1988 PLP (C (PLC(CS))

SYED ALLY MADAD SHAH (CHAIRMAN).‑‑Appellant Mr. Bashir Ahmad served in the Ministry of Food & Agriculture from 11‑10‑1955 to 26‑6‑1958. After having resigned from the Ministry of Food & Agriculture, he joined service with the Water and Power Development Authority (hereinafter referred to as the WAPDA), with effect from 27‑6‑1958. In the year 1979, he sought premature retirement from the WAPDA and it was allowed to him on counting the service he had rendered with the Ministry of Food & Agriculture. He proceeded on leave preparatory to retirement with effect from 4‑11‑1979 and finally retired on 3‑11‑1980. His pension papers were processed by the Director (B&C), WAPDA and they were forwarded to the Director (Pension), WAPDA, under letter dated 13‑10‑1980. Tentatively, a sum of Rs.59,410.30 was worked out to be recovered from the appellant as contributory charges for the period of his service with the Ministry of Food & Agriculture, and those charges were finally determined to be Rs.63,

330. The appellant made representation on 14‑2‑1980 against the recovery of the contributory charges, while relying on the provisions of Article 418(a) of the Civil Service Regulations (hereinafter referred to as the CSR). Simultaneously, he made separate representation that the matter may be taken up with the Ministry of Food s Agriculture for accepting liability of the pensionary benefits to the appellant for the period he had served with that Ministry. However, the appellant was allowed to draw pension for the full service including the period he had served with the Federal Government, but a sum of Rs.63,330 was deducted from his pensionary benefits. The appellant's representation for pension contribution by the Federal Government did not succeed and he was communicated such decision by letter dated 27‑6‑1984. The appellant made another representation for reconsideration of the issue but that too was rejected vide order dated 3‑7‑1985 passed by the Secretary, Ministry of Water and Power, Government of Pakistan, Islamabad (respondent No.2), which was communicated to the appellant by the Manager Finance (Coordination), WAPDA, Lahore, (respondent No.3), by letter dated 11‑8‑1985. The appellant thereafter filed this appeal on 12‑9‑1985, praying that the orders dated 13‑10‑1984, 27‑6‑1984 and 11‑8‑1985 may be set aside as being illegal, void, and without lawful authority on various grounds.

2. The main grounds agitated by the appellant are that his service with the WAPDA was in continuation of the service he had rendeed with the Federal Government and he was, therefore, entitled to the full pensionary benefits for the entire service put in with the Federal Government and the WAPDA, and the pensionary charges for the period of his service with the Federal Government, were to be borne by the Federal Government and reliance has been placed on the Government orders/instructions contained in the Government letter dated 5‑5‑1979. Reliance has also been placed on the provisions of Article 418‑CSR.

3. The respondents have opposed the appeal contending that the appellant had sought employment with the WAPDA after getting himself relieved from the Federal Government by submitting resignation application and, therefore, the Federal Government was not liable to make any contribution to the pensionary benefits admissible to him. It has been urged that the appellant's case was regulated by the orders/ instructions contained in the Government of Pakistan, Ministry of Finance Office Memo. dated 31‑12‑1981.

