' The petitioner joined the Metropolitan Corporation, Lahore as a P.T.C. Teacher in BS-7 on 13-5-1981 and worked in the same scale up to 22-5-1989 for 8 years up to the entire satisfaction of her superiors. There were vacancies of B.A./B.Ed. In BS-15 under the administrative control of respondents 3 to 5 and the petitioner being fully qualified for the above post, applied for it. The respondents deposed and informed the petitioner that promotion to BS-9 is pre-requisite for having promotion in BS-15 whereas the orders of appointment of petitioner in BS-15 on temporary basis and subject to approval of the Selection Board were passed on 8-4-1989. The Selection Board approved the appointment as B.A./B.Ed. Teacher in BS-15 in a meeting held on 30-4-1989 imposing a condition that the petitioner has been selected direct in BS-15 on temporary basis as a fresh appointment without having any benefit of her past service. On 10-5-1992 the petitioner moved an application to the Mayor, Metropolitan Corporation, Lahore that sanction may be accorded to count for the service rendered by her in Grade-7 (with effect from 13-5-1981 to 23-5-1991 F.N.) towards pension being pensionable as well as the same being under his administrative control.
The application was turned down on 2-5-1994 on the ground that the petitioner had tendered resignation voluntarily which was accepted on 22-5-1989 and she was again newly appointed on 23-5-1989 in BS-15. The petitioner preferred an appeal before the Commissioner on 2-1-1995 who turned down the same on the ground that: "Rule 2.11(a) of the Compendium of Pension Rules Resignation of post unless it is to take up another post service in which counts for pension' means that the Competent Authority shall--
(a) either specify that the resignation of a certain post will allow previous service to be counted towards civil pension or
(b) The terms and conditions of new post should provide that the previous service will be counted towards pension. The present case does not fulfill any of the above conditions, therefore, the previous service of Mst. Taj Begum cannot be counted towards pension. However, the Government may if like can refer the matter to Regulations Wing of SGA&I Department for advice."
' The petitioner then moved the Service and General Administration and Information Department, Government of the Punjab who also regretted on the ground that the case has been referred against the recommendation of the concerned Commissioner.
2. Notice was given to the respondents. Arguments were heard at length on both sides.
3. The admitted position on the record is that the petitioner joined the Metropolitan Corporation, Lahore as a P.T.C. Teacher in BS-7 on 13-5-1981 and worked in the same school up to 22-5-1989 (eight years and nine days). She applied for BS-15 post and was appointed to it vide office Order No,,362/G-1, dated 8-4-1989 subject to approval of the Service Selection Board which approval was granted vide office Order No,, 445/G-I, dated 30-4-1989 as a result of the meeting held on 30-4- 1989. It was mentioned in the order dated 30-4-1989 that it was a direct new appointment in BS-15 and that no benefit of past service will be given. It is also on the record that the petitioner had given a writing after passing of the office order dated 30-4-1989 that she tendered her resignation from the previous service along with seniority and 14 earned increments. The points involved in this case are:--
(i) Whether the petitioner has forfeited her past service in BS-7 by tendering her resignation of the post in BS-7 voluntarily?
(ii) Whether past service in BS-7 counts for pension in the new service in BS-15?
4. The West Pakistan Municipal Committees Rules, 1963 which were made in exercise of the powers conferred by section 29 of the Municipal Administration Ordinance, 1960 (X of 1960), read with section 121 and item 9 of the Fourth Schedule thereto and Article 46 of the Basic Democracies Order, 1959 (P.O. 18 of 1959) by the Governor of the West Pakistan (now to be construed as "Punjab" vide Article 19(3) of P.O. I of 1974. Rule 2 of the Municipal Committee Rules, 1963 reads as under:-- "Except where express provision has been made in these Rules, the Pension Rules, as applicable to Government servants from time to time shall apply mutatis mutandis to the servants of Municipal Committees."
' Chapter-H of the West Pakistan now Punjab Civil Service (Pension) Rules, 1955 deals with the service qualifying for pension. Rules 2.1, 2.2, 2.3 and 2.11 are relevant to solve the whole controversy.
These are reproduced as under:-- 2.1. Conditions of qualifications.---The service of a Government servant does not qualify for pension unless it conforms to the following three conditions:-- ' First -- The service must be under Government. Second-- The service must not be non- pensionable.
' Third-- The service must be paid by Government from the Provincial Consolidated Fund.
' Note (1) For the previous service of displaced Government servants which qualifies for pension see Chapter VII.
' Note (2) Service rendered after retirement on superannuation pension/retiring person shall not count for pension or gratuity.
' 2.2. Beginning of service.---Subject to any special rules, the service of a Government servant begins to qualify for pension when he takes over charge of the post to which he is first appointed.
' 2.3. Temporary and officiating service.---Temporary and officiating service shall count for pension as indicated below:-- ' Government servants borne on temporary establishment who have rendered more than five years continuous temporary service shall count such service for the purpose of pension or gratuity; and
(ii) temporary and officiating service followed by confirmation shall also count for pension or gratuity.
2.11. Forfeiture of past service.---A Government servant forfeits his past service in the following cases:--
(a) Resignation of a post unless it is to take up another post service in which counts for pension;
(b) Removal or dismissal from service;
(c) Absence from duty without leave.
' Note (1) The authority which sanctions the pension may commute retrospectively periods of absence without leave into extraordinary leave.
' Note (2) In case of civil servants, who, with the proper concurrence of the competent Authority, leaves service under the Government of Punjab and seeks absorption/employment under an autonomous, semi-autonomous/local body, where _ service is pensionable, the Government, if it is so requested, will be liable to share pensioner liability for the period of service rendered by such civil servant under the Government in accordance with the Government rules."
5. Taken all these Rules together, it piles up that resignation of a post will forfeit the past service of a Government servant only where another post does not count the previous service for pension. In the present case, the previous post as well as the new post both count for pension in view of the applicability of rule 2.3. The resignation and waiver of all rights under the past service appear to be under coercion as alleged by the petitioner and supported by affidavit against which there is no counter-affidavit. The department is the same and there is no break of even a minute in the service of the petitioner, therefore, the respondents were not justified to deny the right available to the petitioner. It also amounts to penalize a person despite best record in the same department and to discourage improving one's efficiency and academic qualification and to curb the sense of competition. Thus, both on facts and in law, the impugned orders denying the right of the petitioner that her service in BS-7 shall count for pension with effect from 13-5-1981 are illegal and are so declared.
6. The writ is allowed to the extent that past continuous service of the petitioner in BS-7 shall also be counted for pension with effect from 13-5-1981 at the time of her retirement in BS-15 and such entitlement shall not affect the seniority of any other person in BS-15.