KHUDA BAKHSH MARRI, J.-Thia Constitutional petition purports to challenge the order of Deputy Inspector-General of Police, respondent No. 3, dated the 28th of April 1967, by which the petitioner was ordered to retire from service w. e. f. 1st of May 1968, after completing 25 years qualifying service and also order of Inspector-General of Police, West Pakistan respondent No. 2 dated 4th of April 1968, by which the petitioner's appeal against the order of retirement was rejected.
2. The brief facts leading to this petition are, that the petitioner was recruited in Police Department in the then Province of Sind as a Foot Constable In 1939 and due to his hard work he was promoted to the grade of Sub-Inspector of Police in March 1948. His next promotion was to the rank of Officiating Inspector of Police in the year 1959, he continued to work as such until 1965, when he was ordered to retire by the relevant authorities w. e. f. 1-2-1965 on the ground of completing 25 years of qualifying service and also after consideration of his record, he was not found fit to further continue in service.
3. An appeal was filed by the petitioner against his order of retirement but this was rejected by Inspector-General of Police, West Pakistan, Lahore respondent No. 2. A writ petition was thereafter filed in the High Court by the petitioner being Writ Petition No. 107 of 1965. He was however, re- instated by respondent No. 2 vide the following order t
Ex-Inspector of Police, Nawaz Ali Shah son of Ali Akbar Shah of --'B" Group who was compulsorily retired under West Pakistan Government Servants (Further Usefulness in Public Service) Rules of 1963 is hereby ordered to be re-instated in service.
2. The reasons for re-instatement being: Violation of mandatory provisions of the said Rules inasmuch as t
(a) The appropriate Committee No. 7 conducted the screening beyond the stipulated period of 1 year and two months, a serious commission held already ultra vires by the High Court (In case of Ata Laghari).
(b) Petitioner having been denied the right of personal hearing under rule 5.4(ii ), contravention of a mandatory provision of the rules, and therefore, making the proceedings illegal.
(Sd.) S. D. QURESHI, Inspector-General of Police, West Pakistan, Lahore.
As a result of this order, the writ petition having become infructuous the petitioner was posted in the Karachi Range, as Officiating Inspector of Police.
4. On 30th April 1967 he was served with the impugned order passed by respondent No. 3 by which he was directed to proceed on leave w. e. f. 1st May 1967 to 30th April 1968. That order is as under "NOTIFICATION Karachi, the 28th April 1967 No. EB/1I-1(3)/67.11717/Leave preparatory to Retirement.-In exercise of the powers conferred by Paragraph (a) of Clause (4) of Article 178 of the Constitution, 1, A. N. K. Tareen, SK. Deputy Inspector- General of Police, Karachi Range, Karachi as competent authority in respect of Inspectors after consulta--tion with appropriate Committee No. 3, Lahore, am pleased to direct that Inspector Nawaz Ali Shah No. Y/40 who has completed 25 years qualifying service for pension on 1-10-1964, shall retire from service w. e. f. 1-5-1968 F. N.
He is sanctioned L. P. R. As under :-
(1) One month and eleven days' L. A. P. From 1-5-1967 to 11-6-1967.
(2) Ten months and 19 days L. 1/2 A. P. From 12-6-67 to 30-4-68.
(Sd.) A. N. K. TAREEN, SK., PSP, Deputy Inspector-General of Police, Karachi."
5. The petitioner preferred an appeal before the respondent No. 2 on the 25th of May 1967 but this appeal was rejected by an order of respondent No. 2 dated 4th April 1968, which is Annexure "B" as under :- "ORDER This is an appeal preferred by Inspector Nawaz Ali Shah Y/40 against the decision of the Deputy Inspector-General of Police, Karachi Range, Karachi retiring him with effect from 1-5-1968 on completion of 25 years qualifying service for pension under paragraph (a) of Clause 4 of Article 178 of Constitution.
