1. SHAFIUR RAHMAN, J.--Leave was granted to the appellant, a former employee of WAPDA, to examine whether the order of his retirement passed purportedly under Rule 3(a) of the Pakistan WAPDA Employees (Retirement) Rules, 1979 (hereinafter referred to as the Rules) was passed by the Competent Authority.
2. The appellant joined service in WAPDA as Junior Engineer on 13-5-1959 and had rendered over 26- years of service and was holding the post of Chief Engineer (P & I) in 1986 when by the impugned order dated 2-3-1986 he was retired from service. The order is reproduced in extenso hereunder- "In exercise of the powers conferred vide sub rule (a) of Rule 3 of "The Pakistan WAPDA Employees (Retirement) Rules 1979", the Competent Authority has decided to direct, in public interest that Mr. Nasir Said, Chief Engineer (P&I) shall retire from WAPDA service with effect from 3-3-1986 or with effect from the date of expiry of Leave Preparatory to Retirement, admissible to him if such leave is applied for by him, within 15 days of the issue of this order and the same is granted to him."
3. The rules applicable to him and invoked for the purposes of retiring him are also reproduced in extenso hereunder- "Subject:- The Pakistan WAPDA Employees (Retirement) Rules 1979.
4. In exercise of the powers conferred by Section 18 of the WAPDA Act, 1958 (West Pakistan Act No.XXXI of 1958), the Pakistan Water and Power Development Authority is pleased to make the following rules, namely,
1. Short Title.
5. Application and Commencement (a)These Rules may be called the Pakistan WAPDA Employees (Retirement) from Service Rules 1979.
6. (b)They shall apply to all WAPDA employees except deputationists from the Federal or a Provincial Government of those on probation, or borne on workcharge establishment.
7. (c)They shall come into force at once.
8. 2.Definitions.
9. In these rules unless there is anything repugnant in the subject or context:- (a)'Authority' means the Pakistan Water and Power Development Authority.
10. (b)"Appointing authority" means the officer designated as such in the Delegation of orders issued by the , Authority from time to time.
11. (c)"Competent Authority" means the Authority or the appointing authority or an officer designated by the Authority to exercice powers of the competent authority'.
12. (d)'Employee' means a .Person who has been directly recruited by the Authority or has been absorbed in the service of the Authority on transfer from, or on termination of his lien in his parent department of the Federal or a Provincial Government, as the case may be.
13. 3.Retirement from service Notwithstanding anything to the contrary contained in the order of the letter of appointment of an employee or in the terms of his service or in any other rule applicable to him, the WAPDA Employee shall retire from service.
14. (a)In the case of an employee holding the post in Grade 20 or equivalent post, on such date as the competent authority may in the public interest direct.
15. (b)In any other case on such date after he has completed 25 years of service qualifying for pension, gratuity, or other retirement benefits or on completion of the 55th year of his age, as the 'competent authority' may in the public interest direct, or (c)Where no such direction is given under clause (a) or (b), as the case may be, on completion of 60th year of his age.
16. 4.In the case of those WAPDA employees who, on the date of promulgation of these rules, had completed 25 years of service or had attained the age of 55 years an order in terms of clause (b) or (c) of rules 3 may be passed within six months of the date of promulgation of these Rules.
17. Note: An employee who is retired under Rule 3 or Rule 4 will be entitled to L.P.R. Subject to title, provided he applies within 15 days of the date of issue of the retirement order, and in case LPR is ?
