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Petition No. 197 of 1962, decided on 23rd February 1963.

rr. 10 & I1‑Provisions not applicable in case of order of compulsory retirement passed under Art. 6 (5)(b), Laws (Continuance in Force) Order (I of 1958) (as amended by President's Order No. 1 of 1959)‑Laws (Continuance in Force) Order (President's Order No. 1 of 1958) [as amended by Laws (Continuance in Force) (Amendment) Order (President's Order No. 1 of 1959)], Art. 6(5)(6).

Art. 98 (2) & (3) "Pension"‑Matters relating to pension of Government servant -Application seeking relief under Art. 98 (2) not entertainable.

Kazi Khalilur Rahman v. The General Manager, Pakistan Eastern Railway P L D 1964 Dacca 93 ref.

A. T. M. Masud with Sultan Ahmed for Petitioner.

Maksum‑ul‑Hakim A.‑G. and A. H. Mirza for Respondent.

The petitioner, Abdul Majid, was a member of the East Pakistan Civil Service and was, at the relevant time, namely, in May, 1959, serving as a Deputy Magistrate and Deputy Collector in this Province. He had asked for a correction of the date of his birth as mentioned in his service record and supplied a horoscope in support of his contention. On behalf of the res pondent, Government of East Pakistan, he was asked to produce his Matriculation Certificate, which is the normal documentary evidence upon which Government acts in such a matter. For a considerable time the petitioner did not produce any such certifi cate. Subsequently, however, the petitioner produced a certificate which substantiated his contention that the date of his birth as mentioned in his service record was not correct. As suspicions arose with regard to the genuineness of the said Matriculation Certificate, it is said, a reference was made to the Calcutta University and on receiving a communication from them it was discovered that the Matriculation Certificate or a copy thereof as produced by the petitioner, was at variance with the original Matriculation Certificate as issued by the said University.

2. The petitioner also produced a certificate purported to have been given by the Head Master of a School, called Government Jubliee High School, Sunamganj. It was found that there were corrections and alterations made in the school record subsequent to petitioner's obtaining the aforesaid Matriculation Certificate. In the aforesaid circumstances departmental pro ceedings were drawn up against the petitioner and, eventually on the promulgation of Martial Law in this country in 1958, the matter was referred to a Screening Committee set up during that period. Divisional Commissioner, under whom the petitioner was serving at the relevant period, took a serious view of the matter and recommended his dismissal. However, the Screening Com mittee eventually referred the matter for departmental action to be taken by Government. The matter was referred to the Public Service Commission, who also formed an adverse opinion against the petitioner. The case of the petitioner thereafter went through various stages of the secretariat and eventually the matter was brought up before the Government of East Pakistan, who, took a very serious view of the matter and passed the order which has been annexed to the petition marked as Annexure A and it reads thus:

"Notification

No. 2778‑G. A., dated, Dacca, the 30th May 1959.

In exercise of the powers conferred on him by sub‑clause (b) of clause (5) of Article 6 of the Laws (Continuance in Force) Order, 1958, the Governor has been pleased to order retirement of Moulvi Abdul Majid, No. 1, Deputy Magistrate and Deputy Collector (under suspension) from service with effect from the date of this order for misconduct.

By Order of the Governor,

(Sd.) M. Azfar,

Chief Secy. to the Govt. of East

Pakistan

No. 2778/1‑G. A.

Copy forwarded to Moulvi Abdul Majid No. 1, Deputy Magistrate and Deputy Collector (under suspension) care of Gulbadhan House, 4, Moulvi Bazar, P. O. Chowk Bazar, Dacca, for information.

2. He will be entitled to proportionate pension/gratuity as admissible under the rules.

(Sd.) M. F. Bari,

Asstt. Secy. to the Govt. of East Pakistan."

It will be noticed that, although the Governor's order as passed by him made no mention of any pension to be received by the petitioner, the communication of the said order as forwarded to the petitioner, contained an endorsement by an Assistant Secretary to the Government of East Pakistan, which was couched in the following terms:

"He will be entitled to proportionate pension/gratuity as admissible under the rules."

3. The petitioner accepted the Governor's order which placed him under compulsory retirement in the sense that he took no steps against the aforesaid order. He however, made several representations with a view to get proportionate pension. From time to time he was asked to submit the said application in appropriate form. Eventually, he was apprised of the Governor's decision that under the Rules he was not entitled to any pension whatsoever. The relevant communication has been marked as Annexure F to the petition, which reads as follows:

"No. GA. V/1P‑61/60‑1341, dated, Dacca, the 21st December, 1961.

From: S. A. Rashid, Esq.

Section Offcer, Govt. of East Pakistan.

To

Abdul Majid, Esq.,

Dy. Magte. and Dy. Collr. (Retired) Kermatnagar

T. E., P. O. Barlekha, District Sylhet.

Sub : Pension of Mr. Abdul Majid Deputy Magis-

trate and Deputy Collector (Retired)

Sir,

I am directed to refer to the correspondence resting with your letter dated the 16th October, 1961, on the above subject, and to state that Government have considered the question of granting pension to you very carefully but as you were not acquitted of the charges in the departmental proceedings drawn up against you, they regret to say that you are not entitled to any pension in terms of para. 10 of the Finance Department Memorandum No. F‑(Pen) 1P1/72/404(112), dated the 31^st August, 1961, extracts from which are enclosed.

