1980 PLP (C (PLC(CS))

"It was further held that when the impugned orders themselves did not contain any charge or stigma against the respondents, it could not be said that their services were terminated by way of penalty merely because an allegation about their inefficiency was made in the office note. This view has also been taken by the Supreme Court in Abdul Karim v. The West Pakistan Province P L D 1956 S C (Pak.) 298 and Noorul Hassan and others v. The Federation of Pakistan P L D 1956 S C (Pak.)

313. Respectfully following the principle of law laid down in the sec: authorities it is held that in the given circumstances there was no need to afford opportunity to the petitioner by way of show‑cause notice." He accordingly pressed for the rejection of appeals. The objection was resisted by the learned counsel appearing for the appellants. It was contended that the expression `public interest' as used in clauses (i) and (ii) W section 12 of the Punjab Civil Servants Act contemplated That it must be reflected in the order that the question had been taken into consideration and the orders should be speaking orders in this behalf. The learned counsel also contended that clause (ii) should be read independently of clause (iii). He also argued that the order is clearly prejudicial to the civil servants concerned inasmuch as it curtailed the tenure of service of the civil servant: prematurely, and was in the nature of punishment and was therefore appealable. However it was conceded that if it was not a penalty then the order was not exceptionable. The learned counsel also argued that the orders passed without hearing the appellants were in violation of the principles of natural justice which were implied in every enactment. Reliance was placed to support this proposition upon P. L D 1965 S C 90 and 1972 S C M R

30. The learned counsel for the appellants also cited 1973 P L C 264 the case decided by the Lahore High Court in the context of Article 1780‑it (A),'(C) of the Constitution of Pakistan of 1962 which was to the following effect : ‑ "(4) A person whose terms and conditions of service are governed by Article 12.7 or Article 154 or Article 176 (not being a member of the Armed Forces of Pakistan) or paragraph (b) of Article 181 Shad. notwithstanding anything contained in this Constitution or in any law or in the terms and conditions of his service, retie from service‑‑‑ (a) 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 and subject to the provisions Article 185 or as the case may be, Article 180, directs ; or (b) If he has completed before, or completes within a period of six months from, the commencement of the Constitution (Sixth Amendment) Act, 1966, the fifty‑fifth year of his age, on such date after such completion, being a date within the said period, as the competent authority may direct, or in the absence of such direction, on the expiry of the said period, or on the completion of the sixtieth year of his age, whichever be earlier ; or (c) in any other case, on the completion of the fifty‑fifth year of the age The appellant contended that the above provisions were identical with section 12(ii) and for that reason the appellants were entitled to be heard. The impugned orders being deficient in that behalf, the appellants had a legitimate and justiciable grievance to maintain this appeal on that ground. The appellant brought to our notice that in most of the cases the requirements as to the show‑cause notice, charge‑sheet and enquiry were never complied with. It was further argued that the appeal was maintainable in respect of the grievance in relation to all the terms and conditions of service of the civil servants including disciplinary matters. According to appellants the order passed under section 12(ii) was clearly a disciplinary measure and was thus appealable. The appellants also argued that the discretion to be exercised under section 12(ii) should be exercised judiciously and not arbitrarily. Any arbitrary exercise of the discretion‑ was liable to be struck down in appeal before this Tribunal. After hearing both the parties we have no hesitation in holding that in case the impugned order was covered by section 12 the appellant could not be treated as an aggrieved person. We agree with the learned Govern ment pleader that if the competent authority chose to retire a civil servant the only difference between clause (ii) and clause (iii) of section 12 of the Punjab Civil Servants Act was the question of public interest. 1t has been laid down authoritatively by the Supreme Court that the Executive Authorities alone are the Judges of the issue of public‑ interest. It was also held in P L D 1970 S C 98 that the order of retirement which did not carry with it any stigma was different from an order of dismissal or removal. We respectfully follow the view laid down by the Supreme Court of Pakistan. We are also of the view that section 12(ii) is as good a term and condition of service of the civil servant as section 12(iii). In fact the scheme of the Act also indicates that the matter with regard to the fitness of a person to hold a particular post which is evidently to be guided by the consideration of public interest is not. allowed to be agitated even at Department level. Section 21 of the Civil Servants Act which provides for the intro‑Department right of representation to the civil servants expressly provides that no representation shall lie on matters relating to a determination of fitness of a, person to hold a particular post or to be promoted to a higher post or, grade. Correspondingly in section 4 of Punjab Civil Servants Act a proviso (b) has been added which is to the following effect :‑‑‑ "Provided that no appeal shall lie to a Tribunal against an order the decision of departmental authority determining the fitness or otherwise of a person to be appointed to or holding a particular post or to be promoted to a higher grade." Reading the above two provisions together the intention appears to be quite evident that besides the penal removals, the question regarding the holding which implied to continue to hold a particular post or not by any civil servant has been left to the exclusive judgment of the competent authority. in view of our findings that the issue as to the public interest is not justiciable before us, the plea of the appellant that the retirement order should reflect the consideration of the same with reasons or that the order was arbitrary‑ looses all its significance. He accordingly hold that if the order falls within the ambit of section 12(ii) it will not furnish any cause of grievance to any civil servant so as to maintain any appeal before us. In this category, of cases, the orders as held in P L D 1976 Lah. 1310, could not be regarded as penal and the affected party had no right to show cause. The view is duly supported by the dictum of the Supreme Court of Pakistan in two authorities reported as P L D 1956 S C (Pak.) 298 and P L D 1956 S C

