MUHAMMAD ASLAM KHAN Versus GOVERNMENT OF PUNJAB

ORDER

SARDAR MUHAMMAD IQBAL, J. ‑Muhammad Aslam Khan, appellant herein, who belonged to the Provincial Forest Service Class II, was a Senior Instructor In the West Pakistan Forest School Ghoragali (Murree) when he received a teleprinter message from the Chief Conservator of Forests that since he was to attain the age of fifty‑five on the 30th of June 1968, he should proceed on leave preparatory to retirement. Accordingly, the appellant proceeded on leave preparatory to retirement with effect from the 29th of June 1968. When the appellant had proceeded on leave, the matter whether or not he should be granted further extension in service beyond the age of fifty‑five was considered by the authorities concerned. It was enquired from him if he was interested in getting extension in service. He showed his willingness to continue beyond the age of fifty‑five. Consequently, the Secretary to the Government of West Pakistan, Agriculture Department, as the competent authority in respect of West Pakistan Forest Service Class 11, by Notification No. S. O. F. T. I‑1(2)/68, dated the 17th of August 1968, granted extension in the service of the appellant for a period of one year from the Ist of July 1968 to the 30th of June 1969. The appellant was recalled to duty with effect from the 28th of August 1968. The intervening period, viz., from 29th of June to 27th August 1968, when he remained on leave preparatory to retirement was converted into leave on average pay by order dated the 17th of September 1968, of the Chief Conservator of Forests, Lahore Region, Lahore. No extension was, however, granted to the appellant after the 30th of June 1969. The appellant filed an appeal on the 8th of July 1969 before the Chief Secretary to the Government of West Pakistan and sent two reminders to him, but of no avail. He also approached the Governor of the Province with a petition dated the 4th of July 1970, and having failed to obtain an order favourable to him, served, through counsel, a notice dated the 8th of October 1970, upon the Government, but despite certain reminders, it is alleged, the same was not responded to at all. He then filed Writ Petition No. 1345‑S of 1971, which was dismissed in limine by our learned brother Nasim Hassan Shah, J., on the 19th of October 1971. This is the Letters Patent Appeal.

2. Learned counsel contends that since no order of appellant's retirement after the expiry of the period of one year for which his service was extended after completing the age of fifty‑five years was passed by any competent authority, it should be deemed that his service had been extended and he still continues in service. In order to appreciate this contention, it is necessary to reproduce clauses (4) and (5) of Article 178 of the Constitution of the Islamic Republic of Pakistan, 1962, which are in the following terms:‑

"(4) A person whose terms and conditions of service are governed by Article 127 or Article 154 or Article 176 (not being a member of the armed forces of Pakistan) or para graph (b) of Article 181 shall, notwithstanding anything con tained in this Constitution or in any law or in the terms and conditions of his service, retire from service‑

(a) 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 and subject to the provisions of Article 185 or, as the case may be, Article 186, direct ; or

(b) if he has completed before, or completes within a period .of six months from, the commencement of the Constitution (Sixth Amendment) Act, 1966, the fifty‑fifth year of his age, on such date after such completion, being a date within the said period, as the competent authority may direct, or in the absence of such direction, on the expiry of the said period, or on the completion of the sixtieth year of his age, whichever be earlier; or

(c) in any other case, on the completion of the fifty‑fith year of his age.

(5) Notwithstanding anything contained in paragraph (b) or paragraph (c) of clause (4), the competent authority may extend the service of a person beyond the date of his retirement under that paragraph for such period as it may deem fit and any such extension shall be subject to such conditions, if any, as may be prescribed by rules made in that behalf by the authority competent to prescribe the terms and conditions of service of such person under clause (2)."

Admittedly, the case of the appellant is covered neither by sub‑clause (a) nor by sub‑clause (b) of clause (4) of Article 178 of the Constitution. His case falls under sub‑clause (c) of clause (4) ibid, according to which an employee has to retire from service on the completion of fifty‑fifth year of his age. Clause (5) of the Article enables the competent authority to extend the service of a person beyond the date of his retirement for such period as it may deem fit and subject to such conditions A as may be prescribed by rules made by the authority competent to prescribe the terms and conditions of service of such person. But under this clause it is the pleasure of the competent authority alone whether or not to grant further extension in service of a Government employee. If the competent authority does no extend the service of an employee beyond the age of superannuation, that ends the matter. Moreover, an employee since on reaching the age of superannuation retires automatically, it Is not incumbent upon the competent authority to record an order to that effect. A perusal of the Article itself would reveal that whereas the retirement of an employee on completing the age of superannuation is to take effect automatically, extension beyond that date is within the discretion of the competent authority. In the order dated the 17th of August 1968, it was clearly stated that the appellant's service was extended from 1st of July 1968 to 30th of June 1969. The appellant retired automatically on the expiry of the term of extension. Le., with effect from the 30th of June 1969, because no order had been passed granting him any further extension in service.

