' MUHAMMAD IRSHAD KHAN (MEMBER).-- It is the case of the appellant that he joined the erstwhile Post and Telegraph Department of Government of India on 14-2-1923 as Boy Peon (a non- pensionable post) at Central Telegraph Office, Delhi. He was promoted first as Task Work Messenger (a pensionable post) with effect from 23-5-1931 and thereafter as Postman with effect from 16-4-1941. He was working as such till 1947 when during the process of partition of the subcontinent, he was required to give his option as to whether he would like to go to serve in a newly-created country of Pakistan or would like to continue serving in India. Though he opted for service in India yet the violent communal riots which took place in Delhi, forced him to come over to Pakistan in August, 1947. On such migration to Pakistan, notwithstanding his option to serve in India, he was appointed as Postman at Gujar Khan, Post Office with effect from 1-10-1947.
Thereafter, however, he was put to work as Extra Departmental Stamp Vendor with effect from 11-6- 1948. According to the appellant, he being a refugee and under the stress of many hardships, started working as Extra Departmental Stamp Vendor under protest. He was again entrusted the duties of Postman with effect from 29-7-1952 at Mianwali, which place he had to leave on 30-5- 1953, and then he worked in the Office of the Superintendent, Post Offices, Rawalpindi, from 31-5- 1953 to 9-7-1953 when he was again posted as Extra Departmental Stamp Vendor at Gujar Khan Post Office where he worked as such ulptil 24-5-1965 when he was-relieved of the job on reaching the age of superannuation. Since then the appellant has been vainly making repeated and continuous petitions requesting for grant of pension and other rethrement benefits. Finally, vide letter, dated 9-12-1982, the Respondent No,2 intimated him that he was not entitled to any pension under that relevant Rules and, therefore, his case stood closed. The appellant has challenged this decision of the Respondent No,.2, by way of the present appeal, and prayed for a declaration that he is entitled to the pension for the services rendered by him in India and Pakistan till his retirement.
2. The stand of the respondents is that since the appellant had opted for service in India, he could not be accommodated in Pakistan as an opted for Pakistan, yet he was appointed on humanitarian grounds as temporary Postman at Gujar Khan Post Office with effect from 1-10-1947.
He was, however, replaced by a Pakistan opted with effect from 10-6-1948. Again he worked as Postman with effect from 11-12-1952 to 31-12-1952. During the remaining period he served as Extra Departmental Stamp Vendor at Gujar Khan till 1965 when his services were terminated as he became "overage". It was also stated that since the post of the Extra Departmental Stamp Vendor was non-pensionable, the appellant was not entitled to any pension. However, the Post Office Department prepared the pension case of the appellant and forwarded it to the Director of Accounts, Pakistan Telegraph and Telephone Department, Lahore. The Federal Finance Division, Pension and Provident Cell, had examined the pension case of the appellant in consultation with the Director General, Post Offices, Islamabad, Director of Accounts, Post Office Department, Lahore and Regulation Wing of the Finance Division, Islamabad, but rejected his claim after due consideration.
3. The learned counsel for the appellant contended that though the appellant had opted to serve in India yet when due to violent communal riots he came to Pakistan, he was appointed as Postman.
Thus, the appellant by his conduct, had changed his option and the Government, by giving him the appointment, had accepted the change. He produced a copy of a letter from the Respondent- Department which shows that M/s. Ehsanul Haq, Postman, Rawalpindi Division, Nasir Ahmad Postman, Rawalpindi Division, Gulzar Ali Clerk, Rawalpindi Division and Khairuddin, Packer, Gujrat Division, though opted for India, yet they were retained in service on permanent basis. The learned counsel argued that if these persons could be absorbed on permanent basis there was no reason or justification for the Respondent-Department not to absorb the appellant as Postman. The Respondent-Department has not been able to controvert this contention.
4. ' Having given our anxious consideration to the matter we have come to the conclusion that, in the circumstances narrated above, the Department was obliged to absorb the appellant as Postman and in not doing so they acted erroneously and against the principle of justice and fairplay. It is a well-settled position that if due to no fault of an employee he was prevented from serving on a particular post then there is no reason why he should not also be given all the remunerations and other benefits as if he was actually rendering services. This was so laid down by the Federal Court in the case of N.-W.F.P. v. Suraj Narain Anand and reported as 75 1 A 343 and by our superior Courts in some other cases, including the case reported as PLD 1970 SC 415. In the instant case, as we have seen, the appellant was wrongfully prevented from serving as Postman and was compelled to work as Extra Departmental Stamp Vendor. The appellant, therefore, is entitled to the pensionary benefits for the entire service he rendered in Pakistan in addition to pensionable services rendered by him in India. The learned counsel for the appellant also produced a copy of Office Memo., dated 15-9-1955 from the Establishment Division, Government of Pakistan, the extracts of which are reproduced below:- "The question of pensionary benefits to displaced provincial/ States Govt. Servants who left their pensionable posts in India and who were re-employed under the Govt. Of Pakistan has been under consideration for some time. It has been decided that persons who had rendered pensionable service to Provincial! State Governments including the Chief Commissioner's Provinces in India and who were employed under the Central Government of Pakistan on or before 31-12-1950 should be allowed the benefits of such services rendered in India for the purpose of pension. The service rendered by those displaced employees to the Provincial Governments/States Chief Commissioner Provinces in India should be treated as if it was service rendered to the Central Government.
Pensionable service for this purpose would be the service which could be treated as pensionable service under the rules of the Government of which it was rendered. If the service rendered by the displaced person on their appointments to Pakistan is temporary, it should be treated as qualifying service in conjunction with the previous qualifying service for the purpose of these orders.
2. The break in service for such displaced persons may please be treated as condoned. Ministries are requested to settle the cases of such displaced persons accordingly.
' Enquiries whether service rendered by an individual not covered by these orders should be treated as qualifying service for pensioner purposes should be made to the Ministry of Finance direct."
A plain reading of the above Government decision makes it quite clear that "all persons whether opted for Pakistan or not" who left their pensionable post in India and who were re-employed under the Central Government of Pakistan on or before 31-12-1950 should be allowed the benefits of such services rendered in India for the purpose of pension. The appellant's case finds support from this decision also.
5. It is averred in the written objection filed on behalf of the Respondent-Department, that the present appeal is barred by limitation. As mentioned above, however, the final decision refusing to grant pension to the appellant contained in the Respondent's letter, dated 9-12-1982, was received by the appellant on 26-12-1982 while he filed the present appeal on 25-1-1983 and thus it is quite in time. Indeed, according to the dicta laid down by the Supreme Court in Civil Appeal No, K-56 of 1980 the technical pleas in such cases are not pertinent in the face of the bounden obligation of the relevant authorities to satisfy the claim themselves. Therefore, the preliminary objection regarding limitation is misconceived and is accordingly repelled.
6. The foregoing discussion leaves us in no doubt that a grave wrong and serious injustice was done to the appellant by preventing him from serving as postman. It is a well-known principle of justice in such cases that there should be no wrong without remedy. To remedy the wrong and injustice done to the appellant, the minimum that can be done now, in our view, is that the entire services rendered by him in Pakistan should be treated as pensionable. The appeal is, therefore, accepted, the impugned decision is set aside and it is declared that the appellant is entitled to the pensionary benefits of the entire service rendered by him in Pakistan and the pensionable service rendered by him in pre-partition India as mentioned above, and we direct that pension be allowed to him accordingly.
7. No order as to costs.