Syed Hamid All Bukhari, Member--The appellants are aggrieved by orders dated 19.12.2011 of Commander, Military Engineering Service (A), Kharian whereby he ordered his subordinate authorities to relieve/discharge the appellants from their duties and in compliance with the orders, the concerned SDOs stopped the appellants verbally from attending their offices. The questions of fact and law involved in all these appeals are identical rather same, therefore, we intend to decide the appeals by this common/single judgment.
2. The brief facts of the case are that the appellants were serving as Labour (RTE) under different SDOs in the respondent-department when they submitted their requests to the higher authority in the year 2009 for grant of Leave Preparatory to Retirement (LPR) to them due to their domestic and personal problems and on acceptance of - the requests they proceeded on leave in the month of July/August, 2009, however, after availing a part of their leave they, in the changed circumstances, they approached the departmental authorities for cancellation of their LPR and it is a matter of record that their requests were allowed and the period of their leave availed by them was converted into LFP by the concerned authority and after re-joining their offices they performed their duties in the department until the end of December, 2011 when they were stopped from coming to office and marking their attendance by their immediate bosses. However, the admitted position in all the appeals is that the appellants performed their duties, for which they were paid their salaries except for the month of December. 2011.
3. The learned counsel for appellants started his arguments by referring to judgments of the Tribunal passed in Appeal Nos, 60(R)CS/2006 and 497(R)CS/2003 and contended that in these appeals the moot point was that as to whether an employee after acceptance of his request for LPR could withdraw his request before expiry of that leave and in deciding this question of law in these cases, the Tribunal replied in affirmative and subsequently this view-point was reaffirmed in Appeals No, 223 & 278 and 1190(R)CS/2010 by the Tribunal and that in the circumstances, the appellants are also entitled to the same relief on the basis of rule of consistency. The next argument of the learned counsel was that the Hon'ble Supreme Court has laid down a principle of law in the case of Hameed Akhtar Niazi (1996 SCMR 1185) that "where a Court or Tribunal decides a point of law relating to the terms of service of a civil servant which covers not only the case of Civil Servant who litigated, but also of other civil servants, who may have not taken any legal proceedings, in such a case, the dictates and rule of good governance demand that the benefit of such judgment by the Court/Tribunal be extended to other civil servants, who may not be parties to the litigation instead of compelling them to approach the Tribunal or any other forum" and that on the strength of this law, the appellants are claiming the benefit of the judgments of the Tribunal referred to above. The learned counsel contended that it is an admitted position in the case of appellants that the orders of the departmental authority regarding cancellation of LPR and conversion of availed of leave of the appellants into LFP were implemented by the concerned authorities and in view of settled law that once an order is acted upon and certain vested rights are accrued in favour of a person those cannot be taken away by the departmental authority in view of principle of locus poenitentiae. In this regard, the learned counsel relied on cases reported as PLD 1969 SC 407, 2004 SCMR 158, 1991 SCMR 2330 and 2003 PLC (C.S.) 333 (SC). In addition to it, the learned counsel stated that even in a case where the orders passed by a departmental authority were illegal and unlawful, the requirement of law was to serve a show-cause notice upon the employee to be affected before withdrawal of such orders but here in this case admittedly the 'competent authority before passing adverse orders against the appellants did not issue show- cause notices to them and that the impugned orders can be set aside by this Tribunal on this score alone. The learned counsel referred to Para-2 of the comments/objections of the respondents and stated that O.M. dated 25.08.1996 of the Establishment Division was taken into consideration in a case reported as 2000 SCMR 1964 and it was categorically held by.the Hon'ble Supreme Court that an employee on LPR could withdraw his request during the LPR and once this principle of law has been laid down by the apex Court any decision in violation of the decision of the Hon'ble Supreme Court would be nullity in the eye of law. The learned counsel also referred to the letters of the Establishment Division, Finance Division and Ministry of Defence communicating to all concerned regarding deletion of provision in CSR 465 that request of LPR once accepted by the competent authority cannot be withdrawn and he emphasized on the fact that the audit authorities on whose objection the orders regarding cancellation of LPR of appellants and its conversion into LFP were recalled had not been briefed properly about the deletion of relevant provision from CSR 465. The learned counsel concluded his arguments by reserving his right of rebuttal and prayed before the Tribunal for acceptance of appeals.
4. The learned counsel for the respondents supported decision of the departmental authority to relieve/discharge the appellants after cancelling the earlier orders regarding allowing them to rejoin their duties during LPR and conversion of their availed of leave into LFP and contended that O.M. dated 25.08.1996 was in the field when the appellants rejoined their duties and, therefore, the case of the appellants was to be decided in the light of instructions available in that O.M. and in this regard, he relied on the cases reported as PLD 1979 SC 835, 1988 PLC (C.S.) 786, 1988 PLC (C.S.)
