1. ' JUSTICE AMANULLAH KHAN (CHAIRMAN).---This consolidated judgment will dispose of Service Appeals Nos.39 of 2001, 71 of 2001 to 75 of 2001. 79 of 2001, 82 of 2001 and 83 of 2001, as the common questions of law and facts are involved in all the appeals. Besides, all the appeals are directed against similar Notification issued by the Government Of Baluchistan.
2. ' For reference, facts of the each appeals are given in seriatim hereinbelow:- Service Appeal No,39 of 2001._ ' Appellant Abdul Haim joined Baluchistan Civil Service (Executive Branch) on 9-104972, as Assistant. Commissioner. Thereafter, he was promoted to higher grade from time to time and lastly he was serving as Senior Member Board of Revenue in B-21. He also held the charge of Acting Chief Secretary, lastly he was waiting for the posting orders, when on 29-11-2000, a show-cause notice was issued to him by the Governor, Baluchistan, in exercise of powers under the Baluchistan Civil Servant Act, 1974 as amended vide Ordinance IV of 2000 (hereinafter referred to as "the Amending Ordinance)" calling upon him; as to why, he should not be retired from service, as he had acquired possession of pecuniary sources and property, in his name or in the name of his spouse and has assumed a living style beyond his known source of income and thus had earned persistent reputation of being a corrupt Officer, which prima facie is prejudicial, to good order of service discipline and reflects abuse/misuse of official position to gain undue advantages, and is thus, guilty of 'misconduct' warranting strict disciplinary action. The said show-cause notice was replied on .6-12-2000, wherein the appellant denied the allegations. Thereafter, vide Notification dated 16- 1-2001, appellant was compulsorily retired from Government service along with pension benefits as admissible under the Rules. ,Appellant filed a review petition to Governor, Baluchistan. However, no order was passed on the same, hence instant appeal was filed. Thereafter, the Government of Baluchistan promulgated Ordinance V of 2000, wherein section 13 of the Civil Servant Act was amended. During the pendency of instant appeal, another notification was issued on 1-6-2001 in supersession of previous notification dated 16-1-2001, whereby, appellant was simply retired from service, on completion of his 25 years' service w,e,f, 16-1-2001. On issuance of said notification, the appeal was amended, by challenging the subsequent notification of 1-6-2001.
3. Service Appeal No,71 of 2001.
4. ' This appeal has been filed by Appellant Muhammad Irfan Kasi, he was inducted in PCS (BCS) through Public Service Commission in B-17 on 6-7-1974. He was promoted to B-1$ on 22-4-1985 and thereafter in B49 on 23-5-1988 and finally he was promoted in B-20 vide notification dated 17-4- 1994. Lastly he was serving as Director General, {FDA, when a show-cause notice dated 25-4-2001, was issued to him by the Governor, Baluchistan, in exercise of powers under the Amending Ordinance calling upon him; as to why, he should not be retired from service, as he had acquired possession of pecuniary sources of property, in his name or in the name of his spouse and has assumed a living style beyond known source of income and thus had earned persistent reputation of being a corrupt officer, which prima facie is prejudicial to good order of service discipline and reflects abuse/misuse of officials position to gain undue advantages, and is thus, guilty of 'misconduct'. The said show-cause notice was replied on 2-5-2001, wherein the appellant denied the allegations. Being dissatisfied from the reply, vide impugned notification dated 22-5-2001, appellant was retired from service under section 13 of Baluchistan Civil Servants Act, 1974 as amended vide Ordinance IV of 2000 (Amending Ordinance). Thereafter, appellant filed a review petition before the Competent Authority against said impugned notification of his retirement, but after lapse of 90 days, no order was passed, hence instant appeal has been filed.
5. Service Appeal No,72 of 2001.
6. ' Appellant Col. (R.) Muhammad Hasham was inducted in BCS (EB) BPS-19, directly. He was serving in the Army as Colonel. His absorption in civil service was under Army Personnel Induction Rules.
7. Thereafter, he was promoted in B-20 on 17-4-1994, lastly he was serving as Member-II, Board of Revenue, when a show-cause notice dated 25-4-2001, was issued to him by the Governor, Baluchistan, in exercise of powers under Amending Ordinance calling upon him; as to why, he should not be retired from service, as he had acquired possession of pecuniary sources of property, in his name or in the name of his family members, and has assumed a living style beyond known source of his income and thus had earned a persistent reputation of being a corrupt Officer, which prima facie is prejudicial to good order of service discipline and reflects abuse/misuse of officials position to gain undue advantages, and is thus, guilty of 'misconduct'. The said show- cause notice was replied on 2-5-2001, wherein the appellant denied the allegations. Being dissatisfied from the reply, vide impugned notification dated 22-5-2001, appellant was retired from service under section 13 of Baluchistan Civil Servants Act, 1974 as amended vide Ordinance IV of 2000 (Amending Ordinance) Thereafter appellant filed a review petition before the Competent Authority against the said impugned notification of his retirement, but after lapse of 90 days, no orders was passed, hence instant appeal has been filed.
8. Service Appeal No,73 of 2001.
9. ' Appellant Muhammad Kaleem Nasir appointed as Assistant Engineer (B-17) on 25-H-1972.
10. Thereafter, he was promoted in B-18 as Executive Engineer on 15-6-1977 and as Superintending Engineer in B-19 on 9-8-1990. Subsequently he was given More-over in B-20 on 1-2-1994. Lastly he was serving as Officer on Special Duty in Communication and Works Department when a show- cause notice dated 26-4-2001, was issued to him by the Governor, Baluchistan, in exercise of powers under the Amending Ordinance calling upon him; as to why, he should not be retired from service, as he had acquired possession of pecuniary sources of property, in his name or in the name of his spouse and has assumed a living style beyond known source of income and thus had earned persistent reputation of being a corrupt Officer, which prima facie is prejudicial to good order of service discipline and reflects abuse/misuse of official position to gain undue advantages.
