The petitioner was served with a notice on 30th January, 1980 (Annexure J) by the Chairman, Railway Board, whilst working as P-Way Instructor, Walton Training School in Grade 16 in Civil Engineering Department of the Pakistan Railways that since he has completed 25 years of service qualifying for pension or other retirement benefits, he shall in public interest retire from service with immediate effect or with effect from the date of expiry of the leave preparatory to retirement admissible to him provided such leave is applied for by him within 15 days from the date of the notice. The petitioner accepted the retirement and applied for leave preparatory to retirement vide his application dated 9th February 1980 (Annexure 1). The L. P. R. Was duly sanctioned by the competent authority on 20th February, 1980 and the petitioner was informed accordingly. In consequence, the petitioner has already availed of the period of L. P. R. Permissible to him under the Rules. Notwithstanding the fact that the retirement order was acted upon, the petitioner by an application dated 31st March, 1980 (Annexure R) expressed his desire to withdraw his application for L. P. R.
2. This Writ Petition has been directed to challenge the order of retirement of the petitioner dated 30th January, 1980 passed by the Chairman Railway Board (Annexure J) and the order of sanction of L. P. R. Dated 20th February, 1980 and all subsequent actions and orders of the respondents in not recalling orders of his retirement, cancellation of L. P. R. Refusal to promote him as A E N being without jurisdiction, against law, Without legal authority and of no legal effect.
3. Be that as it may, the preliminary question that requires consideration is whether in terms of Article 13 (1) of the Provisional Constitution Order, 1981, the petition stands abated.
4. The learned counsel for the petitioner contends that the petition is not hit by Article 13 (1) of the Provisional Constitution Order, inasmuch as, the abatement takes place only when three-fold conditions precedent are fulfilled, firstly ; the person compulsorily retired must be a civil servant, secondly ; there is in existence an order of compulsory retirement and thirdly ; that the order of retirement is passed by the competent authority. The learned counsel for the petitioner submitted that although the petitioner was in the service of Pakistan when he was retired from service under the impugned order of the Chairman, Railway Board, the petition does not stand abated because the order of compulsory retirement has not been made by the competent authority, inasmuch as, the petitioner being in N.P.S. No, 16, could only have been retired from service under the order of the Railway Board in terms of instruction No, 805, Note 1, (H. Qrs. No, 831-E/618-VII-E-1), dated 2nd July, 1977, at page 259 of the Pakistan Personnel Manual, Volume I which envisages that the case of employees working in N. P. S.-16 and above whose retention after 25 years service is not considered desirable should be referred to the Railway Board for a decision It was next contended that the petitioner is a workman under the Workmen's Compensation Act, 1923, and was, therefore, not a Civil Servant, as defined in section 2 of the Civil Servants Act, 1973. Mr. Altaf Hussain further submitted that the marginal heading to Article 13 of the Provisional Constitution Order, 1981 should be invoked in ascertaining the true intendment, scope and object of the lawmaker and that it is apparent from the heading to Article 13 that the pending proceedings abate only in respect of orders of retirement of civil servants. The learned Deputy Attorney-General also supports the petitioner on this point and submitted that section 13 of the Civil Servants Act, 1973, alone provides for retirement of civil servants on completion of 25 years of service qualifying for pension and, therefore, the petition abates only if an order of retirement has been made under section 13 of the said Act.