2. Inspector Nawaz Ali Shah was once previously similarly retired from service on 1-2-1965 after completing 25 years qualifying service under the West Pakistan Govt. Servants (Further Usefulness in Public Service) Rules, 1963. His appeal was also rejected. He, however, filed a writ petition and on the advice of Law Department he was re-instated on technical grounds. In giving their opinion, the Law Depart--ment had also observed that the Inspector could be proceeded against under the New Constitutional Amendment. Consequent--ly his record was scrutinised under clause 4 of Article 178 of the Constitution and on the recommendation of the relevant Advisory Committee the D. I: G. Of Police, Karachi Range retired him from service.
3. The overall record of the Inspector does not justify his continuance fn service. In the circumstances I see no reason to interfere with the order of D. I.-G. Of Police, Karachi and reject his appeal.
(Sd.) S. D. QURESHI, Inspector-General of Police, West Pakistan."
No reply was given of his mercy petition dated 7th October 1969 by the Inspector-General of Police, West Pakistan, Lahore.
6. The main grievances of the petitioner are that the impugned order of his compulsory retirement passed by the Deputy Inspector-General of Police was under the direction of respondent No. 2 Inspector-General of Police, the Deputy Inspector-General of Police thus according to him, did not act as a free agent in the matter for considering the competency or otherwise of his retirement therefore, he has not acted independently, his order is a nullity.
7. It was also contended that, while forwarding the case of the petitioner to the Appropriate Committee No. 3 for consultation and advice before the order of his retirement by D. I.:G., a reference has been made to the case and direction of I. G. P. To the prejudice of the petitioner remarking "that the action is proposed to be taken, under the direction of I. G. P. And the petitioner was accused of corruption in the case," as the Members of the Appropriate Committee consisted of three Members who are all subordinates to the I. G. P. Lahore, this direction facilitated the consequential order of his retirement to his prejudice. It was also urged that respondent 1\o. 2 I. G.
P. Was not legally competent under the rules to decide his appeal because he was already prejudiced against the petitioner, and directed his subordinate D. I: G. To order compulsory retirement of the petitioner, the competent authority to decide the appeal was Additional I. G. P.
Therefore, the appellate order is invalid.
8. It was next contended on behalf of the petitioner that the impugned order of compulsory retirement is not reasonable or just, and is not in proper exercise of discretion, it was not in the public interest and violated the spirit of the Constitution that the petitioner was promoted, confirmed and brought on "F" List (fit for promotion as Inspector of Police in the year 1958) and then promoted as Inspector of Police in the year 1959 strictly on the basis of merits and efficiency, integrity and recommendations and his character roll is replete with recommend--able remarks by his superiors.
9. In support of the above contentions it was submitted that the petitioner during his 25 years of service received 81 rewards with the total cash of Rs. 6,185 from different Superintendents of Police. Deputy Inspector-Generals of Police and the Governor of Sind from 1939 till May 1968 and copiesyy of some of the rewards were filed being Annexures 1 to 19. The order dated the 6th April 1968 passed by respondent No. 2K rejecting the appeal of the petitioner has been attacked in the petition as having been passed arbitrarily and capriciously, is against the principles of natural justice.
10. It was also urged that the petitioner at the time of retirement was acting as O ficiating Inspector of Police and his substantive post was therefore Sub-Inspector of Police and the competent authority as envisaged by Article 178(4)(a) of the Constitution was the Superintendent of Police, Headquarters, Karachi and not the D. I.-G., Karachi, therefore, he bad no authority or jurisdiction to pass the impugned order. It was also submitted that under Article 178 (4) (a) all compulsory orders had to be completed at all stages by the 31 st March 1967 while the case of the petitioner was decided on the 1st of May 1967 i. e. After about a month beyond the date line fixed by the Government, therefore, the order was barred by time. Lastly a prayer was made for declaring the impugned order dated the 28th April 1967 and the order in appeal dated 6th April 1968 as mala fide, illegal,ultra vires in excess of authority and re-instatement of the petitioner to his post as officiating Inspector, was requested.
