MUHAMMAD ASLANT Versus DEPUTY DIRECTOR, FOOD, LAHORE REGION

In this case the appellant, Muhammad Aslam, a Junior Clerk in the Office of the District Food Controller, Sialkot, impugns the letter written by Government in the Food Department on 14th March, 1981 to the Director Food, Punjab, and endorsed to the appellant on 11th May, 1981, by the District Food Controller, stating that the appellant must be retired immediately as stated by Government in its earlier order of 28th February, 1980/25th September, 1980. The appellant tiled this appeal with this Tribunal on 4th May, 1981 and after preliminary hearing in which he urged that legally he was in service and could not be retired, was granted a stay till the decision of appeal.

2. Briefly stated, the facts of this case are appellant, on his own initiative, applied for one year's L. P. R. to be effective from 1st January, 1979. As no sanction was received even after that date had passed, he made another application for L. P. R., this time w. e. f. 1st April, 1979. L. P. R. was granted vide order dated 17th March, 1979 passed by the Deputy Director Food, Lahore Region. However, the appellant was not relieved of his duties by 1st April, 1979, and on 27th April, 1979, the D. F. C. Sialkot, moved the D. D., Lahore Region, that his office was extremely short‑staffed already that he was not in a position therefore to relieve the appellant and that the L. P. R. of the appellant may be with held. Since he was not relieved, the appellant continued to work and ultimately put in an application that "since I have not been relieved from duties I withdraw my request for L. P. R." which was duly recommended by the D. F. C. to the D. D. Lahore, on 19th March, 1980 alongwith the recommendation that the appellant be promoted as Senior Clerk for his hard work and efficiency. Meantime, the appellant filed an appeal that since his junior had been promoted senior clerks he should also be pro moted. This matter was taken up by the D. D. with the Director of Food who, after some correspondence on 2nd June, 1980, taking note of the fact that the D. F. C. did not realise the importance of not relieving the appellant, advised that the appellant may finally state whether he intends to go on L. P. R. or not and that he may then be considered for promotion; all this being contingent on the advise of the Administrative Department, later when the appellant stated his final intention of not going on retire ment, the matter was taken up with Government in the Food Department. Government called for the D. F. C's explanation and ordered at the same time that the appellant be' retired immediately. This was on 15th September, 1980. But the D. F. C. in a letter on 25th September, 1980 again requested the D. D. to allow the appellant to continue in service and praised his work and conduct excessively. This was further recommended by the D. D. to the Director Food and the example of Gulzar Ahmad, Junior Clerk of the Office of Rationing Controller, Lahore, quoted wherein that official was allowed to withdraw his L. P. R. although he had availed himself of a major portion of the leave. The Director, in his turn, referred the matter again to the Secretary Food who then issued the final letter of 14th March, 1981, impugned by the appellant.

3. Arguments were heard and the record of the case examined. The pleadings made on behalf of the appellant were simple ; admittedly L. P. R. had been granted but the order is not implemented and he was not relieved. It was also admitted that the appellant, because of his changed circumstances, was no longer interested in premature retirement. It was through no fault or shortcoming on his part that he continued in service. His superiors were full of praise for his work and wanted to retain him. The decision to seek retirement was purely his own, and since he had been made to work for more than a year after the start of L. P. R. he no longer considered it fruitful to retire. The important point in favour of the appellant, according to learned counsel, was that the competent authority till October, 1980, was of the view that he was indispensable and contributed indirectly to his retention in service even after the first advice of Government to the contrary. Learned counsel cited case law in support of his contention and referred in particulars to Abdullah Javed v. Food Deptt. Appeal No. 181/1022 of 1981 decided by the Tribunal in favour of that appellant, and the case of Khurshid Muhammad v. S. P. Muzafargarh etc. (N L R 1980 T D 109) On the other hand, the learned District Attorney argued that order of L. P. R. once made could not be withdrawn and cited the Supreme Court's judgment in the case of Shamoun Bahadur v. Secretary Food, Punjab (P L D 1979 S C 835) laying down that the date of retirement once fixed by the competent authority could not be altered.

