,ORDER SHAFI-UR-REHMAN, J.-This appeal by special leave has come up for considering whether the impugned judgment of the Lahore High Court dated 25-10-1972 is not in conflict with the law laid down by this Court in Farzand A.I v. Province of Pakistan PLD1970SC98
2. The respondent was employed as Head Clerk in the Employment Exchange, Sahiwal under the Directorate of Labour Welfare of the Punjab. He was due to complete 25 years of service on 1-5- 1968 and to attain 55 years of age on 21-7-1968. In accordance with the requirements of Article 178(4)(a) introduced by Constitution (Sixth Amendment), Act, 1966 enacted on 31-3-1966 his case was referred to the Divisional Advisory Committee for opinion whether his services were to be continued after his. Completing 25 years of service. The Advisory Committee recommended his retirement. The Director Labour Welfare by an order dated 26-4-1968 ordered his retirement which was to take effect from 1-5-1968.
3. The respondent instituted a civil suit on 30-4-1968 claiming a declaration that the order of retirement passed by the Director was null and void and inoperative and that he continued to be in 'service. He also claimed an injunction restraining the appellants from interfering with the performance of his duties. The appellant contested the case. The following issues were framed "(1) Whether this suit has become infructuous ?
(2) Whether order of defendant No. 2 dated 25-4-1968 is null, void and inoperative upon plaintiff's right ?
(3) Whether the plaintiff continues to be employed under the defendant ?
(4) Relief."
4. The trial Court held on the first issue that the relief of injunction had become infructuous as the respondent had handed over the charge and had also in the meantime attained the age of superannuation. It was, however, held that a declaration could still be granted. As regards the competency of the Director, Labour Welfare passt he order the following finding was recorded; "It was conceded by the learned counsel for the plaintiff in the course of arguments that defendant No. 2 was competent to pass such an order under the aforesaid provisions of the Constitution. The plaintiff's plea that the impugned order passed by an incompetent authority, therefore, does not appear to hold good."
As regards the fitness of the respondent to continue after completing 25 years of service the trial Court held that it was not for the Courts to determine but for the authorities to decide. Nevertheless, the trial Court held that under rule 5 of the West Pakistan Government Servants (Further Usefulness in Public Service-Rules, 1963, it was incumbent upon the Advisory Committee to afford the Government servant concerned an opportunity to appear in person or to make a representation in writing with regard to the merits of his case before an order was passed against him. This procedure was admittedly not adopted in retiring the respondent. Relying on Dr. Abdul Hafeez v.
Chairman, Municipal Corporation, Lahore etc. (PLD 1967 Lab. 1251the order of retirement was found to be illegal and inoperative on the rights of the respondent. A declaration to that effect was granted.
5. An appeal was preferred which was heard by the Additional District Judge, Sahiwal. He also recorded the following finding with regard to the . Competence of the Director to pass the order; "It was conceded by the learned counsel for the respondent that the appellant No. 2 was competent to order the retirement of the respondent and that the respondent could not urge in the present case that his record of service was quite satisfactory and as such was fit to be retained in service after the completion of 25 years' service.'
The Appellate Court examined whether service of show-cause notice was necessary and quoting Abdus Saboor Khan v. Karachi University etc. (PLD 1966 SC 536), and Dr. Abdul Hafeez v.
Chairman, Municipal Corporation, Lahore, and rule 5 of the West Pakistan Government Servants (Further Usefulness in Public Service) Rules, 1963 it held that such a notice was necessary which had not been served and the impugned order, on that account got vitiated.
6. In second appeal the learned Judge in the High Court on analysis of Article 178 of the Constitution of 1962 concluded that a retirement order passed under Article 178(4)(a) before the incumbent reached the age fixed for superannuation prescribed in sub-clause (c) was penal in nature. Such an order had to be passed in accordance with the rules and after serving of a show- cause notice. Additionally, it was held that the Director was not the competent authority to pass the order afnd that he had mechanically accepted the opinion of the Advisory Committee without; applying his own mind. The judgment and decree of the two Courts were affirmed.
