This petition is directed against the order dated 12th July, 1978, whereby the re-employment of the petitioner was terminated, by respondent No. 1. Eleven days before the petitioner was due for retirement, after completing his age of superannuation (58 years) in Grade 21, a notification dated 2nd July, 1976, was issued, offering to re- employ him in the same post for a further period of two years. The petitioner accepted that offer. He was duly retired on 13th July, 1976, whereafter he assumed the charge under his re-employment. This fact is stated to have been duly notified by the Government. The petitioner continued to perform his functions till 25th July, 1977, when his service was terminated.
2. No copy of the impugned order was allegedly supplied to the petitioner. The only intimation given later was that his termination had been made under section 11(3) of the Civil Servants Act, 1973, after giving him a termination notice of 14 days. The petitioner thereafter made a representation to the President who allegedly confessed lack of previous knowledge of the action taken in his name. However, as his representation was rejected the petitioner invoiced the Constitutional jurisdiction of this Court.
3. The petitioner, who appeared in person, very ably presented his case and raised the following points:--
(i) the impugned order was neither signed by the President nor authorised by him ;
(ii) the petitioner was no longer a civil servant and so section 16 of the General Clauses Act and not the Civil Servants Act applied
(iii) the impugned order was the result of a quasi-judicial act and so reasons must have been given.
4. As the first objection concerned record, I asked the learned counsel for the respondents to produce the relevant file. He has today brought the original record and has also placed before me its photo-copies. It shows that a report prepared by the Central Board of Revenue, about the working of the investigation zone of the Income-tax Department, of which the petitioner was incharge, was presented to the Chief Martial Law Administrator. It was stated therein that the Central Board received reports about the harsh and undesirable attitude of the petitioner from many quarters. The President saw it and directed that petitioner's service be terminated as per rules. The above order was recorded by C.O.S. to the Chief Martial Law Administrator on 20th July, 1977.
5. It was pleaded on behalf of the respondent that as the Chief Martial Law Administrator, had authorised Major- General K. M. Arif, Chief of Staff to make, issue and execute orders and other instruments or documents in the name and on behalf of the Chief Martial Law Administrator with his approval, the orders, instruments or documents so made, issued or executed, shall be deemed to have been duly made, issued or executed by the Chief Martial Law Administrator. The original authorisation was also produced. The order of the President on a note dated 24th February, 1980, also shows that the President had inquired about the progress of the petitioner's case while it was in this Court. The respondent had drawn my attention to a subsequent report dated 25th March, 1980, whereby the action taken against the petitioner is shown to have been noted by the President when the information of the present writ petition and its defence was placed before him. The respondents have relied on rule 15(4) of Rules of Business made under Articles 90 and 99 of the Constitution too, showing the permissibility of the Prime Minister's orders being obtained in oral discussion.
6. It is to be noted that all official acts and orders must be in writing for the purpose not only of reference and record but the responsibility and the accountability. I have already taken the same view in the case of Munawaruddin v. Federation of Pakistan (). I am supported in my view by a judgment of the Supreme Court in I.T.O. v. Nasim Anwar () that orders, passed in matters which are judicial or quasi-judicial in nature, must appear in the hand and under the signatures of the officer who has made it. This view is fortified by Article 48 of the Constitution which requires that every order passed by the President must be counter-signed by the Prime Minister. Even otherwise, any order passed should be provable from the record and not the oral evidence. This is as provided by Article 99 of the Constitution. The file referred to above, however, does prove that the impugned order had been passed with the approval of the President. It is also in accordance with the Rules of Business, referred to above. There is thus a valid order passed by the President.
7. On merit the petitioner submitted that he was on a contract service governed by Article 173 of the Constitution and not the Civil Servants Act. He sought support in this respect from Col. K. M. Sana v. Government of West Pakistan () wherein contract service of Colonel Sana was recognised under Article 135 of the 1956 Constitution which provision is similar to Article 173. Reference was also made to section 240(4) of the Government of India Act, which is also to the same effect. It is to be noted that there was a decision to appoint Colonel Sana on contract basis. Only details were to be worked out and embodied in a formal document. This is not the position in this case. Again, a service on contract contemplates special terms different from those under ordinary service as observed in the case of Ghulam Sarwar v. Pakistan().
8. After laying this foundation, the petitioner relied on section 16 of the General Clauses Act read with the case of Aziz K. M. Khan v. A. B. A. Haleem (5) to say that the services of the petitioner could be terminated lawfully only by the President who had employed him and none else. Reliance was placed on Ghulam Mohi-ud-Din v.
Chief Settlement Commissioner() and the case of Chanda Begum v. Settlement Commissioner (7) wherein it is observed that the authority must apply its own independent mind to the matter and should neither merely countersign the note of the lower authority nor abdicate its functions to him.