4. The question involved in this appeal is whether the appellant was entitled to the pensionary benefits for the period he had served with the Federal Government, and if so, who had to bear them. The appellant entered service in the Ministry of Food and Agriculture, Government of Pakistan, on 11‑10‑1951. He tendered resignation which was accepted on 26‑6‑1958 and he sought employment with the WAPDA with effect from 27‑6‑1958. He sought premature retirement which was sanctioned to him by the office order dated 4‑11‑1979, reproduced hereinbelow:‑ 69911/212 601‑WAPDA House, Lahore. No. SO(Admn)1(443)PF/52354‑58 4‑11‑1979. Reference his application dated 19‑9‑1979, received with Central Contracts Cell diary No.2920 dated 23‑9‑1979. After having completed qualifying service for 25 years as a result of reckoning of service rendered under the Ministry of Food and Agriculture, Government of Pakistan from 11‑10‑1951 to 26‑6‑1958 vide Office Order No.SE (Admn)1(443)PF/29866‑71 dated 28/30‑6‑1979, Mr. Bashir Ahmad, Finance Officer, Central Contracts Cell is hereby allowed leave preparatory to retirement on last pay drawn for 365 days with effect from 5‑11‑1979 upto 3‑11‑1980. On the expiry of leave, Mr. Bashir Ahmad will stand retired from the service of WAPDA with effect from 4‑11‑1980 (F.N). (Sd.) Muhammad Akbar Sumra, Section Officer (Admn) for Secretary" The earlier order dated 28/30‑6‑1979, referred to in the aforesaid letter, read as under:‑ "No.SO(Admn)1(443)PF/29866‑7i, Dated 28/30‑6‑1979. Subject:‑ COMPUTATION OF SERVICE RENDERED UNDER THE FEDERAL GOVERNMENT FOR THE PURPOSE OF GRANT OF PENSION. In pursuance of para 2 of Office Order No.P.O. B&F/37‑2/ Vol‑III/10056‑150 dated 28‑9‑1978 on the subject noted above, the Authority has decided to count the service rendered by Mr. Bashir Ahmad, Finance Officer, Central Contracts Cell, WAPDA, Lahore, in the Ministry of Food and Agriculture, Government of Pakistan from 11‑10‑1951 to 26‑6‑1958 before joining WAPDA on 27‑6‑1958 for the purpose of pension under the WAPDA Pension Rules, 1977.