4. I have considered all these points very carefully. This is a rather unusual case, in that the competent Authority and the appellant are almost one in their view of the matter but the competent authority is inhibited by the advice of Government. The judgment of the Supreme Court in Shamoun Bahadur's case is a guiding light in such matters where a civil servant changes his mind about proceeding on retirement. As stated above, that judgment lays down that the date of retirement once fixed by the competent authority cannot be altered and that withdrawal of request to proceed on retirement after the effective order of retirement had been passed cannot be allowed. 1n the instant case, however, the facts are somewhat different. It is true that the effective order fixing the date of retirement was passed on 17th March, 1979 and that the appellant changed his mind about retirement more than a year after this date, but the circumstances in between these two events cannot be passed over lightly. In the case of the appellant the date of retirement i.e. 1st April, 1980 was connected with the date of his proceeding on L. P. R. i.e. 1st April, 1979. But then the fact is that the appellant was not allowed to proceed on L. P. R. Admittedly the L. P. R. was never cancelled, nor was the order fixing the date of retirement taken back, but the fact remains that the competent authority who granted the leave and fixed the date of retirement was itself not averse to the appellant continuing in service. The Head of the Department, the Director Food, himself was also not against the appellant continuing in service and, although by his letter of 2nd June, 1980 he stated that the final decision would be that of Government, he also stated in so many words that "the official may submit his intention again whether or not he intends to proceed on L. P. R. "after which the advice of the A. D. would be sought.

5. One feature of this case which strikes me particularly as worthy of attention is that the competent authority, i.e. the D. D. Food Lahore Region, himself recommended to the Director Food on 4th May, 1980, that "the orders of L. P. R. already sanctioned may be allowed to be with. " deemed fit." In my view the D. D. was only hesitating to exercise his own powers in the matter. When he sanctioned the L. P. R. of the appellant and fixed the date of retirement he did not have to obtain the approval of the Director Food. Why then must be seek protection of the Director's Umbrella if he considered that withdrawal of L. P. R. was in the public interest? I am inclined to treat his recommendation of the appellant's case to the Director as tacit approval of taking back the L. P. R order in fact, as approval which only needed the issuance of a formal order.

6. Although this Court is bound to decide every case before it in the light of the law and rules, I am not able to divorce myself completely from the commonsense point of view in a matter like this. A civil servant applies for L. P. R. He is granted it but is not allowed to avail himself of it because he is supposed to be very good at his work and his superiors feel that it would not be in the public interest to let him leave his duty. Ultimately he also changes his mind about going on premature retirement. The position then is the civil servant does not want to go, his superiors do not want him to go, the competent authority agrees that he should stay on. This authority is however, not ready to issue the required order without authorisation from its superiors who are inhibited by a Govern ment instruction in the matter. The upshot of the whole situation is that the various authorities who can take the decision to retain the civil servant want some one else to take the decision for them. The appellant himself asked for L. P. R, he was not being eased out of office by a dissatisfied employer. The competent authority should have resisted the appellant's attempt to continue in service only if the authority itself did not want him any longer. Since it was not against his continuance there was no hurdle in its way to take back the order of L. P. R. But the authority does not seem to be able to bring itself about to pass that order.

7. In the light of the above discussion, both on the legal plane and in the commonsense view of the matter, I hold that since the appellant was not permitted to enjoy the L. P. R. the order, regarding L. P. R. lost its force and so did the order fixing the appellant's date of retirement. The orders of 17th March, 1979 passed by the D. D. Food, Lahore Region, is therefore, formally set aside as being of no legal avail. Other orders directing the appellant's retirement are also declared to be null and void.

8 The result of the above finding is that the appeal is accepted. There shall however, be no order as to costs.

M. I. Appeal accepted.