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1987 PLC (CS) 566

M.S. SIDDIQI

V/S

PAKISTAN


Constitution of Pakistan (1973), Articles 48(3) & 99(2) —

Civil Servants act (LXXI of 1973), Section 13 — Retirement — Whether order of retirement to be passed in writing by President — All orders, held, need not be passed in writing by President — It would be sufficient to show that order was passed on direction of President — Order of retirement in case of appellant having approval of President, it was immaterial whether he signed it or conveyed it to Principal Secretary who recorded note of approval by President — Order would be deemed to have been passed by President in circumstances. Mian Munawaruddin v. Federation of Pakistan PLD 1979 Lahore 669. Ref. PLD 1964 SC 302; 1980 SCMR 87 and PLD 1959 Karachi 102. Rel.

Articles 241 & 242 — Government Servants (Efficiency and Discipline) Rules,1973, Rule 4 — Retirement — Appellant contending that he could not be retired under Article 178 of Constitution in face of serious charges of misconduct, indiscipline, inefficiency, immorality and gross irregularity when some proceedings against him were also contemplated and a probe under Government Servants (Efficiency and Discipline) rules was required in his case and he was entitled to an opportunity of being heard in person under Constitutional guarantee — Order of retirement by itself not attaching any stigma — Order, held, was valid even if made on account of some allegations against him — Contention repelled. Ghulam Sarwar v. Pakistan PLD 1962 SC 142; Syed Mir Muhammad v. N.W.F.P. Government PLD 1981 SC 176; Nurul Hasan v. Federation of Pakistan PLD 1956 SC 331; Pershsotam Lal Dhingra v. Union of India PLD 1958 SC (Ind) 217; Principal, Pine Hills College v. Moharram Ali 1986 SCMR 1264. Ref. WAPDA v. Saeed
Ahmad 1986 SCMR 725.Ref.

Articles 241 & 242 — Retirement — On completion of 25 years’ service qualifying for pension and other retirement benefits appellant challenged order of his retirement under Article 178 of 1962 Constitution on ground that he had not completed 25 years service when impugned order was passed — Appellant contending that period of his service in Home Department plus period he served in Emergency Cadre did not qualify for pension and other benefits and his service from date of regular appointment as officer of Pakistan Military Accounts Service could only be counted as there was a break in service when he worked in Emergency basis on contract — Contention, held, was not tenable — Initially appellant was taken on contracts in Emergency Cadre but contract was not finalised because he was a permanent Assistant in Home Department and his appointment in Emergency Cadre was in nature of deputation — He also got his pay fixed in PMAS with reference to pay ahe was entitled to draw as Assistant in Home Department and his period spent in Emergency Cadre having been trated and counted as period qualifying for pension, he could not say that said period could not be counted — When whole of his service was taken into account it was not less than 25 years and, therefore, qualified him for pension. Nasir Ahmad v. Secretary of Information 1984 SCMR 1367; Province of West Pakistan v. Nazir Hussain PLD 1960 SC 130; Secretary to the Government of Punjab, Education Department v. Noor Muhammad Khan PLD 1984 SC 80; Muhammad Afzal v. Government of Punjab 1982 SCMR 408; Postmaster General, Eastern Circle (EP) Dacca v. Muhammad Hashim PLD 1978 SC 61; Pakistan v. Liaquat Ali Khan PLD 1959 SC 37; A.M. Khan Leghari v. Government of Pakistan PLD 1965 Lahore 214 and Karamutullah Khan v. Government of West Pakistan PLD 1964 Lahore 881. Ref.

Article 241 & 242 — Provisional Constitution Order (1 of 1981), Article 13(1) — Appellant challenging order of his retirement passed under Article 178(4)(a) of the Constitution 1962 on grounds that order was not passed by competent authority and that he had not by then completed 25 years’ service qualifying for pension or other retiring benefits — Such grounds were not raised when his appeal agaisnt order of retirement was filed and only taken in amended appeal obviously to avoid objection of abatement as a result of enforcement of Provisional Constitution Order, 1981 — Held, appellant could nto challenge impugned order on grounds not raised before.

Articles 241 & 242 — Retirement — Malafides — Appellant, retired under Article 178 of 1962 Constitution, raising question of malafides of functionaries of Government — Financial iregularities and moral aspect of appellant in fact resulting in his retirement from service and no malafides established on record to make order of retirement ilelgal as alleged by appellant — Entire record of appellant was made available to C.P.S.Commission who agreed with proposal of Government that appellant be retired from service under Article 178(4)(a) of 1962 Constitution — Appellant had in fact become a problem for department and his retirement was rightly order in public iterest — Contentions raised by appellant repelled and his appeal against order of retirement was dismissed in circumstances.

Articles 241 & 242 — Retirement — Provision under Article 178 of 1962 Constitution, held, gave a plenary and unfettred power to competent authority for retiring a person when he completed 25 years’ service qualifying for pension or other retirement benefits and that power was not abridged or qualified by any consideration — Order under Articles 241 & 242 of 1973 Constitution could be passed whether there were allegations or no allegations against Government servant. Brij Behari Lal v. High Court of Madhya Pradesh 1982 PSC 746 and Swami Saran Saksena v. State of Utter Pradesh 1983 PSC 51. Ref. [1987 PLC (C.S) 566]

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