2. This counting of previous service is subject to the payment of pensionary charges, to be decided later in the light of the orders as may be in force at the time of retirement etc. of Mr. Bashir Ahmed. (Sd.) Brig (Retd.) Muhammad Asghar Secretary, WAPDA." The pension papers of the appellant were prepared in the office of the Director (B&C), WAPDA, and they were forwarded to the Director (Insurance), WAPDA, under letter dated 13‑10‑1980, wherein the following note was appended: "You are, however, requested to please recover a sum of Rs.59,418.30 (subject to correctness after necessary verification) towards pensionary charges of his pre‑WAPDA service from the amount of his gratuity viz: Rs.1,18,579.55 (subject to correctness after necessary verification) by commuting 50% of his total pension in pursuance of Authority's Office Order No. SO (Admn) 1(443) P. 8./0866‑71, dated 28/30‑6‑1979. Please acknowledge receipt. (Sd.) Mian Abdul Latif Section Officer (ARD) for Director, Budget & Coord:" The appellant's contention is that his service with the WAPDA was in continuation of his previous service with the Federal Government and there was no break in his service and‑ his continuity in service was reckoned by the WAPDA vide order dated 28/30‑6‑1979, reproduced above, and reliance has been placed on the provisions of Art. 418 CSR, reproduced hereinbelow:‑ "418(a) Resignation of the public service, or dismissal or removal from it for misconduct, insolvency, inefficiency not due to age, or failure to pass .a prescribed examination entails forfeiture of past service. (b) Resignation of an appointment to take up another appointment, service in which counts, is not a resignation of the public service." It seems that it was in the context of the above provisions of Art 418‑CSR that the appellant was given benefit of his previous service in computation of the service qualifying for pension and he was permitted to retire from service on completing 25 years of service qualifying for pension. However, the question arises as to who had to contribute towards the pensionary benefits for the service rendered with the Federal Government. The Federal Government declined to contribute to the pensionary benefits claimed by the appellant on the basis of Office Memorandum dated 31 December, 1981 as amended by Office Memo. dated 16th November, 1982. Its amended text reads as under: ‑ No.F.5(2)‑Reg.7/81‑1352 Government of Pakistan Finance Division (Regulation Wing II) Islamabad, the 31st December, 1981; OFFICE MEMORANDUM Subject: PAYMENT OF PENSION CONTRIBUTIONS FOR SERVICE RENDERED TO THE GOVERNMENT BY EMPLOYEES OF AUTONOMOUS/SEMI‑ AUTONOMOUS ORGANIZATIONS The undersigned is directed to state that in the case of Government servants sent on foreign service to autonomous/ semi‑autonomous organizations, pension contributions at the prescribed rates are recovered from those organisations for the period of their deputation. On the other hand, there have been cases in which the Government had to acquire the services of certain employees of autonomous/semi‑autonomous organizations for specified periods. There have also been cases where the autonomous/semi‑autonomous organizations had to acquire the services of some experienced hands from the Government, who later on were advised to resign from the government service in order to become regular employees of the borrowing organizations concerned. The question as to how the period of service rendered under the Government in such cases should be treated for the purposes of grant of pension by the autonomous organisations concerned has teen under the consideration of the Government for some time past. It has now been decided that such cases 'should be dealt with in the following manner:‑ (a) In the case of an employee of an autonomous/semi‑autonomous organisation, who renders service in a Government Department the concerned department may make payment of pension contributions to the autonomous organisation concerned at the prescribed rates, subject to the following conditions:‑ (i) The appointment of the individual concerned in the Government department was made with the consent of the head of the autonomous organisation and with the approval of the competent authority in the Government department concerned in accordance with the normal procedure for making such appointments. (ii) The regular employees of the autonomous organisation concerned are entitled, under specific rules of the organisation for the purpose to the same benefits of pension as are admissible to the civil servants of the Federal Government, and the employee concerned had rendered qualifying service for pension in his parent organization before his appointment in the Government department concerned. (iii) The autonomous organisation concerned agrees to count the service of the individual concerned under the Government for the purpose of pension. (b) In the case of a Government servant who resigns from the public service to take up an appointment in an autonomous/ semi‑autonomous organisation as its regular employee, service in which counts for pension under the rules of that organisation, his resignation may not be treated as resignation of the public service, in terms of Article 418 (b) CSR, and the autonomous organisation concerned may count Government service of such an employee for the purpose of pension and accept the full pensionary liability, the Government department concerned ray, however, pay pension contributions to the organisation concerned at the prescribed rates in respect of the Government service rendered by the said employee. This will be subject to the following conditions:‑ (i) The application for appointment to the relevant post in the autonomous organisation concerned was made by the Government servant concerned through proper channel, or it was with the consent of the competent authority in the Government department concerned that the new appointment in the autonomous organisation concerned was taken up. (ii) The Government servant concerned had, while tendering resignation from the public service, stated clearly that he was doing so to take up another appointment in the autonomous organisation concerned. This should be supported by his letter of resignation and its acceptance by the competent authority. (iii) The service rendered by the Government servant concerned in the previous Government department was pensionable. (c) Pension contributions will be made at the rate prescribed in this Division's Office Memorandum No.F.5(5)‑Reg.7/79‑1407, dated 15‑12‑1981.

