DORAB PATEL, J.-The petitioner joined the Police Service in 1940 in Baluchistan and after completing 25 years' service, as his record was satisfactory, the respondents informed him that ho would be allowed to continue in service, until he reached the ago of superannuation . He thus became entitled to remain in service until 14-2-1974. However; whilst working in Mekran District he received an injury to his right eye in March 1969. As Martial Law had just been promulgated, he was not able to get leave co as to have his eyes treated by a specialist in Quetta. He therefore went to the Medical Officer at Turbat for treatment, and he appears to have been advised that his eyesight had become too weak to enable him to do his duties properly. On 6th May 1969 he made an application for the grant of six months` leave preparatory to retirement. This application was forwarded in due course to respondent No. 2 who by hip order dated 22nd May granted him leave preparatory to retirement as requested. Meanwhile, however, the petitioner got an opportunity of coming to Quetta and consulting an Eye Specialist who advised him that the defect in his eyesight was temporary and that he need have no apprehension of being unable to perform his duties on account of the Injury to his eye. Accordingly, on 19th May 1969 he applied to the second respondent, through the Superintendent of Police, Mekran for cancellation of his leave application and it 1s admitted that this was communicated to the Deputy Inspector. General of Police, Quetta on 22nd May 1969, the day after the second respondent had allowed the petitioner's application to retire.
The petitioner pressed his application for cancellation of his leave preparatory to the retirement.
However, the second respondent rejected it on the basis of a Memorandum of the Finance Department. Government of West Pakistan, dated 27th April 1967 and bearing No. SO (SR) V-257/67.
The petitioner however again pressed for cancellation of his application for leave preparatory to retirement, but by another letter dated 27-3-1970 written on the second respondent's behalf he was informed that he could not withdraw his application for leave preparatory to retirement because the West Pakistan Finance Department had declined to relax the rules in his favour. Aggrieved by these orders he filed a constitutional petition to challenge the second respondent's orders of 21-5- 1969 and of 27-3-1970, and he also seeks a declaration that he is entitled to remain in service until he reaches the age of superannuation. This petition has now come up for bearing before us and is opposed by the respondents.
2. As the petitioner claims to have submitted his application to retire under a misapprehension, I have to point out that the respondents have not cared to controvert his express averment that he had been misguided by the Doctor who had examined him in Turbat. The learned Advocate- General however criticised the petitioner for not having applied for medical examination and treatment by an Eye Specialist before submitting his application to retire, and he also pointed out that in that application the petitioner bad not stated that he had received an injury to his eye but had merely stated that his eyesight had become too weak to enable him to perform his duties satisfactorily. It is true that the petitioner submitted his application to retire rather hastily and he has not clearly stated in his application for leave dated 6-5-1969 that he bad been injured in an accident. However he has referred to defects in his eye in his application and it is obvious that medical facilities in Quetta are different from those in the outlying areas of the Province. Therefore I have no doubt that the petitioner had submitted his application for leave to retire under a genuine misapprehension and wrong medical advice. As he was entitled, under the second respondent's order of 14-10-1964, to remain in service until he reached the age of superannuation, prima facie it seems tome that he was entitled to with--draw his leave application in the absence of rules to the contrary, and as the contention of the respondents is that rules to the contrary were contained in paragraph 8 of the Memorandum of the Finance Department dated 27th April 1967, it is necessary to examine this paragraph.
3. Paragraph 8 of the Memorandum states as follows:- ---8. Retiring pension-Subject to the provisions of the Essential Services Maintenance Act, all Government servant shall have the right to retire on a retiring pension after com--pleting 25 years qualifying service; provided that a Government servant, who intends to retire before attaining the age of super--annuation shall, at least three months before the date on which be 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 and shall not be allowed to be modified or withdrawn."
The respondents rely on the provision in this paragraph that a retirement once submitted was final and could not be withdrawn thereafter. But as the petitioner was otherwise entitled to remain in service until 14-2-1974, the learned Advocate-General very fairly conceded that the Memorandum or at least para--graph 8 could support his argument only if it was a rule. Thus the real point for determination in this petition is whether this Memorandum or at least paragraph 8 is fit to be treated as a rule. The question when office memoranda can be treated as rules was considered by the Supreme Court in Pakistan v. Abdul Hamid (PLD 1901 SC 105) and I may quote here with advantage the following observations of Cornelius, C. J. at page 110:- "These Office Memoranda are printed as appendices to the Rules.
