1. MUHAMMAD HALEEM, J.-This appeal is by special leave against the order of the Punjab Service Tribunal dated 24th of March 1977, by which Appeal No. 615/329 of 1974 was allowed.
2. The respondent was born on 11th of March 1919, and jointed service in the Food Department of the Government of Punjab on 5th of January 1946. On 20th of July 1970, whilst working as Establishment Assistant in the same Department, he applied for voluntarily retirement from service on completion of 241 years of service through an application of the same date. Rule 3.5 (i) of the West Pakistan Civil Servants Pension Rules, 1963, provides that such application should be given three months before completing 25 years service for pension. Therefore, this application was premature by 3 months when it was presented. Nonetheless, the Secretary to the Food Department, Government of Punjab, by order dated 5th of August 1970, allowed him to retire from the forenoon of 9th of August 1971. He was further allowed leave for one year, half of it was on average pay and the remaining 6 months on half average pay with effect from 10th of August 1970.
3. His case was sent to the Accountant-General, Punjab, for verification of leave and pension and on an objection raised that L. P. R. Could not be granted as the respondent had not completed 25 years service, the Secretary to the Government by order dated 22nd of December 1977, modified his earlier order substantially to the effect that the L. P. R. For one year was cancelled and in lieu thereof he was granted 4 months leave on full average salary with effect from 10th of August 1970 to 9th of December 1973, and 28 days leave on half average pay from 10th of December 1970 to 6th of January 1971. Further he was permitted to retire from the afternoon of 6th of January 1971, on which date he had completed 25 years service for pension. However, before the passing of the second order the respondent, on 3rd of June 1971, made an application stating that as his circumstances had changed, he should be permitted to withdraw his request for voluntary retirement which was not acceded to as is clear from the order dated 22nd of December 1971.
4. Accordingly, the respondent filed an appeal before the Punjab Service Tribunal impugning the order dated 22nd of December 1971. On behalf of the appellant, reliance was placed on Para. 8 of the letter No. SO (SR) V-257/67, dated 27th of April 1967, issued by the Government ofWest Pakistan, Finance Department, wherein it is provided that the option to retire once exercised is final and could not be modified or withdrawn. But the Punjab Service Tribunal relied on Abdul Nabi v. Govern- -ment of West Pakistan (PLD 1973 Quetta 4), in which it was held that this letter did not have the force of a Rule, therefore, the Secretary to the Food Department, wrongly refused to allow him to resume his duties till he reached the age of superannuation.
5. Leave was granted to consider the question as to whether it was permissible to withdraw his request for retirement after the respondent had completed 25 years qualifying service for pension; and further, in the absence of any Rule the Government had the discretion to disallow his request.
6. Therefore, in the light of this order it is the legal effect of Para. 8 of memorandum No. SO(SR)V- 257/67 dated 27th of April 1967, which was required to be considered in regard to the withdrawal of the request for voluntary retirement. This was also the question for decision in Abdul Nabi v.
7. Government of Pakistan, which was decided by one of us. In that case also Para. 8 was pressed into service but it was held, upon a careful analysis of the circumstances, that it failed to satisfy the test of having the force of Rule on the basis of the criterion laid down in Abdul Hamid's case (PLD 1961 SC 105), and, therefore, the prayer for withdrawal was not bit by it. The facts of that case were equally distinguishable as the petitioner in that case was duly informed after completion of 25 years of service for pension that he would continue to remain in service till he attained the age of superannuation; and in this background it was held that the withdrawal of the prayer for voluntary retirement could not be resisted on the request for voluntary retirement was made under a genuine "misapprehension caused by wrong medical advice. The Tribunal gave the relief to the respondent whilst acting on the dictum laid down in this case namely that Para. 8 of the let& did not have the force of a Rule to have a binding effect, which conclusion the learned Assistant Advocate-General now challenges.
8. Having examined the case at length we are of the view that it was correctly decided but it was misapplied to the facts of the present case which had no parallel with those of the precedent case.
9. It is not necessary to dilate on that aspect of the matter as the appeal can be disposed of on another ground. The learned Assistant Advocate-General contends that Article 171(4) (a) of 1962 Constitution gave legal validity to his retirement as the respondent had completed 25 years qualifying service for pension. It is true that the orders are not expressed in terms of Article 178, clause (4) (a) yet it is not the form but the substance which has to be looked into; and as for the discretion of the Government to retire a Government servant on this ground I would refer here to the observation of this Court in Farzand Ali v. The Province of Pakistan (PLD1973SC98). In the events which preceded the passing of the order dated ?.2nd of December 1971, the respondent showed his unequivocal intention to retire from service voluntarily on completion of 25 years qualifying service for pension though technically the application was premature by three months, yet nothing turns on it as, when the first order was passed on 5th of August 1970, the premature period had passed over and he was allowed to retire with effect from the forenoon of 9th of August 1971, and the interregnum was treated as L. P. R. And the respondent drew the leave benefits there--under. There was, therefore, compliance with this constitutional provision as the date of retirement was specifically stated. Nonetheless when the L. P. R. Was about to come to an end the respondent, by an application dated 3rd of June 1971, showed his desire to withdraw his request which apparently was misconceived as on that date an effective order for hi retirement had already been passed.
10. The option having been once exercised it did not lie in his mouth to go back on it in the context of the finality of the consequences ensuing therefrom by its acceptance.
11. In this context it was also brought to our notice that the Govern--ment had waived to recover the over payments made to him consequent upon the modification of the L. P. R. By order dated 22nd of December 1971, which again shows that the decision of the Government was irrevocable. The second order was passed to regularise the L. P. R. And the benefits due thereunder in relation to the date on which he completed 25 years qualifying service for pension in terms of the audit objection; and this was in continuation of the earlier order dated 5th of August 1970. Despite the date of his having completed 25 years of service being retrospectively shown as 6th of January 1971, the respondent drew the benefits of the L. P. R. Until the date originally fixed for his retirement that is 9th of August 1971, and therefore, factually this was the date on which he retired. The subsequent order was passed on 22nd of December 1971, much after this date and, therefore, technically, the constitutional require--ment was duly complied with as the respondent must be regarded to have retired pursuant to the order dated 5th of August 1970. The second order was of a corrective nature.
12. The learned Assistant Advocate-General, while urging its validity had not argued from this angle but it appears to us that the principal order is the order dated 6th of August 1970, which continued to operate till the date on which he was ordered to retire. An amendment made to this order after the retirement of the respondent would not affect its operation as it had been duly acted upon.
13. Accordingly, it is the order dated 5th of August 1970, which falls within the ambit of Article 178(4) (a) and no legitimate exception can be taken to it.
14. The learned counsel for the respondent contends that the appellant did not rely on the constitutional provision earlier and, therefore, it cannot be pressed into service now. But it goes without saying that is open to the appellant to defend the order by recourse to any legal provision and therefore, there can be no bar against it.
15. In the light of the above discussion, we allow the appeal but with no order as to costs.