1. ' KHILJI ARIF HUSSAIN, J.--- Brief facts to decide the 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 along with 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 of 2000 before the Sindh Service Tribunal. The said Tribunal vide order dated 7-6-2004 modified 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 13-8-2004.
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 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 26-9-2005 respondent issued two office letter. 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, 1-1-2000 to 12-8-2004 shall be treated as leave on half pay.
4. ' The respondent also issued another office order dated 26-9-2005 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 Iftikhar Ahmad 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 d and 2 others v. The Secretary, Defence Production Division, Government of Pakistan and others 2003 PLC (C.S.) 1389, Riazuddin v. Pakistan International Airlines Corporation and others PLD 1992 SC 531 and Mrs. M.N. Arshad v. Miss Naeema Khan and others PLD 1990 SC 612.
8. 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.
9. ' 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 rule 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.
10. ' NED, University of Engineering and Technology Karachi Act, 1977 was passed by Sindh Assembly duly gazetted in the Gazette of Sindh (Extraordinary) 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 fund and benevolent fund for such officer, teacher and employee.
11. ' The respondent University framed statutes in exercise of powers delegated under section 46.1(a) of the Act 1977 regarding pay scales, terms and conditions of service of the employees of the University Clause 37(i) of the statutes framed in exercise of powers delegated under section 46.1 of the Act read as under:--- "Age of Superannuation:---
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 under clause (i), on the completion of sixty years, of age.
12. Explanation:--- ' In this section, "Competent Authority" means the appointing authority or a person duly authorized by the appointing authority in that behalf, not being a person lower in rank to the officer, teacher or other employee concerned."
13. ' The question, whether rules/statutes framed by the respondent/University are statutory rules need consideration in this matter.
14. ' 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 under which delegated legislation is permitted. Section 3(47) of General Clauses Act 1897 defines "Rule" means Rule made in exercise of power conferred by any enactment, and shall include a regulation made as a rule under any enactment. 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 sub- ordinate legislative functions that is to say fill up details. The power delegated by the legislature can be conditional one or without any condition.
15. ' Mr. Tasnim Ahmad learned counsel for the respondent university relied upon the case of Riazuddin v. Chairman, PIAC and 2 others PLD 1992 SC 531, Pakistan International Airline Corporation (PIAC), 2001 SCMR 934. The honourable 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 the 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."
16. ' In the case of Anisa Rehman v. Pakistan International Airline Corporation and others 1994 SCMR 2232 and Pakistan International Airline Corporation v. Nisar Malik Jamal 2001 SCMR 934, while relying upon the case of (supra) among other cases the honourable 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 honourable 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.
17. ' Sections 30 and 31 of Pakistan International Airline Corporation Act, 1956 provided that Board may be with previous sanction of the Central Government make rules and regulations not inconsistent with for all matter 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 thereafter 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 Airline 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.
18. ' In Cadet College case (supra) rules were not framed as contemplated by section 17 of the Pakistan Government Educational and Training Ordinance 1960 nor any regulation under section 18 were framed. The honourable Supreme Court held that the rules framed by the Board of Governors in their meeting has not been made by the government regarded as rule under section 17 or be treated as regulation under section 18.
19. ' In the case of First Woman Bank Ltd (supra), staff service rules of the banks were not framed under any delegated authority by some statute, petition was dismissed by the honourable Supreme Court.
20. In the instant matter respondent University in exercise of powers delegation under section 46.1 framed statute in respect of terms and conditions of Service of Technician and its employees and we are of the view that the rules framed in exercise of powers to delegate authority are statutory rules and to be read as part of the Act itself.
21. ' In the case of Messer Video Electronic Pvt. Ltd. And another v. State of Punjab, AIR 1990 820 the honourable Supreme Court of India held that notification having been made in accordance with power conferred by the statutory rules has statutory force.
