1. G. SAFDAR SHAH, J.-This appeal by leave of the Court is directed against the order, dated 28-5- 1976, passed by the N: W. F. P. Service Tribunal, Peshawar, by which the appeal of the present appellants, against the appellate order passed by the District Judge, Peshawar, dated 16-2-1974, was dismissed.
2. The background of the case is that respondent Sadiq Ali was employed as a Foreman in the Government Printing Press, Peshawar. On 20-6-1970, the Comptroller Government House, Peshawar, placed an order on the said Government Press for the printing of some stationery, but on that date the Manager of the Press was absent. Respondent Sadiq Ali, who was evidently the next senior man after the Manager, expressed his inability to print the required stationery on the ground that necessary arrangement in that behalf did not exist in the said Government Press. However, since the said stationery was required by the Comptroller Government House in connec--tion with an oath taking ceremony to be held on 1-7-1970, respondent Sadiq Ali placed the order in that behalf with a private Printing Press, named, Public Art Press, Peshawar, allegedly on exorbitant rates as also that before placing the said order he had failed to call for tenders from various suppliers in accordance with the Rules contained in the Printing and Stationery Manual, 1960. In due course Messrs Public Art Press, Peshawar, supplied the said printed stationery and submitted its bill fox Rs.
3. 1,937.50. Respondent Sadiq Ali is said to have accepted the said bill without proper scrutiny and thus caused to the Government substantial loss. Upon these facts, Sadiq Ali was charge-sheeted and an inquiry was conducted against him under the West Pakistan Government Servants (Efficiency and Discipline) Rules, 1.960 (hereinafter referred to as the Rules) with the result that he was found guilty and compulsorily retired from service by the `competent' authority, namely, Controller, Government Printing and Stationery Department, N.-W. F. P., vide. Order dated 25-9-1971.
4. Being aggrieved Sadiq Ali challenged the said order in a suit filed by him before the Senior Civil Judge, Peshawar, who vide his judgment dated 9-3-1973, decreed his suit holding that the said order of his compulsory retirement passed by the Controller, Government Printing Press, was without jurisdiction and so he continued to remain in the Government employment. The appellants went in appeal against the judgment of the learned trial Judge before the District Judge, Peshawar, but the same was dismissed vide his judgment, dated 16-2-1974. Finally, on the coming into force of the Provincial Services Act, 1973, the appellants went in appeal before the N.-W. F. P. Service Tribunal, Peshawar, but their appeal was dismissed, vide judgment dated 28-5-1976. It is in this background that a petition for leave to appeal was filed against the said judgment of the Service Tribunal in which it was contended that the Controller Printing & Stationery Department, N.-W. F. P., Peshawar, who had passed the order of compulsory retirement of Sadiq Ali, would be deemed to be the proper authority in that behalf for otherwise "it would create an anomalous situation, in that there would be no authority to take disciplinary action against an employee of the Government Printing Press, Peshawar, although he may be otherwise accused of the violation of service rules".
5. Considering that the contention thus raised on behalf of the appellants appeared to involve a substantial question of law of public importance, leave was granted to the appellants by an order of this Court, dated 6-12-1977, for the consideration of the said question.
6. We have heard Mian Muhammad Ajmal, the learned counsel for the appellants and Sardar Akhtar Ali, the learned counsel for the respondents. Now the only ground on which respondent Sadiq Ali had, in the suit filed by him against the appellants, challenged the order of his compulsory retirement passed by appellant No. 2 was that he had no authority in that behalf, as under the Rules he was not the competent authority. The record would show that the said ground urged by respondent Sadiq Ali was accepted by the trial Judge, the District Judge as well as the Service Tribunal, N.-W. F. P., Peshawar, which in para. 3 of its judgment expressed itself thus :- "(3) It is common ground between the parties that the Controller, Government Printing and Stationery Department, N: W. F. P., Peshawar, who is now appellant No. 2 before us had passed the impugned order of retirement against the respondent. He was not the appointing authority and authority competent to suspend, reduce in rank, retire compulsorily, remove or dismiss the respondent. He in fact, was under the rules Appellate Authority for these matters. The appropriate authority competent to appoint and competent to suspend and retire compulsorily the officials of Government Press, Lahore. It is conceded before us on behalf of the appellant that the powers of Superintendent, Government Press, Lahore were not delegated to the Controller, Printing & Stationery who remained being appellate authority was not competent in law to suspend the respondent and to direct an enquiry resulting in his compulsory retirement. Theimpugned order passed by him is obviously without jurisdiction and is nullity in the eye of law. The entire enquiry proceedings were undertaken without a legal basis and cannot be sustained. It beingso, we need not go into the merits or demerits of the report submitted by the Inquiry Officer against the respondent as it is of little legal value.
7. In the result the appeal fails and is dismissed. The parties are left to bear their own costs."
8. The learned counsel for the appellants, however, argued that prior to the formation of the now defunct Province of West Pakistan there existed a Government Printing Press in each one of the constituent Provinces, namely, the Punjab, Sind, N: W. F. P. And Baluchistan, run by a Manager, who used to be the appointing authority of all employees working under him; that in connection with any adverse action taken by the Manager against an employee working under him an appeal lay to the Secretary to the Provincial Government in the Development Department; that after the formation of the now defunct Province of West Pakistan the said Managers were replaced by the Superintendent, Government Press, Lahore, as the appointing and removing authority in respect of all non-gazetted employees; that after dissolution of the Province of West Pakistan the authority in that behalf came to be vested in the Controller of Government Printing Press, Peshawar (appellant No. 2) and consequently it was wrong on the part of the Service Tribunal to hold that he was not the competent authority within the meaning of that expression, as used in the Rules, and so the order passed by him for the compulsory retirement of respondent Sadiq Ali was ab initio, void and without jurisdiction.