11. And is thus. Guilty of 'misconduct'. The said show-cause notice was replied on 2-5-2001, wherein the appellant denied the allegations. Being dissatisfied from the reply, vide impugned Notification dated 22-5-2001, appellant was retired from service under section 13 of Baluchistan Civil Servants Act, 1974 as amended vide Ordinance IV of 2000 (Amending Ordinance). Thereafter, on 29-5-2001 appellant filed an application to the Chief Secretary and then a review petition before the Competent Authority against the said impugned Notification of his retirement, but after lapse of 90 days, no order was passed, hence instant appeal has been tiled.
12. Service Appeal No,74 of 2001.
13. ' Appellant Budhar Das was appointed as Supervisor on 1-9-1970 in Public Health Engineering Department, and was promoted from time to time and lastly he was promoted as Executive Engineer in B-18. During the tenure of his service he was also charged for causing loss to the Government and ultimately he was discharged. On allowing his appeal vide order dated 22-10- 1998. The appellant was serving as Executive Engineer, when a show-cause notice dated 26-4- 2001, was issued to him by the Governor, Baluchistan in exercise of powers under the Amending Ordinance calling upon him; as to why, he should not be retired from service, as he had acquired possession of huge property through illegal means and his service record also shows demotion in rank with directions to reimburse the amount, which order though was reviewed by the then Chief Minister, but still it casts aspersions upon his working and integrity and further he. Has assumed a living style beyond his know source of income and thus had earned persistent reputation of being a corrupt Officer, which prima facie is prejudicial to good order of service discipline and reflects abuse/misuse of official position to gain undue advantages, and is thus, guilty of 'misconduct'. The said show-cause notice was replied, wherein the appellant denied the allegations. Being dissatisfied from the reply, vide impugned Notification dated 23-5-2001, appellant was retired from service under section 13 of Baluchistan Civil Servants Act, 1974 as amended vide Ordinance IV of 2000 (Amending Ordinance), Thereafter, appellant filed art appeal before the Competent Authority against the said impugned Notification of, his retirement, but after lapse of 90 days, no order was passed, hence instant appeal has been filed.
14. Service Appeal_ No,75 of 2001.
15. ' Appellant Rahim Shah Abdullahzai, join Government service on 13-9-1967? As Naib-Tehsildar, promoted as Tehsildar in B-16 in 1973. Thereafter, he was promoted as Assistant Commissioner on 13-5-1978 and lastly in 1997 was promoted in B-18, when a show-cause notice dated 25-4-2001 was issued to him by the Governor, Baluchistan, in exercise of powers under the Amending Ordinance calling upon him; as to why; he should not be retired from service, as he had acquired possession of pecuniary sources of property, in his name or in the name of his family members and has assumed a living style beyond his known source of income and thus had earned persistent reputation of being a corrupt Officer, which prima facie is prejudicial to good order of service discipline and reflects abuse/miscues of official position to gain undue advantages, and is thus, guilty of 'misconduct', the said show-cause notice was replied, wherein the appellant denied the allegations. Being dissatisfied from the reply, vide impugned Notification dated 22-5-2001, appellant was retired from service under section 13 of Baluchistan Civil Servants Act, 1974 as amended vide Ordinance, IV of 2000 (Annending Ordinance). Thereafter, appellant filed a review petition before the Competent Authority against the said impugned Notification of his retirement, but after lapse of 90 days, no order was passed, hence instant appeal has been filed.
16. Service Appeal No,79 of 2001.
17. ' Appellant Sardar Munir Ahmed was appointed as Assistant Engineer in Irrigation and Power Department and was promoted from time to time. Lastly he was serving as Secretary. P.1-I.E. When a show-cause notice dated 25-4-2001, was issued to him, by the Governor, Baluchistan in exercise of powers under the Amending Ordinance calling upon him; as to why, he should not be retired from service, as he had acquired possession of pecuniary sources of property, in his name. Or in the name of his spouse and has assumed a living style beyond his ,known source of income and thus had earned persistent reputation of being a corrupt Officer, which prima -facie is prejudicial to good order of service discipline and reflects abuse/misuse of official position to gain undue advantages, and is thus, guilty of 'misconduct'. The said show-cause notice was replied, wherein the. Appellant denied the allegations, *being dissatisfied from the reply, vide impugned Notification dated 23-5-2001, appellant was retired from service under section 13 of Baluchistan Civil Servants Act, 1974 as amended vide Ordinance IV of 2000 (Amending Ordinance). Thereafter, appellant filed an appeal on 22-6-2001 before. The Competent Authority against the said impugned Notification of his retirement, which was dismissed on 15th September", 2001, Hence instant appeal has been filed.
18. Service Appeal No,82 of 2001.
19. ' Appellant Jan Muhammad initially joined service in Press Information Department as Information Officer in B-17 on 28th February, 1974. Thereafter, through proper channel he applied for the post of Assistant Commissioner in Baluchistan Civil Service and was appointed as such in 1979. He was promoted in B-18 on 30-4-1.991 and B-19 on 27-9-1997. Lastly he was prorrysted in B-20 on 12th June, 1998. The appellant was Officer on Special-Duty, when a show-cause notice dated 25-4-2001, was issued to him by the Governor, Baluchistan, in exercise of powers under the Amending Ordinance calling upon him; as to why, he should not be retired from service, as he had acquired possession of pecuniary sources of property in his name or in the name of his family members, besides perusal of his service record shows that he managed promotions on extraneous grounds in violation of law and relevant rules and further has assumed a living style beyond known source of income and thus had earned persistent reputation of being a corrupt Officer, which prima facie is prejudicial to good order of service discipline and reflects abuse/misuse of official position to gain undue advantages, and is thus, guilty of 'misconduct'. This said show-cause notice was replied on 2-5-2001, wherein the appellant denied the allegations. Being dissatisfied from the reply, vide impugned Notification dated 22-5-2001, appellant was retired from service under section 13 of Baluchistan Civil Servants Act, 1974 as amended vide Ordinance IV of 2000. (Amending Ordinance).
20. Thereafter, appellant filed an application to the Chief Secretary and then a review petition before the Competent Authority against the said impugned Notification of his retirement, which was dismissed on 14-9-2001, hence instant appeal has been tiled.