18. Ranted the order of retirement shall take effect from the date of expiry of such leave."
19. As no appeal is provided in Rules against such an order, it is said that, the appellant filed a representation and thereafter took his grievance to the Service Tribunal. A number of grounds were taken up for challenging the order of the retirement before the Tribunal but the one which is now relevant for the purposes of this appeal is the competency of the officer retiring the appellant. The argument advanced before the Service Tribunal with regard to the competency of the officer was taken not of in para 4 of the judgment in the following words- "That as regards competency of the authority passing the order, the learned counsel for the appellant argued that no doubt the Chairman of WAPDA, in the present case, is the appointing authority, by virtue of office order dated 7-18 July, 1985 nevertheless, he does not ipso facto become an authority competent to retire an officer of B-20. It was further argued that the Authority has issued three letters--one on 20th May, 1980, the other on 3rd May, 1983 and the last on 14-15 January, 1984, according to which the order of retirement on completing 25 years service qualifying for pension, in case of Chief Engineer, is to be made finally by the full Authority and not by the Chairman. According to the learned counsel, the impugned order having been passed by the Chairman alone, is without jurisdiction and as such is nullity in the eye of law."
20. It was disposed of by the Tribunal as untenable on the following reasoning:-- "That Rule 3-A pertains to officers in B-20, only while Rule 3-b is relatable to all officers without exception including officers in B-20. It may be pointed out that rules 3-a and 3-b are distinguishable from each other. Rule 3-b when read with rule 4, shows that it would apply at a particular point of time when an officer completes 25 years of service or attains the age of 55 years. Once his service exceeds 25 years of his age 55 years, an order under rule 3-b cannot be passed except in cases covered by rule 4. In case of officers of B-20 however, an officer can be retired from service even if he has not completed 25 years service qualifying for pension or has not reached 55th year of age. In this case, the point of time becomes immaterial. It is, therefore, futile to argue that the appellant who is a B-20 officers, could not be retired from service under rule 3-a by the Chairman, who is the appointing authority in his case. The first objection, in these circumstances, is of no help to the appellant."
21. The Service Appeal was dismissed by the Tribunal.
22. Mr. S.M. Zafar, Advocate, the learned counsel for the appellant, has contended that under the WAPDA Act the Authority alone was competent to frame rules. It had done so by framing the Rules.
23. Thereafter it had proceeded to issue general instructions and had prescribed the procedure for retiring those officers who had rendered 25 years service or attained the age of 55 years irrespective of the fact whether they belonged to grade 20 or not. Therein the procedure for retirement was not left to the fiat of the Competent Authority but wad made more objective. The competent authorities were re-designated for the purposes of such a retirement. According to the learned counsel, in view of the established position of the law as upheld in the decisions of this Court in Pakistan v. Sh. Abdul Hamid PLD 1961 SC 105, Government of West Pakistan v. Dr. A.A. Aziz PLD 1966 SC 188, Nazir Ahmed v. Pakistan PLD 1970 SC 453, Mohammad Asghar v. Safia Begum PLD 1976 SC 435, Secy. Government of Punjab v. Ahmed Kamaluddin 1981 SCMR 392 such instructions have to be given the force of the rule and to the extent of their inconsistency with the rules already framed, these would be deemed to have superseded the Rules. If that is the effect that is given to these instructions then the appointing officer or any designated officer was not the competent authority to order retirement of the appellant. The appointing authority could only initiate the case of his retirement which had to go before the Authority as such and only the Authority was competent to pass the order. As the order was not passed by the competent authority, according to the learned counsel, it suffered from a jurisdictional taint and must be declared to be devoid of legality and efficacy.
24. Mr. Iftikhar Ahmed, Advocate, the learned counsel for the WAPDA, has taken up the view which prevailed with the Service Tribunal, namely, that there were two distinct powers possessed in respect of officers in Grade-20 and above. One was that of retiring them under Rule 3(a) of the Rules and the other was of proceeding against them under Rule 3(b). The instructions referred to by the appellant and relied upon by him were, according to the learned counsel for the respondent, all directed towards regulating the action proposed to be taken under Rule 3(b) and no part of those instructions governed or regulated or in any way affected the exercise of power under Rule 3(a) of the Rules. The co-existence of two such powers in respect of the same officer was legally possible and the exercise of one power to the exclusion of the other did not vitiate the power itself or adversely affect the legality of its exercise.