5. As regards first contention, Mr. Ismail Bhatti, the learned counsel for the Pakistan Railway Board has rightly submitted that the instructions cannot override rule 2046 of Pakistan Railway Establishment Code, Volume II, which empowers the competent authority to pass orders for retirement of any railway servant on completion of 25 years of service qualifying for pension and that in terms of the said Rules, the competent authority means the appointing authority or a person duly authorised by the appointing authority in that behalf, not being a person lower in rank than the Railway servant concerned. Mr. Altaf Hussain further submitted that the appointing authority of the petitioner was the Chief Engineer and not the Chairman. No document has, however, been placed on record to show that the Chief Engineer was the appointing authority of the petitioner. In any case, the Chairman, Railway Board, being the Chief Executive and not being the person lower in rank than the petitioner was competent to pass the impugned order. Mr. Ismail Bhatti has also placed on record a copy of notification bearing No, 940-E/L-XXIV (E. III/ Acme) dated 23rd July, 1979 which clearly shows that the petitioner was promoted in R NSP No,-16 with effect from 1st May, 1979 with the approval of ft Chairman Railway Board. This being so, the Chairman, Railway Board was the competent authority within the meaning of the Explanation to rule 2046 of the Pakistan Railway Establishment Code, Volume H. The petitioner has also placed reliance on Notification No, S.E.O. 399 (I)/79 dated 10th May, 1979 whereby in exercise of powers conferred by section 25 of the Civil Servants Act, 1973, the President amended rule 6 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973. Under the aforesaid rule, the Secretary of the Ministry or Division concerned or the Head of Department provided he is an Officer in Grade No, 20 or above is the authority competent to make appointments in Grades 3 to 16, provided that the President may designate an officer in Grade 18 or Grade 19 in a Ministry, Division, Department or Office to be appointing authority for Grades 1 to 16 in the Ministry, Division, Department Office. The Chairman, Railway Board is an Officer above Grade 20 and was, therefore, the appointing authority even in terms of the amended rule 6 ibid. There is, therefore, no substance in the plea of the petitioner that the Chairman, Rail way Board was not the appointing authority of the petitioner. In the instant case, however, as earlier pointed out, the petitioner was promoted in Grade 16 under the orders of the Chairman, Railway Board. The petitioner has not assailed the validity of the order of his promotion and, therefore, the petitioner is estopped to challenge competency of his promotion in Grade 16 made under the orders of the Chairman, Railway Board.
6. As regards the words "civil servants" in the marginal heading, it cannot be invoked to construing the enacting provisions of Article 13 of the Provisional Constitution Order. The function of Pakistan Railway Board rendering public utility services comes within the purview of state functions of the Federal Government which retains effective control over its functioning. The subject of Railway is covered under item I, Part II, Fourth Schedule of the Federal Legislative Lists. It, therefore, falls within the ambit of the phrase, "performing functions in connection with the affairs of the Federation" and therefore, a railway servant means a person in the service of Pakistan within the meaning of Article 13 of the Provisional Constitution Order, 1981. Reference may be made to Salah-uddin and 2 others v. Frontier Sugar Mills & Distillery Ltd., Takht Bhai and others . The Constitution document is to be interpreted on the basis of its own definition and 'words used therein and not with reference of any other enactment. The provisions of the Constitution cannot be controlled by a law, unless it says so expressly or by necessary " implication. The definition clause has effect of declaratory provision and governs all cases coming within its ambit. Refer Pramatha Nath Chowdhury and 17 others v.
Kamir Mondal etc. The meaning of term, "in the service of Pakistan" has been defined in Article 260 of the Constitutions, in clear and unambiguous words and Courts cannot go beyond that expression as an aid to finding out the true legislative intendment. In, Ghulam Sarwar and others v.
1mtiaz Nazir and others it was held :- "The intention of the Legislature has to be judged by the actual words used in the enactments. It may be that even though the Legislature may have originally intended to provide for a certain matter, it may have failed to achieve that result, in view of the language used."
7. Article 13 of the Provisional Constitution Order, 1981, applies to any person who is holding a civil post enumerated in Article 260 of the 1973 Constitution, that is to say, to a person who is in any service, post or office, in connection with the affairs of the Federation or of the Province, and includes an All-Pakistan Service, and any other service declared to be a service of Pakistan by or under Act of Parliament or of a Provincial Assembly ; and has been retired on completion of twenty-five years of service qualifying for pension under the orders of the competent authority. This is the only precondition to the abatement of proceedings. The petitioner fulfils all the conditions laid down in Article 13 (I) of the Provisional Constitution Order, 1981, inasmuch as, the petitioner being a railway servant, is in the service of Pakistan. He has been retired from service under the orders of the Chairman, Railway Board who was competent to order his retirement as the petitioner had admittedly completed twenty-five years of service qualifying for pension or other retirement benefits.
8. In view of the above, the petition stood abated under Article 13 (1) of the Provisional Constitution Order, 1981. The same is, therefore, disposed of accordingly. PLD 1975 SC 244 PLD 1965 SC 434 PLD 1167 SC 559 1 2 3 1 2 3