1. ' MUZAFFAR ALI, J.--- We purpose to dispose of the Writ Petitions Nos, 36 of 2010, 39 of 2010, 40 of 2010, 41 of 2010 and 42 of 2010 through this single judgment as all the petitions have been filed against the retirement orders issued by the respondents and all the writs having same questions of law and facts to be determined. The gist of the each writ is stated separately as under:--- ' Writ Petition No,36 of 2010:- The petition has been preferred by two petitioners (1) Saeed Faqir who was appointed in the respondent-corporation under No,247/7B7 on 6-2-1976 as senior clerk and later on promoted to the post of station officer (2) Yousuf Khan was appointed in the respondent- corporation as peon vide Order No,799/21-12-1976. The respondent-corporation retired the petitioners from service on 12-10-2009 vide impugned Order No,HQ5(1)5693.
2. ' Writ Petition No, 39 of 2010:--- Sifat Anous was appointed as senior clerk in the respondent- corporation vide office Order No,OPS/- 10/76/523 dated 11-8-1976 lastly enjoyed the post of Manger operation in the corporation and was retired on 16-6-2010 vide order No,HO/PF/70259 of 2010 (The petitioner passed away during pendancy of the writ petition, the death certificate is attached).
3. ' Writ Petition No,40 of 2010:--- The petitioner Muhammad Yaqoob was appointed in the respondent-corporation on 24-4-1979 as senior account clerk vide Office Order No,458/24(D) 79, lastly he enjoyed the post of Manager Marketing till issuance of the impugned retirement order dated 16-6-2010.
4. ' Writ Petition No,41 of 2010:--- The petitioner Syed Shamsuddin was appointed in the respondent- corporation as Assistant Personal Officer in the respondent-corporation vide office Order No,HO/PF/994/85 dated 20-9-1985 and enjoyed post of General Manager Operations and maintenance till his retirement vide office order dated 16-10-2010.
5. ' Writ Petition No,42 of 2010:--- The petitioner Nadi Ali was appointed as Booking Clerk in the respondent-corporation vide office Order No,33/8(A)79 dated 8-1-1979 was enjoying post of Manager Finance at the time of his retirement vide impugned order dated 16-6-2010.
6. All the above petitioners were appointed under service rules reportedly framed in the year 1974-73 and amended in the year 1993. Provision 25-1 of the said rules envisages the retirement age of the employees of the respondent-corporation reproduced as under:- ?"253 Every employee of the Corporation shall be retired from service on attaining the age of 60 years and according to discretion of Managing Director under State Life Pension Scheme."
7. ' Reportedly in the year 2009, the respondent-corporation framed new service rules or amended the already existing service rules of the Corporation and also amended the provision reproduced supra. Two books of new framed service rules of the Corporation have been submitted before us, one by the petitioners and the other by the respondent but surprisingly both the books have different languages in respect of newly introduced provision 25 of the rules as such we want to reproduce the provision 25 of the newly framed service rules from both the books to show the difference of the language in the provisions which are at contrast with each others. The language of the provision 25 of the new rules in the book presented by the respondent-corporation is as under:- "25. RETIREMENT"
8. Every employee of the Corporation shall be retired from service on attaining of the age of 55 years, in case of administrative staff or 50 years, in case of technical staff or according to the discretion of the Managing Director under State Life pension scheme."
9. ' The language in the provision 25 of the new rules of the respondent-corporation available in the book submitted by the petitioners is as under: --- "25. RETIREMENT.
10. "Every employee of the Corporation shall be retired from service on attaining of the age of 55 years, in case of administrative staff or 50 years, in case of technical staff, or 25 years of regular service with NATCO, whichever is earlier, subject to health condition or according to discretion of the Managing Director under State Life pension scheme."
11. Court Note:- It is pertinent to note that none of the supra service rules have been preambled with the year framed or amended. The service rules have also not been published in the official gazette of Pakistan. Both the books submitted by the parties are signed on each and every page and the book submitted by the petitioners have official stamp of the respondent-corporation on each and every page. The provision-25 as available in the book submitted by the respondent-corporation fixes age of retirement as 55 years in respect of administrative staff and 50 years of age in case of technical staff and also provides discretion of Managing Director under State Life Pension Scheme.
12. On the other hand the same provision as per book submitted by the petitioners speaks of 25 years of regular service with the NATCO along with the 55 and 50 years of age, whichever is earlier as qualification for retirement of an employee of the Corporation. Furthermore the provision 25 is comprising of six paras as per book submitted by the respondent-corporation and by Para six of the same the provision-25 has been given retrospective effect while the provision 25 has five paras as per the book submitted by the petitioners and the Para in respect of retrospective effect of the provision is missing"
13. ' Facing the above situation, I while drafting the judgment called Mr. Ijlal Hussain Advocate, the counsel for the respondent-corporation and Mir Akhlaq Hussain, Advocate counsel for the petitioners in my chamber and enquired about the above confusion as the same was not threshed out properly during course of arguments. The learned counsel for the respondent-corporation frankly explained the real picture of the confusion. That the provision 25 was amended with immediate effect at the time of making the amendments in the year 2009. Later on when he was asked about the legal consequence of the same he extended his advise to the respondents to give retrospective effect to the provision and accordingly, the respondents gave retrospective effect to the provision-25 vide meeting of board of directors held on 15-6-2010. Indeed learned counsel for respondents cleared the confusion and gave an impression of high moral and professional honesty. In the case in hand, the above detailed statement was required to understand the legal and factual aspects of the case and after going through the above. Facts, we have reached the conclusion that in the instant case the important legal questions needed to be determined are as to:
(i) whether the board of directors have acted like a law making body and have followed the General Clauses Act, 1897 while making new service rules of the respondent-corporation or amending existing service rules:---
(ii) Whether the respondents have given retrospective effect to the provision 25 properly and if so whether the provision could be given retrospective effect to defeat the already existing enjoyed rights of the petitioners under the previous rules.
