' A.O. RAZIUR RAHMAN (MEMBER).-The Appellant, Mr. Mahmood Ali Shah, was appointed as a regular employee of WAPDA, on 1st July, 1964, as Senior Superintendent and was, thereafter, promoted with effect from 31st May, 1975 to the post of Junior Officer (Administration) which is a Grade 17 post. He was working in this capacity when, by an order dated 11th May, 1980, he was retired by an Office Order bearing No. 941, issued by the Director (Administration) on behalf of the General Manager and Project Director of the Tarbela Dam Project. The Appellant made a representation to the Chairman, WAPDA, on 6th July, 1980. No decision was given, on his representation, by the Chairman, up to 9th October, 1980 when he came up in appeal before the Tribunal that is, after the expiry of 90 days from the date of his departmental representation.
2. The impugned order referred to above terminated the services of the Appellant, with effect from 12th May, 1980 under Rule 3(b) of the Authority's Notification No. S/SO (R) 84/23152-23751, dated 12th November, 1979 read with Office Order No. S/SO (R)/84/1316913468, dated 4th May, 1980.' We have perused these two documents which show that, on 12th November, 1979 the WAPDA promulgated the West Pakistan WPADA Employees (Retirement) Rules, 1979, under which the circumstances in which employees of the Authority could be retired were spelled out. As regards the other Office Order, dated 4th May, 1980 it is seen that it contains instructions as to the manner in which the retirement of those employees who had completed 25 years of service, or had attained the age of 55 years, before the promulgation of the Rules mentioned above, was to be dealt with. According to Rule,3 (b) of the Rules referred to, an employee holding a post in a Grade below 20 could, if the "Competent Authority" so directed, be retired in the public interest, if he had completed 25 years of service qualifying for retirement benefits.
3. Prima facie, the impugned order appears to be quite a legal and valid order, if it is assumed that it was passed by the "Competent Authority" and that the Rule invoked was operative on the date on which the order was passed. The learned counsel for the Appellant has, however, drawn our attention to the fact that the WAPDA Employees (Retirement) Rules, 1979, promulgated on 12th November, 1979 were followed by the Pakistan WAPDA Common Cadre Administrative Post Service Rules, 1980 under which retirement, as laid down in Rule 12, was to be in a manner different from that laid down in the earlier Rules. Rule 12 of the new Rules reads as under :- "A member of the service shall retire from service :
(a) On such date as the Authority may direct, after her has completed twenty-five (25) years' service :
(b) Where no direction is given under clause (a) on completion of sixty years of his age, unless the Authority, by a general or special order, directs otherwise."
' According to this rule, in all cases where an employee is not retired after completion of 25 years of service, he shall be retired on completion of 60 years of age, except when an earlier retirement is ordered by any general or special order issued by the Authority.
4. It was contended by the learned counsel for the Appellant that the Appellant, who had not yet completed 25 years of service, could be retired only on completion of 60 years of age, because there was no general or special order of the Authority directing otherwise.
5. The learned counsel for the Respondent, however, insisted that the retirement order was correct, legal, and valid, by virtue of rule 3 (b) of the 1979 Rules and the instructions contained in paragraph 4 of the Office Order dated 4th May, 1980. We have carefully examined the pros and cons of the respective contentions of the opposing parties on this point and have come to the conclusion that the instructions contained in paragraph 4 of the Office Order under reference are not legal, valid or sustainable. The WAPDA Employees (Retirement) Rules, 1979 contained only two operative rules, namely, 3 and 4. The subsequent Rules, namely, those of 1980 were comprehensive and dealt with recruitment, probation, seniority, termination of service, resignation and retirement, as well as punishment and appeal, and miscellaneous matters relating to the obligations and duties and responsibilities of the employees. In view of this, it is obvious that, with the promulgation of the new Rules, the old ones were no longer operative and, in fact, ceased to exist. Actually, rule 18 of the new Rules makes this point very clear. This rule reads as under :- "Any order, instructions, rules already issued by the Authority in pursuance of section 18 of the Act in respect of matters connected with these Rules shall be deemed to have been rescinded, to the extent of such inconsistency, from the date of promulgation of these Rules."
