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Appeal No. 155 of 1981, decided on 28th October, 1985.

‑‑‑S. 12(ii)‑‑Retirement after completion of 25 years' service‑‑Competent authority empowered fully to scrutinize case of a civil servant after 25 years service at any time and as many occasions as it considers expedient in public interest‑‑Civil servant once considered fit and suitable for further retention‑‑Cannot claim that he cannot be put second probe.

Maqbool Hussain Shah v. Central Board of Revenue 1982 PLC 678 and 1983 P L C (C.S.) 1026 rel.

‑‑‑S. 12(ii)‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.12(5)‑‑Evidence Act (I of 1872), S.114‑‑Retirement after 25 years' service‑‑Constitution of Committees for review of cases of officers‑‑Not exceptionable and quite legal as Government can regulate transactions of its business‑‑Committees after scrutiny of record doing spade work to facilitate decision by competent authority‑‑Order passed by competent authority In regular course of action cannot be, said to have been passed without application of mind‑‑Rendering assistance by such committee to competent authority will not make action of competent authority illegal or void.

P L D 1976 S C 208held not relevant.

‑‑‑S. 12(ii)‑‑Retirement after 25 years' service‑‑One of terms and conditions of service‑‑Retirement simpliciter and not a penalty distinguishable from compulsory retirement‑‑Show‑cause notice not necessary.

Ahmad Rabbani v. President of Pakistan 1976 P L C (C.S.T.) 140; Muhammad Rehman v. Secretary Railways P L J 1976 Tr. C (Services) 329 and 1976 P L C (C.S.) 58 and 140 rel.

(d) Azad Jammu and Kashmir Civil Servants Act, 1975‑‑

‑‑‑S. 12(ii)‑‑Retirement after 25 years' service‑‑Discrimination‑‑Different yardstick for assessment of suitability of officers of different grades and classes‑‑Does not amount to discriminatory treatment.

Hanif Akhtar Ranja v. Azad Government of the State of Jammu and Kashmir 1983 P L C 932

‑‑‑S. 12(ii)‑‑Azad Jammu and Kashmir Service Tribunals Act, 1975, S.4‑‑Retirement after 25 years' service‑‑Public interest‑‑Government sole judge of public interest‑‑Not within jurisdiction of Tribunal‑‑Illegal or mala fide action of Government not immune from scrutiny by Tribunal‑ Retirement not shown to have been made in public interest or material of cases showing that order passed on basis of misrepresentation and thus not justified‑‑Can be set aside by Tribunal.

1984 P L C (C.S.) 702 and 1981 P L C (C.S.) 179 ref.

Sh. Abdul Aziz for Appellant.

Additional Advocate‑General for Respondent.

Date of institution: 30th April, 1981.

This appeal is directed against the order of the Government, dated 27‑12‑1980, whereby the appellant was retired from the service, after completion of 25 years of his service, qualifying for pension. The appellant has contended that his retirement is illegal and without any material on record, justifying such retirement. He also attacks the legal existence of the Review Committee, constituted by the Government, for scrutinizing the cases of the Government servants, who had completed 25 years service. He maintained that he was once retired in 1975 but having been cleared by the Review Board, he was reinstated to service and rather promoted in due course, therefore, his retirement was not in the public interest, as shown in the impugned order. It was also contended that the Committees acted without guidelines from the Government and the yardstick adopted by it was not approved by the Government. It is also urged that no show‑cause notice was issued to the appellant before passing of the impugned order. It was further contended that the appellant was given a discriminatory treatment. The counsel for the appellant also urged that the case of appellant was deferred and could not have been considered afresh, for retirement. It was also urged that A. C. Rs for 1955‑57, 1965 were not available. There was no stoppage of increment in 1960 as shown in the assessment report. The order is mala fide.

