ABDUL MAJEED vs GOVERNMENT OF PAKISTAN, through Secretary, Establishment Division and otherss

' MUHAMMAD NAWAZ ABBASI, J.--- This petition under Article 212(3) of the Constitution has been directed against the judgment, dated 20-6-2003 passed by Federal Service Tribunal whereby the appeal filed by the petitioner against the order of his retirement under section 13(1)(i) of the Civil Servants Act, 1973 passed by the competent authority was dismissed.

2. The relevant facts in the background giving rise to this petition are that a show-cause notice under section 13(1)(i) of the Civil Servants Act, 1973 was issued to the petitioner on 20-11-2001 for retirement on the grounds, firstly that he was censured on 18-1-1973 for disobedience of the order of Garrison Engineer and secondly he was awarded punishment of withholding of one increment for one year in 1979 for failure to supervise the work efficiently. The petitioner submitted reply to the show-cause notice and the competent authority having considered his reply in the light of relevant provisions, passed the order of his retirement which was communicated to him vide letter, dated 9-4-2002. The petitioner having exhausted the departmental remedy filed an appeal before Federal Service Tribunal which was dismissed by the Tribunal vides impugned judgment.

3. Learned counsel for the petitioner has contended that penalty of censure was awarded to the petitioner in 1973, whereas the order of stoppage of one increment passed in 1979 was not implemented and after that the petitioner has satisfactorily rendered about 23 years of service, therefore, the penalties referred above would not provide a valid ground for invoking the provisions of section 13(1)(i) of the Civil Servants Act, 1973 at this belated stage and argued that in absence of a strong and valid ground, based on sufficient material, exercise of power under section 13(1)(i) of the Civil Servants Act, 1973 was not justified. The learned Deputy Attorney-General on the other hand, has argued that the review committee headed by Secretary Ministry of Defence having made scrutiny of the service record of the petitioner considered it proper to retire him from service in the public interest and the order passed by the competent authority under above provision of law in the public interest, would not be questionable.

4. The censure is minor penalty of the sort of warning which may not have a serious stigma affecting the service career of a person and in any case the single penalty of censure cannot be considered sufficient for invoking the provisions of section 13(1)(i) of the Civil Servants Act, 1973. The departmental representative present in Court has informed us that the order of withholding of one increment of the petitioner, passed in 1979 was not given effect and consequently, it would be deemed that the penalty of stoppage of one increment was waived. In the light of the instructions contained in the guidelines issued by the Establishment Division, two or more penalties imposed upon a civil servant under Government Servants (E&D) Rules, 1973 may provide a ground for his retirement under section 13(1)(i) of the Civil Servants Act, 1973 whereas in the present case, the petitioner was imposed only one penalty of censure and the competent authority, in departure to the instructions of Establishment Division, proceeded to retire him from service. The competent authority may, subject to the fulfillment of the criteria laid down by the Establishment Division, invoke this special provision but the discretionary power provided therein must not be exercised without sufficient material and valid ground. The discretion of the competent authority under this provision of law being not absolute, must not be exercised beyond the wisdom of the legislature and deprive a person from the legitimate right of service. The purpose is that if further retention of a person in service is not useful or is not in the public interest, the competent authority may, in the light of the criteria laid down by the Establishment Division, exercise this power but the retirement of a person under this provision, just for the sake of exercise of discretion, is not in the spirit and wisdom of law. In the present case, except one penalty of censure, the petitioner had a clean service record and there was no adverse entry or remarks in his ACRs in respect of his responsibility, integrity, reliability, output of work and behaviour with the public or his conduct as civil servant which may bring his case within the ambit of section 13(1)(b)(i) of Civil Servants Act, 1973. The retirement in the normal circumstances may not call for interference but the retirement of a person on whimsical grounds amount to deprive him from the legitimate right of earning which is part of fundamental rights to live in terms of Article 9 of the Constitution and is definitely not in the public interest.

5. In the light of foregoing reasons, we convert this petition into an appeal and allow the same with direction that appellant shall be reinstated in service but the claim for payment of salary for the intervening period will be subject to the result of the inquiry to be held by the competent authority to ascertain as to whether he was jobless or has been engaged in any service or business. The appellant in support of his claim for payment of salaries will furnish an affidavit and the competent authority in the light of relevant material, will determine the question regarding his entitlement for the payment of salaries for the period during which he remained out of service. This appeal is accordingly allowed with no order as to cost.