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Petitioner: Syed Mohsin Shah VS Respondent: Federation of Pakistan through Secretary Law and JUDGMENT
Court Name: Islamabad High Court Judge(s): Mohsin Akhtar Kayani Title:Syed Mohsin Shah vs Federation of Pakistan through Secretary Law and
JUDGMENT
Reported As: PLD 2023 Islamabad 272 , 2023 PLC (C.S) 1467 Result: Petitions dismissed Judgment JUDGMENT MOHSIN AKHTAR KAYANI, J.---By way of this common judgment, I intend to decide the captioned writ petitions having same questions of law and facts. 2. Through the captioned writ petitions, the petitioners namely Syed Mohsin Shah, Ahmad Hanif Orakzai and Sheikh Zafar Mehmood have called in question the vires of the Civil Servants (Directory Retirement from Service) Rules, 2020 (hereinafter called as impugned Rules), as such, the latter has also assailed the minutes of 24th Meeting of the High Powered Selection Board (HPSB), held on 5th and 11th June, 2020 for promotion of the civil servants in BPS-22. 3. Brief and consolidated facts are that the Prime Minister of Pakistan while exercising powers conferred by Section 25(1) of the Civil Servants Act, 1973 read with S.R.O.No.120(I)/98, dated 27.02.1998, has promulgated Civil Servants (Directory Retirement from Service) Rules, 2020, concerning directory retirement of civil servants after completion of 20 years of service qualifying for pension and other retirement benefits. The petitioners have alleged that there is contradiction between Rule 1(2) and Rule 6 as well as between Rule 5(c) and Rule 6 of the impugned Rules of 2020. Similarly, Sheikh Zafar Mehmood, petitioner in W.P. No.1809/2020, questioned Rule 5(b) of the impugned Rules, whereby a civil servant having not been recommended for promotion twice shall be referred to the Retirement Board, as such, the petitioner having been denied twice for promotion in BPS-22 was referred to the Retirement Board. Hence, the captioned writ petitions. 4. Learned counsel for respective petitioners contended that after accepting the offer of voluntary return under Section 25 of the NAO, 1999, the respondents cannot be allowed to punish the civil servants by enforcing directory retirement from service, as such, the impugned Rules are made in
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exercise of delegated powers, whereas the NAO, 1999 has been enacted through the act of parliament; that the impugned rules are contradictory in nature and inconsistent with the acts of parliament, precedents and provisions of NAO, 1999 as well as of Government Servant (Efficiency and Discipline) Rules, 1973, per se, Section 13 of the impugned Rules gives unbridled discretionary powers to the competent authority to pass direction in respect of retirement of a civil servant, even otherwise, Article 13 of the Constitution of the Islamic Republic of Pakistan, 1973 warrants a lawful guarantee against a double jeopardy; that Rule 5 of the impugned Rules is in contradiction and violation of Articles 2A, 3, 4, 8, 9, 10-A, 12, 13, 14, 18, 24 and 25 of the Constitution. 5. Conversely, learned AAG along with representatives of the Establishment Division contended that petitioner in W.P. No. 1355/2020 has no legal cause of action for filing the writ petition being a retired employee serving in Government of KPK, therefore, he is not affected by the impugned Rules; that petitioner in W.P. No. 1809/2020 for being a retired employee of the Federal Investigation Agency has also no legal cause of action for invoking jurisdiction of this Court, even otherwise, he is not an aggrieved person as per provisions of the impugned Rules; that captioned W.P. No. 2489/2020 is based on a mere apprehension that in case HPSB did not find the petitioner fit for promotion to BS-22, he would face directory retirement, as such, the decision of the departmental authority as to fitness for promotion of a civil servant is not open to judicial review by any Court. 6. Arguments heard, record perused. 7. Perusal of record reveals that all the petitioners have raised common questions and assailed the Civil Servants (Directory Retirement from Service) Rules, 2020, whereas the petitioner in W.P. No.2489/2020 namely Ahmad Hanif Orakzai has also assailed the vires of Section 13 of Civil Servants Act, 1973 along with the decision passed in 24th Meeting of HPSB held on 5th and 11th June, 2020, as a result whereof, the said petitioner was not promoted to BPS-22. Historical Perspective of Section 13 of the Civil Servants Act, 1973 8. Before going into the question of vires of the impugned Rules, it is necessary to go through historical perspective of Section 13 of the Civil Servants Act, 1973, which was notified on 29.09.1973 with the purpose to regulate the appointment of persons to and the terms and conditions of service of persons in the service of Pakistan. Originally, Section 13(1) of the Civil Servants Act, 1973 was in the following shape:- 13. Retirement from service. A civil servant shall retire front service--- (i) in the case of a person holding the post of Additional Secretary to the Federal Government or any equivalent or higher post, on such date as the competent authority may, in the public interest, direct (ii) in any other case, 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 direct; or (iii) Where no direction is given under clause (i) or, as the case may be, under clause (iii), on the completion of the fifty-eighth year of his age. Explanation -In this section, "competent authority" means the appointing authority or a person duly authorized by the appointing authority in this behalf, not being a person lower in rank than the civil servant concerned. 