ABDUR REHMAN KHAN, J.--In this petition under Article 199 of the Constitution the petitioner has requested for the following reliefs:- (A)Declaring as illegal, mala fides, without lawful authority and without jurisdiction the order of Chief of the Air Staff, respondent No.l, and that of the Federation of Pakistan through Secretary- General Ministry of Defence respondent No.4, whereby the claim of the petitioner regarding disability pension was rejected and consequently directing the said respondents to allow disability pension for 40% disability to the, petitioner along with arrear interest etc. From 30-4-1974.
(B)In the alternative for declaring as illegal, mala fide and without lawful authoritythe order of respondent No. 3 whereby the renewal of Air Line Transport Pilot Licence of the petitioner was withheld and resultantly directing respondents 1 and 2 to accept the medical fitness of the petitioner and to honour the N.O.C. Granted by respondent No.l and to recall the `Corrupted medical reports' `provided by respondent No.2 to respondent 3.2. These prayers have been made in context of the following background as alleged by the petitioner in his writ petition. The petitioner was granted commission as Pilot in Pakistan Air Force in 1958 and got promotion in due course. In the year 1965 when the petitioner was holding the rank of Flight Lieut. He sustained back bone injuries during the war mission. These injuries were attributed to war services by the Commander- in-Chief of Pakistan Air Force but as the degree of disability incurred by the petitioner was determined to be less than 20%, therefore, he was allowed to continue as G-D(P) Officer. In 1966 the then Lieut. Col. I.D. Hassan Medical Specialist due to strained relations between him and the petitioner diagnosed the petitioner as a patient of Cardiac Ischeamia and, therefore, the petitioner was declared permanently unfit for flying in November, 1967. However, the petitioner was declared 6t to serve in the ground branch of PA.F. The petitioner was offered afresh contract of service in the Administrative Branch which he accepted and where he served till his retirement in December, 1973. Air Force Order 160-48 as amended by A.F.O. 160-48A envisages that an Officer at the time of his retirement is to be examined by a Medical Board with a view to invalidating him in case the disability sustained by him during service is attributable to service condition or aggravated by it and the total disability was assessed at 20% or above. Petitioner complains that in spite of representation he was not brought before such a Board for mala fide reasons. However, eventually the petitioner succeeded in getting the said medical board ordered under the command of the then Chief of the Air Staff and the Station Medical Officer, PA.F. Chaklala Base was directed in term of Air Force Order No.160-48 and 48-A to examine the petitioner by such a Board. On examination by the Board the total disability of the petitioner was worked out as 40% but in spite of it he was not allowed disability pension on the ground that the petitioner having continued in service after sustaining the said disabilityhas enhanced his pension. The petitioner appealed against this decision before Federal Government but he was never associated with the appeal nor intimated its result and it was in August, 1977 that the petitioner managed to know about the disposal of the said appeal. It was further alleged in this respect that therelevant procedure for disposal of appeal as laid down in J.S.I.-25/67 was not adopted. It was also objected that he has not been meted out the same treatment as was extended to another member of the GD(P) Branch in the PAY. Namely, Sqn.
Leader Amanullah Khan. It was further alleged that the petitioner has been declared fit by Medical Bpard of Federal Aviation Agency of America at Abu Dhabi and also by the Medical Board of Civil Aviation Authority of U.K. For grant of their Air Line Transport Pilot Licence. The petitioner then appeared before the Pakistan Civil Aviation Medical Board for obtaining A.L.T.P. Licence and was declared fit and accordingly issued the prescribed licence. The petitioner was also granted N.O.C.
To seek flying appointment abroad or in the F.I.A. It is next stated that the petitioner was then appointed as Chief Flying Instructor at Multan Flying Club but on 8-8-1977 he met an air crash. The cause of the air crash was investigated by Air Commodore (Retd.) P.D. Callaghan qua Inspector of Accident Department of Civil Aviation but as this Inspector nourished grudge against the petitioner since the time of their service in the PA.F., therefore, he suspended P.L.T. Licence of the petitioner illegally. This order was challenged before the Director-General Civil Aviation but as this Director- General was an intimate friend of the said Inspector, therefore, he `blindly supported the Inspector."
