Muhammad Khurshid Asghar vs F.O.P etc.

Stereo.HCJDA 38.

JUDGMENT SHEET.

LAHORE HIGH COURT

RAWALPINDI BENCH, RAWALPINDI.

JUDICIAL DEPARTMENT

INTRA COURT APPEAL NO. 116 of 2019

Major (R) Muhammad Khurshid Asghar Versus Federation of Pakistan through Secretary Ministry of Defence, etc

JUDGMENT.

Date of hearing: 17.06.2026 Appellant by: Mr. Inam-ur-Rahiem, Advocate.

Respondents by: Mr. Mansoor Usman Awan, Attorney General for Pakistan.

Mr. Haseeb Shakoor Paracha, Additional Attorney General for Pakistan.

Mr. Muhammad Jameel, Advocate for Law Directorate, GHQ, Rawalpindi.

Mirza Viqas Rauf, J. This Intra Court Appeal in terms of Section 3 of the Law Reforms Ordinance, 1972 arises out of order dated 26th September, 2019, passed by the learned Single Judge-in-Chambers whereby he proceeded to dismiss Writ Petition No.3622 of 2017, filed by the appellant, being not maintainable.

2.Facts, in brief, necessary for adjudication of this Intra Court Appeal are that the appellant joined the Pakistan Army on 18th December, 1999 and he passed out from the Pakistan Military Academy, Kakul as Captain in Army Engineers Corps on 10th April, 2004. During the course of his service, the appellant was ultimately promoted to the rank of Major after rendering qualified service in various units of Engineers Corps. As per appellant’s own stance, he was constrained to tender his resignation

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on various occasions during his service due to an unfavourable atmosphere. It is the claim of the appellant that in October, 2015, when he was posted in 5-Engineers Battalion, he made a written request to the then Military Secretary Lieutenant General Shahid Baig Mirza through a letter for his release from the Pakistan Army but his request was not acceded to. The grouse of the appellant, however, started with issuance of Retirement Order dated 28th July, 2017, issued by the General Headquarters, Military Secretary Branch, Rawalpindi (hereinafter referred to as “Retirement Order”) whereby he was compulsorily retired from the service and was struck off from duty w.e.f. 30th September, 2017. Feeling offended, the appellant while invoking the provision of Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as the “Constitution”) filed Writ Petition No.3622 of 2017, which was resisted by the respondents, who submitted their report/parawise comments, wherein it is asserted that professional performance of the appellant remained below par for considerable length of time and on account of that he was given counselling with the advice to make improvements with regard to his performance. It is further asserted that the appellant earned two consecutive below average/unfit officer efficiency ranking in the year 2016 and as such his case was processed and approved for compulsory retirement “due to fault of officer”. It is also asserted that the request of the appellant for premature retirement was not accorded on account of service utility and technical graduate course bond obligations. After evaluating the respective submissions of the appellant and the respondents, the learned Single Judge-in-Chambers proceeded to dismiss the constitutional petition through the order under appeal, holding it not maintainable.

3.Learned counsel for the appellant contended that the appellant served the Pakistan Army with zeal and commitment. He added that the career of the appellant remained blotless. Learned counsel argued that the Retirement Order is tainted with malice as it reflects that the retirement is due to fault of the appellant, which is not the case. Learned counsel

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submitted that even otherwise neither the Pakistan Army Act, 1952 nor the Pakistan Army Act Rules, 1954 recognizes any term “due to fault of officer” while passing the Retirement Order. Learned counsel emphasized that the bar contained under Sub-Article (3) of Article 199 of the Constitution is not attracted at all. In order to supplement his contentions, learned counsel placed reliance on the cases of JURISTS FOUNDATION through Chairman vs FEDERAL GOVERNMENT through Secretary, Ministry of Defence and others (PLD 2020 Supreme Court 1) and Ch. SIKANDAR ALI vs. CHIEF SECURITY OFFICER and others (2012 PLC (C.S) 563).

