' SARDAR MUHAMMAD SAJAWAL. KHAN (CHAIRMAN).---This appeal has been brought by Amecr Muhammad Zaman Khan retired Primary Teacher of Education Department against the order of his retirement dated 31-12-1980 and the order dated 5-7-1989 by which his review petition was rejected by the respondent Government. The appellant has impleaded Azad Jammu and Kashmir Government through Chief Secretary of the Government as respondent for seeking his relief.
2. The relevant facts of the case are that the appellant was employed as Primary Teacher in December, 1951. He continued as such till 31-12-1980 when he was retired from service in public interest under section 12 of Azad Jammu and Kashmir Civil Servant Act, 1976. On the basis of the report of Review Committee constituted for screening out the incompetent hands in the lower staff of the Education Department, the appellant was retired from service alongwith a group of 38 primary teachers who were in public interest not found fit for being retained in the service of Education Department by the said Committee. The appellant as well as the other retiring teachers of his cadre on their retirement were allowed all the service benefits as they would have been entitled to get on completion of their 30 years service. The grievance of the appellant is that he was illegally retired from service and the orders impugned were against law and facts and should be set aside on the following grounds;-
(a) That the appellant served in the Education Department about 29 years and throughout his service he had maintained good record of service to the satisfaction of his officers. The appellant being an experienced hand was most fit person for performing his duties as against a new entrant in service and for that reason his retirement was wrongly attributed to have been made in public interest. In fact his retirement was ordered against the public interest contrary to the provisions of principles of natural justice.
(b) That no show-cause notice was issued to him and hence his removal was bad for being against the law of Shariat. His review petition has been dismissed without affording him an opportunity of hearing and, therefore, the order passed on his review petition is also unjust and improper. Unfortunately, the appellant had some differences with the A.D.I. Of schools and out of malice, he got him retired from service after supplying wrong information to the higher authorities.
The Review Committee acted in an arbitrary manner without considering the relevant record.
3. It is prayed by the appellant that by accepting his appeal, the impugned orders be set aside and he may be reinstated in service with all back benefits to which he might be found entitled to get by this Tribunal.
4. The appeal was admitted for regular hearing by an order dated 15-8-1989. The respondent- Government was asked for written objections, if any. The written objections were filed on 20-11-1989 against which a replication was also filed on 2-12-1989 and finally the arguments were addressed by the learned counsel of the parties on 17-9-1990.
5. We have carefully examined the appeal and the documents relevant for disposal of the appeal.
We have also heard the arguments as were addressed by the learned counsel of each party before this Tribunal. It is submitted on behalf of the appellant that the appellant held a clean slate of his career in service and he was maliciously removed out of service. According to the learned counsel for the appellant, a show-cause notice was necessary to be issued for making the impugned order of retirement but no notice was issued to the appellant. There was no adverse entry in the service record of the appellant and if at all there existed anything like that, it was not conveyed to the appellant who was condemned unheard without giving him any opportunity of personal hearing. On behalf of the respondent it is contended that under the provisions of section 12 of Azad Jammu and Kashmir Civil Servants Act, the appellant was found to have outlived his usefulness and he was, therefore, retired from service with all the service benefits. The respondent Government was alone competent to go into the vires of public interest and the present appeal at this forum is not maintainable.
6. For the sake of convenience, it appears essential that relevant section 12 of Azad Jammu and Kashmir Civil Servants Act, 1976 as it stood on the statute books before its amendments and under which the impugned order was made should be reproduced below:-- "Section 12. Retirement from service.---A civil servant shall retire from service---
(i) in case of a person holding the post of Secretary to Government or an equivalent or higher post on such date, as the competent authority may in the public interest, direct;
(ii) in the case of a person holding a post lower than the post of Secretary to Government on such date, as the Government may, in the public interest, in consultation with an Advisory Committee as may be constituted in the prescribed manner for the purpose, direct;
(iii) in any other case, on such date, after he has completed twenty-five years of service qualifying for pension or other retirement benefits, as the competent authority may, in the public interest, direct; and
(iv) where no direction is given under clause (i) or as the case may be under clauses (ii) and (iii), on the completion of the sixtieth years of his age.
Explanation. ---In this section 'Competent Authority' means the appointing authority or a person duly authorised by the appointing authority in that behalf, not being a person lower in rank to the civil servant concerned.
