MUHAMMAD YOUNIS THAHEEM, J- Petitioner has invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, seeking following relief:- "On acceptance of this writ petition the inaction of the respondents by not allowing/releasing pension benefits and leave preparatory to retirement encashment w.e.f. 18.12.2010 to 17.12.201 1 to petitioner may be declare as illegal, unconstitutional and ineffective upon the rights of petitioner . That furthermore, respondents may please be directed to grant/release pension and LPR enca shment to petitioner . That the respondents may further please be directed to convert the absence period of the petitioner to that of extraordinary leave with full pay i.e 26.04.2009 to 17.12.2010 of the petitioner , on medical grounds, to that of Extraordinary leave with full pay and fringe benefits as admissible under the rules."
2. Brief facts of the case as contended by petitioner are that he was initially appointed as Tax Superintendent in the respondent Department vide appointment order dated 02.12.1971 and started performing his duties. At the last stage of his service, a disease developed relating to "cervical bone" and for treatment of that disease, petitioner visited the Doctor and it was diagnosed that dislocation and gap has been occurred between his upper Discs of back bone, so the said Doctor advised him complete bed rest, therefore, on transfer to Kohat office on 24.04.2009 petitioner made compliance of transfer order and submitted application for medical leave on 25.04.2009, but that application was not considered despite of his request and was kept in hanging position. He made several requests and submitted applications for leave but no heed was paid to it, so petitioner filed departmental appeal on 16.11.2010 before appellate authority and his said appeal was recommended on compassionate grounds by the then Cantonment Executive Officer Kohat vide office letter dated 26.11.2010, upon which respondent No.4 forwarded his departmental appeal duly recommended to respondent No.3 vide his letter dated 08.01.2011. Finally petitioner retired from service on attaining the age of superannuation i.e 60 years, however, petitioner earlier to it filed application on 19.10.2010 for leave preparatory to retirement (LPR) with effect from 18.12.2010 to 17.12.2011. The respondent No.3 directed respondent No.4 to conduct inquiry, so respondent No.4 appointed respondent No.5 as an inquiry officer who directed him to submit report within 15 days for onward submission to respondent No.3, however, no report was submitted within 15 days but was submitted after lapse of more than 02 years, so such delay at the part of department resulted into expiry of his LPR period and petitioner was unofficially retired due to attaining the age of superannuation on 17.12.2011.
3. Petitioner also asserted that inquiry remained pending and during that period only once reminder was sent to the respondent No.5 by respondent No.4 vide letter dated 01.02.2013, however after completion of aforesaid inquiry, the Inquiry Officer vide inquiry report recommended "Ex-post Facto sanction for regularization of absence period on medical grounds into earned leave with full benefits along with LPR period may kindly be accorded as sufficient earned leave (1549 days) as per available leave account statement, is lying at his credit." After receipt of inquiry report dated 13.12.2013, the competent authority/respondent No.3 approved only grant of Extraordinary leave (EOL) without pay w.e.f 26.04.2009 to 17.12.2011, vide order dated 04.02.2014 without considering the recommendations of the said Inquiry Report dated 13.12.2013.
4. The petitioner feeling aggrieved filed review petition for reconsidering order dated 04.02.2014 before respondent No.3 on 25.02.2014 which was rejected vide office order dated 22.10.2014 and petitioner feeling dissatisfied further filed a deliberation appeal against the decision of respondent No.3 to respondent No.2 which also was rejected. Petitioner contended that due to above reasons pension of petitioner has been withheld by respondents for the last more than 04 years. Petitioner visited the concerned quarters for the release of his pension, grant of medical leave and LPR for and again, but no response has been given to his grievance, hence filed instant petition.
5. Comments were called from respondents No.3 & 4, however, respondents No. 2 to 5 jointly submitted their para-wise comments. They in their comments admitted the filing of application for leave by petitioner on 27.04.2009 on medical ground which was regretted due to non annexation of medical record and was directed to attach medical record which was filed vide letter No.25/2/559/C/288 dated 27.04.2009. Petitioner again submitted casual leave application alongwith medical prescription/record which was sanctioned by the then Cantonment Executive Officer. The respondents in their comments asserted that petitioner moved applications through fax, so were regretted. Respondents admitted that petitioner applied for LPR and denied other assertion, however, asserted that competent authority/respondent No.3 has considered the case of petitioner and approved only grant of extraordinary leave without pay with effect from 26.04.2009 to 17.12.201 1.
Respondents also asserted that inquiry was conducted, however , delay for releasi ng pension was not willful. They admitted that review petition filed by petitioner was rejected by respondent No.3 and deliberation appeal by Secretary Defence/respondent No.2 on merits and the case of regularization of earned leave on medical grounds was considered by competent authority vide letter No.92/204/ADG(Est)/ML&C/86(II) dated 04.02.2014 and Extraordinary leave without pay with effect from 26.04.2009 to 17.12.201 1 was approved. They refuted the claim of petitioner by asserting that petitioner is not entitled for the grant of LPR because petitioner was already marked absent from his duty from 26.04.2009 to 17.12.201 1 which period comes to 02 years and 07 days and revised leave Rule 1980 do not provide any relief of Extraordinary leave with full pay .
