' FAQIR MUHAMMAD KHOKHAR J.--- The petitioner, Sajjad Ahmed Javed Bhatti, formerly a member of police service of Pakistan (BS-21), stood retired from Government service on 25-12-2007, on attaining the age of superannuation, vide Notification dated 30-10-2007, issued by the Establishment Division, Government of Pakistan, Islamabad. He filed Writ Petition No,773 of 2008 before the Islamabad High Court, seeking a direction to the respondents to give an extension or re- employment in service (in BS-21/22) equal to the period from 4-5-2005 to 25-12-2007, for which he remained posted as Officer on Special Duty (0.S.D.) and was prevented from rendering service to the Government for no fault on his part. He cited, as precedent, a Government Notification dated 18-6-2008 in the case of Dr. Muhammad Shoaib Suddle, a Police Officer (BS-22), issued in pursuance of judgment dated 12-6-2008, of this Court passed in Civil Appeal No,558 of 2008 titled Shahid Hayat and others v. Federation of Pakistan. The writ petition of the petitioner was dismissed by the learned Chief Justice of the Islamabad High Court, vide order dated 9-7-2008. His Intra Court Appeal No,61 of 2008, also met the same fate, vide impugned judgment dated 17-11-2008, passed by a learned Division Bench of the High Court.
2. The petitioner respectfully submitted that the period of his posting as an O.S.D. Could not exceed 30 days. Therefore, he was entitled to further serve the government for the period he remained posted as O.S.D. Notwithstanding his retirement from 'service on attaining the age of superannuation. He placed reliance on the case of Lt.-Col. (R.) Abdul Wajid Malik v. Government of the Punjab and another 2006 SCM R 1360. He further argued that despite the direction of the Federal Service Tribunal, Islamabad, vide judgment dated 4-12-2007 in Appeal No,1667 (R)(C.S.) of 2006, he was unjustifiably prevented from performing his duties to a post in BS-22 although his junior officers were so promoted. Therefore, the respondents were obliged to issue orders of his extension/re-employment in service in BS-21/BS-22 for a period of 2 years, 6 months and 22 days in order to decompensate him for the period from 4-5-2005 to 25-12-2007.
3. On the other hand, the learned Deputy Attorney General for Pakistan submitted that judgment dated 12-6-2008 passed by this Court in Civil Appeal No,558 of 2008 had already been reviewed and set aside by this Court today. Therefore, the petitioner could not claim any right or benefit on its basis. It was further argued that the period for which the petitioner remained posted as 0.S.D.
Had been treated as on duty and counted towards his service for all intents and purposes.
Therefore, there could be no question of his extension or re-employment in service. It was further contended that the petitioner had not been promoted in BS-22 and there was no provision or principle of law where under the period of posting as O.S.D. Could be treated as an interruption in service.
4. We have heard the petitioner and the learned Deputy Attorney General for Pakistan at length. At the outset, we may point out that we have already accepted review petition against judgment dated 12-6-2008, and have also dismissed Civil Appeal No,558 of 2008 as withdrawn. As regards the period of posting of the petitioner as an O.S.D, it was admitted before us that the petitioner had drawn his salary and allowances for the said period which was counted towards his A pensionary benefits as well. It cannot be said by any stretch of imagination that the petitioner remained out of service during his posting as an O.S.D.
5. The procedure for creation of post of Officer on Special Duty (0.S.D:) has been laid down in O.M.
No,5(1)/8/67-DV, dated 19-9-1968, appearing at Serial No,23 (Page 88) of ESTACODE, Civil Establishment Code, Edition, 2007, Volume I, Chapter II as follows:--- "Procedure for Creation of Posts of Officer on Special Duty (0.S.D.) and Making Appointment Thereto.
' A question had arisen whether a procedure should be laid down for creation of posts of O.S.D. And making appointments to such posts. The posts of O.S.D. May be created for the following reasons:--
(1) Government servants (member of regularly constituted service or otherwise permanent) waiting for posting orders.
(2) Deputation of a government servant (member of a regularly constituted service or otherwise deputed) for duty or course of instruction or training in Pakistan or training abroad, for a period exceeding two months, in accordance with the instructions contained in the Ministry of Finance 0.M.No,3005- EGI/52, dated 7-5-1952.
(3) For doing work of a special nature, e.g. Examination and/or implementation of reports of commissions/committees etc.
(4) For overcoming technical difficulties.
(2) In all such cases, concurrence of the Ministry of Finance/Financial Adviser concerned will be necessary before the posts are created.
(3) As to the question of appointment to such posts, the matter has been considered in consultation with the Federal Public Service Commission and it has been decided that Establishment Division and the Commission need not be consulted in regard to appointment to the posts created for the reasons stated at paras.(1) and (2) above.
(4) In regard to posts created for the reasons stated at paras. 1(3) and (4) above, it has been decided that such posts may be filled by suitable officers either by transfer or by promotion or by direct recruitment on the recommendation of the authority concerned.