11. This case came for hearing on 24th of February 1971 before us when Mr.Ghulam Nabi Memon counsel for the petitioner during the course of argument made certain factual allegations orally which were not contained by the petition with regards to the mala file proceedings of the Advisory Committee No. 3 which ultimately recommended the petitioner's retirement.
On our enquiry as to how these new assertions can be urged by him, the counsel stated that certain facts have come to his notice after filing of the petition and he requested permission for amending the petition suitably. He further stated that the assertions made by him would found support from the Departmental files. To give the petitioner ample opportunity to present his case before the Court fully, we adjourned the case and allowed him to file amended application which was filed on 24-3-1971.
12. The allegations with regards to improper proceedings of Enquiry No. 3 for which amendment was sought, are in paragraph No. 11 "B" and "C" of the amended petition, as under :--- "B. That the petitioner is reliably informed that the D. I.-G. P., Karachi passed the order of Compulsory Retirement of the petitioner under directions from the I. G. P. After a period of 12 months from the date the New Sixth Constitutional Amendment of Article 178 came into force.
The D. I: G. Thus did not act as a free agent in the matter of considering the expediency of the retirement of the petitioner, but acted as an agent of I. G. P. And has not considered the matter independently, His order Is a nullity.
That the petitioner is further informed that while for--ding the case of the petitioner to the Appropriate Committee (No. 3) for consultation and advise before the order of his retirement by D.
I.-G. P., a reference has been made to the case referred to in para. (6-A) above, and the direction of I. G. P. To the prejudice of the petitioner remarking `that the action is proposed to be taken, under the direction of I. G. P. And the petitioner was accused of corruption in the case", although as stated earlier (para. 6-AO) the petitioner had earned co ~:mendation Certificate from the S. P. East Division II-Karachi. The members of the Appropri--ate Committee consisted of 3 members who are all Subordinates of the I. G. P., W. P. Lahore."
In fact counsel for the petitioner during the course of argument at one stage stated at the tjar that he will give up all the other con--tentions contained in his petition but relied only on his allegations stated above wherein according to him Advisory Committee did not act independently while considering the petitioner's case because the direction of respondent No. 3 Dy. Inspector-General of Police was to the prejudice of the petitioner remarking "that the action is proposed to b9 takan, under the direction of I. G. P. And the petitioner was accused of corruption in the case." This direction according to the petitioner was sufficient enough for the Advisory Committee to recommend for his retirement. It was complained that it was the duty of respondent No. 3 D. I.-G. To at least bring the commendatory notes to the notice of Advisory Committee No. 3 given by different Superintendents of Police in favour of the petitioner passed on the various dates as this was not done, the decision or recommendation of the Advisory Committee cannot be said to be independent therefore vitiated. We are afraid that this very serious allegation advanced by counsel for the petitioner is not borne out by the record before us. Although counsel was very positive that the record wil prove his assertion. On the contrary respondents No. 3 D. I. G P when received the letter No. 2710-15/Gas. Dated Lahore 19th February 1967 from Deputy Inspector-General of Police Head--quarters which is as under "Subject : Advisory Committee; for non-gazetted staff of the Police Department.
Memorandum : Please refer I.-G.'s Circular endst. No. 1800-99/Gas. Dated 28-1-67 on the subject noted above.
I have appointed Mr. Sajjad All Khan, P. S .P. A. I. G. /G., Central Police Office, Lahore as Secretary of Advisory Commit--tees Nos. 3 & 5 with immediate effect. Please send the Commit--tee service record including Character Rolls along with the prescribed proforma (duly completed) vide C. P.
C.'s endst No. 624-723/Gas. Dated 14-1-67 in respect of the concerned officials to him for each Advisory Committee separately. All correspondence relating to these Advisory Committee may also please be addressed to him."
