1985 PLP 1761 (SCMR)

Aggrieved by such a treatment, the appellant filed an appeal under section 4 of the Service Tribunals Act, 1973 on 25‑7‑1974. The ground on which leave to appeal had been granted was not taken therein. An application was made on 2‑11‑1974 for taking up an additional ground and it is this additional ground, which is to be examined as per leave granting Order. The specific ground raised was expressed in the following words: ‑ "That the retirement of the appellant from service is premature, because he had not completed 25 years of service as on 20th August, 1973, as communicated, vide impugned order of retirement; consequently the order thus passed is against the terms and conditions of service of the appellant and also against the cognate rules and law regulating the service of the appellant, hence the order is unwarranted, misconceived, void and without jurisdiction; therefore, it cannot be maintained." The crux of his case so far as this additional ground was concerned was that he was entitled to count the portion of his War service for the purposes of qualifying service for pension only if in terms of rule 357‑AA C.S.R. his appointment to a pensionable post had taken place before 18‑7‑1959. According to the appellant, the service rendered by him as Superintendent of Police in a temporary capacity in a temporary wing of Punjab Additional Police was on a non‑pensionable post and his appointment to the Audit and Account Service was after the target date. It appears that the question whether the service rendered by him as temporary Superintendent of Police, Punjab Additional Police was on a pensionable post or not received pointed attention of the Tribunal and arguments on that point were heard on a number of dates. The Tribunal disposed of this question by holding as hereunder:‑ "The petitioner having been appointed to a pensionable post (West Punjab Gazette Notification No. 2844‑B, dated October 10, 1947 read with Punjab Government letter No. S. II‑5/10/69, dated the 19th July, 1976), it is argued that the appellant would ipso facto be entitled to the benefit being allowed by the respondents. Although the petitioner claims that he did not hold a pensionable post under the Provincial Government and that the clarification furnished by the Services and General Administration Department is only in the nature of expression of a view‑point, it is evident that the conditions laid down for entitlement to the benefit stand fulfilled. The Audit Instruction has been issued in consultation with the Finance Division, vide letter No. 114‑A/3‑76, dated 13‑4‑1976. The clarification in regard to the provisions of Article 377‑AA under cover of the aforesaid letter, dated 13‑4‑1976 does give the impression that, it was occasioned by the instant case. The departmental file, produced, indicates that a similar interpretation has been furnished in the past end there is therefore no reason to hold a different view." The other objections of the appellant to his retirement were also rejected and the Tribunal concluded its judgment making a suggestion to the Government to the following effect:‑ "As the order under section 13(11) of the Civil Servants Act, 1973, is being interpreted as an order of retirement 'simpliciter' and the disciplinary proceedings are deemed to have been dropped, it would be appropriate, if the respondents revise their decision in regard to the period of suspension and pass suitable orders, in accordance with the Rules." Mr. Waheed Saleem, the learned counsel for the appellant contended that under the rules particularly 357‑AA C.S.R. the appellant was not entitled to count his service in the Army or any portion of it for the purposes of pension because his appointment on the temporary post of Superintendent of Police was not pensionable. It is not denied that on the same interpretation if the post of Superintendent of Police Punjab Additional Police is held to be pensionable or found to be so then an entitlement does get created in terms of rule 357‑A A, C . S. R for counting a substantial portion of the War service and that entitlement will be of avail notwithstanding appointment to the Audit and Accounts Service being after 18‑7‑1949 because the first civil appointment after War service would, as in this case, be before 18‑7‑1949. The Tribunal in deciding this question relied upon the following two official documents and they are reproduced in extenso hereunder. The first is a Gazette notification appearing in the West Punjab Gazette, dated 10‑10‑1947 which reads as follows:‑ "No. 2844‑B‑‑ The Governor of the West Punjab is pleased to appoint Rana Muhammad Yasin as Temporary Superintendent of Police in the Provincial Additional Police, West Punjab, where he assumed charge of his duties on the forenoon of the 23rd September, 1947." The other is a factual report, dated 19‑7‑1976 from the Chief Secretary, Government of Punjab to the Establishment Division answering the three relevant questions as follows:‑ "(i) The post of Superintendent of Police in the Provincial Additional Police against which Rana Muhammad Yasin was appointed, was a pensionable post. (ii) Rule 2.4 of Civil Service Regulations, Punjab not been superseded by the West Pakistan Civil Services Pension Rules, 1963. (iii) He was appointed in the Provincial Additional Police which was under the exclusive control of the Provincial Government. Posts in the Provincial Additional Police were not borne on the cadre of the Pakistan Police." The appellant has tried to meet the situation arising out of these documents by placing on record a letter from the Inspector‑General of Police addressed to the Section Officer, Government of the Punjab, Home Department, Lahore on 26‑5‑1976 in the following terms:‑ "On the checking of old record of this office, it has been found that Rana Muhammad Yasin was appointed .as temporary S.P. in P.A.P. (an Organization since wound‑up) on 23‑9‑1947 against a purely temporary post. He was, however, discharged from that service on 3‑7‑1948. He had thus rendered 9 months and 11 days temporary service against a temporary post which did not render him eligible for any pensionary benefits." Reliance is also placed on rule 2.4 C.S.R. (Provincial), Volume II which mentions in what circumstances service does not qualify for pension. That rule is reproduced hereunder:‑ In the following cases no claim to pension is admissible:‑ (a) When a Government servant is appointed for a limited time only, or for a specified duty, on the completion of which he is to be discharged. (b) When a person is employed temporarily on monthly wages without specified limit of time or duty; but a month's notice of discharge should be given to such a person; and his wages must be paid for any period by which such notice falls short of a month. (c) When a person's whole‑time is not retained for the public service, but he is merely paid for work done, such as Government Pleaders and Law Officers not debarred from private practice. (d) When a public servant holds some other pensionable post, he earns no pension in respect of a post of the kind mentioned in clause (c) or in respect of duties paid for by a compensatory allowance. (e) When a Government servant serves under an agreement which contains no stipulation regarding pension unless the competent authority specially authorises him to count such service towards pension. " None of these clauses applied to the appellant because his appointment was not for a specified period nor was he dischargeable on payment of wages in lieu of notice, the other conditions being irrelevant. To contend that the post was temporary or the department was temporary does not meet the requirement of rule 2.4. Hence on the record we find nothing to displace the finding of fact recorded by the Tribunal that it was a pensionable post which was rendered by the appellant as Superintendent of Police, Punjab Additional Police though he could not earn benefits of pension on that post because of the short term for which he served (less than a year). His total service including interruptions and non‑qualifying service has been worked out at 32 years 4 months and 6 days. His qualifying service was held to be 26 years 9 months. It is also not denied that if the benefit of War service in terms of rule 357‑AA, C.S.R. is extended to the appellant, his service qualifying for pension exceeds 25 years even after excluding the period of suspension. The question of period of suspension and its treatment is, therefore, not very relevant to the issue. The learned counsel for the appellant wanted to raise a number of other questions with regard to the legal validity of the retirement order while disciplinary inquiry was at its concluding stages. We do not propose to go into that question as leave was granted only on the jurisdictional question for taking action under section 13(ii) and not for examining the merits of that order. Hence the appeal fails and is dismissed with no order as to costs. M.B.A. Appeal dismissed.