2. The state respondent pleaded that the retirement was ordered, under the provisions of section 12, of Civil Servants Act, 1975. The Government, being the sole judge of necessity and expediency of the retirement of civil servant, in the public interest, as such, no exception can be taken to the order of retirement, before this Tribunal. The learned Additional Advocate‑General also maintained that the A. C. Rs' was not the criteria, provided in the Civil Servants Act rather review of A. C. Rs was one of the factors to be considered as per‑the guidelines issued to the Committees. It is also shown that the guidelines issued by the Government of Pakistan were adopted in Azad Kashmir. The Additional Advocate‑General, maintained that the retirement of certain officers, who had outlived their utility, was necessary to bring more efficient persons in service, by replacing the mediocres and it was also necessary to do so to provide employment to the efficient youth of the country. According to him the question of public interest could not be gone into by the Service Tribunal. He referred 1984 P L C (C.S.) 702 and P L C 1981 T C 84 (89) and two judgments of this Tribunal, entitled; Islam Mohammed v. Azad Kashmir Government and Zamir Ahmad v. Azad Kashmir Government.

3. We have also gone through the record and after hearing the arguments of the learned counsel for the parties, we feel that the following points need determination:

(i) Whether the case of appellant could not be considered for retire ment afresh, as he was cleared by the Review Board, after his earlier retirement, ordered in 1975

(ii) Whether the Committees constituted for the scrutiny of ‑the cases of the Government Servants completing 25 years, had no legal existence and its reports could not be considered by the Government

(iii) Whether the guidelines issued by the Central Government, were not adopted in Azad Kashmir, and if adopted, were not acted upon and whether only five years A. C. Rs could be considered for the assessment of Government Servants, suitability for retention in service

(iv) Whether the yardstick adopted by the Committee No. 2, was hot approved by the Government, and if so, whether the same renders the action of the Government as illegal

(v) Whether a show cause notice was necessary

(vi) Whether the appellant was given a discriminatory treatment as criteria adopted by the Committees, scrutinizing his case was different, than the criteria, adopted ‑by the other Committees, constituted, for the purpose

(vii) Whether the order is mala fide

(viii) Whether it is open to question before this Tribunal, the necessity or expediency of the public interest, if the Government has so declared in the retirement order

4. In respect of point No. (i), the counsel for the appellant, stated that Raja Mohammad Akram Khan was retired from service, in 1975, alongwith some other officers. The successor Government constituted a Review Board for looking into the matters of such retired officers. The Review Board, so constituted, held him suitable, for reinstatement and his re‑instatement was ordered, on the recommendation of the Chief Conservator Forest. Therefore, in view of this fact that once his case was reviewed after completion of 25 years of service, the second probe, for the suitability of the appellant, for retention in the service could not have been made. We cannot agree to this proposition, because a Government Servant is supposed to remain efficient, honest and suitable for service, during the whole of his service, till the age of superannuation and if at any time before that stage, he is found unsuitable for retention in service, the action can be taken under the appropriate law. The earlier review after 25 years service does not bar a second review of his service. We are supported in our view by the decision in the case of Maqbool Hussain Shah v. Central Board of Revenue, 1982, P L C 678, wherein it has been held at page 680:

"5. As for the plea that his case could not be reviewed twice, the law on the subject is quite clear. The relevant portion of section 13 of the Civil Servants Act reads as under:

A civil servant shall retire from service‑‑

(i) ........................................................

(ii) in any other case, on such date after he has completed twenty‑five years of service qualifying for pension or other retirement benefits as the competent authority may in the public interest, direct; or

From the wordings of this section, it is clear that civil servant, who has completed 25 years of qualifying service, can be retired under this section at any time after the completion of the said period and before reaching the age of superannuation."

This view is reaffirmed in 1983 P L C (C. S.) 1026, wherein it has been held that the competent authority is fully competent to scrutinize an officer's case after 25 years, qualifying service, at any time and as many occasions as it considers expedient in the public interest. At page 1027, it has been observed as under:‑

The competent authority is fully empowered to scrutinize the case under section 12 (ii) of the Punjab Civil Servants Act, 1974 at any time and on as many occasions as it considers expedient in the interest of public service.

