Case Laws on Resignation of Civil Servants

Case Laws on Resignation of Civil Servants

Case Laws on Resignation of Civil Servants سرکاری ملازمین کی استعفی سے متعلق مقدمہ کے قانون

Civil Service Regulations 418

Resignations and Dismissals

418. (a) Resignation of the public service, or dismissal or removal from it for misconduct, insolvency, inefficiency not due to age, or failure to pass a prescribed examination entails forfeiture of past service.
     (b) Resignation of an appointment to take up another appointment, service in which counts is not a resignation of the public service.
419. Any authority who, on revision or appeal, reverses; an order dismissing (or removing) an officer, may declare that the officer’s past service counts. Source: Civil Service Regulations

Regulation 418(a) highlights those resignations, which arise from misconduct, insolvency, inefficiency not due to age or failure to pass a prescribed examination and all such resignations which entail forfeiture of past service.

Whereas resignation of an appointment to take up another appointment, in which service counts, is not a resignation of the public service. As the public service continues and as service in both appointments counts, this principle of common sense is enunciated in Regulation 418(b) declaring in unequivocal words that such resignation is not a resignation of the public service and hence, the consequences of resignation under Regulation 418(a) are not similar to the consequences of resignation under Regulation 418(b).

2019 PLC (C.S) 572 (Case Law regarding Resignation of Civil Servant)

AIR 1954 S.C 584 (Case Law regarding Resignation of Civil Servant)

1992 SCMR 2135 (Case Law regarding Resignation of Civil Servant)

Here is the complete case:

MUHAMMAD MUNIR-UL-HAQ VS MUHAMMAD LATIF CHAUDHRY

1992 S C M R 2135

[Supreme Court of Pakistan]

Present: Nasim Hasan Shah, Shafiur Rahman and Rustam S. Sidhwa, JJ

Dr. MUHAMMAD MUNIR‑UL‑HAQ and others‑‑‑Appellants

versus

Dr. MUHAMMAD LATIF CHAUDHRY and others‑‑‑Respondents

Civil Appeals Nos.178 of 1986, 582 and 583 of 1990, decided on 29/04/1992.

(On appeal from the judgment of the Punjab Service Tribunal, Lahore dated 19‑2‑1986 passed in Case No.910/1159 of 1984).

(a) Civil service‑‑‑

‑‑‑’Resignation”‑‑‑Meaning‑‑‑Resignation has to be intentional and voluntary and means “formal renouncement or relinquishment of an office”‑‑ Resignation must be made with intention of relinquishing the office accompanied by act of relinquishment‑‑‑Totality of the circumstances have to be taken into consideration for drawing a conclusion whether the resignation tendered was voluntary or not.‑‑‑[Words and phrases].

Black’s Law Dictionary quoted.

Dr. Khalida Usmani v. Dr. M.H.Randhawa and 4 others 1984 CLC 119; Abdullah Khan Kakar v. Province of Balochistan PLD 1979 Quetta 168; Khangeshwar Prased Yadav v. The Secretary, Ministry of Communication and others 1988 SLR 442; Lt: Col. Farzand Ali and others v. Province of West Pakistan through The Secretary, Department of Agriculture, Government of West Pakistan, Lahore PLD 1970 SC 98; Gokaraju Rangaraju v. State of Andhra Pradesh AIR 1981 SC 1473; Abdul Salam Qureshi and another v. Judge, Special Court of Banking for Sindh and another PLD 1984 Kar. 462; Atlas Autos Limited and 5 others v. National Industrial Relations Commission and 16 others PLD 1990 Kar. 362; Dilbar Hussain v. Province of Punjab and others 1980 SCMR 148; Secretary, Government of Punjab, Food and Co operation Department v. Shamoon Bahadur PLD 1979 SC 835; Province of Punjab through The Deputy Director Food, Rawalpindi Region v. Muhammad Iqbal, Ex‑Foodgrains Inspector 1984 SCMR 334; Kuchwar Line & Stone Co. Ltd. v. Secretary of State and others AIR 1937 Pat. 65; Syed‑ Ghousuddin Ahmed v. Chairman, Karachi Port Trust PLD 1967 Kar. 275; Chitty on Contracts, Vol. I, General Principles, Monographs,274 & 275; Abraham Reuben v. The Karachi Municipality AIR 1929 Sindh 69; Muhammad. Khan v. Pakistan through Secretary, Ministry of Interior, Karachi PLD 1958 Kar,75; Muhammad Yaqub Shah v. Superintendent of Police, Muzaffargarh District and 2 others 1980 PLC (C.S. 215); P.Kasilingam v. P.S.G, College of Technology 1982 PSCC 151; Union of India etc. v. Gopal Chandra Misra and others AIR 1978 SC 694; Rahim Bakhsh v. Chief Election Commissioner and others PLD 1967 Lah.49; Imtiaz Ahmad v. Ghulam Ali and others PLD 1963 SC 382; Khuda Bakhsh v. Khushi Muhammad and 3 others PLD 1976 SC 208; Mst. Rehmat Bibi and others v. Punnu Khan and others 1986 SCMR 962; Muhammad Ibrahim Munshey and others v. Province of West Pakistan through Chief Secretary and others PLD 1968 SC 1;.WAPDA and another v. Abdul Rashid Dar and others 1990 SCMR 1513; Province of Punjab v. Ikramul Haq and another 1986 SCMR 1994; Mazhar Ali v. Federation of Pakistan/President of Pakistan through The Secretary, Establishment Division and 2 others 1992 SCMR 435; Messrs Macdonald Layton Constrain Limited, West Wharf,, Karachi v. Punjab Employees’ Social Security Institution, Lahore and 2 others PLD 1991 SC 1055; Chairman, District Secreening Committee, Lahore and another v. Sharif Ahmad Hashmi PLD 1976 SC 258; S. Sharif Ahmad Hashmi v. Chairman, Screening Committee, Lahore and another 1978 SCMR 367; Messrs Mumtaz Industries through Haji Karim Bakhsh and 2 others v. Industrial Development Bank of Pakistan and another PLD 1991 SC 729 and Bell and another v. Lever Brothers Limited and others 1932 AC 161 ref.