21. Service Appeal No,83 of 2001, ' Appellant Muhammad Asiam Jamali joined service in Revenue Department as Tehsildar (13-16) on regular basis in 1975. He was promoted as Assistant Commissioner (B-17) in 1985 and then in B-18 in 1997. Lastly he was serving as Deputy Commissioner, when a show-cause notice dated 25-472001, was issued to him by the Governor, Baluchistan, in exercise of powers under the Amending Ordinance calling upon him; as to why, he should not be retired from service, as he had acquired possession of pecuniary sources of property, in his name or in the name of his family members and has assumed a living style beyond known source of income and thus had earned persistent reputation of being a corrupt Officer, which prima facie is prejudicial to good order of service discipline and reflects abuse/misuse of official position to gain undue advantages, and is thus guilty of misconduct'. The said show-cause notice was replied en 2-5-2001, wherein the appellant denied the allegations. Being dissatisfied from the Reply, vide impugned Notification dated 22-5- 2001, appellant was retired from service under section 13 of Baluchistan Civil Servants Act, 1974 as amended, vide Ordinance IV of 2000 (Amending Ordinance). Thereafter, appellant filed a review a petition before the Competent Authority against the said impugned Notification of his retirement, which was rejected and such order was conveyed to him on 15-9-2001, hence instant appeal has been filed.
22. ' Mls. Muhammad Aslam Chishti, S.A.M.Quadri, K.N. Kohli, Khushnood Ahmad and Malik Manzoor Ahmad, learned counsels, appeared for the appellants. Whereas official respondents were represented by Mr. Ashraf Khan 'ration, learned Advocate-General.
23. Mr. Muhammad Aslam Chishti, learned counsel contended as follows:-
1. The impugned Notifications, issued by the Governor, Baluchistan, retiring appellants from service, are ultra-wires and this Tribunal has the powers to declare the same as such.
2. Excessive powers have been delegated to the Governor by means of Amending Ordinance, which have been misused, while issuing the impugned Notifications.
3. Reasonable opportunity of-hearing was not provided to appellants, in order to rebut the allegations and thus the orders have been passed in violation of the principle of natural justice.
24. ' All the other learned counsel, appearing for appellants, adopted the arguments of Mr. Muhammad Aslam Chishti, Advocate. HoWever, Mr. S.A.M. Quadri, learned counsel, added that since appellant Abdul Hakim, has completed his 25 years' service on 19-10-1997 and had reached to the age of superannuating on 24-12-2002, and throughout, he earned good reputation, therefore, he may be ordered to be retired from service with effect from said date and further, as no enquiry was held in his case, therefore, in the alternative, appellant Abdul Hakim Bloch, is also ready to accept the offer, as was given to his fellow Officer in B-21 namely Muhammad Yousaf Pathan, by retiring him with effect from 10-1-2001.
25. ' In case of appellant Colonel (R.) Muhammad Hashim, learned counsel Mr. Muhammad Aslam Chishti, added that appellant was inducted in Baluchistan Civil Service (EB) in BPS-19 under Army Personnel Induction Rules on 26-10-1989 and was promoted in B-19 on 17-4-1994, and therefore, he had not completed his 25 years of service as 'Civil servant' therefore, his retirement is otherwise pre-mature.
26. ' In the case of appellant Jan Muhammad Dashti, Mr. S.A.M. Quadri, learned counsel, argued that he was inducted in service on 28-8-1979, therefore, his retirement is also pre-nature.
27. ' Learned Advocate-General, strongly opposed the appeals, by contending; that though this Tribunal has the jurisdiction to look into the vires of the Amending Ordinance, but the powers have been exercised within the limits of Statutes and the Governor, has not transgressed its powers, as laid down in the said law, therefore, no exception can be taken to it. He further argued that, amendments made in section 13 of the Baluchistan Civil Servants Act, 1974, have been challenged in piecemeal, i,e. Partly accepted by the appellants and partly challenged, therefore, a Statute cannot be declared ultra vires partly. Learned A.-G. Pointed out that, vires of a Statute can only be challenged, if it is in violation of the fundamental rights of the Constitution and nothing has been brought on record to show that, amendment made is inconsistent. With the provisions of the Constitution. He further pointed out that, on comparing the old section 13 of the Civil Servants Act, with the amending section 13, it would reveal that, in fact the entire section has been re-framed by the Amending Ordinance and nothing new has been brought. Since the law was already on the statute books and was never challenged earlier, therefore, now the same cannot be challenged.
28. Learned A.-G. Also stated that further, amendments were made in the amended section 13, which have not been challenged, and the Governor has been given powers, in view of Article 2(2) of the Provisional Constitutional Order, to act on behalf of the Chief Executive, which has also been endorsed by the Humble Supreme Court. As far as excessive delegation of powers is concerned, learned A. -G. Contended that, it is a valid Legislature and the powers are in conformity Ntith the Act itself. Lastly he argued that no penal action has been taken against any appellant and they have been exonerated of all charges and simply retired from service on completion of their 25 years service.
29. ' Before coming to the moot question of retirement of appellants on completion of their 25 years' service; it would be appropriate to first dilate upon the additional arguments made in Service Appeals Nos.39, 72 and 82 of 2001.
30. ' Mr. S.A.M. Quadri, learned counsel argued that appellant Abdul Hakim Bloch, would be satisfied and would not press the appeal, if impugned Notification dated 16-1-2001, is set aside and appellant is ordered to be retired from service on attaining the age of superannuation and for the said period, appellant shall also not claim any posting. He stated that allegations contained in the show-cause notice stand withdrawn, after Notification of 1-6-2001,, wherein the appellant was retired with retrospective effect i,e, from 16-1-2001, after completion of his 25 years service. Learned counsel prayed that period after 16-1-2001. May be adjusted by allowing/treating it as L.P.R. In favor of appellant or in alternative. Since appellant's fellow employee Muhammad Nionsaf Pathan was retired on completion of his 25 years service, therefore, appellant may also be granted the same benefit.
