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Civil Appeal No. 214 of 1969, decided on 13th May 1974.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 25th of May 1966, in Writ Petition No. 692 of 1965).

Constitution of Pakistan (1962)‑

Art. 178(4)(b) [as amended by Constitution (Sixth Amendment) Act]‑Government servant attaining age of 55 years within six months of the coming into force of Sixth Amendment‑Automatically retires on expiry of six months.

Under the provisions of sub‑clause (b) of clause (4) of Article 178 of the Constitution of 1962, as amended by the Sixth Amendment, if no direc tion or order is issued, then the Government officer who attains the age of fifty‑five after the coming into force of the Sixth Amendment or within a period of six months there from automatically retires on the expiry of the said period of six months. If he was then nearing the age of 60 and he completes his sixtieth year before the conclusion of the said period of six months, then he retires on the completion of the sixtieth year of his age.

Karamatullah v. The Government of West Pakistan Writ Petition No. 1116 of 1964; Government of West Pakistan v. Karamatullah Khan P L D 1968 S C 292 and Muhammad Yusuf v. Government of West Pakistan P L D 1970 S C 219 ref.

K. M. Bokhari, Assistant Advocate‑General Punjab instructed by Ijaz Ali, Advocate‑on‑Record for Appellants.

Nemo for Respondent.

Date of hearing : 13th May 1974.

JUDGEMENT

HAMOODUR RAHMAN, C. J.‑The respondent joined service at the age of 19 as a Foot Constable on the 8th of April 1930. He completed twenty -five years of service qualifying for pension on the 8th of April 1955. By, this time, he had risen to the position of Assistant Sub‑Inspector of Police. His case was, however, at this stage referred under rule 4(1) of the West Pakistan Government Servants (Further Usefulness in Public Service) Rules, 1963, to Committee No. 6 to consider his further usefulness in service often completion of twenty‑five years of service. The Committee, after hearing the respondent, recommended that he should be retired with effect from the 15th of February 1964. This recommendation was accepted by the delegatee of the Governor, and the respondent was compulsorily retired with effect from the said date. His appeal to the Inspector‑General of Police failed on the 6th of October 1964. He then sought to challenge this order of retirement by a petition under Article 98 of the Constitution of 1962 in the former High Court of West Pakistan, Lahore Seat.

The High Court, relying on its own earlier decision in the case of Karamatullah v. The Government of West Pakistan (Writ Petition No. 1116 of 1964), held that the order of compulsory retirement passed against the said respondent after he had completed twenty‑five years of service, was illegal and ultra vires the Constitution. His petition was, accordingly, accepted and the order of retirement set aside.

Leave was granted in this case on the 5th of October 1966, since leave had already been granted in several other similar cases including the case of Karamatullah v. The Government of West Pakistan, and it was ordered that all the appeals should come up for hearing together.

A number of those appeals came up for hearing before this Court on the 11th of April 1968, but the

case of the present respondent was not included among them. This Court, by its judgment in the case now reported as Government of West Pakistan v. Karamatullah Khan (P L D 1968 S C 292), armed the decision of the High Court that the proviso to rule 4 of the West Pakistan Government Servants (Further Usefulness in Public Service) Rules, 1963, was ultra vires the provisions of the Constitution of 1962 in so far as it adversely affected the right of a Government servant in respect of his age of superannuation, and any action taken in pursuance thereof was illegal and inoperative.

At the conclusion of the hearing of those cases, it was brought to the notice of the Court by the learned counsel appearing for the Government that, during the pendency of the appeals in this Court, the Constitution had been further amended by the Sixth Amendment which came into force on the 31st of March 1966, whereby the age of superannuation had again been reduced to 55 years. The Court, however, held that this amendment could not apply to the cases under consideration, because, the Constitutional amendments could only "be enforced prospectively and not retrospectively". Hence, "the declaration granted by the High Court in respect of orders passed long before this amendment was brought into force, is not affected." But after this the Court went on to observe as follows :

‑

"It would be open to the Provincial Government, of course, to take action under the new amendment of the Constitution, in respect of anyone of the respondents who might have reached the age of fifty- five, on or before the 31st of March 1966. But till such an order becomes effective under the relevant constitutional provision, the Provincial Government would be under obligation to secure the stipulated emoluments to the respondents up to that date."

In implementation of this, the Government on the 20th of July 1968, purported to issue general directions by a Circular Letter No. 50‑IV (S & GAD) 4‑5/68 to the effect that "persons who had completed the age of 55 years but had not crossed the age of 60 years before the 30th of September 1966, stand retired automatically with effect from the 30th of September 1966, and orders declaring their retirement from that date should be issued accordingly."

In compliance with this directive, certain orders were made by the Governor of West Pakistan on the 30th of November 1968, followed by a notification dated the 4th of December 1968, retiring the respondents in the said cases with effect from the 30th of September 1966.

Karamatullah sought to challenge this order by asking for the committal of the officials of the Government for contempt, and the Government applied for a review of the judgment of this Court by Civil Review Petition No. 5 of 1969, seeking to have the observations in the last paragraph of the judgment of this Court clarified on the ground that they appeared to be in conflict with the provisions of the Sixth Amendment of the Constitution, which might have escaped notice.

The review petition was found to be barred by 278 days, and since there was no satisfactory explanation for this inordinate delay in filing the review petition, it was dismissed as being barred by time. So far as the merits of the case were concerned the view was taken that since Karamatullah had attained the age of 60 on the 31st of March 1968, the order of the 30th of November 1968, was, in any event, ineffectual, for, he had automatically retired with effect from the 31st of March 1968.

