1. KHILJI ARIF HUSSAIN, J. --- Brief facts to decide the 1, listed petition are that the petitioner was appointed in NED University of Engineering and Technology on 28.10.1979 as Superintendent Transport. In the year 1999 after service of charge-sheet alongwith the statement of allegations Petitioner was inflicted with the penalty of compulsory retirement from service vide order dated 30.12.1999. The petitioner filed Appeal No. 122/2000 before the Sindh Service Tribunal. The said Tribunal vide order dated 7.6.2004 of the order from compulsory retirement to penalty of withholding of increments of three years and directed respondent to reinstate Petitioner in service with effect from 13.08.2004?
2. The respondent No. 2 then served another show-cause notice dated 25.8.2005 upon the petitioner, in which as per petitioner respondent levelled same charges, which they levelled in the charge- sheet dated 4.10.1999. The Show-Cause Notice was recalled by the respondent after receiving reply of the same from petitioner.
3. On 26.09.2005 respondent issued two office letters. By Office Order No. DR (Estab)/(PF-865)/8033 the respondent informed the petitioner that in compliance to Order Sindh Services Tribunal leave period w.e.f. 01.01.2000 to 12.08.2004 shall be treated as leave on half pay.
4. The respondent also issued another office order dated 26.09.2005 informing the petitioner that the respondent No. 2 in exercise of powers vested in him under Section 28(iv) of the University Act 1997 vide Section 46.1(a), Clause 31(a) (i) retired the petitioner with immediate effect on completion of 25 years of qualifying service. The petitioner called in question the order of compulsory retirement before the Sindh Service Tribunal where the appeal was abated in view of the judgment passed by the apex Court and now called in, question by this Petition.
5. Heard Mr. Nawaz Shaikh learned advocate for the petitioner and Mr. Muhammad Tasnim, Advocate for the respondent.
6. Mr. Muhammad Nawaz Shaikh learned advocate for the petitioner after taking us to. Various orders passed against the petitioner argued that in terms of Section 46.1(a), Clause 31(a)(i) option has been given to employee after completion of 25 years of service to opt for retirement and employer has no authority to pass order for compulsory retirement under Section 46.1(a) Learned Advocate in support of his contention relied upon case of lftikhar Ahmed alias Gulla and another v. The State and another (PLD 1999 SC 820)..
7. Mr. Tasnim Ahmed learned advocate for the respondent argued that after completion of 25 years, of service by the petitioner the respondent Authority in exercise of powers vested in them under Section 46.1(a) read 'with Clause 31(a)(i) passed order for compulsory retirement. The learned advocate argued that respondent was not required to issue any show-cause notice before passing of order of compulsory retirement on completion of 25 years' qualifying service. However, when order of retirement was questioned by filing appeal respondent provided opportunity of hearing to petitioner and thereafter dismissed the same on 24.8.2005. It was contended by the learned advocate that respondent acted strictly in accordance with law. Learned advocate further argued that Rules framed by the respondent University are not statutory rules as same were not passed by Parliament and as such petition is not maintainable. In support of his contention learned advocate relied upon Muhammad Qadeer and 2 others v. The Secretary, Defence Production Division, Government of Pakistan and others (2003 PLC(CS) 1389). Riazuddin v. Pakistan International Airlines Corporation & others C.L.R.
8. 1992 SC 531) and Mrs. M.N. Arshad v. Miss Naeema Khan and another (PLD 1990 SC 612).
9. We have taken into consideration respective arguments advanced by the learned advocates for the parties. The Petitioner was inducted as Superintendent Transport on 28.10.1979. By office order dated 26.9.2005 the petitioner was retired from service of the respondent/University with immediate effect on account of 25 years qualifying service.
10. We would like to discuss first preliminary objection raised by the learned advocate for the respondent about the maintainability of the petition on the ground that the rules framed by the respondent are not statutory rules and as such petition is not maintainable. It was contended by the learned counsel for the respondent, that only rules which were passed by legislature/Parliament are the statutory rules and the rules framed by any authority on the basis of rule-framing powers given to them under any Act cannot be termed as statutory rules.
11. NED University of Engineering & Technology, Karachi Act, 1977 was passed by Sindh Assembly duly gazetted in the gazettee of Sindh (Extra-ordinary) on 30th May, 1977. Section 46.1(a) of the Act provided that authority can frame the Statutes to regulate pay scale and the terms and conditions of service of officer teacher and that employee of the university, institutions and pension, insurance, gratuity provident and benevolent fund for such officer, teacher and employee.