Sent a reply on 25th February 1967. This letter does not contain any directions or instructions to be conveyed to the Committee by I: G. P. Recommending the petitioner's retirement after Naw completing 25 years qualifying service. It only mentions Govt that service book and character rolls etc. Are sent to the Committee wes, of the petitioner and another officer Syed Obedur Rehman for consideration. This document being very important we may Bald reproduce it in extenso as under :-Mar "Subject : Retirement of Provincial Government servants in pursuance of Paragraph (a) of Clause
(4) of Article 178 of the Constitution.
Please refer to D. I.-G. Of Police, Headquarter, West Pakis--tan Lahore's Memo. No. 2710-15/Gas.
Dated 10-2-1967.
The following documents in respect of Inspectors Nawaz Ali Shah and Syed Obedur Rehman who are proposed to be retired from service after completion 25 years qualifying service are sent herewith :-
1. Service Books.
2. Character Rolls in Sealed Cover.
3. Prescribed Proformas and Brief Note on each case (in triplicate).
The A. C. R. For the year 1966, in respect of Inspector Nawaz Ali Shah will be sent shortly.
The recommendations of the Advisory Committee in each case may please be forwarded to this office .For further necessary action in the matter."
13. Along with the documents forwarded to the Advisory Committee was a precise of confidential record of the petitioner which was produced before us.
Perusal thereof totally belies the allegation of the petitioner that the Advisory Committee No. 3 was kept in dark. It would be seen that the respondent No. 3 implemented the decision of the Advisory Committee under his order dated 28-4-1967, which reads "Memorandum.-Please refer to your No. EB/IX-1 (3)/66 5536 dated 25-2-1967.
2. The cases of Inspector Nawaz Ali Shah No. P/40 and Obaid-ur-Rehman No. K/48, were examined by the Advisory Committee No. 3, which recommends that they should be retired. The cases are returned with the recommendations of the Committee for further necessary action."
15. It is therefore, clear that the Advisory Committee I no way was either influenced or misguided by the respondent Nos. 2 and 3 while recommending the petitioner's retirement. On the other hand the Committee after thoroughly considerin the confidential reports of the petitioner came to its own independent conclusion, therefore, the contention of the petitioner that the Advisory Committee was under influence of the resp ondent No. 2 or 3 holds no water whatsoever and this was a stated above, the main contention of the petitioner before us. The result is we repel this argument of the petitioner which is neither substantiated by him by producing any other document in h favour nor borne out by the Departmental record before us.
Although It was for the petitioner to bring all the documents in support of his case and not for the Court to find out evidence to make a case of the petitioner, yet we called upon the counsel for the respondents to bring the departmental record for our perusal to meet the ends of justice.
16. The rest of the contentions of the petitioner equally are without substance. A host of authorities including Abdul Kadir v. Government of West Pakistan (1), Collector of Central Excise and Land Customs v. A. K. M. Waliullah Chaudhury (2), S. Qamar Ali Shah v. Pakistan (3) were cited by counsel for the petitioner. In our opinion none of these cases help the petitioner in any way because in the first case of Abdul Qadir v. Government of West Pakistan, the petitioner was compulsorily retired after serving 25 years qualifying service by way of punishment and he was charge-sheeted and show-cause notices of inefficiency and lack of integrity were at once served on him, while in the present case no show-cause notice was served on the petitioner. His retirement was on recommendations of a legally constituted Advisory Committee and the final order of the Advisory Committee reproduced above contained no such remarks either of inefficiency or otherwise therefore, ft cannot be said that the petitioner's retirement in the present case is by way of punishment.
17. The next case of Collector of Central Excise & Land Customs v. A. K. M. Waliullah Chaudhury'also in our opinion does not support the petitioner because in that case it was held that the Collector having the power to promote an Inspector in the rank of Deputy Superintendent in officiating capacity was competent to dismiss the respondent from Government service because his permanent appointment which he could hold under the constitu--tional safeguard was that of Inspector in Class III, the mere making of an order by Central Government raising the status of Deputy Superintendent of Police, Central Excise and Land Customs from Class III to Class II would not have the effect of improving his position who was officiating temporarily in that post. In the present case the petitioner is confirmed only in the post of Sub-Inspector of Police and the next higher post he was keeping as officiating and a promotee and he has not been dismissed from service or otherwise retired as a punishment there--fore respondent No. 3 in our opinion was a competent authority to pass the impugned order on recommendation of the Advisory Committee No. 3.
