' The brief facts of the instant writ petition are that the petitioner was appointed as J.V. Teacher in Municipal Committee, Primary School, Ihata Ghallah Mandi, Sahiwal on 1-10-1968 and worked as J.V. Teacher in Municipal Committee Primary School, Gujjar Ihata, Sahiwal up to 16-10-1995. After 27 years of service he applied for two years' leave without pay according to the Punjab Leave Rules, 1981 for performance of Umra and visits of holy places. The application was turned down by the Administrator, Municipal Committee, Sahiwal on 5-10-1995 and it was directed that "Now you are directed to remain present in the school as usual". After rejection of the application the petitioner remained present in the school up to 16-10-1995. The petitioner assailed the order of the Administrator, Municipal Committee by an appeal before the competent Authority. The appeal was dismissed on 16-10-1995. Thereupon, the petitioner having more than 25 years of regular service applied for retirement with effect from 16-10-1995 which was recommended to Administrator approved by the Headmaster respondent No,2. The charge was taken over from the petitioner and he was relieved from service on 16-10-1995 (A.N.). An application was submitted by the petitioner before the Administrator, Municipal Committee, Sahiwal for issuance of appropriate order for pension and gratuity and other dues, which is pending up to this time. While a proclamation was issued in the newspaper that the petitioner should appear on his duty and after the proclamation in the newspaper by a single sentence in the following language : {{URDU TEXT}} ' The petitioner has assailed the present order.
2. The arguments advanced by the learned counsel for the petitioner are that according to the Punjab Civil Services Pension Rules, 1963 the petitioner fulfilled all the service qualifications for retirement and the delay in the payment of pension involved peculiar hardship. The application was sanctioned by the head of the office on 16-10-1995 and who after taking charge of the post relieved the petitioner from service and sent the case of premature retirement for approval to respondent No,1 and without hearing the petitioner's retirement case dismissed the petitioner from service vide order dated 4-3-1996 and a retired person or a person who has applied for retirement cannot be dismissed from service. This aspect was ignored by the respondent,
3. The learned counsel for the respondents submits that the petitioner after his application for extraordinary leave was refused had left Pakistan and was not eligible for any pension and gratuity as after proclamation issued by the respondents he failed to appear before respondent No,1 and resumed his duties, therefore, he was rightly dismissed from service and was not eligible for any pension.
4. I have heard the learned counsel for the parties and have carefully perused the record.
5. As per Punjab Leave Rules, 1981. Rule 9 extraordinary leave without pay may be granted on any ground up to a maximum period of five years at a time, provided that the civil servant to whom such leave is granted, has been in continuous service fora period of not less than 10 years, and in case a civil servant has not completed 10 years of continous service, extraordinary leave without pay for a maximum period of two years may be granted at the discretion of the head of his office: ' Provided that the maximum period of five years shall be reduced by the period of leave on full pay, or half pay, if granted in combination with the extraordinary leave.
' The petitioner applied for extraordinary leave after completing 25 years of service, so he was eligible to apply for extraordinary leave. It is strange that under peculiar circumstances this leave was refused. The appeal was also dismissed anti the proclamation was issued in the newspaper for resumption of the duty of the petitioner on 15-2-1996.
6. It is also peculiar that the petitioner was constrained to give an application for retirement w,e,f, 16-10-1995, The Headmaster of the School, Gujjar Ihata gave a notice that the application is sent to the office of Administrator, Municipal Committee, the charge has been handed over to him by petitioner and nothing was left. With him and he was relieved from service w,e,f, 10-10-1995. This observation by the Headmaster had been admitted by the learned counsel for the respondent who submitted that the Headmaster had no authority to relieve the petitioner from his office. The record shows that no proceedings were Conducted against the Headmaster for over stepping his jurisdiction.
7. As far as the petitioner is concerned he had a clear understanding that his application is forwarded to the concerned authorities and the charge was taken over by the Headmaster, his immediate Officer and then he was relieved from the service. It is also very peculiar that the Department did not convey any order to the petitioner that his application for premature retirement has been refused by the Department, therefore, he should face an inquiry for remaining absent from service. The petitioner could not attend to his office as the charge was taken over from him on 16-10-1995 and he was relieved from his office. The respondent No,1 had no lawful authority to terminate the services of the petitioner without deciding the application for retirement. The basis and malice cannot be overruled while passing the impugned order by the respondent.
8. In view of above discussion the order dated 4-3-1996 passed behind the back of the petitioner is set aside being without lawful authority. The application for approval of premature retirement pending adjudication since 16-10-1995 be decided keeping in view purely the eligibility of prematured retirement of the petitioner after the service of 25 years following the pension and gratuity except salary. It is further directed that the aforesaid application be decided within one month from today.