12. The respondent University framed statutes in exercise of powers delegated under Section 46.1(a) of the Act, 1977 regarding pay scale, terms and conditions of service of the employees of the University. Clause 31(a) of the statutes framed in exercise of power delegated under Section 46.1 of the Act read as under:--- "AGE OF SUPERANNU ATION"
13. 37, An officer, teacher or other employee of the.
14. University shall return from service:
(i) On such date after he has completed twenty-five years of service qualifying for pension or other retirement benefits, as the competent authority may direct, or
(ii) where no direction is given under clause (i), on the completion of sixty years of age.
15. EXPLANATION: The question, whether rules/statutes-framed by the respondent/University are statutory rules need consideration in this matter.
16. Delegated Legislation permitted by enabling Acts powers appear under different names -without there being any clear demarcation between all- of them. "Rules" and "Orders" are by far the most common name far the most common name under which delegated legislation is permitted.
17. Section 3(47) of General Clauses Act, 1897 define "Rule" means Rule made in exercise of power conferred by any enactment, and shall include a regulation made as a rule under any enactment.
18. The Legislatures possess wide - powers of delegation however legislature cannot delegate essential legislative functions which consists in the determination of choosing of legislative policy and of formally enacting that policy into a binding rule of conduct. What is permitted, therefore,' is the delegation of ancillary or subordinate legislative functions that is to say fill up details. The power delegated by the legislature can be conditional one or without any condition.
19. Mr. Tasnim Ahmed learned counsel for the respondent university relied upon the case of Riazuddin v. Chairman, PIAC and 2 others, PLD 1992 SC 531, Pakistan International Airlines Corporation (PIAC), 2001 SCMR 939. The Hon'ble Supreme Court in the above-referred two matters held:--- "In the present case, the PIAC has the Regulations which have been framed by the Board of Directors of the PIAC, pursuant to the power contained in Section 30 of the Act. However, there is nothing on record to indicate that the above regulations have been framed with the previous sanction of the Central Government or that they were gazetted and laid before the National Assembly in terms of Section 31 of the Act. In this view of the matter, the Regulations cannot be treated as statutory rules of the nature, which would bring the case of the PIAC within the above qualification as to entitle the employees of the PIAC to claim of reinstatement on the ground of breach of the statutory provisions."
20. 1994 SCMR 2232 and Pakistan International Airlines Corporation v. Nisar Malik Jamal, 2001 SCMR 934, while relying upon the case of (supra) among other cases the Hon'ble Supreme Court laid down principle that if violation of any statutory rule or law a Constitutional petition is competent against corporation/corporate bodies etc. The Hon'ble Supreme Court in the case of Anisa Rehman as well as PIAC (supra) held that, "Rules framed by the PIAC relates to work and power to Board of Directors are not statutory rules. The principle laid-down in the above-referred matters are not attracted to the facts of the case in hand. . Sections 30 & 31 of Pakistan International Airlines Corporation Act, 1956 provided that Board may be with previous sanction of the Central Government make rules and regulations not inconsistent with for all matters for which provision is necessary or expedient for the purpose of giving effect provisions of the Act and further that all rules and regulations made under Act shall be published in the official Gazette shall come into force upon special publication and shall laid there after as soon as may be before National Assembly. The condition to place the rule before the National Assembly to make them effective as provided in Pakistan International Airlines Corporation Act, 1956 is not available in NED University. No restrictions or qualifications has, been put on rules making power of authority delegated by NED University Act, 1977.
21. We also find support, in our view, that validly made rules, statutes, regulations under delegated authority shall be deemed to form part of the Act itself for the case Hirjina Salt and Chemicals (Pak.) Ltd. v. The Union Council Gujrat, PLD 1972 Kar. 145 and of Abdul Sattar Chughtai Malik v.
22. Pakistan Bar Council PLD 2007 Lahore 170, where a Division Bench of Lahore High Court held:--- "The Rules framed under the powers conferred by an Act are integral part of the Act and these Rules are called Statutory Rules and these are held to be part of the parent Act. It can do anything if within its scope. The Rules are the Bye-Laws made under the Statutes or Act cannot override the provisions of other Statute. Neither the Rules control the construction to be placed on the provisions of the Act nor they can enlarge the meaning of the Section. The rules are framed under the Act in aid to construction of ambiguous Statutes. The Rules under the Act shall be made by the Authority empowered under the Act to frame the Rules or Bye-Laws. No other authority who is not empowered under the Act make the Rules. A Rule-Making Body also cannot frame the Rules in conflict with or derogating from the substantive provisions of law of Statute under which the Rules are framed.
