' MUHAMMAD KHURSHID KHAN (CHAIRMAN).-The appellant, Ruhul Qadus, joined the Police Department of the Government of North-West Frontier Province as Assistant Sub-Inspector in October, 1954, and completed twenty-five years of service qualifying for pension in October, 1979.
He was last promoted and appointed as Superintendent of Police in January 1977. Sometime after, he was posted as Officer on Special Duty in the Services and General Administration Department of the Government of North-West Frontier Province. He was still serving as Officer on Special Duty when on the 25th of November, 1979, the Governor, North-West Frontier Province in exercise of powers under section 13 (1) of the North-West Frontier Province Civil Servants Act, 1973, passed an order retiring him and some others from service with immediate effect. He challenged the validity of his order by a Review Petition to the Governor. Before the Review Petition could be disposed of, the Government, vide Notification No, SO1 (S & (IAD) 2-210/76, dated 30th December, 1979, in exercise of the powers conferreki by clause (i) of section 13 of the North-West Frontier Province Civil Servants Act, 1973, and in partial modification of the Services and General Administrations Department's Notification No, SOI (S & GAD) 1-1/79 (B), dated 25th November, 1979, granted 365 days leave preparatory to retirement to the appellant for the period from 2nd December, 1979 to 30th November, 1980 and further directed that the officer shall stand retired from Government Service in the public interest with effect from 1-12-1980 (F. N.).
2. The Review Petition submitted by the appellant to the Governor for re-instatement in service was rejected as is evident from Services and General Administration Department's No, SOI (S & GAD) 9- 270/80, dated the 4th March, 1980. Annexure Having failed in getting his retirement departmentally, he has come in appeal to this Tribunal contending that the order of his retirement was without any legal effect because it carried with it a stigma and was also arbitrary and mala fide.
3. Before we proceed to deal with the contentions raised by the learned counsel for the appellant, we would like to set out certain facts which will facilitate the understanding of the case.
4. In the year 1973, the Governor of the North-West Frontier Province was pleased to make and promulgate the North-West Frontier Province Civil Servants Ordinance, 1973, (N.-W.F.P. Ordinance No, of 1973), to regulate the appointment of persons to, and the terms and conditions of service of persons in, the service of the North-West Frontier Province, and to provide for maters connected therewith or ancillary thereto. The Ordinance later on became an Act of the Provincial Assembly of the North-West Frontier Province (N.-W.F.P. Act No, XVIII of 1973), and is called the North-West Frontier Province Civil Servants Act, 1973 (hereinafter called the Act), Since section 13 (i) of the Act is material for the purpose of our discussions, it is reproduced below tor facility of reference : "13. A Civil Servant 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 comps tent authority may, in the public interest, direct ".
5. It is not denied that in the case of appellant, the Governor of North West Frontier Province was the competent Authority and that the impugned order of retirement was passed by the Governor in exercise of powers conferred on him by section 13 (1) of the Act. It is also not in dispute that the appellant had completed twenty-five years of service qualifying for pension about a month before the impugned order was passed.
6. After the order under challenge was passed, the appellant preferred a Review Petition which was rejected by the competent Authority in the first week of March, 1980. On receipt of the information with regard to the rejection of his Review Petition, the appellant, on the 15th day of March, 1980, preferred the present appeal before this Tribunal.
7. During the pendency of the present appeal, the Chief Martial Law Administrator, in pursuance of the Proclamation of the fifth day of July. 1977, read with the Laws (Continuance in Force) Order, 1977 (C.M.L.A. Order No, I of 1977), and in exercise of all powers enabling him in that behalf, was pleased to make the order called the Provisional Constitution Order, 1981, para. 13 of which reads : "13. Bar of jurisdiction in respect of order of retirement of civil servant.-(1) Where a person in the service of Pakistan has been or is retired from service under the order of the competent authority after he has completed twenty-five years of service qualifying for pension or other retirement benefits, no Court or Tribunal, including the Supreme Court, a High Court and a Service Tribunal, shall have any jurisdiction to entertain any proceedings calling in question the validity of the orders of the competent authority on any ground whatsoever and any such proceedings pending before any such Court or Tribunal immediately before the commencement of this Order shall abate forthwith.
(2) Any person in respect of whom an order such as is referred to in clause (1) has been or is made may, within thirty days from the commencement of this order or the date of the making of the Order, whichever is later, apply to the competent Authority for a review of the order."
8. We may now proceed to deal with the contentions raised on behalf of the appellant. The learned counsel for the appellant contended in the first place that the impugned order of retirement from service purporting to be under section 13 (i) of the Act was not sustainable in law because of the fact that it carried with it a stigma in that the retirement of the appellant before the age of superannuation amounted to his compulsory retirement from service. . He maintained that since the order could not be regarded as one under clause (1) of section 13, the rule contained in para. 13
(1) of the Provisional Constitution Order, 1981 (hereinafter referred to as the Order) would not operate so as to result the abatement of the present appeal. This contention, in our opinion, cannot prevail in view of the facts and circumstances of the case and the legal position on the point.
