1. ABDUL KADIR SHAIKH, J.--Facts of this case briefly stated are that respondent after about 16 years of service in Telephone and Telegraphs Department tendered resignation from service under letter dated 17-1-1973 which was accepted with effect from 26-1-1973 under notification of the same date It seems that he had been earlier selected by the Education Department as a Lecturer which post he joined on the same day, that is, 26-1-1973.
2. Respondent then filed an appeal to the Federal Service Tribunal which was allowed by the judgment dated 3-8-1986. It is in these circumstances that petitioners filed this petition for leave to appeal.
3. "418 (a) Resignation of the public service, or removal from it for misconduct, insolvency, inefficiency not due to age, or failure to pass a prescribed examination entails forfeiture of past service.
(b) Resignation of an appointment to take up another appointment, service in which counts is not a resignation of the public."
4. We may also at this stage refer to the letter of respondent's resignation dated 17-1-1973. It reads: "To The Superintendent Incharge, Central Telegraph Office Sir, With profound reverence I beg to crave your kind indulgence to the following: That I have been serving in the T&T Department under your kind control for the last 16 years in Quetta CTO.
5. That, of late, because Of pressing domestic circumstances I have been finding it increasingly difficult to continue in service, and have no alternative but to discontinue it. As such, I am not in a position to serve the Department any longer.
6. I, therefore hereby tender my unconditional resignation w.e.f. 1-2-1973 and fervently hope that the same will be accepted.
7. Thanking you in anticipation and hoping for early acceptance."
8. It may be mentioned that the date of acceptance of his resignation was antidated to 26-1-1973 at respondent's subsequent request.
9. Since petitioner had not disclosed the fact that he was joining the service of the Provincial Education Department of Baluchistan, and he had not even applied for that post through his parent---department, and in fact had suppressed the above fact, learned counsel who appeared on behalf of the petitioners before the Service Tribunal raised the plea that the provisions of Article 418 (b) of C.S.R. Were not applicable to respondent's case. This plea was: "No doubt, the appellant did not disclose at the time of resignation that he was joining provincial service, nevertheless, the fact cannot be denied that without any break of his service, he joined the Education Department. There was not even one day's delay. Clause (a) of Article 418 of the CSR provides that resignation entails forfeiture of past service. Clause (b) ibid, on the other hand, excludes such resignation from forfeiture of past service which is tendered for joining another service. We have come across so many cases where the Ministry of Finance has condoned even the break in service. We have also seen cases where foreign service has been allowed as a special case to count towards pension on payment of pension contribution. In the present case, the appellant had served for over 16 years in the T&T Department. The benefit of that service, in our opinion, should not be taken away from him merely for the reason that while tendering his resignation, he did not disclose that he was joining the new service in the Provincial Government.
10. Even if it is a case of relaxation, we order the same considering the present one a fit case for exercise of such discretion.
11. Now in support of this petition for leave to appeal learned Advocate-General, Baluchistan submits that respondent having tendered unconditional resignation because of his "domestic circumstances" is not entitled to the benefit of the provision of Article 418 (b) of C.S.R. In this behalf learned Advocate-General further submits that respondent's fresh employment in the Provincial Education Department cannot be, in any case, treated as continuation of the service of the Federal Department.
12. Learned Advocate-General further submits that respondent is guilty of having played a fraud of the Department under which he was serving by obtaining a fresh employment in the Provincial Education Department without applying for the post through his parent department in violation of the rules, and by the impugned judgment he has been allowed to retain his "ill-gotten gains", when, in fact, discretion even if available was not admissible to him due to his own conduct.
13. Learned Advocate-General pointed out that appeal before the Service Tribunal was hopelessly time-barred, in that, petitioner made the representation for grant of benefit of the provisions of Article 418 of C . S. R after lapse of more than 8 years, and thereafter filed the appeal before the Service Tribunal beyond the period of 120 days and all this delay was condoned by the Service Tribunal unjustly and against the mandatory provisions of law.
14. The submissions raised in support of the petition deserve consideration. We therefore grant leave and allow the petition.
15. Appeal will be heard on the present record, but it is open to the parties to file additional documents, if any.