(b) Civil Service Rules (Punjab), Vol. II‑‑‑

‑‑‑‑R. 4.19‑‑‑Rule 4.19 has a restricted application to the computation of pensionable service and has nothing to do with the nature of service or the rights other than those relatable to pension‑‑‑No wider claim to enjoy the character of a Government servant or to watch seniority can be advanced under R. 4.19.

(c) Contract‑‑‑

‑‑‑‑Solemnity of contractual obligation

Messrs Mumtaz Industries through Haji Karim Bakhsh and 2 others v. Industrial Development Bank of Pakistan and another PLD 1991 SC 729; Bell and another v. Lever Brothers Limited and others 1932 AC 161 ref.

(d) Estoppel‑‑‑

‑‑‑‑Party to a contract who has enjoyed a benefit under it cannot, when the right to get either rescission or reformation of the contract is barred, say that he is not bound by one of its terms.

Principles and Digest of the Law of Evidence by M. Monir, Vol. II, p.1247, S.115 quoted.

Sh. Ghias Muhammad, ‘ Zakiuddin Pal, Raja Muhammad Anwar, K.M.A. Samdani, Senior Advocates, Saleem Saighal, Advocate and Ch. Akhtar Ali, Advocate‑on‑Record (absent) for Appellants (in CA. No. 178 of 1986).

Sh. Ghias Muhammad, Zakiuddin Pal, Raja Muhammad Anwar, Senior Advocates and Ch. Akhtar Ali, Advocate‑on‑Record (absent) for Appellants (in CA. No.582 of 1990).

Maqbool Elahi Malik, Advocate‑General, Punjab instructed by Rao Muhammad Yusuf Khan, Advocate‑on‑Record for Appellants (in CA. No. 583 of 1990) and for Respondents Nos.2 and 3 (in C.As. Nos. 178 of 1986 and 582 of 1990).

S.M. Zafar, Senior Advocate, Zahid Hussain, Advocate, Khan Imtiaz Muhammad Khan, Advocate‑on‑Record (absent) for Respondent No. 1 (in all Appeals).

Respondents Nos. 4 to 39; Ex: parte (in CA. No.178 of 1986).

Nemo for Respondents Nos. 4 to 34, 36 to 38 and 35 (in CA. No.582 of 1990 and in all in CA. 583 of 1990) except Respondent No.1.

Dates of hearing: 2nd, 3rd and 4th March, 1992.

JUDGMENT

SHAFIUR RAHMAN, J.‑‑‑These three appeals under Article 212(3) of the Constitution arise out of the same judgment of the Punjab Service Tribunal dated 19th of February, 1986. The question of law requiring examination in these appeals are, inter alia, “whether the question of the bar of limitation could be overcome by making the general observations as was done by the Service. Tribunal. Further, on merits when the respondent No.1 had himself submitted his resignation and had preferred a. job other than the one which he was being offered by the Government could he be allowed to repudiate his own act”.

