1984 PLP (C (PLC)

Hassan Ahmad Kanwar for Appellant. A. G. Humayun, District Attorney for Respondents. S. ABDUL JABBAR KHAN (CHAIRMAN).‑

Appellant has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974 in which he has impleaded respondents Nos. 1, 2 and 3 as mentioned above.

2. By virtue of this appeal he has prayed that the impugned order, dated 19th August, 1983 passed by respondent No. 3 be set aside and be may be allowed to continue in service.

3. Brief facts of the case are that the appellant was working as Forest Guard in the Department of Forestry when he applied for L. P. R. vide his application, dated 16th March, 1982 in which he stated that due to his personal circumstances and ill‑health, he was not in a position to continue any longer in service and applied for L. P. R. which was due to him. After two days of the said request the competent authority allowed him to proceed on L. P. R. w.e.f. 21st March, 1983. Before the expiry of the said L. P. R. I.e. seven days earlier to it he moved an application in which he requested that as his family circumstances have changed and his health has improved he may be allowed to continue in service. This request of the applicant was accepted vide order, dated 27th April, 1983 by the Conservator of Forests (appellate authority) and he was allowed to resume service. However, after 12 days another order was passed by the same authority, dated 9th May, 1983 in which he observed that as he was not competent to pass the earlier order by which he allowed the appellant to resume service, therefore, he was pleased to withdraw the same. The appellant aggrieved against the said order made a representation to the next higher authority which was rejected vide order, dated 19th June, 1983 on the plea that judgment of Noor Ahmad on which appellant had relied was not applicable in his case. It was further observed that appellant had himself asked for retirement, therefore, he was not entitled to withdraw the same. Hence this appeal.

4. We have heard the learned counsel for the appellant as well as the learned District Attorney assisted by the representative of the Department and have also perused our judgments appended with the appeal i.e. Noor Ahmad v. Divisional Forest Officer, Faisalabad and Muhammad Iqbal v. Deputy Director Food, Rawalpindi.

5. The learned counsel for the appellant had submitted that this is an established fact that the appellant withdrew his request for retirement seven days before he stood retired before completion of his L. P. R. He further stated that L. P. R. was indispensable part of service of the appellant, therefore, in all circumstances he will be considered to be in service at the time when he made request for being allowed to rejoin service. He has further argued that the appellant request was liable to be accepted by the respondent in view of the judgment delivered in cases of Noor Ahmad and Muhammad Iqbal so relied upon by him.

6. On the other hand the learned District has submitted that these two judgments are somewhat different from the appellant's case as in the present case the appellant stood retired when his request was so acceded to by the Conservator of Forest. According to him once a person stood completely retired he could not be allowed to rejoin service. He has relied on the case of Shamoon Bahadar (P L D 1979 S C 835).

7. We have given our anxious thought to the arguments advanced by the parties and have perused the judgment relled upon by the learned District Attorney as well as the learned counsel for the appellant in cases of Noor Ahmad, Muhammad Iqbal and Nooruz Zaman. It may be mentioned here that while delivering judgment in Nooruz Zaman case we have also discussed the judgment of Shamoon Bahadar.

8. The fact of the matter is that the appellant had made an applica tion seven days earlier before the completion of his L. P. R. It is also borne out from the record that his request was accepted by the Conservator of Forest and he was allowed to join the service. It was only when said Conservator of Forest changed his mind and decided to withdraw his earlier order that the appellant was forced to make representation before next higher authority and when the same was rejected then approached this Tribunal. Law on this point is settled that L. P. R. was always indispensable part of service and a person while on L. P. R. would always be treated as in service for all purposes. In Abdul Nabi v. Government of West Pakistan (P L D 1973 Quetta 4) learned judges of the said Court were confronted with similar situation and were pleased to hold that a civil servant was fully entitled to change his mind while in service to withdraw the request for the L. P. R. or for his retirement. In Jai Ram v. Union of India (F B) (AIR 1954 S C 584) the Lordship of the Supreme Court have discussed in detail the entire case law applicable and came to a positive conclusion that a civil servant has right to withdraw his request for retirement and was liable to continue as such. We have fully taken not of all these judgments including the detailed judgment delivered by us in Muhammad Iqbal's case which have been placed on record by the learned counsel for the appellant and find no reason to deviate from the same. The main argument of learned District Attorney is based on the ground that as the appellant stood retired on the date when his request was so acceded to by the Conservator of Forest, therefore, he could not be permitted to withdraw his request. This may be so but the fact remains that the crucial point for determination for us would be, as to whether a civil servant could withdraw his request for retirement when he was still on L. F. R. In the present case be find that there is no dispute about the fact that the appellant did make a request for withdrawal of his earlier prayer for retirement when he was still on L. P. R. In view of these circumstances it would not be the date on which his request was acceded to but the date on which he made such request before the competent authority. In this manner we have no hesitation to repell the argument of the learned District Attorney that the appellant was not permitted to recall his retirement as he stood retired on the date when such request was accepted by the Conservator of Forest.

9. The appellant in this case has rendered 33 years service to the Department and would retire in the year 1982 and thus has clear 10 years of service before him. We also cannot remain oblivious to the fact that a person having such long experience and good record should be allowed to continue in service to serve the Department. In this way the department will be a gainer to utilize the service of a person with good record and long experience behind him.

10. We have once decided this issue in Muhammad Iqbal's case, which will be on all fours with the present case and same has attained finality, as respondents did not choose to challenge the same before Supreme Court of Pakistan. We are bound to follow our own judgment, which is based on as well as Jai Ram v. Union of India.

11. In view of above, we accept the appeal and set aside the impugned order of retirement passed by the competent authority and direct that the appellant will continue in service from the date he made his request for withdrawal of earlier prayer which he was competent to do, under the law. Howsoever, there are no orders as to costs. M. Y. M. Appeal accepted.