KHALID YUSUF KHAN vs GOVERNMENT OF PAKISTAN And Another
This petition for leave to appeal challenged a judgment of the Federal Service Tribunal, which had dismissed the petitioner's appeal against the refusal of the Income Tax Department to allow him to resume duty. The petitioner, a civil servant, had remained absent from duty for over five years, citing medical grounds for his stay in the United Kingdom following the expiry of his sanctioned leave. The core legal question was whether the petitioner ceased to be a government servant automatically under Fundamental Rule 18 due to his continuous absence exceeding five years, and whether this cessation required a prior inquiry or notice. The Supreme Court held that the petition lacked merit. The Court ruled that under Fundamental Rule 18, a civil servant who remains absent from duty for a continuous period of five years, unless otherwise determined by the competent authority, ceases to be in government employment by operation of law. The Court affirmed that this rule does not necessitate a formal inquiry or prior notice, as the cessation is automatic upon the expiry of the statutory period.
- Does a civil servant cease to be in government employment automatically after five years of continuous absence under Fundamental Rule 18?
- Is a formal inquiry or notice required before a civil servant ceases to be in government employment due to five years of continuous absence under Fundamental Rule 18?
- Does Article 24 of the Constitution of Pakistan 1973 apply to the cessation of government employment due to unauthorized absence?
- Fundamental Rule 18, Fundamental Rules
- Article 24, Constitution of Pakistan 1973
ORDER
AJMAL MIAN, J.---This is a petition for leave to appeal against the judgment dated 19-9-1993 passed by the Federal Service Tribunal, Islamabad (hereinafter referred to as the Tribunal) in Appeal No. 34(K) of 1992 filed by the petitioner against disallowing him to report for joining respondent department, dismissing the same.
2. The brief facts are that the petitioner joined Income Tax Department in 1964, through selection by Federal Public Service Commission. It seems that when he was working as an Income Tax Officer (B-18), his services were placed at the disposal of Investment Corporation of Pakistan for appointment as an Investment Promotion Officer, in the Investment Centre, London through a notification dated 7-4-1976. He remained on deputation on the aforesaid post for six years from 29-4-1976 to 8-7-1982. It appears that immediately after re-version from the Investment Corporation of Pakistan, the petitioner was granted ex-Pakistan leave for 833 days under different notifications by the competent Authority. On the expiry of the above leave which was granted ex- Pakistan, the petitioner assumed charge of the post of Second Secretary (B-18) in Central Board of Revenue, Islamabad on 120-8-1984. He was promoted to BPS-19 on 22-8-1984. It seems that after serving for a few months in C.B.R. And Regional Commissioner Income ' Tax's Office at Karachi, the petitioner again applied for ex-Pakistan leave, which was granted to him for 211 days for a period from 14-10-1984 to 4-5-1985 on medical grounds. He again applied for further leave beyond 4-5- 1985 which was not granted. The Embassy of Pakistan in London was requested to arrange medical examination of the petitioner and to furnish medical authority's recommendations about the petitioner's prospects of return to duty. Thereupon, the Embassy of Pakistan sent a report of medical examination of the petitioner from the concerned hospital, which recommended that the petitioner should stay in U.K. For the rest of his life in order to enable him to receive medical and surgical treatment that he may require as a result of his renal failure and subsequent kidney transplant.
Though the petitioner was not granted any further leave beyond 4-5-1985 but he did not resume duty. He was asked by the Regional Commissioner Income Tax, Karachi, through his letter dated 1- 6-1986 to join his duties but the petitioner showed his inability through his reply dated 22-7-1986 on the ground that he needed more leave for his medical treatment in U.K. It appears that after overstaying more than six years, the petitioner reported for duty on 29-8-1991 but he was not allowed to join duty. The petitioner submitted an application dated 31-10-1991 to the Member (Income-Tax), C.B.R., Islamabad for allowing him to join duty. In response to the petitioner's above application, he was informed through C.B.R's. Letter dated 17-2-1992 that since he had remained absent from duty for more than five years, he ceased to be a Government servant in accordance with the provision contained in F.R. 18 and, therefore, could not be allowed to join duty in the Income-Tax Department. Thereupon, inter alia he filed the above service appeal which has been dismissed by the Tribunal through the above judgment. Tile petitioner has, therefore, filed present petition for leave to appeal.
3. In support of above Mr. Muhammad Naseem Ahmad, learned A.S.C. For the petitioner has vehemently contended that the petitioner has been condemned unheard which violated Article 24 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred. To as the Constitution). The above contention seems to be devoid of any force. In this regard it may be pertinent to produce the F.R. 18 which reads as follows:-- "Unless the Governor-General in view of the special circumstances of the case, shall otherwise determine, after five years' continuous absence from duty, elsewhere than on foreign service in Pakistan whether with or without leave, a Government servant ceases to be in Government employ."
A perusal of the. Above-quoted F.R. 18 indicates that if a civil servant remains absent from duty for a continuous period of five years unless the Governor-General now the President orders otherwise, he ceases to be in Government employ. The above rule does not require holding of any inquiry or giving of any notice. The Article 24 of the Constitution referred to by, the learned counsel for the petitioner has no relevance to the present case as it deals with the property rights. In the present case the petitioner was told repeatedly to join duty which he failed to do and therefore after the expiry of five years above F.R. 18 was attracted to. The petition has no merit. Leave is refused.