1984 PLP (C (PLC(CS))

Muhammad Saeed Akhtar for Petitioner. Iftikhar Ahmad, Deputy A.‑G. for Federation of Pakistan. JUDGMENT This writ petition calls in question the validity of the Notification, dated 2nd of September, 1980, whereby, in the exercise of the powers conferred by clause (ii) of section 13 of the Civil Servants Act, 1973 (LXXI of 1973), the President was pleased to direct the retirement of the petitioner from service on 16th November, 1980 as he had completed 25 years of service qualifying for pension or other retirement benefits.

2. The impugned notification has been assailed on various grounds taken in the writ petition. The learned counsel for the petitioner, however, wishes to contest the petition only on two‑fold grounds. Firstly, that the impugned notification of retirement is mala fide for reasons stated in para graphs 9 (x) and (xi) of the writ petition which read thus :‑ (x) That Mr. Ghaus Bux Raisani, Taj Muhammad Jamali and Dr. Nasir Sheikh are the influential persons and as the petitioner was conducting enquiry in accordance with law, the said persons managed to get rid of the petitioner and got the petitioner retired by appro aching the higher authorities. The order of the retirement has been passed without the application of independent mind to the facts of the case and has simply acted mechanically, which is in fact against the public interest. Annexure "B" clearly shows that the order has been passed in a colourable of manner.‑ (xi) That the order of the retirement passed against the petitioner is mala fide and has been passed only to help the above‑said accused persons who are being interrogated by the F. I. A. The petitioner was conducting the inquiry and had refused to accept any pressure from the said accused persons. In the compulsory retirement of the petitioner, the higher officers of the Government are invol ved. The Additional Secretary (health), is also involved who had made payments without any measurement. In order to avoid their involvement, they managed to get the petitioner retired from service." Secondly, that the impugned notification of retirement was issued on 2nn December, 1981, whereas, the retirement of the petitioner made effective on 16th November, 1980. It is submitted by the learned counsel for the petitioner that a notification Cannot take effect retros pectively.

3. The learned Deputy Attorney‑General submits that the peti tioner is estopped to raise the question of mala fides. In that, these grounds were not taken at the time of filing the writ petition, although the petitioner was in position to take all pleas including mala fides. This being so, the learned Deputy Attorney‑General submits that the petitioner is precluded to raise this ground by filing an amended writ petition. It is further submitted that the ground of mala fides, is based on a Press report, dated 15th of January, 1981 (Annexure "B"), which report was published sub sequent to the issuance of the impugned notification and, therefore, the same cannot be taken into consideration for the purpose of determining the question of mala fides. It is further submitted that the allegations of mala fides are vague and do not satisfy the test laid down in Saeed Ahmad Khan v. Federation of Pakistan (PLD 1974 S C 151), wherein it was held that the allegations of mala fides must be pleaded with particularity and that no inquiry should be launched on the basis of vague and indefinite allegations, nor should the person alleging mala fides be allowed roving inquiry into the field of the Government for the purpose of fishing out some kind of a case. In the instant case, it is stated that no specific allegation of mala fides has been made against the competent authority, namely, the President of Pakistan and, therefore, in the light of the rule laid down in the precedent case, a roving inquiry into the files of the Government should not be made on the basis of a Press report, dated 15th of January, 1981 (Annexure "B"). It is next contended that in terms of Article 13 of the Provisional Constitutional Order, 1981, irrespective of the fact whether the notification has been mad A retrospectively or prospectively, its validity is not open to challenge on an ground whatsoever, as the President was admittedly the competent authority to pass the impugned order of retirement.

4. I am inclined to agree with the submissions made by the learned Deputy Attorney‑General that in view of the test laid down in Saved Ahmad Khan's case, it is not open to the petitioner to challenge the validity of the impugned order on ground of mala fides, in that, no mala fides has been specifically alleged against the competent authority, namely, the President of Pakistan. There is, therefore, no justification to call upon the other side to produce evidence in its possession.

5. It may be further pointed out that Messrs Ghulam Bakhsh Raisani, Taj Muhammad Jamali and Dr. Nasir Sheikh for whose benefit the impugned order was allegedly passed mala fides have not been impleaded as party to the writ petition and, therefore, in their absence, even otherwise, the ground of mala fides is not tenable.

6. In view of the above, I find no force in the submissions made by the learned counsel for the petitioner. The petition stands abated in terms of Article 13 of the Provisional Constitutional Order, 1981 and is disposed o accordingly. A. E. Writ petition abated.