7. The learned counsel for the Province has contended that in interpreting and applying the provisions of Article 178(4)(a) of the Constitu--petition as introduced by Constitution (Sixth Amendment) Act, 1966 the High Court has fallen into an error because the same provision had already been interpreted differently in Farzand A.I and others v. Province of West Pakistan. It is also contended that the learned trial Court was in error in applying and placing reliance on the interpretation of the Government Servants (Further Usefulness in Public Service) Rules, 1963 and the decision in Abdul Hajeez v. Chairman, Municipal Corporation, Lahore (PLD 1956 Lah. 129), because it was specifically to cover such cases that the Constitutional Amendment was made in Article 17F on 31-3-1966. Similarly, about the first Appellate Court's decision it is said that the case of Abdus Saboor Khan v. Karachi University etc. related to the rights of a student to continue his study. It had nothing to do with an order of retirement not penal in nature.
8. It may be of some interest to examine historically the law on the subject as interpreted and understood by the Courts. In the case of Muhammad Ismail v. Province of Punjab. a Deputy Director in the Irrigation Department of the Province of Punjab was made to retire on attaining the age of 55 years. The rules pressed into service were 5.33 (b) and 5.36 Civil Service Rules Punjab (Revised), Vol. 11. The following observations made by the Court are relevant: "This note to the Rules seeks to draw a distinction between a case where a Government servant is required to retire after 25 years' qualifying service either because his efficiency has been impaired or because the Government believes him to be guilty of corruption though such corruption is not likely to be proved in any inquiry held under the Punishment and Appeal Rules or the Public Servants (inquiries) Act of 1850, and a case where it is intended to dismiss or remove, for misconduct or inefficiency a Government servant who has not completed 25 years' qualifying service, the intention underlying the rule being that for either of the reasons stated in the note a Government servant may be retired without holding any inquiry against him on a formal charge. If this interpretation of the rule be correct then the order of retirement in the present case cannot be described to be an order of removal within the meaning of section 277 of the Government of India Act or rule 14.10 of the Civil Services Rules, Vol. I for which a regular inquiry under the Punishment and Appeal Rules or the Public Servants (Inquiries) Act is necessary, and an omission 'to follow which procedure may amount to refusing to the Government servant a reasonable opportunity to show cause against the action intended to be taken against him as enjoined by section 240 of the Government of India Act."
9. In the case of Pakistan v. Liaqat A.I Khan PLD 1959 SC (Pak.) 37the decision in Muhammad Ismail's case and comparable rule of Central Government 465-A and 465-AA of the Civil Service Rules (pages 108 and 109, 1st Edition) came up for consideration. It was held that these rules gave "unfettered discretion" to the Government in the matter and "that when Government could act under that rule it was not necessary for it to state any reason or communicate it to Government servant concerned as to why he was being retired and that the order of retirement in such a case did not amount to a removal within the meaning of section 277 of the Government of India Act, 1935 for which a regular inquiry was necessary under section 240 of the said Act".
10. A constitutional provision, as 'distinguished from a mere service rule; came to be made on the subject for the first time by the Laws (Continuance in Force) (Sixth Amendment) Order, 1960 which added clause (9) to Article 6. The relevant portion of this clause provided as follows :- "(9) Notwithstanding anything in clause (1) but subject as hereinafter provided.
(a) The date of compulsory retirement of a person in the service of Pakistan shall be the date on which he attains his sixtieth birthday ;
(b) nothing in clause (a) shall effect-
(i) any term or condition of service applicable to any such person immediately before the twenty- second day of June 1960 under which he may retire before his sixtieth birth day ; or
(ii) any term or condition of service applicable immediately before the twenty-second day of June 1960 to a member of the former Indian Civil Service, or to a person who immediately before that day was a Chief Engineer of the Public Works or Railways Department, under which he might be permitted to serve for a limited period beyond the time for compulsory retirement otherwise applicable to him ;
(c) notwithstanding anything in the two foregoing clauses the President in the case of a person who is a member of Civil Service of Pakistan or a person serving in connection with the affairs of the Federation and the Governor in the case of a person (not being a member of the Civil Service of Pakistan) serving in connection with the affairs of a Province may review the case of any person in the service of Pakistan, when he is about to complete twenty-five years of service qualifying him for a pension, and when he is about to complete the fifty-fifth year of his age, in order to satisfy himself of that person's further usefulness to the public service and if he is not so satisfied may direct his retirement from service upon his completing the qualifying service or year of age ;
(d) the President or the Governor (as the case may be) with the previous approval of the President may make rules for carrying into effect the provisions of sub-clause (c) but - nothing in this clause shall affect any disciplinary power vested in the President or a Governor under any law or rule for the time being in force. for the removal of doubt it is declared that the provisions of the Explanation to clause (1Y apply to this clause."