18. The next case of S. Qamar All Shah v. The State also in our opinion is not of any help to the petitioner. This was a case where a Head Constable of Police promoted to officiating appointment as A. S. I. P. And it was held that the sanctioning authority for prosecution was the Superintendent of Police and not the D. I.-G. But in the present case the competent authority for appointing had been D. I.-G., Karachi and not the Super--intendent of Police or any Assistant Inspector-General of Police as contended by the counsel for the petitioner.
19. The learned counsel for the respondents however, relied on S. Gulzar Hussain Bokhari v.
Government of West Pakistan (4)
(1) PLD 1967 SC 506 (2) PLD 1966 SC 788
(3) PLD 1965 SC 50(4) PLD 1969 Lab. 99 this was a case where the petitioner was retired at the age of 60 years in the Irrigation Department before the Sixth Amend--ment Act of 1966 of the Constitution of 1962. His case was how--ever, reviewed on the basis of West Pakistan Government Servants (Further Usefulness in Public Service)
Rules, 1963, on his completing 55 years of age and no action was taken for his retirement. However, on the enforcement of Sixth Amendment, he was ordered to retire by the Chief Engineer, Irrigation, Lahore Region under sub-clause (b) of Clause (4) of Article 178 of the Constitution and this order was challenged firstly on the ground that Sixth Amendment Act,- 1966 was not validly passed. As precisely this question has already been decided by a Full Bench in the case of A. K M. Leghari v.
Government of West Pakistan (1) this argument was repelled. The next contention of the petitioner that after review of his case under West Pakistan Government Servants (Further Usefulness in Public Service) Rules, 1963, he had vested right to continue his service, was considered along with other points. After reviewing the relevant cases law on this subject, reliance was placed. In Muhammad Ismail v. Punjab Province (2) and it was held that "a Government servant may be required by Government to retire on his completing 25 years' qualifying service. When Government takes action under rule 5.33(b) it is not necessary for it to state any reason or to communicate it to the Government servant concerned." It was further held that "the order of retirement in such a case does not amount to removal within the meaning of section 277 of the Government of India Act, 1935 or Rule 14.10 of the Civil Services Rules, Vol. I, for which a regular inquiry is necessary in terms of section 240, Government of India Act, 1935." It was further held in that case that "the petitioner has, by operation of the constitutional provision, retired on the 15th of July 1966. He could be given extension under clause (5) which he was not granted. He cannot maintain that it was his right to get the extension. Since he had not a vested right, be cannot complain of any actionable wrong.
The petitioner is, therefore, not an aggrieved person within the meaning of Article 98 of the Constitution." It was held in Badrul Haque Khan v. Election Tribunal, Dacca (3) that "--a petition under Article 98 of the Con--stitution could be by an aggrieved party."
20. The next case relied upon is Lt: Col. Farzand Ali and others v. Province of West Pakistan (4) with regards to com--pulsory retirement of a Government servant, it was held (at page 130)
"Compulsory retirement which carries with it no stigma and no vindictiveness against the person concerned is different from removal from service or dismissal. There may be a variety of reasons which may impel a Government to compulsorily retire an officer on his having completed the period of service qualifying him for pension and Government alone is the best Judge of these reasons. It is not possible for the Courts to sit on Judgment over the action of Government, !f from
(1) PLD 1967 Lab. 227 (2) PLD 1956 Lab. 129
(3) PLD 1963 SC 704(4) PLD 1970 SC 99 materials disclosed it does not appear that the action taken was merely in colourable exercise of or abuse of power. It must of necessity be left to the Government itself to decide as to whether retirement of the officer concerned was in public interest or not. The Government, it is said, has an absolute discretion to retire any of its officers at this stage.
