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Writ Petition No. 1168 of 1965, decided on 20th April 1967.

r. 4(1), Proviso, read with Constitution of Pakistan (1962), Art. 178(2)‑Rules made by Governor have constitutional authorisation‑Proviso does not violate any consti tutional guarantee‑Case not examined when railway servant was about to complete 25 years service but examined within six months of coming into force of Rules‑Order of retirement not exceptionable.

r. 4(1), Proviso‑Scrutiny of railway servant's case for purpose of retiring him has no relation ship with scrutiny under Public Conduct Scrutiny Rules, 1959 Sctutiny under Rules of 1959 does not bar examination of case for retirement under proviso to r. 4 (1) of Railway Servants Rules of 1964.

The scrutiny of the case of a railway servant in 1959 under the Public Conduct (Scrutiny) Rules read with the Public Conduct (Scrutiny) Ordinance in no way debars the examination of his case for compulsory retirement on completion of 26 years of service under the proviso to sub‑rule (1) of rule 4 of the Rules of 1964.

Masud Butt and Faqir Muhammad for Petitioner.

Qamar‑ud‑Din for Respondent No. 1.

Date of hearing: 14th February 1967.

This is a petition under Article 98 of the Constitution of Islamic Republic of Pakistan by Qamar ud‑Din Siddiqui who has been retired under the West Pakistan Railway Servants (Further Uselessness in Public Service) Rules, 1964, hereinafter referred to as the Rules. He prays that the order of the respondents compulsorily retiring him from service, the recommendation of respondents Nos. 3, 4 and 5 and the order of the delegates (respondent Nos. 2 and 6) and of respondent No. 1, dismissing his appeal be declared to be without lawful authority and of no legal effect.

2. The petitioner was born on the 13th of August 1910 and joined service on the 21st of July 1938. On the 26th of September 1964, he was served with a notice to appear before the appropriate Committee on the 3rd of October 1964, to show cause why it should not recommend that he be retired from service under the said Rules. He appeared before the Committee which recommended his retirement from service with effect from the 12th of December 1964. On the 21st of November 1964, a copy of the order of the delegates was supplied to the peti tioner. The delegates had also decided to offer him re‑employ ment in the lower grade and he was required to state whether he would accept remaining in service as Foreman Grade III (Scale Rs. 570‑650). He was also told that he could appeal against the recommendation of the delegates to the Chairman, West Pakistan Railway Board, Lahore, within fifteen days of the communication of the order. He filed an appeal which was dismissed on the 2nd of February 1965. The petitioner impugns the order of his compulsory retirement from service on the ground that as he had already completed 25 years' service on the 21st of July 1963, his case could not have been reviewed in September 1964, under the 25 years' rule. It may be mentioned that he would have attained the age of 55 years in August 1965.

3. The relevant rule under which his compulsory retire ment was ordered is rule 4 (1) of the Rules, which reads:‑

"4(1) Notwithstanding anything contained in rule 3, the case of every person to whom those rules apply shall be referred by the Appropriate Authority to the Appropriate Committee appointed by the Governor in order to determine the further usefulness of such person in public service, at two stages only, namely:‑

(a) (i) in the case of a person entitled to pension when he is about to complete twenty‑five years of qualifying service for pension;

(ii) in the case of a person not entitled to pension, (sic) (when he is about to ) complete twenty‑five years of continuous service;

(b) when he is about to complete the fifty‑fifth years of his age :

Provided that the case of a person who has completed before, or completes on or will complete within six months of the commencement of these rules, twenty‑five years of qualifying service, for pension in case he is entitled to pension and twenty‑five years continuous service in case he is not entitled to pension, or the fifty‑fifth years of his age, may be reviewed within six months from the commencement of these rules, in the manner provided hereafter, if such person's case was not reviewed before the coming into force of these rules, for the purpose of retirement either on the completion of 25 years of qualifying service in case he is entitled to pension or twenty‑five years continuous service in case he is not entitled to pension or on the attainment by him of fifty‑five years of age as the case may be under any rules then applicable to him.

