The petitioner who was employed as Administrator of Aquaf, Sargodha ne, and posted at Sargodha, was retired from service with immediate effect in jursuance of Notification No, SOG-I- 18(23)A.185, dated 22nd June, 1986 issued under clause (ii) of section 12 of the Punjab Civil Servants Act, 1974 by the Chief Coministrator of Auqaf, Punjab. The validity of this Notification has been called in question by the petitioner under Article 199 of the Constitution.
2. Section 12(ii) empowers the competent authority to retire a civil servant in the service of the Province from service, in the public interest, on such date as it may direct after he has completed twenty-five years of service qualifying for pension or other retirement benefits. But the petitioner's learned counsel has raised a formidable objection that the Auqaf Department is not a Department of the Provincial Government; he was thus not a civil servant; and, therefore, could not be subjected to the provisions of the Punjab Civil Servants Act. He referred to section 3 of the Punjab Waqf Properties Ordinance, 1979 to point out that Chief Administrator Auqaf is a Corporation sole; the employees of Aquaf Department are the creation of the statute, whose terms and conditions are regulated by Service Rules. The submission thus, was that the notification issued on the assumption that the petitioner was a civil servant was wholly without jurisdiction.
3. There is much force in these contentions. The petitioner could not have been treated as a civil servant amenable to the provisions of Punjab Civil Servants Act, 1974. Such being the correct position in law, the learned counsel of the respondent has rightly conceded that the notification under section 12 was wholly illegal and could not be sustained. He, however, raised the plea that the petitioner being an employee of a Corporation, the ordinary law of Master and Servant would apply and the respondent is entitled as of right to terminate the petitioner's service without notice.
He also referred to Rules 12, 13 and 14 of the Auqaf Service Rules. A reference may here be made to these rules. Under Rule 12 every member of Service in the Auqaf Department is required to execute an agreement in the form prescribed by the Chief Administrator at the time of his permanent substantive appointment. Rule 13 provides that services of a member of the service can be terminated in accordance with the terms of the agreement. Under Rule 14 powers have been conferred on the competent authority to terminate the services of a member of the service without giving any notice or on a shorter notice without assigning any reason, notwithstanding the incorporation of provision in the agreement regarding service of notice. These provisions of the Rules, in his submission fall in line with the general law of Master and Servant that the latter is not entitled to any safeguard available to a public servant and his services can be dispensed with without any notice. It was also urged that even if the petitioner's retirement suffered from some illegality, at the most he could file a suit for damages but could not seek the declaration prayed for or claim induction into the service.
4. The respondents' reliance on the Rule of Master and Servant is misconceived. There is no doubt that statutory rules governing the terms and conditions of the employees of the Auqaf Department, have been framed. It is now well-settled that where such statutory rules exist the Master will be deemed to have surrendered his pleasure to the extent of the matter governed by the Rules and the services of such an employee cannot be terminated without resort to the provisions of the Rules. Reference in this connection may be made to Mushtaq and another v. Shahzad Akhtar and another 1983 SCMR 1274, which relates to the termination of the services of an employee of Evacuee Trust Property Board and the Supreme Court maintained that as regular Rules governing the terms and conditions of the services of the employees of the Board in the form of Efficiency and Discipline Rules which had been adopted by the Evacuee Trust Property Board, as well as its own rules, were in existence, the dismissal in violation of the Rules was illegal. The instant case is fully covered by the enunciation of law laid down in this precedent. No fault, therefore, can be found with the sustenance of the writ petition questioning the validity of the notification.
5. Mr. Kiani then made another effort to protect the impugned notification and argued that when an authority passes an order which is within its competence, it cannot be invalidated merely because it purports to have been made under a wrong provision, if it can be shown to be within its power under any other provision of law. He referred to Rule 16 under which a person in the service of Auqaf Department can be compulsorily retired from service by the Chief Administrator when he attains the age of fifty-five years. It was argued that power conferred on the Chief Administrator under Rule 16 is analogous to exercise of power under section 12, and therefore, the notification of the impugned order can well be traced to Rule 12.
6. No exception can be taken to the salutary rule canvassed by the learned counsel and it is well- established that while making an order in exercise of a power, a wrong source of power is quoted the order is not invalidated, as long as the exercise of power is referable to a jurisdiction under some other provision, which can confer validity upon it. But this rule has no application when the provision to which the exercise of power is sought to be referred, contains certain conditions which are not shown to have been complied with. With this test in view I find it difficult to concede that the power under section 12 is congruent upon exercise of authority under Rule 16. This reluctance can successfully be founded on Rule 26 which ordains that in disciplinary matters the members of service shall be governed by the Government Servants (Efficiency and Discipline) Rules, 1960. In Rule 4(1)-b-(ii) of these Rules, compulsory retirement has been specified as a major penalty. Such a penalty cannot be imposed without holding an inquiry, giving the petitioner an opportunity of being heard and following the procedure laid down in the Rules. There is no gainsaying that in the petitioner's case the requirements of Rules were not complied with. The petitioner's retirement in contemplation of section 12, therefore, cannot be validated under the Auqaf Department Service Rules. Retirement under section 12 is not analogous to compulsory retirement envisaged by Rule 16.
There should be strong reasons why order under section 12 be treated to have been made under Rule 16, which are missing in this case. Obviously therefore, the impugned notification suffers from a jurisdictional defect, and is liable to be removed through judicial review.
7. The writ petition is, therefore, accepted with costs. The impugned notification is declared to have been issued without lawful authority and of no legal effect.
' As a result of removal of this notification, the petitioner would be treated as being in service. But his learned counsel has pointed out that during the pendency of this writ petition, he attained the age of superannuation and thus, he cannot re-join the department. It was thus, prayed that he may be paid his salary for the period he was illegally prevented from discharging his duties by virtue of the notification in question.
8. The relief asked for is admissible to the petitioner in law. Rule 34 of the Auqaf Department Rules ordains "that in matters not covered by these Rules, the members of service shall be governed by the Government Civil Service Rules applicable to the Provincial Government Servants". The learned counsel for the parties have not drawn my attention to any specific Civil Service Rule, covering the situation in hand. But it seems to me that in such a case the general rule applicable is, that if a civil servant's removal from service was wrongful, as a consequential relief, he should be paid the salary for the period, he could not serve the Government, without any fault on his part, due to the illegal orders. Resultantly, the petitioner shall be entitled to his salary and other emoluments, for the period from the date of the notification till the date he attained the age of superannuation, minus the period he was engaged in some other profitable business, if any.