5. Second objection is about the constitution of Committees for review of cases of officers. So far as the legal existence of the Committees is concerned, it may be noted that all the business of the Government is not to be carried out by the persons, who is head of the Government, in any state nor it is possible that all the functions entrusted under different laws are to be performed by the Head of the State or as the case may be, of the Government, be performed by him alone. If this plea of the appellant is accepted, then the entire administration has to be wiped off, which is not at all practicable in any country of the world. The person heading a State or a Government has to perform multifarious duties, towards, the proper administration and the welfare of the State. After all he has to associate with himself some people for his assistance and for this purpose, so many departments, organizations and autonomous bodies etc., are constituted to run the administration and discharge other function. Certain powers are delegated while some of the powers are exercised himself by the head of the Government in consultation with or with the assistance of subordinate agencies and it is in this context that Committees were constituted by the Government for the proper scrutiny of the cases of the Government servants, who were likely to complete 25 years' service, qualifying for pension by, 31‑12‑1979. Thus, the constitution of the Committees for the purpose was not in any way illegal.

6. If there was a provision in former subsection (ii) of section 12, of Civil Servants Act, 1976, regarding the constitution of the advisory committee, that will not be taken to mean that any Committee for the assistance of Government in discharge of its responsibilities under section 12 (iii) which after the amendment of the Act is 12 (ii) now, cannot be constituted. Such inter-petition of law, if accepted, will render the entire system of the administration an absurdity. The Government can regulate the transactions of its business and is also competent to delegate its powers, as is clear from the provisions embodied in section 12(5) of Azad Jammu and Kashmir Interim Constitution Act, 1974, which reads as follows:

'The Government may regulate the allocation and transaction of its business and may for the convenient transaction of that business delegate any of its functions to officers or authorities subordinate to it.'

The regulating of the allocation and transaction or the delegation of the business can extend to the delegation of all the powers for the final disposal of a case or it can be restricted to the partial completion of a transaction, examination of documents, working out the details etc. or any other matter, to any person or body or persons and reserving the final power of decision with itself. In the instant case, the competent authority has not delegated the powers of final disposal of the matter, which were vested in it under section 12(iii), but the task of detailed examination of the record was entrusted to the Committees and final action has been taken by the competent authority, itself. The Committee has thus done the spade work which facilitated the decision of the competent authority: The Government is also competent to frame rules, issue instructions and prescribe the procedure.

7. The assignment of such a work to a Committee does not mean that the competent authority had parted with its function. The purpose of constituting the Committees and of laying down the guidelines was that some uniform treatment be given to the officers, whose suitability or otherwise, for retention was to be assessed. The chances of mistake, favouritism, arbitrary decision etc.; were more if the entire work was undertaken by one person, which were sought to be eliminated by doing this job with the assistance of the Committees, comprising of a number of persons, who examined the record and summarized the rating of A.C.Rs. For the aforesaid reasons, no fault can be found with the work having done by the Committee for the assistance of the competent) authorities.

8. The second aspect of the constitution of Committees which has been attacked is that the Government has not applied its mind independently and has rather acted entirely on the recommendation of the Committee, therefore, view not having been formed independently cannot be made a basis for the retirement. We are afraid we cannot subscribe to this proposition. There is no presumption in law that if a report is submitted to a higher authority and any order is passed with reference to that report, it should be considered that such higher authority acted blindly or without application of mind. The presumption rather, would be that the higher authority had considered the report F and passed the order thereon with due diligence and with due regard to all the requirements of law, to be observed in a regular course of action. There is a presumption under Section 114 of the Evidence Act that all the official act are performed regularly and in accordance with the law. It is nowhere shown by evidence that mind was not applied by the Chief Executive, before the passing of the impugned orders. Simply a reference to the report in the order will not lead to the conclusion that the mind was not so applied.

9. The advocate for the appellant had cited P L D 1976 S C 208 to show that a report cannot be separated from the decision. We have gone through that authority and sorry to remark that the above authority has absolutely no bearing with the contention of the learned counsel for the appellant. The case cited was a rehabilitation case, wherein, some orders were passed by the Chief Settlement Commissioner, on 9th May, 1962 without any jurisdiction and subsequently another Chief Settlement Commissioner pointed out the illegality. The High Court had also in its decision, disregarded the decision of the Chief Settlement Commissioner, which was without jurisdiction. It was held that a P.T.D, issued, on the basis of a decision of a Chief Settlement Commissioner, which was without jurisdiction, was conferring no right or title on the holder of such P. T. D. It is very much clear that the facts of that cases have no relevancy with the present cases, because in the case cited by the counsel for the appellant, the order was absolutely without jurisdiction, while in the present case, the Committee has exercised no powers. The proceedings of Committee are a business, just for the assistance bf the Government. The Committee has not violated any law in existence, nor it had substituted itself for any other forum, which was competent to discharge those responsibilities, which have been taken upon itself by the Committee. It is also not a case that another statutory forum was under a duty under the law to evaluate the standings of the officers and jurisdiction of that authority has been usurped by the Committee. As discussed by us earlier, the Committee has just assisted the Government and the decision has been taken by the Government under its statutory powers, therefore, rendering assistance by the Committee to a superior lawful authority will not make the action of that superior authority, illegal or void. The objection therefore, fails.

