' MUSHIR ALAM, J.---Petitioner, International Centre for Chemical and Biological Science (ISSBS) have assailed order dated 24.2.2015 passed by learned High Court of Sindh, Karachi in C.P. No,D1479 of 2011, whereby the order dated 01.9.2010 passed by the petitioners-Department retiring respondent was set aside.
2. Brief facts as could be summed up appear to be that respondent No,1 joined the petitioners-HEJ Postgraduate Institute of Chemistry of the University of Karachi on 17.7.1979 in NPS-17. He was upgraded pursuant to the resolution passed by the Syndicate of University of Karachi. Respondent No,1 was retired from service pursuant to the recommendation of the inquiry committee vide resolution No, 2(r) which read as follow:- "Mr. Ejaz Ahmed Soofi, Librarian, I.C.C.B.S has applied for retirement due to his illness after completion of 25 years his services in the Institute. The Vice Chancellor and Chairman, Executive Board has approved his retirement on humanitarian ground w,e,f. 1st September, 2010".
' From the resolution as noted above. It appears that he was recommended for retirement on completion of 25 years of his service and Vice Chancellor and Chairman, Executive Board had approved his retirement on humanitarian ground w,e,f.
01.9.2010.
3. Learned Bench of the High Court in consideration of the fact that his request dated 25.2.2004 for retirement on the medical ground was not approved, therefore, he was entitled under the law to continue his service till he attains age of superannuation. He was ordered to be retired by the learned bench of the High Court "on attaining the age of superannuation i,e. On 15.12.2014" his pensionary benefits and emoluments were ordered to be paid within 45 days thereof.
4. Mr. Anwar Mansoor Khan, learned ASC appearing for the petitioners contends that no doubt the respondent No,1 had made an application on medical ground seeking his retirement, which was not acceded to and in fact he was accorded up-gradation and he continued in service. It was urged that beside, performance of the respondent was not up to the mark and instead of putting any stigma on his performance, he was recommended by the enquiry committee for retirement Mr. Anwar Mansoor, has drawn our attention to section 40-A the University of the Karachi Act, 1972 where under "an officer, teacher or other employee of the University could be retired on such date after lie has completed 25 years of service qualifying for pension or other retirement benefits", which provision was not considered by the learned Bench of the High Court.
5. Respondent No,1 who appears in person supports the impugned judgment. It was urged that since his application for early retirement on medical ground was not conceded for retirement in 2004, therefore, he cannot be retired before attaining age of superannuation. He attempted to impute allegation of mala fide on the University authorities.
6. We have examined the record very carefully and heard the learned counsel for the petitioners and the respondent in person.
' Section 40-A of the University of Karachi Act, 1972 reads as order:-- Age of superannuation. An officer, the teacher or other employee of the University shall retire from service:-
(1) "On such date, after he has completed twenty five years of service qualifying for pension or other retirement benefits, as the competent authority may direct; ' Or
(ii) Where no direction is given under clause (i) on the completion of sixty years age, in case of a teacher and fifty-eight years of age in any other case.
Explanation. In this section "competent, authority" means the appointing authority or a person duly authorized by the appointing authority in that behalf, not being a person lower in rank to the officer, teacher or other employee concerned."
8. On Court query Mr. Anwar Mansoor Khan, learned ASC state that pursuant to the direction of the learned Bench of the High Court the pensionary benefits have been paid to the respondent, the petitioners University have approached this apex Court so as to not make such order a precedent.
The University has all the sympathy with its staff and employees but, since the impugned order is wrong on law therefore, it has been challenged.
9. Indeed the contention of the learned counsel for the petitioners is correct, the Competent Authority in the University of Karachi in terms section 40-A of the University of Karachi Act, 1972, is blessed with competence to, retire an employee on completion of 25 years of service, even though he has not attained age of superannuation (i,e. 60 years). Respondent in person was not able to controvert the legal position as noted herein.
10. From the record it appears that the respondent No,1 was appointed in the year 1997 he was retired w,e,f.
1.9.2010 i,e., by the competent authority, after more than 31 years of service. Therefore. No exception to exercise of such authority could be taken. In this view of the matter the impugned order is set aside.
11. We may record our appreciation for the grace extended by the learned counsel for the University, that the University will not recover the excess amount paid pursuant to order of the learned bench of the High Court.
12. The above judgment has been passed to set the law straight. Accordingly, this petition is converted into appeal and allowed in terms set out above. Impugned order dated 24.2.2015 passed