1985 PLP (C (PLC(CS))

ABDUL HAMID CHAUDHRY (MEMBER). ‑‑Abdul Hayee Niazi, Reid. Sub‑Inspector, has made this appeal under section 4 of the Punjab Service Tribunals Act, 1974, wherein he has impleaded the respondents Nos. 1 to 4, mentioned above.

2. Bar virtue of this appeal the appellant has challenged the order of his retirement under section 12(ii) of the Punjab Civil Servants Act, 1974, passed by the Superintendent of Police, City Division, Lahore vide order, dated 7‑12‑1983, wherein the appellant has been retired under the said provision of the Act, after the completion of 25 years of service qualifying for pension and other retirement benefits. The appellant has prayed that keeping in view the judgment of Federal Shariat Court, Islamabad, the retirement of the appellant is illegal and against the provisions of the Holy Quran and Sunnah and as such it has been prayed that the orders of retirement be set aside, all back benefits with effect from the date of retirement be granted and allowed to serve till the date of superannuation.

3. Brief facts of the case are that the appellant has been retired from service after completion of 25 years' service qualifying for pension or other retirement benefits, in exercise of the powers conferred by clause (ii) of the section 12 of the Punjab Civil Servants Act, 1974 by the Superintendent of Police, City Division, Lahore vide order, dated 7‑12‑1983. The appellant submitted an appeal to the respondent No.1 on 13‑12‑1983 and supplemented with appeal, dated 21‑12‑1983, but no reply has been received. Hence this appeal.

4. We have heard the parties i.e., Mr. Abdul Hamid Khokhar, Advocate for the appellant and Mr. A.G. Humayun, District Attorney on behalf of the respondents.

5. The learned counsel for the appellant has challenged the order of retirement on two grounds. Firstly he has attacked the retirement order on the ground that that appellant has not completed 25 years' qualifying service. He has relied on the judgment of this Tribunal in his earlier Appeal No.48/554 of 1980, dated 26‑4‑1981 of the appellant in which it was observed by the Tribunal that the service rendered by him from 1954 to 1959 cannot be counted towards pension and' as such it was not qualifying service. He has submitted that the service of the appellant qualifying for pension would start from 16‑3‑1959, the date of his joining as A.S.‑I. in the Department and would complete 25 years' qualifying service on 15‑3‑1984, whereas lie has been retired prematurely from service, in December 1983. Secondly, the appellant's counsel has relied upon the judgment of the Federal Shariat Court, Islamabad wherein it has been held that the clause (ii) of the section 12 of Punjab Civil Servants Act 1974, is repugnant to the Holy Quran and Sunnah and in view of this judgment of the Federal Shariat Court, Islamabad, the retirement of the appellant is illegal and liable to be set aside.

6. On the other hand the learned District Attorney has rebutted the above arguments of the learned counsel for the appellant. He has submitted that the appeal is not maintainable due to the fact that the appellant was required to make a review petition under the provisions of P.C.O. 1981 to the same authority which had passed the order of his retirement on the completion of 25 years' qualifying service. In this case the appellant has not filed any review petition to the Superintendent of Police, City Division, Lahore who passed the order of his retirement. Instead he has filed two appeals, dated 13‑12‑1983 and 21‑12‑1983 to the Inspector‑General of Police, Punjab, Lahore which is not provided under P.C.O. He has further submitted, but not conceding that if his appeal, dated 13‑12‑1983 to the Inspector‑General of Police, Punjab, Lahore is considered to be a review petition, even then he was required to submit the appeal to this Tribunal within thirty days on the expiry of 90 days as held by the Supreme Court of Pakistan reported as Muhammad Usman v. N.W.F. Province etc. P L D 1983 S C 436 but the appellant has filed the present appeal after 134 days. Relying upon the above decision of the Supreme Court of Pakistan, the learned District Attorney has submitted that the appeal is time barred. He has also pointed out that no appeal lies against the order of appellants' retirement passed under section 12 (ii) of the Punjab Civil Servants Act, 1974, in view of the mandatory provisions of Article 13 of P.C.O., 1981.

7. On the merits the learned District Attorney has resisted the appeal in view of the law laid down by the Supreme Court of Pakistan, reported as Secretary, Punjab Education Department, Lahore and another v. Noor Muhammad Khan P L D 1984 S C

80. He has submitted that Honourable Judges of Supreme Court of Pakistan have held that under rule 2.1 of Pension Rules, 1963 the entire service rendered under the Provincial Government which is paid from the Provincial Consolidated Fund is qualifying service. It has been pointed out by the learned District Attorney that the facts of the appellant's case are that the appellant joined the Police Force as a T. A. S. I. in scale of Rs .75‑5‑120 in P.A.R. w.e.f. 13‑5‑1954. Subsequently he was absorbed in the Provincial Police as A.S.‑I. w.e.f. 11‑3‑1959. The appellant was absorbed with all benefits of his previous service towards pay and pension. Thus, the appellant's service will be counted from 13‑5‑1954 and not from 16‑3‑1959 as contended by the appellant as the appellant has been paid from the Provincial Consolidated Fund w.e.f 13‑5‑1954 till the date of his retirement. Hence, the appellant has been retired from service after completion of 25 years' qualifying service.

8. As far as the judgment of the learned Federal Shariat Court, Islamabad is concerned it has pointed out by the learned District Attorney that the Government has filed an appeal against the judgment and the Hounorable Judges of the Supreme Court of Pakistan have suspended the operation of the judgment till the decision of the Government's appeal which continued to be pending. Hence no benefits can be claimed by the appellant on the basis of the judgment of the Federal Shariat Court, Islamabad which has been suspended. This position has not been controverted by the appellant's counsel.

9. We have given our anxious thought to the arguments of the parties and have also perused the record of this case. We have satisfied ourselves that the appeal is not maintainable in view of the above arguments of the learned District Attorney. Under the P.C.O., 1981, review lies to the same authority and the appellant was required to file a review petition to the Superintendent of Police, City Division, Lahore. But the appellant has failed to avail that remedy and as such his appeal is hit by the provision of section 4 of the Punjab Service Tribunals Act, 1974. The appeal is also not maintainable in view of the other two objections which have been raised by the learned District Attorney as per para. 6 of this judgment.

10. Even on merits the latest law on the subject as laid down by the Honourable Judges of the Supreme Court of Pakistan in the above referred reported judgment P L D 1984 S C 80, is that all service rendered under a Provincial Government and paid out of the Provincial Consolidated Fund is qualifying service within the meaning of the term as defined in rule 2.1 of the West Pakistan Pension Rules, 1963. In view of this judgment, the appellant's entire service from 13‑5‑1954 is a qualifying service, as the service was under the Punjab Government and the appellant was paid out of the Punjab Provincial Consolidates Fund. The contention of the appellant's counsel that his service from the year 1954 to the year 1959 is not qualifying for pension is therefore, not correct, in view of the law laid down above. Since the appellant had already completed 25 years' qualifying service on the date when the impugned order, dated 7‑12‑1983 was passed by the Superintendent of Police, City Division, Lahore, hence, no exception can be taken against the same.

11. We also agree with the learned District Attorney that no benefit of the judgment of the Federal Shariat Court, Islamabad can be claimed by the appellant as the operation of the said judgment stand suspended by the Supreme Court of Pakistan.

12. The upshot of the above analysis of the case is that the appeal is not maintainable and it also fails on merit. Accordingly it is dismissed as such. There is no order as to costs. A.E. Appeal dismissed.