1. ' ABDUL Wali MAKHDOOM (CHAIRMAN).-This order disposes of 3 Appeals Nos. 155/74, 159/74 and 195/74, as all these three Appeals basically involve same question of point of law viz retirement in public interest on completion of 25 years under clause (1) of section 13, Act 1973. These three appeals were admitted to a regular hearing by a majority decision.
2. ' In Appeal No, 155/74 learned counsel Mr. Kazi Akhtar argued that the retirement of the appellant after completion of 25 years of service qualifying for pension and other retirement benefits tantamounts to compulsory retirement in which no notice was issued nor explanation obtained. He averred that there were certain allegations for which an enquiry was held and it was therefore all the more necessary that he was given reasonable opportunity to vindicate his position. He contended that no proper procedure was followed and no material was produced before the authorities to show that he retirement was in public interest and no allegations are proved, therefore the appeal lies before the Tribunal against all the terms and conditions of service except the cases of promotion and fitness. Since no particular procedure is laid down for retirement in public interests, Efficiency and Discipline Rules would apply. The Tribunal could call for and consider the evidence before the original authority. His case was that the appellant was retired due to political victimization.
3. ' The facts in a nutshell are that the appellant by impugned oiler dated 16th May, 1914 while holding the post of District Food Controller was made to retire after completion of 25 years of service, qualifying for pension and other benefits under clause (i) of section 13 of Sind Service Act, 1973. It is not however the case of the appellant that he had not completed 25 years of service and that he had not qualified for pension and other retiring benefits. The impugned order has admittedly been passed by the competent authority.
4. ' In Appeal No, 195/74, the appellant had adopted the arguments of learned counsel Mr. Kazi Akhter in Appeal No, 155/74. The facts of his case are that he was Taxation Officer in People's Municipality at Nawabshah and by the impugned order dated 16th May, 1974 he was made to retire under Clause (i) of section 13 in "public interest". His plea was that he had not attained the age of 58 years and that it was against the principles of natural justice that he had been retired.
5. ' In Appeal No, 159/74, the appellant and his Advocate remained absent on the date of hearing I. e.
6. 26-2-72. However the facts of his case are that he joined the Sind Police Department as constable in the year 1941, and that on 15-5-74 the impugned order was passed retiring him under clause (i) of section 13. His case was that the Efficiency and Discipline Rules would be applicable to him as the compulsory retirement is a major penalty and a particular procedure in accordance with Rules.
7. Rule 5 of Sind Service (E & D) Rules, 1973 was prescribed to deal with such cases and since no such procedure was adopted and no reasonable opportunity of showing cause was given to him and the petitioner was neither informed of the proposed action nor the grounds were mentioned for such an action, the impugned order was illegal and, therefore should be set aside.
8. ' The learned Advocate-General argued that the retirement under clause (1) of section 13 is retirement simpliciter and that it is a clear that after completion of 25 years of service the service of a Civil Servant which even otherwise is dependent upon the pleasure of the Government as provided under section 4 prescribed under the Act, and the Rules, becomes more fragile in character and could be terminated at any time if the Government so decided in "public interest".
9. He contended that the "Public interest" is no doubt very wide but the best judge of what is or is not in public interest in such cases is the Government itself. This decision is purely within the subjective satisfaction of the Government which cannot be subjected to any judicial or quasi-judicial scrutiny or objective analysis. In support of his contention he relied upon authorities viz PLD 1967 Lab. 227, P D 1970 SC 113, PLD 1976 Pesh. 58, PLD 1970 SC 98.
10. ' The Sind Act XIV of 1973 (The Sind Servants Act, 1973) has prescribed in section 1 two stages for retirement of a Civil Servant. The first one (with which alone we are concerned at present) is the date after he has completed 25 years of Service qualifying for pension or other retirement benefits as the competent authority may in the public interest direct. The wording is very much clear and leave no room for doubt as to the discretion of the competent authority to direct retirement of Civil Servant in public interest after service of 25 years A corresponding provision was provided by the sixth amendment to the Constitution of 1962 as result of which a Government servant could be retired at 2 stages.
(2) At such stage after he has competed 25 years of service as the competent authority may in the public interest direct... ......
(2) On completion of 55 years of age qualifying for pension.
11. ' The words "Public interest" were very much there in the sixth amendment too and these were the subject-matter of discussion in the case of A. M. Khan Laghari v. Government of Pakistan and others by a Full Bench of the West Pakistan High Court. The relevant observations of his Lordship the Chief Justice appear in para. 38 (pages. 270 and 21) particularly at plactums CC, DD and EE.
12. From this it is abundantly clear that the discretion exercisable by the competent authority is within its subjective satisfaction which cannot be the subject matter of scrutiny by the Courts or on that analogy by the administrative Tribunal. This point was dealt with by the SC in PLD 1970 SC 98 relevant discussion from middle of page 128 to the four opening lines on page 231 particularly observations at at plactums 0 and P).
13. ' The learned Advocate General has stressed that no objective standards for exercise of discretion regarding "Public interest" having been laid down by the Legislature it will have to be presumed1 that they meant that it was to be the subjective satisfaction of the authority concerned rather than any objective satisfaction which may call for interference from the Administrative Tribunal.
14. Moreover the way in which the provision of retirement after 25 years of qualifying service for pension as inserted in section 13 does suggest that it was a normal incident of service and attached no stigma to the encumbent and did not deprive him of benefits like pension re- employment etc. It is one of the 2 ways in which the severance of the service of an individual can be brought about and hence it is outside the purview of interference from us. We therefore, agree with the learned A.-G. That no infringement of any right having accrued, Government were within their bounds to have taken this action without having given any right of audience to the incumbent and without having complied with any other formalities or pre-requisites. Considering what has been said above we reach the conclusion that the said impugned orders were not adverse orders but were only a consequence of the Act. They (the impugned orders) were not in the nature of a penalty. The said show-cause notice or opportunity of being heard were neither necessary nor were they provided for as condition precedent to the exercise of powers conferred by section 13 of Act XIV of 1974. No violation of any terms and conditions of the appellants in all these 3 appeals and also in Appeals 32 and 34/76 as civil servant having occurred. They (the appellants) cannot be deemed to be aggrieved by the impugned orders. Hence the appeals fail and are dismissed with no orders as to costs.
15. Appeal No, 155/74 fails also on the additional ground that no departmental appeal or representation had been filed prior to filing this Appeal No, 155/74. His Advocate has not been able to satisfy us that his clients case would come under any exception to the proviso to section of Service Tribunal Act. In fact no exception has been at all provided to this particular provision of law.
16. This Tribunal has in all such cases been holding that failure to comply with the proviso to section 4 will render an appeal non-maintainable. PLD 1967 Lab. 227