We have then asked ourselves the question whether the Cabinet Secretariat Office Memorandum of the 15th July 1958 is not an Instrument which is intended to be construed with the Minis--terial Establishment Rules, and as part of those Rules. As has been seen, the particular provision upon which Sheikh Abdul Hamid bases his case is expressed in precise terms, which are capable of being applied with particularity to a great variety of cases, and in particular, those instructions can be applied with exactness in the case of Sheikh Abdul Hamid. It is true that there are no words in the Rules which attract the Incorporation of the instructions in this Office Memorandum into the Minis--terial Establishment Rules but that, it appears to us, is a for--mality of which sight may perhaps have been lost at the time when this office Memorandum was promulgated. For it is expressed to contain the final instructions applicable to a very large number of Ministerial employees, which were Intended to regulate at sorption into Government service of all these persons so far as possible. There is nothing to indicate that these instructions in the office Memorandum were subsequently super, ceded, or that they have not been strictly applied in any case, much less that they have been departed from in relation to any considerable proportion of the cases arising under the Office Memorandum, which would be the necessary condition of holding that they Were not Intended by the Government to be of binding affect.--- The Memorandum on which the learned Advocate-General relied has to be considered in the light of these, observation. The fact that the Memorandum is not described as a rule is therefore immaterial, and the learned Advocate-General drew our attention to the fact that the provisions of paragraph 8 and of the Memorandum generally were intended to apply to all cases, there fore his submission was that the Memorandum satisfied the test laid down by Cornelius, C. J. in the observations cites. On the other hand, Mr. Yahya Bakhtiar, learned counsel for the petitioner, drew our attention to paragraph 1 and paragraph 16 of the Memorandum and submitted that the Memorandum did not satisfy the teat laid down by Cornelius, C. J. in the case cited. I may explain here that paragraph 1 states that the Government had "under consideration the recommendations of the Pay and Services Commission. The Governor of West Pakistan has now been pleased to take the following decisions, which shall take effect on the/from let July 1966. Then paragraph 16 states: "Necessary amendments to the rules shall be made in duo course."
4. The opening paragraph of the Memorandum read with paragraph 16 lends strong support to Mr. Bakhtiar's submission that the Memorandum expressed only the tentative views of the Government therefore I do not think it satisfies the test of finality laid down in the observations quoted.
Additionally, as the learned Advocate. General admitted that the Memorandum had not been published in the Gazette was enquired whether it had ever been brought to the notice of the petitioner and members of the Police Force. The Advocate-General was not able to answer our enquiry, and although the respondents have relied in their parawise comments on this Memorandum they have not stated that it was brought to the notice of the petitioner. In these cir-- cumstances It Is clear that the Memorandum was only circulated to the persons to whom it was addressed. This is another strong piece of evidence to indicate that the Memorandum was not in-- tended to have the force of a rule and that would be for the vary Simple reason that paragraph 16 itself states that rules were to be framed to give effect to the recommendations of the Pay and Services Commission.
5. Mr. Yahya Bakhtiar further submitted that a Government servant could not retire merely when he wanted to but that could only do so on reaching the age of superannuation and fulfilment of any other conditions of his terms of service, and therefore, as paragraph 8 was Inconsistent with this settled princi--ple, It was either illegal and/or it was never meant to have the force of a rule. In further support of this argument, learned counsel referred us to a Circular from the Finance Department of the Nest Pakistan Government dated 29th July 1967 bearing No. SO (SR) V 1387/67.
Paragraph 2 of this Circular states as follows:- "2. It has therefore been decided that In future before ordering or permitting retirement of any Government servant on retirement pension, the pension sanctioning authority should satisfy itself, invariably in consultation with the audit office concerned, that the Government servant has actually completed 25 years' service qualifying for retiring pension. This decision may please be brought to the notice of all concerned for strict compliance.--- This Circular to inconsistent with paragraph 8 of the Memorandum. In view of this Circular, it is clear that an application by a Government servant to retire cannot take effect automati--cally and is necessarily subject to the Government's right to reject it. Thus, as rightly submitted by Mr. Yahya Bakhtiar, this Cir--cular Is Inconsistent with paragraph 8 of the Memorandum. The learned Advocate-General was aware of this difficulty. He therefore submitted that, as the petitioner had completed 25 years' service the Circular was nit applicable to tits case. But the question is not whether it is applicable to the petitioner's case but whether, in view of the circular, paragraph 8 was intended to have the force of a rule. If a retirement takes effect automatically on the submission of an application to retire, it is clear that the rights of the Government would by prejudiced, and as the Memorandum does not contain even a reference to this aspect of the case.
