1. MUHAMMAD DAUD KHAN (CHAIRMAN).-Having completed 25 years of service, qualifying for pension or other retirement benefits, the President in exercise of the powers conferred by clause (ff) of section 13 of Civil Servants Act, 1973 (LXXI of 1973) directed in the public interest, the retirement of the petitioner from service on 10th January 1975 (afternoon) vide Ministry of Railways Notification No. E-1/74-RT/1 dated the 10th January 1975. The Notification further provided that in case any leave preparatory to retirement is applied for within 10 days of the date of the Notification and granted on the expiry of such leave.
2. Leave preparatory to retirement having been applied for and granted, the petitioner retired from service on the expiry of such leave.
3. A review petition was filed before the President on 31-1-1975 and "by way of abundant caution and to avoid lapse of limitation" he has filed the petition/appeal before the Tribunal.
4. According to the petitioner, the impugned Notification directing his premature retirement, is based on mala fides and is not in public interest. It is urged before to that the order of retirement is colourable exercise of powers and in contravention of the terms and conditions 'embodied in his service agreement' (if any) and in fact and in effect in the nature of a penalty, particularly with reference to some press statements and a reply to the question in the National Assembly.
5. It is contended that the case being one of compulsory retirement, Government Servant (Efficiency and Discipline) Rules, 1973 were applicable and the inquiry procedure laid down in the Rules had to be followed. It is further contended that even if it was not a case of penalty and the provisions of Government Servants (Efficiency and Discipline) Rules, 1973 inapplicable, a show-cause notice or an opportunity of being heard was necessary before the exercise of powers under section 13(ii) of the Civil Servants Act, 1973.
6. The expression "Public interest" used in section 13 of the Act and the impugned order, it was argued that meant objective satisfaction capable of being judicially determined and ascertained.
7. It is, however, pointed out that the expression used in section 13 of the Act is "In public interest" and not "against public interest". In case the word used was 'against' in place of the word 'In' perhaps the position would be somewhat different.
8. The points that arise for determination are:
(a) Whether the impugned Notification regarding retirement of the petitioner is in the nature of a penalty.
(b) Whether the cause of action is justiciable and an appeal from the order of the Departmental authority in this case would lie to this Tribunal.
9. The President in exercise of the powers conferred by clause (ii) of section 13 of the Civil Servants Act, 1973 (LXXI of 1973) directed in the public interest that the petitioner having completed 25 years of service 'qualifying for pension or other retirement benefits shall retire from service on 10-1-1975 (afternoon)', or if any leave preparatory to retirement is applied for and granted to him on the expiry of such leave, vide Notifica--tion No. E-1/74-RT/1, dated 10-1-197-5.
10. Section 13 of the Civil Servants Act, 1973 relates to "Retirement from Service" and clause (ii) thereof with which we are concerned reads: "A Civil Servant shall retire from service-
(ii) 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.
11. The Act regulates by lacy, the appointment to and terms and conditions of service of persons in the service of Pakistan and provides for matters connected therewith and ancillary thereto.
12. Section 13, clause (ii), which relates to 'Retirement from service has reference to retirement simpliciter as opposed to Compulsory Retirement.
13. 'Compulsory Retirement' being in the nature of a penalty finds mention in the Government Servants (Efficiency and Discipline) Rules, 1973. Reference to 'Efficiency and Discipline' is contained in section 16 of the Civil Servants Act, 1973. According to the provisions contained in section 16 a civil servant shall be liable to prescribed disciplinary action and penalties in accordance with the prescribed procedure. This procedure is laid down in the Efficiency and Discipline Rules, 1973 (SRO 1213(1)/73, dated 18-8-1973) wherein 'Compulsory retirement' has been provided for as one of the major, penalties vide Rule 4(b)(ii). It is significant to rote that the Government' Servants (Efficiency and Discipline) Rules, 1973 were promulgated in exercise of the powers conferred by section 25 of the Civil Servant Ordinance, 1973 replaced by Act No. LXXI of 1973.
14. It is therefore, evident that the impugned Notification directing the retirement of the appellant, in accordance with the provision of clause (ii) of section 13 of the Civil Servants Act, 1973 (LXXI of 1973) is neither in 'Compulsory or in the nature of a penalty. The order of retirement has admittedly been passed by the competent authority in exercise of the powers conferred by clause (ii) of section 13 of the Civil Servants Act, 1973.
15. There is no violation of any terms and conditions of the Petitioner as a Civil Servant. Conditions of service of persons in the service of Pakistan are determined by or under Act of Parliament. Article 240 of the Constitution refers. The law, regulating the appointment of persons to and the terms and conditions of service of person in the service of Pakistan and matters connected therewith or ancillary thereto is contained in Civil Servants Act, 1973.
16. The retirement under the provisions of section 13(ii) of the Civil Servants Act being in the ordinary course and not in the nature of penalty, there being no violation of any terms and conditions of service, the petitioner cannot be deemed to be aggrieved by any final order made by the Departmental authority, within the meaning of section 4 (Appeals to Tribunals) of the Service Tribunals Act, 1973. Consequently no appeal lies to the Tribunal.
17. No order as to costs.
18. Parties to be informed.