1. ' SAJJAD ALI SHAH, J.--This Constitutional petition calls in question validity of order dated 27-2-1986 passed by Government of Sind refusing to petitioner benefit of move-over from Grade BS-17 to BS- 18 on the ground of being unqualified and order, dated 20th November, 1986, retiring petitioner from service after completion of 25 years of service.
2. ' Briefly stated relevant facts giving rise to this petition are that petitioner entered service on 1-2- 1955 in the defunct Karachi Joint Water Board set up under Karachi Joint Water Board Ordinance, 1949. Requisite qualifications for the post of Assistant Engineer (Mechanical) were degree or diploma from recognised University or Institution in Mechanical or Electrical Engineering. Petitioner has passed three years diploma in electrical engineering in 1945 from Government Technical College, Lucknow. He completed two years apprentice training in the same College and passed City Guilds Final in Electrical Engineering, London. He also passed A.M.I.E.E., London (section `A'). On 12-10-1954 petitioner applied for the post of Assistant Engineer (Mechanical) and submitted copies of certificates and testimonials along with his application to the Karachi Joint Water Board. No objection was taken during the scrutiny of certificates and testimonials after which petitioner was interviewed on 15-11-1954 alongwith other candidates in an open competition by a High Powered Selection Committee comprising Chairman of K.J.W.B., Chief Engineer of K.J.W.B. And two representatives, one from Ministry of Finance and the other from Central Government. Petitioner was selected and offered appointment applied for vide letter dated 11-1-1955. Annexure 13' appended with petition is record of minutes of meeting of Selection Committee held on 15-11-1954 and it shows that eight candidates were called for interview out of whom six appeared and only two were selected including petitioner. Final observation in the minutes, which is noteworthy, is reproduced as under:- "They have further been pleased to decide that Messrs Akbcr Ali and Shaikh Ahmed Qureshi both are well experienced and qualified in their trade of Mechanical and Electrical Engineering ' Next document produced is letter of appointment dated 11-1-1955 which is Annexure 'C' on the record, which contains usual terms and conditions. Vide letter dated 25th/26th April, 1955 (Annexure 'D') petitioner was appointed and posted as Assistant Engineer (Mechanical) in the Mechanical Circle with effect from 1st February, 1955.
3. ' Subsequently in the year 1957 K.J.W.B. Was merged into K.DA. Under Article 120 of K.DA. Order 1957 saving therein every appointment, order, rule and regulation made or issued under the Karachi Joint Water Board Ordinance, 1949 which was repealed. In consequence K.J.W.B. Recruitment Rules, 1953 were saved and were made applicable Mutatis Mutandis to classes of servants in K.DA. Vide memorandum No, F.7-1/56-LGCFS of Ministry of Works, Government of Pakistan dated 26th November, 1959 (Annexure `E'). It may be mentioned here once again that in the said rules for direct recruitment of Assistant Engineer (Mechanical) requisite condition is degree or diploma from recognised University or Institution in Mechanical and Electrical Engineering. Petitioner was absorbed in K.DA. As Assistant Engineer and then promoted as Assistant Executive Engineer vide office memorandum of K.DA. Dated 4-1-1961 (Annexure 'F') and later confirmed vide Secretariat Order of K.DA. Dated 11-10-1968 (Annexure `G') effective from 4-1-1961.
4. ' Vide K.DA. Order dated 26th June, 1974 (AnnexureOrangi and Baldia Townships were transferred to Karachi Metropolitan Corporation, impleaded in this petition as respondent No, 2, w,e,f, 1st July, 1974 as per decision of the Government together with work and staff of those areas. In the terms and conditions of the said order mentioned above, two such conditions are worth noticing. Condition
(b) contemplates that services rendered by the confirmed and temporary staff in the K.DA.
