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Civil Petition for Special Leave to Appeal No. 537 of 1974, decided on 27th January, 1976.

(On appeal from judgment and order of the Lahore High Court dated 29th March, 1974 in Regular Second Appeal No. 97/74).

----Read with Pakistan Army Regulation No. 269‑Contention that release of petitioner from Army without affording him any opportunity to show cause was illegal and void as provided under Regulation 269 Regulation, held, directory and not in nature of a guarantee to furnish a basis for a legal action by means of a civil suit as in case of civil servants‑Petitioner's tenure throughout remaining unqualified "pleasure"‑Civil Court, held, had no jurisdiction to interfere in matter.‑[Jurisdiction].

M. G. Cheema, Advocate, Supreme Court instructed by S. Wajid Hussain, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing : 27th January, 1976.

‑The petitioner herein was granted temporary Commission in the Pakistan Army in 1940. In 1961 while he held the rank of a Major, he was seconded to the E. P. R: where he took over as Wing Commander. After serving in that Organization for some time; he was recalled because of certain allegations made against him. After his recall he was released from the Pakistan Army under the order of the Central Government on proportionate pension and gratuity. A writ petition to challenge his release from the Pakistan Army was dismissed in limine on 21‑11‑1969 on the short ground that no such petition by a member of Armed Forces was competent. He then instituted a civil suit for a declaration that his release from the Army without affording any opportunity to show cause was illegal and void. . The suit was dismissed on 23‑2‑1972. His appeal to the District Judge was dismissed ; so also his Regular Second Appeal in the High Court.

The Courts have taken the view that as Army officer, the petitioner did not enjoy any protection as to his tenure of service and therefore Civil Courts cannot grant him redress.

We have heard the petitioner's learned counsel at some length. He tried to make the following two points namely :‑

(i) that during the period the petitioner remained on deputation with the E. P. R. he had ceased to remain under the Army discipline and therefore became entitled to the usual protection available to a civil servant ; and

(ii) that in any event, under the Pakistan Army Regulation No. 269 a Court of Enquiry ought to have been constituted to enquire into the charges against him affording him proper opportunity to defend himself.

The argument thus was that the petitioner could not have been summarily released from service for reason of his alleged misconduct while he remained on deputation with the E. P. R. However, no precedent was cited in support of that proposition. 1t is not denied that on his recall from E. P. R. he rejoined his Unit, which showed that he had never severed his connection with the Army and therefore had remained subject to the Pakistan Army Act. Similarly the Regulation upon proper interpretation is directory, and is not in the nature of a guaranty to furnish a basis for a legal action by means of a civil suit as in the case of a civil servant. Indeed, his tenure throughout remained one of unqualified "pleasure" and learned counsel for the petitioner was unable to cite any judicial precedent by which the Civil Courts have intervened to grant redress to an officer of the Armed Forces against his discharge from Service whether for reason of his misconduct or otherwise.

Accordingly the petition is dismissed.

Petition dismissed.

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