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Case No. 340/179 of 1982, decided on 17th November, 1982.
----Ss. 4 & 12 (ii) read with Provisional Constitution Order (P. O. 1 of 1981), Art. 13‑‑Retirement after completion of 25 years' service qualifying for pension‑Order to be passed by Governor or a, person authorised by Governor in this behalf‑Powers not delegated to any authority‑Order should be' passed by Government‑Powers of appointing and punishing authority under Delegation of Powers Rules vesting in Deputy Conservator of Forests (Parks and Wildlife)‑Post abolished and instead post of Conservator (Parks and Wildlife) created‑Delegation of Powers Rules not amended‑Order of retire ment passed by Conservator, in circumstances, held, not by competent authority hence not sustainable‑Impugned order having not been passed by competent authority Art. 13 of Provisional Constitution Order, 1981, held, would not operate a bar to maintainability of appeal before Tribunal‑Impugned order in circumstances, set aside being void ab initio‑‑Punjab Service Tribunals Act (IX of 1974), S. 4.
M. A. Riaz and Mian Anwar Ali for Appellant.
Haroon‑ur‑Rashid Cheema, District Attorney for Respondents.
Hafiz Muhammad Ghazi, Game Inspector (Retd.) he filed this appeal under section 4 of the Punjab Service Tribunal Act, 1974 in which he has impleaded Secretary to Government of the Punjab, Forestry and Wildlife Department, Conservator of Forests (Parks and Wildlife) Punjab, Lahore and Game Warden, Punjab, Lahore as respondents.
2. By virtue of this appeal, the appellant has prayed that the order of his retirement passed under section 12 (2) of the Punjab Civil Servants Act, 1974 passed by the Conservator of Forests (Parks and Wildlife) Punjab, Lahore, dated 5‑6‑1982 be set aside and he be re‑instated in service.
3. Brief facts of the case are that the appellant while he was working as Game Inspector was retired by the Conservator of Forests (Parks and Wildlife), Punjab, Lahore vide his Office Order No. 315 C F (P & W) Estt. 82, dated 5th June, 1982. Hence this appeal.
4. We have heard M. A. Riaz, Advocate on behalf of the appellant and the learned District Attorney on behalf of the respondents and have also perused the record of the case. The learned counsel for the appellant has submitted that the retirement of the appellant can only be made by the Deputy Conservator of Forests, who was the competent authority under 1978 Rules. He has further argued that the said post of Deputy Conservator of Forests was abolished by the Government and instead the post of Conservator of Forests was created, thus it was incumbent upon the Government to amend the delegation of power rules, to empower the Conservator of Forests (Parks and Wildlife) Punjab, Lahore to exercise the powers of the appointing authority or the authority under the Efficiency and Discipline Rules. Due to this lapse on the part of the Government, it has been submitted that the appellant could only be retired by the Government itself. On the other hand learned District Attorney has raised a preliminary objection and submitted that the present appeal is not competent because the appellant has not availed of the remedy of representations against the impugned order which was available to him under section 21 of the Civil Servants Act and Article 13 of the Provisional Constitution Order, 1981. On merits it has been argued on behalf of the respondents that in fact the post of Deputy Conservator of Forests (Parks and Wildlife) was not abolished but the nomenclature was changed and, therefore, his successor i.e., Conservator of Forests (Parks and Wildlife) was fully within his competency to pass the impugned orders. He has referred to letter No. B&A/BUD/BII‑366/4262, dated 29‑10‑1981 addressed by the Government to the Conservator of Forests and has submitted that the impugned order has been passed by the competent authority. Concluding his arguments the learned District Attorney has submitted that the appeal is not maintainable in view of the bar contained in Article 13 of P. C. O., 1981.
5. We have given our anxious thought to the arguments addressed by the learned counsel of the parties and had also perused the record including the letter so relied upon on behalf of the respondents. The fact of the matter is that according to the Delegation of Power Rules, 1978, the appointing authority in respect of Game Inspector is the Deputy Conservator of Forests (Parks and Wildlife) Punjab. Since the Government has not amended the Delegation of Power Rules, in order to delegate upon him the powers of appointing/punishing authority in respect of the Game Inspector so the necessary consequence would be that the Government could only pass the impugned order. Section 4 of the Civil Servants Act has clearly laid down that the appointment to a civil service of the Province or the civil post in connection with the affairs of the Province can be made by the Governor or by a person authorised in that behalf. Since no such powers have been delegated to the Conservator of Forests so far as such the order passed by him would prima facie to be without jurisdiction and illegal. With regard to the letter so, relied upon by the 'learned District Attorney we find that it is of no help to the respondents because it on relates to the creation of certain posts and allocation of certain posts/grades and does not show any thing else.
6. Thus, we hold that the impugned order has not been passed by the competent authority. So far as the objection raised on behalf of the respondents with regard to the maintainability of the appeal is concerned, suffice it to say that even under section 12 (2) of the Punjab Civil Servants Act and Article 13 of P.C.O., it is a mandatory requirement that the orders of retirement of the Civil Servants should be passed by the competent B authorities after they had completed 25 years service qualifying for pension and other retirement benefits. Since we have already held that the impugned order has not been passed by the competent authority so the Article 13 of P. C. O. would not operate as a bar to the maintainability of i this appeal, as such the objection is overruled.
7. In view of the above detailed discussion, we proceed to accept the appeal and set aside the impugned orders as being void ab initio and direct that the appellant be co‑instated in service and it shall be deemed as if he had never been retired from service. The parties shall bear their own costs.
Appeal accepted.
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