' A .0 .RAZIUR RAHMAN (MEMBER) .--The appellant was retired from service under section 13(ii) of the Civil Servants Act, 1973, vide Office Order No, 85/82, dated 26-7-1982, issued by the Director, Immigration and Passports, wherein it was stated that the President had been pleased to direct, in the public interest, that the appellant shall retire from service with immediate effect. Against this order, the appellant submitted a representation addressed to the President, through proper channel. In reply to this, he was informed by the Directorate of Immigration and Passports through a memo., dated 19-8-1983, signed by the Assistant Director (Admn.) in which it was stated that his representation had been given due consideration but it had not been found possible to accept the same. Thereafter, he came in appeal before this Tribunal on 20-9-1983. The appeal was admitted on 5-10-1983 and, having been finally heard on 15-7-1984, it is being disposed of by this order.
2. The case of the appellant is that the impugned order was not passed by the competent authority, inasmuch as he, being the incumbent of a post in N.P.S. 14, the Director, Immigration and Passports was the "competent authority" in his case and not the President of Pakistan. It is further his stand that, according to his information, the case did not go to the President at all therefore, the impugned order being based on a false statement was an altogether invalid and illegal order, without any basis whatsoever. Further, it was pointed out that the order, rejecting his representation to the President, made a mention of the Review Committee having made the order, which was conveyed to the appellant by the Director. It is also the case of the appellant that no order retiring the appellant was passed by the competent authority, namely, the Director of Immigration and Passports, who did not apply his mind to the matter but merely issued his Office Order No, 85/82, dated 26-7-1982 on a direction from the Ministry of Interior. It is argued, on the basis of these facts, that the order in question is not a valid order and should be treated as ab initio void and inoperative. Apart from this, it is contended, on behalf of the appellant, that, on merit, he could not be retired from service, because he had a creditable record of service without any adverse entry, except for the year 1980, when some adverse remarks were recorded in his A.C.R.
And communicated to him but, having been challenged by the appellant, they could not be treated as final so long as his objection had not been turned down, which had not happened till the date of the impugned order. Finally, it is the case of the appellant that the competent authority, the Director, I & P, who had not passed the order against him, was also in favour of the acceptance of the representation made to the President by the appellant, against the impugned order, since, in his reply to the parawise comments on the representation of the appellant, he recommended to the Ministry of Interior' that the appellant's petition be considered sympathetically.
3. After having heard the parties at length and perused the relevant documents, we have come to the conclusion that the order retiring the appellant from service under section 13(H) of the Civil Servants Act, 1973 not only suffers from grave illegal infirmities and material irregularities of a 'serious nature, it is also not defensible on merit and deserves to be set aside.
4. Section 13(ii) of the Civil Servants Act empowers the competent authority to retire a civil servant after he has completed 25 years of service. In the present case, it is clear that the competent authority, namely, the Director, I & P did not retire the appellant from service. Although he has, signed the impugned order, it is clear from the language of the order that he did not pass the order. In fact, he says, in the said order, very clearly that: "the President is pleased to direct etc. Etc."
An order, issued in the name of the President, retiring a civil servant who could be retired only by the competent authority, on the very face of it, is an invalid and illegal order, which is ab initio void and incapable of being given effect to or implemented.
5. In the written objections, the respondent asserted that the retirement order had been passed by the Director, I&P in his capacity as the competent authority and said that the words "President, the competent authority", had been mentioned inadvertently by mistake. After having gone through the relevant record, we have come to the conclusion that it is a total misstatement that the retirement order had been passed by the Director, I&P. What had actually happened was that a letter had been issued, by the Section Officer, Ministry of Interior, on 1-7-1982, directing the competent authority to issue orders for the retirement of this officer on the basis of the recommendations made by the Review Committee. We are not aware under which provision of law and order could be given by or on behalf of the Ministry of Interior to the Director, Immigration and Passports, in his capacity as the "competent authority" to pass an order which was not his order made after proper application of mind but that of another authority, namely, the Ministry of Interior.