5. Immediately before their transfer to K.M.C. Shall count for purposes of seniority and pensions.
6. Condition (g) contemplates that other terms and conditions of service shall not be to the disadvantage of the employees being transferred along with the work to K.M.C. Consequently, petitioner was absorbed in Grade-17 in the service of K.M.C. And such order was issued by Additional Chief Secretary, Housing Town Planning Local Government and Rural Development Department, Government of Sind, on 8th September, 1976 (Annexure '1'). Government of Sind issued seniority list of officers in Grade-17 (Electrical and Mechanical) with name of petitioner at No, 1 showing his continuous appointment in Grade-17 from 4-1-1961 (Annexure T and 'K'). Enquiry was made from petitioner vide Government's letter dated 21st May, 1979 whether he had any objection to his placement in the revised tentative seniority list officially issued and circulated, to which petitioner had none.
7. ' Petitioner was transferred and posted as Executive Engineer (Mechanical) vide Order dated 10/11- 7-1977 and in compliance he took over charge of K.M.C. (Workshop) w,e,f, 17-7-1977. It is the case of the petitioner that even prior to that, while he was in K.D.A. As Assistant Executive Engineer, he was looking after the work of Executive Engineer in addition to his own duties and was authorized to sign pay bills and salary bills etc. Vide letter of K.DA. Dated 19th February, 1964 (Annexure 'C').
8. Government of Sind vide letter dated 23rd April, 1981 issued fresh revised tentative seniority list of officers in Grade-17 (Electrical and Mechanical) of the Sind Councils Unified Grades (Engineering Branch) placing petitioner at No, I with the then posting of Assistant Executive Engineer of K.M.C.
9. With date of promotion in that grade from 24-1-1961 or 3-1-1961 (both dates are mentioned in Annexures P, Q and R). These documents clearly show that seniority of the petitioner with diploma in Electrical Engineering has been recognized and he has been placed No, 1 in the list of officers of Sind Councils Unified Grades (Engineering Branch Electrical and Mechanical) as on 15-3-1981 in Grade-17.
10. ' It is claimed by the petitioner that since he has been officiating as Executive Engineer (Mechanical) in post of BS-18 continuously w,e,f, 17-7-1977, ' he should be given promotion in that grade from that date and period of his officiating should be counted in BS-18 towards his seniority w,e,f, 17-74977, when he took over the charge of Executive Engineer (Mechanical). In this context K.M.C. Took up the matter with Government of Sind and while the case of the petitioner was still pending final disposal, case of petitioner became ripe for move- over from BS-17 to BS-18 as the petitioner had already reached maximum in BS-17. Copy of such letter dated 21-12-1984 is on record as Annexure 'S'.
11. ' Government of Sind wrote to K.M.C. Letter dated 6-2-1985 Annexure 'T' demanding from the petitioner duplicate copy of Matriculation Certificate and copy of certificate of three years diploma course to be produced within 21 days from the receipt of letter, failing which petitioner would not be considered for promotion and higher grade scale of pay. Petitioner claims that he informed Government of Sind vide his letter dated 14-2-1985 in which he stated that theft was committed in his house quite some time ago in which original certificates were stolen along with other household items and articles and in support copy of F.I.R. No, 83(8)/58 registered at P.S. Brigade on 18-8-1958 was produced along with some other certificates which were available with him. Copy of F.I.R. Is on the record as Annexure-U. Petitioner was informed by the Government of Sind vide letter dated 27- 2-1986 (Annexure 'V') that he cannot be allowed benefit of move-over being unqualified for promotion to the post of B.S. 18 in Engineering Branch of Sind Councils Unified Grades Service.
12. Petitioner filed Constitutional petition in the High Court of Sind on 30-4-1986. During the pendency of the petition (Government of Sind respondent No, 1) vide order, dated 20th November, 1986 retired petitioner from service after completion of 25 years of service as contemplated under Rule 4(a) of the West Pakistan Local Councils and Municipal Committees Servants (Retirement) Rules, 1966.
13. Petitioner was allowed to amend the petition and impugn order of retirement, which he did on 23- 12-1986. Subsequently, petitioner once again amended the petition on 14-9-1987 and added prayer that respondents 1 and 2 be directed to permit the petitioner to draw his salary in BS-18 w.c.f. 17-7- 1977 and further declaration that his seniority should count in BS-18 from the said date. It may be mentioned here that after the petition was filed in the High Court on 30-4-1986, order of status quo was passed in favour of petitioner on 5-5-1986 as such he remained in service and subsequently order of retirement was passed against him, which was impugned in the petition before it could be served upon the petitioner.