9. However, the said provision had been amended through Civil Servants (Amendment) Ordinance, 1988 on 28.11.1988, whereby 25 years of service remained intact but, the same has been merged with the concept that competent authority may take a decision for retirement of civil servant in the public interest, however under Section 13(1)(ii) of the Civil Servants Act, 1973, the retirement of civil servant has been fixed on completion of 60th years of age. The third amendment was made on 0I.O6.2000 through Civil Servants (Amendment) Ordinance, 2000, whereby Section 13(2) has been amendment only, in which word order" has been replaced with "direction". The last and fourth
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amendment was made on 04.08.2001, through Civil Servants (Amendment) Ordinance, 2001, whereby Section 13(1)(i) has been amended and the qualifying service of 25 years has been substituted with 20 years i.e. the minimum required length of service for retirement. 10. Admittedly, Section 13 of the Civil Servants Act, 1973 has a checkered history where Section 13(1) was initially enacted without any prescribed rule to deal with the situation that a civil servant, shall retire from service after completion of 20 years of service qualifying for pension and other retirement benefits, as such, the Establishment Division issued guidelines for review of cases of civil servants by Review Committee on certain parameters, whereby a civil servant is recommended for retirement in cases where two or more penalties have been imposed upon him under the Government Servant (Efficiency and Discipline) Rules, 1973 or his overall grading of ACRs is average qua his integrity, reliability, output of work, behavior, etc. or he has twice been recommended for supersession by Supervisory Board or DPC, even his persistent reputation is being corrupt or he is in possession of properties disproportionate to his known source of income or in some cases his frequent unauthorized absence from duty, per se, based on such concept, the case of a civil servant for retirement under Section 13(1) of the Civil Servants Act, 1973 is to be considered. Guidelines for Review of Cases of Civil Servants 11. The primary arguments advanced by the petitioners side are that Section 13(1) of the Act of 1973 is ultra vires on the touchstone of Articles 2A, 3, 4, 8, 9, 10, 12, 13, 14, 18, 24 and 25 of the Constitution of the Islamic Republic of Pakistan, 1973. Similarly, the legislative history of Section 13 and its amendments are considered to be draconian legislation started from General Yahya Khan's era, leading towards General Zia ul Haq and then followed by General Pervaiz Musharaf, in this period, 25 years of service has been reduced to 20 years as minimum consideration for the purpose of retirement, though in past, the amendments made to Section 13 of the Civil Servants Act, 1973 were struck down by the Appellate Shariat Bench of the apex Court being un-Islamic and un- constitutional as reported in PLD 1987 SC 304 Shariat Appellate Bench (Pakistan, etc. v. Public-at- Large), whereby such concept of retirement has been considered as stigma and disgrace in the public eyes, especially when it has been declared that the retirement is in the public interest though it is without any fault or deficiency on the part of civil servant. The Shariat Appellate Bench considered such type of retirement harmful to the reputation, self respect and dignity of a civil servant, which is against the injunctions of Islam, rather considered to be a Zulm, as such, the amendments in Section 13 of Civil Servants Act, 1973 have been declared unconstitutional for not extending any right of hearing to civil servant before retirement under Section 13(1)(i) of the Civil Servants Act, 1973. The five members larger bench of the apex Court upheld the decision of the Federal Shariat Court and observed that since there is no concept of issuance of notice or personal hearing before passing the order under Section 13(1)(i) of Civil Servants Act, 1973, the provision was declared repugnant to Islam, as a result whereof, the apex Court allowed the period of 06 months for new enactment so that amendment could be made and right of personal hearing can be given, otherwise, Section 13 was to be considered within four