' Sh. Muhammad Yaqoob Khan has filed this writ petition to assail the validity of the order of the Chairman, Municipal Committee, Toba Tek Singh, dated 3rd of July, 1985 retiring him after he had completed 25 years of service and the order of the Deputy Commissioner, Toba Tek Singh dated 15th of December, 1985 whereby his appeal from his premature retirement was dismissed.
2. The petitioner was working as an Octopi Superintendent in NPS-11 in the municipal Committee, Toba Tek Singh. On 21st of October, 1982 he was retired on service on completion of 25 years of service qualifying for pension or other retirement benefits by the Chairman, Municipal Committee, Toba Tek Singh insurance of Resolutions Nos. 240 and 291 passed by the Municipal Committee, boa Tek Singh on 14th of July, 1982 and 13th of October, 1982 respectively hereby some other employees besides the petitioner were also similarly retired. Feeling aggrieved, the petitioner preferred an appeal which was heard by the Deputy Commissioner, Toba Tek Singh as an Appellate Authority who vide his order dated 8th of June, 1983 accepted the same and setting aside the order of the Chairman reinstated him with all benefits. The reason which prevailed with him was that the guidelines and criteria as contained in letter No, S.O. (S)146/81, dated 15th of July, 1982 issued by the Government of Punjab in the Services, General Administration and Information Department (Secret Section) had not been followed.
3. The Municipal Committee challenged the order of the Deputy Commissioner in the High Court by way of a writ petition. On 12th of March, 1984, this writ petition was accepted on the ground that the letter of the Provincial Government relied upon by the Deputy Commissioner did not apply to the employees of the Municipal Committees. The Deputy Commissioner/Appellate Authority was directed to dispose of the appeal of the petitioner on merits.
4. On 20th of January, 1985, the Deputy Commissioner, Toba Tek Singh by an order accepted the appeal and setting aside the order of the Chairman remanded the case to him with a direction that he should proceed to hear the petitioner, peruse the record afresh and pass a speaking order.
He observed: "From the perusal of the impugned order, it transpires that no reasons have been assigned for passing the order of retirement. It cannot be made out as to what is criteria on the basis of which some employees are being retired after completing 25 years' service while others are being allowed to continue. The Chairman, Municipal Committee should have briefly mentioned in the impugned order his reasons for passing the order of retirement. In such matters, a speaking order is desirable."
5. In pursuance of the above order, the Chairman, Municipal Committee, Toba Tek Singh on 3rd of July, 1985 passed a fresh order retiring the petitioner from service w,e,f, 22nd of October, 1983 in exercise of the powers under rule 4(i) of the West Pakistan Local Councils and Municipal Committees Servants (Retirement) Rules, 1966 on the basis of resolution No, 291, dated 13-10-1982 on the grounds of a shortfall in the octroi income of the Municipal Committee for the months of July, August and September, 1982 as compared with the income for the corresponding period of the last year and certain adverse entries in his record. The petitioner preferred an appeal from this order also before the Deputy Commissioner/Appellate authority who vide his order dated 15th of December, 1985 dismissed the same observing that his service record was not satisfactory.
6. The petitioner has contended that the order of the Chairman dated 3rd of July, 1985 is not only ultra vires but also factually incorrect and mala fide and that the order of the Deputy Commissioner dated 15th of December, 1985 is perfunctory and unsustainable. These contentions have been controverted by the respondents.
7. The petitioner was a Local Council servant as defined in rule 3 sub-rul (2) of the Punjab Local Councils and Municipal Committees Servant (Retirement) Rules, 1966. Rule 4 ibid provides for the retirement of a Loc Council servant. It runs as under:-- "4. A Local Council servant shall, notwithstanding anything contained in the terms and conditions of his service, retire from service:
(i) on such date, after he has completed 25 years of service qualifying for pension or other retirement benefits, as the appointing authority may, in the public interest, direct; or
(ii) where no direction is given under clause (i), on the completion of 60th year of his age (superannuation)."
' According to Rule 8 read with Rule 9(1)(c) of the Punjab Local Councils (Business) Rules, 1980, the Appointing Authority of a Local Council servant in Grade-11 in a Municipal Committee is the Municipal Committee. The Municipal Committee in its meeting held on 14th of July, 1982 passed resolution No, 240 retiring its nine employees including the petitioner on completion of 25 years' service. This resolution was of provisional nature as the opinion of the audit department was sought in the matter. One of the councilors namely Babu Muhammad Sharif, however, recorded a dissenting note, to the effect that since the record of the employees was unblemished, rather the record of the petitioner was so good that the Municipal Committee had recommended his accelerated promotion, and also because a Committee comprising Assistant Director, Local Government and Extra Assistant Commissioner, constituted by the Deputy Commissioner on 2nd of January, 1981 had found their record good, they be allowed to continue in service till they attained the age of 60 years. On 13th of October, 1982, the Municipal Committee, Toba Tek Singh passed Resolution No, 291 prematurely retiring the nine employees including the petitioner. The reason for the retirement of the petitioner and two Octori Inspectors namely Mehr Walayat Ali and Muhammad Amir was shortfall in the Octroi income of the Committee for the first three months of the current financial year as compared with the income for the corresponding period of the last year. However, no adverse opinion was expressed in the resolution in respect of their service record.
