Sheikh ABDUL HAMID vs ISLAMIC REPUBLIC OF PAKISTAN THROUGH SECRETARY, ESTABLISHMENT DIVISION
This petition for leave to appeal challenges an order of retirement from service upon the completion of 25 years of service. The petitioner contended that the retirement order was invalid because it was issued by the President rather than the Establishment Secretary, whom the petitioner argued was the competent authority under the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973. The core legal question was whether the President, as the delegator of power, could validly exercise the authority to retire a civil servant that had been delegated to the Establishment Secretary. The Supreme Court dismissed the petition, holding that the petitioner's failure to raise this factual objection before the Service Tribunal was fatal to his case. Furthermore, the Court clarified that even if the issue were considered on merits, the President, having delegated the power to appoint to the Establishment Secretary under section 25 of the Civil Servants Act, 1973, retained the authority to exercise that power himself. Consequently, no prejudice was caused to the petitioner, and the retirement order remained valid.
- Can a delegator of power validly exercise the authority that has been delegated to a subordinate?
- Is a party permitted to raise a new factual objection in the Supreme Court that was not agitated before the Service Tribunal?
- Does the President retain the power to retire a civil servant after delegating appointment powers to the Establishment Secretary?
- Rule 6, Civil Servants (Appointment, Promotion and Transfer) Rules, 1973
- Section 13(ii), Civil Servants Act, 1973
- Section 25, Civil Servants Act, 1973
- Article 13, Provisional Constitution Order, 1981
ORDER
1. MUHAMMAD HALEEM, ACTG. C. J.-In this petition, leave is sought on the ground that the .Petitioner was not retired on his completion of 25 years of service by a competent authority who, in his case, was the Establish--ment Secretary and not the President. In this connection he pointed out the re- enacted rule 6 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, wherein the Establishment Secretary was competent to make appointments of the Officers between Grades 17 and 19; and for those above these Grades, it was the President. As such, under section 13(ii) of the Civil Servants Act, 1973, it was the Establishment Secretary who could pass the impugned order.
2. This question was not agitated before the Service Tribunal, Islamabad, for its opinion, in the context of the objection, which could have been raised against it by the respondent and enquired into on the factual side. This omission appears to us to be fatal; but even otherwise we would like to point out that the power to appoint was delegated to the Establishment'. Secretary in rule 6 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, by the President in exercise of the powers conferred on him by section 25 of the Civil Servants Act, 1973. Therefore, if such power was exercised by the President himself, as a delegator, no prejudice could be said to have occasioned for the appellant had already completed 25 years of service which thus provided a foundation for the exercise of such power.
3. Accordingly, this petition has no merit and is dismissed as being in competent under Article 13 of the Provisional Constitution Order, 1981.
Cited by 1 case
- MUHAMMAD ZAMIR KHAN vs AZAD GOVERNMENT OF THE STATE OF JAMMU 1986 PLC (C.S.) 1044