' A.O. RAZIUR RAHMAN (MEMBER).-The appellant, who was an employee of the Government of Pakistan, Ministry of Commerce and was serving as Deputy Registrar of Trade Marks from 8th September, 1970, was compulsorily retired from service ander M. L. R. 114 by Notification No, 2/2/72- DA, dated 18th April, 1972 by the Cabinet Secretariat (Establishment Division) as one of the persons prematurely retired from the Provincial Civil Service (Judicial), Government of N.-W. F. P, in exercise of the powers conferred by sub-paragraph (1) of paragraph 3 of Martial Law Regulation 114, issued by the Chief Martial Law Administrator. In the said notification, the name of the appellant was shown in the list of P. C. S. (Judicial) officers of the Government of N.-W. F. P., but .His designation was shown as Deputy Registrar, Trade Marks, Government of Pakistan, Karachi. In pursuance of this notification, he retired from service with effect from 18th April, 1972. He came up in appeal before the Tribunal after its establishment, through his Memo. Of Appeal, dated 16th August, 1974. The appeal was admitted for hearing on 16th September, 1974. But, on the date of regular hearing, namely, 16th July, 1975, a preliminary objection was raised on behalf of respondent No, 1, namely the Establishment Secretary that the appellant was not a civil servant within the meaning of Civil Servants Act, 1973 and, therefore, the Federal Service Tribunal had no jurisdiction in the matter, for which reason the appeal was liable to dismissal. The Tribunal, therefore, heard the parties on this preliminary objection and, on the basis of the majority opinion, dismissed the appeal on the ground that the appellant was a deputationist and, as such, outside the jurisdiction of the Tribunal.
Thereafter, the Appellant took the matter to the Supreme Court, who, after hearing the parties, by their judgment, dated 23rd February, 1983, decided that the appellant was a civil servant, within the meaning of the Civil Servants Act, 1973 and, accordingly, remanded the appeal to the Tribunal for hearing afresh and disposing of according to law. The matter came up before us for final hearing on llth October, 1983 and is being disposed of by this order.
2. The main grounds on which the appeal has been preferred are that the appellant was prematurely retired from service, on the basis of the recommendation made by the Peshawar High Court, at a time when he was no longer a member of the P. S. C. (Judicial) of the N.-W. F. P.
Government and, therefore, not liable to be retired on the basis of the recommendation made by the Peshawar High Court. It has. Been further contended by the Appellant that the retirement order was based on a single adverse entry pertaining to the year 1969, to the effect that the officer did not appear outwardly living within his means. This, it was claimed, was not sufficient for retiring him from service, specially because the appellant's representation for expunction of the adverse entry was sub judiee and had not been finally disposed of. It was also stated that the inclusion of the appellant's name in the list of persons retired from service was not a bona fide act but a mala fide and arbitrary exercise of assumed power and that the officers who included his name in the list did so from considerations other than those of merit. In this connection, our attention was drawn to the fact that the Countersigning Officers, who had recorded the adverse remarks against the appellant had not allowed his application for expunction of the adverse remarks to be forwarded to the Government but had themselves considered and filed the application, which meant that they had decided the question themselves, when, actually, a matter like this called for a decision by another authority. The appellant also drew our attention to the unpleasantness subsisting between him and one of the Judges of the High Court, who was among the Countersigning Officers who recorded the adverse remarks, which, according to him, was at the root of the adverse remarks passed against him and the refusal of the High Court to send up the application for expunction of the adverse remarks. The stand of the respondents is contained in the written objections filed by them three days before the final hearing of the case on 11th October, 1983. According to them, the Appellant was not a civil servant, since he continued to have a lien on his post in the N.-W. F. P. And he was retired from service on the basis of his record as a P. C. S. (Judicial) Officer of the N.-W. F. P. It is also contended by them that there was no malice or mala fide involved, either in the action taken against him or in the adverse remarks recorded against him. It was also stated that the recommendation of the Judges, for inclusion of his name in the list, was based not only on the adverse remarks but also on the personal knowledge of the Judges of the Peshawar High Court about the integrity and reputation of the officer.
3. Before we deal with the merits of the action taken against the appellant, we would like to clarify our position regarding the stand of the respondent departments on the question of the jurisdiction of this Tribunal. As already observed, the Tribunal had, as far back as 1975, dismissed the appeal on the ground that the appellant, not being a civil servant, the Tribunal had no jurisdiction in the matter. This decision of the Tribunal having been set aside by the Honourable Supreme Court, it is no longer within our competence to reopen the question whether, at the time of the impugned order, the appellant was an employee of the Federal Government or of the Government of the N.- W. F. P. The Supreme Court having already decided the issue, the respondents are precluded from agitating this point before us once again in the light of the judgment of the Supreme Court. The appellant being a Federal Government employee on the date of the impugned order, his retirement as a Judicial Officer of the P. C. S. Of the N.-W. F. P. Is without any meaning whatsoever.
As the notification pertaining to his retirement itself shows, he was, at that time, Deputy Registrar, Trade Marks, under the Ministry of Commerce, Government of Pakistan. He could, therefore, be retired in that capacity and in no other.
4. It is true that, under M. L. R. 114, the President was competent to retire any Government servant, whether Federal or Provincial. But, the mere fact that the retirement order treated him as a Provincial Government employee is ample indication, that it was passed without sufficient care and deliberation and is, therefore, vulnerable on that ground. The officer was an employee of the Federal Government, with effect from 8th September, 1970 till the date of the impugned order i. e.
