P L D 1968 Lahore 1285 (PLP)

SARDAR MUHAMMAD IQBAL, J.‑

Ch. Khan Muhammad, formerly a Divisional Forest Officer of the West Pakistan Forest Service Class 1, was born on the 11th of March 1908, and was to retire on the completion of sixtieth year of life on the afternoon of the 10th of March 1968. The age of superannuation was altered with the coming into force of the Constitution (Sixth Amendment) Act of 1966. Since the petitioner had already completed the fifty‑fifth year of his life before the coming into force of the Amending Act, he was liable to be retired within the meaning of sub‑clause (b) of clause (4) of Article 178 of the Constitution "on such date" "as the competent authority may direct" within six months from the commencement of the Constitution. In the absence of a direction by the competent authority for his retirement within the stipulated period, he was to automatically retire after the expiry of the six months, i.e. on the 30th of September 1966. The Government of West Pakistan ordered the retirement of the petitioner to take effect from the 15th of August 1966. The petitioner, on the 25th of July 1966, had applied for leave preparatory to retirement. The petitioner challenged also the order of his retirement by means of a writ petition questioning the validity of the Constitution (Sixth Amendment) Act, 1966, on a number of grounds. The petition was admitted to hearing and the operation of the retirement order of the petitioner was stayed. The petitioner, by virtue of the order of the High Court, did not retire on the 15th of August 1966, nor the question of giving him leave preparatory to retirement was considered. Consequent upon the dismissal of the writ petition on the 26th of October 1966, the Government issued fresh orders on the 31st of October 1966 directing the retirement of the petitioner from that date. The petitioner once again on the 28th of October 1966 applied for leave preparatory to, retirement. The Governor of West Pakistan by his order dated the 3rd of March 1967 sanctioned the leave in his favour, but subsequently on the 7th of June 1967 he revoked the said order. The petitioner claims that he was entitled to leave preparatory to retirement and has through this petition challenged the order of the Governor whereby he refused this concession.

2. By the order of the Government issued under Article 178(4) (b) of the Constitution, the petitioner was ordered to retire on the 15th of August 1966. However, he continued in service in virtue of the stay order granted by the High Court. The Government of West Pakistan in the Services and General Administration Department issued a letter bearing No. S. O. IV (S & GAD)‑4‑18166, dated the 12th of September 1966, sus pending the operation of the retirement orders, which reads: "I am directed to say that a large number of Government servants, who have been retired under Article 178 of the Constitution, have filed writ petition in the High Court and have obtained stay orders. The matter has been considered in consultation with the law Department and it has beers decided that the stay orders issued in individual cases by the High Court should be honoured in those cases. The orders suspending the operation of the retirement order in each case, should be issued in the enclosed form. Its effect will be that the officer will continue to perform the functions as before and fresh orders would be issued only after the final decision by the High Court or the Supreme Court as the case may be". After the dismissal of the writ petitions, a question arose as to the entitlement of the persons regarding leave preparatory to retirement. The Government of West Pakistan in the Finance Department, therefore, in order to clarify the position, issued letter No. 217‑SR‑VI‑67, dated the 20th of February 1967, the relevant portion of which reads :‑ "A question has now arisen as to how the leave prepa ratory to retirement should be regulated, and as to when the Government servants shall retire, in cases of this kind. This question has been considered in consultation with the Govern ment of Pakistan and it has been decided that these cases should be dealt with on the following lines :‑-- (a) Cases in which the Government servant had duly applied for L. P. R. within the prescribed time limit but had not proceeded on L. P. R. before the grant of the stay‑order. In these cases the L. P. R. after the requisite formal sanction, if not already sanctioned, should commence with effect from the date of the vacation of the stay‑order and the Government servant shall retire on the expiry of the L, P. R. which should not extend beyond the age of 60. (b) Cases in which the Government servant had proceeded on L. P. R. before the commencement of the stay‑order but his L. P. R. was interrupted by duty during the currency of the stay‑order. In these cases the originally sanctioned L. P. R. less the period of L. P. R. availed of before the vacation of the stay‑order, should be deemed to have been deferred by the period of duty during the stay‑order, and the Government servant shall retire on the expiry of the L. P.' R. so deferred, but not beyond the age of 60. (c) Cases in which the Government servant proceeded on L. P. R. and continued to remain on leave during the period of the stay‑order. In these cases the sanctioned L. P. R. would remain uneffected by the stay‑order, and the Government servant shall retire on the expiry of the originally sanctioned L. P. R. (d) Cases in which the Government servant had not applied for L. P. R. within the prescribed time limit. In these cases L. P. R. will not be admissible and the Government servant shall retire on the date the stay‑order bad been vacated but not beyond the age of 60."

3. According to paragraph 3 of the writ petition, "the petitioner on 25‑7‑66 applied for four months' leave or. average pay (to commence from 14‑8‑66) on the prescribed form requesting in the alternative that in case he was to retire, the Leave Preparatory to Retirement be granted to him as admissible under the rules." The respondent in the written statement has admitted the averments made in this paragraph. We had also satisfied ourselves from the record which has been placed before us by the learned A. A.‑G., that the petitioner have applied on the 25th of July 1966 for leave preparatory to retirement. The case of the petitioner is covered by the clause (a) of paragraph 1 of the letter of the Finance Department, extracted above, and the Governor of West Pakistan had rightly sanctioned leave preparatory to retirement to the petitioner by his order dated the 3rd of March 1967.

