MUHAMMAD NAQI ZAIDI Versus PROVINCE OF SIND THROUGH CHIEF SECRETARY, GOVERNMENT OF SIND, KARACHI

1. HAMZO KHAN M. KURESRI (CHAIRMAN).‑ This appeal under section 4 of the Act was filed before us on 5‑8‑1974. The brief facts leading to this appeal are that the appellant after Partition joined Sind Subordinate Police Service and was promoted as Superintendent of police with effect from 28‑12‑1966. He was confirmed as Superintendent of Police in P. S. P. Cadre with effect from 4‑3‑1969. He was to retire from service from 31‑1‑1972 on completion of 59 years of his age. The Inspector General of Police vide his order dated 29th January 1972 (Annexure 'A' ) granted him all kinds of leave due to him Preparatory to Retirement. However, due to his meritorious service and on account of the tense Law and Order situation in Karachi, the appellant was directed by the then Governor of Sind by his oral order to continue in service upto the age of 60 years. He was assured by the Governor that the necessary orders in writing would be issued in due course of time. The appellant, therefore, continued to perform iris duties as Superintendent of police, West Division Karachi up to 10‑2‑1972. On 11‑2‑1972 the appellant was asked by the Inspector General of police rind to hand‑over the charge of his duties immediately and proceed on Leave Preparatory to Retirement already granted to him. The appellant therefore, banded over the charge on 11‑2‑1972 (F N) thereby serving in Sind police Department continuously up to 10‑2‑1972. The 10 days period during which the appellant continued ire service under the oral orders of the Governor of Sind were however not regularized try a written order till the appellant proceeded on Leave Preparatory to Retirement with effect from 11‑1‑1972. In the Interim Constitution of Pakistan which came into effect from 21 st April 1972, the age of superannuation of the Government Servants was fixed at 58 year; vide Article 221 (4). On account of this Constitutional change the Inspector‑General of Police Sind, in pursuance of the instructions issued by the Secretary to Government of Pakistan, Establishment Division, Islamabad contained in his letter No. 2/4/72‑CV, dated 11‑5‑1.972, issue; an order on 20th July, 1972 (Annexure 'B') that the appellant who was on L. P. R. shall stand retired with effect from 21‑4‑1972. On 22nd July, 1972 the Chief Secretary to the Government of Sind (respondent) issued the following order which is Annexure 'C' on record :‑

2. "Mr. Muhammad Naqi Zaidi, P. S. P., Superintendent of police West Division, Karachi is re‑employed in the same capacity for the period 1st to 10th February, 1.972. During the period of re‑employment he will draw the last pay drawn less pension."

3. The appellant contends this order and also the order of Inspector General of Police, Annexure 'B'. He states that he has been made to suffer adversely by the above order of the Chief Secretary for no fault of his because be continued in service for 10 days beyond 31‑1‑1972 not on his own accord but on the specific oral orders of the Governor of Sind, who was his appoin ting authority. He further contends that he was already granted Leave Preparatory to Retirement by the, order of the Inspector‑General of Police which would have expired on 10‑2‑73 but it was unjustly curtailed to 20‑4‑1972 vide the order of the inspector General of Police Annexure 'B'. He alleges that both the orders, namely Annexures B' and 'C' were illegal or at least unjust and unequitable. He made a representation to the Gover nor of Sind but it was rejected on 13‑10‑1973. He, therefore, filed the present appeal which could be filed within 12 months of the establishment of this Tribunal.