In pursuance of the above resolution, the following order was passed on 21st of October, 1982 by the Chairman, Municipal Committee:-- "Whereas Sheikh Muhammad Yaqoob Khan, Octroi Superintendent, Municipal Committee, Toba Tek Singh has completed 25 years of service qualifying for pension and other retirement benefits.
' Now therefore in exercise of powers conferred under rule 4(i) of West Pakistan Local Councils and Municipal Committees (Retirement) Rules, 1966, the Municipal Committee, Toba Tek Singh vide its Resolution No,240, dated 30-6-1982 and Resolution No, 291, dated 13-10-1982 has retired Sheikh Muhammad Yaqoob Khan, Octroi Superintendent. Accordingly Sheikh Muhammad Yaqoob Khan, Octroi Superintendent shall retire from service with immediate effect or with effect from the date of expiry of the L.P.R. Admissible to him if such leave is applied for by him within 15 days from the date of this order and the same is granted to him. Mr. Muhammad Aslam Anwar, Head Clerk will officiate in his place till the regular appointment of Octroi Superintendent."
8. Feeling aggrieved, the petitioner preferred an appeal before the Deputy Commissioner, Toba Tek Singh who had been appointed as an Appellate Authority vide Notification No, SOIV-SG-1(4)/80(ii), dated 15th of July, 1982 issued by the Provincial Government in pursuance of rule 4-A, sub-rule (1) of the West Pakistan Local Councils and Municipal Committees Servants (Retirement) Rules, 1966.
In compliance with the direction of this Court in the order dated 12th of March, 1984 passed in the writ petition of the petitioner, the Deputy Commissioner, Toba Tek Singh disposed of the appeal vide his order dated 20th of January, 1985, an extract of which has been reproduced in para. 4 above. It can be safely assumed that the Deputy Commissioner while passing this order was conscious that the order of the Chairman dated 21st of October, 1982 was based on the resolutions of the Municipal Committee No, 240 dated 14-7-1982 and No, 291 dated 13-10-1982. Therefore, when he observed that no reasons had been assigned for passing the order of retirement, he was referring to the resolutions in pursuance of which the order of retirement was passed. In this view of the matter, the direction given by the Deputy Commissioner to the Chairman that he should proceed to hear the petitioner, peruse the record afresh and pass a speaking order, was actually meant to be complied with by the Municipal Committee which alone was the competent authority to pass an order for the premature retirement of the petitioner. The Deputy Commissioner could not confer this power on the Chairman in violation of rule 4 of the Punjab Local Councils and Municipal Committees (Retirement) Rules, 1966 and Rules 8 and 9(1)(c) of the Punjab Local Councils (Business) Rules, 1980, referred to above.
9. After the remand, the matter of retirement of the petitioner was admittedly not placed before the Municipal Committee. The Chairman himself after hearing the petitioner passed the fresh order on 3rd of July, 1985 prematurely retiring him retrospectively w,e,f, 22nd of October, 1983. This order having been passed by an incompetent authority is patently ultra vires and liable to be struck down on this short ground alone.
10. As pointed out above, the Municipal Committee vide its Resolution No, 291 dated 13th of October, 1982 had decided to prematurely retire the petitioner along with two Octroi Inspectors on the sole ground that there had occurred decline in the Octroi income of the Committee for the months of July, August and September, 1982 as compared with the income for the corresponding period of the preceding year. However, the Chairman in his impugned order added the ground that the service record of the petitioner contained eight adverse entries. Out of the entries, four pertained to the years 1960 and 1961. These entries lost significance in view of the admitted fact that in spite of their existence the petitioner who was earlier working as Tonga Inspector was promoted as Octroi Superintendent w,e,f, 1-1-1962. Entry No, (v) related to a complaint of a member of Town Committee dated 25th of December, 1962 that the behavior of the petitioner with the elected members was highly objectionable. On the basis of this complaint, an adverse entry No, (vi) was made in his character book on 1-2-1963. This entry was, however, expunged by the Municipal Committee vide its Resolution No, 374 passed on 28-2-1970. This Resolution was approved by the Deputy Commissioner, Lyallpur vide his letter No, 1588-M/LFC, dated 11-3-1971 addressed to the Chairman, Municipal Committee, Toba Tek Singh. Now there are left the following two entries in the field:-- "(vii) Confidential report entry dated 5-2-1981 that Muhammad Yaqoob is mischievous and over clever.
