' FALAK SHER, J.--- Appellant while serving as Commissioner of Income Tax (Appeals) Zone-VI, Karachi in BS-20 through letter dated 25-2-2000 sought premature retirement, consequent upon completion of 25 years of qualifying service reportedly for health reasons, hotly pursuing it with the prescribed formalities which was eventually accepted vide Notification, dated 30-3-2000 of the Income Tax Establishment, Government of Pakistan Revenue Division, Central Board of Revenue, relevant text whereof for the sake of convenience is reproduced hereinbelow:-- "(To be published in the Gazette of Pakistan Part I) Government of Pakistan Revenue Division Central Board of Revenue (Administration Income tax'
' Islamabad, the 30th March, 2000 ' Notification (Income-tax Establishment)
' No,88-ITE/2000 the competent Authority has been pleased to accept premature retirement from Government Service of Mr. Muhammad Yousaf Butt, Commissioner of Income Tax (BS-20), Appeals Zone-VI, Karachi, who shall proceed on premature retirement with effect from 26-5-2000."
2. Subsequently, acclaiming to have withdrawn the option through letter, dated 29-3-2000 addressed to the Chairman, Central Board of Revenue, Government of Pakistan, Islamabad alleged to have been received by the Chairman's Secretariat vide daily Diary No,2402 of thesame date i.e, a day prior to the acceptance notification, sought recalling of the Notification through letter dated 13-5-2000 which request was turned down vide letter, dated 26-5-2000 enshrining the following:-- "From ' Mr. S. Anjum Bashir, Secretary (DTA).
' Mr. Muhammad Yousaf Butt, Commissioner of Income Tax (Appeals-VI), 26-Garden Road, Income Tax Officers Colony, Karachi.
' Subject: Retirement on completion of 25 years service.
' I am directed to refer to your request dated 13-5-2000 regarding withdrawal of your option to retire on completion of 25 years qualifying service.
(2) Thee matter has been examined in detail in consultation with Establishment Division and regretfully inform you that you cannot withdraw your option as per terms of Note-1, below CSR 465(b) read with Establishment Division's O.M. No,F.14/10/95- R.2, dated 25-8-1996, a Civil Servant cannot be allowed to withdraw his request for premature retirement after its acceptance by the Competent Authority.
(3) You have already been notified to retire w.e.f, 26-5-2000 vide Notification No,88-ITE/2000, dated 30-3-2000."
3. Against which his appeal, dated 21-6-2000 addressed to the President of Pakistan having remained unresponded, impugned legality thereof before the Federal Service Tribunal urging bifold submissions viz. Had withdrawn the option of premature retirement prior to the issuance of the acceptance notification which even otherwise has not been accepted by the Competent Authority.
4. Which was dismissed vide impugned judgment, dated 19-9-2001 repelling both the submissions opining that the letter of withdrawal dated 29-3-2000 being a fake and forged document, the Competent Authority had accepted the option, in addition to the appeal being barred by time, concluding as under:- "(12) Learned counsel for the appellant, during the course of arguments, has argued that the appellant had himself gone to Islamabad and submitted application dated 29-3-2000, but when he was confronted with the situation that the appellant was very much present on duty at Karachi on the said' date, then he changed the version and argued that the cousin of the appellant had gone to Islamabad to submit the application, which was received by the department and diarized at serial No,2402 on 29-3-2000.
(13) This submission made by the learned counsel for the appellant is not acceptable to us due to the reason that there is cutting in the date in the first instance and secondly when the diary No, "2402" was verified from the original diary register, it appears that serial.No,2402, was a letter received from "HQ Artillery 5 Corps., Karachi-4", such photo copy has been kept on record after sealing the original. This shows that the diary number, which was given by the appellant, is not only fake and forged one but appears to have been maneuvered only to create a ground and to show that the said application was moved prior to the issuance of the notification. If at all the appellant was so interested in withdrawal of his option for retirement on medical ground, he could have sent it by fax immediately when he got advice from the Doctors that he could continue in service, but this was not done. No doubt, option once made can be withdrawn or taken back prior to the issuance of the notification and such mention finds place in Estacode Serial No,6(2), page 968, 2000 Edition, which is reproduced below:-- "(2) The matter has been examined in consultation with the Law Division and the Finance Division and it has been decided that, in partial modification of the existing rules/orders, if a Government servant withdraws his application for premature retirement or modifies the date of retirement, before its acceptance by the Competent Authority, the application or the date of retirement shall be deemed to have been withdrawn or modified, as the case may be."
