1981 PLP (C (PLC(CS))

S. ABDUL JABBAR (CHAIRMAN).‑In this case the appellant was dismissed from service under M. L. Regulation No. 58 with effect from 27‑2‑1970 by the order of President of Pakistan dated 16‑3‑1970. His Appeal No. 667174 was accepted by this Tribunal and his dismissed was set aside by order dated With regard to the 13‑1‑1930. arrears of pay the Tribunal observed as under: ‑ "Since after the dismissal from service, the appellants had been a practising lawyer therefore he had undertaken not to claim any salary from the Government for the period he remained out of service. We accordingly order that the appellant will not get any salary for the period he remained out of service." In pursuance to the aforesaid order the appellant was re‑instated into service by the Government of Punjab vide order dated 17‑2‑1980. The reinstatement order also observed that under his own undertaking be will not be entitled any salary or other remuneration from Government for the period he remained out of service. 2. On 25‑5‑1980 the appellant received the following communication from the Government of Punjab: ‑ "Your appeal was decided on merits by the Punjab Service Tribunal and there was no scope for obtaining your undertaking to forego consequential benefits of arrears of salary. The undertaking has created another problem for you inasmuch as the period of absence from duty will not count as service qualifying for pension. You may, therefore, seek revision of the decision from the Tribunal." The communication was presumably based upon the following text of rule 2.1 of the West Pakistan Service Pension Rules, 1963: ‑ "2.1 Conditions of qualifications.‑‑The service of a Government Servant does not qualify for pension unless it conforms to the follow ing three conditions : ‑ First.‑The service must be under Government. Second.‑The service must not be non‑pensionable. Third.‑The service must be paid by Government from the Provincial Consolidated Fund." 3. The appellant felt aggrieved by the observation that the period of absence from duty will not count as service qualifying for pension and he was advised to seek clarification from this Tribunal. Hence the appellant has filed this appeal before us on 14‑6‑1980. 4. The learned counsel for the appellant raised the following issues: ‑ That the appellant renounced his claim to the arrears of pay in view of the following observation by the Supreme Court of Pakistan in a reported case viz. P L D 1970 S C 415 relevant at page 438): "If during this period he has accepted other employment or engaged in any other profitable business then any amount earned by way of salary for such employment or as profit by his business of course halve to be not of against the salary due for reasons. Firstly, because the Government servant cannot within the terms of the Government serve any other master or engaged in any business and, secondly because of general principles that person cannot be allowed the double benefit." According to the appellant though entitled to the arrears of pay he did not claim the same as a set‑off against income earned by him as a member of the legal profession. 'Thus the concession made by him could be pressed against the appellant only to the extent it was intended to be so. It is submitted that he never renounced his entitlement to the arrears of salary but only conceded the same to be set off. That provisions of the West Pakistan Civil Servants Pension Rules, 1963 (Printed at P L D 1964 West Pakistan Statutes 55) including rule 2.1 did not disentitle the appellant to get the pension. It was submitted that possibly in the case of the appellant "'third clause" only could be of any relevance. The intention was that pay of the incumbent entitled to the pension should be payable out of the Provincial Consolidated Fund. In this case there was no, denial either in the written statement or during the course of hearing that the salary of the appellant was payable out of the Provincial Consoli dated Fund. Thus the word "paid" used in this clause has to be interpreted to mean as "payable". The reading of another rule 2.9 of the same rules related to deputation made it plainly clear. In the aforesaid rule 2.9 the persons serving in other Government Departments or Organizations though not "actually paid" out of the Provincial Consolidated Fund for the period they remained on deputation were entitled to count their service for pension as if the time spent on deputation was the service under' the Government. As such the intention of the framers of the rule was sufficiently clear that actual payment of salary out of the Provincial Consolidated Fund was not a sine qua non in all eventualities under the Rules. In any case in this case the appellant has to be deemed to have been paid out of the Provincial Consolidated Fund but the payment was only set off against the income earned by him in the legal profession as per concession made by him in terms of Supreme Court Judgment above. 4. After bearing both the parties, we are inclined to accept the contention of the appellant. From the facts narrated above the entitlement of the incumbent for the arrears of salary was never denied. The appellant had only conceded that the arrears of salary due to him may be adjusted or set off against his income from the legal profession as was laid down by the Supreme Court of Pakistan in P L D 1970 S C 415. Thus the appellant never renounced his entitlement to the arrears of salary. As such the appellant should be deemed to have been paid out of the Provincial consolidated fund. Thus none of the provisions of the Pension Rules, 1963 stood in his way to have his service qualified for pension for the period he remained out of service. The mere fact that the appellant had not been actually paid his salary out of the consolidated funds during the period in dispute, could not disqualify his service for pension. We are therefore of the opinion that the admission of the appellant was only to the extent that he will not claim the arrears of salary to which he was otherwise entitled and the same had to be treated as paid under rule 2.1. of the West Pakistan Pension Rules, 1963. We are also inclined to accept the contention that the word "paid used in clause (3) of rule 2.1 has to be construed to mean as "payable". The implication is quite clear from rule 2.9 of the aforesaid Rules where the service though not actually' paid out of the Provincial Consolidated fund did qualify for pension which implied that more entitlement of the appellant to be treated in Government service was sufficient to qualify the service for pension. In other words the "payability" of salary rather than the actual payment was the true test to qualify the service for pension. In fact the Department has produced nothing to hold to the contrary. We accordingly accept this appeal and direct that the appellant's service from 26‑2‑1970 the date of his re‑instatement will qualify for pension notwithstanding the fact that he had not actually been paid any salary out of the Provincial Consolidated Fund.