4.We have noticed that during the proceedings at some stage, i.e., on 21st March, 2023, it was observed that this appeal primarily raises a question relating to the interpretation of certain provisions of the Pakistan Army Act, 1952 and the Pakistan Army Act Rules, 1954 framed thereunder, especially Sections 176, 176A of the Pakistan Army Act, 1952 and Rule 12 of the Pakistan Army Act Rules, 1954. In this backdrop, we have issued a notice to the learned Attorney General for Pakistan in terms of Section XXVII-A of the Code of Civil Procedure (V of 1908) by way of order dated 25th October, 2023. In furtherance thereof, the learned Attorney General for Pakistan has assisted the Court. He contended that the matter in issue is clearly related to terms and conditions of service of the appellant and as such, the bar contained in terms of sub-Article (3) of Article 199 of the Constitution is clearly attracted. It is further contended that in terms of Article 243 of the Constitution, the control and command of the Armed Forces vests in the Federal Government. Learned Attorney General submitted that by virtue of Section 176 of the Pakistan Army Act, 1952, the power to make rules also vests in the Federal Government and similarly, it is the Federal Government, who is empowered to make regulations by virtue of Section 176-A of the said Act. Learned Attorney General contended that Section 18 of the Pakistan Army Act, 1952 is not limited to any particular situation. It is contended that the Retirement Order was passed in compliance with Rule-12 of the Pakistan Army Act Rules, 1954. Learned Attorney General also made reference to Pension Regulations

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Volume-I (Armed Forces), 2010. While pointing out a distinction to the principles laid down in the case of Ch. SIKANDAR ALI, supra, learned Attorney General submitted that the Rule 9C of the Pakistan Army Act Rules, 1954 was not taken into consideration and as such, the said judgment is distinguishable and does not apply to the case at hand.

5.Heard. Record perused.

6.The appellant was commissioned in the Pakistan Army on 10th April, 2004. He rendered services for about 13 years and was ultimately struck off from service w.e.f. 30th September, 2017 through the Retirement Order. We are mindful of the fact that service in the Armed forces is not an ordinary service. An officer or official in Armed forces has to live and serve with the Forces in an efficient and disciplined manner. It is an admitted position on the record that throughout his career, the appellant remained unsatisfied with his superior officers or surrounding circumstances and in that backdrop on various occasions he though tendered his resignation but it was not accepted. The appellant ultimately submitted a written request to the Military Secretary in October, 2015, seeking his release from the Pakistan Army but his request was not approved on account of service utility and technical graduate course bond obligations. As per stance of respondents, the attitude and performance of the appellant remained below par and he also earned unsatisfactory reports, for which he was counseled and advised to improve his attitude towards his service, which aspect is, though refuted by the appellant; however, admittedly, the Retirement Order was issued in this backdrop.

7.In order to examine the propriety and legality of the Retirement Order, it would be advantageous to have a brief survey of the relevant provisions dealing with the subject. Section 18 of the Pakistan Army Act, 1952 (hereinafter referred to as “Army Act”) deals with the retirement, resignation, release or discharge and it reads as under:-

18.Retirement, resignation, release or discharge. The competent authority may, as may be prescribed in this behalf, retire,

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release, accept or reject resignation of, or discharge from the service, any person subject to this Act:

Provided that owing to exigencies, extraordinary circumstances, or if war is imminent or existing, the Federal Government may retain compulsorily in service upto sixty years of age any person with the recommendations of the Chief of the Army Staff and as prescribed in this Act or the rules, regulations or instructions made and issued thereunder.

2.Applications for release or discharge will be made on PAFY-

3.As to furnishing a person, who is retired, released or discharged, with a certificate of termination of service, see Section 19 and Rule 10. On his release/retirement an officer is issued with a Certificate of Service (AB-557). See para 171, Army Personnel Documentation Regulations, 1976.

4.For the date on which retirement, release or discharge takes effect, see Rule 11 and Notes thereto.

