MUMTAZ ALI MIRZA Versus GOVERNMENT OF PAKISTAN

ORDER

The appellant joined service in the M. E. S. Department on 6th of June, 1936. On his appointment as V. C. O. in RIASC, he relinquished charge of his post in the M. E. S. on 6‑2‑1943 and joined the Army on 8‑2‑1943 (7‑2‑1943 was Sunday). He was struck off from M. E. S. Establish ment. On release from the Army service he was 'appointed' as clerk 'B' Grade in M. E. S, with effect from 7‑3‑1947, and continued in service till 28‑3‑1968, when he reached the age of superannuation.

2. While determining the amount of pension admissible, the period of service rendered by the appellant from 6‑6‑1936 to 6‑2‑1943, was not treated as qualifying for pension, for the reason that his civil service in the M. E. S. was not continuous and was interrupted by Military service from 8‑2‑1943 to 6‑9‑1947. It is further argued that the case is not covered under Article 371‑A, C. S. R., in view of the fact that "he was not in continuous temporary service on 1‑1‑1949" CMA & P Lahore's letter No. GI/P/13448, dated 14‑1‑1972 refers.

3. It would be seen that there are three distinct periods of service (i) in the M. E. S. from 6‑6‑36 to 6‑2‑43, (ii) in the Army from 8‑2‑43 to 6‑3‑47, (iii) again in the M. E. S. from 7‑3‑47 to 28‑10‑68.

4. Military services from 8‑2‑1943 to 6‑3‑1947 [along with the period at item (iii) has already been allowed to count towards civil pension under the provisions of Article 356, C. S. R. since no pension was earned under Military Rules. One day's absence on 7‑2‑43 which was a Sunday has beer treated by the competent authority to be joining time. This is stated to be covered by Article 420, C. S. R.

5. The question arises whether the period of service at item (i) above, should count for pension. The reason for disallowing the benefit of the service for the purpose of pension (as stated in paragraph 2) is interruption due to Military service. The benefit of this service has been allowed in the matter of fixation of pay in the post held in M. E. S. with effect from 7‑3‑1947. In fact, this very service, which is stated to be the cause of interruption has been counted for the purpose of civil pension.

6. The actual period of `interruption of one day i.e. 7‑2‑43 has been treated as joining time, under the provisions of Article 420, C. S. R. thereby treating for all intents and purposes, the entire period as continuous.

7. An entry in the Service Book (item 29) appears as follows:

"On his appointment as V. C. O. in RIASC, reported departure on 6‑2‑43 and struck off from the strength of M. E. S. from the same date vide G. E. Kala East No. 7 dated 13‑3‑43".

8. The learned counsel for the respondents interprets the terns 'struck off' in the entry as `termination' of service, or as resignation thereby implying `forfeiture' of all previous service. In support of his contention, he cited Supreme Court judgment (P L D 1975 S C 7). The judgment referred to relates to a case of termination of service and is not therefore relevant in the context of the present case.

9. The present case is neither a case of resignation nor one of termination of service. The appellant, who had put in 6 years and 8 months service in the M. E. S. in a civil post joined Army service (combatant) with the permission of the M. E. S. Authorities who not only allowed him joining time but also recovered from him the amount of gratuity/bonus earned. The contention that the recovery is erroneous and the amount recovered could now be refunded is untenable.

10. The order relating to appointment to the Army or the one relieving him from the M. E. S. to take up the appointment in the Army has not been produced by either of the parties. The actual conditions on the basis of which the appellant was relieved cannot be determined.

11. It is however admitted that the juniors of the appellant continued to work in the M. E. S. and there was therefore no possibility of the appellant having been discharged from service or retrenched although the nature of the post held was temporary.

12. In the circumstances of the case, we hold that the service of the appellant is continuous and the Military service which already qualifies for civil pension, would not constitute interruption in service (between the period of service under items (i) and (iii)) and that the provisions of Article 371‑A (a) allow the benefit claimed and order that the respondents do count the period from 6‑6‑36 to 7‑2‑1943 towards service qualifying for pension and revise and authorize payment of the superaonuation pension accordingly.

13. No order as to costs.