1991 PLP (C (PLC(CS))

SYED ALLY MADAD SHAH (CHAIRMAN):

Appellant Mr. Muhammad Yousuf Malik, who was an Assistant Accounts Officer in the office of the Accountant-General, Punjab, Lahore, has preferred this appeal against the rejection of his request for withdrawing his request for premature retirement from service.

2. The case of the appellant, briefly stated, is that he made an application dated 5-12-1984 to the Auditor-General of Pakistan, Lahore for his premature retirement w.e.f. 5-4-1986, on having completed twenty five years of service qualifying for pension, after availing Leave Preparatory to Retirement from 5th April, 1985 to 4th April, 1986. His application was granted and he was permitted to retire from service after availing LPR, as requested as per letter dated 24-2-1985 addressed to the Accountant-General, Punjab, Lahore and further endorsed to him under letter dated 26-2-1985. While the appellant was availing LPR, he received a letter dated 4-1-1986 from the office of the Auditor-General of Pakistan (respondent No.3) that he may inform them of the reasons for having sought premature retirement; and also what were his feelings/comments on the way he was faring then. He sent his reply dated 11-1-1986 wherein he disclosed/mentioned instances of apathetic treatment he had received during the tenure of his service and which had led him to seek premature retirement, etc. On 29-9-1986, he made an application to the Auditor-General of Pakistan stating therein that he had forwarded his reasons for seeking premature retirement under letter dated 11-1-1986, which he desired to be treated as integral part of his application dated 5-12-1984 but there was no reaction thereon: He also advanced the plea that his grievances were not looked into and, therefore, his premature retirement granted by the Auditor-General of Pakistan was not final and did not have legal effect and, therefore, he was deemed to be on duty and necessary orders may be passed on his application dated 11-1-1986. He was informed under letter dated 29-11-1986 that orders for his retirement once passed by the competent Authority could not be changed and his request for treating him on duty could not be entertained. The appellant ventured another representation dated 28-2-1987 and also sent reminder dated 5-5-1987. He did not find any response to his representations and then he made representation/application to the Secretary, Establishment Division dated 31-5-1987. He received reply on his application dated 28-2-1987 from the Auditor-General of Pakistan under letter dated 28-6-1987 that his representation dated 29-9-1986 for cancellation of his premature retirement had already been rejected under Memorandum dated 29-11-1986. He was further informed that he had since retired from service w.e.f. 5-4-1986 and, therefore, he was no more a civil servant for the purpose of the Civil Servants Act, 1973 and the Civil Servants (Appeal) Rules. 1977 and he did not have right of appeal or representation under the said Act/Rules. He, therefore, filed this appeal on 15-7-1987, praying that the orders dated 24-2-1985, 29-11-1986 and 28-6-1987 made by the respondent No.3 (Auditor-General of Pakistan) may be set aside and directions may be given that he may be treated to have been on duty from 5-4-1985 and he should be allowed benefits of pay and allowances and seniority in the cadre of Assistant Accounts Officers and he should also be allowed to resume duty and continue in service till the age of his superannuation.

3. The respondents have resisted the appeal contending that the appellant had voluntarily sought premature retirement, which was granted to him and his subsequent representations against the acceptance of his request for premature retirement could not be acceded to under law and he has no case to agitate.

4. The appellant has argued the appeal himself. He has urged the following grounds:- (i) The order of his retirement passed by the Auditor-General of Pakistan was not competent as he was not the `competent authority' as defined in explanation to section 13 of the Civil Servants Act, 1973, as the Secretary, Establishment Division was the appointing authority under Rule 6 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973. (ii) The appellant proceeded on LPR w.e.f. 5-4-1985 and during the period of his LPR, the Deputy Auditor-General made certain queries from him vide letter dated 4-1-1986 and he submitted his reply dated 11-1-1986 wherein he indicated that he had sought premature retirement under apathetic circumstances and he would not have sought premature retirement had he been shown sympathetic consideration. (iii) During the period of LPR, he addressed a letter to the Auditor-General of Pakistan dated 16-2-1986 requesting for consideration of his several representations, and failing to get a reply, he made an application to 'Wafaqi Mohtasib on 13-7-1986 and he again made an application dated 28-2-1987 to the Auditor-General of Pakistan and also sent a reminder dated 5-5-1987 and then made appeal to the Establishment Secretary on 3-5-1987. (iv) The powers of granting premature retirement vest under law in the appointing authority and they could not be exercised by the delegatees of the powers viz. Establishment Secretary, the Finance Secretary and the Auditor-General of Pakistan. Reliance has been placed on the cases reported in P L D 1967 Lah. 68; 1977 P L C (C.S.) 333; and 1984 C L C 1331.

