1. ' KHILJI ARIF HUSSAIN, J.--- Brief facts for the purpose of deciding listed petition are that petitioner was initially appointed in the Services of Sindh Auqaf Department as Junior Clerk (BPS-5) and thereafter he was allowed on regular promotion in BPS-11 on 2-9-1986, he was then drawing the salary under BPS-11 and thereafter his cadre was changed and placed in the cadre of Assistant Manager Auqaf BPS-11 with effect from 2-7-1989. On 20-9-2006 a notice was served upon the petitioner that he has been removed from service on account of misconduct. The order of removal was impugned before Sindh Service Tribunal by way of filing service appeal, the order of removal was set aside by the Service Tribunal and petitioner was reinstated in service.
2. After petitioner has been reinstated in service, he was again served with charge-sheet, show- cause notice for de novo inquiry and after finalization of inquiry initiated against the petitioner and as no allegation was proved by inquiry, proceedings against the petitioner stood concluded and the competent authority while taking lenient view retired the petitioner from services with immediate effect. After passing retirement order, the petitioner has submitted an application for fixation of pay in accordance with the order, dated 12-10-2007 whereby the respondent No,2 issued revised pay scale and fringed benefits of civil employees of its office. On failure of respondents Nos.2 and 3 to process the pension, case of the petitioner that after fixation of the pay for intervening period petitioner seeks direction to issue writ of mandamus to respondents Nos.2 and 3 to process, finalize and release the pension of the petitioner after fixation of the pay in accordance with order, dated 12-10-2007.
3. ' Heard Mr. Muhammad Arshad Khan Tanoli learned counsel for the petitioner, Mr. A. Fateh Malik learned counsel for respondent No, 1/Additional Advocate-General and MR. Sanaullah Noor Ghauri, learned counsel for the respondent No,2.
4. The petitioner's case is that after serving 34 years, the respondent ordered for retirement of the petitioner is without any justification not only failed to determine pay of the petitioner in accordance with order, dated 12-10-2007 but also failed to process, finalize and release the pension funding to the petitioner.
5. ' Mr. Sanaullah Noor Ghauri, learned counsel for the respondent No,2, argued that inquiry against the petitioner was conducted regarding his date of birth and he gave Photostat copy of Matric Certificate which was verified from Board of Intermediate and Secondary Education, Karachi and it was found that his date of birth was initially 10-2-1944 in stead of 10-2-1954. Inquiry Officer in his concluding para. Looking to provision of section 3 and Rule 12-A of Civil Servants Act, 2000 and Appointment Promotion and Transfer Rules, 1973 and judgment of Sindh Services Tribunal, dated 25-7-2007 argued that petitioner has unauthorisedly and unlawfully remained in service for more than two years six months and as such petitioner's pension can be released after adjusting the salary of two years eight months and eleven days as such petitioner pension can be released after adjusting the salary of two years eight months and eleven days.
6. ' We have taken into consideration arguments advanced by the learned advocates for the petitioner as well as of the respondents, perused the record.
7. ' From the record it appears that during the audit of service record officially by respondent No,3 date of birth of petitioner was found suspicious and he was directed to produce Matriculation Certificate and on verification from Board of Intermediate and Secondary Education, Karachi reported as per date of birth of incumbent thereto record was on 10-2-1944 whereas his Matric Certificate attached with the Service Book petitioner's date of birth was 10-2-1954. After inquiry major penalty of dismissal from service was passed which order was challenged before the Sindh Service Tribunal on 25-7-2007, accepted the appeal and set aside the order, the matter was remanded to respondent and the respondent thereafter initiated the fresh proceedings under Removal from Service (Special Powers) Sindh Ordinance IX of 2000 and petitioner was placed under suspicion with effect from 30th August, 2007. During pendency of the inquiry petitioner was reinstated on 4-10-2007. Inquiry Officer was appointed to recommend looking to the provision of Rule 3-12A of Civil Servants Act, 2000 (Appointment Promotion and Transfer) Rules, 1973 and judgment of Special Service Tribunal that petitioner may be exonerated from the charge, the intervening period of the petitioner with effect from 20-9-2006 to 27-7-2007 may be allowed in the interest of justice .Specially he is holding fair service calibre. Chief Administrator Auqaf on 2-1-2008 retired the petitioner from his service with effect from and treated intervening period from 20-9- 2006 to 27-7-2007 as on duty. Respondent now having surrendered pension benefits of the petitioner as he has taken pay for two years seven months and eleven days beyond his real age of superannuation and said amount is recoverable from him. The petitioner was served with the charge-sheet alleging therein about the manipulation in date of birth and exonerated from such charge by the Inquiry Officer charge against the petitioner for manipulation in his date of birth was apparently not proved against the petitioner and he was exonerated by such charge by the Inquiry Officer if for any reason respondent before denying the petitioner from his right of pension and pensioner benefits including on the basis of his pay scale allowed by the Government with effect from 1-7-2007 right of pensionary benefits. Respondent without any inquiry or providing opportunity of hearing cannot deprive the petitioner from his right of pension funding benefit just on allegation about the manipulation in date of birth of petitioner. The petitioner joined services in December, 1974 and as required mention his date of birth such disclosure date of birth can modify amend with prescribed period of time in terms of Provision of 3 12-A of Civil Servants Act, 2000 (Appointment Promotion and Transfer) Rules, 1973. The respondent is, therefore, directed to process, finalize and release pension after fixing the pay in accordance with order, dated 12-10-2007 passed by respondent No,2.