' Syed Mabmood, Chief Research and Development Officer, Pakistan Railways, filed this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 challenging the notification dated 23rd November, 1980 whereby the President of Pakistan in exercise of the powers conferred by clause (ii) of section 13 of the Civil Servants Act, 1973, was pleased to direct that the petitioner shall retire from service on 24th November, 1980 or if any leave preparatory to retirement is applied for by him within one month of the date of this notification and granted to him on the expiry of such leave. Pakistan Railways Board through its Chairman and the Federation of Pakistan are the respondents.
2. On 10th December, 1980 report and comments were called for from both the respondents and in the meanwhile status quo was to be maintained. On 22nd December, 1980 when the petition came up for hearing, the petitioner requested for modification of the stay order and direction to the respondents to unlock his room so that he may sit and perform his functions. The same day, the Federal Government sent a written request for extension of two weeks' time to submit their report.
As the report had not been submitted, 1 declined to modify the interim order of status quo dated 10th December, 1980. The report was submitted by respondent No, 1 on 13th January, 1981 and the petition was admitted to regular hearing on 20th January, 1981. On 16th February, 1981, I suspended the impugned notification but this was subject to notice.
' On 25th February, 1981 Mr. Irshad Hassan Khan, Deputy Attorney-General, appeared for respondent No, 2 and made a statement at Bar the details of which are not necessary to mention here. He also placed on record a note of the Joint Director to the effect that the Railway Board was prepared to grant leave to the petitioner w. e. f. 25th November, 1980 in pursuance of the impugned notification with the result that after availing his leave preparatory to retirement, the petitioner will stand retired on 30th April, 1981 alongwith the benefits permissible under the rules. In view of the statement made at the bar by the learned Deputy Attorney-General, I recalled my earlier order of suspension of the impugned notification.
' At one stage, this petition was to be heard alongwith number of Intra-Court Appeals where the point involved was the same as in the present petition. But as the petitioner was to retire on 30th April, 1981, he requested that this petition be heard separately. This request was allowed by my order dated 12th April, 1981 and the office was directed to set down this case for final arguments on 18th April, 1981. But on 29th March, 1981 an objection was raised by the learned counsel for the Railway that in view of Article 13 of the Provisional Constitution Order, 1981 (hereinafter called as the Order), this petition and similar other petitions stand abated. As, Mr. Irshad Hassan Khan, Deputy Attorney-General was not present on that day, the case was adjourned to 5th April, 1981. On the said date, Mr. Irshad Hassan Khan, sent a written request for adjournment on the ground that he was leaving for Karachi. Thereafter Syed Iftikhar Ahmad Shah, Deputy Attorney-General appeared for respondent No,
2. He pressed into service the objection taken earlier by the counsel for the Railway which was to the effect that in view of Article 13 of the Order, this petition and similar other petitions stand abated. 1 am not concerned with the "other petitions" but in the present petition, I have to determine whether the objection raised by the learned Deputy Attorney-General supported by the learned counsel for the Railway, is to be upheld or not. The learned Deputy Attorney-General submitted that while determining the point I should keep in mind Article 212 of the Constitution as well as the oath had taken under the Order of 1981. I am fully alive to both these points and keeping them in mind I shall deal will this important issue.
3. The order was published on the 24th of March 1981 and came into force at once. According to Article 2 of the Order, certain provisions of the Constitution are to form part of the Order. Article 199 of the Constitution is not included in these which means that it has been deleted.
' Article 9 deals with the jurisdiction of a High Court. Its sub-Article (1) is verbatim the same as Article 199 of the Constitution. Sub-Article (4) deals with those cases where a High Court shall not make an order under this Article. The objection raised by the learned Deputy Attorney-General does not come within the ambit of the aforesaid sub-Article. But in support of his objection, he has relied on Article 13 which provides "bar of jurisdiction in respect of order of retirement of civil servants" and reads as follows :- "Where a person in the service of Pakistan has been or is retired from service under the orders of the competent authority after he has completed 25 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". (Underlining is mine).
' Sub-Article (2) of Article 13 provides the remedy for an aggrieved person by way of review before the competent authority.
