' CH. MUHAMMAD ILYAS, (MEMBER).--- The appellant joined Pakistan Air Force as Flight Lieutenant on 8-7-1998 after he was granted Special Purposes Short Service Commission (SPSSC). He applied for the post of Section Officer through proper channel for which he was selected by the FPSC. He tendered thereafter a resignation for joining his new appointment which was accepted on 31-8- 1999 and he assumed the charge of the post of Section Officer, a day after on 1-9-1999. In response to his application made on 13-11-2001 for the counting of his PAF service, Ministry of Finance back referred his case to PAF to know the background of his tendering resignation from PAF. PAF clarified vide their U.O. Dated 5-3-2002 that the appellant was made to understand on his relieving from service that he would not be entitled to any terminal benefits for which he had also submitted a declaration on 21-8-1999 in accordance with para.10(d) of the Appendix "A" to Air Force Order No,177-177, dated 14th June, 1993 stipulating that an officer who is permitted to resign his commission will not be granted any pension or gratuity. The appellant has impugned the order dated 5th March 2002 issued by the Air Headquarter Islamabad to the effect that since the officer resigned his commission at his own accord, there was no financial liability on the part of the PAF for the period in question as he had applied for resignation from service to suit his own convenience.
While posted as Assistant Director, Ministry of Foreign Affairs he filed departmental appeal addressed to the Deputy Chief of Air Staff (Personal Branch) which was duly recommended by the Commandant College Sargodha. He was informed vide Ministry of Foreign Affairs' letter dated 30th August, 2003 as below:--- "(2) Your request for counting Past Air Service towards qualifying service for the purpose of Pension and Pay protection was submitted to the Air Headquarters, Islamabad vide our letter of even number dated 21st May, 2003. The Air Headquarter, Islamabad has informed vide their U.O. No,Air- HQ/12312/ 11911/MNG/PB dated 18-8-2003 that your request has not been acceded to due to policy constraints."
2. The learned counsel for the appellant argued that the appellant's resignation from PAF was meant to take up another appointment as Section Officer in the Office Management Group in which the service counts for pension and therefore it is not a resignation of the public service for the purpose of pension in terms of Article 418 (b)(CSR) which stipulates that resignation of service to take up another appointment in which the service counts for pension is not resignation of the public service for the purpose of pension. He argued that the PAF service being only for a short spell of 14 months was admissible to be counted for at least a complete year of his service in terms of Article 357(a)(CSR) and involved a negligible amount of contribution towards pension liability payable by the Air Force and that the appellant had even otherwise voluntarily consented to bear himself the liability thereof. It was argued that in terms of dictum laid down by the august Supreme Court in PLC (sic) (C.S.) 325, his claim for counting of service was lawful, moreso when there is no interruption in service to constitute any hurdle requiring a specific condonation and the appellant was therefore entitled to combine his PAF service for 14 months with further service as continued in the Office Management Group in terms of Article 418(b) read with Article 420 of the Civil Service Regulations. The Air Force service of about 14 months being less than the minimum length for qualifying service for pension also doe-st not stand in the way of combining it with the service to be rendered by him in the Civil Service of Pakistan till it reaches the limits to qualify for a valuable right, it was argued, of which the appellant cannot be deprived for no fault of his own. The appeal is accompanied by an application for condonation of delay on the plea that the claim pertains to pay and pension against which no limitation runs by virtue of its being a continued cause of action in terms of 1996 PLC (C.S.) 832 and 1994 PLC (C.S.) 4000 and also that the appellant has been diligently and constantly pursuing his case which is otherwise also arguable on the basis of strong merit. It should, therefore, not be knocked out on technical ground of delay which was neither deliberate nor intentional in terms of 1996 PLC (C.S.) 856 and 1985 SCMR 1995.
3. The learned counsel for the respondents stated that the appellant had appeared in the FPSC examination with effect from 20th March, 1998. He was not eligible to join FPSC as per Air Force Order Nos.36-37, dated 13th November, 1993 as he had not completed maximum 7 years commission service and was not eligible as such for grant of N.O.C. A Special Wavier therefore was obtained in relaxation of the existing policy and N.O.C. Was issued and permission granted to him.
His resignation was accepted with effect from 1st November, 1998 with specific restrictions as the appellant resigned from service at his free-will with an undertaking given by him that he would not be eligible for any terminal benefits and PAF would have no liability in this regard. It was argued that the service of the appellant in PAF was subject to PAF law whereunder his service is not reckonable under Rules 592 and 593 of Defence Service Regulations and that Article 480(b) of the Civil Service Rules was not applicable to him.
4. The learned counsel for the appellant cited 2005 TD (Service) 2:',1 to argue that undertaking for not agitating for pensionary benefits would not constitute an estopal from claiming these benefits through an appeal before Service Tribunal and he also cited paragraph 7.220 (ii) of Handbook for Drawing and Disbursing Officers (1982 Edition) that pension contributions can be paid by the foreign employers or the Government servants concerned, as the case may be, according to the agreed terms of deputation.
5. Heard and perused the record. The appeal has been filed against the impugned order dated 18- 8-2003 does involve a delay' which is condoned for the reasons advanced in the application for condonation. The appellant's prayer involves two elements for pay protection and combination of PAF service with that of civil service with all consequential benefits. It is an established law that a resignation to join a new post is not a resignation to disentitle an official from the protection of pay in the last job. It is also established that the appellant was granted N.O.C. For the offer of appointment as Section Officer and also that his resignation was accepted for the purpose of joining his new assignment by the PAF authorities. His resignation therefore falls within the ambit of
(CSR) 418 (b) as both the service in the PAF and Civil Service of Pakistan count for pension. It has on the other hand been misconceived that the claim of the appellant falls in the category of terminal benefits as pay protection does not constitute a terminal benefit and no pensionary benefit is being immediately sought to be paid. The appellant's plea is only to allow him to combine the period of service spent with the Air Force with civil service as a component to qualify for pension when it is actually due. Equally misconceived in this case is the concept of payment of pension contribution which is meant to be collected from a foreign employer to which a civil servant happens to be sent on Foreign Service or deputation which is not the case relevant here. As both the elements of service in the PAF and OMG constitute service under the Government of Pakistan and the pension for both is paid from the same source i,e, civil estimates, no exclusive liability by the Air Force is accordingly contemplated in this regard.
6. In view of the foregoing, we accept the appeal and direct the concerned authorities to take necessary action for a revised pay fixation as well as counting of the service rendered by him in the PAF for the purpose of qualifying for pension.
7. No order as to costs. Parties be informed accordingly.