14. ' On behalf of K.M.C. As respondent No, 2 in this petition, counter-affidavit has been filed by Mr. Jethamal, Executive Engineer. Regarding allegations pertaining to K.M.C., stand is taken that petitioner was posted as Executive Engineer in his own pay and grade i,e, BS-17 as such it does not create any right in favour of petitioner. In respect of move-over, stand is taken that case of the petitioner was forwarded to respondent No, 1 which is Government of Sind for necessary action under rules. It is also claimed in the counter-affidavit that Government of Sind have notified Sind Local Councils Unified Grades Service Rules, 1982 which are applicable to the case of the petitioner.
15. ' On behalf of Government of Sind, respondent No, 1, counter-affidavit was filed on 15-11-1986 by Durban Ali Jafri, Chief Administrative Officer, Sind Local Government. On the question of move-over stand is taken that case of the petitioner was rejected by Sind Local Government Board in its meeting held on 6-1-1986 on the ground that petitioner is not qualified for promotion to the post of BS-18 as per Sind Councils Unified Grades Service Rules, 1982, which contemplate requirement of five years' experience for degree-holder and 12 years' experience for diploma-holder for promotion from members of service in Grade-17 of the Engineering Branch. It is further stated in the counter- affidavit that since petitioner does not possess required qualification of three years diploma in Engineering, he is not qualified for BS-18 and therefore he cannot be allowed benefit of move-over to BS-18. It is further stated in the counter-affidavit that diploma of the petitioner is not recognised by the Inter Board Committee of Chairman as per his letter dated 4-2-1985 and further stated that certificate of competency produced by the petitioner is not related to his qualification. Petitioner was absorbed in Sind Councils Unified Grades Service, as such he was to be governed under S.C.U.G. Service Rules, 1982. It was claimed that K.M.C. Was not authorised to post officer in BS-17 as Executive Engineer without prior permission of competent authority. Petitioner being unqualified does not deserve to be promoted to BS-18 either under West Pakistan Local Councils and Municipal Committees Service Rules, 1963 or S.C.U.G. Service Rules, 1982 as such cannot be allowed benefit of move-over. Stand is also taken that petitioner was not qualified at the time of his appointment as Assistant Executive Engineer in BS-17 in the then K.J.W.B.
16. ' Additionally, Secretary, Local Government Board, Sind has also filed comments in which stand is taken that petitioner had been rightly retired from service by competent authority after he has completed 25 years of service qualifying for pension.
17. ' We have heard at length Mr. Muhammad Ali Sayeed, Advocate for the petitioner, Mr. S. Sarfraz Ahmed, A.A.-G. Sind for respondent No, 1 (Government of Sind) and Mr. Muslim Naqvi for respondent No, 2 (K.M.C.). It appears from what is stated in the preceding paragraphs with regard to the facts of this petition as mentioned in the memorandum of petition and other documents such as counter-affidavits and comments filed on behalf of respondents that right from the very beginning petitioner has had smooth sailing from the moment when he entered service and got promotions as and when they had become due and came his way on the basis of seniority-cum-merits.
