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Civil Petition for Leave to Appeal No. 440/R of 1985, decided on 1st July, 1986.

(On appeal from the judgment and order of Federal Service Tribunal 9‑10‑1985/9‑11‑1985 Appeal 159/R of 1984).

‑‑‑Art. 212(3)‑‑Provisional Constitution Order (1 of 1981), Art. 13(1)‑ Civil Servants Act (LXXI of 1973), S. 13 (ii)‑‑Service Tribunal Act (LXX of 1973), S. 4‑‑Retirement from service‑‑Ouster of jurisdiction‑ Order of retirement challenged on grounds of mala fide and non‑completion of 25 years' service qualifying for pension‑‑Tribunal coming to conclusion that service rendered by petitioner exceeded 25 years qualifying for pension and mala fides on part of Government Department was not established, Held, that order of retirement could not be held to be without jurisdiction and that in view of ouster of jurisdiction, Service Tribunal did not have power to examine question of retirement of a person by a competent authority after 25 years' service‑‑impugned order not being open to interference, leave to appeal refused.

Secretary to the Government of Punjab, Education Department, Lahore and others v. Noor Muhammad Khan P L D 1984 S C 80; Federation of Pakistan v. Saeed Ahmad Khan P L D 1974 S C 151 and State v. Ziaur Rahman P L D 1973 S C 49 ref.

Petitioner in person.

Nemo for Respondents.

Date of hearing: 1st July, 1986.

This petition is directed against the judgment and order of the learned Federal Service Tribunal dated 9‑10‑1985/9‑11‑1985 passed in Appeal No. 159/R of 1984.

2. The petitioner, while serving as Joint Director in the Central Board of Revenue was retired from service by order dated 26‑12‑1983 under section 13 (ii) of the Civil Servants Act (LXXI of 1973) (hereinafter referred to as the Act) on the assumption that he had completed 25 years' service qualifying for pension. Since the said order was passed by the President, the appellant made a review petition which was dismissed, per order dated the 18th March, 1984.

3. Aggrieved from the aforesaid order, the petitioners filed an appeal before the learned Federal Service Tribunal under section 4 of the Service Tribunals Act (LXX of 1973), whereby he challenged the order of his retirement from service on two grounds, i.e. that he had not completed 25 years' service qualifying for pension as envisaged under section 13 (ii) of the Act, and, secondly, that the order of his retirement was mala fide.

3. The petitioner started his career by joining the North Western Railway (NWR) in 1953. Thereafter, he served twice with the Pakistan International Airlines Corporation (PIAC) and with the Federal Government in the intervening period. With effect from 1‑2‑1966 he rendered uninterrupted service with the Federal Government.

4. The case of the petitioner is that his service under the Federal Government which, in terms of section 13 (ii) of the Act qualifies for pension, is only 17 years, 10 months and 25 days counted from 1‑2‑1966 to 26‑12‑1983. It was contended by the petitioner, who appeared in person, that the other service rendered by him does not qualify for pension and, therefore, he having not completed 25 years' service qualifying for pension on 26‑12‑1983, the order of his retirement from service was without jurisdiction.

5. We have heard the petitioner. He contends that the learned Service Tribunal could not revise or reverse its own majority judgment. In this context he submitted that as mentioned in the opening paragraph of the impugned judgment the petitioner's appeal was heard on. 27‑8‑1984. The judgment was written by the learned Chairman of the Tribunal and out of the three remaining Members, the judgment was signed by the Senior Most Member. Under such circumstances even if the other two Members are presumed to be of different views, the opinion of the Chairman and one Member shall prevail under section 3‑A (2)(c) of the Service Tribunals Act, 1973 and the decision of the Tribunal, in terms of the opinion of the Chairman, should have been expressed, whereby the appeal of the petitioner was accepted and it was held that he had not completed 25 years' service qualifying for pension. He further submitted that during the course of regular hearing of his appeal on 27‑8‑1984 it was observed by the learned Tribunal (Chairman) that if it was established that the petitioner had not completed 25 years service, it would be needless to argue on the point of mats fide. It was because of that view of the learned Tribunal that the petitioner was not heard on that point although it was an important ground of his appeal duly supported by an affidavit and prominently figured in his written arguments. He urged that on 29‑8‑1984 he had moved an application in which he did mention the above said observation, in addition to his prayer for allowing him to address arguments on mala fide. Hearing of this application was adjourned to numerous dates when in the meanwhile the first Member of the Tribunal who had signed the judgment and the third Member who had yet to sign it, were retired and on 9‑6‑1985 the learned Tribunal ordered re‑hearing of the entire case, thus overruling its own majority judgment. The petitioner further submitted that in view of the sanction letter dated 13‑5‑1979 the counting of petitioners' service in NWR and PIAC "as duty performed in Government service for the purpose of pension only", therefore, the Tribunal or for that matter the Central Board of Revenue could count it as service qualifying for pension, and not for the purpose of retirement under section 13(ii) of the Act. This according to the petitioner is an explicit statement which does not require any proof to conclude that his service in the Railway and PIAC was not otherwise Government duty or Federal Government Service and as such it could not be counted for pension in the ordinary course, but to remove the hardship of the petitioner who otherwise would have completed23‑1/2 years' service at the time of his superannuation, the Finance division allowed his periods of service in NWR and PIAC to count as Government duty for the purpose of pension 'only' and even the AGPR counted it for pension and not for leave, fixation of pay, travelling allowance of any other purpose; and the respondents also did not count this service of the petitioner for seniority or consideration for promotion and contended before the Tribunal in his promotion appeal, that he was not eligible for promotion to Grade‑20 as he had only 13‑1/2 years' service in August, 1979. His Railways and PIAC service was excluded from being counted for promotion. Thus, the action of the respondents to count his service for the purpose of his retirement under section 13 (ii) is illegal and without lawful authority.

