1. M. SALEEM CHAUDHRY (CHAMMAN).-These 35 appeals by the Civil Servants who have completed 25 years of service qualifying for pension and other retirement benefits, seek to challenge their retirement ordered by the competent authority concerned under section 12(ii) of the Punjab Civil Servants Act of 1974. Section 12 may be reproduced below for facility of reference "12. A civil servant shall retire from service -
(i) Retirement from service in the case of a person holding post equivalent to the post of Additional Secretary to Government of Pakistan or a higher post, on such date, as the competent authority may, in the public interest, direct;
(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;
(iii) where no direction is given under clause (i) or clause (ii), on the completion of the fifty-eight years of his age"
2. The objections of the appellants may be summed up as below;
(i) that the appellants have not been heard in person by the competent authority before passing the orders.
(ii) that the impugned orders are vitiated due to male fide.
(iii) that the orders are without jurisdiction inasmuch as the authority passing the orders was not competent or the civil servant concerned had not completed 25 years of service qualifying for pension and other retirement benefits.
(iv) the orders were unjustified by the facts of the case.
3. Mr. A. G. Hamayun, the learned Government Pleader has raised a preliminary objection stating that the appeals are not competent and are liable to be dismissed on that ground. According to the Government Pleader section 12 1ays down two stages of retirement; one of which was contained in clause (iii) of the section against which admittedly no right of appeal was available. According to him the only difference between the two preceding clauses and clause (iii) of section 12 was that the competent authority was required to pass the orders keeping in view the public interest. He further submitted chat we Executive authority was the sole and the only Judge of the public interest and the decision of the competent authority in this regard was not justifiable before this Tribunal He reinforced his contention by relying upon a decision of the Supreme Court reported as Farzand All v. The Province of West Pakistan (PLD1970SC 98) Reliance was placed in particular on the following observations: "It appears to me, therefore, that 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 yard-struck 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 tax 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."
4. The learned Government Pleader contended that if the question of public interest, which is the only distinguishing feature between clauses (i), (it) and clause (t1f) of section 12, is eliminated, nothing survives to distinguish these three clauses. If no appeal was contemplated against retirement under clause (iii) then likewise no appeal could be maintainable under the two preceding clauses.
5. He also argued that retirement is not a penalty and in fact section 12 contemplated two stages of retirement; one at the ultimate stage f. e. on attaining the age of 58 years (now 60 years) and the other on the completion of 25 years qualifying service for pension and other retirement benefits, and in both the cases there is only a difference of stage while the nature of retirement remained the same. In this behalf he elicited support from the decision of Lahore High Court reported as Sahibzada Faridud Din Ahmad v. The Province of Punjab (PLD 1970 Lab. 1310) to show that retirement was not punishment. The following extract from the judgment was implicitly relied upon "It was further held that when the impugned orders themselves did not contain any charge or stigma against tie respondents, it could not be said that their services were terminated by way of penalty merely because an allegation about their inefficiency was made in the office note. This view has also been taken by the Supreme Court in Abdul Karim v. The West Pakistan Province (PLD 1956 SC 298)and Noorul Hassan and others v. The Federation of Pakistan (PLD 1956 SC (Pak.)331).
6. Respectfully following the principle of law laid down fn the said authorities it is held that in the given circumstances there was no need to afford opportunity to the petitioner by way of show-cause notice."
7. The objection was resisted by the learned counsel appearing for the appellants It was contended that the expression 'public interest' as used in clauses (t) and (ii) of section 12 of the Punjab Civil Servants Act contemplated that it must be reflected in the order that the question had been taken into consideration and the orders should be speaking orders in this behalf. The learned counsel also contended that clauses (i) and (ii) should `be read independently of clause (iii). He also argued that the order is clearly prejudicial to the civil servants concerned inasmuch as it curtailed the tenure of service of the civil servants prematurely and was in the nature of punish--ment and was therefore appeal able. However it was conceded that if it was not a penalty then the order was not exceptionable. The learned counsel also argued that the orders passed without hearing the app411ants were in violation of the principles of natural justice, which were implied in every enactment. Reliance was placed to Report this proposition upon PLD 1965 SC 90 and 19'32 SCMR
30. The learned counsel for the appellants also cited 1973 PLC 264 the case decided by the Lahore Court in the context of Article 178(4)(a)(c) of the Constitution of Pakistan of 1962 which was to the following effect: "(4) A person whose terms and conditions of service are governed by Article 127 or Article 154 or Article 176 (not being a member of the armed forces of Pakistan) or paragraph (b) of Article 181 shall, not with standing anything contained in this Constitution or in any law or in the terms and conditions of his service, retire from service-
(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 Article 185 or, as the case may be, Article 186, direct; or
(b) If he has completed before, or completes within t: period of six months from, the commencement of the Constitution (Sixth Amendment) Act, 1966, the fifty-fifth year of his age, on such date after such completion, being a date within the said period, as the competent authority may direct, or in the absence of such direction, ran the expiry of the said period, or on the completion of the sixtieth year of his age, whichever be earlier; or
(c) in any other case, on the completion of the fifty-firth year of his age."
