1984 PLP (C (PLC(CS))

(2) That the appellant was still in service when be made a request to the Government that he may be allowed to continue in service and was competent to do so under the law laid down and that the Tribunal as well as the Government were unjustified to decline his prayer. (3) That the appellant made his request on 2nd October, 1972 before the communication of notification of 28th September, 1972/6th October; 1972, therefore, the Government was not justified to say that the second request of the appellant was after the communication of the approval of his retirement by the Governor of the Punjab. Learned counsel for the appellant has relied on the following in sup port of the above‑mentioned contention :‑

(1)? AIR 1954SC584. (2) A I R 1956 All. 153. (3) P L D 1973 Quetta 4. (4) P L D 1981 Kar. 56. (5) P L D 1956 S C 504. (6)PLD1956SC

105. On the other hand learned District Attorney has submitted that the decision of the predecessor Tribunal was in fact binding on this Tribunal in accordance with its own view taken in the case of ... ... ... ... ...It was further submitted that in Appeal No. 490 of 1978 Secretary to Govern ment of the Punjab, Food and Co‑operative Department versus Shamoun Bahadur their Lordships of the Supreme Court had observed that option having been once exercised the person so making such option, cannot be allowed to go back upon it. It was also pointed out that the Governor could make relaxation in cases of hardship and, therefore, relaxation so made in favour of the appellant was in fact an act of grace on the part of the Governor and it was not fair for the appellant to decry the same when it did not suit his circumstances.

6. I have given my anxious thought to the arguments so raised by the parties and have carefully gone into the record with their assistance. First of all I will deal with first objection raised by the learned counsel for the appellant with regard to the powers of the Governor in relaxing the Pension Rules as laid down under rule 3.5 of the West Pakistan Civil Servants Pension Rules. It would be useful to reproduce the same; "3.5. Retiring Pension.‑A retiring pension is granted to a Govern ment servant, who not being eligible for superannuation pension; (i) opts to retireafter 25 years qualifying service or as such less time, as may for any special class of Government servant be prescribed ; (ii) is compulsorily retired from service by the authority competent to remove him from service on the ground of inefficiency, misconduct or corruption ; (iii) opts to retire after attaining the age of 55 years. The bare reading of these three clauses make it crystal clear that the case of the appellant does not fall in any of these categories, i. e. he never opted to retire after 25 years, was not compulsorily retired and he had not attained the age of 55 years. The record of this case further reveals that Finance Department and Services, General Administration and Informa tion Department stoutly resisted the proposal for relaxation and rightly refused relaxation of Rules but it seems that Home Secretary and Chief Secretary in their own wisdom gave opposite advice to the Governor to relax Pension Rules in favour of the appellant. I am of the considered opinion that in view of the language of rule 3.5 as well as spirit so con tained thereunder, the Governor could not relax these Rules in favour of the appellant which are rigid in nature and the correct procedure should have been to tell the appellant to continue in service till he completes a period of 25 years service qualifying for pension and then to ask for retirement. In this way there is basic error which goes to the very root of the case. The other important aspect of this case which has not been taken into consi deration by the Governor at the time of relaxation of Pension Rules, is that the appellant set up a deadline to be retired w. e. f., 1st June, 1972. As Government failed to reach at a decision in acceding to the request so made by the appellant, it was incumbent upon the Government to once again ask the appellant whether he was still desirous to be retired despite the date so fixed by him had expired. It was also necessary for the Government to tell the appellant that his request was not in accordance with the rules and was being resisted by the Finance Department as well as S G A & I D, therefore, it was all the more necessary to make sure whether the appellant was so fed up with service or was under such a big strain of circumstances that he had once for all made up his mind not to continue. The analogy of the same can be found in the case of Tahir Beg P L D 1976 S C 504 at

506. In this case when it was found that Tahir Beg, M. N. A. had resigned from his seat in the National Assem bly their Lordships of the Supreme Court were of the opinion that it was incumbent upon the Speaker to satisfy himself as to the genuineness and validity of such resignation by the Member before be acted upon the same. The ratio desidendi of this lengthy judgment on this point would be that mere submission of resignation or a request of retirement does not auto matically make it effective. As I have at this juncture used the word retire ment as well as resignation it would be necessary to give connotation of the same so as to make it clear whether both the terms are synoymous or in any way different. The word `retired' means to `withdraw'. Retirement means the act to retire or state of being retired. The word withdraw is synonymous with the word `retirement'. In this respect reliance is placed on N. Y. Peoples v. Matropolitan District Police Board.