31. ' We are not inclined to accept the request made by appellant, because he has been simply retired from service vide Notification dated 1-6-2001 on completing his 25 years service and the Notification does not speak of his retirement on the basis of any allegations. The Notification shows that he has. Been exonerated from all, the allegations and has been retired w,e,f, ,.16-1-2001. Thus the contention is repelled.
32. ' As regards the contention that appellant Col. (R.) Muhammad Hashim (Appellant in Service Appeal No,72 of 2001), has been retired prematurely. As he has not completed his 25 years service as a Civil 'Servant', it may be observed that appellant was inducted in Baluchistan Civil Service in B- 19 on 26-10-1989, and was also placed at the top of the seniority list of BPS-19 Officers. It may be pointed out that appellant was sent on deputation in BPS-19, to the Government of Baluchistan vide Notification dated 7-3-1989. Thereafter, his services were permanently absorbed in Baluchistan Civil Service vide Notification of December, 1991 and he was retired from Pakistan Army with full benefits vide Notification dated 6-6-1992. The contention of Mr. Muhammad Aslam Chishti is devoid of force that, services rendered by appellant in Pakistan Army cannot be counted towards his civil service. Suffice it to observe that, under sub-clause (b) of clause (5) (Part-II) of the Establishment Division Memorandum, known as ' Induction/Re-employment of Officers of Armed Forces of Pakistan in Civil Service" services rendered in Pakistan Army will be counted towards the civil service. It may be mentioned here that, under no Rule an Army Officer can be inducted directly in B-19 in Civil service. Anyhow, appellant was inducted in B-19 only on the basis of his services rendered in Pakistan Army, therefore, his services rendered in Arms Force, will be counted towards his service rendered as civil servant. Thus the contention lacking force is repelled.
33. ' As far as the' contention of Mr. S.A.M. Quadri, learned counsel, pertaining to pre-mature retirement of appellant Jan Muhammad Dashti, is concerned, it may be observed that while appellant was promoted in B-19 on 12-6-1998, the seniority of appellant was challenged by his other colleagues, regarding excessive promotions and in the said proceedings, appellants contention was that before induction in Baluchistan Civil Service, he was appointed by the Federal Government in the Ministry of Information on 8 28-2-1974 on ad hoc basis, as Information Officer in B-17, therefore, after being inducted in Baluchistan Civil Service. His service with the Federal Government, was also counted. In the said proceedings, it has been held by the Humble Supreme Court that his service will be counted from 1974; therefore; appellant cannot approbate and reprobate. He got promotion on the basis of his previous service, rendered by him in the department of Information, therefore, contention that, he has been pre-maturely retired is devoid of force and is accordingly repelled.
34. ' Mr. Muhammad Aslam Chishti, learned counsel, while meeting with the preliminary objection raised by other side, regarding jurisdiction of the Tribunal to declare the amendment, ultra vires, contended; that since the matter pertains to the terms and conditions of service, therefore, any law passed by the Authority is amendable to the jurisdiction of this Tribunal. He further contended that, since in service matters, no Court has power to exercise jurisdiction thus; Amending Ordinance passed by the Governor, cannot be challenged before any other Court, therefore, Tribunal having the functions of a Civil Court, and substituted for the High Court under article 212 of the Constitution, can declare the law ultra-wires. Learned counsel, to support his contention, relied on following case-laws:- -
(i) PLD 1976 Quetta 59 (Muhammad Hashim Khan and others v. Province of Baluchistan and others), wherein following observations were made:-- "On the other hand, the Tribunal under section 5 of the said Act is deemed to be civil Court of the purpose of deciding any appeal before it with all the powers under the Code of Civil Procedure. As any other civil Court the Tribunal to our mind will have the jurisdiction to examine whether or not a law is void by reason of its conflict with the Fundamental Rights or is otherwise ultra vires or that the order made is mala fide".
(ii) PLD 1977 Lahore 549 (Fazal Ellahi and 22 others v. Government of Punjab and 13 others), wherein regarding jurisdiction of Service Tribunal, it was held as under:-- "No proceedings over which any administrative Tribunal's jurisdiction extends can consequently be entertained by any other Court merely on the ground that the matter involves determination of the vires of any rule or statute."
35. "The Administrative Tribunal or Court has complete jurisdiction in respect of the proceedings within its exclusive jurisdiction. The ouster of the jurisdiction of the ordinary Courts including the High Court in respect of the matters within the exclusive jurisdiction of the Administrative Tribunal or Court is so complete that even the order of the Administrative Tribunal cannot be assailed either by a suit or by a writ petition. See Muhammad Aslam Bajwa v. Federation of Pakistan. See also Faizullah Khan versus Government of Pakistan (in which it was held that High Court or other ordinary Courts have jurisdiction only in matters not amenable to the jurisdiction of the Service Tribunal, orders passed by the Administrative Tribunal or Court can be interfered with by the Supreme Court subject to the grant of special leave to appeal. Such Court or Tribunal can, therefore, give a finding on the validity of the rules framed under a particular statute, if the question arises in connection with any matter within its exclusive jurisdiction."
(iii) PLD 1997 SC 351 (Province of Punjab through Secretary, Health, v. Dr. S. Muhammad Zafar Bukhari), relevant portion of which, reads as under:-.
36. "As regard the efficacy or ascendancy of the PMDC Regulations and the Service Rules, the conclusion recorded by this Court reads "the respondent being a civil servant, the terms and conditions of his service are not governed by the Regulations made by the Pakistan Medical and Dental Conseil but by the N.-W.F.P. Civil Servants Act and N.-W.F.P. Civil Servants (Appointment, Promotion and Transfer) Rules, 1975. It is by incorporation of the qualification in the rules that the civil servants like= the respondent and other can claim to be governed by it and not independently of any such incorporation', The other judgment of this Court on the question of. Jurisdiction of the Service Tribunal to examine the validity of Service Rules and Notifications and the, edibility for promotion to higher posts is the case of Muhammad Anees v. Abdul Haseeb, PLD 1994 SC 539. It was held that 'the above matters preeminently fall within the exclusive jurisdiction of the Tribunal and therefore the High Court had wrongly assumed jurisdiction in the present case, which did not vest in ie".
