ALLAH 13AH13SH KHAN (MEMBER).-Mr. Sarwardin was working as S. D. O., Irrigation, Pump House Sub-Division near Jamrood when he applied on 11-1-1972 for retirement from service and for one year's leave preparatory to retirement for the period 2-2-1972 to 1-2-1973 as, according to him, he was to complete 25 years' service qualifying for pension on 1-2-1973 and his household affairs prevented him from continuing fn service. His case was referred to the Audit office on 12-1-1972 for verification of his qualifying service and obtaining the requisite certificate. The Audit office verified his service up to 31-5-I9 i0 as 22 years and 4 months. Since the service verification certificates furnished by the Audit office was incomplete and his service book was not received the Audit office was addressed again in this connection for advice. Mr. Sarwardin in the meantime submitted another application on 3-8-1972 for withdrawal of the former application on the grounds that his family circumstances had improved and he had not yet completed 25 years of service. His request for withdrawal of the application was turned down on 29-9-1972 and he was retired from service with effect from 2-2-1973 vide an order dated 2-2-1973. He was, however, relieved on 12-2-1973.
After retirement he made an application dated 19-2-1973 to respondent I for grant of L. P. R. for the period 2-z-1973 to 1-2-1974. His application was rejected and he brought a civil suit in the Court of Senior Civil Judge, Peshawar on 8-2-1974 claiming his entitlement to L. P. R. for one year and salary for the period 2.2-1973 to 12-2-1973. During the pendency of the civil suit the N.-W. F. P. Service Tribunals (Amendment) Ordinance VII of 1974 came into force. The suit was held by the Senior Civil Judge by his order dated, 25-9-1974 to have abated. Mr. Sarwardin has brought his grievance now before this Tribunal.
2. The learned counsel for the appellant strenuously contended that the appellant had submitted an application for leave preparatory to retirement on 11-1-1972 for the period 2-2-1!972 to 1-2-1973, another application for withdrawal on 3-8-1972 and that the leave applied for was neither sanctioned by the competent authority ,nor the appellant was allowed to proceed on leave till 12- 2-1973 when he was, relieved of duty. There was, according to him, no occasion to turn downs the appellant's re4uest for withdrawal of the leave application. It was further contended that para 8 or Govern--ment of West Pakistan, Finance Department's memo. No. SO (SR) V-257/67 dated 27-4- 1967 which was made basis for the rejection of the withdrawal application could not be attracted to the instant case and that, at any rate, the Memorandum could not be treated as a Rule being inconsistent with para. 2 of Circular Letter No SO) (SR)V-1387/67 dated 29-7-1967 of the Finance Department of the West Pakistan !Government. He sought support for his contention from the observations made in PLD 1973 Quetta 4. It was, on the other hand, maintained by the learned Government Pleader on behalf of the respondents that para. 8 of the aforesaid Memorandum was applicable to this case and that the Government had the sole discretion to disallow the withdrawal of application made for retirement.
3. After bearing the learned counsel for the parties and going through the record placed before us on behalf of the respondents we are of the view that the contentions of the learned counsel for the appellant are well founded and must prevail. There is no denying the fact that the appellant had applied for L. P. R. for the period 2-2-1972 to 1-2-1973 ride his application dated 11-1-1972 but thee leave applied for was never sanctioned A by the competent authority and The continued performing his duties till 12-2-1973 when he was relieved. The paramount question that arises for consideration is whether in view of these facts the appellant could be deprived one of his right to avail of the L. P. R. which was otherwise admissible to him under the service rules. He, no doubt, did submit an application for retirement and L. P. R. on 11-1-1972 and it wail en 3-8-1972 that he applied for with--drawal of the forma application. The respondent 1 did not allow withdrawal inter alia on the ground that under para. 8 of the Government of West Pakistan Finance Department Memo No SCE (SR) V-257-67 dated 27-4-1967 (hearing after called the Memo.) a written information for retirement before attaining the age of superannuation once submitted shall be final and shall not be allowed to be modified or withdrawn. It would be profitable to reproduce para. 8 and it reads as under: "Subject to the provision of Essential Services Maintenance Act, all Government Servants shall have the right to retire on a retiring pension after completing 25 years qualifying service; provided that a Government Servant, who intends to retire before attaining the age of superan--nuation shall, at least three months before the date on which he intends to retire, submit a written intimation to the authority which appointed him, indicating the date on which he intends ~ to retire. Such an intimation once submitted, shall be final and shall not be allowed to be modified or withdrawn."
It may be pointed out that on receipt of the, application for retirement and L. P. R. submitted by the am0ant, respondent 1 had per his letter No. 660/IV/A/2021-E, dated 12-1-1972 referred the matter to the Comptroller, N.W. F. P. Peshawar requesting for verification of the qualifying service c of the appellant and furnishing they requisite certificate before the appellant was allowed to proceed on L. P. R.. A reference was made to the instructions contained in the Finance Department--- Government of West Pakistan Circular Letter No. SO (SR) V-1387/67 dated 29-7-1967 (hereinafter called the Circular). Para. 2 of this Circular is relevant and is reproduced below "The pension sanctioning authority should satisfy itself, invariably in consultation with the Audit Office concerned, that the Government servant has actually completed 25 years service qualifying for retiring pension."