7. Before disposing of this issue I will also like to elaborate on a matter which has also not been taken into consideration while dealing with the case of the appellant either by the predecessor Tribunal or by the Government. If Governor had any doubt about his competency to relax the Pension Rules particularly when the competency of the same was chal lenged by the Finance Department and S G A & I D then according to law this defect or doubt would enure for the benefit of the appellant and not for the State. Reliance is placed on Noorul Hassan v. Federation of In this appeal the decision dated 8th December, 1979 (P L D 1955 Sind 200) passed by the Pakistan at 208, In view of the above I have no hesitation to hold that the C notification of the Governor by relaxing the Pension Rules in favour of I the appellant, being without jurisdiction, therefore, would be void ab initio.

8. With regard to the issue raised by the learned counsel for the appellant that the appellant was fully justified to withdraw his request for retirement, if it was found that he was still in service. I have perused in this respect the authority so cited by the learned counsel and find that point so raised fully goes in favour of the appellant. Their Lordships of the Supreme Court of India in Jai Ram v. Union of India (AIR 1954 S C 584) were pleased to hold as under:‑ "It may be conceded that it is open to a servant who expressed a desire to retire from service and applied to his superior officer to give him the requisite permission, to change his mind subsequently and ask for cancellation of the permission thus obtained ; but he can be allowed to do so as long as he continues in service and not after it has terminated." Similarly in Abdul Nabi v. Government of West Pakistan (P L D 1973 Quetta 4) their Lordships of the Quetta High Court reached a similar conclusion. In Quetta case it was found that the appellant who had first asked for retire ment due to apprehension that he was not medically fit to continue in service, changed his mind when he learned through a reliable medical advice that he was a fit person to serve the Government. However, the said appellant had proceeded on L. P. R. and there was hardly 4 months left before he stood retired. Government defended its stand on the strength, of memorandum which stated that once a resignation or request for retirement had been made and accepted, the same was final and could not be withdrawn. This view did not find favour with their Lordships and it was observed that the said memorandum had no force of Rules and a Government servant when he was still in service, was allowed to change his mind before be stood completely retired. In that case appellant was considered to be in service as he was still on L. P. R. In this context it will be useful to mention that the jurists of this country as well as of other lands, have always interpreted retirement as complete segregation from the service for all purposes. The case of the appellant is on much higher footing than the case of Abdul Nabi, as at the time when the present appellant withdrew his earlier request, he was working as Superintendent Jail, Bahawalpur, a fact fully borne out from the record, vide Notification No. Prs. I (C) 18/63, dated 27th January, 1973. A similar question came before their Lordships of the Supreme Court in the case of Shamoun Bahadur mentioned in the earlier part of our judgment, wherein their Lordships fully agreed with the views taken in Quetta High Court's case: by their Lordships late Mr. Justice Tufail Ali Abdur Rehman and Justice Dorab Patel as then he was whereby he was granted L. P. R. from the date of relinquishing the charge from 11th December, 1972.

9. While taking into consideration the third legal issue raised by the learned counsel for the appellant I am of the considered opinion that the appellant made his intention clear, on 2nd October, 1972, when he felt agitated about the indecision of the Government regarding his earlier request and changed his mind. Of course the notification has got two dates written on it i. e., 28th September. 1972 and 6th October, 1972, but to my mind the date of 6th October. 1972, would be the date of final com munication as otherwise if that would not have been so, the appellant would have definitely written in the application that he had received the said communication from the Government, on 28th September, 1972. The very fact that the application dated 2nd October, 1972 by the appellant does not mention of this notification, positively proves that be had no knowledge that his retirement already stood effected. In these circumstances, his request for withdrawal of earlier request was bona fide and within his rights to do so.

9. I have also given my anxious thought to the arguments advanced by the learned D. A. with regard to the earlier decision of predecessor Tribunal on this point. While going into the genesis of this verdict, I consider it my sacred duty to point out anomaly of the same which stands fully highlighted when one comes across the judgment of Shamoun Bahadur passed by the said Tribunal itself, in which appeal of Shamoun Babadur was accepted. In that case the predecessor Tribunal fully adopted and relied on Abdul Nabi v. Government of the West Pakistan and held that the memorandum so relied upon by the Government was not a rule. It appears very strange that while deciding the case of the appellant the earlier view taken by the Tribunal itself was not taken into consideration and a short argument was advanced without referring to any authority that once a resignation or request for retirement is made it becomes final. Be that as it may, the judgment of the predecessor Tribunal in this case has been quashed by the Supreme Court, therefore, a quashed judgment loses all its value and would in no manner stand in my way for arriving at a different decision particularly when the Supreme Court had directed this Tribunal to decide this case afresh. In this manner I am not impressed by the arguments of the learned District Attorney that the judgment of the predecessor Tribunal would be binding on this Tribunal as held by it earlier.

10. In the light of the above discussions I am of the confirmed view that the appeal of the appellant is liable to succeed. I, therefore, proceed to accept the appeal, declare the impugned notification as void ab initio and direct that the appellant will be deemed to be in service. However, there will be no order as to costs. A. E. Appeal accepted.