Obviously, the "competent authority" B could not take the responsibility for an order which had been passed by somebody else and that is why, probably, the Director, I & P, in the impugned order, absolved himself of the responsibility of owning as his own an order which he considered to be unjust and unequitable and mentioned that the President had been pleased to direct the retirement of the appellant under section 13(ii) of the Civil Servants Act.
6. In this connection, a reference to the instructions issued by the Estt. Secretary on the procedure to be followed for action under section 13(ii) of the Civil Servants Act would be pertinent. In his D.O.
Letter No,.CSA/Sec. 13/21/Rev/82, dated 18th April, 1982, the Estt. Secretary had directed the Ministries and Divisions to constitute Review Committees for cases of civil servants below grade 16 and for submission of recommendations of these Committees for the orders of the "competent authority" as defined in the explanation below section 13 of the Civil Servants Act, 1973. The Estt. Secretary stated very clearly, in this D.O. Letter that: "the competent authority, if satisfied that a civil servant is not fit for retention in terms of section 13 of the Civil Servants Act, will direct that he may retire in public interest."
' It is thus clear that the decision to retire the appellant was to be taken by the "competent authority" and by nobody else, but, as the letter addressed by the Section Officer, Ministry of Interior to the Director shows the Ministry of Interior had taken the decision and ordered the Director to issue the retirement order. The Director was nowhere in the picture when the order was made and, therefore, the explanation offered on behalf of the respondent that the order was passed by the Director is factually incorrect and it is lamentable that it should have come from such a responsible quarter as the Ministry of Interior.
7. Apart from the fact that the order passed by the Ministry of Interior was embodied in an office order issued by the Director of I&P without his accepting the responsibility for the said order, it is also seen from the relevant documents that not only was the order not passed by the competent authority after due application of mind but the impugned order was issued by him in opposition to his own thinking on the subject. In a note, dated 26-7-1982, submitted to the Director, I & P, after receipt of the direction from the Ministry of Interior, it was stated by M.S.M. Zafar Jafari, Dy. Director (Hqrs.) that: "So far as I recall, the view of the departmental representative in the case of Mr.Maqbool Ahmed was that the official was at present working satisfactorily. But the Review Committee in view of the Spurts unsatisfactory record of service and his poor A.C.R. In 1980 decided to retire him."
' Subsequently, when the appellant addressed his representation to the President, and it was forwarded to the Ministry of Interior by the Director, the Ministry called for the comments of the Director, alongwith his specific recommendations. These were furnished by the Director on 28-11- 1982, vide Letter No, 17/19/82-Admn. , dated 28-11-1982, wherein it was observed, inter alia, by the Director as under: "The retirement order in respect of the petitioner was issued in the form supplied by the Ministry of Interior with their Letter No, 1/1/82-Ad-I, dated 11-7-1982 (copy attached for ready reference). As such we have no comments to offer on this point. However, it may be added that in the case of officials of Grade 14 the Director of I & P being the Head of Department is the competent authority."
' From the above, it is clear that the Director 'neither accepted the responsibility for the order of retirement passed against the appellant nor considered it as a valid order. This further confirms us in our view that the respondent-Ministry is not justified in its stand that the impugned order was passed by the competent authority.
' In the same communication, the Director observed: "In view of what has been stated above, this Directorate recommends that the petition of Mr. Maqbool Ahmed may be considered sympathetically."
' This, in its turn, lends strength to the appellant's contention, in his memo. Of appeal, that: "the competent authority was not averse to accepting the representation of the appellant submitted against his retirement. It is submitted that it is the independent judgment of the competent authority alone which shall prevail."
' From the above, it is crystal clear that the impugned order was not at all an order passed by the competent authority. It is, therefore, an incompetent and invalid order, without any legal effect and is, therefore, liable to be set aside.
