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(a) Constitution of Pakistan (1973)

-- Art. 212-Service Tribunals Act (LXX of 1973), S. 4-Leave to appeal granted to examine correctness of rival opinions formed by majority of members of Tribunal and dissenting member.

(b) Civil Service Regulations

Regln. 465-B - Word "withdraw" occurring. in Regln. 465-B-Employee giving notice for premature voluntary retirement but subsequently requesting for being permitted to withdraw said notice-Held, upon giving intimation for premature retirement, Civil servant brings an end to his service tenure unilaterally which he had no power to revoke, in view of express bar embodied in regulation.[Words and phrases-Civil service].

Abdul Ghani v. Government of West Pakistan P L V 1973 Quetta 4 distinguished.

(c) Civil Service Regulations

Regln 465-B, Note 1-Note I to Regln. 465-B, held, not ultra vires the main Regulation.

M. S.-Siddiqui, Advocate Supreme Court and Khan Imtiaz Muhammad Khan, Advocate-on-Record for Appellant.

Munir A. Sheikh, Dy. A.-G. and Ch. Akhtar Ali, Advocate-on-Record for Respondents.

Dates of hearing : 26th and 27th January, 1985.

ZAFFAR HUSSAIN MIRZA, J.-This appeal by special leave arises out of order dated 8-6-1980, passed by Service Tribunal, Islamabad, whereby the appellant's appeal was dismissed.

2. The appellant entered service with the Central Government, General Headquarters Defence Department, on 7-6-1948. On 29-5-1978, when he was posted as Assistant, G. H. Q., Rawalpindi, he gave notice addressed to the Chief Administrative Officer, General Staff Branch, General H:adquarters, Rawalpindi. for premature voluntary retirement with effect from 1-11-1978, on completion of 30 years qualifying service which was due to be completed on 17-6-1978. However, on 24-6-1978, he requested for being permitted to withdraw the said intimation for retirement which was rejected by the Chief Administrative Officer on 2-7-1978. The premature retirement of the appellant was ordered according to his intimation with effect from 1-11-1978 and he was granted leave preparatory to retirement as admissible under the Rules. Being aggrieved by the rejection of his request for withdrawal he appealed to the competent appellate authority but his appeal was also dismissed on 7-12-1978.

3. The appellant then went in appeal before the Service Tribunal, Islamabad, under section 4 of the Service Tribunal Act, 1973. Out of the three learned Members of the Service Tribunals, two took the view that the option "exercised by the appellant in this case reached the finality on the date of its submission." Referring to the amended Regulation 465-B of the Civil Service Regulations, the learned two Members held that the Government were well within their right not to accept the withdrawal, which stipulated that such option once submitted would be final and not capable of modification or withdrawal. The third learned Member wrote a dissenting opinion and reached the opposite conclusion that regulation 465-B did not contemplate that the right of retirement once exercised becomes final or irrevocable. The appeal was, however, dismissed in accordance with the majority view by the impugned order.

4. Leave was granted by this Court to examine the correctness of the rival opinions formed by the majority of the Members of the Tribunal and the dissenting Member. Before us reliance has been placed on the following two Regulations of the Civil Service Regulations which may be reproduced :

"C.S.R. 4,65-A

For officers mentioned in Article 349-A the rule for the grant of retiring pension is as follows :

(1) An officer is entitled, on his resignation being accepted, to a retiring pension after completing qualifying service of not less than 25 years or in the case of officers of Central Services of the Forests, Geological Survey, Public Works, Railway and Telegraph Departments and any other covered by Article 635 who entered the service before the 6th day of December, 1952, not less than twenty years.

(2) A retiring pension is also granted to an officer who is required by Government to retire after completing twenty-five years' qualifying service or more.

C:S.R.465-B

For officers referred to in Article 349-AAA, the rule for the grant of retiring pension is as follows :

(I) A retiring pension is granted to an officer who exercises his right to retire from service any time after completing twenty-five years qualifying service.

(2) A retiring pension is also granted to an officer who is required by Government to retire after completing twenty-five years' qualifying service. This clause does not apply to a Judge of the Supreme Court or of a High Court or the Comptroller and Auditor-General of Pakistan or an officer who has attained the age of fifty-five years.

Note 1.-Subject to the provisions of the Essential Services (Maintenance) Act, 1952 (LIII of 1952), an officer, other than an officer against whom a departmental proceeding is pending, has the right to retire from service after completing twenty-five years' qualifying service ; provided that an officer who, intends so to retire shall, at least three months before the date on which he intends to retire, submits a written intimation to the authority competent to fill the appointment held by him at the time of submitting that intimation indicating the date on which he intends to retire. Such an intimation, once submitted, shall be final and shall not be allowed to be modified or withdrawn.

Note 2.-Government has the right to retire any officer after he has completed twenty-five years' qualifying service."