2. The factual background of these appeals requires disclosure in some detail.

Dr. Muhammad Latif Chaudhry (respondent No.1 in all appeals) who was the appellant before the Service Tribunal was offered a temporary post of Assistant Professor of Opthalmology on the recommendation of the West Pakistan Public Service Commission by the Government of West Pakistan by a letter dated 14th of September, 1967. He took up the appointment. He was confirmed in the same post with effect from 26‑11‑1968 by an Order dated 18th of May, 1971.

3. In Lahore, there happened also to be Fatima Jinnah Medical College, Lahore. It was set up and housed in the building of Balak Ram Medical College which alongwith its attached hospital known as Ganga Ram Hospital, Lahore was non‑Muslim evacuee trust property. After independence, a society by the name of the Association for the Control and Management of the Fatima Jinnah Medical College, Lahore and Sir Ganga Ram Hospital, Lahore was formed on 2‑5‑1950 ‘and registered under the Societies Registration Act, 1860 on 9‑5‑1950. One of the objects of the Society was to maintain and manage this College and Hospitals. There were seven members of the Society. The Management of the affairs of the Society was vested in Governing Body consisting of sixteen members, to be constituted as hereunder:‑‑

“(1) Director‑General of Health Pakistan, during the term of his office, who shall also be the Chairman of the Governing Body.

(2) Director of Health Services, Punjab, during the term of his office, who shall also be the Honorary Secretary.

(3) Accountant‑General, Punjab, during the term of his office, who shall also be the Honorary Treasurer.

(4) Surgeon‑General with the Government of East Bengal.

(5) Inspector‑General of Civil Hospitals, N: W.F.P.

(6) Inspector‑General of Civil Hospitals, Sindh.

(7) Six members to be nominated by the Central Government of Pakistan.

(8) Four members to be nominated by the Punjab Government.”

For performance of functions, “the Society was to have an executive committee for attending to day to day work.. Four nominees of the governing body, including the Honorary Secretary and the Honorary Treasurer, Principal of Fatima Jinnah Medical College and Medical Superintendent, Sir Ganga Ram Hospital, who was also to be the Ex Officio Secretary of the Committee, were to constitute the executive committee. The executive committee through its Secretary was to maintain the accounts of the Society and all money received was to be deposited in Lloyds Bank Limited, Lahore, or any other scheduled Bank in Pakistan to the credit of the Society. The Honorary Treasurer and the Honorary Secretary of the governing body were jointly to operate the bank accounts. The governing body and the executive committee had all along been performing their functions under the rules and regulations of the Society”.

4. On 1‑4‑1972, came to be enforced Chief Martial Law Administrator Regulation No.118 (hereinafter referred to as MLR 118). The material provisions of it are contained in paragraphs 4, 7 and 17 which are reproduced hereunder:‑‑

“4. As from the first day of September, 1972, all privately‑managed colleges, together with all property attached to them, shall vest‑‑

(a) in the Central Government, if they are situated in the Islamabad Capital Territory; and

(b) in the Provincial Government, if they are situated in a Province.

7.‑‑(1) No person who owns or manages a privately‑managed college or a privately‑managed school shall‑‑

(a) employ or engage any person for the purposes of the college or school, other than a person who was so employed or engaged immediately before the fifteenth day of March, 1972; or

(b) save as otherwise provided in subparagraph (2), change the terms and conditions of service of any person in his employment immediately before the fifteenth day of March, 1972.

(2) As from the Ist day of October, 1972, the teachers of all privately managed colleges and privately‑managed schools shall be entitled to the same scales of pay to which the teachers of equivalent qualifications, seniority and experience in the colleges and schools maintained by Government are entitled.

17. Contravention of any of the provisions of this Regulation shall be punishable with rigorous imprisonment for a term which may extend to three years, or with fine, or with both.”

5. Notwithstanding these self‑operative provisions of MLR 118, the Governing Body of the Fatima Jinnah Medical College continued to function and to exercise all the powers and authority in respect of the College till 1‑7‑1980 when a notification, taking notice of and giving effect to the provisions of MLR 118, appeared on the scene.

6. Soon, after his confirmation as Assistant Professor Ophthalmology notified on 18‑5‑1971, w.e.f. 26‑11‑1968, the Government of the Punjab in the Health Department permitted the deputation of respondent No.1 on a higher post in the Fatima Jinnah Medical College as would appear from the following sanction letter:‑‑

“Dr. Muhammad Latif Ch., Assistant Professor, Ophthalmology, King Edward Medical College, Lahore, is hereby deputed to Fatima Jinnah Medical College, Lahore for appointment as Professor of Ophthalmology vice Dr. Raja Mumtaz Qjli Khan already repatriated to the parent Department.