The point urged by the learned Deputy Attorney-General was that the aforesaid provision leaves no room for doubt that superior Courts and even a Service Tribunal is debarred from entertaining any proceedings calling in question the validity of an order of competent authority on any ground whatsoever. This provides a complete ouster of jurisdiction of the aforesaid Courts. But so far as pending proceedings are concerned, those are also hit by this Article because any such proceedings pending before any such Court or Tribunal immediately before the commencement of this Order, shall abate forthwith.
' Learned counsel for the petitioner did not accept this position and submitted that abasement shall not be automatic but this Court is still. Under a legal obligation to determine two important aspects before deciding the question of abatement. The points to be determined are whether the order passed by a competent authority after the person aggrieved has completed 25 year' service.
' Number of petitions are pending in this Court, some before Single Bench and others in D.B. Where similar notifications have been challenged. I myself have dealt with such petitions in D.B. Lengthy arguments were advanced on both sides but those where confined to the application and interpretation of Article 212 of the Constitution because uptil then the Order had not come into force. Large number of authorities were cited by both the sides but I don't think that it is necessary to mention those because those primarily concern with the application and interpretation of Article 212 of the Constitution whereas the point before me is to first decide the question of abatement.
4. I am unable to agree with the learned Deputy Attorney-General that abatement shall be automatic. I am of the view that before deciding the question of abatement, two important factors shall have to be determined which go altogether and those are whether a person aggrieved has been retired by a competent authority and that he has completed 25 years of service. The question is that where a person has not completed .25 years of service but has put in only 23 years of service and he is retired by a competent authority under bona fide impression that he had B completed 25 years' service, then what would be his remedy. The reply given by the learned Deputy Attorney-General was that he can file a review petition before the competent authority. This is the correct position and upto the extent I am inclined to agree with the learned Deputy Attorney- General. But when one goes a step further, for instance action has been taken though by a competent authority but in a mala fide manner when the person concerned has not even completed 25 years ofl service, then I don't think the remedy of review provided in sub-Article (2)1c of Article 13 will be the proper remedy under this Order although the reply of the Deputy Attorney- General still was that he must file a review] *[Here in italics] ' petition. Still worst will be the case of a person who has been made to retire mala fide not by a competent authority and not on completing 25 years of service. To say that even in a case like this, the remedy will still be a review, will be mockery of justice.
5. Now, I may deal with the oath taken by me of which I was reminded by the learned Deputy Attorney-General most probably as a part of his advocacy or duty. Be that as it may, the oath taken by me under the Order of 1981 is as follows :- "I. ... Do solemnly swear that I will bear the faith and allegiance to Pakistan : That as a Judge of the High Court for the Province of Punjab, I will discharge my duties and perform my functions honestly, to the best of my ability and faithfully in accordance with the Provisional Constitution Order, 1981 and the code of conduct issued by the Supreme Judicial Council..........., and That, in all circumstances, I will do right to all manner of people according to law, without fear or favour affection or ill-will."
' I am sure that under this very oath I have to discharge my duties and perform my functions honestly to the best of my ability and faithfully in accordance with the Order and that, in all circumstances, I shall do right to all manner of people according to law, without fear or favour, affection or ill-will.
' My task is to interpret the relevant provision without fear or favour in accordance with law, referred to above. I am not striking down nor I am being called upon at present to decide the question of validity of the Order. I, therefore, don't think that I am not abiding by the oath.
6. For the reason given above, I am clear in my mind that before determining the question of abatement, I am under a legal and Constitutional duty under the Order to first determine whether the order of the petitioner's retirement has been passed by a competent authority after the completion of 25 years of service. It is only after this issue has been decided that the question whether this Court has jurisdiction to deal with such a petition will arise. Therefore, the objection taken by the counsel for the respondents is repelled. As the petitioner is to retire on the 30th of this month, it will be in the interest of justice to decide this petition before the said date. I am told that all such cases are now to be dealt with by a D.B. I, therefore, direct the office to fix this petition before any D.B. Except that of mine because I have already expressed my opinion.