331. But cases in which the order was passed mala fide or the same failed to fulfil the requirements of section 12(ii) stand at a different footing. It has been authoritatively ruled by the Supreme Court of Pakistan in P L D 1974 S C 151 that an order passed mala fide is a nullity‑and. could not be validated by any legisl ation. In case the mala fide is established, the order could not be deemed to have been covered by section 12(ii) and for that reason it may amount to penal removal and shall be appealable. Similarly if a person had not completed 25 years of service or the authorities who purported to pass the orders under section 12(ii) were not competent to make the order, such cases again may not be covered by section 12 and the action may be tantamount to penal removal and be thus appealable. So far the decision in 1973 P L C 264 is concerned we feel bound to follow the rule laid down in Supreme Court judgments referred to above in P L D 1976 Lah. 1310. We may also note that 1963 P L C 264 fails to take into consideration the aforesaid authorities from Supreme Court of Pakistan which are binding upon all. The upshot of the above discussion is that the appellants who did not raise the issue of mala fide and the inapplicability of section 12(ii) of the Punjab Civil Servants Act of 1974 are not aggrieved persons and appeals in such cases as noted below stand dismissed accordingly: . (1) Mr. Muhammad Sharif v. D. I. G. Police, Multan Range, Multan. (2) Mr. Ahmad Bakhsh Ayaz v. Secretary Local Government and Social Welfare Department, Lahore. (3) Kh. Abdul Rehman v. Deputy Commissioner, Gujranwala. (4) Mr. Atta Ullah Khan v. Deputy Commissioner/Collector, D. G. Khan and others. (5) Mr. M. Amir Muhammad v. Deputy Commissioner, D. G. Khan and others. (6) Mr. Muhammad Abbas Zaidi v. I.‑G. Police, Punjab, Lahore. (7) Mr. Mazhar Hussain Shah v. Commissioner, Multan Division, Multan and others. (8) Mr. Muhammad Afzal Khan v. Director, Housing and Physical Planning Cell, 7 Egerton Road, Lahore. (9) Mr. Muhammad Ishaq v. D. L‑G. Police, Lahore Range, Lahore. (10) Sh. Hussain Ahmad v. Senior Member of Revenue, Punjab, Lahore and others. So far the cases involving the issue of mala fide and inapplicability of section 12 are concerned, the same could not be regarded to be covered by section 12(ii) and are tantamount to an order of removal and in such case g the civil servants being aggrieved persons the appeals ace competent. However even in such cases the decision about the competence of appeal will depend upon our ultimate findings as to whether the appellant in fact succeeded in, each case to establish his plea about mala fide and the inapplicability of section 12(ii) of Punjab Civil Servants Act. Consequently the cases falling in the later category will come up for hearing before its for disposal on merits. Orders accordingly.