From bare perusal of the above referred provision of law, it clearly manifests that it is a general and vast provision dealing with the subject of retirement, resignation, release or discharge but is not restricted or limited to any particular situation. Section 18 of the Army Act, however, gingerly ordains that the prescribed authority may, in conformity with such rules, as may be prescribed in this behalf, retire, release, accept or reject resignation, or discharge from the service, any person subject to the Army Act.

8.Rule 12 of the Pakistan Army Act Rules, 1954 (hereinafter referred to as “Rules, 1954”) empowers the competent authority to authorize retirement, release or discharge. For ready reference and convenience, the same is reproduced as under:-

12.Authorities empowered to authorise retirement, release or discharge.-

(1)(a) The retirement or release of an officer shall be authorised by the Federal Government and notified in the official Gazette. The Federal Government may at any time terminate the services of any officer.

For the removal of doubt it is declared that the term "officer" includes a Field Marshal who may be retired by the Federal Government like any other officer.

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(b)Officers retiring with a pension or gratuity are liable to be transferred to the Pakistan Army Regular Reserve of officers according to the Pakistan (Army and Air Force) Reserve Act, 1950, and the rules made thereunder. This liability shall be determined at the time of retirement and shall be expressed in the order of retirement.

(2)The causes of retirement, release or discharge of persons subject to the Act, other than officers, and, except as provided in sub- rule (3), the authorities empowered to authorise such retirement, re- lease or discharge, and the special instruction to be observed in each case are contained in the annexed Table.

In this Table "Commanding Officer", in relation to junior commissioned officers and warrant officers of the Pakistan Army Medical Corps and the Corps of Pakistan Remounts, Veterinary and Farms means the Director of Medical Services, Army, or the Director of Remounts, Veterinary and Farms, as the case may be."

(3)Any power conferred by this rule on any authority may be exercised by any higher authority and, in the case of a person who belongs to the Ministry of Defence Constabulary, by the Senior Constabulary Officer.

(Underlining supplied for emphasis)

It, thus, clearly manifests that for the purpose of retirement or release of an officer, it is the Federal Government that is competent to grant such authorization. Sub-rule (1) of Rule 12 the Rules, 1954 is accompanying notes as well, which are reproduced below:-

NOTES

Sub-rule (1).

a. Retirement or release of an officer must be authorised by the competent authority; a staff officer at General Headquarters has no power in this behalf. Such release or retirement takes effect as provided by Rule 11. The notification in the official Gazette, though a legal necessity, may be published after the effective date of the termination of service.

b. Where removal or compulsory retirement etc., of officer for any cause is considered necessary, without recourse to trial by court martial, application should be made under Rules 9A, 9B or 9C, as the case may be.

(Underlining supplied for emphasis)

Clause (b) envisages that where removal or compulsory retirement of officer is considered necessary, without recourse to trial by court martial, application should be made under Rule 9A, 9B or 9C of the

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Rules, 1954, as the case may be. The appellant was proceeded summarily and was not confronted with the proceedings of court martial, which if started might have ended in serious consequences against the appellant and apparently, this was the reason that the appellant has opted to choose premature compulsory retirement.

9.Rule 9C of the Rules, 1954 deals with compulsory or voluntary resignation, which reads as under:-

9C. Compulsory or voluntary resignation.-

(1)(a) An officer shall be liable to be compelled to resign his commission if he is, in the opinion of the Federal Government, unfit for further retention in the service by reason of his incapacity, inefficiency, unsatisfactory performance or neglect of duty or for similar other causes, but in forming any such opinion the Federal Government shall have due regard to factors, if any, beyond the officer's control.

Explanation. – No consequences resulting from drunkenness or carelessness on the part of an officer shall be considered to be factors beyond his control for purposes of the rules.

(b)The Federal Government may, before compelling any such officer as aforesaid to resign his commission, afford him an opportunity to retire from the service voluntarily.

(2)(a) No officer shall resign his commission unless permitted to do so by the Federal Government, who, before giving any such permission, shall have due regard to the exigencies of the service.

