' ABDUL SATTAR GORAYA. J.--- By means of this Constitutional petition, petitioner seeks a direction in the name of the respondents to release the petitioner's salary from 1-7-2005 till today.
2. The facts as borne out from the record available before me are that the petitioner was serving as Reader in the Court of Senior Civil, Judge, Rahim Yar Khan and in due course of time, for unavoidable reasons, he applied for Leave Preparatory to Retirement (LPR) from 1-7-1994 to 1-7- 2005 through application dated 20-4-2004. After the application of the petitioner was processed and being satisfied that the petitioner had completed 26 years service, LPR for one year before the retirement from service was sanctioned by the learned District and Sessions Judge, Rahim Yar Khan vide order dated 28-6-2004. When few days were left in maturing the period of LPR, petitioner applied on 28-6-2005 to the learned District and Sessions Judge, Rahim Yar Khan whereby it was pointedly brought into focus that he is feeding the entire family and earlier on 1-7-2004 on account of certain problems in the family, he obtained LPR and requested to join again. Learned District and Sessions Judge on office note put-up by the Superintendent and keeping in view the law down in 1984 PLC (C.S.) 1191 and NLR 1980 TD-109 read with Rule 22 of the Revised Leaves Rules, 1981, allowed the petitioner to assume duties and recalled the earlier order dated 28-6-2004. Order dated 29-6- 2005 reads as under:-- "I, Muhammad Akhtar Khan, District and Sessions Judge, Rahim Yar Khan, being the competent authority, hereby re-call Rana Riaz Ahmad Khan, Assistant/ Reader from L.P.R. And allowed to resume his duty w.e.f, 30-6-2005 as Reader to the Vacant Court of Mr. Muhammad Aslam Pervaiz Koraja, Addl: District and Sessions Judge, Rahim Yar Khan. His period of L.P.R. Is converted into earned leave."
' Order dated 29-6-2005, was modified on 16-11-2005 which reads:-- "The office order dated 29-6-2005 under Endst: No,1718 of even date is modified as under:-- ' Rana Riaz Ahmad Khan, Assistant/Reader is re-called and allowed to resume duty in the light of case laws reported in 1984 PLC (C.S.) 1191, 109 and 1475. His period of LPR is converted and treated as leave of any kind due to his credit".
3. Perusal of the afore-noted order discernibly shows that his period of L.P.R. Was converted and treated as a leave of any kind due to his credit. However, the District Accounts Officer refused to pay salary to the petitioner and asked for an advice/clarification. Para No,5 of the Advice/clarification reads:-- "It is further viewed that as inter alia provided in rule 18(2) of the Revised Leave Rules, 1981, all orders refusing LPR to a Civil servant and re-calling a civil servant from LPR shall be passed only by the authorities specified in the said provision, of the said Revised Leave Rules, 1981. As per para 18(2) (ii) ibid, the Secretary of the Administrative Department concerned personally is compete,nt to re-call civil servant, of Grade 16 and below from LPR. In terms of rule 18(3) ibid, the authorities, specified in rule 18(2) (ibid) shall not delegate these powers to any other authority. As such, the orders of the District and Sessions Judge, Rahim Yar Khan bearing Endorsement No,1718 dated 29-6-2005 modified vide order bearing Endorsement No,3087, dated 16-11-2005 re-calling Rana Riaz Ahmad Khan, Asstt./Reader are not covered under the above said provision of Revised Leave Rules, 1981."
4. On this petition, my learned brother Muhammad Khalid Alvi, vide order dated 25-9-2006 called for report and parawise comments from respondent No,1 which have since been received. The Reporting Officer-Deputy Secretary (S.R)-respondent No,4 in his comments stated that the Accountant General Punjab referred the matter to the Finance Department with the views that under Rule 18(2) of the Revised Leave Rules, 1981, all orders refusing LPR to a civil servant and re- calling a civil servant from the LPR shall be passed by the Secretary of the Administrative Department concerned.
5. Learned counsel for the petitioner states that withholding of salary of the petitioner is an act of mala fide on the part of respondent No,l. Further argued that petitioner belongs to the ministerial staff and right from the date of joining, his salary has been stopped as a result whereof he has been deprived of his bread and butter, and not only the petitioner but also his children are suffering. He quoted certain examples that in similar many cases, orders have been withdrawn by the same competent authority to whom the LPR was sanctioned and they are being paid salary but in the case of the petitioner, he is being treated discriminately.
6. The District Accounts Officer, present in Court, states that the order of withdrawal of LPR was illegal and no salary or any part thereof could be paid to the petitioner.
