This Judgment shall decide the titled and connected Writ Petition No. 17602 of 2021 since identical questions of law and facts are involved.
2. The brief facts of the titled Petition are that the Petitioner was appointed as CDC Supervisor vide order dated 24.05.1993 who applied for his voluntary retirement from service and was ultimately retired in BPS-12 vide retirement order dated 19.08.2020 w.e.f. 31.08.2021 after the expiry of leave preparatory to retirement (the "LPR") issued by Respondent No. 2, Chief Executive Officer, District Health Authority, Lodhran as competent authority. Respondent No. 4 vide letter dated 04.09.2021 forwarded the pension case to Respondent No. 3 for further processing. However, Respondent No. 3 vide impugned order dated 20.10.2021 returned the case of the Petitioner on the ground that since the Petitioner retired after completing 28 years of service and after attaining the age of 47 years, the retirement order is unlawful being in violation of Section 12 of the Punjab Civil Servants Act, 1974 (the "Act") as amended through the Punjab Civil Servants (Amendment) Ordinance, 2001 published in the Punjab Gazette vide Notification No. 13-20/2002(P-1) dated 03.05.2021 and later approved by the Provincial Assembly of the Punjab as notified vide Notification No. PAP/Legis- 2(119)/2021/2669 dated 29.10.2021 (hereinafter referred to as the "Amended Section 12"). The Amended Section 12 mandates that voluntarily retirement is permissible on completion of 25 years of service or on attaining fifty five years of age, whichever is later.
3. Learned counsel for the Petitioner contended that the Amended Section 12 of the Act did not apply to the case of the Petitioner as his retirement order dated 19.08.2020 was issued prior to the date of commencement of the Amended Section 12 of the Act on 03.05.2021. As such, the Amended Section 12 of the Act could not have been applied with retrospective effect. He claimed that the retirement order lawfully passed by the competent authority cannot be recalled. He emphasized that LPR is an earned right and date of retirement is to be reckoned from the date of retirement order which merely takes effect on a future date due to the sanctioned period of LPR. He asserted that withholding of pension is against the fundamental right of the Petitioner and in blatant disregard to the law propounded by the Superior Courts of Pakistan As such, the pension case of the Petitioner ought to be decided on the basis of prevailing law on the date of his retirement order.
Reliance was placed on cases tilted, "Manzoor Ali and 39 others v. United Bank Limited through President" (2005 SCMR 1785); "Government of Khyber Pakhtunkhwa through Secretary Public Health Engineering, Peshawar and others v. Abdul Manan and others" (2021 SCMR 1871); "Mst.
Sarwar Jan and others v. Mukhtar Ahmad and others" (PLD 2012 SC 217); "The Province of Punjab through Secretary Finance Department, Government of the Punjab, Lahore and others v. Kanwal Rashid and others" (2021 SCMR 730); and "Muhammad Ijaz v. Government of the Punjab through Director General Fisheries, Punjab, Lahore and 3 others" (2021 PLC (C.S.) 1154).
4. Conversely, Learned Law Officer relying upon the pars-wise comments submitted by Respondent No. 3 defended the impugned order. He submitted that the Finance Department, Government of the Punjab has issued clarification letter dated 03.01.2022 in response to the question raised in this Petition regarding retirement order of civil servants in the light of Amended Section 12 of the Act.
The Finance Department has opined that all retirement orders issued before the date of coming into force of Amended Section 12 of the Act, in derogation to the mandatory conditions of voluntary retirement stipulated therein, with the date of retirement following the date of commencement of Amended Section 12 of the Act due to availing of LPR are unlawful and as such, cannot be given effect. In order to cure the illegality, it has been recommended that such officers/officials shall have to rejoin their Administrative Department in the light of Section 20 of the Punjab General Clauses Act, 1956 (the "Act of 1956"). The intervening period shall be treated as leave of kind due.