8. In addition, there is not the slightest doubt that the order in question is also not sustainable on merit. From the record, it is seen that the appellant entered service on 10-9-1955 as L.D.C. He completed 25 years of service on 10-9-1980, as observed by the Director, in his parawise comments on the appellant's representation. The Review Committee, which recommended the retirement of the official under section 13(ii) of the Civil Servants Act did so in disregard of the Estt. Secretary instructions on the subject, dated 18-4-1982. The comments of the Director fully explain the position and are, therefore, reproduced below: "According to the instructions contained in the Estt. Secretary's D.O. Letter No, CSA-Sec.13(ii)/Rev-82, dated the 18th April, 1982 the A.C.Rs, of the last 10 years and that the work of an official of Mr. Maqbol's category should be 'satisfactory' and official's general reputation should be kept in view.
Mr. Maqbool's performance according to his A.C.Rs, for the years 1970-81 (except for the year 1980) he has been assessed as 'very good' or 'good'. His A.C.Rs, for the years 1972 and 1975, however, are missing. The solitary adverse report relates to the year 1980 when he served under Assistant Director, R.P.O., Gujrat and the same officer gave him 'good' report for the preceding year 1979. It, however, appears that the Review Committee also took into account the adverse remarks against the Superintendent mentioned in his A.C.Rs, of 1956 to 1958 and 1962 to 1965. In this connection it may be stated that the adverse remarks in his A.C.Rs, from 1956 to 1958 were never communicated to him. He has also shown a marked improvement in his work and attendance from 1965 onwards.
The representation submitted by Mr. Maqool could not be decided for the reasons already explained."
9. Our own examination of the A.C.Rs, of the appellant reveals that, during the 10 years preceding i,e, from 1972 to 1981, the appellant was assessed as "very good" in 2 reports, "good" in 5 and "average" in only 1, while 2 reports were missing. While, in our opinion, an average report is not a damaging report, the fact that there was only one average report should be enough to establish that the work and performance of the appellant could not but be considered to be satisfactory and it would be wrong to take the view that it was a case fit for retirement. In their recommendations relating to the appellant, the Committee observed: "The Committee decided to recommend Mr. Maqbool Ahmad for retirement in view of his unsatisfactory record of service and particularly his poor A.C.R. In 1980. His integrity was also found to be doubtful."
' It appears, as observed by the Director, I & P, that the Committee, instead of giving more weightage to the record of the preceding 10 years, as directed by the President, vide paragraph 2(a) of the Establishment Secretary's 0.0., which says that:- "The review shall be mainly based on the A.C.Rs,, more weightage being given to the record of the preceding 10 years." took into account the adverse remarks recorded as far back as 1956 to 1958 and 1962 to 1965, which were never communicated to him, and also ignored the fact that the latest A.C.R., namely, that ending 31st December, 1981, was thoroughly satisfactory. Apart from this, the Review Committee blundered by giving undue weightage to the adverse remarks contained in the A.C.R.
For the year 1980, when these remarks had been challenged by the appellant and no decision had been taken in the matter by the time the case was taken up by the Review Committee.
10. We are sorry to record that the Review Committee did not perform its function satisfactorily and violated the guidelines and criteria laid down by the President for the review of the cases for retirement under section 13(ii) of the Civil Servants Act.
11. We are also sorry to have to note that, instead of allowing the "competent authority" to apply its own mind to the matter, after going through the recommendations of the Review Committee, the concerned Ministry ousted the jurisdiction of the competent authority, took over powers in its own hands, without any legal authority, and ordered the competent authority to implement an order which was not only irregular but also not justified on merits.
12. One of the objections raised by the Respondents is that, being hit by Article 13(1) of the Provisional Constitution Order, 1981, the appeal has abated and the Tribunal is debarred from entertaining the same. We are unable to accept this plea, for the simple reason that the impugned order has not been passed by the competent authority and, as such, it is not a valid order under section 13(ii) of the Civil Servants Act, 1973. It is not protected by Article 13(1) of the P.C.O. And the Tribunal is fully competent to go into the merits of an appeal against the said order.
13. In the light of the above, we allow the appeal and order that the appellant shall be re-instated in service with effect from the date of the impugned order and that he shall get all the consequential benefits of the said re-instatement.
Appeal allowed.