' SARDAR MUHAMMAD SAJAWAL KHAN (CHAIRMAN).---In the instant appeal, Mr. Qamar-uz-Zaman Khan Niazi who was originally employed as Deputy Director, Industries and held the post of O.S.D.
Immediately before the passing of the impugned order in the Services and General Administration Department has impugned the order of his retirement which was issued under Government Notification No, Admin/A-3(30)S.O.-V/89, dated 10-5-1989.
2. The grievance of the appellant is that he was not retired in accordance with the terms and conditions as were agreed to and settled by him with the Additional Chief Secretary respondent No,
2. He is also aggrieved of the fact that among the Deputy Directors of the Department he held the senior position for being promoted to the post of Director Industries but he was maliciously ignored and Sardar Muhammad Rashid Khan was inducted in the Office of Director Industries by transfer from Information Department. The appellant represented before the Government against the aforesaid appointment of the Director which annoyed the Director and he brought numerous baseless charges against the appellant although he was exonerated of those charges in the inquiry held against him. Being dissatisfied with the result of inquiry, the Director did not recommend his case for moveover in National Pay Scale No, 19 which had fallen due to him long ago. It is further submitted by him that because of the ill-treatment of his senior officers, he was forced to make an application for his premature retirement on the fulfilment of conditions such as he may be allowed 30 years service benefit towards pension, moveover in National Pay Scale No, 19 and encashment in lieu of L.P.R. The respondent-Government accepted his one demand that of encashment and ordered premature retirement of the appellant without deciding the rest of his conditions. The appellant brought a review petition before the Government against the aforesaid illegal order of his retirement but no decision was taken on that petition and the appellant ultimately had to invoke the jurisdiction of this Tribunal under section 4 of the Service Tribunal Act, 1975.
3. It is prayed by the appellant that the impugned order being illegal may be set aside and the respondents be asked to allow his retirement with full benefits as were demanded by the appellant in his application dated 6-4-1989 submitted to the Additional Chief Secretary. In alternate, the appellant seeks for his reinstatement in service from the date of his retirement viz. 27-8-1989 with all the service benefits and the costs of the appeal.
4. The objections, submitted by the respondents are that, the appellant has been retired from service at his own request on completion of 25 years service. No review petition lies against the impugned order which is final. The present appeal is thus barred by limitation. The retirement is a necessary part of terms and conditions of service of a civil servant and on completion 25 years service, the impugned order was made under section 12 of Civil Servants Act. The authority which is Government in case of the appellant was alone competent to give concession to the appellant and no other officer of the Government was competent to settle the terms and conditions of retirement as were offered by the appellant. The appeal merits dismissal and the same may be dismissed.
5. We have given our careful consideration to the arguments as were addressed at the Bar by the learned counsel of each party. We have also examined the record and the application which the appellant had submitted to the Additional Chief Secretary for his premature retirement on the conditions proposed therein. Through this application, the appellant has asked for the, following amenities_aservice:-- {{URDU TEXT}} ENCASHMENT {{URDU TEXT}} ' The Government allowed encashment of L.P.R. And ordered the retirement of the appellant from service without fulfilment of other conditions offered in the application. The retirement order is re- produced below for correct appreciation:-- {{URDU TEXT}}
6. A perusal of the above order reveals it that the retirement of the appellant was ordered at his request without giving him the benefit of 30 years service and moveover in Grade No 19 whereas the appellant had asked for his premature retirement after the fulfilment of the above two conditions also. As the respondent-Government failed to reach a decision according to the request so made by the appellant, it was incumbent upon the Government to ask the appellant whether he was still desirous to be retired from service despite the fact that at the event of his retirement benefit of 30 years service and moveover in National Pay Scale No, 19 was not to be allowed to him.
It was also necessary for the respondent-Government to tell the appellant that his request was not in accordance with the rules and would be opposed by the Selection Board as well as by the Department of Services and General Administration. It was not the correct solution of the problem for the application of the appellant as to his conditional retirement was either to be rejected in toto or to be accepted in toto.
7. Next it is contended by the learned counsel for the respondents that the respondent- Government was competent to make the impugned order under section 12(ii) of Civil Servants Act, 1976. The relevant section as it stood at the time of passing the impugned order is reproduced below for appreciation in its true perspective:-
12. Retirement from service.-- A civil servant shall retire from service:- (1)
(ii) in any other case. On such date after he has completed twenty-five years of service qualifying for pension or other retirement benefits, as the competent authority may, in the public interest, direct: or A plain reading of above subsection makes it abundantly clear that the powers given to the respondent-Government for retiring a civil servant on completion of 25 years of service is conditioned with 'public interest'. We find nothing on the record to substantiate this argument of the appellant that the present Director of Industries had developed enmity towards him and for that reason he was treated maliciously and forced to seek premature retirement. In fact the appellant, because of his poor record of service was not fulfilling the requirements of the relevant rules to get the concession of moveover from B-18 to B-19. There is no denying the fact that the appellant is not having good record of service and that he earned a number of adverse entries during the tenure of his office which had, prima facie, rated him to be unfit for service. But at the same time if the Government has made an illegal exercise of powers for the purposes different from the one stipulated under section 12 (ii) of the Civil. Servants Ac the order shall have to be struck down. In such event, the presumption attached under section 12(ii) of the Civil Servants Act that the retirement was effected in public interest stands rebutted and it would be said that it was not made in public interest, rather it was made in illegal exercise of powers not in accordance with law i,e, by virtue of section 12(ii) of the Civil Servants Act, 1976.
8. The upshot of the above discussion is that we allow this appeal and order that the appellant shall be reinstated w,e,f, the date of his retirement. He shall be entitled to get such amount of salary as would be found due to him after deducting the amount of pension already paid to him. No orders as to the costs.