1990 PLP (C (PLC(CS))

SALAHUDDIN CHAUDHRI (MEMBER).‑‑The appellant in this case was a Stenographer in the Central Excise and Land Customs Department, Lahore. Initially he joined as Lower Division Clerk on 10‑10‑1952 but on 27‑4‑1953 he was retrenched. However, after 67 days he was recalled and having rejoined, continued to serve the said Department till 23‑4‑1980 when, as Stenographer, he proceeded on voluntary retirement. In working the amount of admissible pension, the competent authority did not count the said 67 days period towards the length of qualifying service. He represented against this treatment but failed. Hence this appeal.

2. The respondent‑department has resisted this appeal and the first objection raised is of limitation. According to the learned counsel for the respondents the appeal is hopelessly barred by time. The facts on record show that against the decision not to count the said 67 days period towards total qualifying service, the appellant submitted a representation or petition on 26‑12‑1981. This was rejected by Ministry of Finance vide Pension and Provident Fund Appeal‑cum‑Complaints Cell's letter No. 2(944) ACCC/81, dated 4‑1‑1982. The appeal to this Tribunal having been filed on 14‑4‑1983 is clearly late by more than a year. An application praying condonation of only one day's delay has been filed. It transpires that the appellant has, for the purposes of limitation, counted the period of delay with reference to Finance Division's letter dated 16‑3‑1983. But we find that this letter is not the order on the appellant's representation dated 26‑12‑1981. It is, in fact, a reply to a letter through which the appellant had made a suggestion for simplification of procedure and amendment to Finance Division's O.M. dated 24‑2‑1977. The departmental appeal had been rejected, as referred to earlier in this order, on 4‑1‑1982. In that view of the matter, the appeal is held as barred by time.

3. Even on merits the appellant does not have any case because his grievance is not well‑founded. Having been retrenched on 27‑4‑1953, the appellant remained out of service for 67 days till he was recalled and asked to rejoin the department on 4‑7‑1953. In actuality, the period of appellant's continuous service started only on 4‑7‑1953. But the department treated the said period of 67 days as leave extraordinary. But for that, the period of service prior to retrenchment could not have been counted towards the total length of qualifying service. Article 407 of C.S.R. lays down that the period of extraordinary leave will not count as service qualifying for pension. It reads: "

407. All periods of leave, other than extraordinary leave, count as service qualifying for pension."

4. The above Article flows from Article 361 which lays down three conditions which must be satisfied before the service of an officer can qualify for pension. One of these conditions is that the service must be paid by the Government. Since leave extraordinary is always without pay, the period of this kind of leave cannot be counted towards qualifying service.

5. The appellant who pleaded his case personally relied on Articles 422 and 423 of C.S.R. under which any interruption in service or "deficiency" in qualifying service can be condoned by the competent authority on conditions that it may think fit to impose. It was contended that the authorities concerned were wrong and unfair in not condoning the gap of 67 days, although they were authorised to do so under the said Articles. In our view, the contention raised is without any force. In fact the appellant has not appreciated the real import of these Articles. So far as Article 423 is concerned, it is not applicable to this case because the appellant already had to his credit more than 25 years qualifying service and therefore, there was no "deficiency" which needed condonation. Article 422 is, of course, attracted because what is involved in the instant case is "interruption" of 67 days. But this period of "interruption" stands already and automatically condoned under Article 420 of the C.S.R. read with Finance Division's O.M. dated 24th February, 1977. It would be of advantage to reproduce below the relevant clauses of Article 420‑‑ "

420. An interruption in the service of an officer entails forfeiture of his past service, except in the following cases:‑‑ (a)??????? x x x (b)??????? x x x (c)??????? x x x (d)??????? Abolition of office or loss of appointment owing to reduction of establishment." It follows, therefore, that but for this condonation, the period of service prior to retrenchment would not have been counted towards total qualifying service. Treating the period of 67 days as leave extraordinary a bridge was provided between the two periods of qualifying service. In the course of his arguments the appellant referred to Finance Division's O.M. dated 24‑2‑1977 in which, explaining the relevant Articles it has been laid down that any interruption in service due to retrenchment of the post shall be deemed to have been condoned but "the period of such interruption shall not however, count as qualifying service for pension." It was urged that the instructions contained in this memorandum are wrong inasmuch as they are based on an incorrect interpretation of the provisions of Articles 422 and

423. It was further urged that the Finance Division be directed to delete the word "not" from the relevant sentence (underlined) quoted above so as to make the periods of interruptions eligible for being counted towards qualifying service. In fact this precisely is what the prayer in this appeal is.

6. We have carefully considered the submissions made at the Bar and are of the view that the Office Memorandum of 24‑2‑1977 does not in any way misinterpret the prescribed rules on the subject. We do not see in the context of this case, any harshness or unfairness in the relevant rules or instructions. The appellant was admittedly not in service for these 67 days and was, therefore, not entitled to any pay. So, how could he be allowed pension for the same period. So far as the prayer for the deletion of the word not is concerned, it is not within the competence of this Tribunal to issue directions for amending any rules or for modifying any policy decisions. This Tribunal cannot legislate; it can only interpret.

7. The appeal is dismissed as barred by time and also being without any merit.

8. There will be no order as to costs.

9. Parties to be informed. M.Y.H./526/Sr. F??????? Appeal dismissed.