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Appeal No. 163 of 1981, decided on 21st November, 1985.

‑‑‑S. 12(ii)‑‑Retirement after completion of 25 years' service qualifying for pension‑‑Recommendations of Review Committee‑‑Do not affect validity of order of competent authority‑‑Competent authority not debarred to get assistance of any subordinate agency for due discharge of its duties.

‑‑‑S. 12(ii)‑‑Retirement after completion of 25 years' service qualifying for pension‑‑Show‑cause notice‑‑Not required‑‑Competent authority not bound to associate civil servant concerned or anybody else in determination of public interest.

‑‑‑S. 12(ii)‑‑Azad Jammu and Kashmir Service Tribunals Act, 1975, S.4‑‑Retirement after completion of 25 years' service qualifying for pension‑‑Jurisdiction of Tribunal‑‑Whether Tribunal can go into legality or propriety of order of competent authority‑‑Competent authority sole judge of expediency or necessity of passing order‑‑Competent authority when lays down a yardstick or criteria or evolves a formula for determination of suitability of persons in public interest same should be followed strictly to avoid discrimination‑‑Review Committee deviating from such yardstick and formula in presenting true facts before competent authority‑‑Action of Committee as well as of competent authority for such misrepresentation becomes mala fide even if no malice or bad intention appears in mind of Committee‑‑Consequently action of competent authority in violation of its own formula would lead to conclusion that competent authority in fact never intended such action and same will stand on same footing as a mala fide action' or action without jurisdiction‑‑Matter would fall within jurisdiction of Tribunal‑‑Review Committee erroneously assessing civil servant's service record contrary to laid down formula of assigning marks on basis of A.C.Rs.‑‑Order passed by competent authority on basis of such misrepresented facts and assessment by Committee, in circumstances, set aside by Tribunal.

1983 P L C 360 rel.

Khawaja Muhammad Saeed for Appellant.

Additional Advocate‑General for the State.

‑‑This appeal was in the first instance, dismissed by the Service Tribunal, on the ground of limitation but on appeal, the Supreme Court declared that it was within time and has been received back for decision on merit. Through this appeal, the appellant has assailed the orders of the Government on the ground that the order was passed on the recommendations of a Review Committee, which had no legal existence and that the criteria, adopted by it was not approved, by the Government. The order was passed without giving him the opportunity of being heard. It was also indicated that the Review Petition, presented by him against the impugned order, had not been decided by the Government. The learned counsel for the respondent, contended that the order of retirement had been passed under the provisions of section 12 of Civil Servants Act, 1975 and no exception can be taken to such an order, as the Government was the sold judge of the public interest.

2. We also heard the learned counsel for the parties and perused the record. We, therefore, feel that the following points need determination, by the Tribunal, in light of the record and the oral arguments of the learned counsel, in this case:‑‑

(i) Whether the Review Committee, constituted by the Government, had no legal existence and what is its effect on the impugned order

(ii) Whether no yardstick was prescribed by the Government for the review of the cases and the criteria adopted by the Committee was not approved, by the Government and whether this fact renders the action of the Government null and void

(iii) Whether the issuance of notice to the appellant was necessary, before the passing of the impugned order

(iv) Whether the Committee has violated its own criteria for the review of the appellant, which has resulted in the misrepresentation of the fact, before the competent authority and thus the action of the authority is illegal or void

(v) Whether the provisions of section 12 of Civil Servants Act, are violative of the tenets of Islam as enshrined in Holy Qur'an and Sunnah

(vi) Whether the Tribunal is debarred from going into the legality or the propriety of the order, passed by the Government, under section 12 of the Civil Servants Act

3. So for as, the points Nos. (i) and (ii), reflected above are) concerned, we have already delivered a detailed judgment, on these) points, in the case entitled; Raja Muhammad Akram Khar. v. Azad; Government, whereby we held that the recommendations of Committee or any proceedings of Committee, do not affect the validity of an order of the competent authority, passed by it, under section 12 of the Civil Servants Act. The Review Committee had not exercised any jurisdiction, rather it has only assisted the competent authority in performance of its functions and there is no legal bar in the way of competent authority to get the assistance from any subordinate agency for the due discharge of its duties.

4. In the matter of issuance of notice, we have already expressed our view in the same case that no such show‑cause notice is required, before the passing of retirement order of a civil servant, who has completed 25 years service, qualifying for pension. For the convenience, we reproduce hereunder the contents of section 12, of the aforesaid act, as amended up to the date of passing of the impugned order:

"12. Retirement from service.‑‑A civil servant shall retire from service

(i) in the case of a person holding the post of Secretary to Government or an equivalent or higher post on such date, as the competent authority may in the public interest, direct;

(ii) in the case of a person holding a post lower than the post of Secretary to Government on such date, as the Government may, in the public interest, in consultation with the Advisory Committee as may be constituted in the prescribed manner for the purpose, direct;

(iii) 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, and

(iv) where no direction is given under clause (i) or as the case may be, under clauses (ii) and (iii) on the completion of the sixtieth year of his age."

