P L D 1984 Supreme Court 80 (PLP)

NASIM HASAN SHAH, J.- This appeal by leave of this Court is directed against the judgment dated 9-10-1982 passed by the Service Tribunal Punjab, Lahore, whereby it set aside the orders of the Government ,of Punjab retiring the respondent herein under section 12(ii) of the Punjab Civil Servants Act, 1974 (hereinafter called the Act) on the assumption that he had completed 25 years of service qualifying for pension. The respondent herein, Mr. Noor Muhammad Khan, was retired from service on 11-12-1980 in exercise of the powers conferred on the Governor of the Punjab under clause (ii) of section 12 of the Act. lie filed 4 review petition against the said order, but the same was dismissed ride order dated 28-9-1981. He thereupon preferred an appeal under section 4 of the Act before the Punjab Service Tribunal, Lahore, to challenge the order of retirement asserting, inter alia, that he had not yet completed 25 years service qualifying for pension and other benefits under the Punjab Government. The learned Service Tribunal agreed with the respondent that he had not completed 25 years but had only completed 23 years 5 months and 28 days' service under the Punjab Government because the remaining service was under the Central Government. According to chart prepared by the Service Tribunal the details of his service were as follows : Y M D ?(a) 26-4-49 to ??????????????????????? 7-6-27 ??????????????????????? Punjab ???????????? Deputy Rehabilitation Officer ?23-11-56 ?????????????????????????????????????????? Govt. ?????????????? (Temporary) Rehabilitation Department. ?(b) 24-11-56 to ????????????????????? 3-1-7 ????????????? Central???????????? Appointed as Claims Officer by ?27-12-59 ?????????????????????????????????????????? Govt. ?????????????? direct recruitment vide appoint- ment order dated 18-9-1956. ?(c) 28-12-59 to?????????????????????? 5-0-10 ?????????????????????? Central ??????????????????????? Settlement Deptt. as Deputy ?8-1-65 ?????????????????????????????????????????????????????????? Govt. ?????????????? Settlement Commissioner. Randered surplus due to winding up of Settlement Deptt. under Central Govt. ?(d) 9-1-65 to 2-10-13 ??????????????????????????????????? Punjab ???????????? Remained in surplus pool pending ??????? 22-11-67 ??????????????????????????????????????????????? Govt. ?????????????? appointment in any Department ?pay drawn from surplus pool as ?Assistant Director (Industries). ?Period not liable to be counted ?1981 P L C (C S) 696, Abdul Hai ?Niazi. ?(e) 23-11-67 to ????????????????????? 13-0-18 ????????????????????? Punjab ???????????? Direct appointment as Inspector of ?11-12-80 ?????????????????????????????????????????? Govt. ?????????????? Schools vide letter dated 7-3-67 of Punjab Govt. ?31-7-15 ?Y M D Gross service under Punjab Govt. = 23 - 5 - 28 The Service Tribunal observed that as the respondent had served for 8 years,a 1 month and 17 days in the Settlement Department with the Central Government and that this period of service could not be considered to be service with the Punjab Government it could not be considered towards 25 years service qualifying for pension. In this connection it was pointed out that the respondent was not sent on deputation from the Provincial Government to the Central Government nor his lien was retained in the Provincial Government and that he was independently with the Settlement Department without any connection with the Provincial Government; that after he became surplus due to winding up of the Settlement Department he yeas recruited afresh as Inspector of Schools in the Education Department from 23-11-1967, after having remained in the Surplus Pool from 9-1-1965 to 22-11-1967. In these circumstances he could not be considered as in service for the period he was serving with the Central Government under Rule 2.1 of West Pakistan Civil Service Pension Rules, 1963 (hereinafter referred to as the Pension Rules). The said rule is H the following terms : "2.1 Conditions of qualifications.-The service of a Government servant does not qualify for pension unless it conforms to the following three conditions : First.-The service must be under Government. Second.-The service must not be non-pensionable. Third.