The provisions of the Act are to be read in conjunction with each other and cannot be taken in isolation. Hence, qualifying service of 25 years or attaining 55 years of age, whichever is later, is prerequisite for voluntary retirement. It was further clarified that withdrawal of retirement orders issued under Rule 3.5 (Note-1) of the Punjab Civil Services Pension Rules, 1963 (the "Rules of 1963") by the competent authority in normal conditions require relaxation of the Rules of 1963 by the competent authority i.e. the Chief Minister, Punjab in terms of Para 1(b) of Finance Department's Letter bearing No. FD.SR.III-4-151/2011 dated 29.02.2012. However, since the retirement orders are in violation of the Amended Section 12 of the Act, therefore, the same will be processed in the light of Section 20 of the Act of 1956 which provides that an Authority who passes an order is empowered to add to, amend, vary or rescind that order. It is not a principle of law that an order once passed becomes irrevocable and it is past and closed transaction. If the order is illegal, perpetual rights cannot be gained on the basis of that illegal order. Based on the aforesaid interpretation of the Finance Department, the pension case of the Petitioner has been returned to the competent authority who may recall the retirement order under Section 20 of the Act of 1956.
5. Considering the above pro and contra contentions of the parties, the precise question posed for determination by this Court is as to whether pension is payable with respect to retirement order lawfully issued by the competent authority prior to the date of commencement of Amended Section 12 of the Act which order is to take effect after availing of LPR on a date after the commencement of Amended Section 12 of the Act.
6. Before examining the proposition of law involved in this case, it would be beneficial to analyze and examine the relevant provisions of applicable law in the instant case. Section 12 of the Act before the amendment dated 03.05.2021 read as follows:- "12. Retirement from service.--(1) 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 direction is given under clause (i), on the completion of the sixtieth year of his age.
(2) No direction under clause (i) of sub-section (1) shall be made until the civil servant has been informed in writing of the grounds on which it is proposed to make the direction and has been given a reasonable opportunity of showing cause against the said direction.
Explanation--In this section, "competent authority" means the appointing authority prescribed in Rule 6 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974."
After the amendment dated 03.05.2021,. the Amended Section 12 of the Act reads as follows:- "12. Retirement from service--(1) 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 direction is given under clause (i):
(a) on completion of the sixtieth year of his age; or
(b) voluntarily on completion of twenty five years of service or on attaining fifty five years of age, whichever is later.
(2) No direction under clause (i) of sub-section (1) shall be made until the Civil Servant has been informed in writing of the grounds on which it is proposed to make the direction and has been given a reasonable opportunity of showing cause against the said direction.
Explanation.--In this section, "competent authority" means the appointing authority prescribed in Rule 6 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974."
(Underlining is mine)
Rule 3.5 of the Rules of 1963 relates to retiring pension and is reproduced 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 (i-a) is compulsorily retired, by the competent authority, after 20 years qualifying service;
(ii) is compulsorily retired from service by the authority competent to remove him from service on grounds of inefficiency, misconduct or corruption.
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.
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 qualifying service and the leave enjoyed by him before completing 25 years of service may be treated as leave of the kind due to him."
(Underlining is mine)
Rule 5.2 of the Rules of 1963 provides that the responsibility for initiation and completion of pension papers is that of the Head of Department/Attached Department concerned in the case of Government servants holding posts in BPS-16 and above and of the Head of Office concerned in the case of Government servants in BPS-1 to 15. The action should be initiated one year before a Government servant is due to retire and pension papers, complete in all respects, should be sent to the Audit Officer six months before the date of retirement, so that pension may be sanctioned a month before the date of retirement cannot be foreseen six months in advance, the Government servant may be asked to submit his pension application immediately after the date of his retirement is known. Proviso (ii) of Rule 5.2 of the Rules of 1963 importantly stipulates that a civil servant proceeding on LPR in excess of 6 months may be asked to submit his application at the time of proceeding on such leave. Rule 5.8 of the Rules of 1963 provides that apart from special orders, an ordinary pension is payable from the date on which the pensioner ceases to be in Government service, Rule 16 of the Punjab Revised Leave Rules, 1981 (the "Rules of 1981") provides that the maximum period for which a civil servant may be granted LPR shall be three hundred and sixty five days. Such leave may be taken, subject to availability, either on full pay or partly on full pay and partly on half pay, or entirely on half pay, at the discretion of the civil servant. Rule 17 of the Rules of 1981 stipulates that if, in case of retirement on superannuation or voluntary retirement on completion of twenty six years qualifying service, a civil servant cannot, for reasons of public service be granted LPR duly applied for insufficient time, he will in lieu thereof, be granted lump sum leave pay for the leave refused to him subject to a maximum of three hundred and sixty five days leave on full pay. Such leave can be refused partly and sanctioned partly but the cash compensation shall be admissible for the actual period of such leave so refused not exceeding three hundred and sixty five days. The payment of leave pay in lieu of such refused LPR may be granted to the civil servant either in lump sum at the time of retirement or may, at his option be drawn by him month-wise for the period of leave so refused. Further, Rule 18 of the Rules of 1981 provides that ordinarily LPR on superannuation shall not be refused. All orders refusing LPR to a civil servant and recalling him from LPR shall be passed only by the Chief Secretary personally for civil servants in Grade 17 and above and by the Secretary of the Administrative Department concerned personally with respect to civil servants of Grade 16 and below.