Your obedient servant,

(Sd.) S. A. Rashid,

21‑12‑61.

Section Officer, Govt. of East

Pakistan."

4. Being aggrieved by the aforesaid order passed by the Government, the petitioner moved this Court and obtained the present Rule nisi by which the respondents were called upon to show cause as to why the petitioner should not obtain a declar ation that the aforesaid decision of the Government, as com municated to him, refusing to grant any pension, should not be declared to be without lawful authority and to be of no legal effect. We need not set out any further the terms of the Rule in detail.

5. On behalf of the respondents an affidavit‑in‑opposition has been filed by a Section Officer of the said Government of East Pakistan, in which the averments of the petitioner made in the application have been traversed. t has been stated that the petitioner has been made to retire compulsorily, not on any recommendation of the Screening Committee, but under depart mental action. The learned Advocate‑General as produced the relevant departmental file, which we read out to the petitioner, in corroboration of the aforesaid statement made in the said affidavit‑m‑opposition. We have no hesitation in accepting the affidavit filed on behalf of the Government of East Pakistan to the effect that the order passed against the petitioner retiring him compulsorily from service was made as a measure of departmental action.

6. It has furthermore been submitted in the said affidavit- in‑opposition that under the Rules governing the terms and con ditions of service of the petitioner, he is not entitled to any such pension as claimed by him.

7. At the hearing of the Rule we specifically asked the learned Advocate for the petitioner to put his finger on any rule under which the petitioner could claim that he was entitled to receive pension from the respondent. The learned Advocate failed to point out any such rule. He, however, drew our attention to rules 3, 10 and 11 of a set of rules, which are called East Pakistan Government Servants (Discipline and Efficiency) Rules, 1959, which was published in a Gazette Notification in the Dacca Gazette on the 18th March, 1959. Rule 3 (c) of the aforesaid rules authorised the relevant authority to pass an order of compulsory retirement against a Government servant on ground of misconduct, that is, conduct contrary to the rules regulating the conduct of Government servants. Rule 10, to which our attention was drawn, reads thus:

"10. A Government servant removed or compulsorily retired from service under rule 3 shall, except as hereinafter provided, be entitled to such compensation pension, or gratuity or pro vident fund benefits as would have been admissible to him under the rule applicable to his service or post on the date of such retirement if he had been discharged from service on account of the abolition of his post without alternative suitable employment being provided, but the Governor shall always have power to determine the extent to which any such compensation pension, or gratuity may be withheld from the officer."

Rule 11 of the said Rule couched in the following terms:

"A Government servant who is dismissed under rule 3 shall not be entitled to any compensation pension, gratuity or con tributory provident fund benefit but the Governor may, if he sees fit to do so, make him a compassionate grant."

8. At the outset, it may be stated that the order passed by the Government of East Pakistan against the petitioner was not under rule 3 (c) of the aforesaid Rules, but it was pasted under sub‑clause (b) of clause (5) of Article 6 of the Laws (Continuance in Force) Order, 1958. Therefore, Rule 10 or Rule 11 has no manner of application in this case. Learned Advocate for the petitioner next argued that in the absence of any rule which imposed an embargo upon granting the petitioner any pension, it (such pension) should have been allowed to the petitioner inas much as the communication of the order to the petitioner con tained a statement to the effect that he was entitled to such pension "as admissible under rules". The short answer to this contention is that no such rules could be pointed out by him which made such pension admissible to the petitioner. We do not think that the respondents were in duty bound to grant him pension, under the aforesaid Rules, 1959. The application, therefore, fails on its merits.

9. However, there is another f6midable and insurmountable difficulty in the way of the petitioner, which has been created by clause 3 (b) of Article 98 of the Constitution which reads thus:

"3. An order shall not be made under clause (2) of this Article

(a) ......

(b) on application made by or in relation to any other person in the service of Pakistan in respect of his terms and conditions of service, except a term or condition of service that is specified in this Constitution."

An application of the kind, which has now been made before us, cannot be made seeking relief under clause (2) of the said article, if it is made by a person or in relation to a person with regard to terms and conditions of the service of a Government servant within the meaning of the said article. It was argued that matters relating to the pension of a Government servant cannot be described as terms and conditions of the service of such person. This contention is untenable because the rules upon which the petitioner has relied, have been framed under the provisions which granted the relevant authorities power to frame rules with regard to service (terms and conditions) of Government servants. This Court has decided this point in a judgment which was delivered by a Division Bench of this Court in the case of Kazi Khalilur' Rahman v. The General Manager, Pakistan Eastern Railway (P L D 1964 Dacca 93). Thus the petitioner is not entitled to succeed before us either on the merits of the application before us or on the objection taken by the learned Advocate‑General with regard to the maintain ability of this application under clause 3 (b) of Article 98 o the Constitution.

10. The result, therefore, is that this Rule is discharged without any order as to costs.

.‑I agree.

S. Q./K. B. A. Rule discharged.

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