23. For the foregoing reasons contention of the learned advocate for the respondent, that the petition is not maintainable for want of statutory rules are without any force.
24. Now, coming to the question, whether order dated 26.09.2005 for retirement of the petitioner was in accordance with law. We would like to reproduce Section 37(1) of the Act 1977 and Clause 31(a) of the Statute regarding terms and conditions of service read as under:- 'AGE OF SUPERANNU ATION:
37. An officer, teacher, or other employee of the University shall retire from service---
(i) on such date, after he has completed twenty-five years of service qualifying for pension or other retirement benefits, as the competent authority may direct, or
(ii) Where no direction is given tinder clause (i), on the completion of sixty years of age."
25. The respondent vide office. Order dated 26.9.2005 without making any allegation against the petitioner informed him that in exercise of powers vested under Section 28-IV of the University Act, 1977 and Clause 31(a)(i) the petitioner has been retired from the University service on account of 25 years of qualifying service.
26. 2004 PLC (CS) 707, after taking into consideration Section 13 of Civil Servants Act, 1973, which provided that no direction under Clause (1) of sub-section (1) shall be made only civil servants has been inform in writing of the ground on which it is proposed to make direction and has given reasonable opportunity of show-cause notice against the said direction. The Hon'ble Supreme Court held that procedure to exercise powers under Section 13 of the Act is entirely independent to that of the procedure provided for regular inquiry in case of departmental action against an officer and the competent authority if find himself satisfied that the case of civil servant is covered under instruction .Contained in O.M. 'dated 27.7.2000 can pass an order under sub-section (2) of section 13 by following the procedure provided in sub-section (2) of the said section.
27. 2003 PLC (CS) 1389, the Hon'ble Supreme Court while dealing Section 13 of Civil Servants Act held: "There is a basic difference in terms of compulsory retirement within the meaning of Section 4(b)
(ii) of Government Service Rules, 1973 and Section 13 of the Act under the Rules, 1973 Compulsory Retirement is a punishment, while under Section 13 it is not a punishment and a civil servant under this Section gets all service benefits without any stigma.
28. The object of Section 13 is to improve /the efficiency and discipline in the civil service and for that purpose the civil servants, who have completed 25 years' service, yet have not done anything good for the department, are retired from the service. Their retirement in fact, is in the public interest. The civil servants, who for 25 years served with a maintain level of efficiently cannot legitimately be expected to do better if permitted to continue thereafter. The experience has shown after completion of 25 years of service, if not at all, at least sufficient numbers of .Then, do not take pain in performing their duties and only want to stay with that sort of performance, which may in their interest, bill certainly not in the interest of public. Those who perform their duties diligently, are even re-employed after they attain the, age of superannuation.
29. An efficient civil servant is always an asset and is well looked after, whereas those who do not possess, such qualities are retired and that too and that without causing any harm to them.
30. Section 13 is linked with the principles of good governance, which is basic requirement now-a- days.
31. Learned counsel also argued the order retiring the petitioners is mala fide, as amendment in Section 13 was introduced on 1.6.2000, while these petitions were retired on 3.1.2001 and 12.2.2001.
32. According to him, such order, if any, could be passed with in a few months after said amendment.
33. After completion of 25 years' service and before reaching the age of superannuation, at the most there may be period four to six years. A civil servant is retired under this Section only when he ceases to be efficient or on the basis of past performance, which was unsatisfactory or of -near about said category. The deficiency in performance can occur anytime, therefore, each case shall be decided on its own merits. No hard and fast rules can be laid down, as to when a Government servant shall be retired after completion of 25 years of service. There may be cases that till the age of sixty years, the civil servant may be fit to do their duties at the highest level of efficiency. On the other hand, there may be case of those, who after 25 years of service become a parasite for their department. It is significant to note that the legislature in its wisdom has not fixed any period for retirement but has left it to the discre tion of the competent authority may direct in public interest, a civil servant shall retire. Fixation of any period would not be in accordance with the spirit of Section 13 of the Act. No inference is warranted.
34. For the foregoing reasons petition has no merit and is dismissed in limine. .