18. Documents reflecting the case of respondents show that the stand has been taken and controversy arose when case of the petitioner was sent by K.M.C. To the Government of Sind for consideration of grant of move-over from BS-17 to BS-18. Case of the petitioner was rejected by Sind Local Government Board in its meeting held on 6-1-1988 and the reasons assigned, as stated in the counter-affidavit of Qurban Ali Jafri, is that petitioner is not found qualified for promotion to the post of BS-18 (Engineering Branch) because he does not possess required qualification of three years diploma in Engineering as such fails to satisfy the condition of 12 years service in respect of diploma-holder in Grade-17 for the purpose of promotion to the post in BS-18 as required under Sind Councils Unified Grades Service Rules, 1982. What has happened, as stated above, is that after the case of petitioner was referred to the Government of Sind for the purpose of move-over, petitioner was called upon to produce copies of Matriculation certificate and certificate of three years diploma course which the petitioner had passed. Petitioner informed the Government of Sind that he was unable to produce certificate of diploma for the reason that in the year 1958 a theft was committed in his house in which this certificate and other household articles were stolen and he had filed such F.I.R. At P.S. Brigade on 18-8-1958, copy of which was produced. After that vide letter dated 27-2-1986 respondent No, 1 informed the petitioner that he could not be allowed benefit of move-over for the reason that he was unqualified for promotion to the post of BS-18 in Engineering Branch of Sind Councils Unified Grade Service. In the rules mentioned above for Engineering Branch for promotion to BS-18, requirement indisputably is that for degree-holder experience of five years was necessary in BS-17 and for diploma-holder experience of 12 years was necessary. Petitioner was promoted as Assistant Executive Engineer (Mechanical), which was a post of BS-17 on 21-12-1960. He was confirmed as Assistant Executive Engineer Mechanical) vide Secretariat Order dated 11-10-1968 on the basis of Resolution No, 243 passed by Governing Body of K.D.A. In the said order the date of confirmation against the petitioner in the said Grade is shown as 4-1-1961. In K.M.C. Petitioner was absorbed in Grade-17 w,e,f, 20-8-1974 vide order, dated 8th September, 1976. Since petitioner was already in Grade-17 when transferred from K.D.A. To K.M.C., vide K.DA. Order, dated 26th June, 1974, h. Confirmation in Grade-17 was protected by the same order after absorption ii K.M.C. And further it was provided in that order that other terms and condition: of service shall not be to the disadvantage of the employees being transferred alongwith work to K.M.C. Requirement of 12 years' service in Grade-17 as contemplated under Sind Councils Grade Service Rules, 1982 does not demand 12 years' service after confirmation. In the circumstances and with protection of K.D.A. Order dated 26th June, 1974 petitioner does qualify for promotion from BS-17 to BS-18. Now the only ground which can be offered by respondent No, 1 for rejection of request of petitioner for move-over is that he had failed to produce original certificate of diploma. Production of original certificate of diploma is not the requirement contemplated by Sind Councils Unified Grades Service Rules mentioned above for the purpose of move-over from BS-17 to BS-18.
19. ' It is stated in the counter-affidavit of ()urban Ali Jafri filed on behalf of respondent No, 1 that opinion was sought with regard to the qualification of three years' diploma of petitioner from Secretary, Board of Technical Education, who has opined that petitioner cannot be treated at par with three years'diploma of associate engineering issued by the Board of Technical Education for the reason that petitioner was born in 1930 and diploma in question appears to have been issued to him when he was 15 years of age. It is further stated in the said letter that in Pakistan such diploma is given three years after Matric. Strangely enough, this opinion is given by Secretary, Sind Board of Technical Education on 4-2-1985. This letter of opinion, though written very belatedly, does not show that non-production of original degree or diploma was in dispute but a doubt had arisen in the mind of the Board with regard to the age shown in the Matric certificate. Now firstly respondents have not shown as to under what particular provision of Sind Councils Unified Grades Service Rules, 1982, opinion had to be obtained from Sind Board of Technical Education for the purpose of allowing move-over from BS-17 to BS-18. Secondly, proper stage for scrutiny of such documents and testimonials was at the time of initial appointment which in respect of petitioner took place in the year 1955 in KJ.W.B. Which was constituted under Ordinance 13 of 1949 and Rules applicable were Karachi Joint Water Board Gazetted Staff Recruitment Rules, 1953. Petitioner was interviewed by a High Powered Selection Board and the minutes of the Board and subsequent order of appointment show that proper scrutiny was made and petitioner was found well- experienced and qualified after which he was offered appointment. No doubt was expressed with regard top any document produced by the petitioner.
20. ' Petitioner has remained in service all along and now after a period of 30 years, this objection is raised and that also in connection with question of move-over from BS-17 to BS-18 particularly when there is nothing adverse in the record of the petitioner which appears to be flawless.