10. The third point relates to the guidelines which were to be issued by the Government as stipulated in order relating to the constitution of the Committees. The appellant has himself placed on file a copy of the order Exh. P.B. It is a Government order issued by Services Department, vide No. S&GAD/G‑127/SO‑1/25982‑83/79, dated 12‑12‑1979 addressed to the Chairman, Review Committees Nos. I, II & III, wherein it has been indicated that guidelines prescribed in pare. 5 of the Cabinet Secretariat, Establishment letter No. 1/4/79, dated 15‑11‑1979, may be kept in view, with the only change that reference to the general election 1977 is to be construed to mean the general election of 1975 in Azad Kashmir. The aforesaid order also shows that the same has been issued with the approval of the Chief Executive. In view of this letter, there is no room left to hold that the guidelines required to be issued in view of para. 2 of the Government Notification No. S&GAD/G‑127/SO‑1/25920‑80/79, dated 12‑12‑1979 were not issued by the Government of Azad Kashmir. It is also established that the Government of Azad Kashmir had required the Committees, constituted in Azad Kashmir to follow the guidelines issued by the Government of Pakistan in this behalf. This objection, therefore, fails.

11. The fourth point pertaining to the yardsticks adopted by the Committee No. 2 in respect of the case of appellant. It has been argued by the counsel for the appellant that this Committee had framed its own yardsticks for evaluating the suitability of the officers scrutinized by it. Reference has been made to the proceedings of the Committee, wherein the Committee has stated to have formulated a criteria. Copies of the proceedings Exhs. P.C., P.C/1 and P.D. have been produced to show the criteria. It may be noted that the Exhs. P.C., P. C./1 and P.D. are the proceedings of the Committee No. 2, which show that cases of the Government servants have been reviewed for assessment of their suitability by this formula, wherein some numbers have been allocated for different ratings in A.C.Rs. The cases for the retirement were recommended on the basis of this criteria and the assessment report in each case was made indicating the rating in A.C.R. together with numbers, allocated, which was accepted by the Government. In view of these facts, it cannot be argued that Government had not accepted this criteria, evolved by the Committee. This criteria is rather more liberal and in favour of the Government Servants than one indicated in the guidelines of the Government of Pakistan adopted by the Government of Azad Kashmir. For instance persons, who have been generally assessed as average were not to be retained in light of the guidelines, provided and issued vide Government Notification, dated 12‑12‑1979, while the proceedings of the Committee show that it recommended the retirement of only such Government officials, whose rating was below 40 during the overall period of service. Orders of retirement passed on such recommendations, signified the acceptance of the Committee's yardsticks. Another aspect of this matter is that the law did not provide any particularly yardstick or criteria for assessment or evaluation of the Government servant, so that any departure from that prescribed formula would amount to illegality rendering the proceedings null and void. It is by no stretch of imagination unjust to relieve such officers of the duties, after they complete 25 years' service, qualifying for pension, whose overall rating of performance is below 40%. After all, the Government has certain duties and responsibilities, towards its own country. Why it should not replace the persons showing below 40 performance, by other efficient persons, who can prove more useful for the country. Thus, in our view the criteria adopted is not violative of the guidelines, issued by the Government, nor it is derogatory to the provisions of Civil Servants Act, 1976. This is only a detailed working of the Committee, within the framework prescribed by the Government.

