1988 PLC(CS) 268
1. MALIK MUHAMMAD PARVEZ KHAN (CHAIRMAN). ‑‑Qadeemullah, the appellant was serving as Naib Qasid in the Cooperative Societies, Sardheri, Tehsil Charsadda; District Peshawar, when he received the order dated 4‑4‑1987 vide which he was retired from service from 18‑12‑1985 with the direction to deposit the pay and allowances for the period from 18‑12‑1985 to 28‑2‑1987/recovery from pension and gratuity of the appellant, the said pay and allowances. According to the appellant he joined the department as Naib Qasid some 17 years before and his date of birth entered in the School Leaving Certificate is 6‑1‑1931 which fact was communicated to the respondents and according to the said date of birth he was to retire from service on 6‑1‑1991. Due to certain facts his date of birth was wrongly entered in the service book and accordingly he was retired from 18‑12‑1985 on completion of 60 years and was directed through the impugned letter for the recovery of the emoluments received by him from 18‑12‑1985 to 28‑2‑1987, despite the fact he actually worked during the stipulated period. He made representation and appeal to the higher authorities with the request that his true date of birth is 6‑1‑1931 and he will retire on 6‑1‑1991. Besides this, he actually worked for the period for which he was asked to refund the emoluments. This act of the respondent is ultra vires of the law/rules, illegal, unilateral and not binding upon him. No notice was served upon the appellant before the impugned action was taken against him. He was condemned un‑heard and no opportunity of defending himself was given to him. Respondents were served who submitted the written statement and after observing the other formalities, in the light of the record and arguments the case is decided as under:
2. Learned counsel for the appellant argued that his date of birth is not 18‑12‑1925 but actually per School Leaving Certificate it is 6‑1‑1931 and he would retire on 6‑1‑1991 instead of 17‑12‑1985. The order of recovery of the emoluments was also wrong as he actually worked during the said period.
3. Learned Special Government Pleader on the other hand argued that his date of birth was given by himself and incorporated in the personal record of the appellant. It comes to 18‑12‑1925. Now he cannot say that it was entered incorrectly. So far as the recovery of the salary and other monetary benefits is concerned; since he was to retire on 17‑12‑1985, he cannot be given the emoluments for that period.
4. We have given our patient hearing to the arguments advanced by both the sides. A perusal of the service book maintained by the department would show that on page No.3 the date of birth against column No.5 is given as 18‑12‑1925 and the appellant signed this page at the end against column No.9. It implies that the appellant was not an illiterate person. It was binding upon him to produce the School Leaving Certificate at the time when he joined the service. Now after the passing of the impugned order, he cannot challenge the said entries to be wrong and against facts. Why he slept for such a long time and did not take any steps for the correction of the entry regarding his date of birth. A person who keeps quiet over a continuous wrong is debarred to challenge the same after such a long delay so is the case of the appellant and there being no substance in this contention the same is hereby turned down.
5. Now the question of the recovery of the emoluments after 17‑12‑1985 till his retirement is to be looked into. The appellant actually worked on the post till 28‑2‑1987. No law/bye‑law/rules can debar a person from receiving the emoluments /benefits of the work actually performed by him. Moreso such an order cannot be given retrospective effect. The appellant cannot be penalized for the act‑omission of the respondents. The service record was lying in the office of the respondents and why they did not implement the order of retirement well in time. They cannot force the appellant now to get the said emoluments back from his pension /gratuity. The appeal succeeds qua this preposition. Copy to the department concerned and the file be consigned to the record room.
6. S.Q. /65/Sr.N ????????????????????????????????????????????????????????????????????????? Appeal partly accepted.