Ch. ALI MUHAMMAD vs GOVERNMENT OF PAKISTAN (FORMERLY GOVERNMENT
This matter arises from a petition filed against the dismissal of the petitioner's civil suit challenging his compulsory retirement from service in the Traffic Accounts Branch of the N.-W. Railway, ordered on 27th June 1969 with effect from 30th June 1959. The lower courts and the High Court dismissed the suit and subsequent appeals, holding it barred under section 10 of Ordinance No. 11 of 1959. The core legal question was whether the petitioner could be compulsorily retired on the ground of inefficiency after the omission of rule 2(c) of the Public Conduct (Scrutiny) Rules, 1959. The Supreme Court dismissed the petition, holding that inefficiency remained a valid ground for compulsory retirement by virtue of clauses 3, 4, and 5 of Article 6 of the Laws (Continuance in Force) Order, 1959, which constituted a super-constitutional law with an overriding effect. The key principle laid down is that provisions of the Laws (Continuance in Force) Order, 1959, operate independently and override any inconsistent rules regarding the compulsory retirement of government servants before 1st July 1959.
- Can a new contention regarding the competence of the authority be raised for the first time before the Supreme Court?
- Whether inefficiency remains a valid ground for compulsory retirement despite the omission of rule 2(c) of the Public Conduct (Scrutiny) Rules, 1959?
- Does the Laws (Continuance in Force) Order, 1959 have an overriding effect over other inconsistent laws and rules regarding compulsory retirement?
- Section 10, Ordinance No. 11 of 1959
ORDER
1. SALAHUDDIN AHMED, J.-The petitioner at the time of his compulsory retirement was working in the Traffic Accounts Branch of the N.-W. Railway. On the 27th June 1969, by an order of the Financial Adviser and the Chief Accounts Officer, P. W. Railway, Lahore, he was retired compulsorily from service with effect from the 30th June 1959 (A. N.). There was no appeal from this order but the petitioner filed a suit which was dismissed on the ground that the suit was barred under section 10 of Ordinance No. 11 of 1959. Petitioner's appeal from this order was dismissed by the Additional District Judge, and his second appeal before the High Court was also dismissed.
2. It has been contended on behalf of the petitioner that the impugned order of retirement was not passed by the competent authority. This point was never raised in any Court. We, therefore, cannot permit him to raise it for the first time before us.
3. It has next been contended that the petitioner could not be retired on the ground of inefficiency or unsatisfactory service inasmuch as rule 2(c) of the Public Conduct (Scrutiny) Rules, 1959, was omitted by an amendment on the 25th February 1959. The said rule permitted retirement on the ground of inefficiency. In support of this contention the learned Advocate appearing for the petitioner has relied on the case of Government of Bast Pakistan v. Murzuqullah (PLD 1969 SC 1).
4. We have perused this decision and it appears to us that this Court considered a similar contention and rejected it. In the case under rep t after examining clauses 3 and 4 which were added to Article 6 of the Eaws (Continuance in Force) Order, 1959, on the 9th March 1959, and clause 5, which was amended on the 23rd April 1959, it has been observed as follows :-- "It will be seen that sub-clause (b) by reference to sub-clause (a) includes `inefficiency' as a ground for the compulsory retirement of a person in the service of Pakistan, if the order of his retirement is made before the 1st of July 1959. This provision which is part' of a super-constitutional law, namely, the Laws (Continuance in Force) Order of 1959, is independent of any other law and has an overriding effect, notwithstanding anything inconsistent therewith or having the contrary purpose, in any other law, rule or instrument having the force of law."
5. There is no substance in this petition and it is, accordingly, dismissed.