12. The proceedings of the Committee were also challenged on the ground that only 5 years A . C . Rs were to be considered by the Committee, in light of the guidlines, issued by the Central Government. The Azad Jammu and Kashmir Government, while issuing instructions, for review, vide No. S&GAD/SO‑1/25982‑83/79, dated 12‑12‑1979 prescribed that guidelines indicated in para. 5, of the Cabinet Secretariat Establishment Division letter No. 1/4/79‑C.V., dated 15‑11‑1979, may be kept in view. We have gone through the contents of the aforesaid letter. There is no such direction that only five years A . C . Rs were to be kept in view. If at any time latter any such instruction was issued, subsequent to Azad Jammu and Kashmir Government's order, dated 12‑12‑1979, that will not apply to the case in hand.

13. Fifth point argued by the counsel for the appellant was that no show‑cause notice was issued to the appellant before passing of the impugned order.. The retirement order has been passed under the provisions of section 12(2) of the Civil Servant Act, 1976. For the convenience, the provisions of this section are reproduced below:‑

'12. Retirement from service.‑‑A civil servant shall retire from service: ‑

(i) ......................................................

(ii) in any other case, on such date, after he has completed twenty -five years of service qualifying for pension or other retirement benefits, as the competent authority may, in the public interest, direct;'

Perusal of the provisions shows that after completion of 25 years' service, qualifying for pension, the retirement of the Civil Servant is a retirement simpliciter and not a penalty and it is distinguishable from the compulsory retirement under the Efficiency and Discipline Rules. The provisions of section 12 empowers the competent authority to retire civil servant from service at any time after completion of 25 years' service, qualifying for pension, if the competent authority is of the opinion that the retirement of such Civil Servant is in the public interest. Thus, these provisions regulate the terms and conditions of a Civil Servant, therefore, no show‑cause notice is necessary nor by such retirement, the terms and conditions of a Civil Servant are violated. In the case of Ahmad Rabbani v. President of Pakistan 1976 P L C (C.S.T.) 140 it has been held at page 326 as under:‑

'It is, therefore, obvious that the retirement is neither 'compulsory' nor in the nature of a penalty. Consequently, the provisions of the Efficiency and Discipline Rules, 1973 are inapplicable. Not being in the nature of a penalty no show‑cause notice or opportunity of being heard is provided for prior to the exercise of the powers conferred by section 13 of the Civil Servants Act, 1973.

In another case, entitled Muhammad Rehman v. Secretary Railways PLJ 1976 Tr. C (Services) 329 it has been observed at p. 330 as under:‑‑

'It is, therefore, evident that the impugned Notification directing the retirement of the appellant, in accordance with the provision of clause (ii) of section 13 of the Civil Servants Act, 1973 (LXXI of 1973) is neither in compulsory or in the nature of a penalty. The order of retirement has admittedly been passed by the competent authority in exercise of the powers conferred by clause (ii) of section 13 of the Civil Servants Act, 1973. Consequently the provisions of Efficiency and Discipline Rules, 1973 are inapplicable. Not being in the nature of a penalty, no show‑cause notice or opportunity of being heard is necessary nor is it provided for prior to the exercise of the powers conferred by section 13 of the Civil Servants Act, 1973.

The same view has been upheld in 1976 P L C (C.S.) 58 and 140. In view of this state of law, it is held that no show‑cause notice was necessary in the case of the retirement of the appellant, which has been ordered in the public interest, under the provisions of section 12, of the Civil Servants Act, 1976.

14. Sixth point raised by the counsel for the appellant, is that the discriminatory treatment was given to the appellant, because the criteria adopted by the Committees, assessing the output of the appellant was different from that adopted by the other Committees, constituted for the purpose. Although no material has been placed on record to show that the method of assessing other officers and officials adopted by any other Committee was different, than one adopted by the Committee which assessed the output of the appellant, this ground is not valid even otherwise. For the various grades and classes of officers, the different qualifications and experiences are prescribed. The' officers reach these grades or the stages, of services at different stages of their lives. The officers observing the work and making remarks about the various officers is different classes are also of different standings. Therefore, it is not always possible to adopt one criteria for all classes of officials and officers. The output of officer of grade 19 and above was to be evaluated by Committee No.1, while in case of the other officers of grade 16 to 18, this work was assigned to Committee No.2 and for officials of grade 1 to 15, Departmental Committees, headed by Secretaries were constituted. Thus, there is no harm if different yardsticks were adopted by the Committees, in matter of different classes of officers. The question of discrimination would arise only if Committee No.2, which reviewed the case of the appellant, adopted a different yardsticks in his case than that adopted by it in the matter of other officers, assessed by it but this is not the case of the appellant.

