P L D 1957 (W (PLP)

RAHMAN, C. J.‑

The petitioner, Muhammad Ehsan, was an Octroi Sub‑Inspector under the Corporation of the City of Lahore. Under the rules of service applicable to him, he was to retire on attaining the age of 55, on the 31st of January 1956. After that date he demanded the payment of his Provident Fund, amounting to Rs. 2,350, and his security deposit of Rs. 50, but he was served with a charge‑sheet, on the 11th of June 1956, to stand an enquiry with respect to certain assessments of octroi tax made by him while he was still in service, and as he failed to put in appearance before the enquiry officer, an ex parte order of dismissal from service was passed against him on the 3rd of November 1956. The order of dismissal was given retrospective effect from the 31st of January 1956. The Corporation further, in view of the dismissal, withheld its own contribution to the Provident Fund of the petitioner under Rule XVI. 4 of the Municipal Account Code vide order of the Administrator, dated the 24th November 1956. The petitioner has, therefore, moved this Court under Article 170 of the Constitution for the issue of a writ of mandamus or any other appropriate writ, order or direction to the Corporation, to make the payment of the whole amount of the Provident Fund and the security deposit due to the petitioner. The petition has been contested on behalf of the Secretary, Corporation of the City of Lahore. It is common ground between the parties that the Civil Services Rules govern the case of the petitioner. A resolution was passed by the old Lahore Municipality on the 17th of July 1926, applying the Civil Services Rules to their own employees. It is further conceded that certain enquiries were proceeding against the petitioner under orders of the competent authorities of the Corporation while he was still in service, but they were not completed when the time of his superannuation arrived. The Corporation went on with the enquiry after that date and purported to dismiss the petitioner by order dated the 3rd of November 1956, which was given retrospective effect. The legality of this order is strenuously assailed by the petitioner. The first rule that calls for attention is Rule 2.5 of the Civil Services Rules (Punjab), Volume I, which reads as under "Age‑When a Government servant is required to retire, revert, or cease to be on leave on attaining a specified age, the day on which he attains that age is reckoned as a non‑working day, and the Government servant must retire, revert, or cease to be on leave (as the case may be) with effect from and including that day." This has to be read with Rule 3'28, which deals with compul sory retirement. The petitioner being a Sub‑Inspector Octroi and, therefore, authorised to assess octroi tax, was not a "ministerial servant' within the meaning of that term as defined in Rule 2.40. That rule prescribes that a ministerial servant means "a Government servant of a subordinate service, whose duties are entirely clerical, and any other class of Government servants specially declared as such by general or special order of the competent authority." It is not claimed that the class of servants, to which the petitioner belongs, was specially declared as a ministerial servants' class by com petent authority, in the present case. His duties not being entirely clerical he was not a "ministerial servant", and this is in fact conceded by learned counsel for the Corporation. The portion of Rule 3.28, therefore, which is relevant to his case, is clause (a), and reads as follows :‑ "Except a s otherwise provided in the other clauses of this rule, the date of compulsory retirement of a Government servant, other than a ministerial servant, is the date on which he attains the age of 55 years. He may be retained in service after the date of compulsory retirement with the sanction of competent authority on public grounds, which must be recorded in writing, but he must not be retained after tine age of 60 years, except in very special circumstances." No order of extension of service was passed in the petitioner's case admittedly. Consequently, on attaining the age of 55, he must be deemed to have retired from Corporation service, op the 31st of January 1956. Learned Counsel for the Corporation tiled to argue that by the mere fact that an enquiry was pending against the petitioner, his service must be deemed to have been extended till that enquiry was com pleted. This contention, if acceded to, would nullify the rule quoted above That rule makes it clear beyond doubt that unless the competent authority passes an order of extension of service, on public grounds which must be recorded in writing, an employee could not be retained in service after the has reached the age of

55. Rule 8 of the Business Rules framed by the Administrator of this local body in 1939, and applied to all Corporation employees by virtue of section 3 of the City of Lahore Corporation Act, 1941, contains a similar provision. There is then no escape from the conclusion that the petitioner ceased to be in the employ of the Corporation on the 31st of January 1956. This being the factual position, the question arises whether the Administrator, of the Corporation could have dismissed him from service by order passed subsequent to that date, giving the order effect from a prior date. No authority has been cited by learned counsel for the Corroboration that the Administrator was competent to pass such an order. On the contrary, their Lordships of the Privy Council in Rangachari v. Secretary of State (A I R 1937 P C 27), made certain' observa tions which clearly demonstrate the illegality of such an order. In that case, a Sub‑Inspector of police was granted an invalid pension by a competent authority and thus duly ceased to be in service: The officer, who succeeded that authority which had granted the pension to the Sub‑Inspector, reconsidered the matter and ordered his removal from service. It was held that the servant had suffered a wrong which was actionable. Lord Roche, who delivered the judgment of the Board, made the following observations :‑-- "It seems to require no demonstration that an order purporting to remove the appellant from the service at a time when, as their Lordships hold, he had for some months duly and properly ceased to be in the service, was a mere nullity and cannot be sustained." In a case decided by the Peshawar Bench of this Court, reported as Dr. Sher Bahadur Khan v. Government of West Pakistan (P L D 1956 Pesh. 77) a similar principle was invoked for holding that the services of a Deputy Director of Health could not be retained after he had reached the age of superannuation, without recording a proper order stating the public grounds which had necessitated extension of service. We have no doubt, therefore, that the order purporting to have been passed by the Administrator on the 3rd of November 1955 and its later confirmation by a subsequent order dated the 24th of November 1956, was a nullity in law. The result must follow that the action taken by the Corporation authorities in withholding their contribution to the Provident Fund of the petitioner and his security deposit, was wholly unjustified. They purported to act under the proviso to Rule XVI. 4 of the Municipal Account Code. This proviso is in these terms :‑ "Provided that if the subscriber, who is required or permitted to subscribe to the provident fund, resigns, within five years of the commencement of his service. except on account of illness or any other cause, which the committee may determine to be a sufficient cause, or has been dismissed from service of the committee, the committee may deduct from the sum standing to his credit in the provident fund, the whole or any part of the contributions made by it to his provident fund and the interest thereon." It is plain that the petitioner has not been legally dismissed from service and, consequently, the proviso is not attracted to the case. The Corporation, therefore, seems to us to have miscon ceived its remedy. It may be able to recover damages from the petitioner by a Civil action if they can prove that he has caused them loss by his conduct while in their service, but they are certainly not entitled to dismiss him after he had retired from their service and to penalise him for such dismissal, in respect of his Provident Fund. We, therefore, allow this petition and issue a direction to the respondent to pay the full amount of the Provident Fund and his security deposit, in accordance with rules, to the petitioner. In view of the circumstances of the case, we leave the parties to bear their own costs. A.H. Petition accepted.