' ABDUR RASHID (MEMBER).-The appellant, S. Aijaz Ali joined the Customs House, Karachi as an Upper Division Clerk on 1st of May, 1951. On 31st May, 1976 he was appointed Appraiser, an appointment which was in grade 13.
2. The appellant was retired from service under section 13 (ii) of the Civil Servants Act, 1973, vide Office Order No. 74/1980 Estt. A dated 12th February, 1980, which was signed by the Collector of Customs, Appraisement (Abrar Hussain Naqvi)? Whereas the said Collector of Customs passed the impugned order of retirement on 12th February, 1980 it was given retrospective effect from 30th January, 1980.
3. As per direction contained in the said retirement ()riper, the appellant applied for leave preparatory to retirement, vide his application dated 13th February, 1980, the day he received the order.
4. The appellant preferred an appeal, dated 19th March, 1980 against his retirement to the Member (Customs), Central Board of Revenue, wherein among other things, at para. 4(g) he said:- "That the President of Pakistan has duly announced as the Chief Executive of the State that the posts of Appraisers have been upgraded to Grade-13. The applicant/appellant being the incumbent of the post of Appraiser is, thus, Grade-17 Officer and without prejudice to the above contention, in his case the "competent authority" in any case would be the Central Board of Revenue and not the Collector of Customs, Customs House and as such the impugned order is illegal without jurisdiction and void in the eyes of law."
5. The Central Board of Revenue vide letter No. 16/7/80-ACE11 dated 2nd August, 1980 rejected his appeal, where after the appellant came to the Tribunal for relief on 19th August, 1980.
6. We heard the learned counsel for the appellant who raised the following issues before us :-
(a) The office order No. 74/1980-Estt. A dated 12th February, 1980, retired the appellant from 30th January, 1980. Nobody could be retired retrospectively and hence the nullity of the said order, in the eyes of law.
(b) Pursuant to President's order dated 2nd October, 1978, the posts of Principal Appraiser and Appraiser in the Customs Department were upgraded from grades-16 and 13 respectively to grade-17. The appellant who had been holding the post of Appraiser since 31st May, 1976 stood upgraded to grade-17 automatically. However, the President's order dated 2nd October, 1978, was given effect to, from 1st March, 1979, vide Gazette Notification No. 155-ACE, 80 dated 15th September, 1980 published in the Gazette of Pakistan on 24th September, 1980 but by then the appellant, by virtue of his retirement order dated 12th February, 1980 had already proceeded on L. P. R. With effect from 13th February, 1980, and that is why his name was omitted from the list of his colleagues published, vide the said Gazette notification dated 24th September, 1980.
(c) The appellant, being a Grade-17 Officer with effect from 1st March, 1979 could not be retired by the Collector of Customs (Appraisement), because, in the case of the appellant, the Competent Authority was the President of Pakistan and hence the ab initio nullity of his retirement order.
(d) The appellant had been retired as a case of mistaken identity. Someone else of a similar name was to retire.
(e) The appellant had been granted L. P. R. For 365 days from 12th February, 1980 and on expiry of his leave he stood retired with effect from 11th February, 1981 (A. N.), vide Collector of Customs letter No. 5.37-3/80/LCus/S. R. Cell dated 24th May, 1980.
7. Ordinarily, this case of retirement would have abated under section 13(1) of the Provisional Constitution Order of 1981, but for the determination by us as to whether the appellant had been retired correctly by the Competent Authority or otherwise. The issue involved for adjudication by us could be summarized as under:-
(a) At the time of his retirement on 12th February, 1980, the appellant was, no doubt, in grade-13 as an Appraiser. However, well before this date, on 2nd October, 1978, the President of Pakistan had ordered the up gradation of the posts of Appraisers and Principal Appraiser to Grade-17. This order was implemented; vide Gazette notification dated 24th September, 1980, when the appellant had already retired. However, the date (1st March, 1979) on which it was made effective, the appellant was in service. Whether or not the appellant could be deemed to have been placed Grade 17, along with his other colleagues due to retrospectively (1st March, 1979) of the Gazette notification dated 24th September, 1979.
(b) Were the posts of Appraisers upgraded with effect from 1st March, 1979 automatically along with the incumbents of the posts or were any Departmental Promotion Committee proceedings conducted to promote only those Appraisers who were considered suitable?