(5) It has also been decided that the Establishment Division should be consulted before the Ministry of Fihance are approached for creating a post of O.S.D. For the reasons stated at (4) above.
(6) Apart from the cases as mentioned above, there may be instances in which a temporary government servant holding the post of O.S.D. May be sent for duty/training abroad. It has been decided that in such cases if the temporary government servant is holding the post with the approval of the Federal Public Service Commission or the Selection Board, no consultation will be necessary either with the Commission or the Selection Board, no consultation will be necessary either with the Commission or the Establishment Division in the case of deputation for duty, but in the case of deputation for training the Establishment Division should be consulted. In the case of officers appointed without consultation with the Commission or Selection Board, the Establishment Division and the Commission both should be consulted before any such officer is deputed for duty or training abroad."
6. The above Government instructions clearly demonstrate that the post of O.S.D. Can be created to cater for various contingencies including the period during which the government servant remains on training in Pakistan or abroad or for doing work of a special nature such as O.S.D.
(inquiries) or to overcome a technical difficulty. 'It may also be noticed that posting of a civil servant as O.S.D. Does not affect continuity of his service or lien to his substantive post. The service as an O.S.D. Is for all practical purposes and legal consequences is treated as on duty and there is no interruption or break in service. Therefore, it does not stand to reason as to how the period of service spent by a civil servant as an O.S.D. Can be excluded from the age of superannuation. By virtue of provisions of section 10 of the Civil Servants Act, 1973 (Act No, LXXI of 1973), every civil servant is liable to serve any where within or outside Pakistan in any equivalent or higher post under the Federal or any Provincial Government or local authority or a Corporation or body set up or establishment by any Government.
7. However, at times, civil servants are also made O.S.D. Or kept without any posting, in case they have become persona non grata. Therefore, the posting of such officers as O.S.D. For considerably long period is deprecated by the Courts. See the case of Lt.-Col. (R) Abdul D Wajid Malik (supra). It may be unfair and unjust to keep a government servant on tenterhooks without getting any work from him. The right to work is a valuable right of a person as visualized by Article 3 of the Constitution of Islamic Republic of Pakistan, a provision meant to ensure social and economic justice to the people of Pakistan.
8. This Court in the case of Pakistan and others v. Public at large and others PLD 1987 SC 304 observed that right to work was very valuable right which could not be denied. The Supreme Court of India in the case of P.K. Chinnasamy v. Government of Tamil Nadu and others AIR 1988 SC 78 also took the view that:--- "In a democratic polity as ours, the 'bureaucracy work as. The pivot for running the administration.
So far as the State is concerned, matters of policy and the ultimate responsibility for running the administration is obviously of the apex body--the council of Ministers and the Executive Head--the Governor. It cannot be lost sight of that every public officer is a trustee and in respect of the office he holds and the salary and other benefits which he draws, he is obliged to render appropriate service to the State. The scheme postulates that every public officer has to be given some posting commensurate to his status and circumstances should be so as to render commensurate service in lieu of the benefits received by him from the State. If an officer does not behave as required of him under the law he is certainly liable to be punished in accordance with law but it would ordinarily not be appropriate to continue an officer against a post and provide no work to him and yet pay him out of Consolidated Fund.
' We direct the respondent-Government of Tamil Nadu to give an appropriate posting to the appellant within one month from today and once he is given such posting, he must be assigned normal official work to be discharged by him as contemplated under the rules and procedure in respect of the post the appellant is assigned. We hope and trust that the appellant shall be given a proper assignment commensurate to his position in the service and the State Government in its action would exhibit no bias or mala fides. We make it clear that we have not examined the correctness of such allegations as we are sure given an opportunity the State Government would exhibit ideal conduct as an employer and establish by its conduct that the allegations were baseless."
9. It would be instructive to reproduce some extracts from the address of late Mr. Justice M.R.
Kayani made on 17-3-1958, at the C.S.P. Association Dinner on the position of O.S.D., as published in his book "Not the Whole Truth":-- "O.S.D. Stands for 'Officer on Special Duty', a designation which came to be reserved for officers who were on the wrong side of the Ministry. ' There was no special duty to perform and the object was to place them in unimportant positions.
' This year's special text was an institution called the O.S.D., a sort of D.D.T. Which disinfects the mind, a superlative class of C.S.P., where you get full pay without doing any work.
' But the modern O.S.D. Is not so ingenious. For two months and a half he sits idle, not knowing what to do with his three thousand a month, over burdened with three hundred by way of O.S.D.
Allowance. This three hundred is the straw that breaks the camel's back, because in three months he becomes a veritable camel, groaning and grumbling. Sir, I went to visit an O.S.D. On a Friday afternoon in January and found him sleeping in a cold bed room. He had forgotten the use of the sun, in whose glorious warmth the happier people dose away their Friday afternoons. My heart went out to him. Tears came into my eyes. I did not wake him, but I did the best thing: I prayed for him. Sir prayer is the sincerest desire of the soul, and soon thereafter, he got a Stenographer. This is a great achievement, that an O.S.D. Should be able to get a Stenographer after two and a half months, even though he has become a camel in the meantime, and I am convinced that the West Pakistan Government could not have accomplished it without my prayer. In the case of two other officers, whose I forgot to pray, they were compelled by their circumstances to take leave."