(viii) Confidential report gently dated 11-2-1982 that Muhammad Yaqoob is man with wrongful intention."
' Photostat copies of the confidential reports of the petitioner for the years 198 and 1981 containing the above entries have been filed by the respondents. These adverse entries were not conveyed to the petitioner. The effect of the non-communication is that the entries could not be used to his disadvantage. Besides, it is alleged on behalf of the petitioner that these reports were prepared subsequently with an ulterior motive to lend justification to his premature retirement. In the ambient circumstances, this allegation does not appear to be without substance. If these entries had been in existence, the same would have been mentioned in Resolution No, 291 of the Municipal Committee passed on 13th of October, 1982. The confidential reports for the years 1980 and 1981 purport to have been written on 5th of February, 1981 and 11th of February, 1982 respectively. The petitioner has filed a photostat copy of memo. No, 447/PF/M.Y. Khan dated 30th of May, 1981 from the Chairman, Municipal Committee, Toba Tek Singh to the Deputy Commissioner, Faisalabad. In this communication, the Chairman had described the petitioner as follows:-- "He is really an honest, hard-working with unimpeachable moral character and always takes pains to improve the income and other affairs of the Municipal Committee."
' The above praise was lavished by the Chairman on the petitioner to justify the grant of higher national pay scale to him.
11. As regards the decline in the octroi income, nothing has been brought on record to show that the petitioner was liable for the same. If the petitioner had been negligent and responsible for the loss, the Deputy Commissioner would not have accepted his appeal with a significant observation in his order dated 20th of January, 1985 that no reasons had been assigned for passing the order of retirement.
12. Besides the petitioner, two Octroi Inspectors namely Mehr Walayat Ali and Muhammad Amir were also prematurely retired vide Resolution No, 291 on the ground of decrease in the octroi income of the Municipal Committee. Mehr Walayat Ali challenged his retirement by an appeal which was accepted on 30th of July, 1984 by the Deputy Commissioner, Toba Tek Singh who inter alia observed that, ' It appears that the Chairman, Municipal Committee has developed personal disliking against this official."
' The order of the Deputy Commissioner was upheld by this Court in Writ Petition No, 3729 of 1984 filed by the Chairman, Municipal Committee. Learned counsel for the petitioner has stated at the Bar that the judgment of the High Court in the writ petition was affirmed by the Supreme Court. In these circumstances, the ground of shortfall in the octroi income also loses cogency and validity.
13. Learned counsel for the respondents has argued that the petitioner was prematurely retired in the public interest and as this question lay exclusively to the subjective satisfaction of the competent authority, this Court is not competent to sit on judgment over the action of the competent authority. In support of this argument, he has relied on Lt.-Col. Farzand Ali and others v.
Province of West Pakistan through the Secretary, Department of Agriculture, and Government of West Pakistan Lahore PLD 1970 SC 98. According to the same precedent, however, the ouster of jurisdiction of the Court endures only if from materials disclosed it does not appear that the action taken was merely in colorable exercise of or in abuse of power." This principle has been followed in Raja Muhammad Niaz Khan Ex-Chairman, Azad Kashmir Mineral and Industrial Development Corporation v. Azad Government of the State of Jammu and Kashmir, Muzaffarabad PLD 1988 SC (AJ&K) 53 in paragraph 80 of the report. In this case also it is manifest from the material brought on record that the action of the Chairman was merely in colorable exercise of or in abuse of power.
Moreover, after the previous order of retirement was set aside by the Deputy Commissioner by his order dated 20th of January, 1985, it was not the Chairman himself but the Municipal Committee which alone was competent to pass a fresh order of retirement, if so justified. In this case, the fresh order of retirement was passed by the Chairman himself. C Therefore, the order of the Chairman being without jurisdiction cannot be countenanced in view of the Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan, Rawalpindi v. Saeed Ahmad Khan and others PLD 1974 SC 151.
14. As regards the impugned order of the Deputy Commissioner dated 15th of December, 1985, it is too cryptic and perfunctory and sma cks of superficial disposal of the appeal of the petitioner. The only reason mentioned by him for the dismissal of the appeal of the petitioner is, {{URDU TEXT}} ' The petitioner had agitated many grounds in his appeal for assailing the order of the Chairman.
The Deputy Commissioner did not deal with any of them. It is intriguing to find that while setting aside the previous order of retirement of the petitioner, the Deputy Commissioner vide his order dated 20th of January, 1985 had remanded the case for passing a speaking order but when his turn came to decide the matter, he did not fare any better and passed a sketchy order which does not at all reflect any semblance of application of mind to the contentions D raised by the petitioner.
The Administrative Authorities in such like matters are expected to write orders which do not betray whimsical and arbitrary disposal.
15. For the foregoing reasons, I accept this writ petition with costs, declare the impugned orders of the Chairman as well as the Deputy Commissioner as F without lawful authority and of no legal effect and reinstate the petitioner in service with back benefits.