4. The learned A. A.‑G., however, contended that the Governor subsequent to the dismissal of the writ petition again ordered the retirement of the petitioner from the 31st of October 1966 and since the petitioner had not applied for leave pre paratory to retirement before that date, he, by virtue of clause (d) of the Finance Department's letter, referred to above, was not entitled to the grant of leave preparatory to, retirement, and that the Governor, in these circumstances was justified to revoke his earliest order of the 3rd of March 1967. The direction given by the Government in clause (d) of paragraph 1 of the letter is in accord with rule 821 (a) of the Civil Service Rules (Punjab), Volume I, Part I, and rule 86(a) of the Fundamental Rules which correspond with each other. Under the said Rules, a Government servant, in order to avail of the leave preparatory to retirement admissible to him, had to apply for it in sufficient time before the date of retirement.

5. By the Constitution (Sixth Amendment) Act, 1966, a special provision in regard to the leave preparatory retire ment has been made in clause (6) of Article 178 of the Constitution, which, for convenience of reference, is reproduced :‑ "A person who is required to retire under paragraph (b) or paragraph (c) of clause (4), including any such person whose service has been extended under clause (5), shall be entitled to such leave preparatory to retirement as is admissible to him and the period of such leave may extend beyond the date of his retirement but not beyond the completion of the sixtieth year of his age, and if he proceeds on such leave before the said date, his retirement shall take effect on the expiry of the leave." By virtue of this constitutional provision, there is a title created in favour of a Government servant to enjoy leave preparatory to retirement "as is admissible to him". The scope of paragraph (b) of clause (4) of Article 178 was limited in its operation. Under the said clause, a person who had already attained the age of 55 on the commencement of the Constitution (Sixth Amendment) Act, 1966, automatically retired latest by the 30th of September 1966. The person so retired became entitled to the leave preparatory to retirement as was "admissible to him". It follows that he could not be deprived of his consti tutional right only because he had not applied for it. Paragraph (c) of clause (4) of Article 178 is of permanent character. A Government servant, who had not completed the age of fifty‑five by or before the 30th of September 1966 was covered by paragraph (c) of i clause (4). He, in pursuance of the said paragraph, retired on the completion of the fifty‑fifth year of his age." Under clause (6), a person who is required to retire under this paragraph is also entitled to such leave preparatory to retirement as is admissible to him. If he has earned certain leave, he is entitled to avail of it after his retirement under paragraph (c) and if his service is extended beyond the age of fifty‑five years to avail of it even after his retirement under clause (5). The fact that a person can avail of his leave preparatory to retirement even after retirement is further borne out by the words used in clause (6), viz. "and the period of such leave may extend beyond the date of his retirement but not beyond the completion of the sixtieth year of his age". The tenor of clause (6) leaves no manner of doubt that a person even if he does not apply for leave preparatory to retirement before the age of his superannuation, is entitled to avail of it after his retirement; and to that there is only one exception that leave preparatory to retirement cannot extend beyond the age of sixty. The leave preparatory to retirement is thus to be availed of before a person attains the age of sixty. In this view of the matter, clause (d) of paragraph 1 of the Finance Department's letter though consistent with rule 8.21 (a) of the Civil Services Rules and rule 86 (a) of the Fundamental Rules, is repugnant to the provisions contained in clause (6) of Article 178 of the Constitution.

6. The petitioner was retired on the 15th of August 1966 as directed by the Governor in the exercise of his power under paragraph (b) of clause (4) of Article

178. His services, however, were extended by the order of the Government dated the 12th of September 1966. Subsequently, on the dismissal of his writ petition, he was retired with effect from the 31st of October 1 1966. Since it is not denied that leave preparatory to retirement was admissible to the petitioner, he, therefore, was entitled to avail of it.

7. There is another aspect of the case also arising from the interpretation of clause (6) of Article 178 of the Constitution. According to its tenor, a person may proceed on leave before the date of his superannuation and there may be a person who superannuates but has not proceeded on leave before his retirement. So far as the person who proceeds on leave preparatory to retirement before the date of his superannuation which, of course, can be only if he applies for it is concerned he will have the benefit to the extent that his date of retire ment under the constitution provision will shift from the date of his superannuation to the date when his leave expires. So far as the person who has not proceeded on leave before the date of superannuation, i. e., a person who, has not applied for leave preparatory to retirement or that it has not been sanctioned in his favour, is concerned, he "retires on the day he super annuates, but he is only entitled to the benefit of the leave preparatory to retirement even after the date of retirement. In a nutshell, a person who has proceeded on leave preparatory to retirement before the date of superannuation will retire on the date his leave expires whereas the one who has not proceeded on leave preparatory to retirement before the target date, will only enjoy the benefit of leave and his date of retire ment will not shift to that when his leave expires. A question arises as to what will be the difference between the cases arising in these two situations. To us, it appears that a person who has proceeded on leave before his date of superannuation, he continues in service so long as the leave does not expire. The competent authority in his case may, therefore, if so wishes, extend his service under clause (5) of Article

178. In the other case, even though the person is entitled to the benefit of leave preparatory to retirement, he has, in the eye of law, retired on the date of superannuation and if the competent authority so chooses may avail of his service by means of re‑employing him. There can be no extension in service in his case, because his services have come to an end on the date of his superannuation.

8. The petition is accepted with costs and the order dated the 7fh of June 1967 by which the earlier order of the Governor dated the 3rd of March 1967 was revoked is declared to be without lawful authority and of no legal effect. Consequently, the order of the Governor dated the 3rd of March 1967 remains in operation and the respondent is directed to give effect to the same. A.E. Petition accepted.