' MUHAMMAD IRSHAD KHAN (MEMBER).-- The relevant facts giving rise to the present appeal, briefly speaking, are that in December, 1981, the Director, Plant Protection Department, Karachi, made a reference to the Ministry of Food and Agriculture, Islamabad, stating therein that the appellant, an Operational Manager in that Department, was declared by the Civil Aviation Medical Board, Karachi, to be permanently unfit for flying duties and consequently his flying licence was not renewed, while, according to the Recruitment Rules of the Department, it was a prerequisite condition that an Operational Manager must be an holder of Commercials Pilot Licence. It was, therefore, requested that it may be examined as to whether the appellant could continue in service or would lose his job. The Ministry of Food and Agriculture in its turn made a reference to the Establishment Division which in its U.O., dated 14-3-1982 opined that there appears to be no alternative but to retire the appellant on invalid pension provided that the requirements contained in Article 442(c) and (e) read with Article 443(b) and (c) of the Civil Service Regulations are fulfilled and the Finance Division and the Audit Department have also been consulted. It was further advised that if it is finally decided after taking action as suggested above, that the appellant should be retired on invalid grounds, the Ministry of Food and Agriculture should submit a summary to the Establishment Division for "seeking approval of the President for the retirement of the appellant on invalid basis. On consultation, the Office of the Auditor-General of Pakistan had advised that the appellant was to be retired from the date of invalidation report of the Civil Aviation Medical Board provided that the said Board had been declared as corresponding/equivalent to the Medical Invalidating Committee stipulated in Article 442 of the Civil Service Regulations. The Finance Division vide its U .0., dated 1-8-1982 communicated that the appellant be retired forthwith and his pensionary dues etc. Paid in accordance with the relevant Rules and that the period commencing from the date the appellant was declared medically unfit by the Civil Aviation Medical Board to the date of actual retirement be treated as leave due under Supplementary Rules 233(c) and the amount on account of pay and allowances paid to the officer during the above period be adjusted against leave salary and balance written off with the sanction of the competent authority. The Secretary, Ministry of Food and Agriculture accordingly submitted a summary to the Establishment Division seeking approval for retirement of the appellant. In reply, it was intimated by the Establishment Division that the 'Local Authority' competent to retire the appellant on medical ground was the Secretary, Ministry of Food and Agriculture. Thereon the said Secretary by his noting dated 29-1-1983 in paragraph 126 of the relevant file, had taken a decision to retire the appellant which was notified vide Notification dated 26-2-1983 which reads as under-- "No, F.2-13/81-E.III(PP).-- Having been declared medically unfit by the Civil Aviation Medical Board, Mr. Z.U. Khan and Major (Retd.) Sultan Ahmad Khan, Operational Managers (Grade-20) in the Department of Plant Protection, Karachi, are retired from Government service with effect from 26th February, 1983 (A.N.)"
' Against the aforesaid order of retirement the appellant represented departmentally through a petition dated 26-3-1983 which was submitted to the President of Pakistan but when received no reply even on expiry of the statutory waiting period of 90 days, he filed the present appeal on 18-7- 1983.
2. The learned counsel for the appellant first submitted that there was no justification for retirement of the appellant in consequence of non-renewal of his flying licence because the duties and responsibilities of the appellant as Operational Manager were primarily of administrative and managerial in nature and he was only incidentally conducting certain flying operations. We have, however, noticed that apart from the conditions prescribed in the relevant Recruitment Rules that an Operational Manager should be "holder of a Commercial Pilot Licence", it is admitted by the appellant that at times he used to undertake flying operations and was actually functioning as Flights Operations Incharge, which function was assigned to a Senior Pilot of the department, consequent upon non-renewal of his licence. This admitted position, in our view, constitutes a valid justification for his retirement simply because non-renewal of his licence rendered him disabled and unfit for discharge of his duties. The contention is, therefore, without any force.
3. It was next contended that under the law neither the declaration of unfitness by the Civil Aviation Medical Board could be considered valid ground for retirement of the appellant nor the said Board had any jurisdiction to determine the fitness of Vie appellant for retention in service. The contention is not without substance. However, on a careful perusal of the record it appeared to us that the case was improperly dealt with in the Ministry of Food and Agriculture, the Establishment Division and the Finance Division and the legal position was misunderstood and misconceived by them. We are quite clear in our mind that Article 441 of the Civil Service Regulations was misapplied to the instant case. The said Article is reproduced below for the sake of facility:- "441. An invalid pension is awarded, on his retirement from the public service, to an officer who by bodily or mental infirmity is permanently incapacitated for the public service, or for the particular branch of it to which he belongs."
A plain reading of the above Article leaves no room for doubt that the said article is meant for the award of invalid pension and cannot be availed for ordering retirement of an incumbent. Quite obviously award of pension is a consequence of retirement and the both cannot be mixed together. Neither the provision of award of pension can be availed for retiring a person nor the pension awarding authority can act as a retiring authority. After all the question of grant of pension arises only after the retirement is effected. There can, therefore, be no doubt that the concerned authority acted quite erroneously in applying the provision for award of invalid pension to the case of the appellant's retirement on the ground of being unfit for proper discharge of his duties. In fact, the statutory provision relevant and applicable to the instant case, was F.R. 10-A where under the competent authority is empowered to retire a Government servant and to grant him admissible invalid pension and/or gratuity if he is suffering from a disease which renders him unfit for the proper and efficient discharge of his duties. The case of the appellant was thus fully covered by the aforesaid rule 10-A inasmuch as the appellant was suffering from a disease which rendered him disqualified for holding a Commercial Pilot Licence and thereby making him unfit for the proper and efficient discharge of his duties. We, therefore, agree with the learned counsel for the appellant that Article 441 of the Civil Service Regulations and other connected provisions were misapplied to the case of the appellant. As said above, in the circumstances of the case, the only proper course of action was to avail the provision of F.R. 10-A for ordering the retirement of the appellant.
