1976 PLP 604 (PLC)

The petitioner eras directly appointed as Inspector of Police in the former Bahawalpur State on 10-3-1950. According to him he was illegally removed from service on 26-2-53 and this order of his removal was challenged by hill, in the civil Court through a civil suit, being Suit No. 163 of 1958. The suit was decreed on 31-5-6t0 and the order of petitioner's removal from service was declared illegal and of no effect. He was also found entitled to be re-instated on his former post and to be placed in a grade or rank as if the order of his removal had never been passed. This decree of the learned trial Court was upheld in appeal by the District Judge as well as by the High Court in the second appeal (R. S. A. No. 429/B WP-61, decided on 26-9-1972). 2, According to the petitioner after his removal from service by the former Bahawalpur State Government he joined Police service at Karachi, Under the compelling circumstances, as Sub-Inspector of Police on 5-8-1953. He was confirmed in that post on 21-4-1960. He was made Inspector of Police in Karachi Police on 26-10-7l, which post the petitioner held till his transfer to the Punjab Police and his re-instatement as Inspector of Police in compliance with the decree awarded in his favour by the learned trial Court. It is also admitted by him that he has been paid the arrears of salary due to him under the Rules.

3. Although the petitioner was re-instated as Inspector of Police with effect from 26-2-1953, but his seniority was not determined and his rank and grade according to his seniority was not fixed in spite of the fact that he made several representations to that effect to the authorities concerned. He ultimately filed Cr. Original No. 36 C/75 in the High Court and prayed for doing the needful in that behalf. The said matter was dealt with by this Court and disposed of on 1-7-1975. During the proceedings, Assistant Inspector-General of Police (Est.), Khawaja Ahmad Ali, who was present in the Court admitted that the representations made by the petitioner for determining his seniority in service bad been duly received by the Office of the Inspector-General of Police and the Provincial Addl. Chief Secretary, who was Chairman of the Selection Board, had been approached on the basis thereof to decide the matter at an early date. He further stated that no reply had been received to the communications addressed to the Additional Chief Secretary. He while making the statement promised that the matter in this regard would be pursued and the Addl. Chief Secretary would be requested to decide the case of the petitioner with regard to his seniority as early as possible. At this, after bearing the statement of the Assistant Inspector-General of Police, the learned counsel for the petitioner in the Cr. Original did not press the petition as his client felt satisfied that his case with regard to seniority would be decided as early as possible. The Cr. Original was, therefore, disposed of as such.

4. Thereafter the petitioner learnt that his case for retirement had been snt to the Departmental Advisory Committee, consisting of Additional Inspector-General, Police (Crimes Branch) as Chairman and Mr. Abdul Qayyume, D. I. G. (Crimes Branch) and Mr. Manzoor Ahmad, D, I. G. (Headquarters) as members. He further learnt that the said Committee bad recommended his retirement from service on the ground of his having completed 25 years of service. He also came to know that the orders of his retirement had been passed and were likely to be issued and served upon him any time. He accordingly filed the present petition and invoked the extra ordinary jurisdiction of this Court fot the redress of his grievance. According to him, hz was being retired in mala fide exercise of the powers under the law by the respondent, in order to avoid and frustrate the decree of the Court Passed in his favour.

5. A preliminary objection has been raised by the learned counsel that since alternate remedy by way of appeal to the Services Tribunal. Constituted under the Punjab Administrative Tribunals Act, 1974, is available to the petitioner against the impugned order, therefore, he cannot invoke the extra ordinary jurisdiction of this Court. Section 4 of Punjab Administrative Tribunals Act provides that any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service including disciplinary matter may within thirty days of the communication of such order to him, or within six months of the establish ment of the appropriate tribunal, whichever is later, prefer an appeal to the Tribunal. Clause (b) of section 4 further provides that no appeal shall lie to the Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher post or grade. In the present case, as discussed above, the order of removal of the petitioner was found to be illegal and void by the learned trial Court and decree in this behalf was granted in his favour. He was found entitled to be reinstated on his former post and to be placed in a grade or rank as if the order of his removal in 1953 had never been passed. After the dismissal of the second appeal filed by the West Pakistan Government against the peti tioner, the judgment and decree awarded in favour of the petitioner became binding upon the respondents. The petitioner has been making representa tions to the authorities concerned for implementing the decree passed in his favour and to determine and fix his seniority and his grade and rank according to his seniority in service. His representations had been duly received by the Office of respondent No. 2 and had been forwarded to the Additional. Chief Secretary to the Government of Punjab being Chairman of the Selection Board concerned for deciding the matter. It is admitted, that the matter regarding petitioner's seniority and fixation of his grade and rank accordingly has riot been decided so far. While the said matter was pending adjudication the impugned order compulsorily retiring him had been passed. The order impugned in the present proceedings as such is not final in respect of petitioner's terms and conditions of service. It has also not been found that the petitioner is otherwise not fit to be promoted to a higher rank. Even otherwise, the petitioner seeks a direction to be issued to the respondents to decide the matter v6th regard to his seniority and fixation of grade or rank first. He further seeks declaration that in the absence thereof his case for compulsory retirement could not be referred to the Advisory Committee and the said Committee thereon could take no decision. It is obvious that the Services Tribunal cannot make such direction and this Court in exercise of extraordinary jurisdiction, if warranted by law, can grant declaration and such relief. In this view of the matter preliminary objection having no force is hereby overruled.

