' TASSADUQ HUSSAIN JILLANI, J.---Through this appeal by leave of the Court, the appellant Inspector-General of Police has challenged the judgment dated 4-1-2011 vide which the learned Service Tribunal allowed the appeal of the respondent Mason serving in the Police Department to withdraw his request for leave preparatory to retirement and set aside the order dated 12-10-2009 passed by the competent authority allowing his voluntary retirement.
2. Learned Additional Advocate-General submitted that the respondent was retired on his own request; that his application having been once accepted and given effect to, he could not be allowed to withdraw his request for retirement and that the learned Service Tribunal has properly construed the ratio laid down in the judgment to which reference has been made in the impugned judgment i,e,, Government of Sindh v. Muhammad Inayat Khan (2000 SCM R 1964). He further submitted that the latest judgment on this issue is reported at Section Officer v. Ghulam Shabbir (2010 SCM R 1425).
3. Learned counsel for respondent defended the impugned judgment by submitting that the Rule 3.5(i) of the Punjab Civil Services Pension Rules makes it permissible for a civil servant to withdraw his prayer for leave preparatory to retirement and the impugned judgment is in consonance with the said provision. .4. Having heard learned Law Officer and learned counsel for the respondent; we find that while passing the impugned judgment, the learned Service Tribunal did not consider the mandate of Rule 3.5(i) of the Punjab Civil Services Pension Rules, which reads as follows:-- "3.5 Retiring Pension - A retiring pension is granted to a Government Servant, who not being eligible for superannuation pension
(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
(ii) is compulsorily retired, by the competent authority, after [10] years qualifying service; [Note (1) 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, indicating 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. (Emphasis is supplied)
' Note (2) The right given under Note (1) shall not be available to a government servant against whom departmental or judicial proceedings are pending.
' Note (3) A government servant can ask for retirement only after completion of 25 years qualifying service. A government servant proceeding on retiring pension shall, unless he has been retired under the Efficiency and Discipline Rules, has the right to avail of such leave preparatory to retirement as may be admissible to him. However, the LPR shall not be allowed to him until he has completed 25 years service qualifying for pension. If a government servant proceeds on LPR before actually completing 25 years of qualifying service, he may be deemed to have proceeded on retirement with effect from the date he completes 25 years of gualifying service, and the leave enjoyed by him before completing 25 years of service may be treated as leave of the kind due to him."
5. Admittedly the application filed by the respondent on 28-8-2009 was allowed on 12-10-2009 and his leave preparatory to retirement had already been given effect to with effect from 1-10-2009 to 30-9-2010. That being so, under Rule 3.5(i) of the Punjab Civil Services Pension Rules, the respondent could not have been allowed to withdraw his request as this request could only be withdrawn provided it had not been acted upon. The said rule mandates that "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."
6. The ratio of the judgment reported at 2000 SCM R 1964, we may observe with respect, has not been correctly appreciated by the learned Service Tribunal inasmuch as in paras 6 and 7 of the said judgment, this Court had referred to precedent case-law wherein the right of a civil servant to withdraw request for retirement had been acknowledged provided his earlier request for retirement had not been given effect to or if the earlier request was based on a medical advice which advice stood superseded by a subsequent opinion of the medical board. Admittedly the case of the respondent does not fall in either of these two categories in the afore-referred circumstances, the impugned judgment is not sustainable, Consequently, this appeal is allowed and the impugned judgment is set aside.