8. The appellant contended that the above provisions were identical with section 12 (1) & (ii) and for that reason the appellants were entitled to be heard. The Impugned orders being deficient in that behalf, the appellants were entitled to maintain this appeal on that ground. The appellant brought to our notice that in most of the cases the requirements as to the show-cause notice, charge- sheet and enquiry were never complied with. It was further argued that the appeal was maintainable in respect of the grievance in relation to all the terms and conditions of service of the civil servants including disciplinary matters. According to appellants the order passed under section 12 (ii) was clearly a disciplinary measure and was thus appeal able. The appellants also argued that the discretion to be exercised under section 12 (ii) should be exercised judiciously and not arbitrarily. Any arbitrary exercise of the discretion was liable to be struck down in appeal before this Tribunal.
9. After hearing both the parties we have no hesitation in holding that in case the impugned order was covered by section 12 no appeal was contemplat--ed before this Tribunal. We agree with the learned Government Pleader that the only difference between clauses (i), (if) and clause (iii) of section 12 of the Punjab Civil Servants Act was the question of public interest. It has been laid down authoritatively by the Supreme Court that the Executive Authori--ties alone are the Judges of the issue of public interest. We respectfully follow the view laid down by the Supreme Court of Pakistan.
10. In fact the scheme of the Act also indicates that the matter with regard to the fitness of a person to hold a particular post, which is evidently to be guided by the consideration of public interest is not to be agitated even at a departmental level. Section 21 of the Civil Servants Act, which provides for the inter-4 department tight of representation to the civil servants expressly provides that no representation shall lie on matters relating to a determination of fitness of a person who holds a particular post or to be promoted to a higher post or grade. Correspondingly in section 4 of Punjab Civil Servants Act a proviso (b) has been added which is to the following effect: "Provided that no appeal shall lie to a Tribunal against an order or decision of departmental authority determining the fitness or otherwise of a person to be appointed to or holding a particular post or to be promoted to a higher grade.
11. Regarding the above two provisions together the intention appears to be quite evident that besides the penal removals, the question whether a person is fit to hold a particular post or not is left to the exclusive judgment of the competent authority. We accordingly hold that if the order falls within the ambit of section 12 no appeal is maintainable. But cases in which the order was passed mala fide or the same failed to fulfil the requirements of section 12, stand at a different footing. It has been authoritatively ruled by the Supreme Court of Pakistan in P t. D 1973 SC 151 that an order passed mala fide is a nullity and could not be validated by any legislation. In case the mala fide is established, the order could not be covered by section 12 and for that reason it may amount to penal removal and will be appeal able. Similarly if a person had not completed 25 years of service or the authorities who purported to pass the orders under section 12(1), (ii) were not competent to make the order, such cases again may not be covered by section 12 and the action may be tantamount to removal and be thus appeal able. So far the decision in 1973 PLC 264 is concerned in that case there was no dispute as to the maintainability of the petition. :As such the aforesaid case could not be regarded as a precedent for determining the issue of the competence of the appeal. We accordingly hold that the aforesaid decision is distinguishable. The upshot of the above discussion is that the appellants who did not raise the issue of mala fide and the inapplicability of section 12 (i) & (ii) of the Punjab Civil Servants Act of i 974 are not appeal able and the appeals in such cases accordingly stand dismissed. So far the cases involving the issue of C mala fide and inapplicability of section 12 are concerned, the same could no be regarded to be covered by section 12 and are tantamount to an order o removal and in such cases the appeals are competent. However even in such cases the decisions about the competence of appeal will depend upon our ultimate findings as to whether the appellant in fact succeeded in each case to establish his plea about mala fide and inapplicability of section 12 of Punjab Civil Servants Act. We therefore direct that the cases falling in the later category be sorted out by the office and be fixed for hearing before us for disposal on merits.