A plain reading of subsection (iv) which after the amendment of this Act, is subsection (iii) now, shows that a civil servant retires on the completion of the sixtieth year of his age, only if no order is passed in his case under any of the foregoing provisions of section 12. Thus, combined reading of subsection (iii), now subsection (ii) alongwith subsection (iv) now subsection (iii), shows that an order of retirement, could be passed in the public interest, in the matter of a civil servant, at any time, after he has completed 25 years' service, qualifying for pension. The aforesaid provisions of law, by no means warrant the issuance of any show‑cause, notice to the appellant and in no way it is incumbent on the competent authority to associate the appellant or anybody else in determination of the public interest.

5. The next point relates to the violation of criteria or the yardsticks by the Review Committee. We have gone through Exh. P.D. showing the yardstick laid by the Government of Pakistan, in the matter of review of the Officers, which has been adopted by the Government of Azad Kashmir, vide Exh. P.E. and we also looked into the proceedings of the Committee, EXh. P.F.

6. Para. 2 of Exh. P.F. is reproduced below:‑

7. Now we come to the assessment, made by she Review Committee, in respect of the A.C.Rs., of the appellant. It has been noticed that the Review Committee in its report showed the A.C.Rs. of the appellant,

for the years 1959, 1960 1961, 1963, 1966 and 1973 as average, which is against the facts. Mr. M.A. Kayani, the Reporting Officer, rated the appellant Grade 'B' for the year 1961, which was concurred by the next higher officer. Another report also appears for the same year, which is signed by Mr. Fazal Hussain, which shows also the class of the report as 'B'. There are no adverse remarks for this year but the Review Committee changed the rating from the satisfactory to the average and awarded him three marks, whereas about 'B' grade rating for the year 1962 he was awarded 6 marks. Similarly change of rating from Grade 'B' to average for 1959, 1960 has been brought about against the facts. Thus, the action of the Review Committee is uncalled for. For the years 1963 and 1966, the rating has been also changed from satisfactory to average. For the year 1973, he was rated 'good' by the Reporting Officer as well as by the Deputy Inspector- General Police, but the Committee changed the same to average for the assessment. The Committee had allowed five marks for 'satisfactory' rating, but for the aforesaid six years due to the change of rating, the appellant was deprived of 13 marks. It is also worth‑noting that for the 'satisfactory' no separate marking was assigned in the critaria as per its proceedings although the Committee regarded 'satisfactory' as above average, which could have been considered as equivalent to 'good' rating which finds a place in that critaria. Thus, the appellant would have been entitled to 6 marks for each of the aforesaid years which means that he has been deprived of the 16 marks on the basis of the original rating given by the responding/countersigning Officers for these 6 years. In respect of year 1974, there was no rating by the Reporting Officer, in the relevant column which is No. 22 in that pro forma but the Deputy Inspector‑General of Police rated him below average as countersigning Officer. According to the formula adopted by the Committee, only three marks could have been deducted for the below average rating, but the Committee treating the same as adverse had wrongly deducted 10 marks. Thus, he was again deprived of 7 marks on account of the accelerated deduction of 10 marks. In view of these facts, the marks to be awarded on the basis of the A.C.Rs. should have been at least 109 and not 89, as reported by the Committee, and if the satisfactory rating is acquated with 'good' for the reasons indicated hereinbefore, the total marks would have been 112. In both the cases, it becomes more than 40% which is required for the retention as per critaria evolved by the Review Committee.

8. An important factor, which again needs attention, whether the Committee had the powers to change the rating for the purpose of assessment The rating of the performance of the officers have been made, by those officers, under whom the appellant worked in his official capacity and they were better judge of his work than the Committee. Even the yard stick laid by the Government of Pakistan and adopted by the Government of Azad Jammu and Kashmir, does not empower they Committee to change the rating, rather the reading of the instructions' on; the subject will indicate that such rating is to be kept in view, which appears on the record and nowhere it is prescribed that the Committee should substitute the original rating by its own assessment. In fact, the assessment is to be made on the basis of the rating, which already stands incorporated in the A.C.Rs.