18th April, 1972. Evidently, his work and performance during this period had not been taken into account when the impugned order was passed. The said order was, therefore, based on only a partial examination of the record of the officer's service.
5. As regards the period prior to the transfer of the officer's service to the Federal Government, it is observed that the officer entered the Judicial Branch of the N.-W. F. P., P. S. C. In 1963 and served as a Civil Judge till the end of his stay in the provincial service. During this entire period of about 8 years, he earned satisfactory reports up to the year 1968. It is only for the year 1969 that the Countersigning Officers, namely the Judges of the Peshawar High Court, gave him an adverse report, which has already been reproduced earlier. These remarks were recorded in contradiction of the Reporting Officer's comment that the officer was living within known means of income. The remarks were also conveyed to the officer on 18th September, 1970, after he had left the department and joined service under the Federal Government. The officer was informed that the Chief Justice and Judges expected that he would remove the defects pointed out. Since the officer had actually left the department even before these remarks were conveyed to him, the department was no longer in a position to adjudge whether the defect pointed out had been removed or it had persisted. Nevertheless, in his subsequent A. C. Rs, for the period the officer served under the Federal Government, no report to the effect that the officer was living beyond known means of income was made by any of the Reporting or Countersigning Officers. However, in the A. C. R. For the period 8th September, 1970 to 31st December, 1970, it is seen that, against Serial No, 21 of Part II of the A. C. R, there were originally the initials of the Reporting Officer indicating that the appellant was living within known means of income but it is observed that these initials had later been erased unauthorized by somebody. The manner in which this has been done leaves us in no, doubt that this is a ma/a fide action and we shall take it that the report on the officer for this period is that he lived within known means of income. The subsequent reports as many as 4 in number, are to the effect that the officer was living within known means of income. The only conclusion that can be drawn is that, after the adverse remarks contained in the A. C. R. For the year 1969 were conveyed to him, the officer did not conduct himself in such a manner as to give the impression that he was living beyond known means of income. In the face of these facts, we are of the view that the Presidential Order was not only passed after examination of only a part of the record of the officer's work and performance but also on inadequate material to justify retirement from service. If the officer had a defect which he had since removed, he could not be punished after he had removed the said defect and if this fact were within the knowledge of the concerned authorities at the time the decision was taken to retire him from service, in all probability, such a decision would not have been taken.
6. We would not like to go into the question whether the Countersigning Officers of the appellant were actuated by any personal malice against the appellant in recording the adverse remarks which they did. But, we do find from the record that the officer had applied for the expunction of the adverse remarks and he was first told to submit his representation in this behalf to the Provincial Government through the High Court but later on informed by the High Court that, the High Court itself being competent to pass orders on the representation, it had decided to file the same. The appellant was able to produce before us the relevant instructions to show that the authority competent to decide on representations against adverse entries was the authority next higher than the Countersigning Officer, which, in the case of the appellant, was the Provincial Government.
The respondents were not able to come up with any evidence to show that the High Court was justified in filing the representation submitted by the appellant. In fact, even the Provincial Government had not endorsed the view of the High Court that representation for the expunction of the remarks endorsed by the High Court itself would have to be made to the same High Court and when the matter was taken up by the appellant with the Provincial Government, they informed him that they had taken up the question with the Peshawar High Court and that the appellant would be informed about the decision of the Government as soon as the case was finalized. However, the case does not appear to have been finalized and no decision was conveyed to the appellant till the date of the order of his compulsory retirement from service. Clearly, therefore, the adverse remarks passed by the Peshawar High Court had not been finally confirmed at the time the impugned action was taken against the appellant. It is extremely doubtful whether it was fair to treat the adverse remarks as final at the time of the impugned order.
7. Apart from the above, it has been averred in the written objections filed by respondent No, 2, the Chief Secretary, North West Frontier Province, that the adverse remarks in the A. C. Rs, of the appellant were based on the personal information of their Lordships the Judges of the High Court and that the inclusion of the name of the appellant in the list of the officers against whom action was proposed under M. L. R. 114 was based on the recommendation of the Judges, which was formed in a full Court meeting. Since the minutes of the said meeting were not produced before us and the grounds on which their Lordships were persuaded to take action were not amplified, the only conclusion that we can draw is that their decision was based on adverse remarks for one year only, which, also, had been challenged and were in dispute at the time of their decision. Since the Judges could not sit in judgment over their own adverse remarks, we are of the opinion that a decision taken by them entirely on the basis of these adverse remarks cannot be treated as a very sound decision, specially when it involved the premature cutting short of the career of an officer who had otherwise a satisfactory service record and who had still at least 26 years more of service before him.
8. Considering the above facts and circumstances, we hold that - (0 the officer, who was an employee of the Federal Government under the Ministry of Commerce, was wrongly retired from service on the basis of the recommendation made by the Peshawar High Court which had no jurisdiction in the matter, and
(ii) that there was not enough material against the officer to justify his compulsory retirement from service.
9. In the result, it is ordered that the appellant be reinstated I service, with effect from the date of the impugned order, with all the cone quintile benefits thereof, subject to the condition that he shall be paid only such arrears of his entitlements as are in excess of the income earned by! Him in any gainful occupation during the period he remained out on service.