1973 PLP 75 (PLC)

Representation

• Yahya Bakhtiar for Petitioner.
• Advocate-General, Baluchistan for Respondents.
• Dates of hearings 9th November 1971 and 11th January 1972.
• 2. As the petitioner claims to have submitted his application to retire under a misapprehension, I have to point out that the respondents have not cared to controvert his express averment that he had been misguided by the Doctor who had examined him in Turbat. The learned Advocate-General however criticised the petitioner for not having applied for medical examination and treatment by an Eye Specialist before submitting his application to retire, and he also pointed out that in that application the petitioner bad not stated that he had received an injury to his eye but had merely stated that his eyesight had become too weak to enable him to perform his duties satisfactorily. It is true that the petitioner submitted his application to retire rather hastily and he has not clearly stated in his application for leave dated 6-5-1969 that he bad been injured in an accident. However he has referred to defects in his eye in his application and it is obvious that medical facilities in Quetta are different from those in the outlying areas of the Province. Therefore I have no doubt that the petitioner had submitted his application for leave to retire under a genuine misapprehension and wrong medical advice. As he was entitled, under the second respondent's order of 14-10-1964, to remain in service until he reached the age of superannuation, prima facie it seems tome that he was entitled to with draw his leave application in the absence of rules to the contrary, and as the contention of the respondents is that rules to the contrary were contained in paragraph 8 of the Memorandum of the Finance Department dated 27th April 1967, it is necessary to examine this paragraph.
• The respondents rely on the provision in this paragraph that a retirement once submitted was final and could not be withdrawn thereafter. But as the petitioner was otherwise entitled to remain in service until 14-2-1974, the learned Advocate-General very fairly conceded that the Memorandum or at least para graph 8 could support his argument only if it was a rule. Thus the real point for determination in this petition is whether this Memorandum or at least paragraph 8 is fit to be treated as a rule. The question when office memoranda can be treated as rules was considered by the Supreme Court in Pakistan v. Abdul Hamid (P L D 1901 S C 105) and I may quote here with advantage the following observations of Cornelius, C. J. at page 110:-
• The Memorandum on which the learned Advocate-General relied has to be considered in the light of these, observation. The fact that the Memorandum is not described as a rule is therefore immaterial, and the learned Advocate-General drew our attention to the fact that the provisions of paragraph 8 and of the Memorandum generally were intended to apply to all cases, there fore his submission was that the Memorandum satisfied the test laid down by Cornelius, C. J. in the observations cites. On the other hand, Mr. Yahya Bakhtiar, learned counsel for the petitioner, drew our attention to paragraph 1 and paragraph 16 of the Memorandum and submitted that the Memorandum did not satisfy the teat laid down by Cornelius, C. J. in the case cited. I may explain here that paragraph 1 states that the Government had "under consideration the recommendations of the Pay and Services Commission. The Governor of West Pakistan has now been pleased to take the following decisions, which shall take effect on the/from let July 1966. Then paragraph 16 states: "Necessary amendments to the rules shall be made in duo course."
• 4. The opening paragraph of the Memorandum read with paragraph 16 lends strong support to Mr. Bakhtiar's submission that the Memorandum expressed only the tentative views of the Government therefore I do not think it satisfies the test of finality laid down in the observations quoted. Additionally, as the learned Advocate. General admitted that the Memorandum had not been published in the Gazette was enquired whether it had ever been brought to the notice of the petitioner and members of the Police Force. The Advocate-General was not able to answer our enquiry, and although the respondents have relied in their parawise comments on this Memorandum they have not stated that it was brought to the notice of the petitioner. In these cir cumstances It Is clear that the Memorandum was only circulated to the persons to whom it was addressed. This is another strong piece of evidence to indicate that the Memorandum was not in tended to have the force of a rule and that would be for the vary Simple reason that paragraph 16 itself states that rules were to be framed to give effect to the recommendations of the Pay and Services Commission.
• This Circular to inconsistent with paragraph 8 of the Memorandum. In view of this Circular, it is clear that an application by a Government servant to retire cannot take effect automati cally and is necessarily subject to the Government's right to reject it. Thus, as rightly submitted by Mr. Yahya Bakhtiar, this Cir cular Is Inconsistent with paragraph 8 of the Memorandum. The learned Advocate-General was aware of this difficulty. He therefore submitted that, as the petitioner had completed 25 years' service the Circular was nit applicable to tits case. But the question is not whether it is applicable to the petitioner's case but whether, in view of the circular, paragraph 8 was intended to have the force of a rule. If a retirement takes effect automatically on the submission of an application to retire, it is clear that the rights of the Government would by prejudiced, and as the Memorandum does not contain even a reference to this aspect of the case. It is obviously incomplete and therefore, in -my humble opinion, this is another important circumstance, which leads to the conclusion that the Memorandum was not even intended to have the force of a rule.