37. ' Lastly reliance was placed on 1991 SCMR 1041 (1.A. Sherwin v. Government of Pakistan through Secretary Finance, Islamabad and others), wherein, following guidelines have been laid down:- "9. From the above quoted Article 212 of the Constitution and section 4 of the Act, it is evident that the jurisdiction of the Courts is excluded only in respect of the cases in which the Service Tribunal under subsection (1) of section 4 has the jurisdiction. It must, therefore, follow that if the Service Tribunal does not have jurisdiction to adjudicate upon a particular type of grievance, the jurisdiction of the Courts remains intact. It may again be pointed out that the Service Tribunal has jurisdiction against a final order, whether original or appellate, made by a departmental authority in respect of any terms and conditions of service."
38. ' After discussing the case-law on the subject, it was further held as under:- "10. From the above-cited cases, it is evident that it has been consistently held inter alia by this Court that a civil servant if is aggrieved by a final order, whether original or appellate, passed by a departmental authority in respect of his terms and conditions, his remedy, if any, is by way of an appeal before the Service Tribunal even where the case involves vires of a particular Service Rules or notification or the question, whether an accused civil servant can claim the right to be represented by a counsel before the Enquiry Officer. We are inclined to hold that if a statutory rule or a notification adversely affects the terms and conditions of a civil servant the same can be treated as an order in terms of subsection (1) of section 4 of the Act in order to file an appeal before the Service Tribunal. However, in the present case, the petitioner's case is founded solely on the ground of discriminatory treatment in violation of Article 25 of the Constitution and not because of any breach of any provision of the Civil Servant Act or any service rule. Furthermore, the question involved is of public importance as it effects all the present and future pensioners and, therefore, falls within the compass of clause (3) of Article 184 of the Constitution. However, we may clarify that a civil servant cannot bypass the jurisdiction of the Service Tribunal by adding a ground of violation of the Fundamental Rights. The Service Tribunal will have jurisdiction in a case which is founded on the terms and conditions of the service even if it involves the question of violation of the Fundamental Rights."
39. ' The learned Advocate-General also conceded that the Tribunal has jurisdiction to declare a law ultra vires. However, he argued with vehemence that the Amending Ordinance cannot be declared ultra vires.
40. Thus, in view of the above discussion, it is held that this Tribunal n has the jurisdiction to declare a law, invalid or ultra vires, impugned before ("' the Tribunal.
41. ' Now coming to the next contention of learned Counsel that, Amending Ordinance has been promulgated in exercise of excessive delegation of powers and thus is ultra vires. The learned Counsel in this behalf, contended, that the Governor being both Legislative Authority and Chief Executive of the Province and also the Competent Authority tinder the said Ordinance, has been given unfettered powers, without setting any guidelines in exercise of said Rules. To elaborate his arguments, learned Counsel contended that, though the Legislature has given authority to the Government, for making rules, but the Legislature did not set any guidelines for carrying out the purpose of the Act and thus by not doing so, it has bypassed the At itself, rendering it ultra vires. By amending section 13 of the Act, unfettered powers have been given to the Appointing Authority to retire a civil servant after he has completed 25 years of service and further the civil servant has to be informed in writing of the grounds. On which, the proposed action is to be taken.
42. ' In support of his contention, Mr. Muhammad Aslam Chishti, learned Counsel referred to the commentary on "excessive delegation of powers" in "The Interpretation of Statutes: by N.S. Bindra's Seventh Edition Page 812, wherein following principles have been laid down:-- "Safeguards against abuse of delegated powers.--The safeguards against the abuse of delegated powers lie in the following:--
(i) The delegation must be to some trustworthy authority, e.g., a public department; the limits of the delegated power should be strictly defined by the statute;
(ii) If the interests of any particular section of the community are likely to be effected, it should be consulted by the delegated authority before the regulations are made;
(iii) Publicity.---This is extremely important and Judges have from time to time pointed out the difficulty of discovering the relevant rules and regulations affecting any particular line of conduct or branch of industry; and
(iv) There should be machinery provided for revoking or amending the delegated legislation (of The Interpretation Act, 1889, section 32(3). The provisions for laying the rules before Parliament afford, or should afford, a valuable safeguard."
43. ' On the scope of "Courts scrutiny" it has been observed as under:- "Where a Court is required to determine whether a piece of delegated legislation is bad on the ground of arbitrary and excessive delegation, the Court must bear in mind the following well- settled principles: ' The essential legislative function consists of the determination of the legislative policy and its formulation as a binding rule of conduct and this cannot be delegated by the Legislature.
(2) The Legislature must retain in its own hands the essentials legislative functions and what can be delegated is the task of subordinate legislation necessary for implementing the purposes and objects of the Act.
(3) Where the legislative policy is enunciated with sufficient clearness or a standard is laid down, the Courts should not interfere.
(4) What guidance should be given and to what extent and whether guidance has been given in particular case at all depends on a consideration of the provisions of a particular Act with which the Court has to deal, including its Preamble.
(5) That nature of the body to which delegation is made is also a guidance It the matter of delegation.
(6) What form the guidance should take, will depend upon the circumstances of each statute under consideration, and cannot be stated in general terms. In some cases guidance in broad general terms may be enough; in other cases more detailed guidance may be necessary."
44. ' The learned counsel further referred to "Fundamental Law of Pakistan" by A.K. Brohi wherein it has been observed as under:-- "The language of Art. 105 of our Constitution, insofar as it might conceivably be deemed to assist the determination of the question relating to the extent to wtfich Legislature in our country can validity delegate legislative authority to other bodies, is: 'Parliament and a Provincial Legislature may make laws'. It would be noticed , that there is no express provision which limits the power of the Legislature to delegate the making of rules or regulations that are ancillary to the exercise of this law-making power reserved to it under the Constitution. But since the Legislature is primarily charged with the duty of law-making,. If cannot evade the performance of that duty by assigning it to another organ of the State Power. In each case, therefore, the entire text of the impugned statute has to be scrutinized to see exactly the kind of power that-has been delegated to subordinate agencies by the Legislature.; and if the Courts should come to the conclusion that there is the delegation of essential legislative power in any rule or law, made pursuant to the exercise of such a power, the legislation must be struck down as offending against the limits of the rule that permits delegated legislation. In each case where the question as to the constituted delegation of legislative power is raised, the effort should be made to find out whether or no 'essential' legislative power has been delegated."
