2008 PLP 211 (SCMR)

ABDUL HAMEED DOGAR, J.

This petition for leave to appeal is directed against the judgment, dated 29-6-2006 passed by learned Sindh Service Tribunal at Karachi whereby appeal filed by respondent was accepted and he was reinstated with all consequential benefits. However, the petitioner-Department was allowed to proceed afresh against him.

2. Precisely the facts of the case leading to the filing of instant petition are that respondent Ataullah Anjum joined the Co-operative Department in November, 1969 as Junior Clerk and was subsequently promoted as Sub-Inspector. While serving in such capacity, he was deputed to serve as Office Superintendent with the Ex-Servicemen Cooperative Housing Society Limited, Karachi in the year 1996. The said Society in February, 1997 was superseded by petitioner No.2. The inventory of the items and the record of the society and other items were prepared by the then S.D.M. Gulshan-e-Iqbal, Karachi. After almost five years of supersession of said society-respondent was served with a show-cause notice, dated 10-1-2002 issued by petitioner No.2, to the effect that he has completed 25 years service within the meaning of section 13(1) of the Sindh Civil Servants Act, 1973 (hereinafter referred to as the "Act") and that he is not fit for retention in service and was required to show cause as to why he should not be retired from service for the following reasons:

(1) Twice punished due to cheating, fraud, misappropriation committed in ex-Servicemen Cooperative Housing Society Ltd., Karachi. (2) Illegal and unlawful allotment/transfer of plots. (3) Misappropriation of amount of development charges. (4) Bogus issuance of possession orders. (5) Average official. (6) Not enjoying good reputation. Before submitting reply, respondent moved an application for supply of relevant documents, which were supplied to him vide letter, dated 26-1-2002. In his reply, appellant denied the allegations and explained his position. His reply was not found satisfactory and he was served with final show-cause notice, dated 9-2-2002, which too he replied. He was then called for personal hearing. Ultimately vide order, dated 11-3-2002 respondent was retired under section 13(1) of the Act. The respondent filed departmental appeal which was rejected vide letter, dated 24-2-2005. He preferred service appeal before the Sindh Service Tribunal, which has been accepted by means of impugned judgment. Hence this petition for leave to appeal.

3. We have heard Mr. Muhammad Sarwar Khan, Additional Advocate-General, Sindh for petitioners and Mr. Muhammad Akram Siddiqui, Advocate Supreme Court for respondent and have gone through record and proceedings in detail.

4. Mr. Sarwar Khan vehemently contended that respondent has been retired on completion of 25 years of service in terms of section 13(1) of the Act, as he was found inefficient and no more beneficial for the department. When confronted as to under which provision of law a show-cause notice specifying the above mentioned punishments/ allegations/charges was issued to the respondent, he was not able to reply and was also not in a position to show as to on what basis those allegations were based. It would be beneficial to reproduce section 13(1) of the Act as under:-- "

13. Retirement from service.

(1) A civil servant shall retire from service

(i) 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 public interest, direct; or (ii) where no direction is given under clause (i) on the completion of sixtieth year of his age. (2) No discretion under clause (i) of subsection (1) shall be made until the civil servant has been informed in writing of the grounds on which it is proposed to make the direction and has been given a reasonable opportunity of showing cause against the said direction." From perusal of the above provision of law it is clear that a civil servant shall retire from service on completion of 25 years' service qualifying for pension or other retirement benefits as the competent authority may, in public interest directs, or where no direction is given under clause (i) on the completion of sixty years of age. Under subsection (2) only requirement is that a civil servant is to be informed in writing of the grounds on which it is proposed to make the direction and is provided an opportunity to rebut the same. In any case this cannot be equated with that of compulsory retirement in which case a regular inquiry is contemplated whereas no such requirement is envisaged in the case of retirement within the meaning of section 13(1) of the Act. In forming this view we are fortified by the decision of this Court in the case of Muhammad Qadeer and 2 others v. The Secretary, Defence Production Division, Government of Pakistan and others 2003 PLC (C.S.) 1389. In this case also it has been observed that "under section 13, the Government has clear option to retain or not to retain a civil servant in service after 25 years service. Of course, it is subject to subsection (2) of said section; but the fact remains that under section 13, the Government now is competent to curtail the service period to above extent, which otherwise would have gone to 60 years of age. Once it is established that the Government has correctly exercised its powers under section 13, the Tribunal would have no power to grant any extension in service for the simple reason that the powers so exercised by the Government conclusively retains within the domain of teens and conditions of service".

5. For the foregoing reasons and discussion we see no merit in this petition which is dismissed and leave refused. S.A.K./G-26/SC Leave refused.