The terms and conditions to be offered to Dr. Muhammad Latif Ch. on deputation as Professor of Ophthalmology to Fatima Jinnah Medical College, Lahore, may kindly be communicated after having the approval of the Executive Body.”

A request was also addressed to the Principal, King Edward Medical College, Lahore to the effect that “Dr. Muhammad Latif Ch. may immediately be relieved for taking charge of his new assignment, as Professor of Ophthalmology, Fatima Jinnah Medical College, Lahore”.

7. The formal letter of deputation issued in October, 1973 and incorporated the terms as hereunder:‑‑

“The Government of the Punjab is pleased to depute Dr. Muhammad Latif Chaudhry, Assistant Professor, Ophthalmology, K.E.M.C., Lahore to F.J.M.C., Lahore, for appointment as Professor of Ophthalmology for a period of two years with effect from 18‑5‑1973 on the following terms and conditions:‑‑

(i) He will be allowed to receive the pay and technical pay admissible to him as Assistant Professor in the parent Department plus a deputation pay at the rate of 20% of his basic pay while on deputation. If he promoted as Professor in his parent department he ‑will not be entitled to any deputation pay.

(ii) He will be entitled to leave, medical facilities and TA/DA as admissible to him under the Government while on deputation. Pay/TA/DA for joining the post under the FJMC, Lahore and on his repatriation to the parent department shall be the responsibility of the Governing Body of FJMC, Lahore.

(iii) The Governing Body of FJMC, Lahore, will pay towards leave, salary and pension contribution through the Accountant‑General, Punjab, Lahore, for the entitled period of deputation at Provincial Government rates.

(iv) He shall be entitled to residential accommodation in accordance with the instructions contained in Finance Departments’ Circular Letter No.PS‑11‑13(2)/Estt. dated 7‑7‑1966.”

8. On 5‑12‑1974, an anticipatory communication was addressed by Principal, Fatima Jinnah Medical College, Lahore, to the Secretary to Government of the Punjab, Health Department, in terms as hereunder:‑‑

“Dr. Muhammad Latif Chaudhry has been working in this College as Professor of Ophthalmology since 18‑5‑1973. He has built up a new unit and has ordered eye equipments worth Rs.7‑1/2 lacs which will be received during this year. I have heard that he is going to be promoted in his parent department and he is being recalled. All the labour that he has put in here in this College and the equipment worth Rs.7‑1/2 lacs would be a waste if he is shifted from here. Even the students will suffer. It is requested that he may be promoted and allowed to stay in this College.”

As anticipated, Dr. Muhammad Latif Chaudhry/respondent No.1 was promoted a few months thereafter and the notification dated 24‑4‑1975 was issued on the subject, as hereunder:‑

“No. SO (Admn.I)‑1/9‑73: ‑The Government of the Punjab in consultation with the Selection Board of S.GA. & I. Department is pleased to promote Dr. Muhammad Latif Chaudhry, Assistant Professor of Ophthalmology, presently working at Fatima Jinnah Medical College, Lahore, as Professor of Ophthalmology, in National Pay Scale No.19, with immediate effect.

II

On promotion he is posted as Professor of Ophthalmology at Ouaid‑e Azam Medical College, Bahawalpur against an existing vacancy.

III

He is directed to report for duty at Bahawalpur within 15 days of the issue of this notification failing which he will be debarred from promotion for future:”

9. This notification had two immediate consequences. The first was a strike by the students of the FJMC against the transfer of Dr. Muhammad Latif Chaudhry/respondent No.1 from that College. It continued for more than three days and the Minister’s statement appearing in the press has been placed on record at page 197 of the Paper Book in CA.178 of 1986, as hereunder:‑

“Minister regrets FJMC strike

By our woman Reporter

Brig. Sahibdad Khan, Health Minister when contacted on Saturday, stated that it was unfortunate that the F:J. Medical College girls were adamant on continuing strike.

He said that it was in Dr. Latif Chaudhry’s interest that he should take charge of the Professor’s post that is lying vacant at the Bahawalpur Medical College as it would mean a promotion for him.

The Minister said that when the post of the Professor of Ophthalmology is advertised Dr. Latif Chaudhry could apply for it and be appointed on a permanent basis at the Fatima Jinnah Medical College.

It is learnt that the F.J. Medical College Administrator will advertise the vacancy in a couple of days.”

10. On 28‑4‑1975 the press advertisement of the post of Professor of Ophthalmology in the Fatima Jinnah Medical College appeared making it clear that it was a non‑governmental post with no pensionary benefits but on confirmation contributary provident fund facility was available. Respondent No.1, in compliance with the notification of his. promotion and posting at Bahawalpur took over the charge on 25‑4‑1975 at Bahawalpur. On the 29th of April, 1975, he addressed a letter to the Secretary, Government of Punjab, Health Department, through proper channel, as hereunder:‑

“I wish to apply for the post of a Professor of Ophthalmology at Fatima Jinnah Medical College, Lahore which has been advertised in the Press on 28th April 1975.

