1983 PLP (C (PLC(CS))

S. ABDUL JABBAR KHAN (CHAIRMAN). ‑‑Noor Muhammad Khan, Director of Education, on L. P. R, has filed this appeal under section 4 of the Punjab Service Tribunal ‑ Act, 1974, in which he has impleaded Secretary to Government of the Punjab, Education Department, Lahore and Chief Secretary, Government of the Punjab, Lahore, as Respon dents. 2. By virtue of this appeal he has prayed that the impugned order dated 11th December, 1980 and final order dated 28th September, 1981, be set aside and the appellant be re‑instated in service in Grade‑19 with' full benefits of arrears and seniority etc. 3. Brief facts of the case are that the appellant has been retired under section 12(ii) of the Punjab Civil Servants Act, 1974, by the Governor of the Punjab, in the public interest, on the completion of 25 years' service qualifying for pension and other retirement benefits. Aggrieved against this order he tiled a review petition which was rejected on 28th August, 1981. Hence this appeal. 4. We have heard the learned counsel for the appellant as well as learned District Attorney assisted by the representative of the Department and have perused the parawi:e comments as well. 5. Learned counsel for the appellant has submitted two‑fold arguments before us. It has been firstly contended that the impugned order is liable to be set aside under Article 13 of the PCO, 1981, itself as the appellant has not completed 25 years of service qualifying for pension and other retirement benefits and secondly that the order is based on malice. Learned Counsel for the appellant have taken us through the service record of the appellant which runs as under :‑ Y. M. D. (a) 26‑4‑49 7‑6‑27 Punjab Deputy Rehabilitation to Government Officer (Temporary) Re 23‑11‑56 habilitation Department. (b) 24‑11‑56 3‑1‑57 Central Appointed as Claims Officer to Government by direct recruitment vide 27‑12‑59 appointment order dated 18th September, 1956. (c) 28‑12‑59 5‑0‑10 Central Settlement Department as to Government Deputy Settlement Com 8‑1‑65 missioners. 8‑1‑65 Rendered surplus due to winding up of Settlement Department under Central Government. (d) 9‑1‑65 2‑10‑13 Punjab Remained in surplus pool to Government pending appointment in 22‑11‑67 any Department pay drawn from Surplus Pool as Assistant Director (Indust ries). Period not liable to be counted 1981 P L C (C. S.) 696 Abdul Hai Niazi. (e) 23‑11‑67 13‑0‑18 Punjab Direct appointment as to Government Inspector of Schools vide 11‑12‑80 letter dated 7th March, 1967 of Punjab Government. 31‑7‑15 Y. M, D. 6. Keeping in view this record so reproduced above it has been contended that the total service of the appellant in various capacities as indicated above, comes to 31 years 7 months and 15 days, and after deducting his total service in the Central Government, which does not count towards pension in Punjab Government under rule 2‑ 1 of the Pension Rules, 1963 which is 8 years 1 month and 17 days, the service at the credit of the appellant with the Punjab Government would be 23 years 5 months and 28 days, therefore, he cannot be retired under section 12(ii) of the Punjab Civil Servants Act, 1974. It has been further submitted that if the case is concluded on this juncture it would be not necessary for the appellant to press the second ground of malice so advocated before us through Memorandum of Appeal on the record. 7. On the other hand learned District Attorney has submitted that this period of 8 years 1 month 17 days under the Central Government cannot be excluded on the ground that the same has been counted by the Audit Office towards pension of the appellant. 8. We have given our anxious thought to the crucial issue before us and would like to examine the same. As far as the facts are concerned it cannot be denied that the appellant did serve for 8 years 1 month and 17 days with the Central Government in the settlement Department. It is also not disputed that this period of Service in any manner can be considered to be service of the Punjab Government, for the reason that the appellant served independently in the Settlement Department without any connection with the Provincial Government as he was never sent on deputation from the Provincial Government to the Central Government or his lien in any manner was retained in the Provincial Government. Appellant has fully established on the record that he served in the Settlement Department independently and When he became surplus due to winding up of the said Settlement Department he was recruited fresh as Inspector of Schools in the Education Department from 23rd November, 1967, after he remained in the Surplus Pool from 9th January, 1965 to 22nd November, 1967. In view of the above it cannot be said that the services of the appellant as Inspector of Schools with the Education Department was loaned or a transfer from the Settlement Department to the Education Department. This matter came before this Tribunal in the appeal filed by Farzand Haider Kanungo v. Board of Revenue (1981 P L C (C. S.) 638). In this case rule 2‑ 1 of the Pension Rules came before, us for interpretation and it was held by us that the services rendered by Farzand Haider in the Central Record Room in the Central Government, was not covered by rule 2‑1 of the Pension Rules, thyrefare, the appeal was accepted in his case and his retirement was held as premature. In another case of Munawar Ali Qureshi (1980 P L C (C. S.) 525), the same issue case under consideration and after quoting rule 2‑1 in extenso, it was held by this Tribunal that the services rendered by Munawar Ali Qureshi in Pakistan Railways was not covered by rule 2‑1 and as such the same‑was excluded from his service and his appeal was accepted. On the converse the Federal Service Tribunal accepted the appeal of one Jamshed Hussain and others (1981 S C M R 551), in matter of fixation of pay by holding that as long as he remained in the Provincial Government, he could not be admitted to be employee of Central Government and thus his Provincial service was not service in the Central Government. This matter went before the Supreme Court of Pakistan in which their Lordship of the Supreme Court upheld the said judgment of the Federal Service Tribunal. We have also looked into the case of Abdul Hayee Niazi (1981 P L C (C. S.) 696) and find that it has been held in his case that his earlier service in the Reserve Police, before he was appointed as A.S.I. in the District Police, could not be counted towards service qualifying for pension under Rule 2.1 of the Pension Rules for the purpose of section 12(ii) of the Punjab Civil Servants Act, 1974. Similarly in 1974 P L C Court) 179 decided by the Division Bench of Sind High Court (Labour ahoorul Hassan Zaidi continued agitating his claim for counting one but the same was turned down and his war service towards seniority ultimately when his retirement was ordered under article 178(4) of the constitution of 1962, the authority counted the said war service towards C his 25 years service and he was so retired. The matter went before their Lordship of the Sind High Court who, ere pleased to hold that since his service was not counted towards seniority it was not permissible to the Department to count that period of service towards retirement. 9. The case of the present appellant is fully covered with the cases so decided by us as well as by the Federal Service Tribunal and Sind High Court and by the Supreme Court of Pakistan as quoted above and we have no alternative but to follow our earlier decisions and the principle so upheld by the Supreme Court of Pakistan and have no hesitation to hold) that the service of the appellant so rendered by him with the Settlement Department under the Central Government in no manner can be con sidered service under the Provincial Government within the meaning of the West Pakistan Civil Services Pension Rules and thus the in the review is liable Rule impugned order so passed against him and upheld to be set aside on this score alone. 10. In view of the above analysis of the legal point involved, we proceed to accept the appeal, set aside the impugned orders and direct that Noor Muhammad Khan, appellant be re‑instated in service with all back benefits. As the issue involved is purely legal one, therefore, we do not propose to burden the Respondents with any cost. Appeal accepted.