1988 PLC(CS) 421

IHSANUL HAQ CHAUDHRY (CHAIRMAN).‑‑ The relevant facts for the decision of the present appeal are that the appellant was serving as Under‑Secretary, SGA&I Department, Government of the Punjab, Lahore. He completed 25 years service qualifying for pension and other retirement benefits. The appellant filed an application to the effect that he was a heart patient since a long time, therefore, he may be allowed to proceed on LPR w.e.f. 20‑10‑1984. The application is dated 2‑10‑1984, and reads as under:‑‑

"I respectfully state that I have served the Punjab Secretariat for the past about 37 years and will attain the age of superannuation on 18‑8‑1987. I am, however, a heart patient since 1965 and have subsequently suffered four heart attacks. I suffered the last heart attack on 30‑6‑1984, and since then I am not keeping good health. I am therefore, constrained to proceed on LPR and request that I may kindly be allowed one year LPR w.e.f. 20‑10‑1984, subject to title.

A.R. Issacs. "

2. This application of the appellant was processed and granted by Government vide order dated 25‑10‑1984. The order reads as under:‑‑

"Mr.A.R. Issacs, Under‑Secretary, Information, Culture and Tourism Wing of Services General Administration and Information Department, is granted 365 days leave preparatory to retirement w.e.f. 20‑10‑1984 to 19‑10‑1985.

2. On expiry of leave Mr. A. R. Issacs, shall retire from service w.e.f. 19‑10‑1985 (AN) i.e. one year, 9 months and 29 days before the date of his superannuation on his own request.

Sajjadul Hasan

Additional Chief Secretary."

The appellant proceeded on LPR but subsequently on 20‑1‑1985, he requested for granting permission to seek employment during the period of LPR. The real object of the applicant was to get LPR cancelled and to resume duty. It is for this reason that the appellant was referred to Medical Board. This impression of ours is fully vouched when we refer to the subsequent application dated 7‑2‑1985, wherein the appellant requested to allow him to withdraw the option of LPR. The relevant portion of the application is as under:‑‑

"I, therefore, humbly request your goodself to kindly agree that I may be allowed to withdraw my option of proceeding or LPR prematurely, and refer my case to the Finance Department for concurrence. There are many precedents of this nature."

This application was considered by Government but was rejected. The decision was conveyed to the appellant vide memo. dated 19‑8‑1985 and it was received by somebody on behalf of appellant but the appellant has now denied having received the original memo. The appellant in the meanwhile made another application for resumption of duty without prejudice to the outcome of his request for withdrawal of application for voluntary retirement. The appellant again made an application on 3‑3‑1986, whereby he requested for intimation of final decision. The appellant once again was informed vide memo. dated 13‑7‑1986, that his request cannot be acceded to.

5. The appellant this time decided to invoke the jurisdiction of this Tribunal and accordingly he filed the present appeal on 13‑9‑1986. The respondent was directed to submit parawise comments vide order dated 22‑9‑1986. The Respondent has maintained the position that the appellant was informed on 19‑8‑1985 therefore, his appeal is badly timebarred and that the appellant once having exercised the option cannot take back the same.

4. We have heard the appellant in person, who in support of the appeal has argued that he was granted relaxation by Finance Department, therefore, he was entitled to resume duty and cancellation of LPR. The appellant has argued that he did not receive the aforesaid letter dated 19‑8‑1985, at all and he is not aware of the person, who received the same.

5. Now we take up the argument of the appellant. The firsts argument that Finance Department had relaxed the rules in his case as to the withdrawal of option once exercised does not inspire any confidence. Neither the appellant has placed anything on record nor there is any such order available on record of the department to substantiate his claim. Be that as it may, the Finance Department was not competent to relax the rules. The legal position as laid down by their Lordship‑, of the Supreme Court of Pakistan in case of Secretary Government of Punjab v. Shamoon Bahadur reported as PLD 1979 SC 835, and relevant portion is given below:‑

"The option having been once exercised it did not lie in his mouth to go back on it in the context of the finality of the consequences ensuing therefrom by its acceptance."

This principle was affirmed by their Lordships of the Supreme Court of Pakistan in case of Province of Punjab v. Muhammad Iqbal reported as 1984 S C M R 334. Their Lordships of the Supreme Court of Pakistan after taking into consideration the decisions of all the superior courts of the Sub‑continent held, that option once exercised cannot be withdrawn. The relevant portion is reproduced below:‑

"In the case under discussion the revocation of leave or retirement offer had taken place long after its acceptance and after it had been acted upon by both the parties. The Tribunal was in error in readily assuming that if a person continues to be in service he can alter his position to any extent and at any moment and for any reason irrespective of the other party dealing with his representation has dealt with it.

In the decision of the Indian Supreme Court an obiter was picked up as the rule of law. The civil servant in that case had proceeded voluntarily on retirement after attaining the age of 55 years and was enjoying Leave after such retirement which he could under the rules and wanted while so enjoying the leave to revoke his offer of retirement. It was held that as the retirement had taken effect and he was enjoying leave Preparatory to Retirement only on the strength of a service rule, he could not be allowed to change his offer. It was after so holding that the learned Judges in that case observed as follows: ‑

"In view of our decision on this point the other point practically loses its force. It may be contended that it is open to a servant who has expressed a desire to retire from service and applied to his superior officer to give him the requisite permission, to change his mind subsequently and ask for cancellation of the permission thus, obtained. But he can be allowed to do so long as he continues in service and not after it has terminated."

We are not commenting or examining the decision of the Tribunal in Noor‑uz‑Zaman's case because that is directly the subject matter of another appeal pending in this Court where it can be examined.

The decision of this Court in Secretary, Government of the Punjab, Food and Co‑operative Department v. Shamoon Bahadur fully covers the controversy raised in this appeal."

6. The appeal must fail on the other point i.e. that the appellant has attained the age of superannuation on 17‑8‑1987, therefore, it is all a futile exercise as the appellant cannot resume duty. The date of superannuation as noted by us had been given by the appellant himself in his application referred to above. We have noted from the file that the date of birth of the appellant is 18‑8‑1927.

7. The upshot of the discussion is that appellant s appeal is dismissed both on merits as well as having become infructuous as the appellant has attained the age of superannuation on 17‑8‑1987.

A.E. /193/Sr.P Appeal dismissed.