Nevertheless the error of misapplication of statutory provision by itself does not, in our view, affect the validity of the retirement order simply because the condition envisaged in F.R. 10-A i,e, rendering unfit for the proper and efficient discharge of duties was fulfilled. It was submitted by the learned counsel for the appellant that nonobservance of the procedure for ordering retirement prescribed in P.R. 10-A vitiated the impugned order. Since, however, there can be no denying that the non-renewal of the appellant's Commercial Pilot Licence on the ground of his physical incapacity had rendered him disqualified and unfit for the proper and efficient discharge of his duties, the appellant could on competently retired under F.R. 10-A without strictly following the procedure prescribed therein which, in the circumstances of the case, was not mandatory but only directory. The contention is, therefore, of no avail to the appellant.
4. It was then argued with great emphasis that the impugned order is without lawful authority inasmuch as the order of retirement was passed by the Secretary, Ministry of Food and Agriculture while the authority competent to retire the appellant (a Grade-20 Officer) was the President of Pakistan. It is correct that under the statutory provision of law i,e, F.R. 10-A, the authority competent to order retirement of the appellant was the President of Pakistan being the appointing authority.
The Secretary, Ministry of Food and Agriculture may be competent to award invalid pension under Article 441 of the Civil Service Regulations but by no stretch of law or imagination he could be competent to make an order of the appellant's retirement. We would, however, invite a reference to the case reported as PLD 1959 (W.P.) Lah. 229 wherein a similar question came up for consideration. The writ petitioner in that case was retired as Superintendent, Deputy Commissioner's Office, Rawalpindi, by the Commissioner of Rawalpindi while the competent authority to retire him was the Board of Revenue. It was held by the Full Bench of the High Court that as the order of the retirement was passed "in accordance with the existing policy of the Government on the subject", it should be deemed that the power of retirement was exercised by the Government itself although a subordinate authority retired the official in pursuance of the Government policy, "unless the Board of Revenue now certifies that the petitioner's retention is absolutely in the public interest". Thus their Lordships upheld the order of retirement passed by an authority subordinate to the competent authority, of course, by adding an observation that "it is advisable, however, that an order retiring a Superintendent or a Head Vernacular Clerk should be passed by the Board of Revenue itself". Respectfully following the dictum laid down in the aforesaid case we hold that, in the instant case, it was only proper and advisable that the Ministry of Food and Agriculture should have obtained the orders of the President of Pakistan for retirement of the appellant as, in fact, was initially suggested by the Establishment Division. However, keeping in view the factual position that non-renewal of his flying licence had rendered the appellant disqualified, disabled and unfit for properly discharging of his duties as to take up operational flights was an essential part of his duties, and also as a consequence of such unfitness he had received Rs,3,00,000 as an insurance dividend for which the premium was being paid by the employer department, his retirement from service seems to be unexceptionable and in accordance with the Government's decision and policy laid down in F.R. 10-A. Indeed, non-observance of the relevant procedure and defect of passing the impugned order by an authority subordinate to the competent authority did not, in any way, work to the prejudice of the appellant. We would accordingly decline to interfere with the impugned order of retirement.
5. We have, however, noticed that though the impugned notification itself directs unambiguously and specifically that the appellant's retirement shall be effective with effect from the 26th of February, 1983, yet to our utter surprise, in the relevant files of the Respondent-Department, he is being erroneously considered to have been retired from the date he was declared medically unfit by the Civil Aviation Medical Board and a case to write off the salary for the period commencing from the date of declaration of unfitness to the date of actual retirement is being processed, which implies that if not ultimately written off it shall be recovered from the appellant. This smacks of absurdity. The appellant was retired for all intents and purposes, with effect from 26-2-1983 and such retirement shall operate prospectively. It is an admitted position that till the date of his retirement i,e, 26-2-1983 the appellant remained on duty. It is on the record of the Respondent- Department that the appellant performed his duties during the period commencing from the date of his invalidation up to the date of his actual retirement. He was, therefore, 'undoubtedly entitled to the full salary and allowances for that period. If the Respondent-Department took so long to decide the issue the appellant cannot be penalized for that. The question of write off/recovery of the amount such received, does not at all arise. It is, therefore, directed that the proceedings, of write off/recovery of the amount received by the appellant during the so-called intervening period should be dropped.
6. A further grievance was made out by the appellant that on receipt of the order of retirement he applied for the grant of L.P.R. Which was unjustly refused. Most presumably L.P.R. Was not granted to the appellant because he was erroneously being considered to have retired retrospectively. In our view, therefore, the denial of L.P.R. To the appellant was not proper. It appeared to us that the appellant was anxious for availing L.P.R. Mainly because he would have completed 30 years' service on 4-4-1983 while he was retired w,e,f, 26-2-1983 which leaves a deficiency of 37 days in completing 30 years' service qualifying him for full pension. The grievance of the appellant seems to be genuine. We, therefore, partially modify the impugned order to the extent that for the purpose of grant of pension the appellant's retirement shall be effective from 4-4-1983 and he shall be treated on L.P.R. Between the period from 26-2-1983 to 4-4-1983.
7. Except the above directions and the partial modification of the impugned order the appeal is otherwise dismissed with no order as to costs.
8. The interim order passed by this Tribunal on 15-10-1983 allowing the appellant to continue in occupation of official residence is hereby vacated. The Estate Officer, Works Division, Karachi, may be informed accordingly. Orders accordingly.