7. I have lent ear to the arguments advanced by learned counsel for the parties and perused the record.
8. District Accounts Officer, Rahim Yar Khan vide his official communication No,DAO/RYK/DA/HM/517 dated 11-6-2007 addressed to the Registrar, Lahore High Court, Lahore stated that in light of the clarification obtained from the Finance Department, Lahore vide No,FD.SR.III-4-20/2006 dated 25- 3-2006, the view of the Accountant-General has been confirmed that the learned District and Sessions Judge was incompetent regarding withdrawal of the order sanctioning LPR. The emphasis of the District Accounts Officer is that since the basic order passed by the learned District and,Sessions Judge is illegal on the basis of which the petitioner is claiming salary, no payment can be made to him. This question came-up for consideration in case Rafi Ullah v. The Division Forest Officer, Gujrat and 2 others 1984 PLC (C.S.) 1191 wherein it has been held that:-- "Law on this point is settled that L.P.R. Was always indispensable part of service and a person while on L.P.R. Would always be treated as in service for all purposes. In Abdul Nabi v. Government of West Pakistan PLD 1973 Quetta 4 learned Judges of the said Court were confronted with similar situation and were pleased to hold that a civil servant was fully entitled to change his mind while in service to withdraw the request for the L.P.R. Or for his retirement. In Jai Ram v. Union of India (FB)
AIR 1954 SC 584 the Lordships of the Supreme Court have discussed in detail the entire case law applicable and came to positive conclusion that a civil servant has right to withdraw his request for retirement and was liable to continue as such. We have fully taken note of all these judgments including the detailed judgment delivered by us in Muhammad Iqbal's case which have been placed on record by the learned counsel for the appellant and find no reason to deviate from the same. The main argument of learned District Attorney is based on the ground that as the appellant stood retired on the date when his request was so acceded to by the Conservator of Forest, therefore, he could not be permitted to withdraw his request. This may be so but the fact remains that the crucial point for determination for us would be, as to whether a civil servant could withdraw his request for retirement when he was still on L.P.R. In the present case we find that there is no dispute about the fact that the appellant did make a request for withdrawal of his earlier prayer for retirement when he was still on L.P.R. In view of these circumstances it would not be the date on which his request was acceded to but the date on which he made such request before the competent authority. In this manner we have no hesitation to repell the argument of the learned District Attorney that the appellant was not permitted to re-call his retirement as he stood retired on the date when such request was accepted by the Conservator of Forest."
9. The moot question remains to be decided is that as to whether the petitioner was competent to withdraw his request or not, the answer is in affirmative. The petitioner has a right to change his mind before maturity of the date of superannuation. Needless to say that no order of retirement was passed as yet, therefore, it was not necessary for the petitioner to go before the next higher authority. It is open to a servant who has expressed his desire to retire from service and apply for L.P.R. To withdraw his request and asked for cancellation of the permission and he can surely be allowed to do so as long as he continues in service and the matter of retirement is not finally decided. I am fortified in my view by Jai Ram v. Union of India AIR 1954 SC 584, Registrar, Lahore High Court, Lahore v. Syed Javed Akbar and another 2007 SCM R 792, Muhammad Salim Khan v.
Director-General, Bureau of Emigration and Overseas Employment, and another 1991 SCM R 440, Government of Sindh through Secretary, S&GAD and another v. Raja Muhammad Inayat Khan 2000 SCM R 1964 and Chairman State Life Insurance Corporation Karachi v. Abdul Rashid 2005 SCM R 97.
10. In any case, the District Accounts Officer or the Finance Department has no jurisdiction to examine the order passed by the learned District and Sessions Judge directing withdrawal of his order of L.P.R. The main case of the Department hinges on the point that according to the Revised Leaves Rules, 1981, petitioner is not entitled to the salary because the order had to be passed by the next higher authority and not by the learned District and Sessions Judge. In the letter No,FD-SR-III-1- 60/79-1 dated 6th July, 1981, the position has been clarified:-- "The matter has been examined further in consultation with the Federal Government and it has been decided that in partial modification of the existing rules/orders, 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."
11. Since the position itself has been clarified by the Finance Department that the Government servant is entitled to withdraw his application for voluntary retirement, the stance taken by the District Accounts Officer or the Finance Department, automatically stands belied.
12. There is yet another aspect of the case that even if the appointment order is found to be illegal or for any reason was suffering from some irregularity, once the Department had implemented the order, the Government servant is entitled to the salary for the period, he has served in the Department. Reference may be made to 1988 SCM R 1249. Article 3 of the Constitution in terms provides that the State shall ensure the elimination of all forms of exploitation and the gradual fulfilment of the fundamental principle, from each according to his ability to each according to his work. The said Article makes it imperative upon the State to eliminate exploitation. It gives a definite guarantee of the gradual fulfilment of the fundamental principle, from each according to his ability to each according to his work. The provision in the Constitution, it has been noticed, cannot put an end to the exploitation unless Herculean efforts are taken by the State functionaries to uproot the social evils which have paralyzed our society. The trend of the District Accounts Officer in a way the matter for payment of salary is being prolonged and the proceedings are being procrastinated, appears to be nothing short of a bureaucratic behaviour. In the given situation, I feel no hesitation in holding that the petitioner is entitled to the salary for the period he has worked in the Department on the basis of the order passed by the learned District and Sessions Judge dated 29- 6-2005.
13. For what has been stated above, this petition is accepted. The impugned action on the part of the respondents in withholding the salary is declared to be without lawful authority and of no legal affect. It is hereby directed that suitable arrangements be made to make salary to the petitioner within period of two months from the receipt of this order. However, in circumstances of the case, there shall be no order as to costs.