Learned counsel for the respondents have in support of this view, relied a number of decisions from the Indian jurisdiction wherein the Supreme Court of India had taken the view that the compulsory retirement of an officer ~ under Note (1) to Article 465-A of the Civil Service Regulations is based purely on the satisfaction of the authorities who have to take action."
21. To us the principle laid down in the above judgment fully applies to the case before us. The admitted position is that the petitioner has completed 25 years qualifying service sometime in the year .1965, and he was ordered to be retired w. e. f. 1-2-1965. However, due to some technical flaw in the order he was re-instated and continued to be in service until the second order of retirement in the year 1968. It is apparent that the petitioner has served furthermore than three years over and above the 25 years' qualifying period, he should not have further grievance to be continued or kept in service by the respondents, because the continuance of the petitioner in service after 25 years qualifying period, is in the sole discretion of the employers, the respondents. As has been held in the judgment quoted above, we are of the opinion that the petitioner has no vested right in him to agitate the argument that he should be kept in service. The above-cited case of the Supreme Court in our opinion is a sufficient reply to all the contentions raised by the petitioner in this case.
Assuming that respondent No. 3 D. I: G., Karachi was not the appointing authority of the petitioner as confirmed S. I. P. And it was within the competence of the superintendence of Police yet in view of the above judgment where the sole discretion is left with the Government, who are employers, the respondents in this case to keep or otherwise retire one of his employees after completing 25 years qualifying service, this lacuna is sufficiently covered and to us this technical flaw is not sufficient in the eye of law to set asid the impugned orders because the petitioner has not been removed l or dismissed or otherwise compulsorily retired from service as punishment therefore, respondent No. 3 in our opinion could legally pass the impugned order on recommendations of th Advisory Committee who after thoroughly reviewing the peti--tioner's case came to the conclusion that he is to be retired from service.
22. It may be pointed out that under section 7 of the Police Act, 1861, the Inspector-General, Additional Inspector" General, Deputy Inspector, Assistant Inspector-General and District Superintendent of Police were given, subject to rules, general powers to dismiss, suspend or reduce any police officer of the subordinate ranks whom they shall think remiss or negligent in the discharge of his duty or unfit for the same. Therefore, it cannot be said that that respondent No. 5 D.-I. G. was wholly devoid of powers to pass the impugned order of compulsory retirement of the petitioner. It was held in Mewa Ram Ram Charan v. United. Provinces (1) that:- "It is not open to the Court to enter into or examine the correctness of the findings arrived at by the Deputy Inspector--General of Police or the Superintendent of Police in a depart--mental inquiry conducted against a Sub-Inspector of Police under the Police Act, 1861 and the regulation thereunder, or the merits of the order of dismissal. It is only the breach of any statutory duty or obligation on the part of the authori--ties dealing with the Sub-Inspector that can give him a cause of action."
23. There is another judgment reported in Tarapada Banerjee v. State of West Bengal (2) wherein while discussing the scope of section 7 of Police Act, 1861, it was held that:- "A departmental proceeding started by the appointing authority under the Police Act and the Regulations in respect of the alleged misconduct of a Police Sub-Inspector cannot b-. Held to be illegal on the principle that a prosecutor cannot be a judge in his own cause. Many statutory bodies having a duty to act quasi-judicial act as judges in the matters in which they are themselves interested in parties."
A reference was made in this case to AIR 1950 SC 222.
24. As we have observed earlier we are not convinced that the impugned order in any way has been passed in breach of any statutory duty or obligation on the part of the respondent No. 3 to give the petitioner a cause of action, therefore, we are of the opinion for the reasons given above that this petition has no merits, which is hereby dismissed, but we make no order as to costs.
(1) AIR 1964 All. 417(2) AIR 1951 Cal. 179