4. The respondent has contested the appeal. There is no dispute about the main facts on record. It is an admitted position that the appellant continued in service as Superintendent of Police, West Division, Karachi in P. S. P. cadre from 1‑2‑1972 to 10‑2‑1972. The appellant's case is that he did so under the specific verbal orders and assurance of the Governor of Sind whereas the respondent asserts that there was nothing on record to support the said version of the appellant. The respondent admits that the period of service of the appellant from 1st to 10th February, 1997 was treated as re‑employment under Article 178 of the 1962 Constitution. According to the said Article the competent authority could either (a) allow extension in service or (b) re‑employ a Government Servant. The Government re‑employed the appel lant for those 10 days arid there was no illegality about the said order. It is an admitted position that the age of retirement, according to 1962 Consti tution was 60 years and the appellant had completed 59 years of his age on 31‑1‑1972. He could, therefore be given extension up to 12 months after that date. The appellant claims extension of his service for those 10 days and not re‑employment because he was made to continue for the same period under the orders and assurance of the Governor on account of bad Law and Order situation in Karachi at that time. In case of Re‑employment he says, he would suffer in pay and pension.

5. We have perused the record and heard Mr. Manzoor Ali Khan for the appellant and the learned Assistant Advocate‑General for the respondent. The learned A. A.‑G. concedes that if the appellant continued in service after superannuation on the oral orders of the Governor then the disputed period of 10 days should be treated as extension of service and not as re‑employment. He however, says that the verbal assurance given by the Governor to the appellant was not on record. The appellant has produced the letter of the Inspector General of Police dated 31st March, 1972 (Annexure `E') which supports his version. This letter is not denied by the respondent. The relevant portion of the letter reads as under :‑

6. "Mr. Muhammad Naqi Zaidi, P. S. P. Superintendent of Police however, continued in service from 31‑1‑1972 to 10‑2-1972 under the verbal orders of the Governor of Sind and he handed over the charge of the post of Superintendent of Police to Mr. Zafar Khan on 11‑2‑1972 in the forenoon."

7. In this very letter the Inspector-General of Police has recommended that. "In order, therefore, to regularize this period, it is necessary to allow him (Mr. Naqi Zaidi) extension in service for the period from 1‑2‑1972 to 10‑2‑1972."

8. The contents of this letter are not controverted by the Assistant Advocate- General or by the respondent in his written statement. It is an official docu ment and its contents are presumed to be correct unless proved otherwise. Since there is no denial of the contents of this letter, the contention of the appellant stands proved that he continued in service from 1‑2‑1972 to 10‑2‑1972 under the oral orders and assurance of the Governor of Sind. The Government was honour bound to respect the said orders of the Governor and regularize the said period of those 10 days by allowing extention of service to the appellant as permitted by the Constitution but not by re‑employment. We agree with the appellant that re‑employment would adversely affect his pay and pension. It is equitable and just that the plea of the appellant regarding extention of his service for 10 days should be allowed because he continued in service upto 10‑2‑1972 not on his own accord but on account of the oral orders of the Governor, who was his appointing authority. This remedy is permissible by the Constitution of 1962 as mentioned above. We therefore modify the order of the respondent dated 22nd July, 1972 Lind direct that the period from 1st to 10th February, 1972 (both days inclusive) should be treated as extention in the service of appellant with all rights and privileges admissible to him under the law.

9. As regards the other contention of the appellant, namely to allow him Leave Preparatory to Retirement upto 10th February, 1973 or at least upto 31st January, 1973 we find in it and to interfere with the said order contained in Annexure B' of the memo of appeal. This order was passed by Inspector General of Police, Sind on 20‑7‑1972 on the strength of the instructions contained in the letter dated 11‑5 1972 issued by the Secretary to the Govern ment of Pakistan, Establishment Division, Islamabad. The appellant has not made Secretary to Government, Establishment Division as a party in this appeal hence we cannot give him any remedy on this ground. The instruc tions were based on the change in the interim Constitution of Pakistan regarding the age of retirement. He was in P. S. P. cadre hence the Pakistan Government was competent to curtail his Leave Preparatory to Retirement in the light of the requisite provisions in the Interim Constitution wherein the age of retirement was fixed at 58 years. The appellant had already completed 59 years of his age when he proceeded on Leave Preparatory to Retirement on 11‑2‑1972. We cannot therefore, interfere into the instruc tions given to the respondent by the Government of Pakistan on account of the change in the Constitution. We, therefore, reject the second prayer of the appellant as we hive no jurisdiction over the orders passed by the Federal Government. Each party is left to bear his own costs.