The review was, accordingly, dismissed and no order was passed on the contempt application, as no case of contumacious disregard or deliberate refusal to implement the orders of this Court had been made out.

The Sixth Amendment to the Constitution had substituted the following clause (4) in Article 178 of the Constitution of 1962 in place of the former clause which was added by the Constitution (Fourth Amendment) Act of 1965 :‑

"(4) A person whose terms and conditions of service are governed by Article 127 or Article 154 or Article 176 (not being a member of the Armed Forces of Pakistan) or paragraph (b) of Article 181 shall, notwithstanding anything contained in this Constitution or in any law or in the terms and conditions of his service, retire from service‑‑

(a) 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 and subject to the provisions of Article 185 or, as the case may be, Article 186, direct ; or

(b) if he has completed before, or completes within a period of six months from, the commencement of the Constitution (Sixth Amend ment) Act, 1966, the fifty‑fifth year of his age, on such date after such completion, being a date within the said period, as the competent authority‑ may direct, or in the absence of such direction, on the expiry of the said period, or on the completion of the sixtieth year of his age, whichever be earlier; or

(c) in any other case, on the completion of the fifty‑fifth year of his age."

Under sub‑clause (b), it is urged, that if a person completes within six months of the commencement of the Sixth Amendment the fifty‑fifth year of his age, then, if no direction is given by the competent authority, he automatically retires "on the expiry of the said period, or on the completion of the sixtieth year of his age, whichever be earlier". Thus, in the present case, since the respondent attained the age of fifty‑five years on the 8th of April 1966, i.e., within six months of the coming into force of the Sixth Amendment on the 31st of March 1966, and since no order or direction was made by any competent authority with respect to him, he was automatically retired on the 30th September 1966. No fresh order was necessary for such retirement, as observed in the last paragraph of the judgment in the case of the Government of West Pakistan v. Karamatullah Khan.

There can be no objection to the observations contained in the first part of the last paragraph of the aforementioned judgment, but it does seem to us that even if these provisions were to be applied only prospectively, they would even then apply in the case of a person who attains the age of 55 years after the 31st of March 1966, but within a period of six months from that date, that is to say, by the 30th of September 1966.

The intention of this provision appears to be that, if any person had completed the age of 55 years before the Sixth Amendment came into force or completed that age within six months therefrom, he should, in any event, be retired within six months from the commencement of the Sixth Amend ment unless, of course, an order or direction is issued by a competent authority retiring

him earlier. If before the expiry

of the said period of six months he attains the age of 60 years, then, in that event also, he has to be retired automatically on the date he attains that age. The intention clearly was that all persons in the service of Government should retire at the age of fifty‑five, unless their services are extended.

Under sub‑clause (b) of clause (4) of Article 178, as introduced by the Sixth Amendment, it is not necessary that in every case an order must be made for the retirement of a Government servant. If no order is made then there is no doubt that automatic retirement does take place under the Sixth Amendment, where it applies.

The full implications of sub‑clause (b), it appears, did not come up for consideration before the Court in the case of the Government of West Pakistan v. Karamatullah Khan, as they were held not to be applicable in the cases then under consideration. The Court was not, therefore, directly concerned with the interpretation of the new provisions introduced by the Sixth Amendment in the Constitution of 1962. The observations in the conclud ing portion were thus at best in the nature of an obiter and cannot be treated as being a considered pronouncement of the Court on the interpreta tion of the provisions of clause (4) of Article 178 as amended by the Sixth Amendment on the 31st of March 1966.

The judgment in the review petition of Karamatullah, by holding that he automatically retired in any event on the 31st March 1968, when he attained the age of 60, did not again go into the implications of amended provisions of clause 4(b) of Article 178 of the Constitution of 1962, or the correctness of the observations of the Court in the concluding portion of the earlier judgment. It was not necessary to do so as the order purported to be made under the amended clause was made after the person concerned had automatically retired.

In the case of Md. Yousuf v. Government of West Pakistan (P L D 1970 S C 219) however, this amended clause (4) and in particular sub‑clause (b) came up directly for consideration and this Court held that "the concluding clause applies only if the competent authority does not issue any directions for retirement from service within the period of six months and the person to be retired completes the age of sixtieth year before the expiry of that period". This meaning was found evident from a plain reading of the language of sub clause (b). This also shows that the observations in the concluding portion of the judgment in the case of the Government of West Pakistan v. Karamatullah Khan were not treated as a considered pronouncement by the Court.

We have, therefore, come to the conclusion that, under the provisions of sub‑clause (b) of clause (4) of Article 178 of the Constitution of 1962, as amended by the Sixth Amendment, if no direction or order is issued, then' the Government officer who attains the age of fifty‑five after the coming into A force of the Sixth Amendment or within a period of six months therefrom automatically retires on the expiry of the said period of six months. If he was then nearing the age of 60 and he completes his sixtieth year before the conclusion of the said period of six months, then he retires on the completion of the sixtieth year of his age. In this view of the matter, we are of the opinion that the contention of the learned counsel for the appellant must prevail, and it must be held that the respondent, under these provisions, would have automatically retired from service on the 30th of September 1966.

This appeal should have succeeded on this ground but since the respondent retired as long ago as the 20th of March 1967, and the learned counsel appearing for the Government states that the Government has no intention of reopening his case, no useful purpose will be served by pursuing the matter any further.

In these circumstances, we think it will be sufficient to meet the ends of justice if with the clarification above indicated, this appeal be dismissed as having become infructuous, without any order as to costs.

x. B. A. Appeal dismissed as having become infructuous.

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