It is, therefore, requested that my application may be forwarded to the Principal, Fatima Jinnah Medical College, Lahore. It is further requested that if I am selected and confirmed on permanent basis, I may please be relieved from the Government service.”

It was recommended and forwarded for further necessary action by the Administrator, Quaid‑i‑Azam Medical College, Bahawalpur.

11. On the 14th of May, 1975, the Principal, F.J. Medical College, Lahore, addressed the following letter to respondent No.1‑‑

“Subject: Appointment as Professor of Ophthalmoloey.

Reference your application.

You are hereby offered a post of Professor of Ophthalmology in the National Pay Scale No.19 i.e. Rs.1,800‑80‑2,200 in this College, provided you resign from Government service, on the following terms and conditions:‑‑

(1) You will be governed by the Rules and Regulations framed by the Governing Body of this College regarding your service from time to time.

(2) In case you wish to resign your appointment at any time during your service, you will have to give one month’s notice or pay one month’s pay in lieu thereof.

(3) You must be domiciled in Pakistan.

(4) You will have to produce a Medical Certificate of fitness for first entry into service.

If you, accept the offer on the terms and conditions mentioned above, you are requested to please report for duty to this office immediately.

A copy of the Matriculation Certificate & M.B.,B.S. degree together with the domicile certificate may please be submitted in the College before joining the duty. Please fill in the charge report of taking over the charge of the post and send to the undersigned.

No TA./DA. will be paid to you for joining the first appointment.”

12. On the 19th of May, 1975, the respondent No.1 addressed the following letter to the Secretary, Health Department, Government of Punjab:‑‑

“Reference my application dated 30‑4‑1975.

I have been offered a permanent post as Professor of Ophthalmology at Fatima Jinnah Medical College, Lahore. I, therefore, tender my resignation from the Government service forthwith, so as to join my new assignment. Kindly accept the same:”

13. On the 7th July, 1975, the respondent No.1 addressed the following application through proper channel to the Minister of Health, Government of the Punjab:‑‑

“I joined as Assistant Professor of (Oph) at K.E. Medical College, Lahore in September, 1967.

In May 1973 I was sent to Fatima Jinnah Medical College on Deputation as Professor of Ophthalmology.

In April 1975 having been promoted as Professor of Ophthalmology in my own cadre, I was posted at Quaid‑e‑Azam Medical College, Bahawalpur.

As the Eye Department of F.J. Medical College is being equipped with latest equipment for Therapeutic research and teaching purposes and in view of this specialised equipment being half installed as yet I requested the Government to keep me at F.J. Medical College on deputation after having been promoted as Professor in my own cadre.

My appointment at F.J. Medical College was made conditional to my resignation from Government service.

Hence I had to resign on 19‑5‑1975 from Government service to join the staff of F.J. Medical College.

In view of the excellent service record and about 8 years of Government service it is requested that my resignation may kindly be reconsidered and I may be kept at F.J. Medical College on deputation for a further’ period of 5 years.

I should be highly obliged for a favourable consideration.”

14. A letter, it appears, to the same effect was addressed by the Principal, Fatima Jinnah Medical College and a reply to the Principal was sent as hereunder:‑‑

“Subject: Transfer of Government service on permanent basis in respect of Dr. M. Latif Chaudhry Prof. of Ophthal.

Reference your Letter No.PF/6023/FJ dated 30‑7‑1975 on the subject noted above.

It is regretted to point out that your recommendations are not understandable. Dr. M. Latif Chaudhry, Prof. of Ophthalmology resigned from Government service for joining the service under the FJMC, Lahore. His resignation was accepted and conveyed to him.

The matter ends so far as Government is concerned:’

A copy of it was also forwarded to respondent No.1, on 29‑8‑1975, by the Principal, F.J. Medical College, Lahore.

As regards, the request made to the Minister, it was replied to on 3rd of May, 1976 by the following communication:‑‑

“Subject: Withdrawal of resignation.

Reference your representation addressed to the Health Minister, for the,withdrawal of resignation.

It has again been duly considered and rejected.”

15. The second representation was addressed to the Martial Law Administrator Zone `A’, on 29th April, 1978 and this appears to be in breach of service discipline as it was not routed through the proper channel. It was in this particular representation that for the first time the following grounds were made the basis for claiming relief against the resignation:‑‑

(i) It was during the previous regime that due to developments mentioned below, I was forced to resign from the service and thus deprived of the privileged position of a government employee.