2. These orders will be effective‑ from the date of issue. They will also cover, subject to the conditions specified in para 1 above, past cases of those employees of autonomous/semi‑autonomous organisations who had rendered service in a Government department and have not proceeded on retirement before the date of issue of this O.M. (Sd.) (Alt Ahmad) Deputy Secretary." The appellant's contention is that his case was not governed by the aforesaid Office Memo. dated 31st December, 1981, as he had retired with effect from 4‑11‑1980 and the said Office Memo. did not have retrospective effect, and his case was governed by the orders/ instructions contained in the Government advice dated 5‑5‑1979. No authentic copy of the Government advice relied upon by the appellant has been filed. An unauthenticated copy thereof found on the record reads as under:‑ Fin. Dn. (Regulations Wing‑II) WAPDA may make payment of pensions to its employees regardless of whether they were provincial employees transferred en‑bloc to WAPDA or were employees of federal and provincial Governments or of other authorities who Joined WAPDA after resigning their previous service without any break. Necessary recoveries from the federal and provincial Governments and other authorities could be made in due course. Broadly we visualize recoveries of the share of federal and provincial Governments and other authorities in each; detailed instructions in this respect will follow. (Sd.) B. Zaman, Joint Secretary 5‑5‑1979 Member Finance (Mr. Nuzhat Hussain) WAPDA FD U.0. No.757‑JS(R‑II)/79 dated 5‑5‑1979. It would appear that the aforesaid advice did not carry policy decision of the Government but it was just an advice by the Joint Secretary to the Member Finance, WAPDA, in the course of exchange of correspondence on the subject. The final decision of the Government was communicated to the Member Finance. WAPDA, under letter dated 6th April, 1980, issued from the Finance Division, Government of Pakistan that the Federal Government would not bear pensionary liability for any employee for the period he was in service of Federal Government and had resigned to join WAPDA, and this decision was taken before the appellant had actually retired. The policy decision by the Government stands reflected in the Office Memorandum dated 31‑12‑1981, as amended. It was under this Office Memorandum that certain pensionary benefits of service with the Government were allowed to the civil servants who had resigned from the Government service and joined any autonomous/semi‑autonomous organisation without break, and with the consent of the competent authority in the Government department or he had clearly disclosed in the resignation application that he was doing so in order to take up an appointment in an autonomous organisation. However, the appellant could not derive benefit of this concession as he had not disclosed in his resignation application that he was joining the service with the WAPDA, nor had he obtained consent of the competent authority for leaving the Government service and joining WAPDA service. Moreover, the provisions of the aforesaid Office Memorandum did not extend to the employees who had retired before the date of its issuance viz. 31‑12‑1981 and the appellant had retired from service earlier than that date. The provisions contained in Article 418‑CSR provide the benefit of counting of the previous service but they do not ensure entitlement of the pensionary benefits from the previous employer. The appellant had sought employment with the WAPDA without the express or implied consent of the competent authority in the Government and he had opted to be governed by the WAPDA Employees Pension/ Gratuity Rules, 1977 and given undertaking envisaged under the WAPDA Office Order dated 28‑9‑1978 for making payment of proportionate pensionary charges for the period of service he had rendered under the Federal Government. The Federal Government was not liable, in any case, to have contributed towards his pensionary benefits. The. matter rests between the appellant and the WAPDA and he may choose to forego the pensionary benefits for the period of his service with the Federal Government as indicated by him in his application dated 14‑12‑1980 addressed to_ the Director (Insurance and Pension), WAPDA, Lahore and escape payment of pensionary charges or abide by the decision of the WAPDA to bear his pensionary charges for the period of the service he had rendered with the Federal Government and draw full pensionary benefits. It may be mentioned in this context that the appellant was required by the WAPDA to pay the pension contributory charges. The learned counsel for the appellant contended that the appellant was not liable to pay pension contributory charges but. he could, at the most, be required to pay pension contribution and he was prepared to pay the latter which could be lower in quantum. The question of charging of pension contribution or pension contributory charges was referred to the Government of Pakistan, Ministry of Water and Power, by the Director Finance (R&I), WAPDA, under letter dated 18‑4‑1982 for clarification and the reply conveyed to him under letter dated 7‑1‑'Z‑1982 from the Ministry of Water and Power was that the answer was contained in Finance Division Office Memorandum No. F.5(8)‑8‑.7%81‑1168, dated 16th November, 1982, wherein it was decided by the Government that pension contributions were to be made tit the rate prescribed in the Finance Division Office Memorandum No.F.5(5)‑Reg.7/79‑1407, dated 15‑12‑1981. Accordingly, the appellant will be liable to pay pension contribution as indicated above if he chooses to draw full pensionary benefits for the total service qualifying for pension including that cendered under the Federal Government.

5. As discussed above, the appellant does not succeed in the appeal and it is dismissed with no order as to costs with the observations made in the preceding paragraph. S.Q./406/Sr.F Appeal dismissed