' MUHAMMAD ZAHOORUL HAQ, J.-This is a petition directed against the Order issued by Registrar University of Sind dated 15-3-1972 who had issued a list of the teaching administrative staff members of the University who stood retired w. e. f. 13-3-1972 from their service as per Martial Law Regulation No, 115 issued by the President and Chief Martial Law Administrator. The name of the petitioner was No, 2 on that list. The petition had been filed on numerous grounds but today Mr. Usman Ghani Rashid has confined himself only to one ground namely that the impugned order had not been issued by the competent authority and in any case the petitioner was not a member of Provincial Services although he was holding a post in connection with the Provincial affairs. Mr. Usman Ghani Rashid has read before us the definition of competent authority under M. L. R.
115. The competent authority means the President or Governor of a province of any officer or authority if authorised by the President. Mr. Usman Ghani Rashid has contended that the Registrar of the University of Jamshoro had not been authorised by the President to issue retirement order under Martial Law Regulation 114. The position as to who passed the impugned order seems to be completely confused. In the petition on page 3 in the last para it had been stated that on 12-3-1972 Mr. Ghulam Mustafa Jatoi had declared that the services of the petitioner alongwith others are no more required under Martial Law Regulation 114 and thereby 1,345 persons in Government service or in Corporation service were retired and the said retirement was purportedly effected under the orders of the President. In paragraph 8-A (ii) of the petition the petitioner has stated that he was retired under M. L. R. 114, dated 13-3-1972 by announcement on Radio. The petitioner has also stated that the employees of respondent No, 3 could not be retired by the Governor of Sind and the order passed for the retirement of the petitioner by the Governor of Sind is prima facie without jurisdiction. In the prayer clause the petitioner has sought a declaration that the retirement of the petitioner may be declared as illegal and null and void. On page 4 of the petitioner in the last but one paragraph the petitioner was shown that on 17-3-1972 he submitted his Review Petition in accordance with M. L. R. No, 116 to the Chief Martial Law Administrator (Establishment Division). The petitioner has not produced the copy of that petition before us. The whole tenure of the petition is that the very enactment of Martial Law Regulation 114 by the then C. M. L. A. And President of Pakistan and the consequent action was being challenged as mala fide. But Mr. Usman Ghani has given up that contention now. It is not certain from this petition as to which particular order the petitioner has challenged. However, the petitioner appears to be under the impression to have been retired under the orders of the President of Pakistan. But the position as it appear from the perusal of all these submissions is that the petitioner was not certain as to under whose orders and how he has been retired. The only document produced by the petitioner is an order of the Registrar of Jamshoro University.
' Notice of this petition had been issued to the respondents in 1973 and the respondents are Islamic Republic of Pakistan, the Province of Sind as well as the University of Jamshoro. And yet in spite of this notice there is no counter-affidavit filed by them. No order from the President of Pakistan retiring the petitioner has been produced by the respondents. The contentions in the petition have not been controverted by the respondents. Mr. Aziz Munshi, Dy. Attorney-General has stated that the Government of Pakistan has filed preliminary objection on 16-5-1974. However, this preliminary objection is merely on the technical point that this Court cannot scrutinise action taken under Martial Law Regulation 114, in view of Article 281 of the Interim Constitution of .1972 and/or Articles 269 and 270 of the Constitution of the Islamic Republic of Pakistan. There is no mention in this preliminary objection that the action against the petitioner has been taken by the President of Pakistan. Nor the Sind Government has come forward with any Notification where the Governor of Sind had retired the petitioner. Nor is there any authority produced showing that the Chief Minister of Sind had been duly authorised, by the President of Pakistan to retire the petitioner. There is no Notification produced by the Government of Pakistan where the petitioner is shown to have been retired by the President of Pakistan nor any Notification has been shown where the President of Pakistan had authorized Registrar of Jamshoro University of Sind to act as a competent authority under M. L. R.
114. Even the Jamshoro University has not been able to produce any Notification showing that it was the President of Pakistan who had taken any action against the petitioner and retired him or that the Registrar of Jamshoro University had been given the powers under Martial Law Regulation 114.
The net position, therefore, is that the petitioner was not certain as to under what orders he has been retired and he was, therefore, groping in the dark and had, therefore, sought a declaration that his retirement was without lawful authority. On record it is only the written order of the Registrar of Jamsnoro University which is the only basis for his retirement. This order of Registrar of Jamshoro University is evidently not an order under Martial Law Regulation 114 as no such authority has been shown to be existing in the said Registrar. The said order has, therefore, to be declared without lawful autnority. We may note here that Mr. Usman Ghani Rashid has not challenged before us the vires of Martial Law Regulation 114 nor he has now challenged the authority of the President of Pakistan in that respect and he has merely confined himself to the position that there is no authority in the Registrar of Jamshoro University under M. L. R. 114.
' In the case of Fauji Foundation v. Shamim-ur-Rehman (1), while interpreting the case of Ziaul Rehman v. State (2) in respect of scope of Article 281 of the Interim Constitution it was reiterated that Article 281 had given validity to the Martial Law Regulation enacted earlier without ousting the jurisdiction of the Courts. In PLD 1973 SC 49 it had been held that Article 281 had legalised the Martial Law Regulation but it had not ousted the juris of the superior Courts in respect of the actions taken under those Martial Law Regulations if those actions, were mala fide, coram non judice or without jurisdiction, Therefore, if an action under M. L. R. 114 was shown to have been-taken by the President of Pakistan or by some one duly authorised by the President then this Court had no jurisdiction. But if the action under M. L. R. Is taken by some one who was not duly authorised to take such an action then it would be case of action without jurisdiction. Then the c authority of the superior Courts to scrutinise those actions is not ousted. The action of Registrar of Jamshoro University thus appears to be without jurisdiction. Consequently it is hereby declared that the order of Registrar, Jamshoro University, dated 15-3-1972 retiring the petitioner was without lawful authority.
' Mr. Kishan Chand however, submitted that the Jamshoro University was merely a Corporation and relationship between the Corporation and its employees was therefore, a matter of relationship between master and servant. He relied upon PLD 1978 Lah. 298 where a Single Judge of Lahore High Court has held that relationship between University and the Lecturer was that of master and servant based on a contract and a dispute between the University and its employees was not fit for adjudication in our jurisdiction. However, the petitioner was alleged to have been retired by the University under Martial Law Regulation 114 and not on account of any desire or action on the part of the University itself under University law or Regulation and hence cited case is not applicable.
Since the action
(1) PLD 1983 SC 457 (2) PLD 1973 SC 49 ' of the University was not authorised under the Martial Law Regulation 114, therefore, it has been declared to be without lawful authority. The question of re-instatement of the petitioner in the University is a separate matter and we are not expressing ourselves on this point at all. We are simply holding that the action of retirement of the petitioner on 15-3-1972 by the Orders of Registrar of Jamshoro University under M. L. R 114 was not in accordance with law and was without jurisdiction. In any case the petitioner cannot seek re-instatement to his position in the University because he became 60 years of age on 12-10-1976, as stated by Mr. Kishan Chand and not controverted by Mr. Usman Ghani Rashid. With these observations the petition stands disposed of.