1981 PLC(CS) 245

ORDER

N. A. CHOUDHURY (MEMBER).--‑ Mr. F. M. Siddiqui, S. D. O., T & T De partment was retired from service with effect from 13‑3‑72 under M.L.R.

114. He submitted a review petition under M. L. O. 23 on 21st September, 1977. In response to that petition, the Government ordered his clearance without being re‑instated into service vide Establishment Division's Memo. dated the 19th November, 1978. The Officer had attained the .age of superannuation on 9‑7‑1978. He submitted an appeal to the Cabinet Secretariat, Government of Pakistan (Establishment Division), on 12‑12‑1978, followed by a reminder issued on 14‑1‑1979. The precise request made in the departmental appeal was that his retirement should be made effective from 10‑7‑1978 which is‑the date of his superannuation and to treat the period from 13‑3‑1972 to 9‑7‑1978 as leave extraordinary. He also requested for the reification of pay for the period from 13‑3‑1972 to 9‑7‑1978 for the purpose of revision of pension. A request for L P R was also made in the appeal. This departmental appeal was rejected finally on 19.4‑1979. The appeal under disposal was submitted to the Service Tribunal on 16‑5‑79. The appeal was admitted for regular hearing on 3‑2‑80:

During today's hearing, the learned counsel for the appellant. precisely argued that since the Officer has been cleared of the charges, he should be treated to have been reinstated into service with effect from the date he was retired under M. L. R.

114. He should also be treated as on duty for this period counting the period for the purpose of pension both in respect of length of service and fixation of emoluments countable for the calcular of pension. The learned counsel relied on the Establishment Division office Memorandum dated 5‑7‑78, para. 1(b), the relevant portion of which runs as under:

"The pay of re‑instated persons as on the date of re‑instatement may be fixed in the corresponding Revised National Pay Scale of the post held on the eve of dismissal/removal/retirement at the stage which would have been reached if they had continued to remain in service and held the same post. The period of absence may be treated as extra ordinary leave which in the special circumstances of the situation, would count towards increment for fixation of pay."

It was the argument of the learned counsel for the appellant that the period spent without duty has to be treated as extraordinary leave but as against the normal rules and practice in the special circumstance of the situation, is to be counted towards increments for fixation of pay, as is clear from the reading of the above‑quoted sub‑para. of the communication.

The learned State counsel explained that the sub‑para. quoted by the appellant's counsel regulates the period spent without duty in case of the Officers who have been re‑instated into service after clearance. Since the appellant has not been re‑instated, his period from 13‑3‑72 to 9‑7‑78 would not be treated as duty, and would not therefore, count for the purpose of increments and pension. This para. is not applicable to the appellant.

The Departmental Representative argued that the Officer was cleared on account of his age and because he was found exonerated from the considera tions on which he was originally retired.

After hearing both the parties, we have carefully gone through the Government notification dated 19th November, 1978, as well as the communication dated 5‑7‑78. The admitted position is that the Officer has been cleared of all considerations or charges on the basis of which he was originally retired from service under M. L. R.

114. The Government letter dated 19th November, 1978, has used the word "cleared". The only implication of this word is that all the considerations, charges on the basis of which original action of retirement was based, have been accepted now by the Government to be incorrect, and he was exonerated of all those charges/considerations. Once this position is accepted, the Officer has to be treated as cleared with effect from the date he was retired, which is 13‑3‑72 and remained clear up to the date he reached the age of superannuation on 9‑7‑78. During all this period, there was no additional consideration, on the basis of which he could be cleared with effect from al subsequent date in respect of his conduct and official performance. When the Officer was always clear, there is no justification of withholding the right of counting the period as duty for the purpose of fixation of pay countable for pension, irrespective of the fact that he has not 'been re‑instated into service. The crucial question is from what date he has to be considered as cleared. Obviously from the date from which he was originally retired (13‑3‑72). Any other meaning lent to the words of the notification would make the reading of the order as absurd. The benefits contemplated under para. 1(b) of the Government letter dated 5‑7‑78 are therefore, available to the Officer.

We also do not agree with the averment of the departmental represen tative that the clearance was only due to age factor. The last sentence of the communication says that he may be cleared without being re‑instated into service because of age. The wording to us means that re‑instatement has not been done on account of age, otherwise there was no sense in clearing him on account of being old.

We direct that the Officer should be treated as to have been on duty from 13‑3‑72 to 9‑7‑78 treating the period as extraordinary leave to be counted in special circumstances of the situation towards increments for fixation of pay in terms of para. 1(b) of Government Memo. quoted above. After counting this period, his pension should be revised accordingly and pain to him.

The appellant has requested for L P R in the nemo of appeal. It is not possible to accept his prayer because once the date of superannuation age has passed, service cannot be extended beyond the statutory age of retirement by allowing his L. P. R. We are, therefore, not in a position to order this relief in his favour.

Petition dismissed