9. The learned counsel for the respondents joined issue on factual as well as legal plane. He relied on the wording of the notification Annex. A' and submitted that it was a temporary service and there was no contract about it. Para. 2 of the notification reads as under :-- "2. Mr. M. Enver Shaukat will be re-employed for a period of two years w.e.f. 13-7-1976 in the same post. His re- employment in Government service shall be treated as temporary employment."
The learned counsel for the respondents also relied on section 11(3) of the Civil Servants Act and pleaded that the termination of service on 14 days' notice was perfectly valid and legal.
10. Admittedly, there was no contract and no terms and conditions were laid down and agreed upon. The fact of temporary employment would not be there if it was on the basis of a contract. The re-employment came about1 2 3 4 6 just before retirement and it took effect immediately after retirement. I find that the re-employment of the petitioner was under section 14 of the Civil Servants Act which reads as under:-- "14.--(1) A retired civil servant shall not be re-employment under the Federal Government, unless such re- employment is necessary in the public interest and is made with the prior approval of the authority next above the appointing authority : Provided. ....................
Annex. 'A' specifically stated that it was a temporary Government service. Section 11(3) of the Civil Servants Act lays down that the services of a temporary civil servant shall be liable to termination on 14 days' notice or pay in lieu thereof. I, therefore, cannot agree that the petitioner was employed on contract.
11. The petitioner then submitted that his acceptance of offer of re-employment conferred a right in him and that the same could be taken away only under a valid and lawful order. He went through the case of Khondkar Ali Afzal v. Pakistan (8). It was held in that case that an order expressed to be in the name of the President and duly authenticated cannot be called in question on the ground that it was not made or executed by the President. The Court further observed that extension of service after age of superannuation is a contract. This position has, howover, substan tially changed. The constitutional protection has been removed and a provision for such an extension has been expressly made in section 14 of the Civil Servants Act. The petitioner then sought support from Pakistani v. Muhammad Himayatullah Farukhi (9) to say that as order of extension had been acted upon it did confer rights which could not be taken away. There is no dispute about the prohibition to take away benefits already accrued but the same does not apply to the rights in future. In any case as the termination has already been held to be in accordance with law, there, should be no grievance at all.
12. The petitioner then urged that terminating his employment was a quasi-judicial act and that reasons to do so were necessarily to be given. He sought support from the case of Ghulam Sarwar v. Pakistan for the first proposition. As for the second he referred to Safi-ud-Din v. Secretary (10) to argue that as the impugned order affected his existing rights and interest, it must have supplied reasons. Reliance was also placed on the case of Shahid Afzal v. Government of Pakistan (11). He then went through Annex. 'E' to say that the refusal to supply reasons on the part of the respondents was unlawful. A case of Muhammad Hayat v. Province of West Pakistan
(12) was also cited to say that reasons must be given when the connection of a person is severed from his office permanently. This allegation is factually incorrect. As referred to in para. 4 above, the respondents did assign reasons and the same do not seem to be unlawful.
13. Undoubtedly, the petitioner has been re-employed after retirement. His case is, therefore, fully covered by section 14 of the Civil Servants Act. Consequently, he is a civil servant and the Service Tribunal has the exclusive jurisdiction in the matter. I have already dealt with in detail the jurisdictional aspect of such cases in Afzal Hussain Syed v. Government of Punjab (Writ Petition No. 2096-S/80) and came to the conclusion that the Service Tribunal established under the Service Tribunals Act, 1973, has the exclusive jurisdiction in the matter at this stage in view of Article 212 of the Constitution. Consequently I think that this petition also is not maintainable.
14. There is yet another important aspect of this case. This petition was filed on 5th August, 1979, whereas the two years period for which the petitioner had been re-employed expired on 12th July, 1978. Thus seeking a mere declaration from this Court, that the action of the respondents was without lawful authority, would be of academic interest only. This Court, however, does not exercise this jurisdiction, only for that end. The only substantial claim, if any, of the petitioner, at this stage, could be for damage for which he shall have to go to the Civil Court. This petition is thus not maintainable for that reason also.
15. Again, if it is to be accepted as valid, that the petitioner had been re-employed on contract service, this Court would not enforce a contractual obligation. The only remedy available to the petitioner would be to claim damages for the breach and he should, therefore, invoke the ordinary jurisdiction of the Civil Courts.
In view of the above there is no force in this petition and the same is dismissed. As the petitioner has agitated this matter against his employer, there will be no order as to costs.
PLD 1979 Lah. 699 PLD 1966 SC 775 PLD 1962 Lah. 509 PLD 1962 SC 142 PLD 1957 Kar. 496 PLD 1964 SC 829 PLD 1977 SC 503 PLD 1959 Kar. 105 PLD 1969 SC 407 PLD 1958 Pesh. 157 PLD 1977 Lab. 117 PLD 1964 SC 321