5. The case of the Department is that in terms of the clear mandate -of the aforesaid rule 465-B, Note 1, the appellant was not entitled to withdraw the intimation once given by him under this rule in exercise of his right to retire prematurely on completion of 25 years' qualifying service. The crucial words on which reliance has been placed are : "Such an intimation, once submitted shall be final and shall not be allowed to be modified or withdrawn." The learned dissenting Member of the Tribunal, in holding that such intimation can be withdrawn until it is accepted, construed the prohibition on modification or withdrawal to be confined only to the date' of the intended retirement id the communication submitted by an officer. He held that the date of retirement once mentioned in the intimation was not liable to be altered or modified, as that might create administrative complications and dislocation. But in his view, there appeared to be no embargo on the right of the officer concerned to change his mind and withdraw the intimation as a whole for availing premature retirement. This he supported on the proposition that the right conferred by the rule upon a civil servant to unilaterally retire from service upon completion of 25 years' qualifying service, implied the right to undo the same and recall his action before the acceptance of his option to retire.

The reasoning adopted by the learned Member does not appear to us to be sound and tenable. In holding that the bar contained on modification or withdrawal in the rule under interpretation only relates to the date, the learned Member overlooked the important word "withdrawn" occurring in the rule. On a plain reading of the relevant part of the rule it is clear that the intimation once submitted has been given finality and is not liable to be modified or withdrawn. There would be no question of withdrawing a date of retirement, while allowing the option to retire to remain intact. The terminus a qua fixed by the learned Member for the right of withdrawal upto the time of acceptance of the intimation, is also a proposition not sustainable in the very nature of the right conferred on an officer under the rule. The notion of acceptance may be relevant in the case of resignation governed by Regulation 465-A or in ordinary cases governed by the general law of master and servant, because once the resignation is accepted, the relationship ends but as long as the resignation has not been accepted, the servant continues to be in service and would be entitled to withdraw his resignation. However, in the case of Government servant it is well-settled that the general law of master and servant will not regulate the service, which will be governed by the statutory rules. A civil servant holds office during the pleasure of the appointing authority subject to the statutory limitations on the exercise of pleasure. It is in effect and practice now a statutory tenure under the Constitution governed by the rules framed by the competent authority. The rights of civil servants are, therefore, strictly construed in accordance with the relevant rules of service. The right to bring an end to the tenure by voluntary retirement has been give under rule 465-B and is regulated by its terms. The reading of this regulation as a whole as it is stood at the relevant time in this case, leaves. no measure of doubt that upon giving the intimation for premature retirement, the civil servant brings an end to his service tenure unilaterally which he had no power to revoke, in view of the express bar embodied in the regulation.

< [if supportLists]>6. It has, however, been contended that Note I to Regulation 465-B, in so far as it puts a clog on the withdrawal of the intimation for retirement, is ultra vires the main regulation, as the Note is in the nature of a proviso' to the main enacting part of the regulation. We are unable to see any force in this contention. To our mind nothing in the note partakes of the nature of a proviso because it does not take any particular case out of the purview of the main regulation. On the contrary it prescribes the mode of the exercise of the right to obtain retiring pension after the requisite period of qualifying service has been completed which has been given in clause (I) of the main regulation. It may even have the status of independent enacting provision conferring the right upon a Government officer to retire from service under the prescribed conditions. It will be more appropriate to say that the right to such premature retirement has been made contingent upon the fulfilling of certain procedural requirements, namely, that at least three months prior notice should be given from the date of intended retirement in writing to the authority competent to fill the post held by such officer. 1t is in the context of these requirements that the embargo has been placed upon the modification or withdrawal of the intimation. In refusing to permit withdrawal of intimation given by the appellant for his premature retirement, therefore, the department acted strictly in accordance with the relevant rule and committed no illegality in giving effect thereto.

7. Certain judgments were cited on behalf of the appellant but it is not necessary to deal with them here as none of them seems to be relevant to the matter under consideration. However, we may refer to Abdul Ghani v. Government of West Pakistan (P L D 1973 Quetta 4) which relates to an application for premature retirement by a civil servant in the provincial police service. In this case the learned Judges held that the memorandum dealing with the retirement pension which was couched in identical terms as Note I to Regulation 465-B in this case, placed no obstacle in the way of the civil servant to withdraw the intimation for retirement and, therefore, the action of the Government refusing such withdrawal was illegal but the main consideration that prevailed with the Court to rule as stated was that the memorandum upon which reliance was made by the Government was not a rule and had, therefore, no statutory effect. Clearly the case is distinguishable on facts, since, in the present case, the reliance is placed upon a statutory rule which has the force of law.

8. In the result this appeal fails and is accordingly dismissed but with no order as to costs.

Appeal dismissed.

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