RAJA MUHAMMAD KHURSH1D. J.- This judgment will also dispose of the connected Writ Petition No. 319/96 titled Mashhood A. Kureishy v. Pakistan Engineering Council etc. As a common question regarding interpretation of the service rules relating to the employees of the Respondents who have passed superannuation age and have been re-employed is involved.
2. The petitioner namely Bashir Ahmad Sheikh was working as Registrar whereas Mashhood A.
Kureishy, another petitioner was engaged as Deputy Registrar by the Pakistan Engineering Council hereinafter to be called as Council) after they had retired from their regular sen ice after attaining superannuation age of 60 years.
3. It is contended in both the petitions that since the sen ice of the petitioners was governed bv the statutory bye-laws framed under Section 25 of the Pakistan Engineering Council Act, 1976.
Therefore, the procedure laid down therein was to be followed before retiring the petitioners. Since that procedure was allegedly not followed, therefore, the orders passed in respect of the retirement of the petitioners were not only bad in the eyes of law, but also appeared-to be mala fide. In this regard, it was alleged that no formal Show Cause Notice was issued nor any inquiry w as held before imposing the major penalty prescribed under the rules. Even none of the petitioners was allegedly heard before passing of the impugned orders sending them on retirement.
4. Both the petitions were resisted on the ground that since the petitioners were employed after attaining the superannuation age therefore, they, could not claim statutory protection in respect of their serv ice nor the same w as available to them after they had been re-employed. In respect of Mashhood A. Kureishy it was alleged that since no charge was levelled against him. Therefore, there w~as no need to issue him any statement of allegations. Show Cause Notice or to hold: an inquiry before terminating his service. In this regard, it was alleged that no penal action was taken inasmuch as the petitioner aforesaid was retired from sendee which was within the power of the competent authority' because the service-of the?Petitioner was not regular nor he had any statutory' protection. In this regard, it was further added that since the petitioner was retired from service, therefore, the respondents had no objection if he claimed the retirement benefits due to him under the terms and conditions regarding his re-engagement in service.
5. So far as petitioner Bashir Ahmad Sheikh, is concerned, it was alleged that he was retired from since as he had attained the age of 72 years. In this regard, it was also added that a resolution was passed by the competent authority before he was retired from since. Since the petitioner had over drawn the amounts due to him on his retirement, therefore, he was called upon to refund the excess amount which prompted him to file this petition with ulterior motive in order to avoid those over drew payments and also to return the Company's car which was provided to him, while he was in since. It was further alleged that the petitioner was also not entitled to statutory protection as claimed by him because, he was re- employed on contract basis after he had attained superannuation age on completing 60 years of age. It was also pointed out that the petitioner aforesaid had accepted his retirement and had prepared the statement of accounts showing the amount due and other benefits etc. He had done so while he w as still working as Registrar. In this respect reference was made to the statement regarding lull and final settlement of accounts shown at page 86 of the writ petition. This was allegedly prepared with the concurrence of the petitioner, who had agreed to retire without any objection and had also received an amount of Rs.11.98.439'30. A note to that effect appears on the aforesaid documents showing that since it was personal case of the petitioner, therefore, it be sent for endorsement and approval of Chairman, Pakistan Engineering Council. It was accordingly sent and approved by the Chairman, whereafter the retirement of the petitioner became final. It was, therefore, alleged that the petitioner should not have a spine to challenge the impugned order after he had agreed to his retirement by preparing the statement of account and also receiving the amount therein. The dispute had arisen after the petitioner had manipulated over payment of the retirement benefits while getting the final statement of account prepared. Hence it was alleged that none of the two petitioners has any legal right to claim continuance in service after they had been retired by the competent authority particularly so when their employment was not governed by statutory rules and was abased on the principle of Master and Servant.
6. I have considered the foregoing points and find that in both the cases, the competent authority had ordered the retirement of the petitioners, which in fact was accepted by one of the petitioner namely Bashir Ahmed Sheikh, as lye had appended a note on the statement regarding the, final settlement of accounts, that since it was his personal case, therefore, ii should be routed to the Chairman, Pakistan Engineering Council for approval. This actually estopped the petitioner to claim his continuation in since particularly when he had received not only due payment as retirement benefit but allegedly received over payment which he was called upon to refund leading to this dispute. Since the question of over payment and refund etc. Relates to the factual settlement, therefore, that cannot successfully be urged in a writ petition specially when some details are to be proved through evidence in respect of factual dispute between the parties. The legal status of petitioner is obviated by the provisions of Section 25 of the Pakistan Engineering Council Act, 1976, which show that the sen ices of the employees of the Council are to be regulated under the bye- laws to be framed by the Council. It will be just and convenient to reproduce the relevant provision of law contained in Section 25(1). It is accordingly quoted as under:-
25. Bye-Laws of the Council (1). The Executive Committee, may, with the previous sanction of the Federal Government, by notification in the official Gazette, make bye-law s for carrying out the purposes of this Act.
Subsection (2) of the same Section says that in particular and without prejudice to the generality of the foregoing power, such. Bye-laws may provide for all or any of the following matters, namely:
(e) the terms of office and powers and duties of the Registrar and other officers and servants of the Council- Bye-Law 48 of the Bye-Laws framed under the Pakistan Engineering Council Act, 1976 provides that all officers and members of staff shall retire on attaining the age of sixty years: provided that the Executive Committee may in its discretion reemploy any officer or member of staff. It is thus obvious that officers or members of the staff remain on regular cadre of service till they attained the age of sixty years according to the foregoing bye-law on attaining the age of 60 years an employee of the Council can only be re-employed in the discretion of the Executive Committee. It is thus obvious that even the Executive Committee cannot bye-pass those bye-laws to employ any officer or member of staff on the regular cadre, after such employee has attain the age of sixty years. Even if the employment is shown as regular after a person has attained the age of sixty years, it will be against the bye-laws and as such would also be against the Pakistan Engineering Council Act, 1976 and in consequence such an employee will not be considered to enjoy statutory protection in respect of his re-employment.
7. Both the petitioners in this case had admittedly attained the age of sixty years after their re- employment in their respective posts. As such their services cannot be considered to be regulated by the Statute but would be a discretionary' service on the basis of re-employment offered to them by the Council, ln such a case and there being no statutory relationship' between the two sides: the terms and conditions would be that of Master and Servant. Any infringement of the condition of re- employment would, therefore be nothing more than a breach of contract and as such enforceable under the ordinary law of the land.
8. In view of what has been stated above, the petitioners have no case for interference on the Constitutional jurisdiction of this Court. The writ petitions being ill-advised are dismissed.