(14) In such a situation it appears that moving of belated application is nothing but afterthought and if the appellant had the intention to withdraw the option for retirement he could have done so at an early date and when this was not done, application appears to have been planted with fake diary number, which has been compared with the original number where no such mention finds place and in such circumstances, we will not be in a position to consider the submissions made by.The counsel for appellant that the application dated 29-3-2000, was well within time. No doubt, the fact of non-genuineness of the application dated 29-3-2000 is not mentioned in the comments but the very receipt of the said application has been denied, as such, the argument oflearned counsel for appellant in that context is without any force. At the same time, the argument of learned counsel for the respondent about limitation- is worthy of consideration on the ground that the impugned notification is dated 30-3-2000 against which departmental appeal was filed on 13-5-2000 and the rejection order was passed on 26-5-2000, whereafter the appellant addressed appeal to the President of Islamic Republic of Pakistan on 21-6-2000 and when the same was not responded, he filed service appeal before this Tribunal on 11-10-2000. Calculation if made reveals that the time will be counted from the date of notification i.e, 30-3-2000 meaning thereby that the appeal was to be filed within 30 days from the date of impugned order, but the appellant filed appeal on 13-5-2000, which was rejected on 26-5-2000. Thereafter, the appeal was made to the President of Islamic Republic of Pakistan on 21-6-2000 but in all fairness the said appeal ought to have been made within 30 days from the date of impugned order. In such circumstances, the question raised by the counsel for the respondents has some force. We are in respectful agreement with the authorities cited by the counsel for the respondents, but the judgment of learned Sindh Service Tribunal in Appeal No,11/1999, cited by counsel for appellant, appears to be somewhat distinguishable as in the instant case the department itself had written that they need the services of the appellant therein, but subsequently, his case was not considered whereas in the present case the department has not at all claimed that it needed experienced persons as has been claimed by the appellant."
5. Hence the captioned appeal by leave of the Court reiterating thesubmission, additionally assailing the finding as to limitation contending that the appeal before the Tribunal was filed within the statutory period awaiting fate of the departmental appeal.
6. Which we are afraid is utterly misconceived even if the plea as to limitation is accepted.
7. Adverting to the submission as to the alleged withdrawal of the sought for premature retirement letter dated 29-3-2000, it may be pointed out that though the appellant had a right to withdraw the same before its acceptance vide notification dated 30-3-2000, as postulated by serial No,7 of Chapter No,X of the ESTACODE styled as "retirement and reemployment", text whereof for the sake of convenience is reproduced hereinbelow:-- "Sl. No,7 Recall to duty after premature retirement.--- Attention is invited to establishment Division's O.M. No,23/2/81-CV(B) dated 12-4-1981 according to which option to withdraw or modify the request for premature retirement is available to a Government servant only before the said request is accepted by the: Competent Authority. Requests for premature retirement once accepted by the competent authority cannot, repeat cannot, be allowed to be withdrawn or modified. Recall to duty after acceptance of request for voluntary retirement amounts to reemployment for which approval of the Prime Minister is required.
(2) Ministries/Divisions are requested to bring the above position to the notice of all concerned including their attached departments and subordinate offices, autonomous and semi- autonomous organizations, etc. To ensure strict compliance with the above stated provision."
' But not thereafter since the same attained finality being a past and closed transaction: Pursuant whereto the appellant admittedly had received all the pensionary benefits which even otherwise has been factually found to be a fake and forged document which finding is duly borne out from the register which was produced in these proceedings by the learned Standing Counsel on behalf of the respondents.
7-A. Likewise the second plea that the President was the competent authority to accept the appellant's request for premature retirement banking upon section 5 of the Civil Servants Act, 1973 read with Rule 6(1) of The Civil Servant Appointment, Promotion and Transfer) Rules, 1973 and Rule 2(2) of The Government Servants (Efficiency and Discipline) Rules, 1973, relevant texts whereof for the sake of convenience of reference are reproduced hereinbelow seriatim:-- Section 5 "(5) Appointments.--- Appointments to an All Pakistan Service or to a civil post of the Federation or to a civil post in connection with the affairs of the Federation, including any civil post connected with defence shall be made in the prescribed manner by the President or by a person authorized by the President in that behalf."
Rule 6(1). The authorities competent to make appointments to the various posts shall be as follows:-- ' Posts.Appointing Authority1. Posts in basic pay scale 20 and above Presidentor equivalent, i.e, posts carrying pay with the maximum of Rs,5,240 and above.
"Rule 2(2) 'authority' means the President or an officer or authority designated by him to exercise the powers of the authority under these rules;" ' is ill-founded because plain reading thereof, patently spells out that under section 5 of the Civil Servants Act, 1973 the appointing authority is the President or a person authorized-by the President in that behalf and Rule 6(1) (ibid) having been made pursuant to the Rule-making power perceived by section 25 (ibid) is subservient thereto, whereunder serial No,2 of Chapter No,X of the ESTACODE contemplates that the competent authority in the case of Grade 21 Officers and above is the Prime Minister and in the case of Officers in Grade 17 to 20 is the Secretary of the Ministry/Division 'concerned which in the instant case happens to be the Chairman, C.B.R. Ex officio Secretary, who has accepted the appellant's option.
8. Consequently, the appeal being devoid of any substance fails and is hereby dismissed with costs.
9. Before parting, we may observe that the Chairman, C.B.R. Being the competent authority would be at liberty to proceed against the appellant in accordance with law for having fabricated fake withdrawal letter, dated 29-3-2000 and used the same alleging its receipt by the Chairman's Secretariat vide Daily Diary No,2402 of 29-3-2000.