(ii) Despite my request and initial favourable response from the Health Department, I was transferred to Bahawalpur, where I had to report for duty.

(iii) I applied for this post and my application was forwarded by the Health Department with a precondition that I will have to resign from the Government service, if selected by Fatima Jinnah Medical College.

(iv) I was selected on merit for the above post, and in accordance with the departmental condition, I had to resign from the Provincial Government under compulsion.

(v) It is respectfully submitted that premature termination of my deputation in spite of initial favourable response from the Government, my transfer to Bahawalpur and the imposition of a pre condition in forwarding my application to Fatimah Jinnah Medical College, was manoeuvred through strong political lobby, in order to dislocate me from Lahore and disturb my seniority with an ulterior motive to favour the next junior person.”

The relief that he sought was as hereunder:

“In view of the above it is obvious that I was victimised and was deprived of my Government job and seniority. It is, therefore, requested that my case may be reviewed and (i) my resignation from the service may be treated as null and void, (ii) my subsequent service period with Fatima Jinnah Medical College; Lahore may be treated as on deputation, (iii) my original seniority in the department may be maintained.

It is further submitted that similar pleas were conceded to by the Government in cases of Mr. M. H. Jaffri, Additional Secretary, Education and (late) Mr. Saeed Anwar, Section Officer.”

The Martial Law authorities informed him on 24th of February, 1979, as hereunder:

“Your representation dated 29‑4‑1978 on the above subject refers.

Resignation once tendered and accepted cannot be withdrawn. It is, therefore, regretted that your request contained in the above petition cannot be acceded to.”

16. On 1‑7‑1980, the following notification was published:‑‑

“No. SO(P & P)‑12/5‑79: ‑The Governor of the Punjab is pleased to direct that the administrative ‑control and management of the Fatima Jinnah Medical College, Lahore, with its allied hospital. and other property attached to it, which on nationalization stood vested in the Government of the Punjab as from the first day of September, 1972 under para.4 of the Martial Law Regulation No.1l$, be taken over by the Health Department of the Government of the Punjab with immediate effect.”

17. On 13‑7‑1980, the policy of the Government of the Punjab with regard to the Fatima Jinnah Medical College was notified for the benefit of its employees and those affected by the take‑over. The condition of the policy which is relevant and important for the case is condition No.2 which prescribed that the employees of the College as on 1‑7‑1980, whether temporary or permanent, shall not be adversely dealt with in the matter of their terms and conditions of service.

18. The same year i.e., in 1980, a dispute between the two appointees of the Fatima Jinnah Medical College with regard to their seniority and intervention of the Punjab Administrative Vigilance Commission therein was brought to the Court in Writ Petition No.3972‑S of 1980. The learned Judge in chambers concluded the controversy by holding as hereunder:

…The Government of the Punjab never took over the administration and control of Fatima Jinnah Medical College as a matter of fact. The employees of the College were not civil servants and did not enjoy any facility of the Government as such: Rather, it always acknowledged and allowed the Board of Governors and the Executive Committee, appointed under the direction of the Central Government, to manage and administer it. So much so that even the order passed ‘by the Governor under section 24 of the Ordinance, on the’ reference made. by the Commission, before the Notification dated 1st of July, 1980. was implemented not by a Department of the Government but by the Secretary Health in his capacity as Chairman of the Executive Committee of the Fatima Jinnah Medical College. Further, the College never vested automatically in the Government of the Punjab under para. 4 of the Martial Law Regulation 118 and as a matter of law it could not have so happened as it was being managed under the direction of the Central Government though maintained in equal shares by the Central and the Punjab Governments. Again. the College was not an `agency’ as defined in section 2(ii) of Ordinance X of 1979. In any case, the reference made by the Commission was also not valid and the implementation of the order of the Governor sought for by the Services and General Administration Department was far in excess of the order of the Governor:’

On an Intra‑Court Appeal (Dr. Khalida Usmani v. Dr. M.H.Randhawa and 4 others 1984 CLC 119 ‑ Lahore) a Bench of the High Court reversed the judgment holding that the effect of MLR 118 was that from 1972, the Fatima Jinnah Medical College vested in the Provincial Government and the interference of the Punjab Administrative Vigilance Commission and Governor could not be declared to be without lawful authority.

