S. ABDUL JABBAR KHAN (CHAIRMAN).-Abdul Hayee Niazi, retired Sub-Inspector of Police, Lahore Range, has filed this appeal under section 4 of the Punjab Civil Service Tribunals Act, 1974 wherein he has impleaded the Superintendent of Police (Admn.), Deputy Inspector-General of Police, Lahore Range and Inspector-General of Police, Punjab as respondents. By virtue of this appeal he has prayed that the impugned order dated 6th January, 1980 as well as the substituted order bearing the same number and date may be set aside as being without jurisdiction and without any legal effect. It has been further prayed that' the appellant may be re-instated in service with all the back benefits.
2. The brief facts of the case are that while the appellant was posted as Sub-Inspector of Police in Lahore Range he was served with the impugned order that he has been retired by D.I.-G., Police, Lahore Range in exercise of the powers conferred upon him by clause (ii)of section 12 of the Punjab Civil Servants Act, 1974 as a person who had completed 25 years of service qualifying for pension and other rights. He was further asked to apply for leave preparatory to retirement within 15 days from the service of said order. The appellant aggrieved against this order filed a representation before the 1.-G., Police, Punjab and waited for 90 days to receive its reply but the same being not forthcoming he chose to file an appeal before this Tribunal.
3. We have heard the learned counsel for the appellant as well as Mr. Azam Rasool, learned counsel for the respondents and have perused the record of this case with their assistance. It has been urged on behalf of the appellant that the impugned orders are liable to be set aside on the following grounds :-
(I) that the order of retirement has been passed by the D. I.-G. Police Lahore Range who is not ..e competent authority under section 12(11) of the Punjab Civil Servants Act, 1974 and the substituted order was been passed at a much later stage to save the earlier order from being annulled,
(ii) that the appellant's seniority in Regular Force shall have to be counted from 15t1 "March, 1959 when he was appointed afresh as A. S. I. And his previous service relating to the years 1954-59 could not be treated as qualifying service for pension and other benefits. In a way the retirement of the appellant was premature as he had not completed 25 years of service on 6th January, 1980,
(iii) that an unusual procedure was adopted enforcing his retirement out of malice.
4. On the other hand Mr. Azam Rasool, learned counsel for the respondents, has resisted this appeal on the sole ground t! At with the promulgation of Provisional Constitutional Order, 1981, Article 13, the appeal stands abated.
5. We have given or anxious thought to all the contentions raised by the parties and would proceed to first of all resolve whether the stand of the learned counsel for the respondents is justified or not.
The plain reading of article 13 of Provisional Constitution Order of 198 1 reveals that in cases where a civil servant has completed his 25 years of service and is retired by a competent authority only then on any ground whatsoever, no appeal will be entertained either by the Supreme Court, or High Court or the Service Tribunal. In the present case before us the pleas taken by the appellant are that he had not completed 25 years of service and the retiring authority in his case was not competent to do so. Therefore, we have no hesitation to repeal the stand taken by the learned counsel for the respondents that the present appeal stands abated. We are proceeding to look into this appeal in accordance with section 13 of the Provisional Constitution Order, 1981 which makes it incumbent upon us to resolve whether a civil servant has completed 25 years of service and the authority so retiring him was a competent authority in his case. We will advert later to plea of malice which has also been raised in this case as to its scope in view of the words used "any ground whatsoever"
We are fortified in or above view when we look into section 12(ii) of the Punjab Civil Servants Act, 1974 which is the basis of such retirements I the case of civil servants and find that the two pre- requisites in that section are completion of 25 years of service and order being passed by the competent authority viz, appointing authority.
6. With regard to the merits of the case and the contentions raised there by the learned counsel for the appellant we will first deal with the issue whether the impuged order of 6th January, 1980 passed by the D. 1.-G., Police, Lahore Range can be sustained or not. It is an undisputed matter that the competent authority with regard to the appellant to retire him from service would be the Superintendent of Police and not the D.1.-G .Police This question of law has not been disputed even by the learned counsel for the respondent. However, his plea is that this was an error committed by the clerical staff and was immediately rectified without any loss of time when the S. P. (Admn.) substituted his own order of retirement under section 12(ii) of the Punjab Civil Servants Act, 1974 added by the following phrase "To be substituted for the order bearing the same number and date".
The learned counsel for the respondents has gone to the extent to contend that in fact the substituted orders were passed on the very day and thas it condoned the clerical mistake so committed in this case. We would have accepted this argument of the learned counsel for the respondents as "to err is human" but when we look into the two documents, marked C/1 and C/2, produced by the appellant now placed on the record that on 9th January, 1980 (Annex. C/2) the appellant was informed through a ver- - nacular parwana that he had been retired by an English Letter No, 742/ 48/B dated 6th January, 1980 from the D. I.-G., Police, Lahore Range and on the strength of the same he was transferred to the District Lahore. Similarly, while going through Annexure C/1 we find that Assistant Superintendent of Police vide his Urdu Parwana dated 12th January, 1980 had informed the appellant that he had been retired by the D. 1.-G., Police and the same information was conveyed to him vide Urdu Parwana No, 463-ES/AS1/P dated 9th January, 1980. He had further informed the appellant that if he wanted to avail of L. P. R. He should do the same within 15 days. There are certain other instructions also incorporated in the said Parwana but these are not relevant for the decision of this case. We can only discuss the said instructions in view of these two documents coupled with the order of the D. Police. It is very difficult for us to agree with the learned counsel for the respondents that the appellant stood retired by the order of the Superintendent of Police and not by the D. I. G., Police, Lahore Range. We gain strength in or present observation when we look into the interim order of this Tribunal passed on 10th November, 1980 wherein it was observed that the Department was not readily in possession of the proceedings as a result of which the retirement order of the appellant was passed by the Superintendent of Police.
