' RANA BHAGWAN DAS, J.---Leave to appeal is sought against the judgment, dated 26-4-2000 rendered by Sindh Service Tribunal allowing . Service appeal of the respondent seeking restoration to his original position as Section Officer after having opted to retire from employment on attaining the qualifying service of 25 years.
2. The respondent while serving in Finance Department in the petitioner - Government, on 25-8- 1998, applied for permission to retire from service w.e.f. 5-12-1998 completion of 25 years' qualifying service. He also exercised his option not to avail of any leave preparatory to retirement (hereinafter referred to as LPR). His request was accepted by the Services and General Administration Department who notified his retirement from Government service vide notification, dated 22-9- 1998 to take effect from 5-12-1998. However, it appears that after some time the respondent reconsidered his position and vide application, dated 18-11-1998 requested the petitioner - Government that order of his voluntary retirement may be withdrawn as he had been able to overcome his personal affairs. He cited the precedent of a colleague Section Officer namely, Taj Muhammad Memon, serving in Food Department who while on LPR was allowed to withdraw his request for voluntary retirement. The request of the respondent was strongly endorsed by Finance Department on 24-11-1998 but the Services and General Administration Department, Government of Sindh vide memorandum, dated 30-11-1998 regretted to accept the reference for the reason that an option once exercised assumed finality. Respondent moved an application for review of the decision but without any success whereafter he invoked the jurisdiction of the Sindh Service Tribunal through an appeal under section 4 of the Service Tribunals Act which was contested by the petitioner - Government and allowed vide judgment impugned in this petition.
3. Sole question for examination in this petition is whether respondent was entitled to withdraw his request for retirement before attaining the age of retirement once he had opted for it but notification of his retirement had not come into effect.
4. Learned Additional Advocate-General appearing in support of the petition reiterated that the option once exercised by the respondent and accepted by the petitioner-Government was final.
Furthermore, notification of retirement having been issued on 22-9-1998 prayer for withdrawal, dated 18-11-1998 was too late and delayed.
5. Learned Additional Advocate-General was frank enough to concede the factual position that the retirement of the respondent was to take effect from 5-12-1998 and the respondent had on reconsideration prayed for review of the retirement order citing the precedents of IAA. Taj Muhammad Memon and Fazalur Rehman, Section Officer whose services were earnestly required by the Finance Department like the services of the respondent. We are of the view that the date of notification allowing 180 days' salary to the respondent by way of encashment of leave salary admissible under the Government instructions and declaring that he was allowed to retire from Government service on retiring pension w.e.f. 5-12-1998 is immaterial for the determination of the question involved in this petition. Since the respondent had reconsidered his circumstances and opted not to retire w.e.f. 5-12-1998 as earlier requested by him and his parent department had strongly recommended the retention of his services as the Finance Department was short of experienced staff, it would have been discreet exercise of power and authority to allow the respondent to continue in service rather than to approach the problem with bureaucratic trend by regretting a reasonable request on untenable grounds. We think that even if the respondent had drawn the amount of leave encashment for 180 days as sanctioned this circumstance alone could not operate as bar to the reconsideration of his request for retirement on qualifying pensionable service. The view taken by the Service Tribunal is, therefore, neither improper nor arbitrary or contrary to law.
6. Indeed there is no inflexible rule of law that in service option once exercised is final and cannot be retraced under any circumstances. Each case must be examined on the facts and circumstances obtaining in a case. Indeed I\ no hard and fast rule can be laid down for this proposition. Even in case of resignation it has been held that once the resignation was tendered an employee was allowed to withdraw the same before the same had been acted upon. We may refer in this connection to some decided cases on the question involved. In Shanker Dutt Shukla v.
President, Municipal Board, Auraiya (AIR 1956 Allahabad 70) it was held that where an application for resignation by a municipal servant sent to the President was to come into existence from 1-4- 1955, till that date there was no resignation at all and the applicant had the right to intimate to the President before that date that he has no longer wished that his application should be considered as effective. This case was followed in subsequent cases and cited with approval in a Division Bench case by the Sindh High Court reported as Abdul Ghaffar v. Mustafa Khan (PLD 1981 Karachi 56) wherein late Naimuddin J, relying upon various cases from the Courts of the sub-continent as well as an English case held that a person could retire from service by voluntarily submitting his resignation and it is not necessary that a person could retire or be retired on superannuation only.