While this controversy between the two staff members was going on, respondent No.1 was also on the strength of Fatima Jinnah Medical College. When the judgment was published and received publicity, he (respondent No.1) addressed a representation on 15‑7‑1984 to the Governor through proper channel. Apart from the points pressed by him in his earlier representation, he took up the following additional grounds in it:

“…On 18‑5‑1973 when I was sent on deputation to Fatima Jinnah Medical College, the said institution was in fact another Government Institution and I shall be legally deemed to be serving a Government Institution throughout. In other words, I remained continuously performing my duties and functions as Government servant after having been promoted as Professor of Ophthalmology irrespective of my resignation. Though my resignation was even otherwise illegal being under compulsion, yet after the promulgation of Martial Law Regulation 118, notification dated 1‑7‑1980 and the Judgment of Lahore High Court given in this context, the resignation shall be ab initio void and illegal. The resignation as such shall not in any way affect the continuity of my service as a Government servant in my capacity as Professor of Ophthalmology. As already stated above, I was promoted as Professor of Opthalmology on 24‑4‑1975 and posted at Quaid‑e‑Azam Medical College, Bahawalpur. Therefore, under the legal position as explained above, my original seniority as Professor of Ophthalmology in the cadre of Province of Punjab remains unchanged.”

The relief claimed was as hereunder:

“In view of the submissions made above, it is most respectfully requested that my original seniority in the cadre of Professors of the Province of Punjab may kindly be maintained anti my service be treated as continuous without any break on and with effect from 15‑9‑1967.”

18A. Having not received any response on this representation, respondent No.1 filed an appeal before the Service Tribunal. In this appeal as presented before the Service Tribunal, no ground of being compelled or forced to resign was made the basis for claiming the relief. It was mainly the mistake with regard to the legal position of the Fatima Jinnah Medical College, and the relief sought was as hereunder:‑

“That it is clear from the judgment of High Court as well as the mandatory provisions of MLR 118 that since 1‑9‑1972 the Fatima Jinnah Medical College vested in Government. Therefore all the powers with regard to the officers of Grade 19 of this College also vested in the Governor. Consequently the impugned orders dated 14‑5‑197,5 regarding appellant’s second selection and appointment by the. Governing Body as well as appellant’s resignation dated 19‑5‑1975 and its acceptance by order dated 19‑5‑1975 are void ab initio and ultra vires the provisions of statute MLR 118.

It is, therefore, respectfully prayed that in view of the peculiar situation of the case it may kindly be declared that appellant has been in Government service continuously since 15‑9‑1967 and that he has been a Professor of Opthalmology since 19‑4‑1975. The impugned order dated 19‑5‑1975 (Annexure “R”) may also kindly be set aside.”

In the amended appeal, after impleading the other private respondents not only the ground of “forced resignation” was taken up, but the relief was also amended as hereunder:

(a) In view of the peculiar situation it may kindly be declared that the appellant has been in Government service continuously since 15‑9‑1967 and that he has been Professor of Ophthalmology since 24‑4‑1975.

(b) The impugned orders dated 14‑5‑1975 and 19‑5‑1975 may very kindly be set aside.

(c) The respondents Nos. 1 and 2 may very kindly be directed to fix the seniority of the appellant amongst the Professors of various Medical Colleges in view of his selection and appointment as Professor vide Notification dated 24‑4‑1975 under the Rules and Law.”

This appeal was contested by the Government of the Punjab and a number of other Professors likely to be affected by the re‑entry of respondent No.1, who were impleaded and served.

19. The Service Tribunal, by a majority of two learned members including the Chairman, allowed the appeal. In the majority judgment no reference was made nor the question determined whether the respondent No.1 was forced to resign from Government service. What was decided was that the Government suffered more from a mistake of law with regard to the control over’ Fatima Jinnah Medical College and had it known that it was then under the Provincial Government, no question of resignation would have arisen. It made reference to a number of decisions of the Supreme Court in order to distinguish between procedural rights and substantive rights and proceeded to give efficacy to the substantive rights as against the procedural rights. The Tribunal summed .up the issues in appeal as hereunder:

(i) Whether the appellant after resigning his post in 1975, will retain the status of a civil servant, i.e., Professor of Ophthalmology due to the fact that by judgment of Division Bench of Lahore High Court, it has been declared in 1984 that Fatima Jinnah Medical College was taken over lock, stock and barrel by the Government under MLR 118 supra law, and to all intents and purposes, arid it is to be treated as Government Institution from 1‑10‑1972.

(ii) The second question would as to whether the appellant stood estopped by his conduct to ask for his revival of status which he lost in 1975, as he failed to agitate the same before any Court of law. Similarly, would he be entitled to take benefit of the judgment which came into existence at the behest of some other party in which the status of Fatima Jinnah Medical College was so determined.

(iii) Whether the mistaken belief of the appellant about the status of Fatima Jinnah Medical College will absolve him from the act of resignation, which he so tendered under the said belief.