15. It may also be noted that classification can also be made in matter of different grades of officers in the matter of their retention if the circumstances, so require, as the different qualifications are prescribed for different grades of officials and in view of the expediency or the necessity of officers in a particular grade, the rating of output for retention can also be lowered down, if the competent authority feels that suitable substitute may not be available for appointment to a particular class of officers, in view of the nature of the duties to be performed by that class of officers. The discrimination under the provisions of Article 4, Clause 15, is different from what has been alleged by the appellant, which is just a classification and not the discrimination. No law has been framed for giving a different treatment to the appellant than other officers of his category or grade, nor any protection of, law has been refused to the appellant, which was given to the others. The reasonable classification, made even in the procedural law relating to enquiry has been upheld by this Tribunal, in the case Hanif Akhtar Ranja v. Azad Government of the State of Jammu and Kashmir, 1983 PLC 932.

16. We have also looked into the A.C.Rs The A.C.Rs for the years 1955 to 1957 are available and not missing, as alleged. The appellant has been rated good from 1954 to 1957 although. the reports are not on the prescribed form. From years 1958 to 1973 for sixteen years he could not get a single good report, rather he was rated poor for 1964 below average for 1965. He got adverse remarks by C.C.F. countersigning officer for 1967, 68, 69 and 70. Only one A.C.R. for 1974 was not available. For all the remaining years, he got the average report and even for 1979 on his reinstatement. He was attributed a number of irregularities and was also censured. The overall impact of his A.C.Rs is thus very unhappy, which is worst than that assessed by the Committee.

17. The last point argued on behalf of the appellant, was that order is male fide. No instance of malice has been brought on record, nor it has in any way shown that any of the persons associated with the proceedings, leading to the retirement of the appellant was inimical to the appellant, or had any interest in the retirement of the appellant. On the other hand, it is clear that the appellant was re‑instated and also promoted to the B.S.18 by the same Government, which later on retired him. No malice without any material can be attributed to that Government. Hence the plea of male fide in absence of any record, cannot be accepted, rather the A.C.Rs justify the action taken by the Government.

18. The Additional Advocate‑General, representing the Government, had submitted that the action of the Government, could not be scrutinized, by the Service Tribunal, as the Government was the sole judge of the public interest and any action, taken by the Government, under section 12, of the Civil Servants Act, cannot be challenged before any authority. We cannot agree to this suggestion of the Additional Advocate‑General, for its application to all the cases, because any illegal or male fide action taken by the Government, cannot be immuned from the scrutiny of this Tribunal. The actions, which are male fide or which are not within the four corners of the law, can be challenged before the Tribunal and this Tribunal has all the powers to scrutinize such actions, which are objectionable, in view of the legal provisions. For instance, if it is not shown that the retirement was, made in the public interest or the material of a case shows that the performance of an officer has been good throughout his career of service, and an abrupt order of retirement is passed in such a case, on the basis of misrepresentations which probably may not be justified and it can be set aside by the Tribunal. If it was found that the Government violated its own evolved formula or criteria or there was misrepresentations of facts that brought a case within the mischief of the formula, which on the basis of correct statement of facts would have been outside the scope of such a formula, the Tribunal can also interfere in such cases, otherwise, the Tribunal is not the Judge of the 'Public Interest'. In the case, before us, no such instance has been shown. The only factor that the A.C.R. of one year was not available, is not the sufficient ground to interfere with the discretionary powers of the Government, which have been exercised on the basis of the whole record available with it. It is nowhere pleaded that any record, more favourable to the appellant was available but withheld or it was misrepresented while reviewing his case.

17. In view of the above observations, an order, which is in accordance with the provisions of section 12 of Civil Servants Act, 1976, cannot be set aside. This Tribunal has already dismissed two appeals namely; Islam Muhammad v. Azad Government and Muhammad Zamir Khan, v. Azad Government, against the retirement orders, passed in the cases of such officers, who have rendered 25 years' service, qualifying for pension.

Upshot of this discussion is that the appeal merits dismissal. We make no order as to the costs.

A.E.

Anneal dismissed.

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