-The service must be paid by Governmeet from the Provincial Consolidated Fund." In view of the terms of the above rule the service of the respondent rendered by him in the Settlement Department under the Central Government could not, in any manner. be considered as service under the Provincial Government. Consequently, the period of 8 years 1 month 17 days, for which the respondent served with the Central Government could not be considered as service to the Punjab Government and could not be counted towards 25 years' service qualifying for pension. Accordingly. the orders of retirement were set aside and the Punjab Government was directed to reinstate the respondent into service with back benefits. The Secretary, Education Department and the Chief Secretary, Government of Punjab, have appealed against the judgment of the Service Tribunal, with leave of this Court. Sh. Izharul Haque, learned counsel for the appellants, in support of this appeal, has mainly contended that section 12(ii) of the Act does not envisage continuous service in one Department. These words have been imported into this provision of law by the Service Tribunal without any legal warrant. A person who has in fact put in more than 31 years service cannot be said .not to have completed 25 years. Attention was invited to Rule 2.9 of the Pension Rules according to which time spent by a Government servant on deputation to another Government counts for pension as it were a time spent under the Government. Clause (ii) of section 12 of the Act is in the following terms : "

12. Retirement from service.-A civil servant . shall retire from service (i) (ii) in any other case, on such date after he has completed twenty five years of service; qualifying for pension or other retirement benefits, as the competent , authority may, in the public interest, direct ; or (iii) ?????????????????????????.. It is to be observed that the expression used in clause (ii) of section 12 is "service qualifying for pension". The question arises whether this expression ~s synonymous with the expression "total service" and the two are indistinguishable. It appears that the two expressions are really distinct and cannot be equated together. The learned counsel for the respondent, to bring out the distinction first, invited our attention to sub-para. (c) of para. 4 of Chapter I of the Guide for Retiring Government Servants. This lays down as follows :-- . _. . . , "4(c). Extraordinary leave.-The period of extraordinary leave shall not be treated as qualifying service for pension but only as a bridge between the two periods of qualifying service." He also invited our attention to Martial Law Order No. 23 dated 22-10-1977 issued by the Chief Martial Law Administrator, especially to clause (v) thereof, which provides : "A Review Board, on receipt of a review petition forwarded to it by the competent authority, shall review the said petition and, after giving an opportunity to the petitioner of being heard, and making such further enquiry as it may deem appropriate, submit its report together with its recommendations to the competent authority who may pass such order as he may deem appropriate Provided that any order passed on a petition, including an order of reinstatement, shall not entitle the petitioner to any damages, compensation or arrears of emoluments or other benefits for the period he remained out of service." The Secretary, Government of the Punjab, Finance Department, in a Circular Letter No. FD-SR-lII-4-3,/81 dated 20-10-1.981 to all Administrative Secretaries, Punjab and others on the subject of "Issues arising on account of re-instatement of Government Servants Corporation Employees under Martial Law Order No. 23", stated, inter alia, that "so far no decision was taken in respect of the following issues : "(i) How the intervening period between the date of retirement and the date of re-instatement of the affected employees who actually resumed their duties should be treated for the purpose of pension ; and (ii) How pension gratuity and commuted value of pension already drawn by such employees should be adjusted." So far as Issue No. 1, which is relevant in the present context, is concerned, it was observed "The intervening period in the case of those who actually resumed their duties has been treated as extraordinary leave (which does not count as qualifying service for pension), as per Establishment Division's Orders mentioned above." Relying on the above references, the submission, of the learned counsel was that although so far as the total length of service is concerned the above period shall count to make service as continuous but the same shall not count towards the pension, as no , salary has been earned for the period, being treated as period of extraordinary leave. The learned counsel for the respondent also pointed out that in the present case, the respondent had been compulsorily removed from service under Martial Law Order No. 114 and was re-instated in service on 16-1-1978 and the intervening period of 