5. The respondents were represented by the Standing Counsel Mr. Muhammad Amir Akbar Khan. He has argued that the order of premature retirement of the appellant was passed on 24-2-1984 and the appeal filed on 15-7-1987 is time-barred. He has further argued that the appellant availed of LPR, handed over charge of the post and actually retired from service, he drew pension and received gratuity and all other benefits of retirement without any protest. According to him, the so-called departmental appeal made to the Establishment Secretary on 31-5-1987 was time-barred and it was not a departmental appeal in the eyes of law in the light of the Supreme Court decision cited as 1985 S C M R

953. He has urged that the request for premature retirement could be withdrawn only before its acceptance as per O.M. dated 12-4-1981, whereas the appellant's premature retirement was ordered by the competent authority much before the appellant's so-called withdrawal letter dated 11-1-1986.

6. The main question for consideration is whether the appellant had actually withdrawn his request for premature retirement and if so, whether it was done at appropriate time. The appellant sought premature retirement w.e.f. 5th April, 1986 after availing LPR from 5th April, 1985 to 4th April, 1986, by making an application dated 5-12-1984 to the Auditor-General of Pakistan. His request for premature retirement was granted by the Auditor-General as per letter dated 24-2-1985 addressed to the Accountant-General, Punjab, Lahore. A copy of the letter was endorsed to the appellant from the office of the Accountant-General, Punjab vide endorsement dated 26-2-1985. He actually proceeded on LPR from the given date viz. 5th April, 1985. He did not intimate in the specific terms at any time that he was withdrawing his request for premature retirement. What is stated by the appellant is that he had indicated in his letter dated 11-1-1986 addressed to the Auditor-General of Pakistan that he had sought premature retirement on account of apathetic treatment by his officers and that he would have "cogitated over withdrawal" of his request for premature retirement if he had been granted leave and also afforded interview by the Auditor-General. This letter he had addressed in reply to a letter dated 4-1-1986 addressed to him by the Deputy Auditor-General (Estt.) inquiring from him the reasons for seeking premature retirement and his feelings/comments on the way he was faring then. The letter dated 11-1-1986 did not convey that the appellant had withdrawn his request for premature retirement. Even if it were assumed that it was a request for recision of premature retirement, the order for his retirement had actually been passed on 24-2-1985 as stated above. It is provided in Note 1 below Article 465-B of the Civil Service Regulations that the intimation of seeking retirement from service after completing 25 years of service qualifying for pension, once submitted shall be final and shall not be allowed to be modified or withdrawn. This bar was subsequently modified under the Office Memorandum No.23/2/81CV(B), dated 12-4-1981, issued by the Establishment Division providing that an application for premature retirement or modification in the date thereof can be withdrawn, if it is made before its acceptance by the competent authority. Therefore, the appellant could not withdraw his request for premature retirement after it was sanctioned vide letter dated 24-2-1985.

