2008 PLP 415 (SCMR)

IJAZ-UL-HASSAN KHAN, J.

The above captioned/appeals under Article 212(3) of the Constitution of the Islamic Republic of Pakistan, with leave of the Court, have been filed by Federation of Pakistan, through Secretary, Ministry of Defence and others, appellants, against judgment, dated 11-10-2004 passed by Federal Service Tribunal, Islamabad, whereby appeals of the respondents were accepted and they were reinstated in service with all consequential benefits.

2. Sub-Engineers Muhammad Ashraf (respondent in C.A. No.1598 of 2005), Muhammad Khalid Bhatti (respondent in C.A. No.1599 of 2005), Khadim Hussain (respondent in C.A. No.1600 of 2005), Asstt. XEN B&R Muhammad Feroz (respondent in C.A. No.1601 of 2005) and L.D.C. Ghulam Mustafa (respondent in C.A. No.1602 of 2005), au serving in the department of the appellants, were issued show-cause notices calling upon them to explain as to why they should not be compulsorily retired from service with pensionary/retirement benefits, in terms of section 13(1)(i) of the Civil Servants Act, 1973. The replies of the respondents having been found unsatisfactory they were retired from service. Respondents filed departmental appeals before competent authority which remained unresponded. Feeling aggrieved thereby, respondents filed appeals before Federal Service Tribunal, Islamabad. The appeals were accepted and the respondents were reinstated in service with all back-benefits by means of judgment, impugned herein.

3. Leave to appeal was granted by this Court vide order, dated 10-11-2005 to consider contentions raised on behalf of the appellants which are reproduced hereinbelow to appreciate the legal and factual aspect of the controversy:-- "that retirement; simpliciter is distinguishable from compulsory retirement and consequently, the order of retirement passed under section 13(1)(i) of Civil Servants Act, 1973 cannot be equated with the order of compulsory retirement which is a punishment under the Government Servants (E&D) Rules, 1973 and that the retirement either under section 13(1)(i) or (ii) of Civil Servants Act, 1973 qualifying for pension being not in violation of terms and conditions of service, cannot be questioned and concerned civil servant is not an aggrieved person to maintain an appeal under section 4 of the Service Tribunals Act, 1973 against such an order before the Tribunal."

4. Ms. Nahida Mehboob Elahi, learned Deputy Attorney-General for the appellants, contended that the cases of the respondents qualifying for pension/retirement were referred to a Review Committee set up in accordance with the guidelines of the Government for recommendations about their suitability for further retention in service. The Review Committee recommended their retirement under section 13(1)(i) of the Civil Servants Act, 1973. The Competent Authority, Engineer-in-Chief considered the replies of the respondents individually but found no ground for their further retention in service and through order, dated 1-11-2001 retired them from service in the public interest. She added that the Tribunal had no justifiable reason to accept appeals of the respondents and reinstate them in service. She also contended that order of retirement passed by the Competent Authority determining fitness and retention of the respondents in service or otherwise was not appealable in view of section 4(1)(b) of the Service Tribunals Act, 1973. Concluding the arguments, she asserted that the Review Committee scrutinized the service record of the respondents carefully and came to the conclusion that their retention in service was not in the public interest and the Tribunal had no reason to take contrary view.

5. Sh. Riazul Haq, learned Advocate Supreme Court for the respondents in C.As. Nos.1599 to 1601 of 2005, strenuously controverted the view point as canvassed, at bar, by learned counsel for the appellants and supported the impugned judgment for the reasons enumerated therein.

6. After having thoroughly examined the case in the light of the material on record, we have arrived at the conclusion that there is no, ground to interfere with the judgment impugned before us. The Tribunal has recorded a detailed and well reasoned judgment discussing all aspects of the case leaving no room for further consideration. We find ourselves in agreement with learned counsel for the respondents that appellants have mechanically followed the guidelines which were issued by the Establishment Division for the benefit of all the Ministries in order to ensure uniformity of action. Obviously these guidelines are not supposed to be followed in a mechanical manner but to be used as a guideline to scrutinize the entire service record of the civil servant and to arrive at a reasonable conclusion. The total performance of the civil servant is to be kept in view and the penalties, if any, should be weighed as against the overall performance of the civil servant. The respondents' lapses may have been in the nature of human error and, therefore, could not be allowed to outweigh the overall performance of the respondents.

7. In the case of Muhammad Qadeer and 2 others v. Secretary, Defence Production Division, Government of Pakistan, and others 2003 SCMR 1804 this Court made the following observations:-- "The object of section 13 is to improve the efficiency and discipline in the civil service and for that purpose the civil servants, who have completed 25 years' service, yet, have not done anything good for the department, are retired from service. Their retirement, in fact, is in public interest. The civil servants, who for 25 years served with a minimum level of efficiency, cannot legitimately be expected to do better if permitted to continue thereafter. The experience has shown that after completion of 25 years of service, if not all, at least sufficient numbers of them, do not take pain in performing their duties and only want to stay with that short of performance, which may be in their interest, but certainly not in the interest of public. Those, who perform their duties diligently, are even re-employed after they attain the age of superannuation. An efficient civil servant is always an asset and is well looked after, whereas those, who do not possess, such qualities are retired and that too without causing any harm to them. Section 13 is linked with the principles of good governance, which is basic requirement now a day. "

8. In view of the above, finding no substance in these appeals we dismiss the same with no order 'as to costs. S.A.K./F-1/SC Appeals dismissed.