6. Arguments heard and record perused.
7. It is admitted position that petitioner was civil servant performing his duties with respondents department and his leave on medical ground was considered and approved but was granted Extraordinary leave without pay with effect from 26.04.2009 to 17.12.2011 by the competent authority vide its letter No.92/204/ADG(Est)/ML&C/86(II) dated 04.02.2014, while recommendations in shape of report of Inquiry Officer dated 13.12.2013 were forwarded to D.G M L & C/respondent No.3 same recommendations are reproduced as below:- "The undersigned inquire the matter personally , examined the available medico legal testimonials, heard the individual in person, witnessed his physical miseries hereby recommend s that Es.post facto sanction for regularization of absence period on medical ground into earned leave with full benefits alongwith LPR period may kindly be accorded, as sufficient earned leave of (1549 days) as per available leave account statement is lying at his credit. Detail of which is given hereunder:- i. Period of absence on medical ground to be converted into earned leave.
From 26th April, 2009, to 18th December , 2010. ii. LPR period.
From 19th December 2010 to 18th December 201 1."
However though the case of petitioner was considered but recommendations of Inquiry Officer were not considered in the impugned order dated 04.02.2014, even neither rule 24 of The Revised Leave Rules 1980, particularly Rule 2.2, 2.12, 3.5 and Rule 5.1,5.2,5.3 to 5.8 of chapter-V of West Pakistan Civil Service Pension Rules, 1955, nor principles of justice nor judgment of Hon'ble Supreme Court cited as PLD 2007 SC 35 in respect of pension were appreciated and followed, rather had been violated. So, entire case of petitioner was either mishandled or wrongly handled by the very trained and high rank officers, who have specialized training to act in accordance with law to save the rights of civil servants regarding pension on reaching near to age of retirement falling in their domain.
8. The issue of leave arose after he reported for duty at Cantonment Board, Kohat on 24.04.2009 on transfer and petitioner left the office on the very next day on 25.04.2009 by submitting application for leave on medical ground due to his disease of cervical bone pain. According to comments petitioner did not return on his duty till retirement. Explanation wascalled vide letter No.25/2/559/C/288 dated 27.04.2009 by respondent No.5 and petitioner was directed to report to office and produce medical certificate for 04 days. Respondents then issued another letter dated 05.05.2009 by directing petitioner to report in the office. Upon which petitioner submitted an application for 06 days casual leave with effect from 08.05.2009 to 13.05.2009 which was regretted vide letter No.25/2/559/C/319 dated 15.05.2009 and respondents No.1 & 2 were informed/intimated in this respect but according to record available on file petitioner was not informed about said "regret".
Petitioner submitted another application dated 14.05.2009 for leave with effect from 14.05.2009 to 22.05.2009 and for casual leave with effect from 23.05.2009 to 31.05.2009 which were sanctioned on the condition that petitioner would report in the office at the earliest.
9. From the above discussed position, it is established that petitioner was allowed leave and causal leave with effect from 14.05.2009 to 22.05.2009 and after it 23.05.2009 to 31.05.2009, however, after the expiry of this leave which ended on 31.05.2009 instead of joining office petitioner moved another application on 01.06.2009 for 13 days leave on medical ground but his application was regretted and petitioner was directed to report in the office. Then petitioner filed another application for next 13 days leave on 06.07.2009 with effect from 16.07.2009 to 18.07.2009 which again was regretted vide office order dated 11.07.2009. Again petitioner submitted an application on 17.08.2009 for the grant of 15 days earned leave with effect from 17.08.2009 to 31.08.2009 which was regretted vide order dated 25.08.2009 and petitioner was directed to report and join the duty, however, petitioner was neither informed about rejection of his application for leave nor was served with any show cause notice. In the meanwhile petitioner submitted application for LPR on the ground that he is not able to continue his service due to his deteriorated health condition to worthy DG/ respondent No.3 through Director ML & C, Peshawar/respondent No.4 through proper channel on 19.10.2010.
10. Respondent No.3 passed an order No.92/346/ADJ/(Estab)/ML&C/87 dated 25.01.2011 vide which he directed the respondent No.4 i.e The Director ML & C, Peshawar to hold inquiry against the petitioner for regularization of his earned leave on medical ground and LPR in the light of inquiry report, so that case of petitioner be decided by the competent authority on merits. Upon this Director/respondent No.4 directed Cantonment Executive Officer, Kohat/respondent No.5 to conduct inquiry within 15 days vide office order No.10/22/MISC/Pet/KHT/ DPR/79 dated 19.02.2011. However, inquiry was not conducted within stipulated time period of 15 days. It was conducted later on and inquiry report was submitted by respondent No.5 with delay of more than 02 years and 10 months on 13.12.2013. The delay resulted in the expiry of LPR rights of petitioner due to negligent conduct of respondent No.5 which shows his disobedience towards the directions of his higher officers/respondents No.3 & 4, however, in the meanwhile said civil servant who served the directorate for more than 25 years was retired unofficially after attaining the age of superannuation and remained aggrieved.