• 6. According to the observations of Cornelius, C. J. which I have cited, another circumstance which is relevant to the question whether office Memoranda can be treated as rules is whether they have been strictly complied with to every case. Mr. Yahya Bakhtiar therefore stated that the provisions of paragraph 8 had not been followed in the Province, and in support of this plea, he referred us to two specific cases of officers who had been allowed to withdraw their applications for leave to retire: Sardar Inayatullah Khan Jogezal and Mr. Jehangir Shah Jogezal. Learn ed counsel further submitted that the clear allegations of the petitioner in this respect in the petition had neither been denied in the parawise comments of the respondents nor in any counter affidavit, therefore they had to be accepted as correct. It is true that the respondents have not denied the specific averments of the petitioner that Sardar Inayatullah Khan Jogezal and Mr. Jehangir Shah Jogezal had been allowed to withdraw their applications for leave to retire; but in view of the importance of the question, we gave time to the learned Advocate-General to obtain instructions on the correctness of the petitioner's allegations and I will now consider the learned Advocate-General's explanation.
• 7. Sardar Inayatullah. Khan had applied for withdrawal of his application for leave to retire before the application had been granted therefore, according to the, learned Advocate-General his case was distinguishable. But as according to paragraph 8, an appli cation for leave to retire "once submitted shall be final and shall not be allowed to be modified or withdrawn" the fact that Sardar Inayatullah Khan's application had not been accepted when he applied for its withdrawal is immaterial. But as Sardar Inayatullah Khan's case was before the issue of the Memorandum under consideration, the petitioner's ease, except that is shows that officers were permitted to withdraw their retirement applications, and this practice is also supported by a letter of the Additional Secretary, Finance Department, West Pakistan to all Heads of Departments tend dated 13th April 1967 (Annexure L to the petition). Mr. Jehangir Shah however was allowed to with draw his application for leave to retire in 1968. As this was long after the issue of the Memorandum of 27th April 1967, this case clearly helps the plea of the petitioner. The learned Advocate General however submitted that it did not help the petitioner's case because of the ground on which Mr. Jehangir Shah had been allowed to withdraw his retirement application. Apparently. Mr. Jehangir Shah had applied for leave to retire because he had been demoted. But when the order for demotion was set aside, he withdrew his retirement application, and as the Selection Board supported his claim, the learned Advocate-General submitted that his case was distinguishable. I do not see any distinction bet ween Mr. Jehangir Shah's case and that of the petitioner. Like Mr. Jehangir Shah, the petitioner wants to withdraw his application for retirement on the ground that he had applied to retire under a misapprehension, and merely because Mr. Jehangir Shah's case was referred to the Selection Board, I do not think the case is distinguishable. After all if paragraph 8 of the Memorandum of 27th April 1967 is a rule, than an application to retire takes effect as soon as it is submitted, so that there can be no question of referring it to any Section Board therefore Mr. Jehangir Shah's case establishes the v petitioner's contention that paragraph 8 of the Memorandum was not always being enforced, and therefore it does not satisfy one of the tests laid down by Cornelius, C. J. in the judgment cited. Additionally, this would suggest that as the Memorandum was not comprehensive, on this ground also, it was not intended to operate as a rule.
• 8. In all the circumstances discussed, I am satisfied that this Memorandum is not a rule, and therefore the respondents are 1"' not entitled to rely on it. On the other hand, as the Additional Finance Secretary's letter of 13th April 1967 shows, Government servants were permitted to withdraw their applications for retire ment, and as the petitioner sought to withdraw his application because he had submitted it under a genuine misapprehension caused by wrong medical advice, I am of opinion that he was entitled to do so. The learned Advocate-General then feebly sub mitted that the petitioner could not be allowed to withdraw his retirement application because he had been receiving pension from the respondents. But as the petitioner was always challenging the second respondent's order of 21-5-1969 as illegal, the receipt of pension by him cannot deprive him of his rights. Accordingly, it is clear that the petitioner wais entitled to withdraw his retire ment application and as his claim has been illegally rejected, he remains in service. I therefore set aside the second respondent's order of 21-5-1969 and 27-3-1970 as illegal and without lawful authority. The petition is thus allowed but I leave the parties to bear their own costs.

Headnotes / Summary

Judgment & Decree