' M. SALEEM CHAUDARY (CHAIRMAN).-The appellant in this appeal assails his retirement under M L R 114 from the Post of Head Vernacular Clerk in the office of Deputy Commissioner, Sheikbupura. The brief facts of this appeal are that the list of Government servants retired under M. L. R. 114 published on 19-3-1972 in the Daily Mashrlq included the name of one Nisar Ahmed Head Vernacular Clerk of the office of Deputy Commissioner, Sheikhupura. However in the Notification dated 18.3-1972 Exh. 4 issued under the orders of the Governor of Punjab ride entry appearing at S. No. 10 of the aforesaid Notification, Ch. Nazir Ahmed, Head Vernacular Clerk office of the Deputy Commissioner, Sheikhupura was ordered to be retired. This Notification was received in the office of the Deputy Commissioner passed the following orders t "He should hand over to Reader. Name is still incorrect." On 10th of April 1972 certain enquiries were made by the Commissioner, Lahore Division from the Deputy Commissioner, Sheikhupura in respect of the appellant with regard to his premature retirement under M. L. R.
114. The Deputy Commissioner, Sheikhupura on the date inter alla replied as under : "(4) Simple.-He is living within Known means of income.
(5) He is intelligent, hardworking and honest official.
(6) I am sure that his name has been included in the list of premature retirement of Government servants under M. L. R. Due to some misunderstanding. It is however pointed out that his name in the said list was incorrect."
' The appellant in the meantime had also represented against his retires meat and the Deputy Commissioner Sheikhupura on 21-3-1972 while forwarding the representation to the Commissioner, Lahore Division made the identical observations. The appellant also filed a Review Petition to the Chief Martial Administrator under M. L. R. 116 which however remained unfruitful. Finally on the 15th of July 1972 the Board of Revenue Punjab vide Exh. P. W. 6 clarified that the appellant was the person who was to be retired under M. L. R.
114.
' The appellant preferred this appeal before this Tribunal some time in September 1974. The case of the appellant before us was that no order under M. L. R. 114 has been passed in relation to him and thus he has not been retired under any order of the Martial La v Authorities but under the orders of the Deputy Commissioner, Sheikhupura and finally by the order of B.
0. R. Who were not the Martial Law authorities and were not authorised to pass any order under the aforesaid Martial Law Regulation. It is also contended that he had unblemished 26 years record of service to his credit and his name for retirement under M. L. R. 114 was never recommended by any authority. Thus the order besides being coram no judice was also mils fide in fact as well in law. In support of his first contention he relied upon the decision of the Lahore High Court in Writ Petition No. 1154-S/12 (Syed Ikram-ur-Rahman v. B.
0. R.. Lahore and others) decided by Mr. Justice Shafi-ur-Rehman oa 25-1-1973 in which his Lordship was pleased to direct that the impugned clarification as to the retirement of the petitioner in that case as made by Board of Revenue Punjab on 4.8-1972 was without jurisdiction and of no legal effect and further it was directed that the appellant may be deemed to be in the service of the Province. The appellant also contended that the Notification with regard to his retirement was published in official Gazette on 28-4-72 and was not protected or validated under the provisions of Article 269 of the Constitution of the Islamic Republic of Pakistan of 1973 which covered the period commencing from 20th December 1971 to 20th April 1974. It was argued that it was enjoined by the provisions of Martial Law Regulation 114 paragraph 3 that the retirement order had to be made in the official Gazette and the order could not take effect unless so made. The appellant also questioned the order of this Tribunal dated 10-9-1976 striking off the issues Nos. 6 and 7 as framed on 6-11-1974. Issue No. 6 related to the due care and caution and application of mind by the competent authority in passing the impugned order, and issue No. 7 related to the sufficient material with the competent authority while passing the impugned order. We have struck off the aforesaid issues on the ground that the same were not triable by us in this appeal in view of the decision of the Supreme Court of Pakistan reported as PLD 1974 SC 151 which determined the issues in respect of which the retirement orders could not be validated under Article 269 of the Constitution of Pakistan. To sum up the contentions of the appellant, he had argued that the order was illegal and without jurisdiction inasmuch as his retirement has been ordered in pursuance to the orders of authorities which were not competent authority under the Martial Law Regulation 114.
Similarly the Gazette Notfication purporting to retire him as published on 28-4-1972 was issued after the lifting of the Martial Law was incompetent and the aforesaid Gazette Notification was not protected under the relevant provision of the Constitution. It was also argued on behalf of the appellant that the case of the appellant did not fall under M. L. R. 114 and the order suffered from malice in law.
' The learned counsel for the respondent, Malik Azam Rasul argued that the order of retirement suffered from no ambiguity as to the identity of the appellant. According to the learned counsel there was only one head Vernacular Clerk in the office of Deputy Commissioner and the principal name of the appellant 1. e. "NAZIR" had been correctly stated. Thus the judgment of the High Court which was delivered in a different context was clearly distinguishable and was not applicable to the facts of this case. He also argued that the order in this case has been duly implemented on the 4th of April, 1972, a date which was within M. L. Period and thus nothing has been done in this case after the expiry of the Martial Law and the subsequent clarification issued by the B.