(b)An officer who wishes to resign his commission shall submit his application through his commanding officer giving his reasons for resignation in full so as to enable the Federal Government to arrive at a decision.

(c)In forwarding such an application the commanding officer shall report as to whether or not the application has been submitted in anticipation of any action against the officer for misconduct, inefficiency, incapacity, unsatisfactory performance or neglect of duty or for similar other causes or by reason of any circumstances affecting the officer's honour or character as a gentleman, and if the commanding officer is convinced that it has been submitted in such anticipation or in such circumstances, he shall state in his report all the facts and particulars of the case and shall obtain the officer's signature to the report in token of his having seen it. The commanding officer shall also state in his report as to whether or not there are any local or other outstanding claims against the officer and whether there is any objection to the officer being permitted to resign.

(Underlining supplied for emphasis)

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Facts and circumstances of the instant case clearly show that the appellant was compulsorily retired from the service by invoking sub-clause (b) of rule 9C(1) of the Rules, 1954.

10.We are mindful of the fact that a note or an explanation cannot be equated with the substantive provision to which it is appended. Rights and liabilities can only be spelled out from the substantive provision and not from an explanation or note. Even an explanation or note cannot be pressed into service to vary or alter scope of the main provision but if there occurs any ambiguity or obscurity in the provision, the legislature may, through a note or explanation, remove or clarify such ambiguity or obscurity. Reference to this effect can be placed on the case of Shazia Munawar vs. PUNJAB PUBLIC SERVICE COMMISSION through Secretary, Lahore (PLD 2010 Lahore 160). The relevant extract from the same is reproduced below:-

17.In order to resolve the aforesaid legal controversy, it would be necessary not only to examine the provisions of Rule 7 in greater detail but also in the perspective of the other provisions of the Punjab Judicial Service Rules, 1994, the Punjab Public Service Commission Ordinance, 1978 and rules and regulations made thereunder including the Punjab Public Service Commission Regulations, 1987. Rule 7 of the Punjab Judicial Service Rules, 1994 reproduced above reveals that it pertains to qualifications which must necessarily be possessed by the candidates seeking to be appointed as Civil Judges-cum-Judicial Magistrates. The said Rule consists of a substantive provision followed by an Explanation. At the very outset it is noticed that the substantive provision is couched in negative term to the effect that no person shall be appointed unless he possessed the qualification mentioned therein, therefore, on a bare reading it appears that the qualifications are relevant at the time of appointment and not prior thereto. However, since the Rule provide for a formal application which need to be sifted so that ineligible candidates can be separated from the pack, therefore, by way of administrative convenience alone a cut away date has been prescribed for determining the eligibility of the candidates by way of Regulation 11 of the Punjab Public Service Commission Regulations, 1987 which reads as follows:

"Eligibility of a candidate shall be determined in accordance with the advertisement for the post, service rules governing appointments to the relevant post and such other ancillary instructions issued by Government and or Commission from time to time. For this purpose for all candidates the

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age, qualifications and experience etc. as on the closing date fixed for candidates from within the country will be taken into account".

The aforesaid regulations leave no room for doubt that for the purpose of selection and appointment through the Punjab Public Service Commission, the relevant date prescribed by law for calculating experience is the closing date for the submission of application. This principle is applicable to selection and appointments for all posts where the process for selection is effected through the Punjab Public Service Commission including admittedly appointments of Additional District and Sessions Judges under the Punjab Judicial Service Rules, 1994.

18.The aforesaid substantive provision is followed by an Explanation which is being relied upon by the respondents. "Explanation" in a statutory instrument has a peculiar status for the purpose of interpretation.

