MUHAMMAD SAJID MEHMOOD SETHI, J. MEMBER. Through instant appeal, appellant has assailed show cause notice dated 20.09.2014, regarding initiation of proceedings under Section 12 of the Punjab Civil Servants Act, 1974 ("PCSA, 1974"), notification dated 02.06.2015, whereby appellant was retired, from service and order dated 15.07.2015 (all issued by respondent) dismissing his representation.
2. Brief facts of the case are that appellant was appointed as Civil Judge on 29.05.1998, was confirmed in service and remained posted at different stations in Punjab. A show cause notice dated 20.09.2014 was issued to appellant with the allegation that he earned adverse remarks in the PERs for the periods from 01.01.2007 to 31.12.2007, 02.05.2011 to 29.11.2011 & 01.012013 to 31.12.2013 and complaint C.O.125/14 was also pending against him, therefore, he was liable to be retired under Section 12 of the PCSA, 1974, keeping in view the verdicts of Hon'ble Apex Court vide orders dated 09.06.1990, 12.12.2005 and 04.04.2006, passed in CPLA No.549 of 1986 titled Saeed Ifzal Agral, ex- Civil Judge v. Lahore High Court and others, C.P.2866/L/2003 titled Muhammad Nazir Bosal v.
Lahore High Court and another and C.Ps No.3252-3254/2003 titled Naeem Mohy-ud-Din v.
Lahore High Court, Lahore, respectively. Appellant filed written reply to the show cause notice, which was found unsatisfactory and consequently, he was retired from service by invoking provisions of Section 12 of the PCSA, 1974, vide Notification dated 02.06.2015. Feeling aggrieved, appellant filed representation, which was dismissed vide order dated 15.07.2015. Hence, instant appeal.
3. The appellant submits that adverse remarks passed in PERs in question are result of personal grudge, personality clash, unfairness and biasedness of the learned Reporting Officers and not supported by any iota of evidence. He adds that special reports dated 11.10.2011, 10.11.2011 and 20.01.2012, furnished by concerned District & Sessions Judges show appellant's work, conduct and integrity as satisfactory. He further submits that his representations against adverse remarks were not decided despite repeated personal hearings, however, fate of show cause notice has been decided only after one personal hearing without conducting any detailed disciplinary proceedings transgressing all norms of justice. Appellants contends that his service was less than the threshold of twenty years provided in Section 12, hence, the proceedings are null and void. In the end, he submits that impugned show cause notice, notification and order are unsustainable in the eye of law.
4. Conversely, learned Legal Advisor for respondent, assisted by learned Assistant Advocate General, submits that allegations and derogatory remarks against senior Judicial Officers / Reporting Officers are without any proof, thus, are not legally maintainable. He adds that tarnished record of appellant's service suggests that he had not been performing his duty honestly, diligently and to the entire satisfaction of his superiors. He further submits that impugned notification of appellant's retirement was issued after meeting with all necessary legal and codal requirements.
5. Arguments heard. Available record perused.
6. Admittedly at the time of issuance of impugned show cause notice, appellant had 16-years, 04- months & 21-days service and on issuance of impugned retirement Notification, his total service was 17-years & 03-days. The prime question for determination by this Tribunal is that whether provisions of Section 12 of the PCSA, 1974, specifically sub-section (1Xi), had rightly been invoked by the competent authority. The aforesaid provision is reproduced hereunder for ease of reference:--- "12. Retirement from service.- (1) Civil Servant shall retire from service-
(i) on such date after he has completed twenty years of service qualifying for pension or other retirement 'benefits as the competent authority may, in public interest, direct; or
(ii) where no direction is given under clause (i):
(a) on completion of the sixtieth year of his age; or
(b) voluntarily, on completion of twenty five years of service or on attaining fifty five years of age, whichever is later.
(2) No direction under clause (i) of sub-section (1) shall be made until the Civil Servant has been informed in writing of the grounds on which it is proposed to make the direction and has been given a reasonable opportunity of showing causing against the said direction."
