' MUHAMMAD AYUB KHAN (MEMBER).---Facts of the case, as appear from the record are that the appellant, appointed (B-5) in PMAD on 1-11-1981 on temporary basis, promoted as Auditor (B-7) on 20-12-1987 was compulsorily retired from service with effect from 28-1-1993 on account of unauthorised absence from duty without permission for a period of two years. However, the period of absence was later on converted into EOL and by the time of compulsory retirement the appellant had rendered eleven years, two months and twenty seven days from which two years, two months and four days when deducted the total service comes to nine years and, twenty three days and still he also availed EOL for seven days and when this too is deducted the net qualifying service for pensionary benefits comes to nine years and sixteen days. In this respect he filed a petition for condonation of the deficient period but his request was not acceded and thereafter, he-filed a. Departmental appeal which when not responded to, he filed the present service appeal in this Tribunal on 2-12-1997 after expiry of the statutory period of 90 days which appears to be well within time.
2. Now the question involved for consideration of this Tribunal is as to whether the appellant is entitled to pensionary benefits in face of having rendered total admissible service of nine years and sixteen days, excluding the period already availed as EOL. Really it is a difficult situation involving interpretation of the complicated pensionary rules and regulations, on the subject, coupled with the instructions of the Finance Division issued from time to time.
3. It appears that the respondents have placed reliance under second condition of Article 361 of the CSR as referred to by the Finance Division (Regulation Wing) vide their On No,F. 19(I)-Reg. 7/96-1031, dated 11-11-1996 which stipulates that: "the employment must be substantive and permanent" and at the time of compulsory retirement from service the appellant was a temporary employee and hence not entitled to the pensionary benefit as per the impugned order, dated 8th July, 1997 available at Page-7 of the file. The letter of the Finance Division, dated 11-11-1996 is also available at Page-16 of the appeal file. It appears that the respondents relied on Article 361, CSR 0 which lays down the following three essentials for the eligibility of the pension: "(i) The service must be under Government,
(ii) The employment must be substantive and permanent.
(iii) The service must be paid by Government." ' whereas the appellant holds a view that this Article is of a general nature and does not apply to the case of the appellant which falls under Article 371-A CSR. In this respect we would like to observe without further entry into detailed discussion that there are- two categories of provisions in law rules one of general nature whereas the other is of special nature and similarly it is an established principle of law that a general provision/law consisting of Act Ordinance/Rules and Regulations yields to the special law whether original or subordinate i,e,.
Act/Ordinance/Rules/Regulations. This principle applies to general provisions contained in a statute itself or other statutes to a particular - area and region so much so that in certain matters, specially in the absence of specific provisions of law local customs and usages are pressed into service. Law containing limitation must be acted upon but if there is no provision in that law regarding limitation then in that event the Limitation Act, 1908, which is of a general nature would come into play. This principle can be stretched to any extent regarding applicability of Statutes.
Any provision specifically made applicable to a particular Act must be applied thereto and in that event the provisions of general nature would not come into play.
4. Article 371-A, CSR reads:-- "Notwithstanding anything contained in Articles 355 (b), 361, 368 and 371 of these Regulations, temporary and officiating service in the case of Government servants who retired on or after 1st January, 1949 or who joined service thereafter shall count for pension according to the following rule:
(i) Government servants who have rendered more than five years continuous temporary service shall count such service for the purpose of pension or gratuity excluding broken periods of temporary service, if any, rendered previously." ' and the appellant holds the view that he can get benefit of pension etc. Under the said rule in respect of nine years and sixteen days' service rendered under the respondents for the reason that the O.M., dated 11-11-1996 lays down: "The term qualifying service used in their O.M., dated 13-11-1982 and 7-8-1985 'refers to the nature of service and not the length of service'. The deficiency in qualifying service can be condoned where the conditions of Article 361 are satisfied."