The petitioner challenged this action of both of them m the writ petition before Lahore High Court.
The then Additional Secretary Ministry of Defence who was intimately associated with the said Officers helped them by procuring false and motivated report from respondent No.2 labeling the petitioner as a case of Cardiac Ischeamia and, therefore, unfit to fly. On the basis of this report they were able to obtain a report from Civil Aviation Medical Specialist recommending cancellation of the A.L.T.P. Licence of the petitioner. The High Court, therefore, dismissed the Writ petition of the petitioner but ordered the respondents in that case to complete the investigation and decide the case in accordance with law within one month. The petitioner challenged this decision before Supreme Court but leave was refused there. The petitioner then challenged the validity of the suspension order through a legal notice. For the renewal of the said licence the petitioner appeared before Civil Aviation Medical Board for routine medical examination but respondent No.2 forced the petitioner to go through the full medical board. The Civil Aviation Board declared the petitioner to be presently unfit on the basis of false and motivated report supplied to them by respondent No.2 as referred above and directed the petitioner to produce coronary angiography.
The petitioner resisted this and he was, therefore, referred to Chief Cardiologist Armed Forces for expert opinion but the same old false report was supplied to him by respondent No.2 and the actual record on which the said report was based was not provided to the expert. It is said that after all possible tests the petitioner was found fit but even then the Cardiologist supported the Civil Aviation Medical Board in matter of coronary angiography test. It was also mentioned that on earlier occasion when the petitioner had appeared before the said Cardiologist through another channel then he had found no abnormality in the heart of the petitioner. The petitioner then submits that this test of coronary angiography is hazardous and carries high risk of mortality in Pakistan. It is further alleged that the respondents are using the pretext of the said test only to prevent renewal of the licence of the petitioner. The petitioner, through legal notice dated 27-5- 1969 asked respondent No.3 to. Restore medical category of the petitioner but with no response from him. It was next stated in the petition that he then served notice on all the respondents calling upon them either to accept the medical fitness of the petitioner or to release him on disability pension but with no reply from their side.
3. In view of the said allegations it was argued by the petitioner who appeared for himself (a) that the orders of the respondent rejecting disability pension claim of the petitioner for 40% total disability, are illegal, mala ride and coram non judice, (b) the provisions of J.S.1.45/1985 are not applicable to the case of the petitioner, (c) the petitioner should have been examined by proper medical board at the time of his retirement for assessment of his disability. However, it was submitted that the functionaries under the control of respondent No.1 discarded the rule on the subject. In the peculiar circumstances the case of the petitioner would not fall under restrictive provision of para.8 of J.S.I. 45/1965.