9. The second aspect is that in view of the instructions, officers generally rated 'good' were to be retained and the officers rated generally 'average' were not to be retained. We have in all 24 years A.C.Rs before us in respect of the appellant, for the period considered by the Review Committee. Amongst these, he was rated 'average' for 6 years viz. 1953, 1954, 1969, 1976, 197;, 1978 and below average for 1974. Out of the remaining 17 years, he was rated 'good' for 2 years, namely for 1973 and 1975, and 'very good' for 1972. He was rated as Grade 'B' for the years 1957 to 1962 and 'satisfactory' for the remaining 8 years i.e., for 1955, 1963 to 1968, 1970. The 'Grade B' is equivalent to 'good'. The 'satisfactory', 'yes' or 'no' could be the answer to the column No.13 of A.C.R forms because the wording of this column of the form is as under:‑

13. In the output of his work satisfactory and up to the mark It is attested and verified by the recommending officer.,

There is no other column for rating the general assessment of the officer. Thus, 'satisfactory' is equivalent to 'good' or 'very good', for the years, this type of form has been used. In case of appellant, such form is used from 1963 to 1968 and 1970, so, his rating shown as 'satisfactory' is to be treated as 'good' for these years. Hence the overall rating of the appellant is 'good' and by no means 'average'. In absence of proper forms if incorrect words have been used by the reporting officer, it should not serve as deterimental to the interest of the appellant. As per record, he was rated 'good' for the year 1979, but this year has not been taken into consideration. In view of the instructions, the appellant deserved the retention but the retirement has been brought about by the report of the Committee, which for the misrepresentation of the facts as indicated above, has deprived the appellant of certain marks, as well as of the exact rating, which was not brought on the summary, submitted‑ to the competent authority.

10. So for as the contention that provisions of section 12, of Civil Servants Act are violative of the injunction of Islam, is concerned, it is unnecessary to determine this point, in the present case, in view of the findings, which we are ultimately giving in this case.

11. The last point very much emphasised by the learned Additional Advocate‑General, is that this Tribunal is not competent to go into the legality or the propriety of the order passed, under section 12, for the retirement of an officer. In principle, we do not dispute this proposition that the competent authority is the sole judge of the expdiency or the necessity of passing an order under this section, and we have already held that nobody can have a claim for association or any audience in the matter of determination of Public Interest, nevertheless, it is necessary that when the competent authority or the Government, or any Committee empowered in this behalf lays down a yard‑stick or a critaria or evolves a formula, for the determination of suitability of person, in the public interest, it becomes necessary that for giving uniform treatment, and for avoiding any discrimination, that formula or critaria laid down' by the Government, or as the case may be, by the Committee should be strictly followed. If the Committee constituted for review of cases, deviated from the same in representing the true facts' before the competent authority, the action of Committee, as well as the action of the competent authority for such misrepresentation becomes mala fide, even if no malice or bad intention appears in the mind of the Committee. Consequently, the action of competent authority, passed on the misrepresentation of facts and in violation of its own instructions, will lead to the conclusion that the competent authority in fact never intended such action, which but for the misrepresentation has been taken by it. Thus, such action stands at the same footing as a mala fide action or an action without jurisdiction. In such situation, there is no bar for this Tribunal, to scrutinize the matter. We are supported in our view by 1983 P L C 360, where a retirement order of a Civil Servant has been, set aside by the Federal Service Tribunal on the plea that there has been wrong appraisal of the case of the Civil Servant concerned. Since this Tribunal on appeal has the powers to set aside an order or modify the orders appeal against, it is lawful for it to recall any order of the competent authority, for which it feels that it was not in accordance with the instructions laid down by the Government /competent authority and it would have not been the intention of the competent authority to pass such order, which but for the misrepresentation of facts has been actually passed.

12. Under section 12 of Civil Servants Act, the competent authority is not required to assign any reason for the retirement of a Civil Servant in the public interest, who has completed 25 years service qualifying for pension and it is also not necessary to lay down a criteria nor it is necessary that any critaria laid down at any particular stage should apply for all the times to come. The Government has a discretion to deal with any case in any manner if likes. But if the case of a Civil Servant is dealt with any way different than others, the record should show that the competent authority in act intended to deal that case in a different way and formulated its opinion in the case being conscious of this aspect of the case. In the case of the misrepresentation of fact, the true picture being before the authority could not be presumed, therefore, order passed on the basis of misrepresentation suffers inherant defect as pointed out in the earlier paragraphs of this judgment.

13. The upshot of the above discussion is that the appeal 16 accepted and order, dated 27‑12‑1980 retiring the appellant, from service is set aside. The appellant is reinstated to service from the date of retirement with all the back benefits, admissible under the rules. This order will not bar any action by the Government, if desired to be taken in the case of the appellant after full consideration of the facts of the case.

A. E.

Appeal accepted.

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