This judgment shall dispose of writ petitions Nos.3728 and 3729, both of 1984, as common questions of law and facts are raised therein. It shall, however, remain on the file of writ petition No.3728/84.
2. The facts are that Abdul Hameed and Mehr Walayat Ali, respondents in writ petitions No.3728/84 and 3729/84, were employed as Octrol Moharrir and Octroi Inspector, respectively, with the Municipal Committee, Toba Tek Singh and vide two independent orders dated 26-10-1982 passed under Rule 4 (1) of the Local Councils and Municipal Committees Servants (Retirement) Rules, 1966, they were retired from service. The respondents challenged their retirement through appeals which were accepted by the Deputy Commissioner on 30-7-1984, by two separate but identical orders; the operative part whereof is as follows: "It may be stated here that the petitioner had also been retired earlier by the Chairman Municipal Committee vide his order dated 7-1-1981 which was appealed against by the petitioner before the Deputy Commissioner, Faisalabad, who accepted the appeal and re-instated the appellant 3n service. The appellant has again been retired by the Municipal Committee vide his order dated 21- 10-1982. It appears that the Chairman, Municipal Committee has developed personal disliking against this official. It has been agitated by the learned counsel for the petitioner that the petitioner has unblemished record of service and had been performing their duties satisfactorily. He was also allowed to complete his service upto the age of superannuation.
In view of the circumstances explained above, the petitioner is re-instated in service with full benefits."
The validity of these orders has been challenged through these writ petitions.
3. I have heard the learned counsel for the parties and examined the record. Before dealing with their contentions on merit, a preliminary objection, raised by the learned counsel for the respondents, may be attended to. He submitted that the Municipal Committee, Toba Tek Singh, is a body corporate, which can sue or be sued in its name; the respondents were the employees of the Municipal Committee, which was aggrieved by the impugned orders; the instant writ petitions have not been filed by it but by its Chairman and thus, these are not competent.
4. In reply to this contention, the learned counsel for the petitioner, has placed reliance on clause
(k) of Rule 9 of the Punjab Local Councils (Business) Rules, 1980 which empowers the Chairman as under:- "(k) the institution and defence of suits and all other legal proceedings on behalf of the local council;"
5. The institution of the writ petition by the Chairman, is, thus sought to be justified under this rule, However that the respondents' objection is merely technical; in title of the writ petitions, the name of the Municipal Committee, can be substituted for that of the Chairman, which had to be instituted under the signatures of the latter. In the submission of the learned counsel the writ petitions cannot be defeated on the ground of technicality on which the respondents' objection is rested.
6. There is merit in the argument, that the Municipal Committee being the aggrieved person, the writ petition. Should have been filed in its name. Clause (k) of Rule 9 ibid, merely authorises the Chairman to institute the legal proceedings, but such proceedings have to be instituted in the name of the Municipality. However, I feel that the defect is merely procedural and the substitution of the name of the Municipal Committee for its Chairman, shall not cause any prejudice to the respondents. I am, therefore, inclined to adjudicate upon the cases on merit.
7. As regards the merits, the case of the Municipality' is that under Rule 4 of the Local Councils and Municipal Committees Servants (Retirement) Rule, 1966, it had ample powers to retire the respondents in the public interest; such retirement has the backing of a valid resolution and as the impugned orders conform to the requirements of law, the appellate authority acted illegally in re- instating the respondents. The petitioner's learned counsel, then, invited my attention to A M K Laghari v. Government of Pakistan 1980 SCMR 909 and urged that the compulsory retirement, does not carry any stigma and merely because an official is honest and competent, is no ground, to render his such retirement, as illegal. He then referred to certain entries in the service-record of the respondents, showing that they were warned and also placed under suspension to controvert the observations made in the impugned orders, that they were possessed of an unblemished service record:
8. There are three resolutions of the Municipal Committee on, these files. These are resolutions No.14 dated 26-2-1980, No.240 dated 14-7-1982 and No.291 dated 13-10-1982 (Annexures 'R.1/1', 'A' and 'R.1/2'). Under resolution No.14, the respondents and three others on the recommendations of the Finance Sub-Committee, were permitted to serve upto the age of 60 years. Resolution No.240 shows that the scrutiny of the respondents' service--record, was assigned to an Extra Assistant Commissioner, Faisalabad, who reported that their record upto the year 1981 was unblemished; the Committee examined their record for the year 1981 and there was nothing against them. It was thus, decided that the respondents should not be retired before the age of 60 years. In the third resolution, it has been maintained that the Municipality's Octroi Income of the first three months of the year 1982 was less than that of the corresponding period in the preceding year; the House was not satisfied with this decline; if the same supervisory staff was kept in service, the Municipal Committee will suffer loss of lacs of rupees and thus, respondents were retired from service.
Obviously, resolution No.'240 dated 14-7-1982, on which the impugned orders are founded, smacks of inefficiency and unsatisfactory work of the respondents. But, there is nothing to that effect in their service record, nor the available record is suggestive of the inference that they were given any opportunity to explain their position in this behalf.
9. True enough, in the service book of the respondents, there are a few old entries indicating that they were given warnings and also placed under suspension followed by re-instatement. But, it is not for this Court to comment upon these entries. The fact, remains, that the respondents' service record was duly scrutinised and such scrutiny came up for consideration before the Municipal Committee, who as per its resolution No.240 did not find any objectionable material therein.
10. The learned counsel for the petitioner, is not wrong in pointing out that A M K Laghari's case lays down that merely because an official is able and honest, is no ground to render his compulsory retirement, as illegal and that such retirement is not a stigma on the conduct of the official retired compulsorily. This precedent, however, has no bearing on the facts of the instant cases. The question falling for determination in these petitions, is as to whether or not the appellate authority acted within the limits of its jurisdiction and the orders H passed by it could be sustained on the basis of the material on the record. In this respect, it is not without significant that earlier twice the Committee itself resolved not to retire the respondents from service compulsorily; in other words they were considered fit to be retained in service till they attained the age of superannuation. It is noteworthy, that the time-lag between resolution No.240, allowing the respondents' retention in service and resolution No.291 whereby they have been retired, is three months only. The latter resolution refers to the respondents' performance, during the period of three months without levelling any specific charge against them. These factors need to be examined in the context of the observations made in the impugned orders "that the Chairman Municipal Committee has developed personal disliking" against the respondents. Before me, as well, the impugned orders have been dubbed as mala fide and attributed to ill-will nourished by the Chairman, against the respondents.
11. As an appellate authority, the Deputy Commissioner was well within his jurisdiction to differ with the view taken by the Municipal Committee and re-instate the respondents. From the facts obtaining on the record, it cannot be said that he passed the impugned order, in the absence of any material and without lawful authority. Even otherwise, when there is jurisdiction to decide a particular matter, mere wrong decision does not render it as without jurisdiction, to call for its removal through judicial review. Here the impugned orders, do not suffer from any illegality much less a jurisdictional defect. There is no merit in these writ petitions. Accordingly, these are dismissed, but the parties are left to bear their own costs.