6. The petitioner also referred to the provisions of Civil Service Rule 361 canvassing that his service with the NWR was paid from the 'General Revenue" is not correct and whether the Civil Service Rules could be made applicable to the case of the petitioner so as to declare his service in the NWR as "service qualifying for pension" under C.S.R. 418(a) 'Rules for Reckoning Service' it is clearly mentioned that 'resignation of public service entails forfeiture of past service' and the learned Tribunal has, therefore, again erred in ignoring the effect of C.S.R.418(a), and lastly it was contended by the petitioner that the learned Tribunal could not refuse jurisdiction to examine the question of mala fide in view of Article 13 (1) of the P.C.O. of 1981 especially when the case of the petitioner brought before the Tribunal was that he had not yet completed 25 years' qualifying service for pension.

7. We have examined the points raised by the petitioner. Article 361 of the Civil Service Regulations, which is relevant in the present case, reads as follows:‑

"The service of an officer does not qualify for pension unless it conforms to the following three conditions:

First‑‑The service must be under Government.

Second‑‑The employment must be substantive and permanent.

Third‑‑The service must be paid by Government.

The learned Service Tribunal held that at the time of arguments it was agreed by both the parties that the second condition no longer remains in existence because by a special order even temporary service can count for pension if it is followed by substantive and permanent service. The petitioner's case is that his continuous service under the Government being 17 years 10 months and 25 days the first condition is not satisfied and that the service in the NWR and PIAC was not paid by the Federal Government and this too cannot count for calculating 25 years' service.

The petitioner relied on the case of Secretary to the Government of Punjab, Education Department, Lahore and others v. Noor Muhammad Khan P L D 1984 S C 80. That case arose out of the retirement of a civil servant of the Punjab Government this Court had upheld the decision of the Punjab Service Tribunal that the service rendered under the Federal Government does not qualify for pension in terms of section 12 (ii) of the Punjab Civil Servants Act provisions of which are identical with section 13 (ii) of the Act. It was held that the period during which a civil servant remains on extraordinary leave without pay by an order passed under M.L.0 23 against termination of service under M.L.R. 114 does not qualify for pension, but is only a bridge between the two periods of qualifying service. The petitioner, however, argued that under Article 361‑A, C.S.R only that service which is paid from General Revenues, can be counted as service qualifying for pension, the service of the petitioner with the N . W. R . and the P. I . A . C . not being paid from the General Revenue, does not qualify for pension, and, therefore, is outside the ambit of Article 361‑A ibid. The learned Service Tribunal expressed doubt about the service of P.I. A. C but as far as the service with the N.W.R. was concerned, it held that it is a service which is paid from the General Revenues and as such it is to count towards pension. The learned Tribunal drew a table of service of the petitioner in paragraph 5 of its judgment and came to the conclusion after final count that service rendered by the petitioner with the Federal Government and the N . W. R. exceeds 25 years which qualifies for pension and, therefore, the order of retirement in these circumstances could not be held to be without jurisdiction or having been passed without the petitioner having completed 25 years' service.

8. The petitioner then raised the question of mala fide and it was held by the learned Service Tribunal referring to the case of Federation of Pakistan v. Saeed Ahmad Khan P L D 1974 S C 151 that none of the facts brought to the notice of the Tribunal was sufficient to establish mala fides on the part of the Government Department. On the question of jurisdiction reliance was placed on State v . Ziaur Rahman P L D 1973 S C 49 and also on Federation of Pakistan v. Saeed Ahmad Khan P L D 1974 S C 151 that the acts which are mala fide, are acts without jurisdiction and that no legislative document including the constitutional documents save such acts from the scrutiny of the Courts. However, the jurisdiction of the Tribunal extends only to those matters in which it has been conferred such jurisdiction under the Service Tribunals Act, 1973 read with Article 212 of the Constitution. The said Act ousts the jurisdiction of the Tribunal in certain matters and Article 13 (1) of the Provisional Constitution Order, 1981 also ousts the jurisdiction of the Tribunal where retirement has been made from service under the orders of the competent authority after the person in the service1 completes 25 years' service qualifying for pension or other retiring benefits. Finally, the observation was that in view of the ouster of jurisdiction, the Tribunal does not have the power to examine the question of retirement of a person by a competent authority after 25 years' service; and that the civil Courts and the High Court can, on question, of the mala fide, go into the facts leading to the conclusion contrary to that arrived at by the Departmental authority.

9. We have examined all the case‑law cited and discussed by the learned Tribunal as well as before us by the petitioner, and we are of the view that the learned Tribunal has rightly dismissed the appeal of the petitioner. We find no reason to interfere with the impugned order. Petition is, consequently, dismissed.

M.I. Petition dismissed.

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