LAHORE-Mr Justice Hafiz Tariq Nasim of Lahore High Court (LHC) has set aside the dismissal order of an Army major and restored his retirement order after he showed disinterest in reinstatement, directing Defence Ministry to release his pensionary emoluments. The petitioner Major (Retd) Tahir Hussain was given retirement on March 7, 2000 by Military Secretary against which he had filed a departmental appeal. His appeal was rejected and his retirement was converted into dismissal from service on October 13, 2000. Major Tahir had filed a Constitutional petition in the Lahore High Court after Supreme Court had retuned his petition on the plea that court lacked jurisdiction since no question of public importance was involved,in the matter. SC had ,however, observed 'the appellant(Tahir) should have a right to raise the question of malafide and non-availability before High Court through a Constitutional petition. Therefore the appellant may approach High Court and raise all the objections in the said Constitutional petition which should be determined according to the law. The petitioner pleaded before the LHC that he was condemned unheard before retirement, neither any show-cause notice was served nor any opportunity of personal hearing was afforded to him. He said his representation against the order of retirement was not considered with application of an independent mind rather it was done in an arbitrary manner. He said his compulsory retirement was converted into dismissal in violation of Article 13 of the Constitution and have a sufficient ground for quashment of the impugned orders dated Oct 13, 2000. Pleading his case in person, Major (Retd) Tahir further said that now he was not interested in his reinstatement but prayed that his dismissal orders be declared illegal and the retirement orders be restored, so that he can get the pensionary benefits. A Deputy Attorney General on behalf of respondents submitted that in view of bar envisaged in article 199(3) of the Constitution, the High Court cannot go into the vires of the impugned orders passed by defence services. He pleaded that this Constitutional petition is not maintainable. He further said dismissal order passed by a competent authority while exercising its discretionary powers were not amenable to judicial scrutiny. The law officer pointed out that in defence services before passing any order of dismissal, there was no requirement of issuance of any show-cause notice or personal hearing. That is why petitioner was neither served a show-cause notice nor given a chance of personal hearing. Justice Hafiz Tariq Nasim after hearing the arguments from both sides observed as far as the issue of this petitions maintainability is concerned Supreme Court had allowed the petitioner to approach High Court where all the questions should be decided in accordance with law and Constitution. Following this the judge set aside the objection raised by the law officer about the maintainability of the petition. So far the contention of the law officer regarding exercise of discretion was concerned, judge observed that it was well settled law laid down by the Supreme Court in series of judgments that exercise of powers of discretion must be fair, unbiased and transparent. The judge also cited a judgment of SC wherein it was held:functionaries of any organisation or establishment cannot be allowed to exercise discretion at their whims, sweet will or in an arbitrary manner, rather they are bound to act fairly, evenly and justly. Judge observed that even before the retirement order, neither the petitioner was served with show-cause notice nor he was allowed to explain his case in person before the competent authority, what to talk of issuance of show-cause or affording a chance of personal hearing before passing the dismissal order. 'This is a sufficient ground for setting aside the impugned orders, being a violative of principle of natural justice, which otherwise amounts to violation of fundamental right, judge further observed. The judge also observed that in the present case there was a visible violation of Article 13 of the Constitution which prohibits double punishment/prosecution. 'No doubt, the appellate authority(departmental authority) can reverse the order of his retirement but before passing such order, if appellate authority thinks to enhance the penalty without issuance of show-cause notice and without giving an opportunity of personal hearing the penalty could not have been enhanced. And while doing so the appellate authority through order dated October-19, 2000 acted in exercise of its jurisdiction, violating the specific provisions of article 13, judge ruled. Thus the impugned order cannot hold field as law laid down by SC in the case of the Director General (Field) Agricultural Department vs Haji Abdul Rehman (1989) and Shakeel Ahmad vs IGP Punjab(2007). Hence, the judge declared the dismissal order of the petitioner as illegal, without jurisdiction and set aside and subsequently restored his retirement orders. The petitioner should be entitled to pensionary benefits as per undertaking in the retirement order issued by the Military Secretary, GHQ, Rawalpindi. The Secretary Defence Ministry was directed to release the petitioners pension according to his retirement orders, Justice Hafiz Tariq Nasim wrote in his order while allowing the petition.