1. The plaintiff, while working as Acting Executive Engineer of defendant No.2, was prematurely retired under order dated 30-11-1986. The above order was passed by the Secretary, Government of Sindh.
2. The plaintiff has filed this suit assailing the aforesaid order on various grounds. It is the case of the plaintiff that the order of his retirement was passed by incompetent authority and that even otherwise the order retiring him prematurely was illegal and was passed with mala fide intentions.
3. The defendants have mainly contended that the retirement of the plaintiff was not premature as the plaintiff could be competently retired after completion of 25 years of service. There being no bar on the competent authority to issue such directions. The reliance has been placed on rule 4 (a) of the West Pakistan Local Councils and Municipal Committees Service (Retirement) Rules, 1966.
4. On the pleadings of the parties, the following issues were framed:-- (1)Whether the order bearing No. SLGB/SCUP/2(6)ENGG/AO--1/86/47,15 dated 30-11-1986 passed by defendant No.1 retiring the plaintiff from service is mala fide, illegal, without lawful authority and of no legal effect?
5. (2)Is the suit not maintainable?
6. (3)What should the decree be?"
7. On 22-11-1986, during the pendency of the suit on the miscellaneous application filed by the plaintiff it was ordered that till the next date of hearing the aforesaid order dated 30-11-1986, retiring the plaintiff, will not be put into effect. Consequently the plaintiff continued to remain in service as the aforesaid order continued to be extended from time to time which was finally confirmed on 5-5-1987. During the pendency of the suit, the plaintiff attained the age of superannuation and ,was accordingly retired with all benefits.
8. Mr. Fariduddin, learned Advocate for the defendants has contended" that the plaintiff having retired from service in accordance with the service rules on attaining superannuation, with full benefits attached therewith, the present suit has become infructuous. He further states that the order dated 30-11-1986 was never put into effect, which means that the retirement on attaining the age of superannuation, the rights that accrued to the plaintiff on such basis, will remain available to him under the law.
9. However, the learned advocate for the plaintiff contends that the orders of retirement on attaining the age of 25 years, under rule 4(a) of the West Pakistan Local Councils and Municipal Committees Servants (Retirement) Rules, 1966 having been passed incompetently and with mala fide intentions, the suit should be decreed or at least a finding should be given on issue No.1.
10. As pointed out above, the order dated 30-i1-1986 -was passed by the Secretary to Government of Sindh.
11. Rule 4(a) of the West Pakistan Local Councils and Municipal Committees Servants (Retirement)
12. Rules, 1966 reads as under:-- "4.A Local Council servant shall, notwithstanding anything contained in the terms and conditions of his service retire from service-.
13. (a)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; and subject to the provisions of these Rules, direct; or"
14. The words "competent authority" used in the aforesaid rule 4(a) has been defined in rule 3(i)(a) which reads as under-- "In relation to a person who is a member of the West Pakistan Local Councils Servants, the authority competent to make appointment to such service."
15. The learned advocate for the plaintiff has referred to Para. 7 of the written statement, in which, according to the defendants, Chief Secretary to the Government of Sindh is a competent authority. ,, In view of the above admitted position, the order passed by the Secretary to the Government of Sindh was not competent to pass such order.
16. However, the learned advocate for the defendants wanted to bring on record photostat copy of a summary to substantiate that the order was passed by the Minister. However, without making any observations suffice to say that the defendants having failed to lead any evidence in this regard and bring the said document on record] it cannot be considered.
17. For the purposes of the decision of the issue raised, the order of retirement having been passed by the Secretary, who was not competent to pass such orders, it is held that the order dated 30-11- 1986 was passed without lawful authority and is of no legal effect.
18. The order of retirement is also discriminatory, as it is only the plaintiff who was chosen to be retired on completion of 25 years of service and none of the other employees placed similarly as the plaintiff has been so retired.
19. It may be, pointed out that the like provisions made in the Civil Servants Act (No.LXXI) of 1973 have been declared as against the injunctions of Islam by the Shariat Appellate Bench in the case of Pakistan and others v. Public-at-Large and others (PLD 1987 SC 304). The law laid down by the Hon'ble Supreme Court will apply to the above Rule 4(a) of the West Pakistan Local Councils and Municipal Committees Service (Retirement) Rules, 1966.
20. Since the plaintiff has already been retired with full benefits on attaining the age of 60 years, no decree need be passed as prayed. The suit is disposed of accordingly with on order as to costs.