' G. M. KOUREJO, J.-The brief facts leading up to this application under 0. XXXIX, rules 1 and 2 read with section 151, C. P. C. Briefly stated are, that the petitioner No, 1 is an employee of Karachi Port Trust in the capacity of Deputy Chief Engineer a post in the scale and grade of which the maximum is not less than Rs, 1,110 per month. The terms and conditions of service and his service conduct are regulated as provided in sections 22 (8), 23 and 24 of the Karachi Port Trust Act, 1886 read with rule 40 (1) (a) controlled by Appendix E of the Karachi Port Trust Pay, Allowances and Leave Rules, rule 40 (1) (a) read with Appendix E of the Karachi Port Trust Rules as amended envisages that the employee of the grade of petitioner No, 1 shall retire from service either on such date as he has completed 25 years service or competent authority in the interest of Trust directs or on completion of 60 years of age or on his option on completion of 25 years service provided that he serves three months notice or accedes to payment of three months salary in lieu thereof. On the admitted facts of the case, the petitioner No, 1 was appointed as Assistant Engineer on 21-12-1955 and was to complete 25 years service on 20-12-1980. However, by letter No, CB-885/80, dated 21-12-1980, issued by the respondent No, 3 the Federal Government decided to retire the petitioner No, 1 from his service with immediate effect. It was further directed that the L. P. R. As may be due under the Rules would be admissible to the petitioner if he applies for the same within one month of the issuance of the letter. It is contended that before this order of premature retirement was served on the petitioner he filed Constitutional Petition No, 1727/80, out of which this application for temporary injunction arises, challenging the contemplated action as being illegal and without lawful authority.
Ad interim order of stay was issued with notice to the respondents with the result that petitioner No, 1 continues to be in service holding the post' of Deputy Chief Engineer. The respondents have appeared and contested the application for temporary injunction.
2. The contentions raised on behalf of petitioner No,'1 are that the petitioner could not be sent on premature retirement except in due course of law. It is contended that it could only be done so under the provisions of sections 22 (8), 23 & 24 of the Karachi Port Trust Act, 1886 read with rule 40
(1) (a) controlled by Appendix E of Karachi Port Trust Pay, Allowances and Leave Rules, or in accordance with the directive issued under memorandum No, 1/4/79 CV, dated 15-114979 which provides premature retirement of the officers or employees having completed 25 years service on 31-12-1979, which provision would not be applicable to the case of the petitioner as he has completed 25 years service on 20424980. It has further been contended that the petitioner No, 1 being Secretary of the K. P. T. Officer's Association registered under the Industrial Relations Ordinance the applicant No, 2, he happens to have incurred displeasure of the respondent No, 3 on account of his alleged objectionable activities which in fact have motivated illegal action of premature retirement of petitioner No,
1. It has also been contended that the order of premature retirement was not served on the petitioner No, 1 and that in view of the ad interim order of stay having been served on respondent No, 3, he continues to be in service uninterruptedly and that it would not be in the interest of public service that his services be dispensed with without the petition having been finally heard and decided one way or the other. It has been urged on behalf of petitioner No, 1 that prima facie case lies in favour of the petitioner No, 1 and that the balance of convenience is also in his favour and he would suffer an irreparable injury in case temporary injunction is refused to him.
3. On behalf of the respondents the contentions are, that the petitioner No, 1 has been ordered to go on premature retirement under the provisions of rule 40 (1) (a) of the Karachi Port Trust Pay, Allowances and Leave Rules and that the impugned action taken was also in conformity with the directive issued under memorandum No, 1/4/79-CV, dated 15-11-1979. It has also been contended that he was served with the impugned order well in time and that he was allowed to continue only in order to comply with the orders cf the Court. The motive alleged against respondent No, 3 for having managed the impugned order has been denied. It has been contended that neither prima facie case lies in favour of petitioner No, 1 nor the balance of convenience and that he would not suffer an irreparable injury in case injunction is refused to him.