21. Respondents have also failed to show any cover of rule to justify obtaining opinion with regard to the diploma of petitioner after such a long time. Objection on the face of it appears to be unsustainable and cannot come in the way of petitioner, who otherwise appears to be entitled to the move-over.
22. ' Another order impugned in this petition is order dated 20th November, 1986, whereby petitioner has been retired from service after completion of 25 years of service. This order is passed under Rule 4(a) of West Pakistan Local Councils and Municipal Committees Servants (Retirement) Rules, 1966. Under the rule mentioned above, competent authority may in public interest direct retirement of Local Councils Servants who have completed 25 years of service. Emphasis is on the fact that such action can be taken when it is in public interest. It would be in public interest to retire such officer or servant if his record is bad or tainted. It is held by the Shariat Appellate Bench of Supreme Court of Pakistan in the case of Pakistan and others v. Public At Large and others PLD 1987 SC 304 that premature retirement without notice by way of summary procedure is penal action amounting to compulsory retirement and such act is repugnant to the injunctions of Qur'an and Sunnah. Rights of any individual cannot be sacrificed on the mere assumption that it is in public interest. It was further held that provisions in the enactments mentioned below are repugnant to the injunctions of Islam in so far as they do not provide for due notice of action proposed to be taken and opportunity to be given for showing cause against such action by competent authority:
(i) Section 13, clauses (i) and (ii) of Civil Servants Act, 1973.
(ii) Section 12, clauses (i) and (ii) of Punjab Civil Servants Act, 1973.
(iii) Section 13. Clause (i) of Sind Civil Servants Act, 1973.
(iv) Section 13, clauses (i) and (ii) of Baluchistan Civil Servants Act, 1974.
(v) Section 13, clauses (i) and (ii) of the N.-W.F.P. Civil Servants Act, 1973.
(vi) Sub-rule (3) of rule 44 of Pakistan Cantonement Servants Rules, 1954 framed under the Cantonments Act, 1924.
23. ' In the instant case, impugned order of premature retirement is passed under Rule 4(a) of West Pakistan Local Councils and Municipal Committees Servants (Retirement) Rules, 1966, which is analogous with provisions of the Acts mentioned in the reported case of Shariat Appellate Court inasmuch as no provision is made therein for notice before taking such action. It is further stated at the bar before us that our Sind High Court has allowed Constitutional Petitions Nos. 12, 211, 289 and 387 of 1987 following rule laid down by the Shariat Appellate Bench on the ground that orders of premature retirement passed under section 13 of Sind Civil Servants Act, 1973, were illegal and without lawful authority as they were inconsistent with injunctions of Islam on account of lack of notice.
24. We are of the view that the same principle as stated above is applicable in the instant case also.
25. Since West Pakistan Local Councils and Municipal Committees Servants (Retirement) Rules, 1966, are not specifically mentioned in the reported judgment of Shariat Appellate Court mentioned above and while dealing with this petition under Constitutional jurisdiction, scope for interference is limited and defined, we quash order of retirement in this case on the following grounds. Firstly that it is bad for want of notice. Secondly, it is not in public interest because there is nothing adverse against the petitioner and record of his service is untarnished. Thirdly, mala fides are attributable to respondent No, 1 for the reason that this order was passed during the pendency of Constitutional petition in the manner which leaves us in no doubt that competent authority is unable to show any justification whatsoever in support of impugned action.
26. ' We have already held above that petitioner is entitled to move-over from BS-17 to BS-18. We cannot grant prayer of the petitioner to allow him to draw salary of BS-18 w,e,f,17-7-1977 for the reason that according to respondent No, 1 petitioner was officiating as Executive Engineer on his own salary in his own grade and he was not promoted officially as Executive Engineer and further that it was done by respondent No, 2 without prior permission of competent authority, which is respondent No,
1. In the result, we allow this petition in terms stated above with no order as to costs.
27. ' After hearing the counsel for the parties in this case, by a short order we had allowed this petition on 2-11-1988 for reasons to be recorded later, which we have given now.