11. This provision was followed by Constitution (Fourth Amendment) Act, 1965 enacted on 11th August 1965 whereby clauses 4 to 6 were added to Article 178 of Constitution. They are reproduced hereunder "(4) Notwithstanding anything contained in this Constitution or in any law or in the terms and conditions of service of any person, the President, in the case of a person who is a member of an All --Pakistan Service or is serving in connection with the affairs of the Centre, and the Governor of a Province, in the case of a person (not being a member of All-Pakistan Service) who is serving in connection with the affairs of that Province, may, at any time, direct-
(a) in the public interest and subject to the provisions of Article 185 or, as the case may be Article 186, of this Constitution, the retirement of a person after he has completed twenty-five years of service qualifying for person or other retirement benefits, on such date as may be specified in the direction ; and
(b) in accordance with rules made by him in this behalf, the retirement of a person after he has completed the fifty-fifth years of his age, on such date as may be specified in the direction Provided that this clause shall not apply to a Judge of the Supreme Court or of a High Court or the Comptroller and Auditor-General Provided further that paragraph (a) of this clause shall not apply to a person who has completed the fifty-fifth year of his age.
(5) The President or, as the case may be, the Governor may, in respect of any person or class of persons, authorize any person or authority to exercise his powers under clause (4).
(6) Any rules made under paragraph (b) of clause (4) shall have effect notwithstanding anything contained in any other rules or in the terms and conditions of service of a person."
12. This was followed on 31st March 1966 by yet another amendment, Constitution (Sixth Amendment) Act, 1966 which substituted clauses (4) to (6) of Article 178 as hereunder "(4) A parson whose terms and conditions of service are governed by Article 127 or Article 154 or Article 176 (not being a member of the armed forces of Pakistan) or paragraph (b) of Article 181 shall, notwithstanding anything contained in this Constitution or in any law or in the terms and conditions of his service, retire from service-
(a) on such date after he , has completed twenty-five years of service qualifying for pension or other retirement benefits as the competent authority may, in the public interest and subject to the provisions of Article 185 or, as the case may be, Article 186, direct ; or
(b) if he has completed before, or completes within a period of six months from, the commencement of the Constitution (Sixth Amend--ment) Act, 1966, the fifty-fifth year of his age, on such date after such completion, being a date within the said period, as the competent authority may direct, or in the absence of such direction, on the expiry of the said period, or on the completion of the sixtieth year of his age, whichever be earlier ; or
(c) in any other case, on the completion of the fifty-fifth year of his age.
(5) Notwithstanding anything contained in paragraph (b) or paragraph (r) of clause (4), the competent authority may, except for the purpose of the performance of any judicial function, extend the service of a person beyond, or re-employ a person after, the date of his retirement under that paragraph for such period and on such terms and conditions as it may deem fit.
Provided that the service of a person which has been so extended or who has been so re- employed shall be liable to be terminated at not less than three months' notice on either side or upon payment of three months' salary in lieu thereof; and such termination shall not be deemed to be removal or dismissal.
Explanation.-A Revenue officer, a member of the Central or a Provincial Board of Revenue, a member of any tribunal for deciding any dispute or appeal on any matter relating to income-tax, labour, industry, or election shall not be deemed to perform any judicial function for the purposes of this clause.
(6) A person who is required to retire under paragraph (b) or paragraph (c) of clause (4), including any such person whose service has been extended under clause (5), shall be entitled to such leave preparatory to retirement as is admissible to him and the period of such leave may extend beyond the date of his retirement but not beyond the completion of the sixtieth year of his age, and if be proceeds on such leave before the said date, his retirement shall take effect on the expiry of the leave."