421 and 1994 PLC (C.S.)
87. The learned counsel further contended that as far as withdrawal of Establishment Division's O.M. dated 25.08.1996 by another O.M. dated 14.07.2011 is concerned; the instructions contained in the later could not be applied retrospectively. He referred to cases reported as PLD 1997 SC 315 and 2012 PLC (C.S.) 889 wherein it has been held that notification of amendment cannot be applied with retrospective effect. Referring to another argument of the learned counsel for appellants, the learned counsel contended that where an order was illegal, the competent authority could withdraw that order at any time. In this regard he relied on case reported as 2011 PLC (C.S.) 1296. The learned counsel for respondent also contended that the appellants have not come to this Tribunal with clean hands and they have filed these appeals just to avoid the recovery of salary of the period they performed duties after rejoining their offices and that respondents were ready to reconsider their decision to recover the said salaries provided they withdrew their appeals from the Tribunal. With these arguments, the learned counsel prayed for dismissal of appeals.
5. In rebuttal, the learned counsel for the appellants submitted that the respondents did not challenge the judgment passed in Appeal No, 1190(R)CS/2010 and implemented it willingly and, therefore, now they were stopped by their conduct to take a different stance as no one can be allowed to blow hot and cold in the same breathe and that if they were not convinced with the decision of the Tribunal in that appeal, they should have challenged that before the apex Court in appeal and the admitted position is that they have not done so. Replying to the contention of learned counsel for the respondents that when the appellant applied for cancellation of their LPR the instruction of 25.08.1996 were in the field, the counsel once again repeated his argument that after decision of the Supreme Court in the case 2000 SCMR 1964 that "a Government servant can withdraw his request for retirement during the LPR " and any order passed by public functionaries in violation of said judgment of the apex Court was patently illegal and void for the reason that principle of law laid down by the Supreme Court was binding on the executive authorities under the provisions of Article-190 of the Constitution of Pakistan, 1973 and also on all subordinate Courts including this Tribunal under Article-189 of the Constitution.
6. We have heard the learned counsel for the parties and have also perused the record.
7. We have considered the arguments of both the learned counsel and are of the considered view that the act of the respondents to allow the appellants to perform their duties for a considerable period of two years after cancellation of their LPR and conversion of their availed of leave into LFP, they were left with no powers to rescind or withdraw their orders under Section-21 of General Clauses Act, 1897 and the principle of locus poenitentiae and another aspect of the case that an employee namely Tahir Mehmood, Supervisor of the same department whose Appeal No, 1190(R)CS/2010 was allowed by this Tribunal was reinstated into service and no appeal against Tribunal's judgment in his case was filed before the Supreme Court and in the circumstances, we feel that the appellants have been discriminated against which is violative of Article-25 of the Constitution of Pakistan. 1973 and in this regard, a plethora of judgments of the Supreme Court is available and leading one is 1991 SCMR 1041. We have gone through the judgments quoted by the learned counsel for the respondents on the points of withdrawal of request of retirement during LPR, locus poenitentiae and retrospective application of instructions of the government and noted that most of the judgments on the point of withdrawal of LPR are of the period when the decision of the Supreme Court in the case 2000 SCMR 1964 was not announced. We have carefully perused the judgment in this case and noted that the Hon'ble Supreme Court of Pakistan examined various judgments from Indian and Pakistani jurisdictions in this case and arrived at a solid conclusion that "a Government servant can withdraw his request for retirement during the LPR". In this regard, we would like to refer to a judgment of the Indian Supreme Court in the case of Jai Ram V. Union of India (AIR 1954 SC 584) wherein it was held that "It may be conceded that it is open to a servant, who has expressed a desire to retire from service and applied to his superior officer to give him the requisite permission, to change his mind subsequently and ask for cancellation the permission thus obtained, but he can be allowed to do so as long as he continues in service and not after it has terminated." We must appreciate that once the Supreme Court of Pakistan after examining the Establishment Division's O.M. dated 25.08.1996 in the case 2000. SCMR 1964 laid down the principle of law that "a Government servant can withdraw his request for retirement during the LPR", the question to interpret the O.M. in a different way was not lawful and the subsequent act of the Government to withdraw the O.M. though it was too late but it was in consonance with the decision of the apex Court in above referred case and we are conscious of the fact that it is obligatory for the Tribunal to follow the law laid down by the Hon'ble Supreme Court in that case.
8. In view of the foregoing reasons, we accept these appeals and set aside the impugned orders of the respondent department dated 19.12.2011 with regard to relieving discharging the appellants from their duties and reinstate them into service from the date they were relieved/ discharge from their duties, with all back benefits and direct the respondents to release their salaries for the period they remained out of service for none of their fault, within a period of two months.
9. There shall be no order as to costs.
10. Parties be informed accordingly.