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‑‑‑ S. 4 read with Provisional Constitution Order (1 of 1981), Art. 15 and Punjab Civil Servants Act (VIII of 1974), S. 12 (ii) and M. L. O. 23‑Retirement under S. 12(ii) of Punjab Civil Servants Act, 1974‑Retirement Order challenged before Review Board cons tituted under M.L.O. 23 and review petition rejected by M.L.A. Matter, in circumstances, held, hit by Art. 15 of Provisional Con stitution Order, 1981 and appeal not entertainable by Service Tribunal.

Dr. Muhammad Ilyas Dubash v. Service Tribunal 1982 S C M R 562 ref.

Muhammad Yamin Qureshi's case N L R 1980 S C 21 and P L D 1975 S C 104 ref.

Masud Ahmad Riaz for Appellant.

A. G. Humayun, District Attorney for Respondent.

S. ABDUL JABBAR KHAN (CHAIRMAN).‑

Ch. Ghulam Rasool, has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, against retirement order, dated 16th October, 1976 and against rejection of his review petition, dated 14th January, 1978 by the Martial Law Administrator and rejection of his appeal by the same authority, dated 3rd April, 1980. He has impleaded the Province of the Punjab through the Chef Secretary, Government of Punjab, as respondent.

2. By virtue of this appeal he has prayed that the retirement order be set aside and he be reinstated in service w.e.f. 16th October, 1976 with full benefits of service.

3. Brief facts of the case are that the appellant completed 25 years' service on 24th May, 1975. He was retired from service on 16th October, 1976 vide order of the Governor of the Punjab with full pension benefits under section 12 (ii) of the Punjab Civil Servants Act, 1974. However, he filed a Review petition before the Martial Law Administrator Zone A' Lahore as well as appeal before the said Authority but both were rejected.

4. The appellant instead of filing appeal before this Tribunal for the redress of his grievance, instead filed a writ petition No. 6887 of 1980, before the Lahore High Court, wherein the order of his retirement was challenged. This writ petition was dismissed by the Lahore High Court vide its order, dated 1st February, 1982 with the observation that in the circumstances of his case the appellant had a right of filing appeal before the Service Tribunal against the said order by which he stood retired and his review petition was rejected, subject to the provisions that this could only be done if the bar as contained in Article 13 of the Provisional Constitutional Order did not apply in his case. Hence this appeal.

5. We have heard the learned counsel for the appellant as well as learned District Attorney assisted by the representative of the Depart ment and have perused the entire record of this case carefully with their assistance.

6. In spite of hurdle of time limit in his way, his appeal was filed before this Tribunal against an order which became final in the year 1976. Learned counsel for the appellant has submitted that his case was based on point of malice against the competent authority, therefore, in view of law laid down in Muhammad Yamin Qureshi's case (N L R 1980 S C 21) the order being an order coram non judice, the Tribunal was com petent to examine the appeal on merits and question of law and facts which the appellant was entitled to raise in support of his case, could be raised. He has also challenged the stand of the learned District Attorney that the case of appellant was hit under Article 13 of the Provisional Constitutional Order, 1981. It has been argued that the subject‑matter of this appeal, in fact relates to the terms and conditions of service of a civil servant and right c appeal and representation, which are matters falling under the head terms and conditions of the Punjab Civil Servants Act, 1974: It was further urged that the competent authority constituted under C.M.L.A's Order No: 23 to pass a final order on his review petition, would in fact substitute the departmental authority, therefore, the im pact of the Article 13 of the Provisional Constitutional Order, 1981, would not be applicable in his case. According to the learned counsel for the appellant, the constitutional bar would not apply and the Service Tribunal would undoubtedly have the jurisdiction to bear the appeal.

7. It has been further argued that the appellant has been retired at the behest of Federal Government, a fact which stands established on the record that Mr. Abdul Aziz, Joint Secretary, Establishment Division brought the letter of Federal Government to the Punjab Government compelling the Government of the Punjab to compulsorily retire certain civil servants including the appellant and take disciplinary action against certain others. In this matter it has been argued that any order passed on the direction of the Government of Pakistan would not be an order emanating from independent mind and thus liable to be struck down. He has also further challenged the impugned order as being against the principle of natural justice by submitting that no opportunity of personal hearing was given to the appellant as laid down by the Superior Courts of the country. In this matter he has relied on P L D 1975 S C 104.

8. Without going into the merits of the case we will first of all like to settle the most important question of law in this case i.e. whether the appeal is entertainable before this Tribunal against the order of Martial Law Administrator or not. To decide this issue we will refer to a Full Bench Judgment of the Supreme Court of Pakistan in Dr. Muhammad Ilyas Dobash v. Service Tribunal (1982 S C M R 562). In this case Leave to Appeal was granted. An inquiry was held against the appellant under the Punjab Civil Servants (E & D) Rule, 1975, and he was compulsory retired from service vide order, dated 14th January, 1978. The appellant did not challenge this order before the Punjab Service Tribunal through an appeal, which was then functioning However, on coming into force of C.M.L.A's M.L.O. No. 23, on 22nd October, 1977, he preferred a review petition before the Review Board constituted under the said order, which was rejected by the Martial Law Administrator, Zone A' on 14^th January, 1978. The appellant challenged this order before the Service Tribunal, which maintained the order of the M.L.A. by observing that such orders were not appealable under M.L.O. 10. It was further urged that as the appellant had withdrawn the appeal, therefore, he was pre cluded to come before the Tribunal. The Supreme Court of Pakistan held that under present dispensation namely Provisional Constitutional Order of 1981, any challenge to the order passed by the M.L.A. is not entertainable id view of clause 2 of Article 15, therefore, any submission in regard to the validity of the order of compulsory retirement is beyond the pale of challenge.

9. In the present case, what we find is that the appellant also challenged the order of the departmental authority under M.L.O. 2 both in review as well as in appeal before the M.L.A. Zone A, who after due consideration of his case, rejected his stand and confirmed his retirement, so made by the competent authority. As the circumstances of the case are absolutely on all fours, therefore, the application of the above ruling so cited by the learned District Attorney will be fully applicable in the case of the present appellant.

10. The result is that without going into the other legal point so raised by the learned counsel for the appellant, we proceed to dismiss the appeal as the same would not be entertainable in view of the law laid down by the Supreme Court of Pakistan. However, there will be no order as to costs.

A. E. Appeal dismissed.

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