' SHAFIUR RAHMAN, J.--Leave to appeal was granted to the Federation of Pakistan and 2 others under Article 212(3) of the Constitution to examine whether the respondent was at all entitled to the benefit of Regulation No,418(b) of C.S.R. And whether his appeal before the Service Tribunal was not hopelessly time-barred.
2. The respondent joined the Central Telegraph Office as a Clerk on 24th August, 1956 and served in that capacity till 25th of January, 1973. On the 17th of January, 1973, he submitted an application stating as hereunder:-- "That I have been serving in the T&T Department under your kind control for the last 16 years in Quetta CTO.
' That, of late, because of pressing domestic circumstances I have been finding it increasingly difficult to continue in service, and have no alternative but the discontinue it. As such, I am not in a position to serve the Department any longer.
' I, therefore, hereby tender my unconditional resignation w.e.f, 1-2-1973 and fervently hope that the same will be accepted."
' The resignation was accepted on 26th of January, 1973 in the following words:-- "Unconditional Resignation of Mr. Mohammad Mubarak permanent Clerk of this Office is hereby accepted with effect from forenoon of 26th January, 1973."
3. The respondent joined the Government of Baluchistan in the Education Department as Lecturer on 26th of January, 1973 and approached the Education Department of the Province for counting his earlier service towards pension. He was referred to the competent authority under the Federal Government and he addressed an application, dated 7-1-1981 submitted on 1-4-1981 to the Director-General, Telegraph and Telephone Department, explaining as hereunder:-- "Undoubtedly, I had submitted resignation but that only in the best interest of the country and also in my own interest --- to serve my country in a better capacity. It was a pre-planned affair as I had applied for the post of Lecturer in response to the advertisement appeared in the papers, was interviewed, and my appointment was notified by the B.E. Department vide Notification No,2-4/72- Education: 1/380, dated 9-1-1973. I had applied direct fearing that I might be ignored being an employee of the Federal Government. By doing so, I had to forfeit all the other benefits of the past service rendered in the T&T Department save the benefit of counting of the service towards pension which otherwise I would have enjoyed had there been no resignation in service as it would have been a case of transfer of service from one Government Department to another. Sir, this is an ample testimony that the resignation was tendered to take up another 'appointment regardless of the fact whatever reasons one might have given therein provided there was continuity in services".
' This request of the respondent was formally rejected on 26th of March, 1984 in the following words:-- "It is to point out that Mr. Muhammad Mubarak (Ex-TPO) tendered unconditional resignation from service on domestic grounds. As such the Article 418 of C.S.R.
"Resignation of an appointment to take up another appointment in which the service counts is not a resignation of the public service" does not apply in this case. Therefore, the certificate for the service record for another assignment in the same province cannot be issued to the applicant."
4. On 27th of August, 1984, he filed a Service Appeal before the Federal Service Tribunal. The main ground taken up by the respondent in the appeal was as hereunder:-- "That the resignation was tendered in the best interest of the country and ardent desire of the appellant to serve the country in a better capacity when his services were needed in the backward province - a sense of patriotism was predominant in the decision.
4. By submitting the resignation, the appellant had been stripped of all the other benefits of his past service save the benefit of counting of the service towards pension which relief is claimed herein. In fact it is a case of transfer of service from one Govt. Deptt. To another, and the resignation can be termed as a bridge between the two services.
5. Above all, there is continuity in service. To request for the acceptance of resignation w.e. From 26-1-1973 (F/N) instead of 1-2-1973 was ostensibly intended to take up another appointment the same day."
5. The Service Tribunal by the impugned judgment examined the claim put forward by the respondent and held as hereunder:-- "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 C.S.R.
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.
Even if it is a case of relaxation, we order the same considering the present one a fit case for exercise of such discretion."
6. Mr. Iftikhar Muhammad, the learned Advocate-General Balochistan, appearing for the appellant contended that the question of limitation in filing the Service Appeal was specifically raised before the Service Tribunal but was not attended to. On merits it is contended that Regulation 418(b) was not of avail to the respondent because service rendered with the Provincial Government did not count for pension so far as the Federal Government was concerned, unless the service with the Provincial Government was rendered on deputation or with permission of the Federal Government.
