JUSTICE (RTD.) MUNAWAR ALI KHAN (CHAIRMAN).- This appeal is directed against the Food Department's notification No. SOF(V)I(31)/76 dated 10th December, 1992 whereby the appellant Abdul Hakeem Qureshi, Assistant Food Controller (BS-17) was retired from Government Service retre-spectively from 1.2.1992 in supersession of the said department's earlier notifications of even number dated 30.1.1992, 29.2.1992, 8.3.1992, 19.1.1992 and 9.5.1992. The appellant's case as staled in his memo of appeal is that while he was working as Assistant Director Food Larkana, he applied for leave preparatory to retirement on account of some domestic difficulties. The leave applied for by him was granted vide Food Department's notification No. SOF(V)I(41)/76, dated 27.1.1991. Before expiry of the LPR, he some how made application for cancellation of the said leave. It was accordingly cancelled vide Food Department's notification dated 30.1.1992 and the leave to be enjoyed by the appellant from 1.2.1992 to the date of appellant's joining the service was treated as leave subject to title. After cancellation of the leave, the appellant reported for duty and he was ultimately posted as Assistant Director vide order dated 29.2.1992. The appellant continued to work in the said post and drew his salary upto June, 1992 whereafter his salary was withheld without assigning any reason. Nevertheless he continued to attend his office and performed his duties.
Finally, the impugned notification referred to above was issued, cancelling the earlier notifications dated 30.1.1992 and 29.2.1992 and the appellant's retirement was ordered from retrospective date of 1.2.1992. The appellant preferred appeal from the impugned notification but it remained un- responded until after expiry of ninety days and therefore he has filed the present appeal.
2. The appellant was represented by Mr. Ghulam Hasan Qureshi and the official respondents by Mr. Abdul Ghafoor Mangi, Addl. A.G. The learned counsel submitted their arguments and with their assistance the relevant record was also perused.
3. The appellant's learned counsel emphasised on the point that the appellant was within his right to get his leave (LPR) cancelled, particularly when he was still in service and had not retired. No doubt the learned counsel was correct in saying that until expiry of LPR and the commencement of his formal retirement from such expiry of the leave, he was still considered to be in service, it appears that the impugned notification was issued on the objection raised, in the first instance, by the office of the Accountant General, and subsequently in confirmation of the said office's view on the objection of the Finance Department. We have perused the views of both these offices contained in their letters dated 20.5.1992 and 19th July, 1992 respectively. We are unable to agree with the view that the option of the retirement once exercised by the appellant was not revokably.
Of course we have not been shown the amendment of rule 3,5 of the West Pakistan Civil Services Pension Rules whereby the Government servant was allowed to withdraw his option for retirement.
But we are of the view that even in absence of such amendment the ban is obviously on the civil servant concerned and not the competent authority, who in our opinion, was free to allow, in appropriate cases, withdrawal of the retirement option. Our above view finds support from the precedent case of Mr. Habibullah Sheikh, Treasury Officer, .Jacobabad who was allowed by no other Department but the Finance Department itself to withdraw his retirement option vide that Department's No. FD(TR(S)/71(P) dated '25th August, 1986. In the instant case even if it was argued that appellant was prohibited from withdrawing his option of retirement he had once, made, it was clear that his request for withdrawal of retirement option was allowed by the competent authority.
We were not shown any rule nor any argument was advanced before us that by allowing the appellant to withdraw the retirement option any illegality was committed. On the contrary our attention was drawn by the Addl. A.G. To the Law Department's advice dated 13th January, 1992 in the case under consideration. The relevant portion of the Law Department's advice is reproduced as under:- "It is now well established that a Government servant can withdraw the option once made by him under rule 3.5. Of the West Pakistan Civil Services Pension Rules before his retirement has come into effect. This can be done on the basis of doctrine of locus-poenitentioe.
It may be pointed that Finance Department's Memo No. SO(SR)-V- 257/67, dated 27.4.1967 which stipulates that the option once exercised cannot be revoked has been held to be ultravires by our courts. It was held in PLD 1973-Quetta page 4, that the memo could not be considered to be a rule and did not debar the Government servant to withdraw the option before it has become final-. If the retirement of Mr. Abdul Hakeem Qureshi has not come into effect, he can be allowed to withdraw the option and Administrative Department may cancel his LPR".
4. We are inclined to endorse the view taken by the Law Department reproduced above. The learned Add!. A.G. Was also of the considered view that the impugned notification was no! Legally sustainable and as such he did not support it.
5. For the fore-going reasons we allow the appeal with no order as to costs and set aside the impugned notification.
6. Given under our hands and the Seal of this Tribunal on this 22nd day of July. 1993 at Karachi.