9. It is not disputed that the retirement from service of a civil servant is governed by section 13 of the Act, according to which there are two stages at which the retirement can take place. The first stage is reached after he completes twenty-five years of service qualifying for pension or other retirement benefits. At this stage, the competent Authority may, in the public interest, direct that the civil servant concerned shall retire from service. Where no such direction is given, the retirement is to take place on the completion of the sixtieth year of his age. This is the second and final stage where the retirement automatically takes place. Although the retirement at the first stage, i,e, after the completion of twenty-five years of service qualifying for pension or other retirement benefits, is before the age of superannuation, it cannot, in the strict sense, be regarded as a "Compulsory retirement". The "compulsory retirement" in the strict sense of the term is the one which is the result of an inquiry under the Government Servants (Efficiency and Discipline) Rules.
There it has been A described as one of the major penalties. The retirement under clause (i) of section 13 of the Act, is always in the public interest and carries with it no stigma or vindictiveness against the person concerned. A reference to the impugned order would clearly show that the appellant's retirement was ordered in the public interest. It is thus different from compulsory retirement under the Efficiency and Discipline Rules or retirement which carries with it a stigma or vindictiveness. It follows, therefore, that the retirement of the appellant from service under section 13 (i) of the Act which has been described as "in the public interest", cannot be regarded as carrying with it a stigma or vindictiveness against him. In such a situation, it would rather be too much to say that the rule contained in para. 13 (1) of the order could have no application to the present case.
10. It was next argued that the impugned order was mala fide in that the appellant had a clean record of service in the presence of which there could be no justification for his retirement from service, and that the factum of mala fide could be gone into by this Tribunal notwithstanding the provisions contained in clause (1) of para. 13 of the Order. We are afraid, we cannot subscribe to the view so expressed by the learned counsel for the appellant, that the impugned order was mala fide. In this context, it may be pointed out that even if it be assumed for the sake of argument that notwithstanding the provisions of clause (1) of para. 13 of the Order, this Tribunal is competent to inquire into the ground founded upon mala fides., the appellant is faced with a further difficulty, and a formidable difficulty indeed, arising out of the factual as well as legal aspects of the matter.
In this connection, it may at once be stated that the appellant had not such a clean record of service as the learned counsel for him wants us to believe. He has a number of adverse entries recorded in his Annual Confidential Reports. In such a state of affairs, it was wrong to suggest that he had a clean record of service. It is significant to note that no particulars of mala fide have been given against the competent authority entitled to take action under section 13 (1) of the Act. All that has been mentioned in the grounds of appeal in this behalf is that no adverse entry had ever been recorded against, and conveyed to the appellant, and for that reason, the impugned order was arbitrary and mala fide in law. This fact by itself cannot support, even if accepted, the allegation of the appellant against the Government. There is no allegation that in taking the action against the appellant, the Government was influenced by any other motive than the one of public interest. The correct attitude in estimating the actions of Government is indeed that they must be regarded as having been taken bona fide until and unless contrary is established. In this connection, reference may be made to the case of Sai Muhammad v. West Pakistan Province (1) where it was observed by Cornelius, J. As he then was, as under :- "The correct attitude in estimating the actions of Government is indeed that they must be regarded as having been taken bona fide until and unless the contrary is established. It is, of course, only in a rare case that a question of good faith underlying a Governmental action can be raised with relevancy before the Courts, which are most frequently concerned with the extent to which such actions are covered by the terms of statutory instruments. But where the question arises, it is entirely proper and greatly in the public interest that the presumption of good faith should be raised in favour of the action."
'This observation was confirmed by the Supreme Court in the case of Imtiaz Ahmad v. Ghulam All (2).
' In the present case, there is nothing on the record to suggest that in taking the action against the appellant, the competent authority entitled to take action was influenced by any other motive than the one of public interest. That being so, a mere plea of mala fide taken by the appellant can be of no avail to him.
11. Lastly it was submitted by the learned counsel for the appellant that action under clause (I) of section 13, can only be taken in the public {{FOOT NOTE}}
(1) P L 1958 SC 181 (2) PLD 1963 SC 382 {{FOOT NOTE}} ' interest and that from the facts of the present case, it could not possibly he inferred that the action taken was in the public interest. This argument is founded on a misconception of law on the point. There may be a variety of reasons which may impel the competent authority to retire an officer on his having completed the period of service qualifying him for pension. If from materials disclosed it does not appear that the action taken was merely in colourable exercise of or in abuse of power, the presumption would be that the action taken was in the public interest. We have not been referred to any materials to show that the order of retirement passed against the appellant was in colourable exercise of or in abuse of power of the competent authority. It being so, the presumption would be that the order was passed in the public interest.
13. From the discussions given above, it is manifest that the present appeal is hit by the provisions of para. 13 (1) of the Order. Since the appeal was pending immediately before the commencement of the Order, the language of which is pre-emptory, the proceedings in the appeal abated ipso facto by observation of law. A formal order of this Tribunal was, therefore, not necessary to terminate the proceedings. The appeal is disposed of accordingly.