19.A Division Bench of this Court in a judgment reported as Manj Khan v. The Controlling Authority, Lyallpur and others PLD 1968 Lahore 202 held "for one thing the Explanation is not a substantive provision". This Court in a judgment reported as Colony Sarhad Textile Mills Ltd. v. Collector, Central Excise and Land Customs and another PLD 1969 Lahore 228 held as follows:--

"The object of adding an Explanation to a statutory provision is only to facilitate its proper interpretation and to remove any possible confusion or misunderstanding about its true meaning. It does not per se create or extinguish any liability which has to be spelled out only from the, main provision sought to be interpreted with the assistance of the Explanation. In other words, the Explanation is to be relied upon only as a useful guide or in aid to the construction of the main provision".

The aforesaid portion has been quoted with approval and the dictum laid down thereby reiterated by the Honourable Supreme Court in the case reported as Muhammad Hussain Patel v. Habib Wali Muhammad and others PLD 1981 SC 1. This Court in a judgment reported as Arshad Akram and Co. and 8 others v. Divisional Superintendent, Pakistan Railways, Rawalpindi and 5 others PLD 1982 Lahore 109 held as follows:-- "It is well-established that an Explanation does not change the scope of the main section which it is supposed to explain".

20.An over view of the law laid down by the Honourable Supreme Court of Pakistan as well as by this Court referred to above makes it clear and obvious that an Explanation does not form a substantive part of the provision to which it is appended.

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All rights and liabilities can only be spelt out from the substantive provision and not from the Explanation which cannot be pressed into service to vary or change the scope of the main provision. Thus, in the facts and circumstances of the case the qualifications for appointment as Civil Judges-Cum-Judicial Magistrates can only be spelt out from the substantive part of Rule 7 and not from the Explanation. Therefore, the experience necessary for such candidates is 2 years. Since the recruitment has been effected through Punjab Public Service Commission, therefore, the provisions of Regulation 8 of the Punjab Public Service Commission Regulations, 1987 are squarely attracted with the result that the critical date for calculating experience is the closing date of the submission of the applications. The Explanation to Rule 7 cannot be used to vary or increase the experience required from 2 years to 2 years and 34 days i.e. the effect of the cut away date being the date of advertisement rather than the closing date.

21.Furthermore, the explanation does not even purport to enlarge the period of the experience nor attempts to change or vary the same. In fact it only prescribes the mode of proof required to establish that the candidate possesses the requisite experience. We are further reinforced by our view by the fact that the Additional Advocate-General was unable to offer any explanation logical or otherwise for the alleged departure with reference to the effective date for calculating the eligibility of the candidates for Civil Judges-cum-Judicial Magistrates as opposed to the effective date for all other candidates processed through the Commission including candidates for appointments as Additional District and Sessions Judges.

To the above fact, reliance can also be placed on the case of GUL MUHAMMAD KHAN and another VS. DILAWAR KHAN AND OTHERS (PLD 1955 Peshawar 76).

11.We cannot lose sight of the fact that during the proceedings, on 6th December, 2022, learned counsel for the appellant submitted that the appellant is not seeking reinstatement in service or other benefits, but seeking the deletion of the words ‘fault’ inasmuch as the same is highly prejudicial to the pursuit of future employment by the appellant in any organization. Even otherwise, it is nowhere the case of the appellant that the Retirement Order suffers from any legal infirmity except that it is tainted with the word ‘fault of the officer’.

12.We have also been apprised that the appellant is getting all the permissible pensionary benefits in terms of the Pension Regulations, Volume-I (Armed Forces), 2010 (hereinafter referred to as “Pension

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Regulations”). Regulation 32 of the Pension Regulations provides for the classification of the pension and its clause (2) caters for the pensionary benefits of an officer compulsory retired due to fault. For ease of reference, it is reproduced below:-

32.Classification of Pension. The pension of officer shall be classified as follows, namely;-

a. ...

(a)...

(b)...

(2)Premature Retirement Due to Fault. An officer compulsorily retired before completion of age/service limit for reasons other than those specified in sub-rule a (1) (b) above, will be granted actual pension/gratuity earned.

Note: The above benefit is admissible if service of an officer before allowing the benefit of automatic condonation is not less than ten years.