13. It was this provision which was in the field when action against the respondent was taken. This provision came up for consideration before Full Bench in the High Court in the case of A. M. Khan Leghari v. Government of Pakistan (PLD 1967 ,Lah. 227) and in the Supreme Court in the case of Farzand All v. Province of West Pakistan ( P L. D 1970.5 C 816).
14. In the Supreme Court judgment while upholding this view the following law was laid down; "Compulsory retirement which carries with it no stigma and no vindictiveness against the person concerned is different from removal from service or dismissal. There may be a variety of reasons which may impel a Government to compulsorily retire an officer on his having completed the period of service qualifying him for pension and Government alone is the best Judge of these reasons. It is not possible for the Courts to sit on judgment over the action of Government, if from materials disclosed it does not appear that the action taken was merely in colourable exercise of or in abuse of power. It must of necessity be left to the Government itself to decide as to whether retirement of the officer concerned was in public interest or not. The Government, it is said, has an absolute discse tion to retire any of its officers at this stage . . . . . It appears to me, therefore, that in the absence of any words in the statute limiting the discretion of the Government this must be so, for, it is difficult to lay down any yardstick by which "public interest" can be measured in this connection. There may well be circumstances apart from inefficiency or dishonesty which may be relevant for considering the suitability of an officer for being continued in public Service. An over-- punctilious or over fastidious a person may well in certain circumstances be just as unsuitable as a lax or careless officer having regard to the nature of employment. But this is a matter which the employer alone can determine and therefore, it must of necessity be left to the subjective satisfaction of the employing authorities."
15. The learned Judge in the High Court while interpreting the decision in Muhammad Ismail's case and coming to his own conclusion observed as follows :- "It is quite obvious from the above passage that although the learned Judge held that no enquiry was necessary for passing such an order but has clearly said that show-cause notice was a must so that the incumbent should know the ground on which he has been made to retire and he is not made the victim of any malice of his superior. The principle of audi alteram partem will apply even if no show-- cause notice was mentioned in those rules and it is not a Constitutional requirement.
There is a string of authorities by the Supreme Court on this point out of which I will mention two of them, namely, The University of Dacca and another v. Zakir Ahmad PLD 1965 SC 90 and Board of Intermediate and Secondary Education, Lahore v. Ala-ud-Din 1972 SCMR 13. It is now well-settled law that even -if show-cause notice is not mentioned in the Statute this maxim has to be adopted whore an action has to be taken against a person. Obviously the retirement on completion of 25 years' service is ordered for those persons whose record is not good in the view of the Authority and it would be unjust to lay down the law that such a person should be condemned unheard and he should not be given a right of appeal as is enshrined by the various provisions of Article 178 of 1962 Constitution . . . . In my humble view the order . Of retirement passed under Article 178(4)(a) is a penal termination of employment before the incumbent reaches the age fixed for superannuation in sub-clause (c) of the said Article in the Constitution i.e. 55th year of his age. The prerequisite of an order for retirin ga person under Article 178(4)(a) on putting in 25th years' qualifying service requires review of his case on account of his blemished record or physical incapacity as the case may be. It has to be passed in pursuance of the rules required to be framed under this Article. Such an order of retirement distinguishes the service career of a person who is allowed to continue in service until the age of 55 years and retires on account of superannuation. In such an event the order would be unjustified, harsh and against the well-established principles of maxim audf alleram parlem."
16. It is clear that in view of the decision of this Court in Farzand A.I's case which was available in print on 25-10-1972 when the second appeal was decided in the High Court, the view of the law taken by the learned Judge was, if I may say so with utmost respect, erroneous. The trial Curt and the first appellate Court were also in error in adopting the test of Further Usefulness in Public Service Rules framed under an earlier constitutional provision for understanding and applying clause 4 (a) of Article 178 as substituted by Sixth Amendment of Constitution of 1962. The order of such a retirement being non-penal, there was no question of a show-cause notice, of a hearing, of reasonable grounds to the satisfaction of authorities other than the competent authority being present in every case.