4. We have perused the affidavits and counter-affidavits filed in support of the respective contentions of the parties. We have also gone through the documents filed in support of the respective contentions and have also heard the learned counsel for the parties Mr. Wajihuddin Ahmed for the petitioners and Mr. Ali Ahmed Fazed for the respondents. On the admitted facts of the case, the impugned action has been taken under section 40 (1) (a) of the K. P. T. Pay, Allowances and Leave Rules. It has been contended that the impugned action is also in conformity with the directive issued under memorandum No, 1/4/79-CV, dated 15-11-1979. Mr. Wajihuddin Ahmed, the learned counsel for the petitioner No, 1 has contended that rule 40 (1) (a) is controlled by Appendix E and that the impugned section is not in accordance with Rules as shown therein. He has referred us to the Rules in Appendix E as shown therein. Rule 1 c) says that the Board with the approval of the Government in case of all heads of the departments and officers the maximum of whose grade is not less than Rs, 1,100 would be the competent authority within the meaning of the rules. Rule 2 says that the retention will be determined at least six months before such person completes 25 years of service. Rule 3 says that the case will be reviewed by an advisory Committee consisting of Chairman and two Trustees appointed by the Board of the officers who fall within the purview of section 24 of the Karachi Port Trust Act. Rule 4 says that retirement at 60 years age would be the rule. Rule 5 says that the Committee shall make recommendation in writing as to whether the employee would be retired at the end of 25 years of service. Rule 6 says that the recommendation of the Committee shall be considered by the competent authority for deciding whether the officer/employee concerned should be retained or not. Rule 7 says that an order of retirement shall be communicated to the employee concerned at least three months before the date of completion of 25 years service and will be operative on completion thereof. Mr. Wajihuddin Ahmed has further contended that since the petitioner No, 1 completed 25 years of his service on 20-12-1980 before the impugned order of his retirement, the procedure provided in the Rules above-mentioned appears not to have been followed. According to him, there is nothing to show that the exercise under rules was resumed before petitioner No, 1 had completed 25 years of service and his retention or otherwise was determined at least six months before he completed 25 years service. He has also contended that the order of retirement was not communicated to the petitioner at least three months before the date of completion of 25 years of service. He has further contended that the report of the committee would show that the signature of the third Member was obtained subsequently and that it would appear that the Advisory Committee consisted of only the Chairman and one member and not of two Members as required under the Rules.
According to him, therefore, the impugned order was not in accordance with rule 40 (1) (a) which is controlled by Appendix E, which provides the procedure to be adopted for ordering such premature retirement. Mr. Wajihuddin Ahmed has further contended that the directive under the memorandum No, 1/4/79-CV, dated 15-11-1979 would also not be applicable in the circumstances of the case of petitioner No, 1 as it would apply to the cases of the employees who had completed or would be completing 25 years of service on 31-12-1979.
' On the other hand Mr. Ali Ahmed Fazeel, has contended that rule 40(I)(a) is independent of Appendix E and that Appendix E would be applicable to the cases of retention of employees and not to the cases of their retirement and that the rules 2 and 7 of Appendix E are directory and not mandatory in their application and that it would not be appropriate to say that the impugned order is not in accordance with law and Rules and is, therefore, without lawful authority.
Be that as it may, in the facts and circumstances of the present case, it would not be advisable to enter into the niceties of law and Rules at this interlocutory stage as it would possibly prejudice the case of the parties one way or the other.
' As regards the contention that petitioner No, I was served with an order of injunction right in advance of the service of the order of injunction, it would suffice to say that there is documentary material on the record which would require consideration at the time of final adjudication of the case. At present it is an admitted position that no charge report of taking over and handing over charge by petitioner No, 1 has been produced and that the petitioner No, 1 continues to be in service holding the same post uninterruptedly and has also received the entire salary for the month of December, 1980. So far the alleged motive for the impugned action is concerned, there are allegations and counter-allegations and in the facts and circumstances, they can be appropriately examined at the time of the final adjudication of the case. We would, therefore, in facts and circumstances of the present case, find that prima facie case lies in favour of petitioner No, 1.
5. Petitioner No, 1 is a qualified hand and no specific act of neglect or mismanagement with regard to the working of the department has been attributed to him. Balance of convenience, therefore, would lie in the continuity of the state of things existing over long years, rather than in disturbing the situation on the basis of the impugned action which is allegedly tainted with mala fides and suffer from want of jurisdiction.
6. Petitioner No, 1 is also likely to suffer in reputation and his standing in public life would also be affected adversely on account of premature retirement and he would likely suffer an injury of personal nature which would not be compensated in terms of money. Accordingly, he is likely to suffer an irreparable injury as well.
7. We would, therefore, grant temporary injunction as prayed for, till final disposal of the petition.
The application is allowed accordingly, with no order as to costs.