1. NASIM HASAN SHAH, J.--This appeal is directed against the judgment and order of the Federal Service Tribunal dated 11-11-1982 whereby the appellant's appeal directed against the order of his retirement was dismissed.
2. The order of the retirement, aforementioned, was passed on the 15th August, 1972 and is reproduced below:- Rawalpindi: 15th August, 1972 "NOTIFICATION No.8/15/72-Cl.--Mr. Masihuzzaman, C.S.P. Is granted leave preparatory to retirement consisting of leave on average pay for six months from the 15th August, 1972 to the 14th February, 1973.
2. On the expiry of the leave preparatory to retirement, Mr. Masihuzzaman is permitted to retire from the Civil Service of Pakistan with effect from the 15th February, 1973.
3. (Sd.)
4. (VAQAR AHMAD), Establishment Secretary."
5. The above order was passed in pursuance of the letter addressed by the appellant to Mr. Vaqar Ahmad, Secretary, Establishment Division, on May 20, 1972, which was in the following terms:- M. Masihuzzaman, C.S.P., Chief Secretary to the Azad Government of the State of Jammu and Kashmir, Camp, Islamabad. 20th May, 1972.
6. Dear Mr. Vaqar Ahmad, Kindly refer to my talk with you on 13th of this month.
2. 1 cannot exercise my option to retire until October 19, 1975.And my compulsory retirement will not be due until June 1982. E4.4 public service lias ceased to be a source of self-fulfilment for me and I am anxious to retire early. I have been very much encouraged by the hope held by you that you would be able to secure my retirement on proportionate pension and suitable gratuity this year.
3. I, therefore, propose to proceed on leave from 1st of October, 1972 and to retire from the C.S.P.
7. After exhausting my LA.P. And half L.A.P. I would, therefore, request you to kindly secure the approval of the President to this arrangement.
4. I shall be grateful for acknowledgement of this letter and for early action.
8. Thanking you.
9. Yours sincerely, (Sd.)
10. (M. Masihuzzaman)
11. Mr. Vaqar Ahruad, SPK, SOA, PA&AS Secretary, Establishment Division, Government of Pakistan, Rawalpindi."
12. In view of the letter dated 15th August, 1972, reproduced above, the appellant was permitted to retire from civil service of Pakistan with effect from 15-2-1973.
13. On 21-8-1981, however, he addressed a letter to the Secretary, Establishment Division, Government of Pakistan, stating that he had realised that the order of retirement passed in his case was illegal and void, so that he still continued in service and was, accordingly, reporting for duty. He requested that the earlier orders of retirement may be cancelled and he should be appointed as an O.S.D.
14. From the date of proceeding on L.P.R. And allowed to resume his duty. This somewhat startling request was contained in the aforementioned letter dated 21st August, 1981, which, to the extent relevant, reads as follows:- "2. In May 1972, I asked to see Mr. Vaqar Ahmad. It is on. Record that I applied for premature retirement after this meeting and gave the reason that public service' has ceased to be a source of self-fulfilment for me. I also cautioned that my request might be inadmissible under the rules.
15. Nevertheless the Establishment Division issued order of my retirement. Subsequently, an officer told me that my competitive examination (1950) records were examined and my previous non- gazetted service was taken into account when ordering retirement. He also obtained from me two applications requesting that my previous service be counted towards pension.
3. These belated efforts failed to obtain for me the proportionate pension which was condition for retirement. In fact, when I asked for extension of my LA.P. For 6 months, the Establishment Divisionrefused because I stood retired and rules did not permit leave after A retirement. But even as the Establishment Division was quoting rules, it knew that my retirement was illegal. The Law Division had advised it that I was not retired. It also knew that my retirement was notordered by the appropriate authority and was ineffective. The Division had also violated the rules of business and ordered retirement without consulting the Law and Finance Divisions. Had they been consulted would not be writing this letter.
