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Civil Petition for Special Leave to Appeal No. 133 of 1973, decided on 8th October 1973.
(On appeal from the judgment and order of the Lahore High Court, dated the 14th of November 1972, in R. S. A. No. 1470 of 1971).
‑‑ Art. 58(3) ‑Point never raised in any Court below‑Not allowed to be raised before Supreme Court.
‑‑ R. 2(c) read with Laws (Continuance in Force) Order (1 of 1959), Art. 6(5) (a) & (b)‑Person in service of Pakistan could be com pulsorily retired on ground of inefficiency before 1st July 1959‑Provisions of Order 1 of 1959 being super‑constitutional could not be overridden by Scrutiny Rules of 1959.
Government of East Pakistan v. Murzuqullah P L D 1969 S C I ref.
Ch. Muhammad Anwar Buttar, Advocate Supreme Court instructed by Iqbal Ahmed Qureshi, Advocate‑on‑Record for Petitioner.
Nemo for Respondent.
Date of hearing : 8th October 1973.
The petitioner at the time of his compulsory retirement was working in the Traffic Accounts Branch of the N. W. Railway. On the 27th June 1969, by an order of the Financial Adviser and the Chief Accounts Officer P. W. Railway, Lahore, he was retired compulsorily from service with effect from the 30th June 1959 (A. N.). There was no appeal from this order but the petitioner filed a suit which was dismissed on the ground that the suit was barred under section 10 of Ordinance No. 2 of 195 ). Petitioner's appeal from this order was dismissed by the Additional District Judge, and his second appeal before the High Court was also dismissed. '
It has been contended on behalf of the petitioner that the impugned order of retirement was not passed by the competent authority. This point was never raised in any Court. We, therefore, cannot permit him to raise it for the first time before us.
It has next been contended that the petitioner could not be retired on the ground of inefficiency or unsatisfactory service inasmuch as rule 2(c) of the Public Conduct (Scrutiny) Rules, 1959, was omitted by an amendment on the 25th February 1959. The said rule permitted retirement on the ground of inefficiency. In support of this contention the learned Advocate appearing for the petitioner has relied on the case of Government of East Pakistan v. Murzuqullah (P L D 1969 S C 1). We have perused this decision and it appears to us that this Court considered a similar contention and rejected it. In the case under report after examining clauses 3 and 4 which were added to Article 6 of Laws (Continuance in Force) Order, 1951 oz: the 9th March 1959, and clause 5, which was amended on the 23rd April 1959, it has been. observed as follows : ‑‑
"It will be seen that sub‑clause (b) by reference to sub‑clause (a) includes 'inefficiency' as a ground for the compulsory retirement of a person in the service of Pakistan, if the order of his retirement is made before the 1st of July 1959. This provision which is part of a super‑constitutional law namely, the Laws(Continuance in Force) Order of 1959, is independent of any other law and has an overriding effect, not withstanding anything inconsistent therewith or having the contrary purpose, in any other law, rule or instrument having the force of law."
There is no substance in this petition and it is, accordingly, dismissed.
Petition dismissed.
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