' SHAH ABDUR RASHID (CHAIRMAN).-The appellant, while holding the post of Director (Establishment)
Telegraphs and Telephones, in Grade 19, in the Directorate General, Islamabad, was retired by the order of the President with effect from 20th November, 1980 in exercise of the powers derived from section 13 (ii) of the Civil Servants Act, 1973. The appellant challenged the order by the way of appeal under section 4 of The Service Tribunals Act, 1973, but during the pendency of this appeal, the Provisional Constitution Order. 1981 (C. M. L. A. Order No, 1 of 1981) (hereinafter referred to as the P. C.
0.) was promulgated and Article 13 (1) thereof, inter alia, provides that the Tribunal shall have no jurisdiction to entertain any proceedings calling in question on any ground whatsoever the validity of an order of the competent authority retiring a person in the service of Pakistan from service after he had completed 25 years of service qualifying for pension and other retirement benefits. It also provides that any proceedings pending before the Tribunal immediately before the commencement of the P. C.
0. Shall abate forthwith.
2. The learned counsel for State has taken up the stand that whatsoever the merit of the appellant's case may be, the appeal before the Tribunal has abated by virtue of Article 13 (1) of the P. C.
0.
3. The learned counsel for the appellant, in the first instance, had taken up the stand that the order of retirement had not been approved by the President and therefore, the same is invalid having not been passed by the competent authority. However, we called for the record and found that the President not only himself approved the order of retirement, but he did so after personally satisfying himself that the retirement was justified in public interest.
4. When confronted with the above position, the learned counsel for the appellant changed his stand and contended that the President was not competent to order the retirement of the appellant, because it is the appointing authority alone which can do so. He referred to rule of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, which provides that the appointments to Grades 17 to 19 shall be made by the Establishment Secretary. The learned counsel urged that since the aforesaid Rules are statutory rules and the Establishment Secretary, under the said Rules, is the authority competent to make appointment in Grade 19, it is he alone who can terminate the services of officers in that Grade, and that the President has exercised the power incompetently. Referring to the wisdom of rule 6, the learned counsel argued that since an officer in Grade 19 does not ordinarily come in contact with the President and the President cannot judge the suitability of such an officer, the Establishment Secretary has been designated as the competent authority because he can conveniently examine the suitability of a civil servant in Grade 19.
5. The term "competent authority" is not defined either in the Civil Servants Act, 1973, or in the Civil Servants (Appointment. Promotion and Transfer) Rules, 1973. However, section 16 of the General Clauses Act, 1897, enacts that power to appoint includes power to suspend or dismiss. Though the section itself does not refer to retirement, but it has been held in many cases by the superior Courts that section 16 does not create a new law, but it recognises the well-known rule of general law that power to terminate the service naturally and as a necessary sequence flows from the power to appoint. Since, in the present case, the Establishment Secretary is the competent authority under the rules to make appointment, he has power to terminate the service of a civil servant in Grade 19 by retiring him under the rules applicable to such civil servant. The question to be determined is whether the President, who under section 5 of the Civil Servants Act, 1973, is empowered to make appointment by himself or authorise another person to make the appointment becomes functus officio after having designated the Establishment Secretary as the appointing authority in respect of Grade 19 officers.
6. It is well-settled law that a delegated power can be exercised by the delegator himself, Even the learned counsel for the appellant did not oppose [Tits proposition, This Tribunal itself in the case of Zamirul Haq v. Pakistan (Appeal No, 1 (R)/1981) has held that a delegator, in spite of delegation of his power, can himself exercise the powers so delegated. Again in the case of Muhammad Kalim Abbasi etc. v. Pakistan (Appeal Nos. 187 (R)/80 to 189 (R)/80), this Tribunal has held that the President, in spite of having delegated his power of appointment to the Secretary. Establishment Division, can exercise the power of retirement which as a consequence stands delegated to the Establishment Secretary. Similar 'view was taken by the High Court of West Pakistan in the case of Mehboob Ahmed v. Controlling Authority (1).
7. The learned counsel for the appellant, however argued that the present is not a case of delegation of power, but is that of exercising the power under the statutory rules. According to him, since the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, are statutory rules and specifically provide that the Establishment Secretary shall be the appointing authority in respect of Grade 19 officers, the functions of the President are completely ousted, in respect of appointment or termination of the service of a civil servant in that Grade. We find little force in these arguments: for the rules cannot override the provisions of the Act under which they are framed, Section 5 of the Civil Servants Act, 1973, gives power of appointment and consequently the power of removal to the President in the case of all the civil servants though he can authorise another person also to exercise powers in that B behalf. It is under this section that rules 6 have been enacted. Though the rule is a statutory rule, nevertheless the same having been made by the President shall be presumed to have been made in pursuance of section 5 of the said Act read with section 25 thereof.
8. We, under these circumstances, find no force in the argument of the learned counsel for the appellant that the President could not exercise; the power vested in him under section 5 after nominating the Establishment Secretary to exercise the power in that behalf. The argument that the President cannot directly judge the suitability of a Grade 19 officer too is not of any aid to the appellant, inasmuch as the {{FOOT NOTE}}
(1) P D 1961 B J 15 {{FOOT NOTE}} ' President on the occasion of passing an order is furnished with all the documents necessary to enable him to reach the conclusion. In the present case also, this has been done.
9. As a result, we hold that this appeal has abated under Article ' 13 (1) of the P. C.
0. The appeal is disposed of as above. There shall be no order as to costs.