7. It follows from the analysis of the applicable law cited above that voluntary retirement is regulated under Section 12 of the Act read with Rule 3.5 of the Rules of 1963. The Amended Section 12 of the Act came into force on 03.05.2021 and substituted the initial sole requirement of twenty five years of service qualifying for pension with an additional condition of attaining fifty five years of age, whichever is later. Rule 3.5 of the Rules of 1963 has not been amended so far in line with the Amended Section 12 of the Act. Notwithstanding the same, it is settled proposition of law that provisions of the statute preempt the rules in the event of inconsistency between the two. Hence, there is no ambiguity that a retirement order issued after the date of commencement of the Amended Section 12 of the Act would be subject to its provisions. However, it is equally sacrosanct that a statute or a provision the does not apply retrospectively unless it is expressly stipulated in the statute itself. In Manzoor Ali, Abdul Manan and Mst. Sarwar Jan cases (supra), the Honorable Supreme Court of Pakistan has elaborated and reaffirmed that the statute or a provision thereof, forming part of substantive law, if created or extinguished or affected rights of persons, would ordinarily have a prospective effect unless the same was made applicable retrospectively by clear command of law. Similarly, in case titled, "Muhammad Mansha v. Industrial Development Bank of Pakistan and others" (2020 SCMR 1069), the Apex Court held that when the legislator alters the right of action of any party, its enactments, unless in express terms are made applicable to pending actions, do not affect such actions. It is general rule of common law that the statute changing the law ought not to apply, unless the intention appears with reasonable certainty to be understood as applied to facts, to events that have already occurred in such a way as to confer or, impose or otherwise affect rights or-liabilities which the law had defined with references to past events. Hence, it can safely be concluded that the Amended Section 12 of the Act shall apply prospectively and would not affect the retirement orders lawfully passed by a competent 'authority before the date of its commencement.
8. It is also equally well established that the clarification Notification issued by the Finance Department, Government of the Punjab has no lawful basis for the reason that administrative officials are not vested with any constitutional or legal authority to interpret, extend, curtail, modify, add or subtract a provision of law. Interpretation of law is purely and exclusively a judicial- function under the scheme of trichotomy of power enshrined in the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution") and jurisprudentially entrenched in our legal system through consistent and exhaustive pronouncements of the Apex Court in this regard that need not be reiterated for the sake of brevity. Suffice is to mention that in the case of Kanwal Rashid (supra), it was expressly held by the Honorable Supreme Court of Pakistan that the clarification Notification issued by the Finance Department with regard to family pension is unlawful ,since the Finance Department has no authority under the law to clarify, interpret, abridge or extend the right of family pension provided under Section 18(2) of the Act and further regulated by the Rules of 1963. Hence, it is established that administrative instructions or notifications which do not even fall in the category of delegated legislation cannot be allowed to apply retrospectively or in derogation of law to take away vested and accrued rights or benefits.