10. Late Lord Denning, formerly Master of the Rolls of England, in his landmark book "The Discipline of Law" (pages 188-189), 1979 Edition, observed that "the latest way in which the law about inducing a breach of contract may be extended is by stretching the terms of the contract of employment--so as 'to include by implication an obligation by the employer to provide work ' In the case of Langston v. Auew 1974 WLR 185, he expressed his opinion as follows:--- "We have repeatedly said in this Court that a man has a right to work which the Courts will protect.
See Nagle v. Fielden (1966) 2 QB 633 and Hill v. C.A. Parsons and Co. Ltd. (1972) Ch. 305.
In these days an employer, when employing a skilled man, is bound to provide him with work. By which I mean that the man should be given, the opportunity of doing his work when it is available and is ready and willing to do it. A skilled man takes a pride in his work. He does not do it merely to earn money. He does it so as to make his contribution to the well-being of all. He does it so as to keep himself busy and not idle. To my mind, therefore, it is arguable that in those days a man has, by reason of implication in the contract, 'a right to work. That is, he has a right to, have the opportunity of doing his work when it is there to be done."
11. Section 13 of the Act provides in absolute terms that a civil servant shall retire from service (i) on such date after he has completed twenty years of service qualifying for pension or other retirement benefits as the competent authority may, in public interest, direct; or (ii) where no directions given under clause (i), on the completion of the sixtieth year of his age.
12. Section 14 of the Act provides for employment after retirement as follows:---
(1) A retired civil servant shall not be re-employed under the Federal Government, unless such re- employment is necessary in the public interest and is made with the prior approval of the authority next above the appointing authority: Provided that, where the appointing authority is the President, such re-employment may be ordered with the approval of the President.
(2) Subject to the provisions of subsection (1) of section 3 of the ex-government Servants (Employment with Foreign Governments) (Prohibition) Act, 1996 XII of 1966, a civil servant may, during leave preparatory to retirement, or after retirement from Government service, seek any private employment: ' Provided that, where employment is sought by a civil servant while on leave preparatory to retirement or within two years of the date of his retirement, he shall obtain the prior approval of the prescribed authority."
13. It is abundantly clear that retirement of a civil servant from service has to take place, in any case, on the completion of sixtieth year of his age which cannot be postponed for the reason that the person remained on an erratic posting for certain period or that he was prevented from discharging his official duties for any other cause such as suspension or forced leave or withholding of promotion. Civil servant E may be suspended from service on disciplinary grounds or for committal to prison on a criminal charge or he may be chucked out but subsequently re- instated in service or restored to office before or after he has attained the age of superannuation fixed by the Act of Parliament. The suspension from service on disciplinary grounds, or committal to prison as envisaged by Rule 194 of the Civil Service Regulations may result in temporary severance from office but a Civil servant very much continues to be in service of Government. In the case of Messrs East-End Exports, Karachi v. The Chief Controller of Imports and Exports, Rawalpindi and another PLD 1965 SC 605, it was observed that a government servant, by reason of his suspension did not lose his office or suffer degradation. His rank remained the same. He merely ceased to discharge the duties of his office during pendency of the departmental enquiry against him and continued to draw subsistence allowance during period of his suspension. In the case of honourable acquittal, he was allowed to draw full salary for the period of suspension. A somewhat similar view was taken in the case of Mian Muhammad Hayat v. Province of West Pakistan PLD 1964 SC 321. By virtue of F.R.53(b) of the Fundamental Rules, a government servant under suspension is now entitled to subsistence grant comprising of full pay and allowances and all other benefits and facilities drawn or enjoyed by him, immediately before his suspension, as part of his service conditions prior to such suspension, in view of judgment of this Court in Government of N.-W.F.P. v.
I.A. Sherwani and another PLD 1994 SC 72.
14. In case the petitioner is found entitled to the grant of BS-22, that, would give him benefit of revision of pay and pension etc. But not the right to further extension or re-employment in government service on that account. Under section 14 of the Civil Servants Act, a civil servant is not to be re-employed by the-government unless his re-employment is considered by the competent authority to be in the public interest. A retiring or retired civil servant cannot demand re- employment as a matter of right. In our considered view, no extra tenure can be given to a civil servant by way of extension or re-employment of service on the ground that he was prevented from performing his duties of office for a certain period on account of circumstances beyond his control or for which he was not at fault or for any other cause. The impugned judgment of the High Court is plainly correct to which no exception can be taken.
15. For the foregoing reasons, we do not find any merit in this petition and the same is dismissed and leave to appeal is refused accordingly.
Leave to .