' UMAR ATA BANDIAL, J---Learned counsel for the respondent has shown from the Esta Code the proviso added to rule 3.5 of the West Pakistan Civil Servants Pension Rules, 1963 ("Rules") vide Notification No,F.D. (SR-III) 4-1/89, dated 1st March, 1992. This proviso requires that a Government servant opting to retire on completion of 25 years' service must give 3 months prior written intimation to his appointing authority about the date when he wants to retire. Learned counsel for the respondents submits that the duration of the aforesaid notice is a mandatory provision of law. Rule 3 (5) supra provides as under:--- 3.5. Retiring Pension.---A Retiring pension is granted to a Government servant, who not being eligible for superannuation person:---
(i) Opts to retire after 25 years' qualifying service or such less time as may for any special class of Government servant be prescribed; or
(ia) is compulsorily retired, by the competent authority, after 10 years qualifying service;
(ii) is compulsorily retire from service by the authority competent to remove him from service on grounds of inefficiency, misconduct or corruption.
' Subject to the provisions of the Essential Services Maintenance Act, all Government servants shall have the right to retire on a retiring pension after completing 25 years qualifying service provided that a Government servant, who intends to retire before attaining the age of superannuation, shall, at least three months before the date on which he intends to retire, submit a written intimation to the authority which appointed him, including the 'date on which he intends to retire. Such an intimation once submitted shall be final; provided that if a Government servant withdraws his application for voluntary retirement, or modifies the date of such 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its acceptance by the competent authority, the application or the date of retirement shall be deemed to have been withdrawn or modified, as the case may be."
2. In the present case the petitioner's deceased husband opted for voluntary retirement on 5-3- 1999 after completion of 25 years' service. That application was entered in the respondents' record on 25-3-1999. Unfortunately, the applicant died on 18-4-1999 before the expiry of three months notice period. As a result of the stand taken by the respondents that the aforesaid notice period is mandatory, the retirement pension available upon optional retirement on completion of 25 years' service by the petitioner's husband was refused to the petitioner and she is being given only a family pension. The present petition is filed to overcome the interpretation that the completion of 3 months prior notice about date of optional retirement in the Rules is of mandatory effect.
3. The retirement in the Rules for three months to pass before the date of retirement fixes the earliest date when the retirement becomes effective. This gives the employer department 90 days time to organize its work, arrange replacement of an opting employee apart from giving the Government advance notice of its financial obligation. Another consequence is that an option to retire becomes irrevocable and final after the expiry of the notice period.
4. On the other hand, the impugned action in the present case interprets the proviso to Rule 3.5 supra to mean that in the event of death of an opting Government servant revokes his option. This is neither the intention nor the effect of the proviso as evident from the express language thereof.
No penal consequence of the notice that is interrupted by any cause, let alone an involuntary event like death, is provided in the proviso. In the absence of provision of a consequence the duration of such notice cannot be treated as mandatory. For authority reference may be made to the case of Mian Asif Islam v. Mian Muhammad Asif and others (PLD 2001 SC 499).
5. In any event, the entitlement to a retiring pension is an incident of a valid option to retire exercised after 25 years' service. That right cannot be destroyed without express language of the law-maker. At most the proviso can work to fix the earliest date of retirement and hence the date of payment of a retiring pension to the petitioner. However, by giving a broad and sweeping meaning to the proviso the impugned action canot enlarge its scope to deprive the petitioner of her entitlement to a retiring pension. As death and not any voluntary act of revocation intervened the date of opted retirement of the petitioner's husband, his death cannot be penalized by being characterized as a revocation. Consequently, the impugned action is illegal. The petitioner remains entitled to receive retirement benefits due on the opted retirement of her husband being valid and effective. Such a right includes a right to receive a retiring pension.
6. The review order dated 16-6-2004 passed in the matter by the learned Provincial Ombudsman, respondent No,3, is cursory because it does not examine the foregoing legal aspect about the validity of the impugned action and is therefore set aside.
7. In the light of the foregoing discussion, the respondents Nos.1 and 2 are directed to release to the petitioner a retiring pension to which she is entitled in accordance with the Rules and in this respect the completion of three months' notice period about date of opted retirement by her deceased husband shall not be a mandatory condition for her entitlement to such pension.