3. It is next argued that the competent authority was guilty of violation of the instructions contained in letter No. S. O. IV (S&GAD)4‑7/66 (Policy), dated the 5th of July 1968, issued by the Additional Chief Secretary to Government of West Pakistan, enjoining upon the Administrative Secretaries to refer cases to the Advisory Committee concerned at least six months before the date of retirement of a person from Government service, inasmuch as the appellant's case was not referred to any Advisory Committee. The argument is fallacious because it is admitted by the appellant himself in paragraph 2 of his writ petition that the Advisory Committee in his case had recommended extension for one year only. The competent authority was under no obligation to have approached the Advisory Committee to seek its advice once again. Moreover, if the competent authority decided not to grant any extension in his case after the expiry of the extended period of one year, it did not violate any provision of law which could warrant an interference by this Court under Article 98 of the Constitution. The contention is devoid of force.

4. We also do not find any merit in the contention of the appellant that since the competent authority violated the Government's directive dated the 19th of March 1968 that if an officer was not going to be retained in service beyond the date of his superannuation the fact of his retirement should be in the Gazette just as his appointment, transfer, leave etc., are notified, the appellant should be deemed not to have retired from service. At the most the competent authority can be accused of being guilty of non‑compliance with the instruction issued by the Additional Chief Secretary, but we do not think that this fact alone can be a good ground to hold that the appellant's retirement after the age of superannuation, when it had otherwise been valid, was without lawful authority, simply because the fact of his retirement was not notified in the Gazette. Learned counsel also admitted that there was no such requirement in the rules applicable to the appellant's case. He has also not been able to show that these administrative instructions were intended by the Additional Chief Secretary to have the same effect as statutory rules. Learned counsel has also conceded that the Additional Chief Secretary who had issued these instructions was not the rule making authority in respect of the appellant and therefore, not competent to alter or amend the rules of service. The instructions could not, in the circumstances, possess a binding effect on the competent authority. Be that as it may, the defect is not of such a serious nature as to invalidate the retirement of the appellant.

5. It has also been contended that under clause (3) of Article 178 of the Constitution the appellant has been guaranteed at least one right of appeal, and since his appeal has not so far been disposed of, the respondent‑Government has failed to perform its functions which it is required by law to do. There is nothing in this provision of the Constitution which would suggest that any right of appeal is given to the appellant. Under clause (3) of Article 178, a Government servant has to be provided, by means of Rules to be framed in this behalf, at least one right of appeal against an order, which "(i) C punishes or formally censures a person; (ii) alters or interprets to the disadvantage of a person any rule affecting his terms or conditions of service; or (iii) terminates the employment of a person otherwise than upon his reaching the age fixed for super annuation." The words underlined by us are significant. By virtue of these provisions a right of appeal has to be provided in the rules in certain cases, but it was considered necessary to make it clear that no such appeal may be provided in the case of a person retiring on reaching the age of super annuation.

6. Learned counsel has assailed the following order, as contained in Office Order No. 4/C/CCFLR, dated the 5th of August 1969, issued by the Chief Conservator of Forests, Lahore Region, Lahore, and conveyed to the appellant on the 1st of June 1970 :‑

"In exercise of the powers vested in me under para. 5 of the West Pakistan (Civil Services) Delegation of Powers Rules, 1962, read with serial No. I of Appendix `C' and serial No. 22 of Appendix 'A' of the said rule, Mr. Muhammad Aslam Khan, WPFS (II) Senior Instructor, West Pakistan Forest School, Ghoragali is hereby granted the following Leave Preparatory to Retirement with effect from 29‑6‑1969 as is admissible under Leave Rules, 1955 :‑

(1) Leave on full average pay 6 months.

(2) Leave on half average pay 6 months.

He will stand retired from Government service with effect from 29‑6‑1970."

According to the learned counsel, the order is without lawful authority inasmuch as the Chief Conservator of Forests being not the competent authority in the case of the appellant could not say that he "will stand retired from Government service with effect from 29‑6‑1970." The competent authority in the appellant's case is said to be the Governor of the Province. The observations of the Chief Conservator of Forests have to be understood in the context in which they were made. The appellant's service was not extended beyond the 30th of June 1969, and he retired automatically with effect from that date.

The Chief Conservator of Forests only made it clear to the appellant that after enjoying leave preparatory to retirement for a year (First six months on full average pay and the remaining six months on half average pay) his retirement was to take effect from the 29th of June 1970. These observations could not at all be regarded as "retirement order" of the appellant or the refusal to grant extension to him and thus no exception could be taken to the same.

7. A petition under Article 98 of the Constitution can be filed only by an "aggrieved person". A "person aggrieved" has been explained in Ex parte: Sidebotham (14 Ch. D 458) by James, L. J., to "be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something, or wrongfully refused him something, or wrongfully affected his title to something." Thus, a person aggrieved must be a man against whom a decision has been pronounced which has wrongfully refused him something which he had a right to demand. In the instant case, the appellant has suffered no grievance at all; he is deprived of nothing by the decision of the competent authority, and he being not a "person aggrieved" is, therefore, entitled to nothing. In order to sustain the writ petition, it was necessary for the appellant to nave shown that he was an "aggrieved person" and that this Court had the jurisdiction to entertain the writ petition. This he has failed to do.

8. For the foregoing reasons, we find no merit in this Appeal which is hereby dismissed in limine.

K. B. A. Appeal dismissed in limine.