1. ABDUL RASHEED MEMON (MEMBER-II).---The facts of the case as narrated by the appellant in his appeal submitted before this Tribunal are that while he was working as Section Officer in the Finance Department, Government of Sindh he applied for voluntary retirement on qualifying service of 25 years. He submitted his request to the Secretary to the Government of Sindh, Finance Department on 25-8-1998, that he intended to proceed on voluntary retirement from Government service w,e,f, 5-12-1998 on completion of 25 years qualifying service. He also execised his option not to avail any L.P.R. His request was recommended to the S&GAD by the Finance Department which notified his retirement vide Notification dated 22-9-1998 to be effective from 5-12-1998. However, he moved another application on 18-11-1998 for withdrawal of his request of premature retirement to the Secretary, S&GAD through Secretary Finance which was recommended to the S&GAD vide letter dated 24-11-1998, indicating therein that the said department was already short of experienced Section Officers. Therefore, the request of Mr. Anayat Khan was endorsed as precedented. However, the S&GAD vide their letter dated 30-11-1998 regretted the request of withdrawal of retirement on the plea that an option once exercised assumed finality. A copy of the said regret was communicated to the appellant on 2-12-1998 whereupon he preferred review appeal dated 30-11-1998 which was also recommended to the S&GAD by the Finance Department which regretted the same vide their letter dated 16-12-1998 informing them the review petition of Raja Muhammad Anayat Khan had been considered and rejected on the ground that the judgments quoted in the said application confirm the point that the voluntary retirement orders can be withdrawn only before implementation, whereas in the instant case implementation has already been effected; Notification was issued and pension papers sent to Accountant-General, Sindh. Thus the appellant made a prayer to the Tribunal that the impugned order dated 30-11-1998 passed by respondent No,2 and rejection order dated 16-12-1998 passed by respondent No,1 may be set aside and the appellant be allowed to continue his service as Section Officer with all back benefits in the interest of justice.
2. ' The Secretary (Services) S&GAD in his written statement stated that the appellant had applied for voluntary retirement from Government service with effect from 5-12-1998. The request/option of the appellant was accepted by the Competent Authority on 22-9-1998. After implementation of retirement order the appellant applied for its withdrawal vide his application dated 18-11-1998 which was examined and regretted twice by the Competent Authority on the grounds that the option once exercised assumed finality and the appellant was informed through Finance Department of the said decision. They have also quoted the reported case of 1984 PLC (C.S.) 864 under which the request for premature retirement is analogous to the submission of resigantion.
3. The resignation request can be withdrawn before its implementation. As per section 8 of West Pakistan Civil Servants Pension Rues, option once exercised cannot be allowed to be withdrawn.
4. Therefore, they have contended that the order of retirement which was passed on the option of the appellant and after its acceptance by the Competent Authority, it was not permissible to be withdrawn. They have further stated that although there was no provision to file a review petition yet in order to satisfy the petitioner, it was again considered and rejected. The judgments quoted by the appellant in his review petition also support the point of view of the respondents that the voluntary retirement orders can only be withdrawn before its acceptance. Whereas the implementation in the instant case has already been effected. The Notification of retirement was issued and the Pension Papers were sent to Accountant-General Sindh, therefore, they took the view that the judgments quoted by the appellant had been misinterpreted; as a request for premature retirement is final once exercised. They, therefore, requested that the order of retirement was voluntary on the basis of option exercised by the appellant, hence his request for restoration to job merits no consideration.
5. ' While arguing the case, the appellant himself contested that the Notification accepting his option was issued by the Government on 22-9-1998 whereas he had already moved the withdrawal application on 18-11-1998 and a copy of the said application was submitted to the Secretary (Services) in advance which was regretted on 30-11-1998. He agreed that the option in such cases exercised was final from the date of its effectiveness, therefore, on this point he cited various rullings that his option was accepted and notified on 22-9-1998 whereas he intended to retire on 5- 12-1998. Therefore, the effective date will be 5th December, 1998. He had moved the withdrawal request on 18-11-1998 which was prior to the date of its effectiveness, therefore, his request could be considered in the light of the decisions of the superior Courts, as the effective date had not been reached by that time. The following citations were given by the appellant in his support:
(1) 1984 PLC (C.S.) 864;
(2) 1984 PLC (C.S.) 1085;
(3) 1995 SCM R 904; and
(4) C.P. No,17 of 1970, dated 18-2-1972 in case of Abdul Nabi v. West Pakistan Government (PLD 1973 Quetta 4).
6. ' The crux of the cited judgments is that the option will attain finality from the date of its effectiveness. In the 1995 SCM R 904 judmgent it has been held that "before the order of retirement the petitioner has already submitted his application which according to Tribunal was received by the Competent Authority on 21-3-1992. The order of the retirement was issued by the Competent Authority on 12-9-1992, therefore, the petitioner moved his application before the order of retirement". Hence leave was granted. Under 1984 PLC page 1085, the appellant in the said case had also opted to proceed on L.P.R. And he was allowed to do so, however, immediately after receiving the said order he moved for cancellation and his application was recommended by the Competent Authority but no decision was taken on it. The Tribunal had held that a Civil Servant who moves for L.P.R. Or asks for his retirement, but later on due to change in the circumstances he withdraws the same while in service he can be permitted to do so. Thus his plea was that he had moved for withdrawal on 18-11-1998 and the effective date of the order was 5-12-1998. Therefore, he was in service when he had moved for the withdrawal of the request and that the effective date of 5-12-1998 had not reached by that time. In the case of Abdul Nabi v. Government of West Pakistan, reported in PLD 1973 Quetta page 4, it has been held that "Government Servants were permitted to withdraw their applications for retirement as was understood from a letter dated 13-4-1967 issued by the Finance Department; Government of West Pakistan, and as the petitioner sought to withdraw his application because he had submitted it under a genuine cause by wrong medical advise, therefore, he was entitled to do so." In the 1984 PLD (C.S.) page 864 it was contested that the appellant was a Civil Servant when he made a request to the Government that he may be allowed to continue his service and was competent to do so under the law. In the instant case also the appellant at the time of withdrawal was still in service because effective date was 5-12-1998 which had yet to come, when he moved for withdrawal. As such, we are of the view that the request of the appellant was permissible and should have been considered by the Competent Authority specially in the light of recommendations of the Finance Department which had recommended the request on the plea of shortage of experienced Section Officers and as precedented (i,e, the case of M/s. Taj Muhammad Memon, S.A. Pakistani and Khalil-ur-Rehman Daudpota).
7. ' A.A.-G. Has, however, contended that the appellant had made more than one appeal to the Competent Authority, therefore, third appeal before this Tribunal was not competent. As far as the exercise of his option is concerned, he supported the Government view that the option which had been accepted by the Government and notified on 22-9-1998 was final. However, the application for withdrawal dated 18-11-1998 had not reached the Competent Authority before the issuance of the said Notification, therefore, was not considered.
8. In view of the foregoing facts we have come to the conclusion that the withdrawal application moved by the appellant was before the Notification of his retirement was issued on 22-9-1998 and the effective date of the said Notification was 5-12-1998, therefore, the appellant was well within his right to withdraw the same before the date of effectiveness and he was a Civil Servant at that time As the date of effectiveness is later than the date of withdrawal, therefore, the withdrawal option was competent and permissible.
9. ' We accordingly set aside the Notification dated 22-9-1998 and order for the restoration of the appellant against the post of Section Officer BS-17. The period spent in between may be treated as leave subject to title.