It is an admitted position on both ends that the appellant is receiving the pensionary benefits in terms of the above-noted regulation. Needless to observe that constitutional jurisdiction of the High Court is rested upon equity. When once the appellant, of his own free will and consent, agreed to quit the service and consented to the Retirement Order and started receiving pensionary benefits under the Pension Regulations in the category of ‘due to fault’, he is precluded from taking a somersault. The term “due to fault of officer” is, thus, not alien but duly covered under the Pension Regulations.

13.In the wake of above discussion, we are of the considered view that the judgment in the case of Ch. Sikandar Ali, supra, is not attracted to the case of the appellant because it was rendered without considering the Note appended to Rule 12 and Rule 9C of the Rules, 1954.

14.So far as the judgment in the case of JURISTS FOUNDATION through Chairman, supra, is concerned, it is observed that in the said case, the Supreme Court of Pakistan, while pondering upon the legislative status of various provisions of the Army Act and Rules, 1954, held that regulation 255 and other Regulations of the Army Regulations (Rules), 1998 on the

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subject of "retirement" appear to be ultra vires the Army Act, as Section 176 of the Army Act has assigned the subject of "retirement" to be regulated under the Rules and not under the Regulations. It was further held that regulations can be made only for the matters other than those which are to be dealt with under the Rules.

15.As we have already noted hereinabove that the Retirement Order was issued in terms of Rule 12 read with the Note to Sub-Rule (1) and Rule 9C of the Rules, 1954 and that an officer who is compulsorily retired due to fault has been separately dealt with under the Pension Regulations; therefore, the principles laid in the JURISTS FOUNDATION through Chairman, supra, in our humble view, are not applicable to the case at hand. Needless to mention that in terms of Section 176 of the Army Act, there is no clause empowering the Federal Government to make rules with regard to pension. Section 176A of the Army Act, however, deals with the powers of the Federal Government to make regulations for the governance, command, discipline, recruitment, terms and conditions of service, rank, precedence and administration of the Pakistan Army and generally for all or any of the purposes of this Act, other than those in respect of which rules have been made under Section 176 of the Army Act. The Pension Regulations were framed by the Federal Government in terms of Section 176A of the Army Act and thus cannot be termed as fraught with any legal disability.

16.Last and the foremost, the question before us is as to whether any error was committed by the learned Single Judge-in-Chambers while deciding the constitutional petition filed by the appellant on account of the bar contained in Sub-Article (3) of the Article 199 of the Constitution. We feel no cavil in observing that the issue raised in the constitutional petition was clearly a matter regarding terms and conditions of service of the appellant. Sub-Article (3) of the Article 199 of the Constitution places an absolute bar on issuing of an order in terms of clause (1) of Article 199 of the Constitution on an application made by, or in relation to, a person who

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is a member of the Armed Forces of Pakistan, or who is for the time being subject to any law relating to any of those Forces. This bar applies with full rigors in respect of matter relating to terms and conditions of service, any matter arising out of service, or any action taken against the member of the Armed Forces of Pakistan or as a person subject to such law. The bar imposed under sub-Article (3) of the Article 199 of the Constitution can only be softened if the member of the Armed Forces approaching the Court under Article 199 of the Constitution is able to demonstrate that the matter brought before the Court is the outcome of some mala fide, coram non-judice or an action taken without jurisdiction. As already observed the appellant did not either question the status or authority of the person who issued the Retirement Order and even no malice is attributed either in fact or in law to the respondents, so Article 199 (3) of the Constitution would automatically come in the way of appellant.

17.For the foregoing reasons, we are unable to draw any exception to the order under appeal. Resultantly, this Intra Court Appeal fails and is dismissed with no order as to costs.

(SYED AHSAN RAZA KAZMI) (MIRZA VIQAS RAUF)

JUDGE JUDGE

Approved for Reporting.

(SYED AHSAN RAZA KAZMI) (MIRZA VIQAS RAUF)

JUDGE JUDGE

M.Sajid*