It is evidently clear from afore-referred provision that the prerequisites i.e. (i) civil servant must have completed twenty years of service at his credit for pension or other retirement benefits; (ii) existence of element of public interest; (iii) provision of grounds for taking such action; and (iv) reasonable opportunity of showing cause against the proposed action, must co-exist for invoking said provision. The legislature has taken care of incorporating all legal and constitutional safeguards 'in afore-referred provision so as to ensure that the civil servants could be safe and secure from any unilateral, mala fide and unlawful retrenchment. The object of Section 12 is to develop efficiency and discipline and achieve good governance in the civil service. A civil servant who has served a considerable length of 20 years with a minimum level of efficiency loses legitimate expectancy to perform better in future and only want to stay with the sort of performance, which' may be in his / her interest, but certainly not in the interest of public.
7. We are mindful of the fact that there is basic difference between retirement under section 12(i) of the Punjab Civil Servants Act, 1974, and Section 4(b)(ii) of Government Servants (Efficiency and Discipline) Rules, 1973, as retirement in terms of former provision is not a punishment and civil servant get all service benefits without any stigma whereas compulsory retirement under latter provision is a punishment. Ordinarily, an order under Section 12 is not interfered with as satisfaction of the competent authority regarding efficiency and performance of an employee is not to be substituted by the Court or Tribunal with its own opinion on the basis of analysis of the record. The justiciability of Section 12 is restricted to the fulfilment of necessary conditions contained therein.
The proceedings under Section 12 without satisfying the requirement mentioned therein are not proper to deprive a person from his / her legitimate right of service as source of earning. Reference can be made to Muhammad Qadeer and 2 others v. Secretary, Defence Production Division, Government of Pakistan and others (2003 SCMR 1804), Chairman, Central Board of Film Censors, Islamabad and another v. S. Muhammad Ali Shah [2004 PLC (C.S.) 707] and Atta Rabbani v. Secretary Education, Government of the Punjab, Lahore and 3 others (2006 SCMR 978).
8. As discussed in opening lines of Para 6, first condition of completion of twenty years, service was not satisfied, thus, impugned retirement Notification could not have been issued, besides commenting on remaining conditions. Respondent, while submitting reply to para 25 of the appeal regarding non-fulfillment of Section 12(1)(i), simply stated that That ground 25 is incorrect and is denied. During arguments, learned Legal Advisor for respondent as well as learned Assistant Advocate General could not dispute this legal as well as factual position of the matter. In these circumstances, there existed no valid justification to initiate and finalize proceedings under Section 12 ibid.
9. Needless to say that when initiation of proceedings under the provision of. Section 12 of the Punjab Civil Servants Act, 1974 is illegal and without lawful authority, the whole series of subsequent orders falls to the ground. In this regard, reference can be made to Talib Hussain and others v.
Member, Board of Revenue and others (2003 SCMR 549), Moulana Atta-ur-Rehman v. Al-Hajj Sardar Umar Farooq and others (PLD, 2008 Supreme Court 663), Faisal Jameel v. The State (2007 MLD 355), Secretary Communication and Works Department Government of Balochistan and others v. Dad Baksh and another (2013 CLC 343) and Muhammad Iqbal v. Muhammad Ahmed Ramzani and 2 others (2014 CLC 1392). It is also well-established that when the law requires an act to be performed in a particular manner that has to be done in that manner and not otherwise.
10. In view of the above, instant appeal is allowed and impugned show cause, notice dated 20.09.2014, retirement notification dated 02.06.2015, and order dated 15.07.2015, issued by respondent are set-aside and appellant shall be reinstated into service. The respondent is at liberty to proceed against appellant afresh in accordance with law. However, the matter to the extent of back benefits is remanded to respondent for its determination in the light of law laid down by Hon'ble Apex Court in Sohail Ahmed Usmani v. Director-General Pakistan Civil Aviation Authority and another (2014 SCMR 1843), Inspector General of Police, Punjab v. Tariq Mahmood (2015 SCMR 77) and Muhammad Sharif and others v. Inspector General of Police, Punjab, Lahore and others (2021 SCMR 962).