1993 PLP (C (PLC(CS))

SYED ALLY MADAD SHAH (CHAIRMAN).‑‑‑Appellant Ziarat Gul, an ex‑employee of C.O.D. Karachi, has preferred this appeal for pensionary benefits. The facts in the background are that he was removed from service on account of long absence and order of his removal from service was subsequently modified to that of his compulsory retirement by the department appellate authority and it became effective from 16‑2‑1982. However, he was denied pensionary benefits on the ground that his service qualifying for pension was short by 27 days of the minimum period of ten years' service qualifying for pension. His pension papers were resubmitted to the CMP, Lahore along-with the certificate of condonation of the deficient period of 27 days made by the commandant, COD, Karachi. The papers were again returned on the ground that the appellant was not entitled to any pensionary benefits as he had not put in the requisite minimum service of ten years qualifying for pension. The appellant made an application to the Military Accountant‑General, GHQ, Rawalpindi but did not succeed and he was informed vide letter dated 15‑5‑1990 that he did not qualify for getting pension. He then preferred this appeal on 19‑8‑1990.

2. The claim of the appellant for pensionary benefits is based on the provisions of Article 423 of CSR, which is reproduced below: "423. [Substituted by M.F. Notification of F.4(4) Rs(68), dated the 30‑1 1971].‑‑‑(1) A deficiency o a period not exceeding six months in the qualifying service of an officer shall be deemed to have been condoned automatically. (2) The authority competent to sanction pension may condone a deficiency of more than six months but less than a year subject to the following conditions, namely:‑‑ (a) The officer has died while in service, or has retired under circumstances beyond his control such as or invalidation or the abolition of his post, and would have completed another year of service if he had not died or retired. (b) The service rendered by him had been meritorious "Government Orders. See Serial No. 38, Chapter II in Section VI The contention of the respondents, on the other side, is that the grant pension is regulated under Article 474‑B (b) of CSR, but that provision is n, apt to the question involved herein as that relates to the calculation of the pension. During the course of arguments, reference was made to the following correspondence:‑‑

1. Ministry of Finance (Military) u/o No. 867/R‑III/FAMF/72 dated 21‑2‑1972. (Page 21 of the written objections).

2. Government of Pakistan, Finance Division (Regulation Wing‑II) Islamabad O.M. No. F‑12(8)‑Reg(6)/81, dated 7‑8‑1985. (Page 18 of the written objections).

3. M.A.G. Rawalpindi Letter No. AT/PEN/3135‑VII, dated 1‑2‑198‑7.(Page 19 of the written objections). As, mentioned above, the compulsory retirement of the appellant became effective from 16‑2‑1982 and the question of determination of his pension an benefits is to be determined on the basis of the orders which were subsisting that time. As such, only the document at S. No. 1 above, was relevant for the purpose of his case, while the other orders were issued later. The document at S. No. 1. is reproduced below:‑.. MINISTRY OF FINANCE (MILITARY) R‑III SECTION RAWALPINDI SUBJECT: CONDONATION IN DEFICIENCY IN SERVICE JCOs/ORs: M.A.G. May please refer to his U.O. No. AT/ Pcii/3135‑B, dated 22‑11‑1971 on the subject noted above. (2) Under para. 7(a) NPC‑1968 all deficiencies of six months or less un-qualifying service should be deemed to have been condoned automatically. It was not the intention to allow the concession of automatic condonation only to those who have already completed 15 years or more qualifying service. No Government sanction for condonation of deficiencies up to 6 months is required if as a result of such condonation an individual is otherwise entitled to pension. (3) M.A.G. is accordingly requested to issue suitable instructions to the respective accounts authorities under intimation to this Ministry. (Sd.) S.M. HANIF D.F.A U.O. No. 867/R‑III/FAMF/72, dated 21‑2‑1972." The Office Memorandum at S.No. 2 has reference to Finance Division O.M. No. F.12(8)‑Reg.(6)/81, dated 13‑11‑1982, where under it was clarified that the benefit of condonation of deficiency in qualifying service of a Government servant in terms of clauses (1) and (2) of Article 423‑CSR would not be admissible in a case where service rendered by a Government servant does not by itself qualify for pension or gratuity under the rules:. The same view was reiterated under the O.M. dated 7‑8‑1985 (referred to at: S.No. 2 above). Same view was amplified in the MAG letter dated 1‑2‑1987 (mentioned at S.No. 3 above). The provision of condonation of deficiency in the period qualifying for pension presupposes a condition that the claimant is entitled to pension but for the deficiency in the minimum period of the qualifying service but there cannot be any condonation in the case where the claimant is not otherwise entitled to get the pension. In other words, the condonation in length of service is not admissible in the case where the deficient service does not count for pension even otherwise. Since the appellant was not retired from service in normal circumstances as he was retired from service as a matter of punishment and he had not put in the requisite minimum service qualifying for pension, he could not derive the benefit of condonation for becoming eligible to earn pension. Thus, he was rightly denied condonation of deficiency in his service and he has no case to succeed. The precedents of cases cited by him had distinguishing features as stated in the written objections.

3. For the reasons recorded above, the appeal is dismissed as being without merit. No order is made for costs. A.A./787/Sr.F Appeal dismissed.