' ASLAM RIAZ HUSSAIN, J.-- Nasir Ahmad petitioner seeks leave to appeal against the judgment of the High Court dated 21-12-1983, dismissing his writ petition in a service matter.
2. Facts giving rise to the petition, briefly stated are that Nasir Ahmad joined service as a gazetted officer in the Government of Punjab in 1946. Later, he was selected by the Pakistan Public Service Commission and joined service in the Radio Pakistan on 16-4-1951. He was confirmed as a Director in the Radio Pakistan, Ministry of Information and Broadcasting in December, 1965 and completed 25 years of service as a Government servant qualifying for pension on 21-8-1971.
3. Pakistan Broadcasting Corporation (hereafter referred to as P.B.C.) was established under Pakistan Broadcasting Ordinance (LXVI of 1971), w,e,f, 20-12-1972. This Ordinance was later converted into Pakistan Broadcasting Corporation Act (No, XXXII of 1973) and was enforced with effect from 20-12-1973. Section 12 of this Act provides for the transfer, by the Federal Government, if the trained personnel of Radio Pakistan to the Pakistan Broadcasting Corporation. The relevant portion i,e, section 12(1) reads as follows:- "S. 12(1) Transfer of Radio Pakistan servants to the Corporation. -- Notwithstanding anything to the contrary in any contract or agreement or in the conditions of service, the Federal Government may, subject to the provisions of subsections (2) and (3), transfer persons in the service of Pakistan and serving in connection with the affairs of the department of the Government of Pakistan headed by the Director-General, Radio Pakistan, hereinafter referred to as Radio Pakistan, immediately before the commencement of this Act, including persons on deputation to other organisations in Pakistan or abroad, to the Corporation on the same terms and conditions to which they were entitled immediately before such commencement."
' Section 12(4) provides that the terms and conditions of the service of the members of the Information Service of Pakistan transferred to the P.B.C. Shall ' not be altered by the Corporation to their disadvantage.
' Section 19 of the Act provides that all assets and liabilities of the Federal Government in relation to Radio Pakistan, subsisting immediately before the commencement of this Act, shall vest in the Corporation unless provided otherwise by the Federal Government through a notification in the official Gazette.
4. The petitioner was transferred to the P.B.C, w,e,f, 20-12-1972 on the same terms and conditions as were applicable to him before transfer.
' The Federal Government also issued the following notification under section 19 of the said Act:- "In exercise of the powers conferred by section 19 of the Pakistan Broadcasting Corporation Act, 1973 (XXXII of 1973), the Federal Government is pleased to direct that:-
(a) the liability of the Federal Government in relation to Radio Pakistan shall, in so far as it relates to the pension and gratuity of the employees of Radio Pakistan that would have been payable had the employees been discharged from service and granted pension or gratuity for service rendered by them upto the 19th December, 1972, continue to be the liability of the Federal Government; and (b)
' The petitioner was first posted as Controller Administration but after sometimes he was posted as Controller Audience Research, He felt aggrieved and challenged this order through a writ petition before the High Court which was accepted. The petitioner was therefore again posted as Controller Administration. But, according to him, this gave rise to a bias against him.
5. In 1980, Regulations called Pakistan Broadcasting Corporation (Retirement from Service)
Regulations 1980; was enforced on 21-9-1980. Regulation 3 thereof reads as follows:- "3. Retirement."-(1) An employee shall retire from service:-
(i) on such date after he has completed twenty-five years of service qualifying for pension, gratuity or other retirement benefits as the competent authority may, in the public interest, direct; or
(ii) where no direction is given under clause (i), on the completion of the sixtieth year of his age.
(2) An employee may, at any time after he has completed twenty-five years of service qualifying for pension, gratuity or other retirement benefits, apply for retirement from service by giving not less than three months' notice of his intention to retire."
' The words employee and competent authority have been defined in Regulation 2. As follows:- "2. Definitions." -In these regulations, unless there is anything repugnant in the subject or context:-
(a) "employee" means a person transferred to the Corporation under subsection (1) of section 12 of the Pakistan Broadcasting Corporation Act, 1973 (XXXII of 1973), and includes a person employed by the Corporation on or after the twentieth day of December, 1972, but does not include a person serving in the Corporation on deputation from the Federal Government or a Provincial Government; and
(b) "Competent authority" means the appointing authority or a person duly authorized by the appointing authority in that behalf, not being a person lower in rank than the employee concerned."