(iii) Whether the amendment is discriminatory?
14. We heard the learned counsel for the parties to determine the above points with their able assistance, reached the conclusion that, obviously, the board has not acted like a law making body and as we have given supra judicial note in this Judgment that, whether altogether new rules have been framed or revious rules are repealed or merely some amendments have been introduced or made in the previous rules. No, year or date of the new amendments or new rules have been stated in the preamble or in provision 1.1 of the rules. The impugned rules have been made in utter violation of section 23 of the General Clauses Act, e.g. No draft of the proposed rules have been published for the information of the effecting persons, (the petitioner). No notice has been served to get objections or suggestions. The last but not the least, the impugned rules have not been published in the Official Gazette, hence the impugned rules are ultra vires. Reference is made to:--
(1) 2003 SCMR Page-819 (2) PLD 1978 SC Page-190 (3). PLD 1961 Karachi Page-349.
15. The Board of Directors of the respondent-corporation has introduced a unique and fantastic method to give retrospective effect to the provision of 25 of the new rules, which seems to be a mockery of law. The new rules were given immediate effect through provision 1.7 of the new rules and the impugned Order No,HQ5(1)5693 dated 12-10-2009 was passed, whereby a number of employees of the corporation were retired from the corporation presuming retrospective effect of the amendments made in provision 25 of the impugned rules hue and cry was raised by the effected persons. The respondent-corporation sought the advice of its legal advisors (as Mr. Ijlal Hussain, Advocate has stated at bar) and after being advised that, the rules were having immediate effect and the same could not be made pretext to retire the employees who had been appointed under provision 25 of the rules reportedly made in the Year 1974 and amended in the year 1994. The board attempted to fabricate the new rules with retrospective effect by convening meeting of the Board on 15th June, 2010 and on the very next day of the meeting the impugned orders under Writ Petitions Nos.39 of 2010, 40 of 2010 and 41 of 2010 were issued and the petitioners under the above writ petitions were retired as they had completed 25 years continuous service with respondent-corporation. They simply forget the fact that, the 25 years service has not been incorporated as condition for retirement in the provision 25 as per the book of service rules provided by the respondent-corporation. The monarchical attitude of the board is apparent from the above facts as such the amendments have not been made properly and legally, as such having no legal effect.
16. The other important aspect required to be discussed is that even if the respondent-corporation had made the new rules with retrospective effect after due legal process, then too, the respondents could not give retrospective effect to the provision 25 of the impugned service rules. The same relate to the vested right accrued to the petitioners under Service Rules 1974. As the petitioners have served the respondent-corporation for at least 25 years and provision 25 of the said service rules provides attaining of the age of 60 years as retirement age. Unless the petitioners attain the stipulated age under the previous service rules they cannot be retired by giving retrospective effect to any amendment made or introduced. The principle of retrospective "effect" can not be allowed to defeat the already created rights in favour of individuals by the rules amended or repealed. The law recognizes immediate effect and not the retrospective effect of the amendments made in respect of substantive law or rules meant to defeat the acquired rights emanating from the existing law or rules. The impugned amendment or the new rules framed being destructive of already vested rights to the petitioners are without lawful authority and of no legal effect. Reference is made to:-- (1). 1992 SCMR Page-1652 (2) PLD 1964 SC Page-494 (3) PLD 1970 SC Page 439 (4) PLD 1974 SC Page-180 (5) PLD 1991 Lah. Page-230.
17. ' The third point for determination is to see whether the amended/new rules have been applied on mala fide intentions against the respondents.
18. The retiring age as fixed in the new rules is 55 years. As such the same standard could and should have been applied indiscriminately for the lower staff and the upper cadre, if supposed the same have retrospective effect. It is seen that a different yard stick has been used to measure different employees. Rules have to be applied equally without an exception. Relaxation of rules in favour of a particular individual or group of individual are possible in the rules and law prevailing allow to do so. In the present case no authority has been vested with the powers. Such abr..Pt relaxations always create distrust and problem.
19. Consequent upon the above discussions the impugned amended/new rules are declared void without lawful authority and ultra vires. The impugned retirement orders are set aside. The respondents are directed to treat the petitioners as active employees in their respective posts with all service benefits as regular employees of the respondent-corporation up to the age of retirement as provided by the service rules reportedly made in the year 1974 and amended up to the year 1994. Since the petitioner under Writ Petition No,39 of 2010 has passed away on 21-2-2011, during pendency of the writ petition, he would be the employ of the respondent-corporation with all service benefits including the monthly salary, up to the date of his demise with pension benefits provided by the rules after death.