17. Article 186 of the Constitution of 1962 was also amended to give effect to the amendments introduced in para. (a) of clause (4) of Article 178. It was provided by sub-clause (f ) of clause (2) of Article 186 that except to the 'extent that the Governor of a Province after ~ consulting the Public Service Commission of the Province may provide otherwise by order, the Governor was required, in relation to the Civil Services of the Province and posts connected with the affairs of the Province, to consult the Commis--sion with respect to the retirement of a person under paragraph (a) of clause (4) of Article 178. In order to give erect to these provisions, instructions were issued and are found at page 476 of O & M Establishment Manual, Vol. 11(Revised) as follows :-.
"I am directed to say that as a result of the Constitution (Sixth Amendment) Act, 1966, clause (4)(a) of Article 178 of the Constitution now empowers the competent authority to-retire, in the public interest, subject to the provisions of Article 186 of the Constitution, a person who has completed 25 years of service qualifying for pension or. Other retirement benefits.
(2) Clause (2) of Article 186 provides for consultation with the Provincial Public Service Commission, with respect to retirement of a person under paragraph (a) of clause (4) of Article 178, unless provided otherwise by an order of the Governor, in consultation with the Commission, that all cases of retirement of Non-Gazetted officials under the aforesaid Constitutional provisions should 'be excluded from the requirement of consultation with the Commission. These cases should be referred to the respective Advisory Committee constituted under this Department Notification No. S. O. IV (S&GAD)--4-23-1966, dated the 17th October 1 966 (copy enclosed). The Commission will only be consulted about the retirement of all Gazetted Government servants."
The importance given to the Constitutional provision of consulting the Public Service Commission, or a substitute Authority with its concurrence, can be gathered from the fact that if any Referring Department did not want t accept the advice tendered, it bad to obtain the permission of the Governor (Item No. 13 (1v) Schedule III of West Pakistan Government Rules o Business, 1962). In such a case therefore, in following the advice tendered b the Advisory Committee the Competent Authority could not be accused of having acted mechanically or without applying its mind. As a matter o fact, for acting otherwise it had to give good reason.
18. A specific objection with regard to the competence of the authority of the Director, Labour Welfare to pass the order of retirement was taken up, it appears in sec9nd appeal though its factual basis is not mentioned in the judgment. The contention appears to be that as the plaintiff respondent was at the relevant time a Head Clerk he fell in the category of Ministerial Establishment and was covered by Item No. 8 section (1) Labour Wing of the Labour Department Delegation- of Power Rules, 1962 printed at page 135 of O & M Manual of Delegation of Power Rules (1958-1963). This objection had a factual basis. It has already bee pointed out in this judgment that in the trial Court it was conceded. By the learned counsel for the plaintiff that defendant No. 2 i.e. Director was the competent authority to pass such an order under the constitutional provision.
Even before the first appellate authority there is positive concession to this effect recorded. Having conceded on facts this position it' was not open to the plaintiff and not open to the Court to reopen this question and decide it without getting the factual aspect of it cleared.
19. The expression competent authority for the purposes of Article 178 has been defined in the explanation added by the Sixth Constitutional Amendment. In relation to the plaintiff respondent the authority competent under explanation to sub-clause (1) of clause (b) would be the authority competent to make appointments to the post which the plaintiff was holding. The plaintiff was holding the post of Head Clerk in the Employment Exchange at Sahiwal. He cannot be said to belong to ministerial staff in theoffice of the Deputy Director. It is only with respect to such ministerial staff as was employed in his own office that the Deputy Director was the competent authority. As regards the Director's power they find mention at Item 5 and he is given out to be the appointing authority of Assistant Labour Officer, Labour Inspector - Investigator and officials of equivalent status. Unless the plaintiff -respondent were to show that he was not an official of equivalent status the Director cannot be deemed to be not his competent authority. He having not earlier questioned his authority to deal with him, having not laid the factual basis for disputing his competency, as a matter of fact conceding his power to do so, the plaintiff-respondent should not have been permitted a "volte face" in second appeal.
20. In view of the foregoing discussion, this appeal is accepted. The order' of the High Court is set aside. The suit of the plaintiff is dismissed. In the circumstances of1he case the parties are left to bear their own costs.