4. Similarly, many other points were urged by the petitioner in order to substantiate the allegations leveled in the writ petition. However, there is no need either to mention or comment upon those submissions because during this time the learned counsel for the respondents raised a preliminary objection that the writ petition is not maintainable under Article 199(3) as no writ can be issued by this Court regarding a member of Armed Forces of Pakistan in respect of either of his terms and condition of service or matter arising out of his service and similarly all the actions taken against such a member in connection with his service would be immune from exercise of constitutional jurisdiction of this Court. To elaborate and be more specific about the objection it was submitted that the petitioner was serving in P.A.F. And the first relief sought in the writ is regarding his entitlement to disability pension and a direction in this respect to respondents 1 and 4 allow him disability pension for 40% disability. This claim obviously is relatable to the terms and conditions of his service in respect of a particular matter which naturally arises out of his service and which will nullify, invalidate and deprive of efficacy the actions taken and orders made against him and as member of the Armed Forces of Pakistan. More so when it was urged that in matter of his claim to enhance pension on account of disability he will be governed by the law and rules applicable in case of a member of Armed Forces. Similarly, the alternative relief claimed in the writ petition in substance is to the effect to direct respondents Nos.l and 2 to accept the medical fitness of the petitioner and to honour the N.O.C. Already issued to him by respondent No.l and to discard and recall the alleged, "Corrupted medical report" provided by respondent No.2 to respondent No.3 essentially and basically covers terms and condition of services, matter arising out of service and pertains to and embodies actions which were taken against the petitioner when he was a member of Armed Forces. In the circumstances the learned counsel of the respondents was of the view that the prayers of the kind made in the writ petition are not susceptible and yielding to the constitutional jurisdiciton of this Court. In support of his view the learned counsel referred to PLD 1986 Kar. 525. On the other hand, the petitioner while arguing for himself stressed that the bar and restrictions as contained in Article 199 (3) could not be pleaded against him as he is enforcing his claim through this writ petition at the time when he is retired and is no more in the Defence Services. It was further contended that after retirement from service he could not be deprived of the constitutional protection as provided under Article 199 of the Constitution. In order to give weight to his-arguments he referred to various precedent cases but mainly relied on State v. Ziaur Rehman and others PLD 1973 SC 49 and in the same book referred to another case page 514 reported as Govt. Of N.-W.F.P. v. Said Khan. He also based reliance on a case Brigadier Retd. F.E. Ali and another v. The State PLD 1975 SC 506. However, it could not be satisfactorily shown as to how far these cases are relevant and as to how they can be applicable in view of the peculiar facts and circumstances of this case which are quite distinct and distinguishable than those contained in the precedent cases. In the instant case the entire controversy raised by the petitioner relates to the terms and conditions of his service and his entitlement to disability pension under the relevant law and rules applicable to him as a member of Armed Forces. It is his grievance in the writ petition that the provisions of certain A.F.O. And J.S.I. Have been wrongly applied to him and some others have been misinterpreted. It is manifest from the bare reading of writ petition that he has mostly, challenged those actions which were taken in relation to him while he was still a member of the Armed Forces and all these actions and matters are essentially relatable to his services in the P.A.F.
To illustrate this we would reproduce certain extracts from the writ petition. Para.4 of the grounds of the writ petition reads: "That the provisions of J.S.I. 45/1965, do not apply to the case of the petitioner. Firstly, the Medical categorization described therein does not cover the case of P.A.F.
Fliers. Secondly, the petitioner lost about Rs.42,000 in emoluments, approximately Rs.400 per month in pension and the career completely on account of disabilities. Thirdly the petitioner could not be deemed to have been retired in category higher than `E' with 40% total disability but for palpable mala fides on the part of pension officers of the respondent No.l to cover up their own default.
Similarly, para. 5 of the ground is to the effect, `That the petitioner was to be brought before proper medical board at the time of his retirement for assessment of the said disabilities and to be placed in Category `E' if the total disability was or exceeded 20%. The functionaries under control of respondent No.l disregarded the Rules on the subject, whereby the said board was held nine months after the due time under the orders of then D.C.A., PAY. The total disability of the petitioner having been determined as 40% his retirement orders had to be amended to the same effect. The same functionaries instead of mending there fault rejected the claim of the petitioner against all norms of law, justice and equity!'
5.It is not the case of the petitioner that in respect of actions taken, orders passed a retired officer is to be treated differently than the one on roll. So we are clear on the point that the bar contained in Article 199(3) of the Constitution fully applies to the case of the petitioner and consequently the writ petition is; liable to be dismissed on this score alone. As the writ petition is not entertainable on account of the said restrictions then obviously it would be futile to deal with the merits of the case argued at length by the petitioner.
6. To sum up the preliminary objection raised by the learned counsel for the respondents prevails and the writ petition is dismissed as not competent under Article 199(3) of the Constitution. We would, however, make no order as to costs.