45. ' To substantiate his argument, learned Counsel relied on the case of Consumer Action Group and others v. State of T.N. And another (2000) 7 Supreme Court Cases 425, wherein it has been held that 'In spite of a very Wide powers being conferred on the delegate such a section would still not be ultra vires. If guidelines could be gathered from the Preamble, Objects and Reasons and others provisions of the Act and Rules: In testing the validity of such provision. The Courts have to discover, whether there is any legislative policy, purpose of the statute or indication of any clear will through its various provisions. If there be any, then this by itself would be a guiding factor to be exercised by the delegate. In other words, then it cannot be held that such power is unbridled un channelized.
46. The exercise of power of such delegate is controlled through such policy."
47. ' The learned counsel lastly relied on the case of 'Kunj Behari Lal Butail and others v. State of H.P. And others (2000) 3 Supreme Court Cases 40, wherein it was observed that "essential legislative functions, 'consisting of the determination or choosing of legislative policy and formally enacting the policy into binding rules of conduct held, cannot be delegated by the Legislature and only ancillary or subordinate legislative functions may be delegated".
48. ' Learned Advocate-General denounced the arguments of learned Counsel Mr. Muhammad Aslam Chishti. To support his view-point, he invited our attention to unlamented section 13 of the Act and the newly-added substituted section by way of Amending Ordinance and argued that, subsequent amendment in section 13 is just a copy of the previous one and it has only been re-numbered, whereas subsection (2) has been introduced therein, which provides that, before taking action under section 13(1)(a) a Civil servant shall be informed in writing. Thus section 13(11(a) has been made, subject to notice. In such circumstances, it cannot be termed as excessive delegation of power and ultra vires. Learned A.-G. Further stated that the Amending Ordinance has been passed under Chief Executive Order IX of 1999, wherein the Governor has been authorized to promulgate the Ordinance and further the same has been validated by the Humble Supreme Court in Zafar Ali Shah's case (PLD 2000 SC 869). Learned A.-G. Further pointed out that a law can be declared ultra vires, if it is in violation of the Fundamental Rights as enshrined in Article-8 of the Constitution, whereas no argument was advanced by the learned counsel for petitioners nor it was their case. a.
49. ' Adverting to the argument of Mr. Muhammad Aslam Chishti, learned Counsel for appellants, it may be pointed out that, Amending Ordinance was promulgated on 5th September, 2000, by the Governor, Balochistan, being the Ordinance (IV of 2000), in exercise of powers conferred upon him by Provisional Constitutional Order 1 of 1999, the Governor has exercised the powers by promulgating the Amending Ordinance. It may be observed that, action of 12-10-1999 and action taken by the Chief Executive on 14-10-1999, i,e, Issuance of P.C.O. No,1 of 1999, has been validated by the Hon'ble Supreme Court in the case of Zafar Ali Shah. The judgment was also subjected to a review petition, which was also rejected (Wasim Sajjad v. Federation of Pakistan PLD 2001 SC 223 and further the view taken in Zafar Ali Shah's case, (supra), re-affirmed in the case of Khan Asfand Yar Wali v. Federation of Pakistan (PLD 2001 SC 607).
50. ' Before dilating upon the argument of learned Counsel for parties, it would be appropriate to reproduce section 13, as it stood before and after amendment.
51. Section 13 of the Act (before Amendment).
52. "Retirement from service---A civil servant shall retire from
(i) in the case of a person holding the post of an Additional Secretary to the Balochistan Government or any equivalent or 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; or
(iii) where no direction is given under clause (1), of as, the case may be under clause (ii), on the completion of the (sixtieth) years of his age."
53. Section 13 of the Act (after amendment).
54. "Retirement from service.--(1) A civil servant shall retire from service---
(i) 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 public interest, direct, or
(ii) Whether no direction is given under clause (i), on the completion of the sixtieth year of his age.
(2) No direction under clause (i) of subsection (1) shall be made until the civil servant has been informed in writing of the grounds on which it is proposed to make the direction, and has been given a reasonable opportunity of showing cause against the said dirtction."
55. A comparison of both the sections would reveal that un-amended section 13 of the Baluchistan Civil Servants Act has been re-numbered and subsection (2) has been incorporated and whereas on the question of retirement, the Government had been authorized to retire a Civil servant after completion of his 25 years' service. Similarly powers have been retained by the Government in subsection (1) of section 13. It may be pointed out that previously under the unlamented section no reason was required for retiring a Civil servant but by virtue of section 2(2) of the Amended section 13, notice in writing is a pre-requisite to inform a civil servant of the charge and has to be given reasonable opportunity of showing cause against the said direction.
56. ' The contention of Mr. Ashraf Khan Tanoli, learned A.-G. Has substance that, only section 13(1Xa) of the Ordinance has been challenged and whereas the entire Ordinance has not been challenged and further the contention has force that, subsection' (1) was already on the statute book, but has never been challenged. It may be observed here that, under the unlamented section 13 of the Act, the Competent Authority was empowered to retire a Civil servant on completion of 25 years' service with benefits, whereas under the amended section only subsection (2)(b), as observed hereinabove, has been incorporated, whereby notice in writing has been made a pre-requisite, to Civil servant to show cause, before any action is taken. As far as subsection (2)(b) is concerned, it can be no stretch of imagination be termed as excessive delegation of powers, whereas show- cause notice before taking action has been made, a pre-requisite, against a Civil servant under the Amending Ordinance. It may be pointed out that preamble of the , Original Act reads; that it is an Act to regulate the appointment of person to, and the terms and conditions of service of persons in, the service of Baluchistan, and to provide for matters connected therewith or ancillary thereto. As powers had been given to the Competent Authority under the unlamented section to retire a person on completion of 25 years and the said section had never been challenged before any Court of law, whereas under the substituted amended section, a right of hearing has been given to the civil servant before taking any action.
