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Appeal No. 66 (L) of 1975, decided on 26th June 1975.

‑‑ S. 13 (ii) read with Government Servants (Efficiency and Discipline) Rules, 1973‑Retirement after completion of 25 years' service under S. 13(ii)‑Held, neither compulsory nor in nature of penalty Provisions of Efficiency and Discipline Rules not applicable to such cases‑No violation of terms and conditions of service involved in such retirement‑Employee concerned cannot be deemed to be aggrieved by any final order made by Departmental Authority within meaning of S. 4, Service Tribunals Act (LXX of 1973)‑No appeal lies to Tribunal against order of such retirement.

‑The petitioner having completed 25 years of service qualifying for pension or other retirement benefits was retired from service in the public interest on 10‑1‑75 (afternoon) by the President of Pakistan in exercise of the powers conferred by clause (ii) of section 13 of the Civil Servants Act, 1973, vide Ministry of Railways Notifica tion No. E. 1/74‑R7/1. dated 10‑1‑75 the Notification further contemplated flat in care any leave preparatory to retirement is applied for within 10 days of the date of Notification and granted to the petitioner, on the expiry of such leave.

The leave preparatory to retirement having been applied for and granted to him for a period of one year, the petitioner would retire from service on the expiry of such leave i.e. from 10‑1‑1976.

Feeling aggrieved by the order of retirement, he has filed a petition before the President of Pakistan.

As the petitioner considers that the case is one of "compulsory and premature retirement before the normal age of superannuation of 58 years", he has filed the present petition/appeal before this Tribunal "by way of abundant caution and to avoid lapse of limitation".

Treating the retirement order based on mala fides not being in public interest and in contravention of the terms and conditions "embodied in his service agreement" (if any, which in fact fixed tire superannuation age at 55 years) and in substance in the nature of a penalty, with particular reference to some Press statements and a reply to the question in the National Assembly, it is urged before us that the case bring one of "compulsory retirement", Government Servants (Efficiency and Discipline) Rules, 1973 were applicable and therefore the procedure laid down therein should have been followed. It is further contended that even if it was not a case of penalty, a show‑cause notice or an opportunity of being heard was necessary before the exercise of powers under section 13 (ii) of the Civil Servants Act, 1973.

The points for determination are :‑

(a) whether the notification regarding retirement is in the nature of a penalty', and

(b) whether an 'appeal' to the Tribunal at all lies from the order of the Departmental authority, in this case.

The Notification (No. E‑1/74‑RT/I, dated 10‑1‑75), has reference to section 13, clause (ii) of the Civil Servants Act, 1973. This relates to "Retirement from service" and reads ;

"A civil servant shall retire from service‑

(i) .......................

(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) . . . . . . . . . . . . . . . . . . .

It is evident that the section which relates to retirement from service, makes no reference to 'compulsory retirement' at any stage: nor does any other section of the Act. The Act regulates by law, the appointment to and the terms and conditions of service of persons in the service of Pakistan and provides for matters connected therewith or ancillary thereto.

The petitioner would actually retire after availing of leave preparatory to retirement from 10‑1‑76.

Reference to 'compulsory retirement' in the nature of a penalty would be found in the Government Servants (Efficiency and Discipline) Rules, 1973. Reference to 'Efficiency and Discipline' has been made to section 16 of the Civil Servants Act, 1973. This section clearly indicates that a civil servant shall be liable to prescribed disciplinary action and penalties in accordance with the prescribed procedure is laid down in the Efficiency and Discipline Rules, 1973 (S. R. O. 1213 (1) 73, dated 18‑8‑73) wherein compulsory retire ment has been provided for as one of the major penalties vide rule 4 (b) (ii). It is important to note that the Government Servants (Efficiency and Discipline) Rules, 1973 were promulgated in exercise of the powers conferred by section 25 of the Civil Servants Ordinance, 1973, replaced by Act No. LXXI of 1973.

It is therefore obvious that the retirement is neither 'compulsory' nor in the nature of a penalty. Consequently, the provisions of the Efficiency and Discipline Rules, 1973 are inapplicable. Not being in the nature of a penalty no show‑cause notice or opportunity of being heard is provided for prior to the exercise of the powers conferred by section 13 of the Civil Servants Act, 1973.

The grievances appear to flow from the fact that the petitioner had been retired compulsorily on 13‑3‑1972, under M. L. R. 114. His review petition was, however, accepted and he was re‑instated on 13‑8‑73.

There is no indication nor would it be correct to infer that the present retirement effective on 10‑1‑76 is an offshoot of the earlier retirement.

We, therefore, hold that the retirement under the provisions of section 13 (ii) of the Civil Servants Act is in the ordinary course and not in the nature of a penalty. There is no violation of any terms and conditions of the petitioner as a civil servant.

Since there has been no violation of any terms and conditions of service, the petitioner cannot be deemed to be aggrieved by any final order made by the Departmental authority, within the meaning of section 4 of Service Tribunals Act, 1973 (relating to appeals to Tribunal). Consequently, r o appeal lies to the Tribunal.

The petition is disposed of accordingly. This does not, however, preclude the competent authority to pass suitable orders on the review petition.

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