corners of law. The detailed judgment of the apex Court further highlights the reasons and elements of public interest to be determined on its factual side in each case and, as such, a difference should have been elaborated between compulsory retirement due to misconduct and retirement in the public interest, per se, no safeguard or distinction has been provided. A close analysis of the case PLD 1987 SC 304 Shariat Appellate Bench (Pakistan, etc. v. Public-at-Large) discloses that if opportunity of show cause has not been given to a civil servant, who has completed 25 years of service at that time, he may be subject to exploitation and the provision can be used in oppressive or capricious manner or being misused against such civil servant, though the factor considering for application under Section 13(1)(i) is the employee's performance, which might not be up to the mark, but he otherwise
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attains the highest position on account of his seniority and action against him is not possible under the Government Servants (Efficiency and Discipline) Rules, 1973, however where action has been taken whimsically or capriciously or on account of mala fide, the civil servant can avail the remedies available under the law. After the announcement of the judgment by the apex Court in the case of Pakistan supra, the amendment was made and right of hearing was incorporated in the law and, as such, the only lacuna referred in Section 13 of the Civil Servants Act, 1973 stands cleared. Effect of Civil Servants (Directory Retirement from Service) Rules, 2020 12. Now question arises as to whether the impugned Rules have been promulgated in accordance with the law or otherwise, the same has been answered by learned A.A.G. Barrister Muhammad Mumtaz Ali, who has drawn the attention of this Court towards Rule 5 of the impugned Rules, in which following yardstick has been provided: 5. Grounds for retirement. (1) No civil servant shall be recommended for directory retirement under these rules, unless any one or more of the following conditions is/are fulfilled in his/her case--- (a) Has earned average performance evaluation reports (PERs) or adverse remarks have been recorded in three or more PERs from three different officers, for a period not less than six months and have attained -finality after appeal there against if any; (b) Has been twice recommended for supersession by the Central Selection Board (CSB), Departmental Selection Board (DSB) or Department Promotion Committee (DiC), as the case may be, or twice not recommended for promotion by the High Powered Selection Board and such recommendations have been approved by the appointing authority and the matter has attained finality; (c) Has been found guilty of corruption or has entered into plea bargain or voluntary return with National Accountability Bureau or any other investigating agency; (d) Has been on more than one occasion placed in category "C? by the CSB, DSB or, as the case may be, DPC under the Civil Servants Promotion (BPS-18 to BPS-21) Rules, 2019; or, (e) Has conduct unbecoming. 13. While going through the above mentioned factors, it has been argued on behalf of the petitioners side that the impugned Rules have been notified on 15.04.2020 and under interpretation of statutes, the statutory rules are to be applied prospectively as in absence of a stipulation to contrary, any change in law affecting substantial rights has prospective application only. Reliance is placed upon 2018 SCMR 301 (Secretary Housing and Environmental and PHE Department, Government of Punjab v. Muhammad Ramzan, etc.) and 1987 PLC (C.S.) 531 (Muhammad Ramiz ul Haq v. Secretary Establishment Division, Rawalpindi). Prospective or Retrospective Effect of Rules 14. It has also been argued that every statute, prima facie, has prospective- application unless it is expressly provided that same will have retrospective operation. It is also known principle of interpretation that legislation that touches the vested rights of individual cannot be A given retrospective effect unless clearly indicated by the legislature as held in 2020 PTD 679 Karachi (The Collector of Sales Tax and Federal Excise v. Agro Chemical (Pvt.) Ltd.). The general rule of interpretation is that the legislation touching vested right of an individual cannot be given retrospective effect, however the civil servants cannot claim their vested right that they Would continue to serve after completion of 20 years of their service till age of superannuation as it has already been part of their terms and conditions under Section 13(1)(i) of the Civil Servants Act, 1973 that they be given protection for their continuation of service till 20th year of service unless they have been hit by the concept of misconduct, as such, the terms and conditions of service clearly stipulated in the Civil Servants Act, 1973 do not create any other right as interpreted by the petitioners, except provided in the statute.
