A. R. SHEIKH, J.--This judgment will dispose of four connected writ petitions, namely, Writ Petitions Nos, 785, 981, 983 and 1567 of 1967, in which the common question of law involved is 'whether retirement of an employee of the Municipal Committee, before attaining 60 years of age under the newly enacted rule 4 of the West Pakistan Local Councils Municipal Committees Servants (Retirement) Rules, 1966 (hereinafter called the Retirement Rules), is bad in law being violative of rules 3 of the West Pakistan Local Councils and Municipal Committees Servants (Further Usefulness in Service) Rules, 1963 read with rule 8 of the West Pakistan Local Councils and Municipal Committees Service Rules, 1963, under which the age of superannuation of municipal employees had been fixed at 60 years. In order to appreciate the contentions raised in these writ petitions, it will be desirable to set out in brief the relevant facts of each case which are some what different.
Writ Petition No, 788 of 1967 (Faizullah Khan).
2. The petitioner joined service of the Multan Municipal Committee in September 1940, and was appointed its Secretary in 1955. He was confirmed in the said post on the 15th of September 1956.
His post was redesignated as 'Chief Officer' with effect from the 24th of September 1460, on coming into force of the Municipal Administration Ordinance, 1960. He was brought in Local Councils Service on the 6th of April 1964, on promulgation of the West Pakistan Local Councils and Municipal Committees Service Rules, 1963. The petitioner completed 55 years of age on the 19th of February 1967 and the Chairman, Municipal Committee, recommended extension in his service under rule 5 of the Retirement Rules, for three years. The Government of West Pakistan, however, refused the extension and he was ordered to be relieved of his duties immediately in pursuance of the impugned order of the Government contained in memorandum No, S. 0. (LCS-13 (2)/67 dated the 14th of March 1967.
Petition No, 981 of 1967 (Dr. Abdul Hafiz).
3. The petitioner was born on the 19th of March, 1910 and joined service of Municipal Committee, Amritsar (Bharat), as School Medical Officer, on the 11th of March 1935, and was promoted as assistant to the Medical Officer of Health in Amritsar. On migration, as a result of Partition of the Indo Pakistan Sub-continent, the petitioner was appointed as Sub-Assistant Health Officer in the Corporation of the City of Lahore on the 1st of April 1949 and was promoted as Assistant Medical Officer in February 1956. According to the averments made in the petition, he completed 25 years qualifying service on the 18th of March 1960. The Corporation, however, compulsorily retired the petitioner as per its resolution No, 161 dated the 29th of July 1964. The petitioner approached this Court by means of Writ Petition No, 1535 of 1964, which was accepted on the 27th of March 1967 and the petitioner was reinstated as Assistant Medical Officer of Health on the 1st of April 1967.
Meanwhile the petitioner attained the age of 55 years on the 18th of March 1965 and because of the enforcement of the Retirement Rules he has been retired by the Municipal Corporation by its impugned order dated the 28th of June 1967.
Writ Petition No, 983 of 1967 (Muhammad Ashraf Butt).
4. The petitioner was employed as a Sanitary Inspector in the Corporation of the City of Lahore and was observed in the Local Councils Service on the 6th of April 1964. He completed twenty-five years of qualifying service on the 1st of June 1966. He impugns the order of his retirement under the Retirement Rules with effect from the 30th of June 1967, before attaining the age of 55 years not to speak of 60 years. In addition to the contention common to all these cases, it is maintained on his behalf that toe Chairman of the Municipal Corporation was not competent to order retirement of the petitioner as he is not the appointing authority under the Retirement Rules.
Writ Petition No, 1567 of 1969 (Abdul Aziz and others).
5. The petitioners were employed as teachers under the Municipal Corporation, Lahore, and in the year 1964 their cases were referred to the Review Committee constituted under rule 5 of the West Pakistan Local Councils and Municipal Committees Servants (Further Usefulness in Service) Rules, 1963, to determine their further usefulness in service. The Review Committee after due enquiry recommended their cases and dropped further proceedings against them as contemplated in rule 7 (2), with the result that the petitioners were allowed to continue in service until they attained the age of sixty years, in accordance with the provision of rule 3 of the said Rules. However, with the introduction of the Retirement Rules, the petitioners were served on the 28th of June 1967 with the impugned orders of retirement with effect from the 30th of June 1967, before any of the petitioners completed 50 years of age. Subsequently the Government of West Pakistan is stated to have granted general extension in service to all non-gazetted employees of Local Councils and Municipal Committees, as the petitioners are, up to the 3 1 s t of December 1967. The appeals of the petitioners against their retirement orders were dismissed by the Commissioner, exercising powers of the controlling Authority, by a single order dated the 24th of July 1967, when the said authority even refused to give the petitioners the benefit of general extension orders up to 31st December 1967, to all non-gazetted employees of Local Councils and Municipal Committees, as the service records of the petitioners were found unsatisfactory. The impugned orders are assailed on further grounds that after their cases had been recommended by the Review Committee, the right thus securing to them could not be taken away subsequently by promulgation of the Retirement Rules; that the impugned orders were passed without any notice to the petitioners and they were not even given leave preparatory to retirement admissible to them under the Retirement Rules; that the Retirement Rules could not be applied to the petitioner's cases retrospectively ; that in any case as they had completed 55 years of age before the enforcement of the Retirement Rules, they could under those Rules be retired before or up to the operative date prescribed in the said Rules, namely the 31st of January 1967, failing which action the petitioners could not be retired before they attained the age of sixty years.
