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Appeal No. 398 (P) of 1984, decided on 13th June, 1985.

‑‑S. 13 (ii)‑Service Tribunals Act (LXX of 1973), S. 4‑Retirement after completion of 25 years' service qualifying for pension‑Order to be passed by competent authority‑Deputy Collector, Central Excise and Land Customs while in addition to his own duties looking after routine duties of post of Director‑Passing and signing order within competence of Director‑Retirement order, in circumstances, held, illegal and ultra vires as not passed by competent authority hence set aside by Tribunal.

Talat Qayyum Qureshi for Appellant.

Mahammad Amir Akbar Khan, State Counsel for Respondent.

Date of hearing : 6th June, 1985.

.‑This appeal is filed by Sardar Shams Ali Khan, ex‑Deputy Superintendent Customs, Peshawar Region, against his compulsory retirement from service on completion of 25 years of service qualifying for pension under impugned order of Collectorate of Central Excise and Land Customs, Peshawar No. C. No. 11‑B (7) 33 Confl 82/4212, dated 17th August, 1982.

2. The appellant filed appeal against the impugned order of his retirement which was rejected by the appellate authority vide Order C. No. II‑B (7)33‑Clnfi/82/322, dated 12th July, 1984.

3. The learned counsel for the appellant contends that the impugned order was not passed by the competent authority.

4. The appellant joined the service as Inspector Central, Excise and Land Customs in 1955. He was promoted as Deputy Superintendent Central Excise and Land Customs on 24th November, 1980. His total service in the Department, when he was compulsorily retired, comes to 27 years. The learned counsel for the appellant contends that the impugned order for compulsory retirement was not signed by the competent authority i.e. the Collector of Customs of Peshawar. The order was actually signed by the Deputy Collector who was merely looking after the routine duties of the post of Collector, Central Excise and Land Customs, Peshawar. The order of the C.B.R. in this respect reads as follows :‑

'GOVERNMENT OF PAKISTAN CENTRAL BOARD OF REVENUE

C. No. 9/2/80‑ACE. I, Islamabad, the 27th June, 1981

Mr. Jehangir Khan, Deputy Collector, Central Excise and Land Customs, Peshawar will look after the routine duties of the post of Collector, Central Excise and Land Customs, Peshawar with immediate effect and until further orders.

(Sd.)

Abdul Aziz,

Second Secretary,

Telephone 27841."

The learned counsel for the appellant further contends that Mr. Jehangir Khan, Deputy Collector, Central Excise and Land Customs, Peshawar mentioned in the above order was a Grade‑19 officer. He was not given the officiating charge for the post of Collector because this fact is not mentioned in the C.B.R. order cited above.

5. Moreover, Mr. Jehangir Khan, Deputy Collector, Central Excise and Land Customs, the respondent, while he was looking after the routine duties of the Collectorate of Land Customs. Peshawar continued working in the capacity of Deputy Collector only as is evident from the duties assigned to him as a Member of the Review Committee. He was one of the three Members who were assigned the task of reviewing the cases of the Government servants regarding further usefulness for retention in service vide Order C. No. 1(5) DVW‑Admn/82/6986, dated 22nd June, 1982. It is evident that he continued to function as Deputy Collector (Grade‑19) and not as officiating Collector. This fact is further confirmed in the proceedings of the Review Committee when Mr. Jehangir Khan was asked to confirm his assessment regarding the appellant during the proceeding of the Committee as follows ‑‑

Mr. Shams Ali Khan, Deputy Superintendent (CE & LC)

Deputy Collector, Central Excise and Land Customs, Peshawar, con firmed the above assessment. Recommended for retirement."

6. The learned counsel for the State could not conclusively prove whether Mr. Jehangir Khan, Deputy Collector, Central Excise and Land Customs, Peshawar, was ever given the offciating charge of the post of the Collector of Customs, Peshawar. It was also confirmed by the learned counsel that Mr. Jehangir Khan was not promoted in Grade‑20 while he was looking after the duties of the post of Collector, Peshawar.

7. The learned counsel for the appellant contends that the impugned order for the compulsory retirement of the appellant was not signed by the authorised officer i.e. Collector of Customs, Peshawar but only by Deputy Collector (Mr. Jehangir Khan) as shown below:‑

Dated Peshawar the 17th August, 1982.

Whereas Mr. Shams Ali Khan, son of Yousaf Ali Khan Deputy Superintendent of this Collectorate has completed 25 years of service qualifying for pension or other retirement benefits ;

Now, therefore, in exercise of powers conferred by clause (ii) of section 13 of the Civil Servants Act (Aet No. LXXI) of 1973, the competent authority is pleased to direct in the public interest that Mr. Shams Ali Khan shall retire from service with immediate effect, or, if leave preparatory to retirement is applied for by him within 10 days of the date of this order and granted to him, on the expiry of such leave.

(Sd.)

Jehangir Khan,

Collector,

Central Excise and Land Customs,

Peshawar."

8. There is no denying the fact that the Review Committee under the Chairmanship of Mr. M. Hafeez was duly constituted to review the cases of all those civil servants who had completed 25 years of service between 17th December, 1979 to 31st December, 1981. Also the proceedings of the Review Committee recommending the retirement of the appellant are not challengeable. However, the fact is that the actual order of retirement as cited above was not signed by the authority. This situation makes the impugned order of retirement of the appellant illegal and ultra vires as the order was not passed by the competent authority under section 13 (ii) of the Civil Servants Act, 1973. Under the circum stances we consider that the appellant Mr. Shams Ali Khan, Deputy Superintendent should be reinstated in service as Deputy Superintendent Central Excise and Land Customs with effect from his date of retirement. The period the appellant remained out of service should first be treated as leave due and balance if any as extraordinary leave without pay. We also feel that it should be upto the competent authority to decide whether his case should be reconsidered afresh or appellant be retired as envisaged under the Review Committee proceedings vide Order C. No. 1(5) DVW‑Admn/82/6986, dated 22nd June, 1982.

9. Ordered accordingly.

A.E.

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