6. Further, Article 212 of the Constitution of Islamic Republic of Pakistan provides that Administrative Courts or Tribunals would exercise exclusive jurisdiction in respect of matters relating to the terms and conditions of persons who are or have been in the service of Pakistan, including disciplinary matters. The provisions of this Article have been extended to the Services Tribunals established under the respective Acts of Provincial Assemblies of Punjab, N. W. F. P. and Sind. The terw^ and conditions of service of the petitioner having not been determined in accordance with the judgment and decree passed in his favour, as referred to above, by the concerned authority, the petitioner cannot approach the Services Tribunal in relation thereto. His grievance is that no order under the relevant provision of law compulsorily retiring him can be passed unless his case determining his seniority, grade and ra3k in accordance with the decree passed in his favour is decided.

7. It is admitted on record that the order in question against the petitioner has been passed under section 12 (ii) of Punjab Civil Servants Act of 1974, as amended by Punjab Civil Servants (Amendment) Act of 1975. The amended provision of section 12 ibid reads as follows:- "Retirement from service.-A civil servant shall retire from service- (i) in the case of a person holding a post equivalent to the post of Additional Secretary to Government of Pakistan or a higher post, on such date as the competent authority may, in the public interest, direct; (ii) in any other case, on such date after to has completed twenty-five years of service qualifying for pension or other retirement benefits, as the competent authority may, in the public interest, direct; or (iii) where no direction is given under clause (i), or clause (ii) on the completion of fifty-eight years of his age." Clause (ii) of section 12 will be applicable in the case of the petitioner, as he has completed 25 years of service. The question arises as to whether the petitioner has qualified in the given circumstances for pension or other retirement benefits as provided by the said provision of law. If he has not,, qualified for pension or other retirement benefits, then irrespective of the fact whether he has completed 25 years of service, he cannot be retired compul sorily even though public interest so desires. He has been retired by the impugned order as Inspector of Police while he has been making representa tions for deciding his case with regard to seniority, grade and rank in accordance with the decree passed in his favour. It is true that promotion to a higher rank cannot be demanded by way of right, but it cannot be denied that demand for a decision in relation thereto is a vested right. It can be asked in the absence of any decision with regard to petitioner's seniority, grade or rank, "for how much pension or what retirement benefits he ha qualified for?" If be is found entitled to further promotion and his rank is fixed higher than Inspector of Police then obviously he will be entitled to higher amount of pension. The petitioner's case with regard to such matters being sub judice and under adjudication, the provision as contained in section 12 (ii) of the Punjab Civil Servants Act, 1974 as amended by Punjab Civil Servants (Amendment) Act, 1975, will not come into play. It canpot be said, in the absence of any decision in relation to the matters as referred to above, that the petitioner has qualified for pension or other retirement benefits as Inspector of Police.

8. It has been contended by the learned counsel for the petitioner that sine the relevant file, maintained by the Department, shows that action was taken against the petitioner after examining his service record and the t1spector-General of Police, respondent No. 2, also while agreeing with the Committee s recommendation referred to exigencies of public service and Departmental efficiency, therefore, it was imperative to proceed against the petitioners in accordance with the procedure as laid down in Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, which provide that in the case of major or minor penalties action should be taken after show-cause notice and .due inquiry. I find no substance in this contention in the given circumstances of the case. So far as the order of retirement-dated 9-8-75 is concerned, no reference, whatsoever, has been made to the petitioner's previous record, inefficiency etc. He has teen merely retired from service D under the provisions of law as referred to above without assigning any reason, whatsoever. It was held in The Secretary, East Pakistan Industrial Development Corporation, Dacca v. Md. Serajul Haque (1970 S M R 398) that principle of natural justice requiring affording opportunity of show cause cannot be attracted in the case of a Government Servant whose services were terminated without any charge or stigma on the ground that his services were no longer required. The termination orders in that case did not contain any charge or stigma, By these orders the services were simply terminated with an offer of one month's pay in lieu of notice on the sole ground, as mentioned above, that the services were no longer required by the Corporation. It was therefore, held that these orders could not be regarded as orders terminating the services of the respondents before the Supreme Court by way of penalty. In that case, the learned Judges of the High Court while relying on an office-note of an Executive Officer of the Corporation took the view that the respondents' services were terminated by way of penalty. In that note it was stated that some of the employees of the Corporation, including the two respondents, had certain general deficiencies and their services were, proposed to be terminated. It was held that though it was true that an allegation about the inefficiency of the respondents was there in the said note, but the orders terminating their services were not founded on the said allegation. 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 in efficiency was made in the office note. The Supreme Court in Abdul Karim v has also taken this view. The West Pakistan Province (P L D 1956 S C (Pak.) 298) and Noorul Hassan and other v. The Federation of Pakistan (P L D 1956 S. C (Pak.) 331) Respectfully following the principle of law laid down in the said authorities it is held that in the given circumstances there was no need to afford an opportunity to the petitioner tries way of show-cause notice.

9. The above discussion would show that the petitioner has not qualified for pension or other retirement benefits under section 12 (ii) of Punjab Civil Servants Act of 1974, as his case with regard to seniority, grade and rank has not been decided as yet in accordance with the judgment and decree of the Court. In the absence thereof he cannot be deemed to have qualified for question and other benefits, as it cannot be said at this stage how much pension and other benefits will accrue to him after the determination of his seniority.

10. For the aforesaid reasons, the order of the retirement of the petitioner passed by the respondents is hereby set aside being contrary to law anal without jurisdiction. They are directed to decide first the matter with regard to petitioner's seniority, grade and rank in accordance with the civil Court's judgment and decree and then see if the petitioner can be retired in the given circumstances under the relevant provision of law. The writ petition is accepted, but the parties are left to bear their own costs in the peculiar circumstances of the case. Petition accepted.