' G. M. KOUREJO, J.-The brief facts leading up to this application under O. XXXIX, 1 and 2 read with section 151, C. P. C. Briefly stated are, that petitioner No, 1 is an employee of Karachi Port Trust in the capacity of General Manager, Engineering, a post in the scale and grade of which maximum salary is not less than Rs, 1,100 per month. The terms and conditions of his service and service conduct are regulated as provided in sections 22(8), 23 and 24 of the Karachi Port Trust Act, 1886 read with rule 40(1)(a) controlled by Appendix E of the Karachi Port Trust Allowances Leave Rules. Rule 40(1)(a) read with Appendix 'E.' of the Karachi Port Trust Rules as amended envisages that employee of the grade of petitioner No, 1 shall retire from service either on such date as he has completed 25 years of service or competent authority in the interest of Trust directs or on completion of 60 years of age or at his option on completion of 25 years service provided that he serves three months notice or accedes to payment of three months salary in lieu thereof. On the admitted facts of the case, the petitioner No, 1 would complete 25 years' service in September, 1982 and as such he had not completed 25 years of service as yet. However, by letter No, C. B.-884/80 dated 21st December, 1980 issued by the respondent No, 3 the Federal Government seems to have decided to retire the petitioner No, 1 from service with immediate effect. It was further decided that the L. P. R. As may be due under the rules will be admissible if he applies for within one month of the date of the issue of the letter. Before this order of premature retirement was served on petitioner No, 1 he filed Constitutional Petition No, 1728/80, out of which this application for temporary injunction arises, challenging the contemplated action as being illegal and without lawful authority. Ad interim order of stay was issued with notice to the respondents with the result that petitioner No, 1 continues to be in service holding the post' of General Manager Engineering. The repondents have appeared and contested the application, for temporary injunction.
2. The contentions raised on behalf of petitioner No, 1 are that the petitioner could not be sent on premature retirement except in due course of law. It is contended that it could legally be done so, under the provisions of sections 22(8), 23 and 24 of the Karachi Port Trust Act, 1886 and rule 40(1)
(a) controlled by Appendix `E` of the Karachi Port Trust Pay Allowances and Leave Rules or in accordance with directive issued under momorandum No, 1/4/79 C. V. Dated 15th November, 1979 which provides premature retirement of the officers or employees having completed or may be completing 25 years' service on 31st December, 1979 or if at all under the provisions of K. P. T.
Officers and Servants Efficiency and Disciplinary Rules, which provisions will not be applicable to the case of petitioner No, I as he would be completing 25 years of service in September, 1982. It has further been contended that petitioner No, being the President of the Karachi Port Trust Officers Association registered under the Industrial Relation Ordinance happens to have incurred the displeasure of respondent No, 3 on account of his alleged objectionable activities which in fact have motivated an alleged illegal action of premature retirement of petitioner No,
1. It has also been contended that the order of premature retirement was not served at all on petitioner No, 1 and that in view of ad interim order of stay having been served on respondent No, 3, he continues to be in service un interruptedly and that it would not be in the interest of public service that his service be dispensed with without the petition having been finally heard and decided one way or the other. It has therefore, been urged on behalf of the petitioners that prima facie case lies in favour o petitioner No, 1 and that balance of convenience is also in his favour and he would suffer an irreparable injury in case temporary injunction I refused to him.
3. On behalf of the respondents the contentions are, that the petitioner No, I has not been ordered to go on premature retirement under an of the above-mentioned provisions of law and rules. It has been contended that the impugned action has been taken against his under provisions of section 3 of Corporation Employees Special Power Ordinance, 1978. It has also been contended that he was served with the impugned order well in time and that he was allowed to continue in service only in order to comply with the orders of the Court. The motive allege against the respondent No, 3 for having managed the impugned order has been denied. It has been contended that neither prima facie case lies in favour of petitoner No, I nor the balance of convenience, and that he would not suffer an irreparable injury in case temporary injunction' is refused to him.
4. We have perused the affidavits and counter-affidavit filed in support of the respective contentions of the parties. We have also gone through the documents filed in support of their respective contentions and have also heard the learned counsel for the parties Mr. Abdul Hafeez Pirzada for the petitioners and Mr. Ali Ahmed Fazeel for the respondents. On the admitted facts of the case, impugned action has been passed under the provisions of section 3 of the Corporation Employees Special Powers Ordinance 1978, which reads as under:- "Certain persons to be liable to removal or reversion.-Notwithstanding anything contained in any law for the time being in force, or in the terms and conditions of service, a person in Corporation service appointed or promoted during the period from the first day of January, 1972, to the fifth-day of July, 1977, may be removed from service, or reverted to his lower post or grade, as the case may be, without notice, by the President, or a person authorised by him in this behalf, on such date as the President, or as the case may be, the person so authorised may, in the public interest, direct."
' There is material on the record to show that petitioner No, 1 was appointed in Karachi Port Turst in September, 1957 and was promoted from _ time to time, and his last promotion was in May, 1977 to the post of General Manager, Administration. It appears from the above-mentioned provisions of section 3, that the petitioner No, 1 having been promoted during the period between 1st day of January, 1972 and fifth day of July 1977, could only be reverted -to his lower post or grade and that he could not have been sent to premature retirement as has been done in his case. It has been contended on behalf of the respondents that promotion within the period would mean his appointment in the grade of the General Manager, Engineering and that his premature retirement would mean his removal from service within the meaning of section 3 of the Ordinance. It has been contended on behalf of the petitioner No, 1 that the post of the General Manager was never advertised and that the record shows that he was promoted to this post and that by no stretch of imagination can it be termed as his first appointment within the purview of section 3 of the Ordinance. In any case the authorities to take action under section 3 of the Ordinance have been mentioned therein and the learned counsel for the petitioner No, 1 has urged that no material is available for the present that Joint Secretary, Ministry of Communication, Ports and Shipping would mean the authority to take the impugned action within the purview of section 3 of the' Ordinance.
Be that as it may, it would not be advisable to enter into the niceties of law and rules, in the circumstances of the case at this interlocutory stage, as it might prejudice the case of the parties one way or the other.
' As regards the contention that the petitioner No, 1 was served with an order of injunction right in advance of the service of the order of ad interim stay, it would suffice to say that in that respect there is documentary evidence on the record which would require consideration at the time of final adjudication of the case. At present it is an admitted position that no charge-report showing taking over and handing over of the charge by petitioner No, 1 has been produced and petitioner No, 1 continues to be in service holding the same post un intreruptedly. He has also received the entire salary for the month of December, 1980. So far the alleged motive for the impugned action is concerned, there are allegations and counter-allegations, and in the facts and circumstances, they can be appropriately examined at the time of the final adjudication of the case. We would, therefore, in the facts and circumstances of the present case, find that prima facie case lies in favour of the petitioner No, 1.
5. Petitioner No, 1 is a qualified hand, and no specific act of neglect or mismanagement with regard to the working of the department has been attributed to him. Balance of convenience therefore, would lie in the continuity of the state of things existing over long years rather than in disturbing the situation on the basis of the impugned action which is allegedly tainted with mala fides and suffers from want of jurisdiction.
6. Petitioner No, 1 is also likely to suffer in reputation and his standing in public life would also be affected adversely on account of his premature retirement and he would likely suffer an injury of personal nature, which would not be compensated in terms of money. Accordingly, he is likely to suffer an irreparable injury as well.
7. We would, therefore, grant temporary, injunction as prayed for, till final disposal of the petition.
The application is allowed accordingly, with no order as to costs.