SARDAR ABDUL JABBAR KHAN (CHAIRMAN).--Muhammad Saleem Akhtar, Retired Deputy Superientendent of Police, has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded the Secretary to Government of the Punjab, Home Department, Lahore, and the Governor of Punjab, as respondents.
2. By virtue of this appeal he has prayed that the impugned order dated 18-6-1986 may be set aside and appellant be reinstated in service with full back benefits.
3. Brief facts of the case are that the appellant was recruited as ASI in Karachi Police from 1-11-1959, which was under the administrative control of Federal Government. He was appointed by the Inspector-General of Police, Karachi, and was subsequently promoted as Sub-Inspector there in September, 1965. The appellant remained under the service of Federal Government in Karachi Police from 1-11-1959 to 30-7-1966, i,e, 6 years 7 months. During this period appellant had been drawing pay from Central Government/Central Exchequer. The appellant was rendered surplus from Karachi Police on 30-7-1966. On having been rendered surplus from service of Central Government in Karachi Police, appellant was absorbed in Punjab Police in Sargodha Division on 16- 8-1966. There was therefore a break of two weeks in his continuous service. The appellant was Sub- Inspector in Karachi Police but he was treated as A.S.I. in Sargodha Range for the reason that he was placed at the bottom of seniority list of all the A.S.Is, considering his date of appointment as ASI from 16-8-1966, and was not given the benefit of his past service in Karachi Police. However, the appellant has been retired under section 12(ii) of the Punjab Civil Servants Act, 1974, vide Notification dated 18-6-1986, on the presumption that he has completed 25 years service qualifying for pension. Hence this appeal.
4. We have heard the learned Counsel for the appellant as well as learned District Attorney assisted by the representative of the Department and have perused the record of this case carefully with their assistance.
5. Learned Counsel for the appellant has submitted that the appellant has not yet completed 25 years service. According to him, in fact on 18-6-1986, the appellant has completed about 20 years qualifying service. Therefore, the retirement of the appellant was premature and misconceived. For this he has relied on the case of Abdul Haye Niazi, SI, reported as 1981 PLC (C.S.) 696 as well as Noor Mohammad Khan which was decided by this Tribunal and upheld by their Lordships of the Supreme Court of Pakistan reported as PLD 1984 SC 80.
6. On the other hand learned District Attorney had adopted the comments of the Department and has submitted that the basic plea of the appellant that he rendered 6 years and 7 months in Karachi Police, hence this period could not be counted towards 25 years service qualifying for pension under the Pension Rules, 1963. was misconceived and illegal. It has been further submitted that as the appellant has been retired under section 12(ii) of the Punjab Civil Servants Act, 1974, after considering his service record, therefore no appeal was tenable under the Rules.
7. We have given our anxious thought to the arguments advanced by the parties and find that the respondents have admitted in para. 9 that total service in Karachi Police was 6 years 9 months and 22 days, whereas rest of the service of the appellant was in Punjab Police. Even under the Provisional Constitution Order of 1981, it has to be established that the appellant must have 25 years service qualifying for pension and that he should be retired by the competent authority.
These two conditions were prerequisite even in the Provisional Constitution Order and after the lifting of Provisional Constitution order, the situation would remain the same and would rather allow the Punjab Service Tribunal to look into the justification of retirement also as held in this context it would be useful to reproduce rule 2.1 of the West Pakistan Civil Services Pension Rules, 1963:- "2.1. Conditions of qualification.-- The service of a Government servant does not qualify for pension unless it conforms to the following three conditions:- First: The service must be in Govt.
Second: The service may not be non-pensionable. Third: The service must be paid by Government from the Provincial Consolidate Fund." This being the rule, the period of appellant's service from 1-11-1959 to 30-7-1966, under the Central Government Karachi Police, the appellant did not draw his pay from Punjab Government because it was not pensionable under rule 2.1 of Pension Rules, therefore, this service does not qualify for pension and is not qualifying service for the purpose of section 12(ii) as well. Identical matter in the case of Adbul Hayee Niazi S.I. reported as 1981 PLC (C.S.) 6%, came before this Tribunal and it was held in that case that the previous service of officer which was not counted by the Department towards seniority, should not be treated as qualifying service for the purpose of section 12(ii). As already mentioned above the appellant had served in Karachi Police as A.S.I. and Sub-Inspector till 1966, but his that service was not counted towards seniority and he was absorbed in Sargodha Division on 17-8-1966 considering the date of his appointment as A.S.I. from 16-8-1966. Similarly the case of Noor Mohammad Khan v. Director of Education came before this Tribunal in which it was found that the said Noor Mohammad Khan had served a number of years in the Settlement Department, a Department of Central Government therefore, this Tribunal held that such period could not be counted towrds service qualifying for pension. Government aggrieved against this order, went before their Lordships of the Supreme Court of Pakistan but the judgment of this Tribunal was upheld reported as PLD 1984 SC 80. This being the legal lacuna which goes to the very root of the impugned order, we do not want to enter into the merits of the case of the appellant, whether his service record justifies his retirement or not, and set aside the impugned order as without lawful authority as well as illegal.
8. The result is we accept the appeal, set aside the impugned order dated 18-6-1986, and direct that the appellant be reinstated in service with all back benefits, as he has never been out of service. There will be no order as to costs.