6. The petitioner apprehended that action might be taken against him due to the aforementioned bias and he may be thrown out of service through premature retirement. He, therefore, addressed a letter to the Minister for Information and Broadcasting on 1-9-1981 in this respect. In answer thereto he received a memo. Dated 28-10-1981, from the Director-General. Subsequently on 27-12- 1981 he was retired from service by the Chairman, Pakistan Broadcasting Corporation in exercise of his powers under Regulation 3 of the aforementioned Regulation.
' The petitioner challenged this order of premature retirement through a writ petition in the Lahore High Court. The maintainability of the said writ petition was challenged by the respondent- Government on the ground that it was hit by Article 13 of the P.C.O. But since a number of similar petitions and appeals involving question of interpretation of Article 13 of the P.C.O. Were pending decision in the High Court, the learned Judge in Chamber instead of postponing the hearing of the matter before him and directing its fixation alongwith other connected cases, observed that:- ' we have not adopted this course as we have come to the conclusion that even on merits the impugned order warrants to be interfered with and as such there is no necessity to go into the question of interpretation of Article 13 of the P.P.C."
' The learned Judge in Chamber then went on to decide the writ petition on merits and held that as the petitioner had admittedly completed 25 years' qualifying for pension in his service with the Radio Pakistan (before transfer to the P.B.C.), he could be retired in exercise of the powers vesting in the Chairman of the P.B.C. Under Regulation No,3 of the Pakistan Broadcasting Corporation Employees (Retirement from Service) Regulations, 1980.
' He, therefore, dismissed the petitioner's writ petition.
' Feeling aggrieved Nasir Ahmad has filed the present petition for leave to appeal.
7. The main contention raised by petitioner's counsel is that three conditions precedent are necessary for exercise of powers under Regulation No,3 of the Pakistan Broadcasting Corporation Employees (Retirement from Service) Regulations, 1980, namely, (i) that the employee concerned should have served for 25 years in the P.B.C.; (ii) that his service in the other benefits; and (iii) that the order of retirement should have been passed by the 'competent authority'.
' He urged that reading of the letter transferring him to the P.B.C. And appointing him therein clearly shows that his appointment in the P.B.C. Was an entirely fresh appointment and that there had been a clean break in his service with the Government in Radio Pakistan. He urged that this view is further supported by a notification issued by the Government under section 19 of Act XXXII of 1973, according to which the Federal Government undertook to continue to bear the liability of paying the pension and gratuity etc. To the employees of Radio Pakistan transferred by it to the P.B.C. For the service rendered by them as Government servants in that department. The counsel, therefore, urged that the period of petitioner's service in Radio Pakistan could not have been counted for computing the number of years he had served in the P.B.C. For the purpose of Regulation No,3 of the Pakistan Broadcasting Corporation Employees (Retirement from Service) Regulations, 1980.
' He urged that the number of years for which he served in the P.B.C. (from 1972 to 1981) do not entitle him to pension or gratuity. He added that Nasir Ahmad petitioner had, indeed, served for 25 years in Radio Pakistan which entitled him to payment of pension and gratuity, etc. But if action of premature retirement had to be taken against him with respect to his service in the said department, then the 'competent authority' was the President of Pakistan and not the Chairman of the P.B.C.
8. The legal question raised by the learned counsel is an important one requiring determination by this Court. Another important question also arises in this case, namely, whether the case is hit by the provision of Article 13 of the Provisional Constitution Order which reads as follows:- "13. Bar of jurisdiction in respect of order of retirement of civil servant.-(1) 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 twenty-five 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.
(2) Any person of the order."
' In case it is hit by that provision, then, irrespective of merits of the case. The High Court could not have proceeded to decide the petition as it would have no jurisdiction to go into matter.
' Leave is, therefore, granted to consider the above-noted questions.
' The appeal shall be heard on the same record with permission to file additional documents.
9. If possible, the appeal may be fixed at an early date.