22. ' In the case of Tata Iron and Steel Co. Ltd. v. Commissioner of Central Excise and Customs AIR 2000 SC 1045, in exercise of power conferred by section 156 of the Custom Act 1962. Central Government framed custom valuation/determination of price of import of goods rule 1988. Interpretative note also provide for the rules framed by the Central Government and while dealing with this question it was held by the Indian Supreme Court that so far as interpretative Note to Rule 4 is concerned it is no doubt true that the Interpretative Rule are part of the Rules hence statutory.
23. ' In the case of Commissioner of Income Tax Bombay v. Messer Gwalior Rayon Silk Manufacturing Co. Ltd., AIR 1992 SC 1782 it was held that rules validly made have the same force as the section in the Act.
24. 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 & Chemicals (Pak)
25. Ltd. v. The Union Council Gharo PLD 1972 Kar. 145 and of Abdul Sattar Chughtai Malik v. Pakistan Bar Council PLD 2007 Lah. 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 Statues. 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.
26. 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.'
27. ' Now, coming to the question, whether order dated 26-9-2005 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 Superannuation:---
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 under clause (i), on the completion of sixty years, of age."
28. 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 37(a)(i) the petitioner has been retired from the University service on account of 25 years of qualifying service.
29. ' In the case of Chairman, Central Board of Film Censors, Islamabad and others v. S. Muhammad Ali Shah 2004 PLC (C.S.) 707, after taking into consideration section 13 of Civil Servants Act, 1973, which provided that no direction under clause (1) of subsection (1) shall be made only civil servants has been informed 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 honourable 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 finds himself satisfied that the case of civil servant is covered under instructions contained in O.M. Dated 27-7-2000 can pass an order under subsection (2) of section 13 by following the procedure provided in subsection (2) of the said section.
30. ' In the case of Muhammad Qadeer and 2 others v. The Secretary, Defence Production Division, Government of Pakistan and others 2003 PLC (CS) 1389, the honourable 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.
31. ' The objection 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 them, do not take pain in performing their duties and only want to stay with that sort of performance, which may in their interest, but certainly not in the interest of public. Those who perform their duties diligently are even re-employed after they attain the age of superannuation. 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. Section 13 is linked with the principles of good governance, which is basis. Requirement nowadays.
32. ' 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 petitioners were retired on 3-1-2001 and 12-2- 2001. According to him, such order, if any, could be passed with in a few months after said amendment. 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 any time, 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 discretion 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 interference is warranted."
33. ' In the case of Government of Sindh, through Secretary, Cooperative Department, Karachi and another v. Attaullah Anjum 2008 PLC (C.S.) 412, honourable Supreme Court held that under subsection (2) requirement is that a civil servant is to be informed in writing of the ground on which it is proposed to make the direction and is provided an opportunity to rebut the same. In any case this cannot be equated with that of compulsory retirement in which case a regular inquiry is contemplated. Sub-para (1) of clause 31(a)(i) is parameter with that of section 13(1) of the Sindh Civil Servants Act, 1973. However, section 13 of the Sindh Civil Servants Act, 1973 required that no direction under clause (1) of subsection (1) of section 13 shall be made only civil servant has been informed in writing of the grounds on which it is proposed to make the direction and it has been given reasonable opportunity to show cause to such direction. In the statutory rules framed in exercise of powers delegated under section 46(1) of the University Act, 1977 the authority passing order in exercise of powers under clause 31(a)(i) are not required to serve show cause notice and/or given reason for passing order on completion of 25 years of service qualifying for pension cannot be termed as illegal order. Section 37 of the University Act also provided that an officer, teacher or other employees of the University shall be retired from service on such date after he has completed 25 years of service qualifying of pension or other retirement benefit. It further appears that aggrieved by impugned order of compulsory retirement on completion of 25 years of service qualifying service the petitioner filed appeal under section 36(1) of the University Act, 1977. After filing the appeal, the petitioner appeared before the syndicate in its 39 meeting and after providing personal hearing to the petitioner appeal was rejected.
34. ' For the foregoing reasons, petition has no merit and is dismissed in limine.