9. The conjunctive examination and discerning of the applicable law before the commencement of Amended Section 12 of the Act reveals that a civil servant was allowed to opt for voluntary retirement on retiring pension as a matter of right under Section 12 of the Act read with Rule 3.5 of the Rules of 1963 subject to the provisions of the Essential Services Maintenance Act after completing twenty five years of qualifying service. The civil servant is required to submit a written intimation in this behalf to the competent authority at least three months before the date on which he intends to retire. As such, the civil servant was conferred with the right to determine his data of retirement. It is unequivocally provided that such an intimation, once submitted, is regarded as final. The right to withdraw or modify the date of retirement is permissible only before acceptance of application of retirement by the competent authority. As such, Rule 3.5 of the Rules of 1963 does not permit to withdraw the retirement order once issued. Neither the competent authority nor the civil servant has any right or power to withdraw or modify the date of retirement after the issuance of final lawful order of retirement by the competent authority. In case titled, `I. G. Punjab, Lahore and others v. Iqbal Mehmood" (2012 SCMR 745), the Apex Court while interpreting Rule 3.5 of the Rules of 1963 held that an employee is not allowed to withdraw his request for retirement if it had been acted upon since the rule mandates that a Government servant is only entitled to withdraw his application for voluntary retirement or modify the date of his retirement before its acceptance by the competent authority. Further reliance is placed on cases titled, "Fazal Haq Shah v. Deputy Commissioner, Lahore etc." (1980 PLC (C.S.) 637); and "Secretary, Government of Punjab, Food and Co-Operation Department v. Shamoon Bahadur" (PLD 1979 Supreme Court 835).
10. Similarly, a civil servant proceeding on retiring pension barring retirement under the Efficiency and Discipline Rules is also bestowed with the right to avail such LPR as may be admissible to him, provided he has completed 25 years of qualifying service for pension. It is only if a civil servant proceeds on LPR before actually completing 25 years of qualifying service that he may be deemed to have proceeded on retirement with effect from the date he completes 25 years of qualifying service and the leave enjoyed by him before completing 25 years of service is allowed to be treated as leave of the kind due to him. As such, LPR is -also an earned right against services rendered. It is only admissible in the manner and to the extent provided by law. In other words, LPR is nothing but a kind of service benefit. It is provided either in the form of leave or cash in lieu of leave if leave is not possible. Hence, if LPR is not admissible to a civil servant, the date of retirement takes effect immediately for the purposes of Miring pension. Conversely, if it is admissible, the retiring pension takes effect after the last date of LPR merely in order to extend the benefit of LPR to the civil servant. As such, the start of pension is postponed to a future date in order to allow the civil servant to reap the earned service benefit by availing the LPR. Only under exceptional circumstances, the LPR can be recalled in terms of Rule 18 of the Rules of 1981 by the designated official therein but power so conferred is limited to the period of LPR. It cannot be employed to revoke the retirement order itself. In case titled, "Shaukat Ali Khan v. Federation of Pakistan through Secretary and 5 others" (2019 PLC (C.S.) 1527), this Court has held that encashment in lieu of. LPR is a monitory benefit which the law bestows on a civil servant who prefers to perform duty instead of proceeding on LPR and such fiscal benefit cannot be withheld by the authority without any valid and cogent reason. It was further held that rule of interpretation in the matter of fiscal legislation, statutes, memos, letters and circulars was that the same were required to be interpreted in a manner so as to grant more benefits to the employees vis--vis the Government because those were persons who were hard hit by financial worries and problems and cannot be made to suffer for no fault of their own. Reliance was placed therein upon cases titled, "Mst. Riffat Naheed, Lady Medical Technician v. District Health Officer, Bahawalpur and 2 others" (2004 PLC (C.S.) 1081); and "Noor Wali Khan and others v. Federation of Pakistan and another" (2017 PLC (C.S.) 1113).
11. The purpose and object of retirement is that a civil servant ceases to remain civil servant and is no more required to serve after the date of retirement. As such, the date of retirement order is actually the date of retirement as the right to retire and receive pension matures on the said date.