The delaying tactics on the part of the Department in the initial stages of this case would also gravely reflect on the assertion made by them today that in fact the retiring order passed by the D.
J.-G. Police was a clerical error and the action taken against the appellant was taken by the S. P.
Who was the competent authority. Keeping all these things in view we are of the considered opinion that the substituted order was nothing but to frustrate the claim of appellant and to defeat the ends of justice. We do not feel happy on this State of affairs on behalf of the Department who in this case is the Government. The learned Judges ofIc. The Supreme Court depreciated this practice in the case Province of Sind through the Secretary Education Karachi and 2 others v. Ghulam Rasool and 35 others as under :--- "Courts expect the Government to but the noblest of litigants and that they would not engage in the litigation in vain much less against its own employees."
Similarly, in the case Divisional Superintendent Pakistan Railways v. Authority, P. W. Act a learned Judge of the Lahore High Court observed in the similar situation "But it must be remembered that the State is no ordinary party trying to win a case against one of its own citizens by hook or crook for the State's interest is to meet honest claims, vindicate a substantial defence and never try to score a technical victory or points or overreach a weaker party, which no doubt a citizen is, to avoid a just liability or secure an unfair advantage simply because or legal system provides ample legal devices for such an opportunity. The State is essentially a virtuous litigant. It must look with unconcern on immoral forensic successes and if on merits the case is weak, State must show a willingness to settle the dispute regardless of prestige and other lesser motivations which move private litigants. In my view the State should be deeply interested not only in justice but social justice as well."
In the instant case what has actually happened is that the Department had not the courage to call an ace an ace and spade a spade. If the order has been passed by an incompetent authority for the reasons which we will discuss later because there is on the record an ample evidence to discuss the same then the best course was to keep it alive and not to take advantage of its superior position to frustrate and defeat the rights so accrued in favour of the appellant by resorting to methods which certainly would be below the dignity of the Government (the Department)D as correctly pointed out by the learned Judge of Lahore High Court quoted above.
There is no doubt left that the impogned order was passed by an incompetent authority (the substituted order will stand merged with the impugned order).
7. Now looking into the plea of premature retirement we do not find the same without force. The appellant who was employed initially as an A.S.I. In the Additional Force was appointed afresh by letter No, 3064 dated 19th February, 1959 and was asked to undergo training afresh. Thus the starting point of his service would be 1959 and not 1954. In this way he would have completed 25 years of service in 1984 and not in the year 1980 as mentioned in the impugned order. Thus he stands impugned from the impact of article 13 of the Provisional Constitution Order of 1981 and1 2 section 12 (ii) of the Punjab Civil Servants Act, 1974. By probing deep into the allegation of malice we have been confronted with a novel situation in this case. We have dealt with large number of cases under section 12 (ii) relating to Police Service and always invariably have found that a Superintendent of Police initiates the retirement proceedings about those officials whom he considers fit for retirement. The matter is put up before the Advisory Committee in the prescribed pro forma who in their wisdom either agree or disagree with the same and it is only after that the Superintendent of Police applies his own independent mind to come to a positive decision. In this case of Abdul Hayee Niazi no such proceedings were shown to us to satisfy the Tribunal that he was not treated unusually but in a usual manner. We are well within or right to presume in the absence of any such record to be produced before us during this long course of litigation between the parties that Abdul Hayee Niazi was retired by the D. I.-G. P. (an incompetent authority) straightaway. The learned counsel for the appellant has assisted this Court to find the reason behind it. A document in the form of Annex. C/3 was place on the record which is .Findings' of Mr. Ghulam Rabbani Qazi, D.S.P./S.111. Fort Lahore dated 21st November, 1979 in which it has been clearly established that one Muhammad Akbar, an Enquiry Clerk of D.I.-G.P.'s office, was after the blood of Abdul Hayee Niazi for certain personal reasons discussed in the said document. This official's attitude was that of a dog in a manger who was always for a look out to keep Abdul Hayee Niazi away from the pleasure of his officers and to manage their displeasure on many occasions.
Therefore, in view of above circumstances the arguments of the learned counsel for the appellant cannot be brushed aside that at this juncture when people were being retired on a mass scale the name of Abdul Hayee Niazi was prompted by him to bring him into grief. However, as held by their lordships of the Supreme Court that the act of malice must be proved positively making 2 x 2=4.
Therefore, we are not relying on this piece of evidence as conclusive to establish an act of malice on the part of the competent authority.
8. In the light of the above discussions when it has been fully established on record that the impugned order so passed by an incompetent authority and that Abdul Hayee Niazi has not completed 25 years of qualifying service for pension and other benefits we proceed to set aside the impugned order and the so-called substituted order of the same date passed by the Superintendent of Police (Admn.) of Lahore Range as void being without jurisdiction and thus of no legal effect. The appellant would be re-instated in service as if he had never, been retired and would be entitled to full benefits of pay and allowances etc. For the intervening period. There will be no order as to costs. 1976 SCM R 297 1981 PLC (C. S.) 66