2017 PLP (C (PLC(CS))

AMEERULLAH KHAN MUGHAL, SENIOR MEMBER.

This appeal has been directed against the impugned Notification dated 18.05.2016, through which the appellant has been retired from service with the direction that the salary and the other benefits received by the appellant after 04.08.2015 shall be deducted from his pension commutation. The appellant prayed for the suspension of the impugned Notification on various grounds.

2. The appeal was admitted for regular hearing on 26.07.2016 and notices were issued to the respondents to file objections. On 16.08.2016, written objections on behalf of the respondents have been filed wherein it is stated that at the time of appointment, the appellant got his date of birth entered in the service record as 04.08.1955. After a period of 42 years, he applied for correction of the date of birth as per Identity Card and matriculation certificate. He also filed appeal before this Tribunal which was accepted, however, later on, the judgment of the Service Tribunal was set-aside by the apex Court. In the light of the judgment of the apex Court, the appellant was retired from service w.e.f. 04.08.2015 and the salary drawn after that date was ordered to be recovered. It was claimed that the appellant was legally not entitled for the salary after the date of retirement, therefore, the impugned Notification has been rightly issued.

3. I have considered the pleadings of the parties and also gone through the record made available. Through the impugned Notification dated 18.05.2016, the appellant has been retired from service. The grievance of the appellant is that in the impugned Notification, it has been ordered that the salary along with the total emoluments obtained by the appellant after 04.08.2015 shall be recovered from his pension. As per stated facts of the case, the appellant applied to the departmental authority for correction of his date of birth as per Identity Card. The application was turned down vide order dated 14.11.2014. The appellant filed an appeal before this Tribunal which was accepted on 15.06.2015. The judgment of this Tribunal was challenged before the Hon'ble Supreme Court which was accepted and the order of the Service Tribunal was set-aside vide judgment dated 03.05.2016. After the judgment of the apex Court, the departmental authority vide impugned Notification, retired the appellant from 04.08.2015 and ordered for recovery of the salary and emoluments received by him after the date of retirement i.e. about 9 months. It is very much clear that the appellant rendered extra/additional services after his date of retirement due to litigation before the judicial forums. The salary drawn during such period cannot be recovered from civil servant rather such period can be considered as on contract. The Tribunal vide its judgment dated 31.12.2014 in a case titled "Muhammad Afsar Khan v. IGP and others" laid down the same principle. In this regard, the reliance can be made on the following legal precedents. "Refund of Salary" Petitioner was re-employee after his retirement from the army by the Employing Authorities. Petitioner was retired from service and was directed to refund the salary drawn beyond the age of superannuation for which he had worked. Contention by Authorities was that petitioner did not provide his correct age, so he was paid such salary beyond the age of superannuation. Validity. Information regarding age of the petitioner was available with the Authorities at the time of re-employment, therefore, mala fides for suppression of the correct age could not be attributed to the petitioner. Where the age was already available on record, there was no need of asking the same from the petitioner paid for the work he had performed. Order of Authorities qua the deduction of amount already paid as salary to the petitioner was of no consequence. PLD 1992 SC 207 ref. [2000 PLC (C.S.) 480]. Retirement after due date of superannuation. .... Government issued order of deduction of salary/wages for period for which employee has worked after date of superannuation. Challenge to. Appeal. Record of appellant was available with departmental employee cannot be penalized for act which he has not done. Department issued order of retirement after age of superannuation. Appellant had worked all the time. No deduction or recovery of wages can be effected. Appeal accepted. 2001 PLC (C.S.) 1092. "Recovery of amount from pensionary benefit. Civil servant who was to retire on attaining the age of superannuation remained working even after superannuation for about eleven months without objection from the Authority, but Authority on finalization of his pension case, recovered the amount of salaries drawn by him during the said period of eleven months from pensionary benefits of Civil Servant. Validity civil servant having worked during the period of eleven months without any objection from the Authority, there was no justification for Authority to effect recovery of amount from the pensionary benefits of Civil Servant. Nothing was on file to demonstrate that Civil Servant had a hand in the affair and that he had approached the High Court with unclean hands disentitling him to discretionary and equitable relief provided under Article 199 of the Constitution. Jurisdiction of High Court to entertain a constitutional petition at the instance of Civil Servant, was not ousted in respect of all matters, but ouster was limited to only those cases which could be taken up by Service Tribunal. Recovery in question had been effected without issuing notice to the Civil Servant Non-issuance of notice had certainly prejudiced the interest of Civil Servant. Order recovering amount from pensionary benefits of Civil Servant, was declared to be illegal and without lawful authority and no legal effect by the High Court, in exercise of its Constitutional jurisdiction with direction to pay the recovered amount to Civil Servant. 2009 PLC 1400." The apex Court laid down in a case titled "Azad Government and others v. Mrs. Jamshed Naqvi and others" [2014 SCR 13] in para 26 as under:- "We have also considered the arguments of the learned counsel for the appellant that the respondent retired from service on 14.04.2012 and she remained working against the post of Managing Director Teachers Foundation illegally, therefore, all the emoluments as well as the salary received by her may be ordered to be deposited back. We have come to the conclusion that after reaching the age of superannuation on 14.04.2012, the respondent has no right to occupy the post of Managing Director Teachers Foundation, but the record reveals that on filing of writ petition, the High Court issued a status quo order on 11.4.2012." In the aforesaid judgment after discussing and relying on the case titled "M. Younas Tahir and others v. Shaukat Aziz and others PLD 2012 SC (AJ&K) 42) and a judgment of the Supreme Court of Pakistan reported as PLD 2009 SC 889, the apex Court held as under:- "Keeping in view the principle laid down in the above cases, the aforesaid argument of the learned counsel for the appellants has no force. The respondent cannot be ordered to pay back the salary and other emoluments received by her." In view of the above, there is no justification for recovery of the salary drawn by the appellant for the period, he remained performing his duties. The appellant has a strong arguable case. In case of operation of the impugned Notification, an irreparable loss is likely to be caused to him.

4. On the basis of what has been stated above, the impugned Notification dated 18.05.2016 is hereby suspended to the extent of the recovery of the amount drawn by him after 04.08.2015 from his pension, till final disposal of the appeal. HBT/1/AJKST Notification suspende