1985 PLP (C (PLC(CS))

MUSHTAK ALI KAZI ‑(CHAIRMAN).‑The appellant, a retired Diniyat Teacher, Government Khatoon‑e‑Fatima High School, Sanghar, has preferred this service appeal under section 4 of the Sind Service Tribunals Act, 1973 to claim grant of pension under the following circumstances :‑‑ The appellant was appointed as Diniyat Teacher on 16th August, 1962 by the then Principal, Khatoon‑e‑Fatima High School, Sanghar. The year of birth according to his appointment letter was 1921. In the year 1972 the Civil Surgeon, Sanghar issued a medical certificate in which the age of the appellant was shown to be 50 years on 13th September, 1972. However, a discrepancy with regard to the year of birth crept in because the character roll of the appellant pro forma mentioned the date of birth of the appellant as the year 1911 instead of 1921. This pro forma was issued by the Principal. Acting on this pro forma the Deputy Director, Schools was informed that the appellant would reach the age of superan nuation on 1st October, 1972. The appellant was then conditionally retired from service by the Principal/Head Master of the High School. The appellant preferred a representation against this retirement to the District Education Officer, Sanghar. The D. E. O., Mr. Muhammad Naseemullah, examined the whole case thoroughly and passed a detailed order accepting the year of birth of the appellant to be 1921 as recorded in his letter of appointment. He accordingly revised the order of retirement of the appellant and as a consequence directed reinstatement of the appellant with immediate effect from the date he reported for duty. It was expressly mentioned in this order that the period the appellant remain ed on retirement unwarranted by law would be decided as leave due. This, order‑was passed on 21st February, 1977. The appellant accepted this order by joining his post on reinstatement and he did not find fault with the decision taken with regard to the period that he remained retired from 9th August, 1973 to 21st February, 1977. According to the revised date of birth the appellant completed his 60 years and retired on 1st July, 1981. Thus, after nearly five years the appellant called in question the order of the District Education Officer deciding the period of retirement as leave due by preferring an appeal against the said order to the Director, Schools Education, Hyderabad Region. This appeal was preferred on or about 31st March, 1982. The Director, Schools Education, disposed of this appeal as hopelessly time‑barred and pointed out in his order that the appeal in question should have been preferred within a period of 30 days under rule 3 (i) of the Sind Civil Servants (Appeal) Rules, 1980. This order was passed on 7th August, 1982. Against this order the appellant preferred a second appeal to the Secretary, Government of Sind, Education Department, which was also forwarded to the Director with the comments that the case regarding the intervening period from 10th August, 1973 to 21st February, 1977 should be decided expeditiously to avoid financial hardship to the retired teacher. The case was then referred to the District Education Officer, Sanghar, who submitted the record of the case with his own comment that the period from 10th August, 1973 to 21st February, 1977, i. e., 3 years and 6 months could be treated as period spent on duty with full pay since the Government servant was not at fault and he would then be entitled to payment of Rs. 23,500 approximately with increase in his pension. The Deputy Director, Administration, acting for Director, however, did not accept the recommendation of the District Education Officer that the appellant be allowed full salary for the retired period, but on the contrary he re‑opened the decision given by the District Education Offer and stated that the order of retirement could not be reviewed by the District Education Officer nor could he recall the appellant and reinstate him from 22nd February, 1977 and make him continue till 19th March, 1982. The Deputy Director, therefore, ordered the benefit of reinstatement to be recovered from the appellant. From the above history of the case it is evident that the officials in the Education Department have repeatedly passed conflicting orders one after the other to the detriment of the appellant without realising that they had no jurisdiction to reopen the case after his reinstatement order had taken effect and was acted upon. Nor could the Education Authorities in the course of an appeal for condoning the break in service cancel the reinstatement order to the detriment of the appellant without even issue of a show‑cause notice to him. The true legal position would emerge as under :‑ The order of retirement of the appellant passed by the Head Master was called in question by the appellant who preferred an appeal against it to the District Education Officer. The District Education Officer allowed the appeal, setting aside the order of retirement and directed reiastate ment of the appellant in service. According to him, the correct date of birth of the appellant was the year 1921 as mentioned in his appointment order. This order was acted upon and the appellant was reinstated. The appellant also did not dispute the validity of this order for the period of nearly 5 years. It was thereafter when the appellant was subsequently retired, that he disputed the fact of the period of compulsory retirement to be treated as leave without pay and he made representation that the period should be treated as on duty. The appellant should have realized that having accepted the order of the District Education Officer passed on appeal, and having joined on reinstatement according to the terms and conditions stated in the order, he could not afterwards dispute the legality of the order and prefer a belated appeal. At that time the revised departmental appeal rules had not come into force and the appel lant could only file the appeal within 30 days of the passing of the order. The appellate authority bad no power at that time to condone any delay. The case of the appellant should accordingly have been treated as closed and his pension ought to have been calculated by treating the intervening period as leave that may be due. The belated appeal filed by the appellant to the Director of Education was rightly rejected as hopeles sly time‑barred. The appellant had no further remedy in law. The second appeal filed by the appellant before the Secretary, Education was not maintainable. It should not have been entertained by the Secretary, Education nor should the Secretary have forwarded it to the Director Education with his comments. The Director, Education had no powers to review the orders of his predecessor nor ,could he after lapse of 5 years when the order had been acted upon, recall that order to the disadvantage of the appellant. This is expressly prohibited under the law. This last order of the Director asking for refund of the salary drawn by the appellant is accordingly a void order being without jurisdiction. The orders passed by his predecessor in office rejecting the appeal from order of the District Education Officer, Sanghar, was the proper order and the original order of the District Education Officer, reinstating the appellant treating the intervening period as on leave that may be due and retiring him from service on attaining the age of superannuation with effect from 1st July, 1981 would remain valid and binding. The learned counsel for the appellant has pointed out that the total service of the appellant counted according to the order of the District Education Officer would be less than 10 years, because the intervening period would be treated as leave without pay and this would not be count ed as period spent on duty for the purpose of pension. That the appellant would, therefore, suffer total loss of pension. The grievance of the appel lant may appear to be genuine but since the appellant did not prefer departmental appeal within the period of 30 days of limitation from the date of order passed by the District Education Officer, Sanghar, any appeal against that order before the Service Tribunal would not be main tainable under section 4 (a) of the Service Tribunals Act, 1973, which provides that no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representa tion to the departmental authority. Such appeal is to be preferred within 30 days and a belated appeal after 5 years will not satisfy the requirements of this proviso. This appeal is disposed of accordingly with no order as to costs. A.E