The perusal of above section reveals that under subsection (ii) of section 12, the powers are vested in the respondent-Government who in the public interest, in consultation with the Advisory or Review Committee may direct retirement of any civil servant holding a post lower than that of Secretary to Government. The powers are exercisable by the Government irrespective of the fact whether the civil servant has completed 25 years service qualifying for pension or not? At the same time, there is no bar to exercising the powers under the above provision of law in case a civil servant has completed 25 years service qualifying for pension. The only embargo which is placed on exercising of powers under subsection II of section 12 is that action against the civil servant should be taken only after consultation with the Advisory or Review Committee constituted for the purpose. In the instant case, it is available on the tile that a Review Committee was constituted under Government Notification No, S&GAD/G 127/S.O-I/25920-80/79, dated 12-12-1979 and the appellant was retired from service alongwith 38 School Teachers of his cadre after due deliberations of that Committee in the light of the service record and ACRs written on the work and conduct of each of the retiring teachers.
7. The allegations against the respondent that the impugned order of retirement was maliciously passed because the appellant had some differences with the A.D.I. Of Schools is also without any substance. In fact the order of retirement has been made under the policy of the Government for screening out those persons from service as were then to be found incompetent or unacceptable for introducing the new system of education. The appellant was retired from service after he was found to have outlived his utility alongwith a substantial number of other school teachers who were also placed under retirement.
8. The arguments that a show-cause notice was necessary to be issued to the appellant before making the impugned order have equally no force in it. It is worthwhile to note here that show- cause notice is ordinarily issued in those cases in which either punishment is awarded or the orders passed adversely affect the vested rights of a civil servant. In the instant case the action taken, under section 12 of the Civil Servants Act cannot be regarded as punishment. The provisions contained in section 12 of the Act are part of the terms and conditions of civil servant. If a Government or the competent authority, as the case may be, finds that the retirement of a civil servant is necessitated in 'public interest', it can order the retirement of such civil servant without issuing him any show-cause notice. We are fortified in our view by a judgment of Supreme Court of Azad Jammu and Kashmir passed in the, case entitled Meer Muhammad Sharif v. Azad Jammu and Kashmir Government reported in PLD 1986 (SC) Azad Jammu and Kashmir 87.
9. It is next argued that in the circumstances of the case, the retirement of the appellant was not in the 'public interest'. We are afraid we cannot contribute to this view. It shall be noted here that under section 12 of Civil Servants Act Government or the competent Authority, as the case may be, is alone competent to take decision whether the retirement of a civil servant is in the public interest or not. It is not possible for this Tribunal to sit on judgment over the decision taken by the Government in the matter. The Tribunal would interfere only, if a case of mala fide or colourable exercise of power is established. This view of ours is supported by judgment of Lahore High Court passed in case entitled A.M. Khan Leghari v. Government of Pakistan reported in PLD 1967 Lah.
227. The observations recorded by the Supreme Court of Pakistan in case entitled Lt.-Col. Farzand Ali v. Province of West Pakistan reported in PLD 1970 SC 98 is reproduced below for further clarification of the matter:-- "The compulsory retirement which carries with it no stigma and no verdictiveness against the person concerned is different from removal from service or dismissal. There may be a variety of reasons which may impel a Government to compulsorily retire an officer on his having completed the period of service qualifying him for pension and Government alone is the best judge of these reasons. It is not possible for the Court to sit on judgment over the action of Government, if from material disclosed it does not appear that the action taken was merely in colourable exercise of or in abuse of power. It must of necessity be left to the Government itself to decide as to whether retirement of the officer concerned was in public interest or not. The Government, it is said, has an absolute discretion to retire any of its officers at this stage. In the absence of any words in the statute limiting the discretion of the Government this must be so, for, it is difficult to lay down any yardstick by which public interest, can be measured in this connection. There may well be circumstances apart from inefficiency or dishonesty which may be relevant for considering the suitability of an officer for being continued in public service. An over punctilious or over-fastidious person may well in certain circumstances be just as unsuitable as a lax or careless officer having regard to the nature of his employment. But this is a matter which the employer alone can determine and, therefore, it must of necessity be left to the subjective satisfaction of the employing authorities."
10. We find nothing on the file to show that the appellant was retired from service with any mala fide intention or by any colourable exercise of powers. Hence, for the reasons as given above, we find no force in this appeal and the same is hereby dismissed. No order as to the costs.