' It is further stated that Article 361 prior to its amendment, dated 9-12-1959 reads: "The service of an officer does not qualify for pension unless it conforms to the three conditions." ' earlier mentioned whereas after amendment, dated 9-12-1959 the words:- "Except as otherwise provided in these Regulations" ' make much difference vide which the benefit could be extended if otherwise admissible and under the regulations including Article 371-A there is no bar. In other words Article 371-A is a special provision of law which overrides the general Article 361, CSR.
5. Pursuant to the recommendation by the Pakistan Pay Commission, it was decided that "Government servants borne on temporarily establishment who have rendered more than five years continuous temporary service shall count such temporary service for the purpose of pension or gratuity under Article 371-A, CSR, promulgated with this Ministry's Notification No,F. 11(4)-RI/92, dated 23-1-1953 whereby the President was pleased to decide that : ' in case of Government Servants who have held temporary poststhroughout their service are entitled to pensionary benefits in accordance with the above decision, the amounts of gratuity. ' and pension should be calculated on the basis of average emoluments as defined in the existing rule with the modification that the term pay used in Article 486(a) CSR shall be taken to be the pay which the Government servants were drawing immediately before retirement in the past held in substantive, temporary or officiating capacity."
' In this respect the Honourable Supreme Court's judgment, dated 7-2-1994 in Civil Appeal No, 574 of 1992 lends due support to the contentions agitated by the appellant. The relevant paras contained in the aforesaid judgment and Article 371-A, CSR are reproduced herein: "371-A, Notwithstanding anything contained in Articles 355 (b), 361, 368 and 371 of these Regulations, temporary and officiating service, in the case of Government servants who retired on or after the 1st January, 1949, or who joined service thereafter, shall count for pension according to the following rules:
(i) Government servants borne on temporary establishments who have rendered more than 5 years continuous temporary service shall count such service for the purpose of pension or gratuity excluding broken periods of temporary service, if any, rendered previously, and
(ii) temporary and officiating service followed by confirmation which does not qualify for pension under the rules in this section shall also count for pension or gratuity subject to the exclusion of the broken periods of temporary or officiating service, if any.
' NOTE:- The pension of Government servants who have already retired after the 1st January, 1949 shall be revised under this Article but the increased pension shall have effect from the 17th August, 1952, or from the date as determined under Article 930, whichever is later."
"Government orders see serial Nos, 2, 8 and 10 Chapter II and S. Nos, 1, 10 of Chapter III in section VI."
' Resultantly, the appellant and similarly placed other employees of the Afghan Refugees Organization, being Government Civil Servants, are held entitled to pensionary benefits if their cases are covered by Regulation No,371-A, of Civil Service Regulation. We allow this appeal, set aside the impugned judgment of the Federal Service Tribunal with no order as to costs."
5-A. A perusal of the parawise comments indicates that many objections have been raised about all appear to be devoid of substance, for instance the preliminary objection at Para.1 of the comments reads:-- "Appellant's departmental appeal, dated 24-8-1997 has not yet been finalised by the Appellant Authority. He should have wait for the fate of his departmental appeal."
' This objection appears to be extremely fantastic. The appellant need not wait for an indefinite period if departmental authority is not inclined to work. However, in such-like cases he is required to wait for ninety days within which he cannot come to the Tribunal and thereafter, he must come within next thirty days.
6. We have also gone through the opinion, dated 11-11-1996 recorded by the Government of Pakistan, Finance Division, (Regulation Wing), contained in F. 19(1)-Reg. 7/96-1031 which is not in accordance with the latest provisions of Article 371-A, CSR and volatile of the Honourable Supreme Court's judgment, referred to above, the. Same may be reconsidered and recast for meeting the ends of justice and covering all aspects and all sorts of service matters rendered by the Government Civil Servants. The world around is moving fast in all respects and we shall keep pace with it,including in service and legal matters. Finance Division shall too not lag behind.
7. Pursuant to the above discussion, based on law and legal implications, this appeal is accepted with cost and with the direction that the pension and gratuity, as admissible under the law, shall by calculated and paid to the appellant as early as possible and in no case later than ninety days (three months) from the date of receipt of this judgment. A copy of this judgment shall be sent to all concerned for implementation and necessary action.