GBAZANFAR ALI Versus DEPUTY DIRECTOR, FOOD, LAHORE REGION
ABDUL HAMID CHAUDHRY (MEMBER) .‑Ghazanfar Ali has made this appeal, wherein he has impleaded the Deputy Director Food, Lahore Region, Lahore as respondent.
2. By virtue of this appeal the appellant has prayed that the impugned order dated 7th January, 1980 and 16th January, 1982 be declared illegal, void and without any force of law.
3. This appeal was heard at two‑stages. First on 16th November, 1982 when the arguments were heard and appeal dismissed. Detailed judgment was to follow. An application was filed by the learned counsel for the appellant, Mr. Gulzar Hussain, that this case may be reheard, although the judgment has been announced written but the same had not yet been signed. This application was heard on 22nd a November, 1982 and the learned counsel for the appellant for this purpose relied on P L D 1981 S C 371 and made emphasis that although the judgment has been announced in the open Court, yet the same can be altered in view of the above ruling and few others. A notice of this request of the learned counsel for the appellant was served on the respondents. The case was argued on 13th January, 1983 on this law point and after hearing the arguments of the parties, the learned counsel for the appellant was allowed to present his view point again which he considered necessary for decision of the case. This case was finally heard and argued on 11th May. 1983.
4. Brief facts of the case are that the appellant, Mr. Ghazanfar Ali, Junior Analyst was retired under section 12 (ii) of the Punjab Civil Servants Act, 1974 on completion of 25 years of service qualifying for pension or other retirement benefits, vide order dated 7th January, 1980 of Deputy Director Food, Lahore Region, Lahore. The appellant challen ged the impugned order through the writ petition in the High Court, Lahore and obtained a temporary order of status quo. After hearing the parties, the High Court was pleased to dismiss the writ petition, vide its order dated 15th April, 1980. Thereafter the appellant made a review petition as envisaged under Article 13 (2) of the Provisional Constitution Order, 1981 before a competent authority i.e. the respondent which too was rejected, vide his order dated 16th January, 1982. Hence this appeal.
5. We have heard the parties. The appellant has been retired under clause (ii) of section 12 of the Punjab Civil Servants Act, 1974 and the same having been protected by Article 13 of the P. C. O., 1981. When this case was argued earlier by the learned counsel for the appellant he had taken the plea of malice on the part of the competent authority but at the time of final hearing of this case on 11th May, 1983, this view point was not pressed by the appellant's counsel and the case was argued only on the ground that the appellant was retired by the authority which was not competent to do so. It has been argued by the learned counsel for the appellant that the respondent has relied upon Punjab Food Department (Delegation of Power) Rules, 1978 signed by the Additional Chief Secretary, vide Notification dated 20th April, 1978 which repeals West Pakistan, Food Delegation of Power Rules, 1958 but do not repeal West Pakistan Food Department Subordinate Executive Establishment Recruitment Rules, 1962. As the appellant was appointed on 26th March, 1973 under rules 5 (6) and 12 of the said rules by the Secretary Food, hence the competent authority to retire the appellant was Secretary Food to the Government of Punjab and not the Deputy Director Food, Lahore Region, Lahore. It was further submitted by the learned counsel for the appellant that Deputy Director of Food, Lahore Region, Lahore has ordered the retire ment on the presumption that he was competent to do so under the Punjab Food Department (Delegation of Power) Rules, 1978. It was pointed out by the learned counsel for the appellant that these rules are not at all applicable to the appellant's case as they do not repeal Rules, 1962 which are intact and the rights of appellant are fully protected under them. Relying on the judgments P L D 1967 Kar. 186‑A and P L D 1965 Pesh. 47, the learned counsel for the appellant concluded that the appellant has not been retired by the competent authority and orders of the Deputy Director Food, Lahore Region, Lahore are not valid and lawful orders in the eyes of law and be quashed.
6. Controverting the above arguments of the learned counsel for the appellant, the learned District Attorney has submitted that he would also like to rely upon the West Pakistan, Food Department Subordinate Executive Establishment Recruitment 'Rules, 1962, so referred to by the learned counsel for the appellant and a reference be made to rule 4 of the said rules, wherein the appointment authority is mentioned as follows : ‑
"4. Appointing Authority.‑Appointments to the Establishment shall be made by the Deputy Director incharge of the region where the vacancies occur."
Appendix attached to these rules, mention at Serial No. 6 the post of junior Analyst, which thus falls within the competency of the Deputy Director, Incharge of the Region, as an "Appointing Authority". It was concluded by the learned District Attorney that it is thus clear that according to the Rules, 1962, which the learned counsel for the appellant states as being intact and fully protect the rights of the appellant, the Deputy Director is the competent authority (as appointing authority) to retire the appellant under section 12 (ii) of the Punjab Civil Servants Act, 1974 and in view of this, the impugned orders dated 7th January, 1980 and 16th January, 1982 passed by the Deputy Director Food, Lahore Region, Lahore are competent, valid and lawful orders.
7. We have given our anxious thought to the arguments of the parties and have also perused the rules so quoted by the learned counsel for the appellant and the learned District Attorney. The appellant's counsel has relied on the West Pakistan, Food Department Subordinate Executive Establishment Recruitment Rules, 1962. According to the learned counsel for the appellant, these rules are intact and the rights of the appellant are fully protected under these rules. If a reference is made to these rules of 1962 it is clear that the "Appointing Authority" under rule 4 of these rules is Deputy Director Incharge of the Region for the Junior Analyst (also refer appendix annexed to these rules). Further more if a reference is made to section 12 (ii) of the Punjab Civil Servants Act, 1974 an explanation given at the bottom of section 12 reads as follows :‑
"Explanation.‑In this section the competent authority means the appointing authority or a person duly authorized by the appointing authority in that behalf not being a person lower in rank to a Civil Servants concerned."
Thus undoubtedly the Deputy Director, Food, is the competent authority to pass an order of retirement under section 12 (ii) of the Punjab Civil Servants. Act, 1974 in case of the appellant. As for as the plea of the learned counsel for the appellant that the appellant was appointed by the Secretary, Food Department, vide his order dated 26th March, 1973 and authority junior to him could not retire him under section 12 (ii) of the Punjab Civil Servants Act, 1974 is not convincing. If the appellant was appointed by the Government who bad such inherent power, it does not debar or restrict the power of the Deputy Director, Food, to act as a competent authority, designated "Appointing Authority" under rule 4 of the West Pakistan, Food Department Subordinate Executive Establishment Recruitment Rules, 1962 (so relied upon himself, by the learned counsel for the appellant). Thus, the Deputy Director Food, Lahore Region, Lahore was the competent authority to retire the appellant under section 12 (ii) of the Punjab Civil Servants Act, 1974 and no exception can be taken against the same.
8. As far as reliance of the appellant's counsel on P L D 1965 Pesh. 47, is concerned, this judgment deals with the principle of locus poeniteniae which is not applicable in this case. Similarly as far as P L D 1967 kar. 186‑A (so quoted by the learned counsel of the appellant) is con cerned, we have carefully perused the same that too is not relevant in the appellant's case and principle of law followed in that judgment is also not applicable in appellant's case.
9. Keeping in view the above analysis, we hold that the appellant has been correctly and lawfully retired by the competent authority under section 12 (ii) of the Punjab Civil Servants Act, 1974 which is further protected by Article 13 of the P. C. O. of 1981 and there is no merit in this appeal which is dismissed as such.
There will be no order as to costs.
A. E. Appeal dismissed.