0. R. On 15-7.1972 had no bearing on the merits of this case. In any case the appellant had preferred a Review Petition under M. L. R. 116 and if there was any mistake the same could have been rectified.
With regard to the mala file it was argued that no such allegations had been levelled in the grounds of appeal and thus no findings favourable to the appellant could be returned in the absence of any such allegations, as laid down in the Supreme Court judgment referred to above.
With regard to the reference to the Deputy Commissioner's recommendations he argued that it was a secret document and the appellant did not come into the possession of the same through any lawful means and the same was not admissible in evidence as laid down in PLD 1973 Lah. 778 and the relevant observations as contained in the ruling were as under :- " and no cause of action, in view of the facts and circumstances of the case should be allowed to be based upon the admittedly secret and highly confidential correspondence of this nature which has been obtained by the petitioners through under-hand means. Learned Advocate-General referred to section 5 of the Official Secrets Act X1X of 1923, which makes the delivery and receipt of official secrets (and instruments) as an offence. The contention of the learned Advocate General is correct and as wrongful "delivery" and "receipt" of secret official instruments is an offence, therefore, from that point of view the said instruments cannot be "received" in evidence."
' With regard to the plea of the appellant regarding malice in law the learned counsel argued that the same was misconceived inasmu ch as the opinion in relation to paragraph 3 of M. L. Regulation No. 114 had not necessarily to be based on the official records. With regard to the argument of the appellant as to the Gazette Notification he pointed out that the orders in this case had been passed on the 18th of March 1972 and mere publication of the Gazette Notification on 28th of April, 1972 would not invalidate the orders in question. He also argued that the requirements of para 3 of M. L. R. 114 were amply met with by passing the orders on 18-3.1972 notwithstanding its publication on 28-4.1972.
' After hearing both the parties and perusing the records we are clearly of the view that this is a case of mistaken identity. In the first instance in the Newspaper the name of the retired official was mentioned as "Nisar Ahmad" Head Vernacular Clerk where as the name of the appellant was Nazir Hussain. We may also notice that there was a local fund clerk in the same office with the name of Naar Ahmad whose record of service was stated to be quite bad. Then in the Notification dated 18- 3-1972 the name of the retired official has been mentioned as Nisar Ahmad. We have on record the evidence of Raja Sultan Mahmud the then Deputy Commissioner, Sheikhupura who appeared as A.
W. 1, before us and deposed that from the Newspaper he gained the impression that Mr. Nisar Ahmad, local fund clerk was the official to be retired as the record of Mr. Nisar Ahmad was not good. It was in this context that he wrote to the Commissioner, Lahore Division for clarification after the receipt of the official list on 4.4-1972 in his office. Even while relieving the appellant he also endorsed on the order that the name of the appellant was not correct. The appellant who also appeared for himself stated that his name had not been correctly mentioned and the order passed by the Member, Board of Revenue dated 15-7-1972 was not authorised by Martial Law Regulation 114. The Deputy Commissioner Sheikhupura had been consistently pointing out to the Higher Authorities that the name of the appellant has not been correctly mentioned and that the record of the appellant was quite good. Thus the only order for retiring the appellant from the service was the clarification issued by the B.
0. R. On the 15th of July, 1972. We find considerable force in the contention of the appellant and his case is duly supported by the decision of Lahore High Court Exh. P. W. 2/2 in Writ Petition No. 1154 S/72 in which one MasrururRehman Tehsildar was included in the list of retired officials published under M. L. R. 114 and in pursuance to which one Syed Ekram-ur-Rehman, Tehsildar was retired under the clarification issued by the B.
0. R., Punjab on 4-8-1972. The following observations in the judgment support the case of the appellant :- 'That the clarification now provided is by an authority different from the authority competent to pass orders under M. L. R. 114 In the circumstances of this it was a mistake, not clerical in nature, which crept into the order and like any other mistake had to be corrected, if at all the power to correct or pass a similar order subsisted, by the authority competent to pass such or similar order.
Any authority other than the competent authority could not correct such mistake. Therefore the impugned clarification is declared to be without jurisdiction."
' In this case we also find that the name of Mr. Nisar Ahmad a local fund clerk in Deputy Commissioner's office appeared in the list published in the Newspaper. Later on in the list officially supplied the name was shown as NAZIR AHMAD. The case of the appellant was that there could be a misprint of 'Nazi? Instead of 'Nine and his designation has been wrongly mentioned. In any case unless the identity of the appellant was clearly established the order could not be related to him.
The only order which subsequently resulted in his retirement was the one passed by the B.
0. R., Punjab which according to the aforesaid view of the Lahore High Court was the order coram non fudice. In our opinion the above plea of the appellant has not been adequately controverted by the respondent. We accordingly hold that the clarification was without jurisdiction and it was not clear beyond all reasonable doubts as to whether the retirement order really related to the appellant. In fact the Deputy Commissioner, Sheikhupura also gave the same impression and has been protesting to the Government against the retirement of the appellant. In the circumstances it is not safe to hold that the order was in respect of the appellant. We therefore accept this contention of the appellant. In view of the above we do not feel called upon to express any opinion on the rest of the issues, raised by the parties. Consequently the appeal succeeds and the impugned order is set aside and it is directed that the appellant will continue in service notwithstanding the aforesaid retirement orders.