11. Petitioner moved application for LPR well within time according to service Rules on 19.10.2010 through proper channel for regularization of his leave and LPR rights with effect from 18.01.2010 to 17.12.2011 to competent authority alongwith other reliefs.
12. It is observed that petitioner time and again submitted leave applications on medical ground but the revised leave rules 1980, particularly rule 24 was not followed which ordains that it is the option of the civil servant to pray for the type of leave and leave granting authority has no authority to convert it into some other type of leave, however, his leave applications on medical ground were rejected instead extraordinarily leave on medical ground without pay by Respondent No.3 was allowed by converting his prayed type of leave.
13. It is further observed that the very delay in submitting of inquiry report shows negligent, partisan and illegal conduct of respondents particularly the concerned the then CEO which resulted into expiry of period enabling him for LPR benefit and if report had been submitted within 15 days then respondent No.3 would had been able to decide the matter in time in either way, so petitioner was denied justice and in result he was deprived from pension and other pensionary benefits. Despite that if absence period is calculated it comes to 540 days while earned leaves on his credit are 1549 days and after deduction of 540 days 1009 days leave was still on his credit. In this respect fundamental Rules 85(a) governs and regulate the extraordinary leave granted in special circumstances is reproduced as below:- F.R.85. (a) Extraordinary leave maybe granted in special circumstances (1) when no other leave is by rule admissible, or (2) when other leave being admissible, the Government servant concerned applies in writing for the grant of extraordinary leave. Such leave is not debited against the leave account. No leave-salary is admissible during such leave.
(b) The authority which has the power to sanction leave may grant extraordinary leave as in clause (a) in combination with, or in continuation of, any leave that is admissible, and may commute retrospectively periods of absence without leave into extraordinary leave.
(c) When extraordinary leave is granted to a military officer subject to these rules, he will continue to be treated as in civil employ for all purposes until he is placed on military temporary non-effective pay be the order of a medical board. If, after being placed on military temporary non -effective pay, he returns to duty in Pakistan, he will have no claim to re instatement in civil employ ."
The extraordinary circumstance in the case was his disease and employee having earned leave of 1549 days means that he never fully utilized his leaves and performed work without availing some of his leaves but when he became prey to a disease he was not treated according to leave rules and law.
14. So far as the withholding of pension and pensionary benefits of petitioner is concerned, petitioner had moved applications for leave on medical grounds which though were regretted but in this respect petitioner was not informed in accordance with settled rules within time due to which he was deprived of his rights to seek remedy. Moreover, there is nothing on record that he pretended to be suffering from the disease; rather medical record and inquiry report dated 13.12.2013 supports his version. Furthermore, though inquiry report was delayed but its recommendations were not considered judiciously and very harsh view contrary to law was taken by the competent authority while administrating justice. Justice is not only administered by the Courts, but every public officer having power to do justice whenever is seized of with such like matters he must act and decide said matters expeditiously in accordance with law, particularly matters relating to pensions.
15. As observed above, the respondent department is withholding pension of petitioner for the last 07 years and it is a settled law that withholding of pension is against dignity of human being. In the instant case the petitioner is living in a miserable condition for more than 07 years after his retirement waiting for his pension and other financial benefits. The act of not finalizing the leave, inquiry and pension case of petitioner for so long period is the worst kind of exploitation and discrimination which is forbidden under constitution of Pakistan. In this respect wisdom is derived from the judgment of Hon'ble Supreme Court in Cr.M Application No,226/2006 cited as PLD 2007 SC 35 and for guidance principle enunciated in Para No.7 of cited judgment is reproduced as below:-
7. It is pathetic condition that government servants, after having served for a considerable long period during which they give their blood and sweet to the department had to die in a miserable condition on account of nonpayment of pension/ pensionary benefits etc. The responsibility, of course, can be fixed upon the person who were directly responsible for the same but at the same time we are of the opinion that it is an overall problem mostly in every department where public functionaries failed to play their due role even in accordance with law. Resultantly, good governess is suffering badly. Thus everyone who is responsible in any manner in delaying the case of such retired officer/official or widows or orphan children for the recovery of pension/gratuity and G.P Fund has to be penalized. As their such lethargic action is in violation of Article 9 and 14 of the Constitution of Islamic Republic of Pakistan
16. According to West Pakistan Civil Services Pension Rules 1955 Clause 2.7 leave has been defined as under:- "All leave (other than extraordinary leave) counts as qualifying service for the purpose of pension.
Similarly under Rule 2.12 of ibid pension rules, 1955: Condonation of interruptions and deficiencies if occurs then the Administrative Department may condone deficiency in qualifying service for pension up to six months provided the service is meritorious and the condonation, if allowed will bring the service up to 25 completed years of qualifying service."
17. The petitioner served the respondent department for more than 25 years which is qualifying service for the purpose of pension and petitioner moved application for leave on medical ground but he was not granted leave without any justification ignoring recommendations of inquiry report dated 13.12.2013.
18. In view of above discussion, we in exercise of extraordinary constitutional powers allow this petition as prayed for. Respondents are directed to release his pension forthwith after receipt of this judgment within one month.