Reliance has been placed on The Government of N.-F.W.P. v. Muhammad Said Khan and another PLD 1973 SC 514, The Secretary to Government of Punjab, Education Department, Lahore and another v. Noor Muhammad Khan PLD 1984 SC 80, Rana Muhammad Yasin v. Government of Pakistan 1982 SCMR 156 and Badar-ud-Din v. Secretary to Government of Punjab Food Department, Lahore and 3 others 1985 PLC (C.S.) 653.
7. The law applicable to the case is contained in the Civil Service Regulations. Regulations 362 to 386 being of general application and Regulations 418 to 423 of particular application to the case, the situation was governed by Regulation 418 which is reproduced hereunder:- "418. (a) Resignation of the public service, (or dismissal) or removal from it for misconduct, insolvency, inefficiency not due to age, or failure to pass a prescribed examination entails forfeiture of past service.
(a) Resignation of an appointment to take up another appointment, service in which counts, is not a resignation of the public service."
' Regulation 386 provides as hereunder:-- "386. Service paid from the General Revenues qualifies. The fact that arrangements are made for the recovery on the part of the Government, of the whole, or part, of the cost of an establishment or officer, does not affect the operation of this principle: Provided that the establishment or officer is appointed, controlled and paid by the Government." `General Revenues' mentioned in Regulation 386 has been defined in Regulation 28 as hereunder:- - "General Revenues for the purposes of pension includes Provincial Revenues".
8. Reading all these provisions together, it is clear that the service in the Provincial Government on satisfaction of the other conditions prescribed by the Provincial Government counts for pension. On that view of the matter if the respondent had taken up the appointment with the Provincial Government without contravening any law on the subject, it would have certainly counted for pension and his claim to it would have had merit. The respondent in approaching the Provincial Government for appointment in the manner in which he did contravened Rule 3 of the Government Servants (Application for Services and Posts) Rules, 1966 which provides as hereunder:-- "3. Manner of making applications.--No Government servant shall apply for appearing at any competitive examination or for appointment to any post other than the post which, he for the time being, holds except--
(a) for appearing at a ministerial services competitive examination through the head of the office, Ministry or Division in which he is employed; and
(b) for appearing at a competitive examination other than a ministerial services competitive examination or for appointment to a Service or post to be filled otherwise than by a competitive examination with the prior permission in writing of the head of the office, Ministry or Division in which he is employed, who may, for reasons to be recorded in writing, refuse such permission if he considers that such permission would not be consistent with the interests of the public service."
(The portions relevant to this case have been underlined by us).
9. The Service Tribunal has not taken note of the law applicable to the situation, nor the proprieties governing the case though C.S.R. 418 was noticed as also the power of exemption and condonation generally exercised for overcoming break in service and contained in Regulations 421, 422 and 423 of the C.S.Rs, The conduct of the respondent was not only in contravention of the Rules quoted, it was also highly inequitable and improper at least for five reasons which deserved notice before granting relief to him in the matter. In the first place, there was a direct contravention of Rule 3 of the Government Servants (Application for Services and Posts) Rules, 1966, referred to above.
Secondly, in tendering the resignation he had admittedly and even according to himself given an incorrect reason. There was, therefore, an element of false representation on his part to his official superiors. Thirdly, by suppressing or not disclosing the correct facts the respondent had prevented the superior officers from taking a correct decision in accordance with the law applicable to the case of the respondent. He could have been permitted to appear and take up the appointment retaining his lien and protecting all his service rights in Federal Government till such time as he was not confirmed in the Provincial Government. Fourthly, and this is important, he has himself emphasized in his resignation and so has the Department the fact of unconditional resignation and its acceptance as such. He could not after having so obtained the permission of the respondent turn round and impose a condition. Fifthly and finally, he left the service of the Federal Government in 1973. The earliest point of time we come across on the record is 1978 when he moved the Provincial Government for benefits in the matter of pension of service rendered in the Federal Government. He moved the Federal Government finally in 1981 and he filed the Service Appeal in 1984. The delay was objected to by the appellant but the Service Tribunal did not attend to it. In this background the Service Tribunal could not have invoked the principle of condonation in break of service which was extraneous to the case for judging the propriety of granting the relief by reversing the departmental action. This appeal is therefore allowed. The judgment of the Service Tribunal is set aside. The Service appeal filed by the respondent before the Service Tribunal, therefore, stands dismissed. No order is made as to costs.