HAFIZ TARIQ NASIM, J.--- Brief facts leading to this writ petition are that the petitioner while serving as Major in Pakistan Army was retired vide order dated 7-3-2000/13-4-2000. Aggrieved by this, the petitioner filed a representation, which was rejected but simultaneously his retirement was converted into dismissal through order dated 13-9-2000. Aggrieved by this, the petitioner filed C.M.
Appeal No,34 of 2002 in Constitutional Petition No, Nil of 2000, wherein the Honourable Supreme Court, vide order dated 6-1-2003, observed:--- "The appellant shall have right to raise the question of mala fides and non-availability of immunity under Article 199 of the Constitution in the constitutional petition if filed before the High Court which question shall be decided in accordance with law declared by the superior Courts on interpretation of Constitution. This constitutional petition has been returned merely with the objection that question of public importance is not involved, therefore, the appellant may approach the concerned High Court and raise all the objections in the said constitutional petition which shall be attended to and determined according to law."
' After the order dated 6-1-2003 passed by the Honourable Supreme Court, the petitioner filed this writ petition.
2. Today, the petitioner despite engaging a counsel (Mr. A.K. Dogar, Advocate Supreme Court. Of Pakistan, who is reported to be busy before the apex Court) insisted for arguing the case himself and submits that he was condemned unheard, before retirement neither any show-cause notice was served nor any opportunity of personal hearing was afforded to him culminating the impugned order of retirement a nullity in the eye of law. Further submits that his representation against the order of retirement was not considered with application of independent mind, rather due to colorable exercise of powers and that too in an arbitrary manner. The petitioner's compulsory retirement was converted into dismissal which otherwise offends the specific provisions of Article 13 of the Constitution and this is a sufficient ground for the quashment of the impugned orders. Further submits that at this moment, he is not interested in reinstatement, his prayer is that dismissal order be declared illegal and the retirement order be restored, so that he can get his pensionary benefits because due to the dismissal order he has been deprived virtually from daily milk and bread and in this era of price hike he is unable to cope with his necessities of life.
3. On the other hand, learned Deputy Attorney-General submits that in view of bar envisaged in Article 199(3) of the Constitution of Pakistan, this Court cannot go into the vires of the impugned orders. Further submits that the impugned dismissal order was passed by the competent appellate authority within its domain exercising its discretion and such exercise of powers are not amendable to the judicial scrutiny, particularly when the discretion is exercised by the competent authority in its wisdom. Adds that in defence services before passing any order of dismissal, there is no requirement of issuance of any show-cause notice or personal hearing, so the petitioner cannot ask for show-cause notice or a chance of personal hearing.
4. Arguments heard. Record perused.
5. It is an admitted position that vide order dated 7-3-2000 the Military Secretary, General Headquarters issued the following letter:--- "It has been decided to retire you from the Army with full earned pensionary benefits. Formal retirement order will be issued in due course of time. This may please be treated as an advance notice."
6. Vide order dated 13-4-2000 the petitioner was struck off duty with effect from 2-7-2000.
7. The petitioner filed a representation/departmental appeal which was rejected vide order dated 13-9-2000 in the following words:-- "Your application has been processed at appropriate (v) and fol. Have been approved by the competent authority:---
(a) Application has been rejected.
(b) You have been dismissed from service under PAA Sec 16."
8. With regard to the question of jurisdiction as raised by the learned Deputy Attorney-General, suffice it to refer the case reported as Mrs. Shahida Zahir Abbasi and 4 others v. President of Pakistan and others PLD 1996 SC 632, wherein the apex Court held:--- "Bar contained in Article 199(3) of the Constitution on the powers of High Court is not absolute in nature---Such bar is not applicable to the cases namely where the impugned action is mala fide or without jurisdiction or coram non judice."
9. In another case, reported as Federation of Pakistan and others v. Raja Muhammad Ishaque Qamar and another PLD 2007 SC 498, the Honourable Supreme Court of Pakistan held:-- "Plea raised by authorities was that in view of ouster clause of Art.199(3) of the Constitution, petition before High Court could not have been entertained--Validity---Order passed by the authorities was found by High Court to be unfair and unjust in view of the notified policy, which amounted to have suffered with mala fide---Extraordinary jurisdiction of the High Court under Art.199(3) of the Constitution can competently be invoked by an aggrieved person if action has been found to be without jurisdiction or coram non judice or mala fide."