It is obviously incomplete and therefore, in -my humble opinion, this is another important circumstance, which leads to the conclusion that the Memorandum was not even intended to have the force of a rule.
6. According to the observations of Cornelius, C. J. which I have cited, another circumstance which is relevant to the question whether office Memoranda can be treated as rules is whether they have been strictly complied with to every case. Mr. Yahya Bakhtiar therefore stated that the provisions of paragraph 8 had not been followed in the Province, and in support of this plea, he referred us to two specific cases of officers who had been allowed to withdraw their applications for leave to retire: Sardar Inayatullah Khan Jogezal and Mr. Jehangir Shah Jogezal. Learn--ed counsel further submitted that the clear allegations of the petitioner in this respect in the petition had neither been denied in the parawise comments of the respondents nor in any counter --affidavit, therefore they had to be accepted as correct. It is true that the respondents have not denied the specific averments of the petitioner that Sardar Inayatullah Khan Jogezal and Mr. Jehangir Shah Jogezal had been allowed to withdraw their applications for leave to retire; but in view of the importance of the question, we gave time to the learned Advocate-General to obtain instructions on the correctness of the petitioner's allegations and I will now consider the learned Advocate-General's explanation.
7. Sardar Inayatullah. Khan had applied for withdrawal of his application for leave to retire before the application had been granted therefore, according to the, learned Advocate-General his case was distinguishable. But as according to paragraph 8, an appli--cation for leave to retire "once submitted shall be final and shall not be allowed to be modified or withdrawn" the fact that Sardar Inayatullah Khan's application had not been accepted when he applied for its withdrawal is immaterial. But as Sardar Inayatullah Khan's case was before the issue of the Memorandum under consideration, the petitioner's ease, except that is shows that officers were permitted to withdraw their retirement applications, and this practice is also supported by a letter of the Additional Secretary, Finance Department, West Pakistan to all Heads of Departments tend dated 13th April 1967 (Annexure L to the petition). Mr. Jehangir Shah however was allowed to with draw his application for leave to retire in 1968. As this was long after the issue of the Memorandum of 27th April 1967, this case clearly helps the plea of the petitioner. The learned Advocate General however submitted that it did not help the petitioner's case because of the ground on which Mr. Jehangir Shah had been allowed to withdraw his retirement application. Apparently. Mr. Jehangir Shah had applied for leave to retire because he had been demoted. But when the order for demotion was set aside, he withdrew his retirement application, and as the Selection Board supported his claim, the learned Advocate-General submitted that his case was distinguishable. I do not see any distinction bet--ween Mr. Jehangir Shah's case and that of the petitioner. Like Mr. Jehangir Shah, the petitioner wants to withdraw his application for retirement on the ground that he had applied to retire under a misapprehension, and merely because Mr. Jehangir Shah's case was referred to the Selection Board, I do not think the case is distinguishable. After all if paragraph 8 of the Memorandum of 27th April 1967 is a rule, than an application to retire takes effect as soon as it is submitted, so that there can be no question of referring it to any Section Board therefore Mr. Jehangir Shah's case establishes the v petitioner's contention that paragraph 8 of the Memorandum was not always being enforced, and therefore it does not satisfy one of the tests laid down by Cornelius, C. J. in the judgment cited. Additionally, this would suggest that as the Memorandum was not comprehensive, on this ground also, it was not intended to operate as a rule.
8. In all the circumstances discussed, I am satisfied that this Memorandum is not a rule, and therefore the respondents are 1"' not entitled to rely on it. On the other hand, as the Additional Finance Secretary's letter of 13th April 1967 shows, Government servants were permitted to withdraw their applications for retire--ment, and as the petitioner sought to withdraw his application because he had submitted it under a genuine misapprehension caused by wrong medical advice, I am of opinion that he was entitled to do so. The learned Advocate-General then feebly sub--mitted that the petitioner could not be allowed to withdraw his retirement application because he had been receiving pension from the respondents. But as the petitioner was always challenging the second respondent's order of 21-5-1969 as illegal, the receipt of pension by him cannot deprive him of his rights. Accordingly, it is clear that the petitioner wais entitled to withdraw his retire--ment application and as his claim has been illegally rejected, he remains in service. I therefore set aside the second respondent's order of 21-5-1969 and 27-3-1970 as illegal and without lawful authority. The petition is thus allowed but I leave the parties to bear their own costs.
TUFAIL, Ali A, RHHMAN, C. J.-I agree,