57. ' Mr. Ashraf Khan Tanoli, learned Advocate-General, further pointed out that, affairs of the Country are under the control of Armed Forces, for which, P.C.O. I of 1999, was issued and it has got an overriding effect over. The Constitutional provisions. As observed hereinabove, the said order was challenged and it has been validated in the case of Zafar Ali Shah and further, it was re-confirmed in the case of Asfand Yar Wall, and lastly in the case of Qazi Hussain Ahmad (PLD 2002 SC 853).
58. Thus, the provisions of Amending Ordinance are to be tested on the touchstone of P.C.O. The appellants have failed to point out any defect or flaw in the authority of Governor under the Chief Executive Order IX of 1999, for promulgation of the Amending Ordinance. As the Governor has been authorized to promulgate the Ordinance under the P.C.O., therefore, no exception can be taken to the same and further the powers are available to the Governor under the P.C.O. Which are vested in the Chief Minister. The Authorities referred to learned Counsel Mr. Muhammad Aslam Chishti, are not applicable in the instant case. Even under "The Interpretation of Statutes" by N.S. Bindra, while commenting upon the Safeguard against abuse of delegated powers, has observed; that the delegation must be to some trustworthy Authority. In the case in hand powers have been delegated to the Governor, who is also the Chief Executive of the Province. Further the limits of delegated powers have also been defined in the Amending Ordinance, wherein, a person can only be .Retired on completion of 25 years service, latter giving him a show-cause notice, Further, on the scope of Court's scrutiny, it has been commented; that Courts can only interfere, if the legislation is bad on the ground of arbitrariness and excessive delegation. It is pertinent to observe that as per the guidelines set dawn for scrutiny of the Courts, there is nothing to show that, same is arbitrary or ultra vires, warranting interference by the Court. In this behalf the third Principle is very important, which states that, ' where the legislative policy is enunciated with sufficient clearances or a standard is laid down, the Courts should not interfere'. In the Amending Ordinance, a policy has been laid down with sufficient clarity.
59. ' Learned Counsel, laid much emphasis on "Fundamental Law of Pakistan" by A.K. Brohi, wherein, it has been commented that, under Article 105 of the Constitution, Legislature can validly delegate legislative powers to Legislative Authority or to other Bodies. - Even the said commentary does not advance the case of learned Counsel.
60. ' Mr. Muhammad Aslam Chishti, learned Counsel, failed to point out, as to how the Amending Ordinance offends* the limits of the Rule that permits Legislation; and how the amendment is in violation of the Act itself.
61. ' Learned counsel also referred to the case of Consumer Action Group v. State of T.N. (2000) 7 Supreme Court Cases 425, wherein, it was held that if wide powers were conferred on the delegate, such provisions of law, still would not be ultra vires, if guidelines could be gathered from the Preamble, objects and reasons and other provisions of the Acts and Rules. As observed hereinabove, appellants have only challenged the vires of section 13(1)(a) and has not challenged the remaining portion of the Ordinance. It may be observed here that subsection (1) of the Act, has always been on the Statute book, right from the day of its enactment and it has never been challenged and preamble of ,the Act is quite clear and rules have been set down, clearly empowering the competent Authority to retire a Civil servant. Inasmuch as the last referred case of "Kunj Behari Lal Butail v. State of H.P. (2000) 3 Supreme Court Cases 40, does not advance the case of appellants, wherein it was observed that, only ancillary or subordinate legislative functions can be delegated. In the Amending Ordinance only subsection (2) has been incorporated, whereas subsection (1) was already on the Statute Book.
62. It may be pointed out that delegation of powers is not a new phenomenon and it has been validly recognized in England, America as well as other advanced countries of the world. The justification ,of issuing a Legislative instrument is a matter solely within the competence of legislature or the Law Givers. The Courts have been kept in restraint from questioning the motive or reasons of the Legislature. Under Corpus Juris Secundum, Volume 16 p.809, it is so expressed:-- "It is a well-settled rule that in determining the validity of an enactment the Judiciary will not enquire into the motive or reasons of the legislature or the Members thereof. The rule is even carried to the extent of excluding consideration of duress fraud or corruption in the passage of Act."
63. ' K.C. Davis in his book "Administrative Law. Text" Third Edition at page 26 commented as under:-- "Congress may and does lawfully delegate legislative power to administrative agencies, and it may and does lawfully delegate to such agencies the much more dangerous power to make law and to exercise discretion in cases involving identified parties...Delegation by Congress has long been recognized as necessary in order that the exertion of legislative power does not become a futility.
64. ' The non-delegation doctrine lingers on in some opinions of Federal Courts, but is seldom enters into judicial motivation. In only two cases in all American history have congressional delegations to public authorities been held invalid, both in 1935. The judicial prohibition against delegation has thus become a complete failure. In retreating from the prohibition, the Courts at first pretended that administrators could 'fill up the details' of the law without exercising delegated legislative power. For instance, the Supreme Court said in 1911 that 'the authority to make administrative rules is not a delegation of legislative power.' The second line of retreat involved a shift from prohibiting delegation to prohibiting delegation without an adequate standard. For instance, the Court declared that "Congress may declare its will, and after fixing a primary standard, devolve upon administrative officers the 'powers to fill up the details' by prescribing administrative rules and regulations.' But the Court did not always deny that filling up the details was an exercise of legislative power, for instance, it declared that "Congress cannot delegate any part of its legislative power except under the limitation of a prescribed standard". That kind of statement implied an acknowledgement that legislative power could be delegated. The third step was to uphold stands so vague as to be almost meaningless, including, 'just and reasonable.' 'Public interest'. 'public convenience, interest, or necessity', 'unfair methods of competition' 'reasonable variations, 'unduly or unnecessarily complicate the structure' of a holding company system or 'unfairly or inequitably distribute voting power among security holders."
65. ' Of course, the difference between delegation with such vague standards and delegating without standards may be about zero, so that delegations without standards are necessarily sustained.