7. The other ground advanced by the appellant is that the order of his premature retirement was made by the Auditor-General of Pakistan and he was not competent to have sanctioned his premature retirement. He has made reference to the definition of the `competent authority contained in explanation to section 13 of the Civil Servants Act, 1973, which relates to retirement from service. It is provided under clause (ii) of section 13 of the Civil Servants Act, 1973 that a civil servant, other than a person holding the post of Additional Secretary to the Federal Government or any equivalent or higher post, shall retire from service on such date after he has completed 25 years of service qualifying for pension or other retirement benefits as the competent authority may, in the public interest direct. `Competent authority' is described in the explanation as "the appointing authority or a person duly authorised by the competent authority in that behalf, but not being a person lower in rank than the civil servant concerned." According to the appellant, the Establishment Secretary was the appointing authority in his case as per Rule 6 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973. He has filed with the memo of appeal photostat copies of the orders of delegation of powers issued from time to time. The first document is a copy of O.M. No.l/5/73-CV, dated 5th June, 1974 (Annexure `S' at page 37) providing that Secretary of the Ministry/Division which controls the cadre or department to which the post belongs, was the competent authority to accept request for retirement on completion of 25 years qualifying service in respect of Grade 17 to Grade 20 officers. The aforesaid O.M. was modified by the Finance Division, ins consultation with the Establishment Division vide No.1(7)/75-Exp.IV/631, dated the 18th March, 1976 (Annexure `T' at page 49), whereby the power of accepting requests for premature retirement of the officers of the Accounts Group in Grades 17, 18 and 19 was delegated to the Auditor-General of Pakistan. That power was withdrawn under the Finance Division letter dated 20-1-1979 (Annexure `U', page 50). The power was again restored to the Auditor-General vide Finance Division letter dated 21-7-1983 (Annexure `V, page 51). This order held the field at the time the appellant's request for premature retirement was accepted by the Auditor-General of Pakistan. Conceding that the Auditor-General did have the power of accepting request for premature retirement, the appellant advanced the argument that the Auditor-General had not considered the public interest in allowing him premature retirement and, therefore, the order was not proper. This argument is based on the letter dated 18-3-1976 (Annexure `T', page 49), already referred to above, wherein the power of acceptance of request for premature retirement by Auditor-General was made subject to the restrictions that no disciplinary proceedings were pending or contemplated against the concerned officer and his services could be dispensed with without detriment to the public interest. It is understood that the question of public interest must have been considered by the Auditor-General before allowing the request of the appellant for premature retirement and the appellant's objection is not tenable. In the same context, the appellant has raised another objection that the delegation of powers to the Auditor-General vide letter dated 18-3-1976 was done in consultation with the Establishment Division, but no concurrence was obtained from the Establishment Division for restoration of the powers to the Auditor-General after it was withdrawn under letter dated 20-1-1979. There is no mention in the letter dated 20-1-1979 that the power was withdrawn by the Finance Division in consultation with the Establishment Division. The Establishment Division had already concurred to the delegation of the powers to the Auditor-General and the restoration of that power to the Auditor-General under letter dated 21-7-1983 did not require fresh concurrence of the Establishment Division. Yet third objection has been raised by the appellant that the Establishment Secretary was the appointing authority as delegatee of the President and, therefore, he could not delegate the powers of the authority to any other authority. This argument too is misconceived. The power of granting request for premature retirement vests in the `competent authority' as described in section 13 of the Civil Servants Act, 1973, as already mentioned above. The `competent authority means the appointing authority or a person who is authorised by the appointing authority in that behalf. The `appointing authority' defined in clause (a) of Rule 2 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 means the person authorised under Rule 6 thereof to make appointment to that post. Under Rule 6, the Establishment Secretary is the appointing authority in respect of Grades 17 to 19 officers. Thus, no delegation of powers by a delegatee is involved. It follows that the order of premature retirement of the appellant was competently by the Auditor-General of Pakistan. The cases relied upon by the appellant are based on distinguishable facts and are not applicable.

8. Adverting to the legal objections of limitation agitated by the respondents, reference may be made to the relevant events. The order for premature retirement of the appellant at his request was made on 24-2-1985. He made grievance against it first time when he, according to him, made grievance in his letter dated 11-1-1986 addressed to the Auditor-General in connection with certain queries made by him as aforesaid. He then made certain representations to the Auditor-General. All these efforts did not furnish him condonation of delay in filing the appeal. He made departmental appeal to the Establishment Secretary on 31-5-1987 and that too was beyond time. Reference in this respect may be made to a decision of the Supreme Court reported in 1985 S C M R 1953. The appeal filed before the Tribunal thereafter is also time-barred. The appellant has, however, contended that the order A his retirement from service was void ab initio for the reasons stated above and, therefore, no question of limitation arises in his case. But it has been discussed above that the order was not void ab initio but it was a valid order and, therefore, the question of limitation does arise. The appeal is time-barred as indicated above.

9. For the reasons recorded above, the appeal has no merit and it is time-barred too, and it is dismissed as such, with no order as to costs. M.Y.H./576/Sr.F Appeal dismissed.