4. Incidentally, I had hoped that when my application went to the President he may call me and ask for my reason of dissatisfaction with the service. My fear is that the Establishment Secretary took the underhand steps to avoid this possibility.
5. This is, therefore, to request you to please cancel my retirement order and orders regarding LPR, appoint me as O.S.D: from the date of proceeding on L.P.R. And arrange payment of arrears -of pay keeping in view that my salary is calculated on the; basis of increments and constructive promotion. In case it is decided to retire me now this should please be done after allowing me LPR."
16. However, the request contained in the letter dated 21-8-1981 to be put back on duty was refused through letter dated 21-4-1982 issued by the Deputy Secretary of the Establishment Division on the ground that the appellant had been granted retirement at his own request and the order of retirement had become effective from 15-2-1973. It is further stated that the case could not ~ be considered now, nearly 9 years after the passing of the impugned orders.
17. Feeling aggrieved, the appellant preferred an appeal against the above order dated 21-4-1982 rejecting his request (Appeal No.88(R)/1982 on 3-5-1982) before the Federal Service Tribunal. This appeal, however, was rejected by the Service Tribunal vide order dated 30-6-1982 on two-fold grounds; firstly that the retirement was made at the appellant's request and even if there was any rule, that was relaxed. It was added that "the rule for getting retirement after 25 years service is condition of service. According to this rule, Government has power to retire a Civil servant if he completes 25 years service and the civil servant can ask for retirement as of right, if he completes 25 years of service. However, the Government can retire a civil servant before 25 years as a punishment and likewise, the appellant can ask for retirement as a special case but not as of right.
18. The appellant's retirement after rendering service qualifying for pension having been accepted, it is immaterial whether the President accepted it or the authority subordinate to him accepted it. The appellant cannot challenge an order which is made in his own favour and come to the Tribunal after remaining out of job for a period of nine years"
19. The other reason given for rejecting the appeal was that the appeal was incompetent because the Establishment Secretary having refused to accept the appellant's stand it was necessary for him to approach the President by way of a representation but the appellant had come to the Tribunal without exhausting the departmental remedy.
20. The appellant in order to overcome the last mentioned defect, in the order of the Tribunal, despatched a representation to the President of Pakistan on 18-7-1982. As no reply was received thereto, despite two reminders, within the statutory period, he moved the Federal Service Tribunal again by a, fresh appeal (Appeal No.115(K)/82 dated 31-10-1982). This appeal too was, however, dismissed. It was found firstly that as the departmental representation was filed after the period of limitation, it could have been dismissed by the President on that very ground. It was further observed that the previous appeal of the appellant had been rejected by the Tribunal also on merits and as no good grounds were made out to review the previous decision, this appeal too was liable to be dismissed. This order was passed on 11-11-1982. The present appeal preferred before us is directed against the last-mentioned order of the Federal Service Tribunal dated 11-11- 1982.
21. The learned counsel for the parties have been heard and written notes of the arguments addressed before us have also been duly considered.
22. This case presents some unusual features. Here a member of the Civil Service of Pakistan (referred commonly to as members of a heavenly born service) asks to be retired, his request is received not only with enthusiam though he has completed only 21 years of service but happily entertained despite the requirement in the Constitution that a civil servant can seek retirement only after he has completed 25 years of service qualifying for pension or other retirement benefits and this (ostensibly unacceptable) request granted, not by the competent authority (the President) but by the Minister of Establishment (in purported exercise of the delegated powers vested in him under the Rules of Business).
23. Reverting to the merits of this appeal (directed against the order of the Service Tribunal dated 11-11- 1982) it will be observed that the order of the Service Tribunal proceeds on two-fold grounds: (a) the point of limitation and (b) on merits.
