' MUHAMMAD IRSHAD KHAN (MEMBER).-Heard the learned counsel for the appellants. The above titled 3 appeals involving the identical questions of law and facts are being disposed of by this single consolidated order.
2. Vide respective Notifications dated 17-11-1980, the appellants then parade 18 officers in the Pakistan Telegraph & Telephone Department, were retired from service under the orders of the President of Pakistan in exercise of the powers conferred by clause (ii) of section 13 of the Civil Servants Act, 1973. They challenged the orders of their retirement from service by way of their respective appeals which were filed on 20th December, 1980. Thereafter, the Chief Martial Law Administrator promulgated the Provisional Constitution Order, 1981 (C. M. L. A. Order No, 1 of 1981), hereinafter referred to as P. C.
0. Article 13(1) of the P. C.
0. Provides that the Supreme Court, a High Court and a Service Tribunal, shall have no jurisdiction to entertain any proceedings calling in question on any ground whatsoever, the validity of the order of the competent authority retiring a person in the service of Pakistan from service after he has completed 25 years of service qualifying for pension or other retirement benefits, and any such proceedings pending before any such Court or Tribunal, immediately before the commencement of the P.C.O. Shall abate forthwith.
3. Apparently, the present cases seemed to be covered by Article 13(1) of the P. C.
0. However, it was averred in the memos. Of appeal that the impugned orders were without jurisdiction and coram non judice inasmuch as they could only have been passed by the C. M. L.
A./Prime Minister, and not the President, and mere fact that both the offices of the President and C.
M. L. A. Are held by one and the same person, will not destroy the distinct entities of the two office holders, and the powers, functions and duties apartment to each of the two offices. The learned counsel for the appellants, however, did not advance this plea in his submissions made before us, rather he took a changed stand on this point by contending that the appellants were retired under the orders of the President of Pakistan who was not competent to order retirement of the appellants. To support his contention, the learned counsel made a reference to the existing rule 6 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 which, inter alia, provides that the authority competent to make appointments to the post in Grades 17 to 19 is the Establishment Secretary. And it has been explained in the explanation appended below section 13 of the Civil Servants Act, 1973, that the competent authority to order retirement under that section would be the appointing authority or a person duly authorised by the appointing authority in that behalf, not being a person lower in rank than the civil servant concerned. Thus, according to the learned counsel, the competent authority for the purpose of retirement of the, appellants was the Establishment Secretary and therefore, the appellants could be competently rosired by the Establishment Secretary alone and none else, hence the orders of the President of Pakistan, retiring the appellants from service are without any lawful authority, urged by the learned counsel. He further submitted that a mandatory condition laid down in Article 13(1) of the P.C.O. For ouster of jurisdiction of this Tribunal was not satisfied in the case of the appellants inasmuch as the president had incompetently ordered their retirement from service. Therefore, the present appeals did not abate and this Tribunal has jurisdiction to hear and decide the same.
4. We have carefully considered the submissions made by the learned counsel and also gone through the relevant legal provisions. It is correct that for ordering retirement under section 13 of the Civil Servants Act, 1973, the competent authority is explained to be the appointing authority or a person duly authorised by the appointing authority in that behalf, not being a person lower in rank than the Civil Servant concerned.
' Appointing authority has been prescribed by section 5 of the Civil Servants Act, 1973, which reads as under.- "Appointments.-Appointments to an All-Pakistan Service or to a civil service of the Federation or to a civil post in connection with the affairs of the Federation, including any civil post connected with defence, shall be made in the prescribed manner by the President or by a person authorised by the President in that behalf."
5. A plain reading of the above provision would clearly show that the authority to make the appointments of all civil servants irrespective of their grades, is the "President or a person authorised by the President in that behalf". It was obviously in pursuance of the powers conferred by this provision, that the President of Pakistan by means of rule 6 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, had authorised the Establishment Secrosary to make appointments to the posts in Grades 17 to 19. It may be clarified here that his authorisation is effective from 10th May, 1979 and prior thereto, the Prime Minister was authorised to make appointments even in respect of all the posts in Grades 17 to 19. It follows that the appellants must have been appointed in their present grade by the Prime Minister. Their de facto appointing authority was therefore, the Prime Minister notwithstanding that the de jure appointing authority in respect of appointments in the grade of the appellants is now the Establishment Secretary.
Needless to say that the powers of the Prime Minister also are being competently exercised by the President according to the existing Constitutional and legal system.
6. Viewing the matter from another angle also, though the Establishment Secretary has now been authorised by the President to make an appointment in Grades 17 to 19, yet the competence of the President conferred by section 5 of the Civil Servants Act, 1973, to make appointments even in respect of the posts in these grades, still remains unaltered. In other words, it is even now well within the competence of the President to make appointments in all grades including the grade held by the appellants at the time of their retirement). We are, therefore, clear I our mind that the President of Pakistan continues concurrently to be the appointing authority of the appellants in spite of the existing rule 6 of the Civil Servants (Appointments, Promotion and Transfer) Rules, 1973, which authorises Establishment Secretary also to make appointments in those grades. Therefore, the appropriate authority competently ordering the retirement of the appellants was the President and not the Establishment Secretary.. The obvious conclusion is that the order retiring the appellants from service was competently passed by the President in exercise of the powers legally vested in him. The impugned orders, therefore, do not suffer from any jurisdictional defect.
7. For the foregoing reasons, we have no option but to conclude that the eases of the appellants are covered by Article 13(1) of the pro visional Constitution Order, 1981 and stand abated. We declare accordingly and dismiss all the appeals in limine.