MUHAMMAD ALI Versus COMMISSIONER, FAISALABAD DIVISION

ABDUL HAMID CHAUDHRY (MEMBER). ‑ Muhammad Ali Patwari has filed this appeal under section 4 of the Punjab Tribunal Act 1974, in which he has impleaded the Commissioner, Faisalabad Division; Faisalabad and the Government of the Punjab through Member Board of Revenue, Punjab Lahore as respondents.

2. By virtue of this appeal, the appellant has prayed that the impugn order, dated 16th September, 1982 of the Commissioner, Faisalabad Division, Faisalabad be modified to the extent that the period from 20 th May, 1977 to 16th September, 1982 which was treated as leave without pay, through this order, be declared on duty and he also be given con sequential benefits.

3. Brief facts of the case are that the appellant, Muhammad Ali, Patwari, was recruited as Patwari on 7th April 1947. ‑ He was compul sorily retired after completion of 25 years qualifying service for pension as provided under section 12 (ii) of Punjab Civil Servant Act, 1974 by the Deputy Commissioner, Jhang on 20th November, 1976. The appellant filed representation against the said order and the Commissioner, Sargodha Division, vide his order, dated 18th January, 1977 remanded the case to the Assistant Commissioner, Chiniot, who passed the same order on 20th May, 1977. The appellant filed an appeal before the Punjab Service Tribunal Vide order, dated 18th February, 1980 the Tribunal directed the appellant to exercise his right of representation. The appellant made a representation to the Commissioner who vide his order dated 16th September, 1982 rescinded the order of the retirement of the appellant issued under section 12 (H). The appellant was reinstated w. e. f. 16th September, 1982. However, the period for which the appellant remained out of service i. e., from 20th May, 1977 to 16th September, 1982, was treated as leave without pay. Hence this appeal.

4. We have heard the parties. It has been argued by the appellant himself that as his order of retirement under section 12 (ii) has been rescinded by the Commissioner, Faisalabad Division, Faisalabad, hence he is entitled to be treated on duty, the period for which he remained out of service. He prayed that the period from 20th May, 1.977 to 16th September, 1982, be directed to be declared on duty with all consequential benefits.

5. Rebutting the above claim of the appellant, the learned District Attorney has relied upon the parawise comments submitted by the respon dent No. 1 on the appeal of the appellant and has submitted that the order passed regarding treating of the period out of service, as leave without pay, .is in accordance with the rules, is justified and this is also within the competency of the competent authority to decide it accordingly.

6. We have given our anxious thought to the arguments of the parties. We have already dealt this issue in the judgment of this Tribunal in Case No. 9/1275 of 1982, Shabih‑ur‑Raza v. Superintendent of Police, Crime, Punjab, Lahore etc. dated 2nd March, 1983 para. 5 of which is reproduced as under :‑ "and have also consulted the record from the S & GAD on the issue. A reference the made to UO. No. SORI. (S & GAD) 4.21/80 dated Lahore, the 25th August, 1980 while dealing with the cases of Wali Muhammad, Under‑Secretary, Muhammad Farooq Qureshi, Under‑Secretary, Mr. Muhammad Siddiq Malik, Section Officer and Mr. Afzal Baig Mirza, whose orders of retire ment under section 12 (ii) of the Punjab Civil Servants Act, 1974, were rescinded; the following advice was given by the Under Secretary 1, Regulations Wing to the Under Secretary (S‑VIII), Government of the Punjab, S & GAD, Lahore:‑--

"Retired civil servants, on rescinding of the orders of retirement, revert to the position occupied by them before retirement viz. `Duty' and as such the intervening period should be treated as duty;

Similarly in case of Dr. Humayun Akhtar, Professor of Operative Dentistry, Muhammad Afzai, Blood Donor Organizer and Abdul Haque Tasser Wajdan, Lecturer, whose orders were rescinded, the same advise was conveyed by the Regulations Wing of the S 8 GAD by Under‑Secretary (Reg. I) to Under‑Secretary (S‑VII), Government of the Punjab, S & GAD, vide U. O. No. S. O. R. I. (S & GAD) 4‑25/80, dated 9th November, 1980, as follows;

'Service Wing has already advised in Regulations Wing's U. O No. S. O. R. I. (S. & GAD) 4‑21/80, dated 25th August, 1980 addressed to Section Officer (S‑VIII), that retired civil servants on rescinding of the orders of retirement revert to the position occupied by them before retirement viz. 'Duty' and as such the intervening period should be treated as Duty.'

The case of the appellant is of similar and identical nature wherein he was retired under section 12 (ii) of the Punjab Civil Servants Act 1974 and reinstated in service by the competent authority on acceptance of the review petition of the appellant. Thus as per advise of the Regulations Wing on the issue, I hold that the period from 1 st March, 1980 to 20th July, 1981 should have been treated on 'Duty' and not as leave of kind due " "

7. Keeping in view the above judgment on the same issue, the appeal of the appellant is accepted and it is directed that the impugned order dated 16th September, 1982 of Commissioner, Faisalabad Division, Faisalabad be modified to the extent that the period for which the appel lant remained out of service i.e., from 20th May, 1977 to 16th September, 1982 should not be treated as `leave without pay' but instead shall be treated "on duty".

There will be no order as to costs.

A.E, Appeal accepted.