructions are not binding on us, but they show how the rule has been construed in practice, and the interpretation adopted therein is for reasons stated above, correct. We, therefore, consider that the rule gives unfettered discretion to the Government to require a ministerial servant to retire after he has attained 55 years, that it does not give him any right to continue in service after that stage and that therefore Government was not bound to give the respondent an opportunity of showing cause against compulsory retirement. In this view it is not necessary for the purposes of this case to decide the other question, viz., what is the meaning of the expression "removed from service in Art. 181 of the late Constitution" which, we think, should be left for determination in a more appropriate case. We, therefore, set aside the judgment of the High Court and allow this appeal, but we make no order as to cost. A. H. Appeal allowed.