24. So` far as the ground of limitation is concerned, we feel that the order of the Tribunal proceeds on 7a misconception. The facts are that the appellant was born on 6-6-1924. He was appointed to the Civil Service of Pakistan on 18-10-1950 an,' was retired from service on the basis of the impugned order w.e.f. 15-2-1973. Now Article 221 of the Interim Constitution of the Islamic Republic of Pakistan, 1972, the instrument, which then ruled the field, provides in clause (4) thereof as under:- "(4) Unless the Federal Legislature by Act otherwise provides, a person whose terms and conditions of service are governed by Article 210 or Article 219 or Article 243 (not being a member of the armed forces of Pakistan) or paragraph (b) of Article 224 shall, notwithstanding anything contained in this Constitution or in the terms and conditions' of his service, retire from service- (a)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 and subject to the provisions of Article 228 or, as the case may be, Article 229, direct; or.
25. (b)in any other case, on the completion of the fifty-eight years of his age."
26. Since the appellant had not completed 25 years of service qualifying for pension on 15-2-1973 (the date from which he was retired from service) the order directing his retirement from the said date was illegal and. Void. It is settled law that no party can circumvent the provisions of the Constitution. Accordingly, even reliance on a request made by the employee and giving effect to it, in contravention of a provision made in the Constitution, is impermissible. Indeed this Court has held that it is not possible to contract out of a statutory safeguard because any agreement which defeats a statutory provision, despite being in accord with wishes of a party, cannot be allowed as giving effect to it is a course which is violative of public policy and the resultant action is void in law (see Ghulam Sarwar v. Pakistan PLD 1962 SC 142). Hence in the present case, it was not possible for the appellant to seek premature retirement, as this would involve a violation of the Constitutional provisions contained in the Interim Constitution of 1972. This being the law and in so far as the appellant had not attained the age of superannuation (namely 58 years) when he filed the appeal before the Service Tribunal and was entitled to be the servicethe date and the act of refusal to rejoin the service constituted a continuing wrong, no bar of limitation was attracted nor did any question of lashes arise. This would arise only if his plea that the order directing his retirement w.e.f.
27. 15-2-1973 was unconstitutional, inoperative and void was not well founded. Accordingly, it was necessary to decide the said question even f(-,T deciding the question whether the bar of limitation operated in this case?
28. Coming, therefore, to the decision on merits, we find that the contention of the appellant was rejected on the ground that even if there was any rule that he could not be retired before completing ?5 years of service qualifying him for pension the appellant was retired at his own request and even the said rule was relaxed. Furthermore, it was immaterial whether this was done by the President or any authority subordinate to him, especially as the appellant could not challenge an order which was made in his own favour and that too after a period of 9 years.
29. The order of relaxation referred to by the Service Tribunal above is an order passed by the Minister of Establishment Division which was passed on ,the basis of the summary submitted to him dated 3-6-1972. The said summary and the order passed thereon are reproduced below: "SUMMARY FOR. THE MINISTER "SUBJECT: Request of Mr. Masihuzzaman, CSP for retirement and grant of LPR/Pension Mr. Masihuzzaman, CSP, at present posted as Chief Secretary to the Azad Government of Jammu and Kashmir, has requested for permission to proceed on leave preparatory to retirement from the Ist October. 1972 and to retire from the CSP on proportionate pension after availing himself of the LPR as may be due to him. The reason for proposed retirement given by Mr. Masihuzzaman is that public service has ceased to be a source of self-fulfilment for him and he is, therefore, anxious to retire early.
30. Born on the 6th June, 1924, Mr. Masibuzzaman belongs to the 1950 batch of the CSP officers. He cannot exercise his option to retire after completion of 25 years' service until October, 1975. He will attain the age of superannuation (58) in 1982.
31. There seems to be no objection to allowing Mr. Masihuzzaman to retire with immediate effect.
32. Before he retires during the next four months, we will be able to find a suitable Chief Secretary for A.K. Government.
33. (Sd.)
34. (Vaqar Ahmad), Establishment Secretary 3-6-1972.
35. Minister for _ Establishment Allowed to retire and proceed on LPR w.e.f. Ist October, 1972. Proportionate pension be given.
36. (Sd.)