66. Congress may say to the agency, in effect.: 'Here is the problem. Deal with it.' Or it may even, say, in effect: 'We the Congress don't know what the problems are or what they will become. Find them, or identify them as they arise, and deal with them.'
67. ' If Congress were to go to the ball game and authorize the page boys to legislate, . The delegation would be unconstitutional. But no reasonable delegation is likely to be held unconstitutional. The non-delegation doctrine does not prevent delegation of power to make law and to exercise discretion in individual cases. And it does not even assure meaningful legislative standards."
68. ' In Mutual Film Corporation v. Industrial Commission of Ohio (236 US 230 at 245), following principle was laid down:-- "While administration and legislation are quite distinct power, the line which separat..Their exercise is not easy to define in words. It is best recognized in illustrations. Undoubtedly the Legislature must declare the policy of the law and fix the legal principles which are to control in given cases; but an administrative body may be invested with the power to ascertain the facts and conditions to which the policy and principles apply. If this could not be done there would be infinite confusion in the laws, and in an effort to detail and to particularize, they would miss sufficiently both in provision and execution.".
69. ' To further re-enforce the aforesaid argument regarding delegation of powers, reference is made to PLD 1983 SC 473, relevant portion whereof reads as under:-- "Therefore, it is not possible to accept the analogy and as far as this. Court is concerned., the controversy was set..At rest in Begum Nusrat Bhatto's case, where it was held that not only administrative and executive, but also legislative functions vest in the Chief Martial Law Administrator. Accordingly any law enacted by him will have legal status as law. It would not be apt to say as the High Court has held that where there is combination of power in one person such as legislative and executive, he cannot make law. Our constitutions also recognize the vesting of executive power and legislative power in the executive head of the State and no law has been held to be incompetent for this reason. Instances are not wanting in jurisprudence where there is a combination of all the three power in one person and his law-making power has been recognized by the Courts."
70. Thus in view of the above discussion, there is nothing on record to show that, Amending Ordinance is an act of excessive delegation of powers and learned Counsel has failed to show that, same is in violation of any Constitutional provision or offends the provisions of the Act itself.
71. ' Therefore, the contention is repelled.
72. ' As we have already held that, there is no excessive delegation of powers, therefore, now the question left for our considerate is whether the powers exercised by the Governor in passing the impugned orders, can be said to be arbitrary or illegal?
73. Under section 13 (1)(a) of the Act, a Civil servant can be retired after completion of his 25 year's service, qualifying for pension or other retirement benefits and subsection (2) provides that, action under subsection (1) can only be taken when a Civil servant is informed of same in writing. In case in hand, the Competent Authority informed the appellants vide show-cause notices and each of the appellant's replied the same. After receiving their replies, the impugned Notifications were issued whereby appellants were ordered to he retired from Service on completion of their 25 years' service. It may be observed that the impugned Notifications does not show that any adverse action has been taken against the appellants, as the same indicates simplicitor retirement of appellants from service with all service benefits.
74. ' We are not persuaded to agree with the contention of learned Counsel that the impugned Notifications are in violation of the principle of natural justice. Learned Counsel contended that in the show-cause notice, allegations of corruption have been alleged against the appellant and after receiving the show-cause notice, no further enquiry was held and appellants have been retired. Learned Counsel further contended that even appointment of Baluchistan Service. Review Board was in violation of the Rules who conducted its own enquiry and submitted the same to the Competent Authority, whereas the appellants were never associated. Thus the recommendations of the Review Board are also in violation of the principle of natural justice.
75. ' It may be observed here that even under the E&D Rules, the Competent Authority can form an Enquiry Board or Committee and if the Competent Authority is satisfied that, no further enquiry is warranted in the case of a Civil servant, the Competent Authority can dispense with the detailed enquiry and can pass appropriate order. In the case in hand, the Competent Authority issued show-cause notices, and after taking replies from the appellants, opted not to conduct a detailed enquiry in the matter, as the material was already placed before him by the Baluchistan Service Review Board and exercised discretion in passing the impugned Notification. It may be pointed out that in such-like matters powers of judiciary were highlighted in the case of State v. Ziaur Rehman (PLD 1973 SC 49) wherein the ,Hobble Justice Mr. Justice Hamoodur Rehman, as he then was, observed as under:-- "In exercising his power, the judiciary claims no supremacy over other organs of the government but acts only as the administrator of the public will. Even when it declares a legislative measure unconstitutional and void, it does not do so, because, the judicial power is superior in degree or dignity to the legislative power, but , because the Constitution has vested it with the power to declare what the law is in the cases which come before it. It thus merely enforces the Constitution as a paramount law whenever a legislative enactment comes into conflict with it, because, it is its duty to see that the Constitution prevails. It is only when the Legislature fails to keep within its own Constitutional limits, the judiciary steps into enforce compliance with the Constitution. This is no doubt a delicate task as pointed out in the case of Fazalul Quader Chowdhry v. Shah Nawaz, which has to be performed with great circumspection but it has nevertheless to be performed as a sacred Constitutional duty limitations imposed upon them or claim to exercise power which the people have been careful to withhold from them".
76. ' On the other hand it is equally important to remember that it is not the function of the judiciary to legislate or to question the wisdom of the Legislature in making a particular law if it has made it competently without transgressing the limitations of the Constitution. Again if a law has been competently and validly made the Judiciary cannot refuse to enforce it even if the result of it be to nullify its own decisions. The Legislature has also every right to change, amend or clarify the law if the judiciary as found that the language used by the Legislature conveys an intent different from that which was sought to be conveyed by it. The Legislature which establishes a particular Court may also, if it so desires, abolish it."
77. It may also be observed that appellants had been retired on completion of their 25 year's service with full benefits and no further action has been taken against them. It may be stated here that, since there were allegations of corruption, the cases of appellants could have been referred to the RAB Authorities or the Anti-Corruption Establishment, but instead of L doing so, simplicitor retirement order was passed. Thus, in our considered opinion, the discretion exercised by-the Competent Authority in the cases of appellants is just, fair and equitable.
78. ' The result of overall discussion is that, appeals are dismissed being without merits, with no order as to costs.