6. The contention put forward on behalf of the petitioners in all these petitions is that the Government of West Pakistan had decided to raise the age of superannuation of Government servant from 55 to 60 years with effect from the 22nd of June 1960 and the said decision having been made applicable to the employees of the Municipal Committees in the province, the age of superannuation of the petitioners was accordingly fixed at sixty years by virtue of rule 3 of the West Pakistan Local Councils and Municipal Committees Servants (Further Usefulness in Service) Rules, 1963, and the petitioners in three cases (Writ Petitions Nos, 788, 981 and 983 of 1967) had been given the benefit of the said enhancement in the age of superannuation, which benefit was subsequently guaranteed by rule 8 of the West Pakistan Local Councils and Municipal Committees Service Rules, 1963, with the result that by any change in the Rules the 'vested right' of the petitioners to continue till the age of sixty years could not have been taken away and the impugned orders lack in lawful authority.
7. The first objection raised on behalf of the respondents is that in view of the ratio decidendi of Rustom Ali's case the petitioners cannot avail of Article 98 of the abrogated Constitution. This argument has been met by the petitioners by saying that according to the definition of the term local authority given by their Lordships of the Supreme Court in Deputy Managing Director, National Bank of Pakistan v. Ataul Haq every Municipal Corporation is a local authority and whenever it contravenes any statutory rules or interprets any statutory rules to the disadvantage of the employee or attempts to deprive the employee of his vested right to continue in service for particular period of time guaranteed to him by the previous rules and regulations on the subject, such action will be subject to judicial review. While conceding that the petitioners are not holders of civil posts and cannot claim the constitutional protections contained in Articles 176 and 177 of the abrogated Constitution Act of 1962, it is maintained that since the statutory rules framed by the rule-making authority appointed by the Provincial Government regulate the terms and conditions of the employees and the said Rules are also to be observed and adhered to by the employer, the petitioners hold 'statutory office' and can claim issuance of a writ of mandamus in view of the decision of their Lordships of the Supreme Court in Lahore Central Co-operative Bank Ltd. v. Saif Ullah Shah wherein the term 'statutory office' has been defined as "an office which is by law prescribed in regard to its existence, its tenure or duties".
8. On behalf of the Municipal Corporations reliance has been placed on Ijlas Ahmad Siddiqi v. The Municipal Committee, Multan and another to repel the contention that mandamus would lie to restore the petitioners to their offices which are in no way 'municipal positions' or 'Corporate Office'.
It has been further argued with vehemence that at the time of appointment of the petitioners the age of superannuation was 55 years and this age was subsequently fixed at sixty years under the West Pakistan Local Councils and Municipal Committees Servants (Further Usefulness in Service)
Rules, 1963, and if the age of retirement has been refixed at fifty-five years under the Retirement Rules, it is in any way violative of any so-called vested right of the petitioners. Support for this view has been sought from section 20 of the West Pakistan General Clauses Act VI of 1956 which may be reproduced below for convenience of reference :- "20. Power to make to include, power to add to amend vary or rescind orders, rules or bye-laws.-- Where, by any West Pakistan Act, a power to issue notification, orders, rules, scheme, form or bye- laws is conferred then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind, any notification, orders, rules, scheme, form, bye-laws so issued."
9. The question of enforcement of service rules through Courts of law has been the subject of debate before their Lordships of the Judicial Committee as also of the Supreme Court of our1 2 3 4 country. The first case that came up before the Privy Council was that of Venkata Rao reported as R. Venkata Rao v. Secretary of State wherein after reviewing the entire case-law on the subject their Lordships observed : "The rules are manifold in number and most minute in particularity and are all capable of change."
Again, in Rangachari's case (R. T. Rangachari v. Secretary of State) which was argued before the Board at the same time as Venkata Roa's case in which case the proviso to section 96-B of the Government of India Act, 1919, was being interpreted, it was observed : "Their Lordships have most anxiously considered whether some relief by way of declaration to this effect should not be granted. It is manifest that the stipulation or proviso as to dismissal is itself of statutory force and stands on a footing quite other than any matter of rule which are of infinite variety and can be changed from time to time.
Thereafter this distinction of enforcement of rules of service through Courts of law and the cause of action accruing to a person because of breach of constitutional guarantees given to civil servants fell for determination before the Judicial Committee in The High Commissioner for India and another v. I. M. Lall and the distinction between the two was clearly brought out in the following passage, which may be reproduced with advantage :- " Contrasting the provisions of section 96-B of 1919 with the provisions of section 240 of 1935, their Lordships have no difficulty in holding in agreement with both the High Court and the Federal Court that the provision as to a reasonable opportunity of showing cause against the action proposed is now put on the same footing as the provision now in subsection (2) of section 240, which was the subject of decision in 64 I A 40 and that it is no longer resting on alterable from time to time, but is mandatory, and necessarily qualifies the right of the Crown recognized in subsection
(I) of section 240 of 1935. The provisions of section 96-B (1), now reproduced as subsection (2) of section 240 of 1935, and subsections (2) and (3) of section 240 are prohibitory in form, which is inconsistent with their being merely permissive."