His lordship (as he then was), cited with approval the precedent cases reported as Muhammad Khan v. Pakistan (PLD 1958 (W.P.) Karachi 75) and Reichel v. Bishop of Oxford (56 LTR (NS) 539) expressing the view that a resignation can be withdrawn or recalled before its acceptance by the competent Authority. He also cited the following dictum laid down in Jai Ram v. Union of India (AIR 1954 SC 584):-- "It may be conceded that it is open to a servant, who has expressed a desire to retire from service and applied to his superior officer to give him the requisite permission, to change his mind subsequently and ask for cancellation of the permission thus obtained, but he can be allowed to do so as long as he continues in service and not after it has terminated."
7. An identical question arose in the erstwhile Sindh and Balochistan High Court before Division Bench of late Tufail Ali A. Rehman, C.J. And Dorab Patel, J. In Abdul Nabi v. Government of Pakistan (PLD 1973 Quetta 4). In this case a police officer, on receiving injury to his eye had made an application for retirement on a wrong advice tendered to him by a doctor that his eyes had become too weak to enable him to perform his duties. Meanwhile, he got an opportunity of coming across an Eye Specialist who advised him that the defect in his eyesight was temporary and that he need not have apprehension of being unable to perform his duties on account of the injury to his eyes. Accordingly, he applied for cancellation of his LPR but the Government rejected it on the basis of an office memorandum on the consideration that under paragraph 8 thereof retirement once submitted could not be withdrawn. Judgment was authored by Dorab Patel, J. (as his lordship then was) and the Bench came to the conclusion that an application by 'a Government servant to retire cannot take effect automatically and is necessarily subject to the Government's right to reject it Irrespective of applicability of the relevant office memorandum to the case of the employee the Court observed that the office memorandum could not be intended to have a force of rule and the employee was entitled to withdraw his application which he had submitted under a genuine misapprehension caused by a wrong medical advice.
8. Two more cases of like nature are reported as Noor-uz-Zaman Ahmad v. Punjab Province (1984 PLC (C.S.) 864) and Noor Ahmad v. Division Forest Officer, Faisalabad (1984 PLC (C.S.) 1085) wherein service appeals by the employees were allowed by Service Tribunal, Punjab for identical reasons.
Lastly, in Muhammad Rafique v. Pakistan Railways (1995 SCMR 904) the facts of the case were that the petitioner had submitted an application on 1-1-1992 seeking premature retirement w.e.f. 2-4- 1992. He submitted another application on 19-2-1992 to the relevant authority for withdrawal of his application for premature retirement. He was retired w.e.f. 2-4-1992. His departmental appeal was dismissed by the competent Authority and his appeal before the Federal Service Tribunal also failed but this Court granted leave to appeal against the judgment of the Tribunal on the premises that before the order of retirement petitioner had also submitted his application which according to the Tribunal was received by the competent Authority on 21-3-1992. This Court observed that as per Letter No.23/3/81- SV(B), dated 12-4-1981, a Government servant may withdraw his application for premature retirement before its acceptance by the competent Authority. Although, ultimately the appeal was dismissed in 1998 as the appellant failed to prove that he had submitted the application for withdrawal of retirement before his actual retirement, the position in law remains intact.
9. For the aforesaid facts and reasons we are of the considered view that the petitioner - Government acted unreasonably, unconsciously and in a manner which can neither be said to be fair nor reasonable, just and equitable as expected of public functionaries. To our mind, the matter should have come to an end with the allowing of the appeal by the Service Tribunal but the anxiety of the petitioner - Government to assail such fair order before this Court only reflects upon unusual bureaucratic approach based on false ego and so-called prestige. Indeed public functionaries should be more reasonable and benevolent towards their employees rather than to litigate for the sake of litigation at public expenses.
10. Resultantly, this petition must fail and is hereby dismissed. Leave to appeal is thus refused.