Provided further that if a person completes the fifty‑fifth year of his age earlier than the completion of twenty‑five years of qualifying service or continuous service, as aforesaid, his case shall be considered only when he is about to complete the fifty‑fifth year of his age."

His case was not examined when he was about to complete 25 years continuous service, but within six months of the pro mulgation of these rules, in September 1964, since the rules came into force on the 27th of May 1964. The learned 6 counsel for the petitioner was unable to show that the proviso was in excess of the powers of the Governor of West Pakistan, who framed these rules in exercise of powers conferred on him by clause (2) of Article 178 of the Constitution. It may be mentioned that a similar provision existed in the Second Proviso to rule 4 (1) of the Railway Servants (Further Usefulness in Public Service) Rules, 1962, which were framed by the President in exercise of powers conferred on him by sub‑clause (d) of clause 9 of Article 6 of the laws (Continuance in Force) Order, 1958. The Proviso to clause 9 (c) of Article 6 of the Laws (Continuance in Force) Order, 1958, also contained a provision that the case of a person who has completed before, or completes on or will complete within six months of the commencement of the rules made under sub‑clause (d) twenty‑five years of service qualifying him for pension or the fifty‑fifth year of his age, may be reviewed within six months from the commencement of said rules for the purpose of this clause in the manner provided in such rules. It cannot, therefore, be urged that the Proviso to rule 4(1) of the 1964 Rules violated any Constitutional guarantee A which the petitioner had, and since the Governor of West Pakistan was competent to frame rules in exercise of Constitutional powers in clause (2) of Article 178, the Rules have Constitutional authorisation.

4. The petitioner realising the weakness of his stand made a fresh application before us raising an objection that as his case had already been reviewed in 1959, his case could not be reviewed under the Proviso to rule 4(1). We issued notice of this objection to the learned counsel for the respondent who conceded before us that the petitioner was screened when he had comp leted 21 years of service under the Public Conduct (Scrutiny) Ordinance, 1959, and the rules framed thereunder, Public Conduct (Scrutiny) Rules. Rule 2 of these Rules provided as follows:‑

"(2) where a Committee is of the opinion that there is reason to believe that person to whom the Ordinance applies‑

(a) is corrupt, or may reasonably be considered corrupt because‑

(i) he has the general and persistent reputation of being corrupt; or

(ii) he is, or any of his dependents or any other person through him or on his behalf is in possession (for which he cannot reasonably account) of precuniary resources or of property disproportionate to his known sources of income; or

(iii) he has assumed a style of living beyond his ostensible means or above his station; or

(b) is guilty, in the case of a Government servant, of conduct contrary to the rules regulating the conduct of Government servants, and in any other case of conduct unbecoming his office; or

(c) is inefficient, or has ceased to be efficient and is not likely to recover his efficiency‑.

it may so inform that person and call upon him to explain any fact or

circumstances appearing against him."

5. The action to be taken against the person screened was stated in rule 5 and the final decision was to be made under rule 7. This scrutiny had no relationship to screening in connec tion with 25 years' service or reaching the age of 55 years. Therefore, the contention of the learned counsel for the petitioner that his case having been reviewed in 1959, could not have been reviewed again in terms of the Proviso, has no force; Under the Proviso, the case of a person may be reviewed within six months of the commencement of the rules if such persons case was not reviewed before the coming into force of these Rules for the purpose of retirement either on the completion of 25 years of qualifying or continuous service as the case may be or on the attainment by him of 55 years of age under any rules then applicable to him. The scrutiny of the case of the petitioner in 1959 under the Public Conduct (Scrutiny) Rules read with the Public Conduct (Scrutiny) Ordinance in no way debarred the examination of the case of the petitioner for compulsory retirement on completion of 26 years of service under the Proviso to sub‑rule (1) of rule 4 of the Rules of 1964.

6. This writ petition must, therefore, be dismissed, but there will be no order as to cost, as a question of law of some difficulty was involved.

A.H. Petition dismissed.

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