Since the rules relating to retirement contained in the 1979 Rules are inconsistent with rule 12 of the new Rules, they are automatically deems to have been rescinded from the date of the promulgation of the new Rules, dated 30th January, 1980. Even if this had not been clearly laid down in the "Repeal" clause, the very fact that new Rules on the subject had been promulgated by the Authority subsequent to the old ones was enough to justify the conclusion that the old Rules were no longer operative. That being the situation, any order passed under these Rule becomes illegal, invalid, and inoperative.
6. Even if it were conceded that Rules 3 and 4 of the 1979 Rules were still operative, the impugned order cannot be upheld, because, as rightly pointed out by the learned counsel for the Appellant, it was not passed by the "Competent Authority". The order had been issued, on behalf of the General Manager and Project Director, by the Director (Administration), whereas the "Competent Authority", in the case of the Appellant was Member (Finance), who had not passed the impugned order.
7. The Respondents were asked to produce any documents to show that orders for the retirement of the Appellant were passed by the Member (Finance). They could not produce any such documents, but among the documents furnished by the Appellant, we have come across the Photostat of a note dated 11th May, 1980 put up to the Chief Engineer (Construction) by the Director of Administration, in which it had been proposed that number of employees be retired in accordance with the directive contained in the Office Order of 4th May, 1980 (already referred to above). This note, which was approved on the very day on which it was put up, was supposed to be accompanied by a list. This list, however, was not produced by the appellant and the Respondents, when asked to produce for our perusal the original of the office note as well as the lists attached thereto, could not do so at the time of hearing. Be that as it may, it is clear that, at the best, the Respondent can claim chat approval to the retirement of the Appellant was given by the Chief Engineer (Construction), who, according to the Respondents, was the "Competent Authority" in the case by virtue of an order dated 27th August, 1973 which designated the Chief Engineer as the "Appointing Authority", in respect of Junior Engineers and officers of equivalent status as the "Competent Authority", and the present Appellant, being a Junior Officer equivalent to Junior Engineer, he could be retired by the Chief Engineer. This argument is not tenable, because, though under the orders issued in 1973, the Chief Engineer could function as the "Competent Authority" in respect of officers of the status of the Appellant, under Rule 5 of the 1980 Rules, a Junior Officer (Administration) could be appointed or retired only by order of the Member (Finance), vide item 1 of Appendix 1 of the 1980 Rules. It would be quite unreasonable for anybody to contend that, if Rule 4 of the 1979 Rules, although no longer operative, could still be applied in the case of the Appellant up to 12th May, 1980 the "Competent Authority" would also continue to be the same as designated in the Office Order dated 27th August, 1973 in spite of the fact that fresh designation of Competent Authority" had already been made in the 1980 Rules.
8. As regards the question whether the Appellant really merited the treatment accorded to him, the Respondents have not been able to satisfy us that there was ample justification. In the written statement, they have only this to say, "The appellant was no doubt retired on the recommendations of Director (Administration), because, as Junior Officer (Administration), the appellant failed to satisfy the Director (Administration) with his day-to-day performance". In addition, they have filed copies of two office memos. Issued to the Appellant by the Senior Officer (Personnel) and one by the Director (Administration), which are -of a routine nature and do not, by themselves, provide enough material to justify the termination of the services of an old employee,
9. From the above, the following facts have emerged very clearly :-
(1) The Appellant, who attained the age of 55 years on 2nd February, 1978 that is 2 years and 3 months, before the impugned order, has been retired under the Rules framed in 1979, which were superseded and expressly repealed by new Rules framed in 1980.
(2) The old Rules were invoked for the purpose of retiring this officer and a number of other employees on the strength of instructions issued by the Secretary, WAPDA, on 4th May, 1980 without reference to the new Rules, under which alone action for retirement could have been taken.
(1) The instructions of the Office Order of 4th May, 1980 were not legally valid, being based on an inoperative set of rules.
(4)
(5)
There is no evidence to establish that the order for retirement was passed by the "Competent Authority-.
The circumstances in which the approval of the Chief Engineer was obtained go to show that even his approval was obtained in a most perfunctory manner without placing all the facts and circumstances before him, with the result that, even if he were accepted to be the "Competent Authority", it could not be said that he had applied his mind to the question of the retirement of this officer and had taken a decision after dispassionate consideration of all the facts and circumstances of the case.
(6) On merit also there was not enough material on record to justify the action taken.
10. In the light of the above, we are satisfied that the order appealed against is not sustainable, either in law or on facts. Accordingly, we accept the appeal and set aside the said order.