It is merely the initiation of pension which is given effect from the last date of LPR. The principle of locus poenitentiae is fully attracted in this case as accrued right vested with the Petitioner on 19.08.2020, the date of his retirement order, which was lawfully passed on the said date by the competent authority in accordance with prevailing law. The principle of locus poenitentiae has been consistently interpreted by the Honorable Supreme Court of Pakistan in a number of pronouncements to mean that locus poenitentiae is a power of returning till a decisive step is taken. It is not a principle of law that an order once passed is irrevocable or is categorized as a past and closed transaction. Rather, if the order is illegal then perpetual rights cannot be gained on the basis of an illegal order. As such, the authority who is empowered to pass an order and take an action is also empowered to set aside, modify and vary such order or action subject to an exception, that is, if by such an order an action has been acted upon, thereby, creating a right in favor, of the beneficiary of that order and in such event, such an order or action cannot be set aside or modified- so as to deprive the person of the said right to his disadvantage. However, no valid and vested right can be founded upon an illegal order. For reference, see case titled, "Shakeel Ahmad Zaidi and others v. Secretary, Higher Education, Government of Punjab, Lahore and others" (2021 PLC (C.S.) 560). This Court in case titled, "Syed Farooq Ahmad Shah v. Government of the Punjab through Home Secretary Punjab, Lahore and others" (2020 PLC (C.S.) 1378), while allowing the disbursement of full pay and allowances to the son of Shaheed father and relying upon cases titled, "Federation of Pakistan through Secretary Capital Administration and Development Division, Islamabad and others u Nusrat Tahir and others" (2018 PLC (C.S.)
669); and "Muhammad Saeed and others v. Secretary Finance and others" (2019 PLC (C.S.) 893) held that once a right is created by extending benefit after complying with all codal formalities, the same cannot be destroyed or withdrawn as legal bar would come into play under the principle of locus poenitentiae. Accordingly, it is importantly concluded that in the instant case, since the impugned retirement order was lawfully passed by the competent authority under Section 12 of the Act read with. Rule 3.5 of the Rules of 1963 at the relevant time and as the latter specifically prohibited the withdrawal of retirement order once lawfully passed, therefore, the accrued vested right to retire and receive pension was fully protected under the doctrine of locus poenitentiae.
12. Hence, it is manifestly evident from the scheme of law read as a whole that voluntary retirement is a right conferred by law. The right to retiring pension is not a bounty but an earned right of a civil servant which is sacrosanct, recognized and enforceable forthwith in accordance with the applicable law and rules. LPR is also an earned leave recognized in law on account of services rendered by a- civil servant. Before the Amended Section 12 of the Act, the Petitioner was permitted to seek voluntary retirement on retiring pension with a caveat of 25 years of qualifying service. He was permitted to avail admissible LPR under the law having more than 25 years of qualifying service for pension. He exercised his right in accordance with the applicable law at the relevant time by following the prescribed' procedure and was duly granted retirement along with the benefit of availing of LPR as depicted from the retirement order. As such, he effectively retired on the date of retirement order which preceded the date of Amended Section 12 of the Act. The future date regarding initiation of pension after availing of LPR which was subsequent to the date of commencement of Amended Section 12 of the Act was, therefore, irrelevant for the application of the provisions of Amended Section 12 of the Act as the right to retire and receive pension matured on the date of retirement which preceded, the Amended Section 12 of the Act.
13. The upshot of the above discussion is that when the retirement order is lawfully sanctioned and issued by the competent authority, it becomes final and conclusive for all practical purposes subject to the availing of LPR, if admissible. It means that the civil servant stood retired on the date of retirement order which would take effect after the completion of his duly sanctioned LPR. The retirement, as such, becomes final and merely the retiring pension would start from the date mentioned in the retirement order after the availing of LPR. As such, the retirement must be reckoned and given effect from the date of retirement order in accordance with prevailing law on that date. Hence, the Amended Section 12 of the Act does not apply retrospectively to the case of the Petitioner since the retirement order of the Petitioner was issued prior to the date of promulgation of the Amended Section 12 of the Act.
14. Accordingly, the titled as well as the connected Writ Petition is accepted; the impugned Order dated 20.10.2021 is set aside; Respondent No. 4 is directed to resend the pension case of the Petitioner to Respondent No. 3 who is directed to process the same in accordance with law in the light of observations contained herein within a period of thirty (30) days from the date of this Order.