10. In another case, reported as Instisar Ali v. Federation of Pakistan and others 2008 PLC (C.S.) 975, this Court has held:--- "Jurisdiction of Courts under the constitutional provision could never be taken away and was always available in case of acts,proceedings or orders which, inter alia, were coram non judice--- Order passed by authorities, declining to reinstate petitioner, was set aside by High Court, as the same was without lawful authority and void."
11. The present case is on better footing in respect of maintainability as the Honourable Supreme Court of Pakistan in this particular case allowed the petitioner to approach the concerned High Court where all the questions shall be decided in accordance with law declared by the superior Courts on interpretation of Constitution.
12. In the light of above discussion, the objection of non-maintainability raised by the learned Deputy Attorney General is repelled.
13. So far the contention of the learned Deputy Attorney General regarding exercise of discretion is concerned, it is well settled law laid down by the Honourable Supreme Court in series of judgments that exercise of powers of discretion must be fair, unbiased and transparent and the word discretion is interpreted by the Honourable Supreme Court in the case reported as Chairman Regional Transport Authority, Rawalpindi's case PLD 1991 SC 14, by holding, "Structuring of discretion---Meaning---Conferment of wide-worded discretionary powers by statute---Need and desirability to structure the discretion.
' A public office is a public agency of trust created in the interest and for the benefit of the people, and since an incumbent of a public office is invested with certain powers and charged with certain duties pertinent to sovereignty, the powers so delegated to the officer are held in trust for the people and are to be exercised on behalf of the Government or of all citizens who may need the intervention of the officer. Such trust extends to all matters within the range of the duties pertaining to the office. In other words, public officers are but the servants of the people and not their rulers. A public officer is amendable to the rule which forbids an agent or trustee to place himself in such an attitude toward the principal or cestui que trust as to have his interest conflict with his duty."
14. In another case, reported as Abid Hassan v. PIAC 2005 SCMR 25, it is held:--- "Functionaries of any Organization or Establishment cannot be allowed to exercise discretion at their whims, sweet will or in an arbitrary manner, rather they are bound to act fairly, evenly and justly."
15. In the background of this case it is found that even before the retirement order, neither the petitioner was served with show-cause notice nor he was allowed to explain his case in person before the competent authority, what to talk of issuance of show cause or affording a chance of personal hearing before passing the dismissal order and this is a sufficient ground for setting aside the impugned orders, being violative of principle of natural justice, which otherwise amounts to violation of fundamental right.
16. If any reference is required, reliance can be placed on Pakistan and others v. Public at Large and others PLD 1987 SC 304, Mrs. Anisa Rehman v. PIAC and another 1994 SCMR 2232 and PIA v. Nasir Jamal Malik 2001=SCMR 934; 2001 PLC (C.S.) 890.
17. In the present case, there is a visible violation of Article 13 of the Constitution which prohibits double punishment/ double prosecution.
18. Admittedly, the petitioner was retired from service by the competent authority vide order dated 7-3-2001/13-4-2000. No doubt, the appellate authority can reverse the Authority's order but before passing such order, if the appellate authority thinks to enhance the penalty then without issuance of show-cause notice and without giving an opportunity of personal hearing the penalty could not have been enhanced and while doing so the appellate authority through order dated 13-9-2000 acted in excess of its jurisdiction, violating the specific provisions of Article 13 of the Constitution, thus the order dated 13-9-2000 cannot hold field on the strength of law laid down in The Director- General (Field), Agriculture Department, Lahore and another v. Haji Abdul Rehman 1989 SCMR 1224 and Shakeel Ahmad v. I.-G. Punjab Police, Lahore and others 2007 SCMR 192.
19. As observed earlier, the petitioner is not interested in reinstatement, rather he is in need of his emoluments of pension etc., thus the order dated 13-9-2000 is declared illegal, without jurisdiction and is set aside, resultantly, the order dated 7-3-2000/13-4-2000 shall hold field and the petitioner shall be entitled to the pensionary benefits as per undertaking in the letter dated 7-3-2000 by the Military Secretary General Headquarters, Rawalpindi. Respondent No,1 is directed to release the petitioner's pension in terms of letter dated 7-3-2000 issued by the Military Secretary General Headquarters.
' Writ petition is allowed in the above terms.