25. The expression 'Authority' has been defined in section 2 clause (i) as hereunder:- "'Authority' means Pakistan Water and Power Development Authority established under section 3 of the Act."
26. Section 3 provides "There shall be established an Authority to be known as the Pakistan Water and Power Development Authority for carrying out the purposes of this Act."
27. Section 4 thereafter prescribes as follows:- "4. Appointment and term of office of Chairman and Members.---(1) The Authority shall consist o a Chairman and not more than three Members appointed by the Government: Provided that till such time as the Authority is fully constituted, the Chairman shall exercise the powers, functions and duties of the Authority.
28. (2)The term of office of the Chairman shall be five years and that of a Member three years.
29. (3)Any person ceasing to be the Chairman or Member by reason of the expiry of the term of his office shall be eligible for re--appointment of another term or for such shorter term as the Government may decide.
30. (4)The Chairman or any Member may at any time resign: provided that his resignation shall not take effect until accepted by the Government."
31. The Authority's absolute control over the terms and conditions of the persons employed by it, is indicated in section 18 in the following words:- "18. Recruitment and Conditions of service and disciplinary.-- The Authority shall prescribe the procedure or appointment, and terms and conditions of service of its officers and servants, and shall be competent to take disciplinary action against its officers and servants."
32. It was the Authority and the Authority alone which framed the Rules. This was done on 12-11-1979.
33. Thereafter in May 1980 (20th May), the Authority issued a memorandum the relevant portion of which reads as hereunder:- "The Authority has decided that bi-annual review in accordance with para. 2(c) of the Retirement Rules, 1979, of the cases of WAPDA Employees who will be completing 25 years service or attaining the age of 55 years after 1st July, 1980 will be initiated by the appointing authorities and to give fair chance to the employees, the review of the cases will be carried out in the manner indicated below. The review committees as indicated in para. 3 above will forward their recommendations in enclosed pro forma. The committees, while recommending retirement in service, shall indicate full reasons against the individual case in accordance with column 9 of the pro forma."
34. It was followed by other memoranda governing the same subject, the conspicuous feature relevant for the purposes of this appeal being that officers in BPS-20 were included in it. These instructions of general application governing the employees of WAPDA have to be, in accordance with the law laid down by this Court, treated as rules. Had the reference in the memorandum of 20th of May, 1980 been not to Rule 2(c) of the Rules but to Rule 3(b) the contention of the learned counsel for the respondent might have prevailed because the restricted definition of 'Competent Authority' or, the re-designated competent authority would have been taken to be limited to sub- rule (b) of Rule 3 keeping intact the alternative authorities designated for the purposes of action under Rule 3(a) of the Rules. By redefining the 'Competent Authority' as defined in Rule 2(c) and restricting it to Authority alone the restricted definition has been allowed to transcend to Rule 3(a) as well. The Appointing Authority and the designated Authority other than the Authority itself have on that view been denied the power to proceed against officers, even those in Grade-20, who have completed 55 years of age or 25 years of service. It is to be noted that the various memoranda referred to and relied upon by the learned counsel for the appellant do not make any reference to Rule 3(b) at all but they make a mention of the definition clause 2(c) and of officers who have completed 25 years service or have attained the age of 55 years and this category includes in the memoranda even those officers who are in Grade-20 about whom there existed a special provision in Rule 3(a). In the circumstances, the effect of these memoranda is that in respect of those officers of Grade-20 who have completed 25 years or have attained the age of 55 years, the Competent Authority ceases to be the Appointing Authority or the designated Authority and instead, it is the Authority which alone had the jurisdiction. As the order of retirement was passed in the case of the appellant, not by the Authority but by the Appointing Officer, it suffers from a legal jurisdictional taint. The appeal is, therefore, allowed with costs and the order impugned is declared to be without lawful authority 'and of no legal effect.