(c) What is the sanctity of the order of appellant's retirement passed by the Collector of Customs (Appraisement), on 12th February, 1980, with retrospective effect from 30th January, 1980 and how will the shape of things be, if this order of retrospective retirement is set aside?
8. There is no doubt that the President's order upgrading the appointments of Appraisers and Principal Appraisers was issued on 2nd October, 1978. It was given effect from 1st March, 1979. On both these dates, the appellant was in service. More importantly, the appellant was in service on 1st March, 1979, the date from which the Gazette Notification No. 155-ACE-80 has been made effective.
That this Gazette notification was published rather late on 24th September, 1980 when the appellant had already retired, cannot be allowed to work to his disadvantage, *Should have been 11th February, 1981 but the Collector's Office chose to write it as 1ith February, 1980. Simply because the appellant had ceased to be in service at that time. The effectiveness of the Gazette notification shall reckon from 1st March, 1979 and all those who were in service on the said date shall stand benefited including the appellant who would be deemed to have been placed in grade-17 with effect from 1st March, 1979.
9. As to the question at 7 (b), we had posed this question to the Central Board of Revenue who had been given enough time to provide us the answer. Even after a lapse of over four weeks, they have failed to communicate to us, whether the posts of Appraisers were upgraded alongwith the holders of the posts without any Departmental Promotion Committees being convened. We shall, therefore, presume that the posts of Appraisers were upgraded together with the Appraisers. As' such, the appellant stood upgraded to the grade-17 post of Appraiser, which he was already holding on 1st March, 1979.
10. As to pars. 7 (c) above, the respondents reply (signed for Collector of Customs, Customs House, Karachi) by Hasan Imam Wash is : "..... It is submitted that the Appellant was decided to retire with effect from 30th January, 1980 but as he was in service up to 1st January, 1980, his retirement was practically commenced with effect from 13th February, 1980."
11. Whoever has signed the above reply may, perhaps, know what is meant by what has been said.
We are simply unable to make anything out of it except to say that it speaks volumes of carelessness. Such staff work as does not serve any useful purpose should better be avoided.
12. We have no doubt that the order of retirement, dated 12th February, 1980, retiring the appellant retrospectively, with effect from 30th January, 1980, cannot be sustained and must be struck down as being void ab initio. In this connection, the case of Province of Punjab v. Khan Khaliq Dad Khan (1), is cited at p.
300. In this case, in which a civil servant had been dismissed with retrospective effect, it was held that it was only the legislature that could give retrospective effect to what it ordained. "The Government has only power to dismiss and a power to dismiss does not imply a power to say: a dismissal shall be deemed to have taken place on such and such date. At least in the absence of an authority from the legislature, express or necessarily intended, no such power can exist."
13. As to whether the appellant's retirement resulted due to mistaken identity, it was denied by the learned State counsel. The learned counsel for the appellant did not prove it conclusively either. We shall, therefore, presume that it was NOT a case of mistaken identity.
14. In view of the foregoing averments, we accept the appeal and hold that the appellant's order of retirement dated 12th of February, 1980 passed retrospectively by the Collector of Customs (Appraisement) with effect from the 30th January, 1980 being void ab inito, the appellant shall be deemed to be in service. He will be deemed to have been promoted to Grade 17 with effect from 1st March, 1979. He shall be entitled Italicized by us to indicate that it should have been 12th February, 1980 but was carelessly communicated to us as 12th January, 1980 {{FOOT NOTE}}
(1) PLD 1953 Lab, 295 {{FOOT NOTE}} ' to pay and allowances of Grade 17 including increments but excluding such amount of money as he may have earned from the date of his retirement till the date of his rejoining as a result of this order.
15. Even if the impugned order of appellant's retirement by the Collector of Customs (Appraisement) had been correctly passed, but had treated the appellant as a grade 13 employee, we would have still set I aside because we hold that the appellant stood promoted to grade 17 with effect from 1st March, 1979 when he was in service and that the inordinate delay in the publication of the desired Gazette notification, as has happened in this case, could not be allowed to work to his disadvantage.
16. Should the respondents desire to retire the appellant from service, the orders of the appropriate Competent Authority must be obtained in view of his changed status.
17. No order as to costs.