' This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 provides a classical example of the callousness for which retired public servants are dealt with by those in Authority.
2 The petitioner was working in the Office of Accountant-General, Punjab as Accounts Officer. He filed a Constitutional petition (W.P. No,1489/90) seeking correction of his date of birth in the service record. .In that petition, respondents were ordered to submit their parawise comments and it was directed that status quo shall be maintained, in the meanwhile. On 13-8-1993, the petitioner was superannuated and retired from service. The Constitutional petition was disposed of on 24-1-1994 on the ground that it had become infructuous inasmuch as even if the date of birth of the petitioner was taken to be 14-8-1933 he was retired from service having attaining the age of superannuation on 13-8-1993.
3. It appears that when the question of payment of pension was taken up,an objection was raised by the respondents that as according to The service record of the petitioner his date of birth was 7- 3-1930 he could not have remained in service thereafter and the emoluments received by him for the period from 7-3-1990 to 13-8-1993 were liable to be refunded. On 23-8-1994, the Accountant- General, Punjab wrote to the Director-General, Audit, Federal Government, Sub-Office, Lahore that the amount representing the salary paid to the petitioner between 7-3-1990 to 13-8-1993 may be recovered from his pension. This notice has been challenged by the petitioner by filing this Constitutional petition.
4. It is true that in the service record maintained by the respondents the date of birth of the petitioner was shown as 7-3-1930 and he would have retired from service on 7-3-1990. However, as he felt that the date of birth mentioned in that record was not correct, . He requested the respondents to carryout correction and on their refusal to da so filed the Constitutional petition in which the respondents were asked to submit their parawise comments. On 5-3-1990, an interim order maintaining status quo was also passed. In view of that order the petitioner was allowed to continue performing his service till 13-8-1993 when even according to the date of birth claimed by him he attained the age of 60 years. It is a common ground between the parties that during this petition the petitioner had been performing-services and receiving emoluments for the same. The question which, therefore, arises is as to whether the respondents can subsequently claim that though the petitioner had tendered services for the period in question as he was not entitled to receive any emoluments and the payments made to him are liable to be refunded.
5. Having heard the learned counsel for the petitioner as also the learned Deputy Attorney-General for Pakistan, I am of the view that the answer to this question has to be in the negative. It is not disputed by the respondents that even during the period dated 7-3-1990 to 13-8-1993, the petitioner had been perforthing his duties may be on the strength of an interim order passed by this Court. As the petitioner had rendered services to the respondents he was dearly entitled to be paid for the same and was, therefore, rightly allowed to draw his salary. On no rationale principle can the respondents claim that the petitioner is liable to return the amount received by him on account of his salary merely for the reason that according to the respondents he was not entitled to remain in service after 3-7-1990 but for the orders of this Court. Even if that stand of the respondents he accepted yet the fact remains that the petitioner had worked as Accounts Officer during the period in question and had rendered service to the respondents. There may perhaps have some justification for the respondents to have refused to pay the petitioner if he was not working against any post or not rendering any services but once having utilised his services, the respondents cannot refuse to pay him. The entitlement of the petitioner to receive salary for that period was never in doubt or in issue at the relevant time. It is unfortunate that subsequently a dispute wholly unjustified was created in order to deprive a poor pensioner of. His right to receive the pension. Although Mr. Faqir Muhammad Khokhar, learned Deputy Attorney-General supported the stand taken by the respondents but when confronted with the above position, even he could not come out which any rule or authority on the basis of which it could be claimed that a civil servant was not entitled to receive the salary for the services performed merely because there was some dispute as regards his continuation in office. On the other hand, the view taken by the Supreme Court of Pakistan is that if a person served against a particular post even though he may not have been formally appointed or promoted against that post he is entitled to receive the salary and emoluments of the said post. In this view of the matter, the claim of the respondents is clearly unjustified.
6. Mr. Faqir Muhammad Khokhar, learned Deputy Attorney-General also objected to the maintainability of this petition on the strength of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 by urging that the dispute relates to terms and conditions of a civil servant and it- can only be adjudicated upon by the Service Tribunal.
7. This contention of the learned Deputy Attorney-General is not well founded. As held by the Supreme Court of Pakistan in I.A. Sherwani v. Government of Pakistan through Secretary, Finance Division, Islamabad and others (1991 SCM R 1041) the jurisdiction of this Court to entertain a Constitutional petition at the behest of a civil servant is not ousted in respect of all matters but the ouster is limited to only to those cases which can be taken up by the Services Tribunal. Under section 4 of the Punjab Service Tribunals Act, 1974 appeal lies, before the Service Tribunal against an order passed by the Departmental Authority. However, in the present case, there is no such order of the Departmental Authority. Instead, the Accountant-General, Punjab has raised an objection that the petitioner had been paid emoluments of which he was not entitled to receive and as such the same be deducted out of the pension payable to the petitioner. The jurisdictional objection raised by the learned Deputy Attorney-General is, therefore, of no avail.
' In view of what has been stated above, this petition is allowed, the demand of the respondents for refund of the emoluments received by the petitioner from 7-3-1990 to 13-8-1993 is declared to be without lawful authority and of no legal effect and the respondents are directed to finalise the payment of pension to the petitioner in accordance with law without any further delay.
' No order as to costs.