A similar point arose in Noor-ul-Hassan's case and the rule laid down by the Privy Council was affirmed. The next case is that of Pakistan v. Sheikh Abdul Hamid wherein the point of inconvenience and confusion caused by the procedure of control by Courts over Government in the most detailed work of managing its services was considered and the following observation made with regard to leaving the matter of redress to the Government :- "As for leaving the matter of redress to the Government to be dealt with in its high function of responsibility, whatever may have been the condition in 1936, when the Privy Council used the inspiring words which adorn the judgment in the case of Venkata Rao, we have to observe with regret that any expectation based on a similarly belief today, would probably be illusory, at any rate in a comparative sense."
Learned counsel for the respondents, however, argued that in view of the statement of law enunciated in the authorities above, there is no escape from the conclusion that breach of rules . . . as opposed to a breach of direct constitutional guarantee is not actionable and the petitioners cannot successfully invoke writ jurisdiction for the purpose.
10. Admittedly the petitioners when they entered service were subject to the rule-making authority of the employer and the terms and conditions of their service were regulated by rules framed from time to time. If at one stage the age of superannuation has been enhanced from 55 to 60 years under the West Pakistan Local Councils and Municipal Committees Servants (Further Usefuless in Service) Rules, 1963, it cannot be successfully contended that the employer was in any manner precluded from revising the age of superannuation and if the employer has thought it proper to reduce the age of superannuation from 61 to 55 years, the Retirement Rules cannot be held to be ultra vires because there is no guarantee given under the Municipal Administration Ordinance or the Basic Democracies Order or the rules of service framed thereunder, to the municipal5 6 7 8 9 employees, that their conditions of service cannot be altered. Malik Muhammad Khalil v.
Government of West Pakistan refers. A perusal of section 20 of the West Pakistan General Clauses Act would also show that the power to make rules includes the power to amend, vary and rescind those rules. Therefore, the argument of so-called vested right is without force; nor can it be successfully urged that the Retirement Rules are violative of previous Rules, which have been superseded. In view of this finding of ours even if it be assumed that the petitioners hold statutory office and the breach of rules is actionable, since no question of the breach of service rules arises in these cases the petitioners cannot succeed.
11. In Writ Petition No, 983 of 1967, it is not denied that when the petitioner entered service he could have been retired after completing the 25 years qualifying service. From that angle there has been no change in his terms and conditions of service even under the West Pakistan Local Councils and Municipal Committees Servants (Further Usefulness in Service) Rules, 1963, or the Retirement Rules.
Under para. 5 (a) of the West Pakistan Local Councils and Municipal Committees Servants (Further Usefulness in Service) Rules, 1963, the petitioner could have been retired by the Review Committee when he was about to complete 25 years of service qualifying him for retirement has been kept intact in clause 4 (a) of the Retirement Rules, which runs as under :- "4-A. Local Council servant shall, notwithstanding anything contained 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 these rules direct ; Now in view of this fact, if the authority concerned has taken action against the petitioner under para. 4 (a) of the Retirement Rules, the action cannot be said to be without lawful authority. The other argument that the Chairman has no power to dispense with the services of the petitioner or to retire him from service because in his case, the Municipal Corporation being the appointing authority under section 29 of the Municipal Administration Ordinance, 1960, read with Article 45
(2) of the Basic Democracies Order, the impugned order lacks authority, is equally without force.
Under section 29 of the Municipal Administration Ordinance, 1960, the provision of Chapter VIII, Part II of the Basic Democracies Order have to be applied mutatis mutandis and we find that the executive powers of the Municipal Committee are vested and are to be exercised by the Chairman under section 22 (2) of the Municipal Administration Ordinance, 1960, and by virtue of this power if the Chairman has taken the impugned action against the petitioner, there has been no lack of authority. It may be further added that the petitioner's appeal before the Commissioner, Lahore Division, exercising powers of Controlling Authority, was dismissed on the 7th of October 1967, and as he has been heard by the Controlling Authority, the objection of incompetence of the Chairman to dispense with the services of the petitioner after the qualifying service of 25 years loses its force.
12.All other objections raised in Writ Petition No, 1567 of 1967, pale into insignificance in view of our finding on the main contention.
13.The upshot of this discussion is that the petitioners have failed to show that the impugned orders have in any manner been passed without lawful authority. The Writ Petitions fail and are dismissed. However, there will be no order as to costs. PLD 1966 SC 848 PLD 1965 SC 201 PLD 1959 SC 210 PLD 1967 Lah. 408 AIR 1937 P C 31 A R 1937 P C 2710 1 2 3 4 5 6