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Status of Delegated Legislation 15. This Court is of the view that delegated legislation could not override the statute either by exceeding authority or by making provision inconsistent with parent statute. The general power to make rules or legislation for carrying out or giving effect to statute was strictly ancillary to its nature and could not enable the authority on whom the power was conferred to extend the scope of general operation of the statute. Similarly, the rulemaking authority cannot extend the purpose of statute or add new or different meaning of carrying them out or to depart from or vary its terms. Any rule / regulation which the rulemaking C authority has power to make was liable to be declared invalid if powers entrusted for one purpose were deliberately used with design of achieving other or if it shows on its face misconstruction of law or failure to comply with conditions prescribed under the parent statute for the exercise of the powers or if it was not capable of being related to any purpose mentioned in the parent statute. All these principles have been explained in PLD 2019 Lahore 206 (Ahmad Mehmood v. Government of Punjab). The criteria to consider the subordinate/ delegated legislation to be given protection or to declare them otherwise is to be settled by way of a test, whether the same surpasses the parent statute, per se, the said principle has been highlighted in 2005 SCMR 186 (Khawaja Ahmad Hassan v. Government of Punjab), 2003 SCMR 370 (Pakistan through Secretary Finance v. Aryan Petro Chemical Industries (Pvt.) Ltd., Peshawar) and 2013 SCMR 642 (ZTBL v. Said Rehman). The test laid down by the apex Court in the above mentioned cases has been considered while going through the provision of Section 25 of the Civil Servants Act, 1973 which extends the rule making authority to the President or any person authorized by the President in this behalf, may make such rules as appear to him to be necessary or expedient for carrying out the purposes of this Act. The plain meaning of said provision extends the authority to the President to make such rules for carrying out the purpose of the Act. The President has delegated its authority to the Prime Minister of Pakistan in exercise of powers conferred by subsection (1) of Section 25 of the Civil Servants Act, 1973 vide SRO Notification No.120(I)/98, dated 27.02.1998,, to make rules under the said Act and in this case the Prime Minister of Pakistan promulgated the impugned Rules, hence the salient characteristics qua the rulemaking authority are the powers conferred in the statute. The second characteristic is the approval of the Government or statutory sanction which has clearly been observed as the rules have been notified through SRO No.230(1)/2020, therefore, the minimum requirements of law have been fulfilled. 16. At this stage, question arises whether the impugned rules fulfill the purpose of the Civil Servants Act, 1973, as such, it has to be seen on the concept of retirement provided in Section 13(1), where a civil servant completing 20 years of service could be retired by the competent authority in the public interest? The plain language of the said provision spells out that the civil servant has to serve up to 20th year of his service as of his right, except in case of misconduct, whereafter the concept of vested right has been substituted with the discretion of the competent authority in the public interest. In this background, civil servant cannot claim to perform his service beyond the period of 20 years of service till the age of superannuation i.e. 60 years being his predetermined right, as such length of service is subject to condition which essentially refers the right through the evaluation by the competent authority, likewise in cases of promotion, the determination of the eligibility criteria for promotion is essential administrative matter falling within the exclusive domain and policy making of the Government, which could not be interfered with by the Courts, even no vested right has been given to a Government employee in the matter of promotion or rules determining their eligibility of fitness. Reliance is placed upon PLD 2003 SC 143 (Dr. Muhammad Hussain v. Principal, Ayub Medical College), 2016 SCMR 1021(Government of Khyber Pakhtunkhwa v. Havat Hussain) and PLD 1960 SC 81 (The Central Board of Revenue, Government of Pakistan v. Asad Ahmad Khan). Concept of Public Interest