5 years 10 months and 3 days from 13-3-1972 to 15-1-1978 had been treated as extraordinary leave and the Government also did not include this period while calculating the service qualifying for pension of the respondent. In this connection learned counsel pointed out that the Punjab Service Tribunal had calculated the total length of all types of service of the respondent as 31 years 7 months and 15 days, namely, from 26-4-1949 to 11-12-1980. However, if the conditions laid down in rule 2.1 of the Pension Rules was read with the proviso to para. 5 of Martial Law Order No. 231 ; the category wise break-up of the total period of service of the respondent would be as follows : (a) Service paid out of Federal Consolidated Fund, when employed by the Federal Government as Claims Officer and Deputy Settlement Commis- ?????????????????????????????????????????????? Y? M?? D sioner (24-11-56 to 8-1-65)???????????????????????????????????????????????????????????????????????????? 8- 1 - 17 (6) Services under the Punjab Government payable out of the Provincial. Consolidated Fund, as (i) Deputy Rehabilitation Officer (26-4-49 to 23-11-56)??????????????????????????????????????????????? 7 - 6 - 27 (ii) Assistant Director, Industries (9-1-65 to 22-1-67). ???????????????????????????????????? 2 - 10 - 13 (iii) Inspector of Schools (23-11-67 to 12-3-72) ????????????????????????????????????????????? 4 - 3 - 20 (iv) M. L. R. 114-Compulsory removal period from ?13-3-72 to 15-1-78, reinstated under MLO 23 and ?period treated as extraordinary leave without pay. ?????????????????????????????????????????? 5 - 10 - 3 (v) Inspector .Schools (16-1-78 to 10-12-80) ???????????????????????????????????????????????? 2 - 10 - 25

31 - 7 - 15 The argument was that the period of service as Claims Officer and Deputy Settlement Commissioner of the respondent with the Central Government amounting to 8 years 1 month and 17 months which was paid out of the Federal Consolidated Fund and the employing government was the Federal Government was to be excluded in view of the terms of Rule 2.1 of the Pension Rules leaving the balance service of 23 years 5 months 20 days which was payable out of the Provincial Consolidated Fund. However, even out of the above period of service, a period of 5 years 10 months and 3 days was also liable to be excluded because the respondent had been removed from service under Martial Law Regulation No. 114 on 13-3-1972 and had been re-instated on 16-1-1978 under Martial Law Order No. 23 which period was to be treated as extraordinary leave without pay and did not qualify for pension but was only a bridge between two periods of qualifying service. Hence the respondent's total qualifying service for pension amounted only to 17 years 7 months and 25 days. He could not, therefore, be retired under section 12 (ii) of the Act. Without expressing any view ourselves as regards the last part of the submission of the learned counsel for the respondent we are, however, satisfied that under the terms of rule 2.1 of the Pension Rules the service rendered by the respondent with the Central Government cannot be treated as service performed by the respondent which can be counted towards qualifying him for pension. Service under the said Rule must be the service under the Government which, in the context, means the Provincial Government and must be paid by the said Government from the Provincial Consolidated Fund ; whereas in this case over 8 years service rendered by the respondent was with the Settlement Department of the Central Government and he was. for this period paid out of the Federal Consolidated Fund. The reference to rule 2.9 of the Pension Rules is also of no avail because, according to the said rule, the time spent by a Government servant, holding pensionable post on .deputation to (i) another Government, or (ii) foreign service, or (iii). service in a temporary or non-pensionable post under Government will bound for pension as if it were a time spent under the Government only if he is on deputation to the other Government. In this case, the respondent was not on deputation to the Central Government as found by the Service Tribunal and nothing has been said either in the petition for leave to appeal or in the arguments before us to the effect that the respondent was, indead, on deputation and that the finding of the Service Tribunal on this point is erroneous. No interference, in the peculiar circumstances of this case, with the order of the Service Tribunal is, therefore, called for. The result is that this appeal must fail and ,is, accordingly, hereby dismissed with costs. M. z. M. Appeal dismissed.