9. Now if the contention urged by the learned counsel could be supported by him by any law, rule or notification, his position would be unassailable. But he frankly conceded his inability in that behalf saying that he has not been able to lay his hands on any such instrument.
10. The basic question which, therefore, arises is as to who was the com--petent authority in respect of respondent Sadiq Ali, after the Province of West Pakistan was dissolved and instead the Province of N.-W. F. P. Was recreated. In this behalf, the learned counsel for the appellants has placed on the record of the case the Rules framed by the Chief Commissioner, N: W. F. P., on 21-8-1925, according to which the Manager of the Govern--ment Printing Press, Peshawar, is said to be the appointing authority in respect of all persons employed therein, including mechanics, and which expression the learned counsel conceded would include a Foreman which was the appointment held by respondent Sadiq Ali. Now if these Rules were to apply in the case of respondent Sadiq Ali, then evidently the action taken against him should have been taken by the Manager of the Government Printing Press, Peshawar, and not the Controller (appellant No. 2) who was not his appointing authority under the Rules. It seems to us, however, that the Rules framed by the Chief Commissioner, N.-W. F. P. In 1925 have not been resurrected after the dissolution of the Province of West Pakistan, as the learned counsel for the appellants has not been able to show us any notification in that behalf. Reference may, therefore, be made to the President's Order No. 1 of 1970 Province of West Pakistan (Dissolution) Order, 1970 to see if it can be of any help in ascertaining as to who was the competent authority of respondent Sadiq Ali at the time when appellant No. 2 compulsorily retired him from service. In this behalf reference to Articles 4 and 17 of the said Order, would seem to be necessary, which in relevant parts run as under :---- "(4) Constitution of new Provinces, etc.-(1) As from the appointed day, the Province of West Pakistan, as it existed immediately before that day, shall cease to exist and there shall be constituted in its place four provinces to be known respectively as (a) Baluchistan, (b) the North- West Frontier Province, (c) the Punjab and (d) Sind .... ---17. . Persons in the service of Pakistan.-(1) Subject to the provisions of this Order and any order made under Article 20, every persons, not being a member of an All Pakistan Service or a civil service of the Centre, who, immediately before the appointed day, was in the service of Pakistan in connection with the affairs of the Province of West Pakistan, at whatever place be may for the time being be serving, shall be deemed to be serving in connection with the affairs of the new Province in which such place is situated.
(2) Any person who, immediately before the appointed day, was a member of a civil service of the Province of West Pakistan and is, on that day, serving in connection with the affairs of the Centre in the Islamabad Capital Territory or the Centrally Administered Tribal Areas or in any other place not forming part of any of the new Provinces, shall, as from that day, be a member of the corresponding civil service of the new Province to which he may be allocated.
(3) Every person referred to in clause (1) or clause (2) shall be entitled to the same terms and conditions of service as respects remuneration, leave and pension, and the same rights as respects disciplinary matters or rights as similar thereto as changed circumstances may permit, as he was entitled to immediately before the appointed day.
(4) Unless otherwise directed by the competent authority, all authorities and officers, judicial, executive and ministerial, exercising jurisdiction and functions immediately before the appointed day shall, as from that day, continue to exercise their respective jurisdiction and functions."
11. Now by reading these two articles together it is clear :----- "(1) that as from the appointed day (which was evidently a day after 30-3-1970 on which the said President's Order No. 1 was promulgated) the Province of West Pakistan ceased to exist and in its place the four Provinces, namely, Baluchistan, the N: W. F. P., the Punjab and Sind were constituted;
(2) that respondent Sadiq Ali who immediately before the appointed day was in the service of Pakistan in connection with the affairs of the Province of West Pakistan at Peshawar came to be serving in connec--tion with the affairs of the new Province of N: W. F. P. ;
(3) that Sadiq Ali, therefore, became entitled to the same terms and conditions of service as respects his remuneration, leave and pension, and the same rights as respects disciplinary matters or rights as similar thereto which he was entitled immediately before the appointed day; and
(4) that unless otherwise directed by the competent authority, (i.e. The authority appointed under the said President's Order No. 1) all authorities and officers judicial, executive and ministerial, exercising jurisdiction and functions immediately before the appointed day were to continue to exercise from that day their respective jurisdiction and functions. This being the clear scheme envisaged by the said Articles, it would follow that in the absence of any rule or notification made by the N.-W. F. P. Government, resurrecting the Rules made by the Chief Commissioner in the year 1925, the Superintendent of the Government Printing Presses at Lahore as appointed on the coming A into existence of the now defunct Province of West Pakistan, or his, successor would continue to be the competent authority in respect of any disciplinary action which was proposed to be taken against respondent Sadiq Ali, and not appellant No. 2, who had no jurisdiction) to that behalf whatever.
12. We are, therefore, clear in our mind that the successive orders passed in favour of respondent Sadiq Ali first by the learned Senior Civil Judge, Peshawar, followed by the one passed by the learned District Judge, Peshawar, and finally by the N: W. F. P. Service Tribunal are clearly proper and therefore, unexceptionable.
13. This appeal, therefore, fails and is dismissed with costs.