Referring to para. 8 reproduced above the learned counsel for the appellant urged that it was inconsistent with para. 2 of the Circular and that the application by the appellant to retire would not Late effect forthwith but it shall be within the right of the competent authority to reject it.
4. A similar question came up for consideration before their Lordships in PLD 1973 Quetta 4. The facts of this case are that Abdul Nabi, a Police Officer on receipt of an eye injury had made an application to retire from service on the wrong advice tendered to him by a doctor which was subsequ--ently negative by an eye specialist. Abdul Nab applied that his application for retirement be allowed to be withdrawn but the competent authority refused to do so on the ground that under para. 8 of the Memo retirement application once submitted could not be withdrawn. Para. 2 of the Circular was brought to the notice of their Lordships and it was held that para. 8 of the Memo was inconsistent with it and could not be considered to be a Rule and that Abdul Nabi was entitled to a draw his application which be had submitted under genuine misapprehension caused by a wrong medical advice. We need not recapitulate the grounds on which the conclusion arrived tit in the said case was based. It is however manifest that in view of para. 2 of the Circular the sanctioning authority is required to satisfy itself, invariable in consultation with the Audit office concerned, that the Government servant has actually completed 25 years service qualifying for retirement pension.
The submission of an application for retirement would not, therefore, per se cause the retirement of the Government servant prior to the satisfaction of the competent authority concerned with regard to his completion of 25 years qualifying service. Para. 8 of the Memo is apparently inconsistent with para. 2 of the Circular and a Government servant would be entitled to l withdrawal of the application made for his retirement on time mistaken ground. The appellant stands on a better footing than Abdul Nabi in the reported case inasmuch as L. P. R. bad been granted to the latter whereafter be bad applied for withdrawal of the retirement application whereas the appellant continued In service during the period he had prayed for L. P. R; Which was never sanctioned to him at all.
5. The appellant bad applied for L. P. R. for the period 2-2-1972 to 1-2-1973 but protracted correspondence took place between respondent 1 and the Audit office till the appellant was retired from service on 2-2-1973. The period of the L. P. R. applied for, as remarked above, was never enjoyed as it was never sanctioned to him. It was on 19-2-1973 that subsequent to his retirement he applied for L. P. R. The respondent 1 addressed Letter No. 26-0/1B/A/2021-E dated 23-2-1973 to the Comptroller, N: W. F. P., Peshawar wherein certain circumstances were narrated on account of which L. P. R. applied for remained unsanctioned. The concluding para of the letter is as under ,- "The officer has now applied for leave preparatory to retirement from 2-2-1973 to 1-2-1974. 1t is therefore requested that necessary advice in this matter may please be communicated as to whether the leave applied for now can be granted to the officer. If the reply is in affirmative it may please be confirmed that this will not tantamount to deviation from the contents of para. 8 of the Government of West Pakistan Finance Department Letter No SO (SR) V-257-67, dated 27-4-1967."
The Accountant General, N. W. F. P. Peshawar in his reply vide letter No. Pen-1/DAO/General/72- 73/2437, dated 11-4-1973 advised respondent 1 for reference to the Provincial Government for relaxation of orders contained in para 8 of the Memo in case the appellant was granted L. P. R. with effect from 2-2-1973. The respondent 1 requested the Secretary to Government of N.-W. F. P. Public Works Department. Peshawar per his Letter No. 6561/ IV/A/2021-g dated 10th May 1973 for relaxation of the orders contained in para. 8 of the Memo "to save the officer from undue financial loss and he he allowed the benefit of availing leave preparatory to retirement from 13-2-1,973 to 12-2-1974".
Correspondence ensued in this connection and finally the Government of N.-W. F. P. in the Finance Department expressed its inability to agree to the Administrative Department's proposal it is interesting to note that the Government declined relaxation of para. 8 but in the light of the observations made in PLD 1973 Quetta 4 this para being not a Rule and being inconsistent with para. 2 of the Circular could not be sustained in law. We find in the record produced by the respondents before us a certificate of the Administrative Department showing that the appellant was entitled to 6 months L. P. R. on full pay with effect from 13-2-1973 to 12-8-1973 combined with 6 months L. P. R. on half pay with effect from 13-8-1973 to 12-2-1974 under Leave Rules, 1955 provided that the date of his retirement was 12-2---1973 instead of 2-2-1973. Curiously enough, the appellant was retired from service with effect from 2-2-1973 but was allowed by the Department to continue in service till 12.2-1973 when he was relieved of his duties. It follows that the appellant i3 entitles to the L. P. R. for one year and the arrears of pay now claimed by him for the period he was on duty.
6. As a result of the foregoing discussion we accept the appeal and direct the respondents to pay to the appellant within 3 months the following amounts:
(i) Pay for 2-2-1973 to 12-2-1973@ Rs. 645 p. m 253 (ii)Leave on full pay for 6 month at to Rs. 645 p. m. from 13-2-1973 to 12-8-19733870
(iii) Leave on half pay from 13-8-1973 to 12-2-1974 at Rs. 322.50 1935 6058 The parties are left to bear their own costs.