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17. The plain language of Section 13 of the Civil Servants Act, 1973 reveals that a civil servant could be retired after 20 years of completion of service on the direction of the competent authority in the public interest, however the Civil Servants Act, 1973 is silent qua the phrase "public interest", hence the said phrase could only be considered in the light of ordinary dictionary meaning. As per Black's Law Dictionary (8th Edition), "public interest" means "the general welfare of public that warrants recognition and protection or something in which the public as a whole has a stake, esp: an interest that justified governmental regulation", even otherwise, the said phrase has been explained by the superior Courts in the manner that something in which public at large had some interest or by which their rights or liabilities were affected, but would not mean interest of a particular person. Reliance is placed upon 2005 CLD 264 Karachi, (English Biscuits Manufacturers (Pvt.) Ltd. v. Monopoly Control Authority and another). The phrase public interest has also been explained by the Supreme Court of India in AIR 1993 SC 892 (Janata Dal v. H. S. Chowdhary and others) in the following manner: 51. In Shrouds Judicial Dictionary, Vol. 4 (IV Edition), 'public interest' is defined thus: PUBLIC INTEREST (1) A. matter of public or general interest "does not mean that which is interesting as gratifying curiosity or a love of information or amusement' but that in which a class of the community have a pecuniary interest, or some interest by which their legal rights or liabilities are affected." (per Cambell C.J., R. v. Bedfordshire 24 L.J.Q.B. 84). 52. In Black's Law. Dictionary (Sixth Edition), 'public interest' is defined as follow: Public Interest - Something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as mere curiosity, or as the interests of the particular localities, which may be affected by the matters in question. Interest shared by citizens generally in affairs of local, state or national government...." In view of above discussion, the paramount consideration for retiring a civil servant after completion of his 20 years of service is the will and choice of the competent authority as to whether they are interested to allow the civil servant to continue his service or otherwise but, the predominant factor is the public interest, which could only be evaluated by the competent authority, hence the exclusive domain of the competent authority could not be questioned if it is based on the concept of fitness i.e. whether the particular post and position necessitate a qualified person amongst his peers having eligibility to tackle the highest skill position in the larger public interest. 18. Besides the concept of public interest, Section 4 of the Civil Servants Act, 1973 highlights the tenure of office of civil servant whereby every civil servant shall hold office during the pleasure of Government. The pleasure doctrine was not based on any special prerogative of the Government but was based on public policy and was in public interest / good. The basis of pleasure doctrine was that public was vitally interested in efficiency and integrity of civil services, therefore, public policy required public interest and public could demand that a civil servant, who is inefficient, dishonest or corrupt and had become a security risk should not continue in service. Reliance is placed upon 2019 PLC (C.S.) 266 Lahore (Malik Muhammad Bashir Lakhesar, Assistant Advocate General Punjab v. Government of Punjab). 19. Learned counsel for petitioners further submits that Section 3 of the Civil Servants Act, 1973 also plays an important role, whereby the terms and conditions could not be varied to the disadvantage of civil servant as word "shall" has been used and those terms and conditions of a civil servant have to be regulated under the Act and the Rules, which provide a guarantee to a civil servant. The language of Section 3 of the Civil Servants Act, 1973 though confirms the rights of the civil servants but the same have to be regulated under the law and it is settled that no adverse action be taken against the civil servant, except in accordance with law. Even, the impugned Rules
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are within the framework of the Civil Servants Act, 1973 and same do not create a disadvantageous position for a civil servant in any manner. 20. The above referred discussion leads to an irresistible conclusion that when a civil servant acknowledges his offer letter and joins the service, he is bound by the terms and conditions highlighted in the Civil Servants Act, 1973 and the rules framed thereunder, therefore, law of estopple applies, which precludes the civil servant to challenge the provisions of law, especially when Section 13 has already been considered on the touchstone of Holy Quran and Sunnah by the Shariat Appellate Bench of the Supreme Court, even the concept of directory retirement was previously regulated through guidelines notified by the Government of Pakistan on 27.06.2000, which has been considered by the apex Court in 2006 SCMR 1415 (Abdul Majeed v. Government of Pakistan), hence, the petitioners could not challenge the vires of Section 13, as the principle of res judicata comes into their way. The apex Court has already approved and maintained the amendment in Section 13 of the Civil Servants Act, 1973, which is in the interest of Government and civil servants as well, reliance is placed upon…
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