' ABDUL HAMID CHAUDHRY (MEMBER).-Abdul Aziz has made this appeal under section 4 of the Punjab Service Tribunals Act, 1974, wherein he has impleaded the Director, Health Services, Punjab, Lahore and the Medical Superintendent, Lady Aitchison Hospital Lahore as respondents.
2. By virtue of this appeal the appellant has prayed that the decision of Respondent No, 2 to treat him having been re-employed for the period from 1st September, 1974 to 31st August, 1979 vide order dated 1st February, 1981 and final decision to force the appellant to sign new pension application vide letter dated 13th December, 1981 be set aside. He has also prayed that the appellant be considered in continuous service from 1st September, 1942 to 31st August, 1979 and allowed full pension benefit as admissible under the rules.
3. Brief facts of the case are that the appellant was employed as Store-keeper in the Lady Aitchison Hospital, Lahore. In the year 1973 the appellant proceeded on premature L. P. R. For one year, w. e. f.
18th June, 1973 as sanctioned by Medical Superintendent, Lady Aitchison Hospital, Lahore vide order, dated 5th June, 1973. The appellant was allowed to resume his duties again on the same post i,e, Store-keeper vide order, dated 16th January, 1974. The L.P.R. Availed by the appellant was treated to be earned leave as due to his credit. The earned leave in lieu of withdrawal of L.P.R. From 1st July, 1973 to 15th January, 1974 was sanctioned vide order dated 19th February, 1974 by the Medical Superintendent of the said hospital. On resuming of the duties as Store-keeper, the appellant continued to work as such till the age of his superannuation. Accordingly the pension papers were prepared from 1st September, 1942 to 31st August, 1979 and sent to the office of Accountant-General, Punjab but the same were objected by the Accountant-General, Punjab Office which did not agree for the continuous service of the appellant beyond the period 30th June, 1974 onward on plea that option once exercised in 1973 cannot be withdrawn and assumption of his duty again after withdrawal of L.P.R. In 1974, was not in order. On this, on 1st February, 1981 the Medical Superintendent, Lady Aitchison Hospital, Lahore issued an order for the re-employment of the appellant as Store-keeper for the period 1st September, 1974 to 31st August, 1979. The appellant represented against this order vide his application dated 15th February, 1981. The appellant made another representation on 18th January, 1982. The appellant also issued a legal notice through his counsel in 1982. On this the appellant/appellant's counsel received an intimation from the Assistant Director Medical on behalf of Respondent No, 1 vide their letter dated 3rd October, 1982 that the matter has been referred to the Secretary, Government of the Punjab, Health Department but so far no reply has been received by the appellant. Hence this appeal.
4. We have heard the parties. The learned counsel for the appellant has argued that the appellant applied for L.P.R. In the year 1973 which was granted to him for one year w,e,f, 18th June, 1973 by Respondent No,
2. After availing of this leave for about six months, the appellant made a request for allowing him to join duty after cancellation of his L.P.R. Consequently, his request was accepted and the appellant was allowed to resume duty on his original post in the hospital. The L.P.R. Availed by him was treated as earned leave due. He continued as such till the age of superannuation i,e, upto 1979. It was a surprise for him when he received a letter dated 1st February, 1981 from M.S. Lady Aitchison. Hospital, Lahore, showing the appellant as re-employed for the period 1st September, 1974 to 31st August, 1979. The appellant's counsel submitted that this was an irregular, unlawful and unjustified order. The appellant was allowed to resume duty in January, 1974 after cancellation of his L P.R. By the competent authority well in time as his L.P.R. Was to expire on 17th June, 1974. He continued working on his original post, uptil superannuation i,e, 31st August, 1979 after resuming of duty for nearly 5v (1/2) years. His re-employment order passed in 1981, after seven years, is not based on the principles of equity, fair play and justice. This order is not also in accordance with the principle of locus poenitentiae. It was further argued by the learned counsel for appellant that keeping in view the instructions as contained in Government of West Pakistan, Finance Department No, 705/SR-6-67, dated 31st April, 1967, the appellant could apply for cancellation of the L.P.R. Before its expiry and competent authority was entitled to allow him to withdraw the same and also allow him to resume the duties. Thus the order dated 16th January, 1974 of Respondent No, 2, through which the appellant was allowed to withdraw his L.P.R. And resume duty was perfectly a valid order and could not be recalled or withdrawn by any stretch of imagination after a period of seven years i,e, on 1st February, 1981, when the period from 1st September, 1974 to 31st August, 1979 was ordered to be treated as re-employment.
5. Controverting the above arguments, the learned District Attorney has relied on the parawise comments submitted by the respondents and has vehemently argued that the view point of the Accountant-General, Punjab, was correct that option once exercised was final and could not be withdrawn. Thus the re-employment of the appellant from 1st September, 1974 to 31st August, 1979 is correct and lawful.
6. We have given our anxious thought to the arguments of the We have perused the order dated 16th January, 1974 passed by the parties and have gone through the documents so attached with the appeal. Medical Superintendent, Lady Aitchison Hospital, Lahore. It is clear from this order that appellant was allowed to resume his duties as Store-keeper and the L. P. R. Availed by him was treated as earned leave due to his credit. However, the order dated 1st February, 1981 has declared the period from 1st September, 1974 to 31st August, 1979 on re-employment, though the appellant continued working on the same post of Store-keeper, previously held by him, on resuming of his duty after cancellation of his L.P.R. From 16th January, 1974 to the year 1979 upto the age of superannuation. We agree with the view point of the learned counsel for the appellant that this could not be done keeping in view the principle of locus poenitentiae. We would like to refer the principles of animus revertendi and locus poenitentiae as cited in case of Raja Muhummad Nawaz v. Government of the Punjab . In this case the learned Judges of the Supreme Court of Pakistan have held that even if an order was passed for granting facility through mistake or against rule, it would stand because the person so granted had been conferred a status in life and vested right had been created which could not be withdrawn subsequently. According to the above-quoted judgment of the Supreme Court of Pakistan which has now become law, the appellant acquired valuable judicial right and it may not be easy to snatch this right from him by a stroke of executive pen, specially when the competent authority had allowed the appellant to resume duty on his previous post on cancellation of L.P.R. Its conversion into the leave of kind due and appellant continued serving on his post for 5 (1/2) long years before he attained the age of superannuation.
7. We hold that the principle laid down by the Supreme Court of Pakistan as mentioned above is sufficiently applicable to this case. We could also rely upon our earlier judgment in case of Nazar Hussain v. District Education Officer, Lahore and others in which we have accepted the said appeal, in identical circumstances, by respectfully following the principles of animus revertendi and locus poenitentiae so laid down by the Supreme Court of Pakistan.
8. In view of the above discussions, we hold that the order dated 16th January, 1974 of the Medical Superintendent, Lady Aitchison Hospital, Lahore through which the appellant was allowed to resume the duties as Storekeeper, on cancellation of his L.P.R. Being a valid and lawful order, cannot be recalled or modified after a lapse of seven years. The impugned substitued order for order No, 161-164/LAH, dated 28th January, 1981, endorsed on 1st February, 1981 declaring the period from 1st September, 1974 to 31st August, 1979 as re-employed, cannot be sustained and is set aside. The appeal of the appellant is accepted.
There will be no orders as to costs. 1981 SCM R 523 1981 PLC (C S) 835