37. Minister 3-6-1972." The case of the respondent is that the Minister was delegated the powers under the Rules of Business, by an amendment made therein on 2-3-1972. Paras.- 2 and 4 of the amendment have been relied upon which are in the following terms: "2. It has now been decided with the approval of the President that in partial modification of the provisions of the Rules of Business all such cases which require President's approval will henceforth be submitted to the Minister for Establishment who will dispose of the case in the manner stated in para. 4 below.
4. Cases relating to appointment; disciplinary matters and those of extension of service of officers above the status of Joint Secretary will be submitted to the President by the Minister for Establishment. All the other cases relating to officers/posts up to and including that of Joint Secretary and equivalent will be decided by the Minister for Establishment."
38. It is further submitted by Mr. Ijaz Ahmad, learned Deputy Attorney-General, that Article 221 of the Interim Constitution will not be attracted in the circumstances when the appellant himself requested for premature retirement.
39. In reply, Mr.K.MA.Samdani, learned counsel for the appellant, submitted that the Rules of Business cannot be amended by an Office Memorandum because the amendment to the existing statutory rules can be brought about only through the same procedure as prescribed for the framing of the original rules. The Rules of Business having been framed under the authority of the Constitution, required the approval of the Cabinet and so did any amendment thereto. Therefore, in the first place, the amendment relied was not brought about validly and competently and secondly, even if it assumed to be valid, the grant of approval to the appellant's retirement being a glaring departure from all the existing rules, policy, practice, laws and the constitutional provisions it was incumbent upon the Establishment Division under Rule 7 of the Rules of Business to submit the case to the President. The failure of the Establishment Division to do so rendered the order of retirement of the appellant to be null and void.
40. It is further submitted that the letter addressed by the appellant requesting for premature retirement contained two specific conditions without the fulfilment of which the request for retirement could not be considered. The first condition was the grant of proportionate pension and suitable gratuity. This condition was introduced only because it was not possible under the then existing rules. And for any departure from the rules a reference had to be made to the President.
41. The second condition namely approval of the President to retirement was admittedly never fulfilled.
42. We are inclined to agree with the submissions made on behalf of the appellant because the main ground on which the Tribunal dismissed the appellant's appeal was that as the appellant had himself prayed for retirement the is estopped to challenge the validity of the impugned order.
43. However, the Tribunal failed to appreciate that there can be no estoppel against a statute and here the statutory instrument involved was the Constitution of the country and that it was against public policy to give effect to the request of the appellant as it involved a violation of a statutory safeguard namely a protection conferred on civil servants to prevent their severance from service before completing 25 years of service by a Constitutional provision. No relaxation made herein (even through the Rules of Business) was, therefore, of any avail. The action taken in this case was contrary to the provisions of the Interim Constitution of 1972 and notwithstanding that it was taken on the request of the party subsequently questioning it, the fact remained that unless the relevant provision of the Constitution itself was amended, the direction to retire the appellant contrary to its terms, irrespective of the question whether the party relying on its terms had itself prayed for deviation therein, would be ultra wires, null and void. In other words, since the appellant could not be retired before completing 25 years of service, he could not be prematurely retired simply because he himself was asking for it, nor could his request constitute a basis sufficient in law to enable the respondent to act in a manner contrary to the manner laid down in the provisions of the Interim Constitution in this regard and the plea that the action taken, was taken pursuant to the request of the party now complaining against" it was not a sufficient excuse in law to condone a transgression of the Constitution.
44. We, therefore, accept this appeal, declare the order of retirement passed on 15-8-1972 to be unconstitutional, void and of no legal effect.
45. The upshot is that this appeal must he allowed. Since the order of the respondent dated 15-8-1973 allowing the appellant to retire w.e.f. 15-2-1973 was void and inoperative, the result is that the appellant shall be deemed to have continued in the service of the respondent, till he attained the age of superannuation (58 years). The appeal is allowed in the above terms. But as the appellant is equally responsible for the order passed in his case now found on the grounds of public policy to be void, there will be no order as to costs.