(iv) Fourthly, whether the present appeal of the appellant is hit by law of limitation and inordinate delay of 9‑1/2 years is condonable.

(v) Lastly, does an appeal lie against the order of MLA by which his representation was so rejected.”

20. As regards the preliminary objection of the bar of Provisional Constitution Order, the last representation having been dealt with by the Governor as Martial Law Administrator, the Tribunal concluded as hereunder:‑‑

“In this case no Martial Law Order was attracted, because the resignation was not dealt with either by the Martial Law Order or Martial Law Regulation. The order which was passed in the case of the appellant was passed under the Service Rules. The mere fact that while communicating the order. it was conveyed that the same has been rejected by Governor/MLA, would not mean that said order has been passed by Martial Law Administrator under Martial Law Regulation or Martial Law Order. In this manner, we have no hesitation to repel this preliminary objection as being without any force:’

On a survey of decisions of the superior Courts, the Tribunal concluded as hereunder:‑

“All these rulings so cited above although do not pertain to any service matter, yet the terms of law so settled by their Lordships clearly indicate as under:

(1) When every body is under mistake of law, then there is neither estoppel nor waiver nor acquiescence.

(2) No man shall take advantage of his own wrong:

(3) The proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights.

(4) That mistake of administration cannot be allowed to destroy the basic rights.”

On merits of the resignation, the Tribunal concluded as hereunder:‑‑

“But once it is established on record that the said resignation was tendered under a mistaken view of law by the employer as well as by employee, the same cannot be equated with the resignation in the ordinary circumstances. In the present case it is the Government itself, which had stated before the Division Bench of Lahore High Court that Fatima Jinnah Medical College had become for all intents and purposes, a Government Institution since 1‑9‑1972 and the latter notification of 1980, was nothing but to clear the doubt, therefore, the resignation tendered by the appellant in this case was due to the mistake of Government itself, which at that relevant time, despite the operation of law was persisting that Fatima Jinnah Medical College was a private Institution, and the appellant if he had to join the said Institution, he would be under obligation to resign from Government service, as if the service with Fatima Jinnah Medical College was not a Government service.”

The Tribunal rested its decision on the finding recorded in the words that follow:

“The act of Government by sending him to the said Institution on deputation, was an act in redundance, because a civil servant cannot be sent on deputation with another Government Institution. We also further find that his resignation was also under a mistaken belief of law, because he resigned from his job at the behest of the Governing Body of the Fatima Jinnah Medical College, also suffering from the same belief due to mistake of Government, to join the Institution which was a Government Institution and if he had known the real’ status of Fatima Jinnah Medical College, he would not have done the same.”

On these findings, the majority members of the Tribunal granted the relief in the following words:

“This being our conclusion on the strength of law so laid down by the Supreme Court of Pakistan as well as other superior Courts of this country cited in the earlier part of our judgment, we proceed to accept the appeal, set aside the impugned orders and hold that the appellant has been in Government service continuously since 15‑9‑1967 and that he has been .Respondents Nos.1 and 2 to fix the appellant amongst the Professors of various Medical Colleges in view of his selection and appointment as Professor vide Notification dated 24‑4 1975, under the Rules and law.”

21. The dissenting Member of the Tribunal frontally examined the main ground of appeal before the Tribunal namely, whether the resignation was forced out of ‘respondent No.1 (Mr. Muhammad Latif Chaudhry) and that it was not voluntary, as hereunder:‑‑

“I regret to state that the resignation was made by the appellant without any trace of compulsion on the side of the Punjab Government. As regards the condition of the resignation in the letter dated 14‑5‑1975 (Annex‑J) of the Principal, FJMC for offering the post it was not only normal and necessary but in fact the appellant had already communicated his request to be relieved from the Government service when he got forwarded his application for the post through”” the Secretary Health vide letter dated 29‑4‑1975 (Annex.H). In this manner no compulsion even on the side of the Principal, FJMC exists. The worst case is that if it was a compulsion vide letter dated 14‑5‑1975 (Annex ‑J) of the Principal, FJMC why the appellant submitted resignation on 19 5‑75 vide Annex‑K. I may also add that the appellant or any employee does not retire to give any reasons for tendering resignation and the reasons given by appellant in the letter (Annex‑H) followed by formal resignation (Annex‑K) speak against the appellant that the resignation was voluntary and without any compulsion.”

As regards the mistake of law on the part of the Government and respondent No.1, the dissenting Member held, as hereunder:‑

“The plea of the appellant seems to be cryptic that since the FJMC stands nationalised since, 1972, therefore, he did not require to resign for the posting of FJMC. But the questions are could the appellant as of right, claim for his retention and posting at FJMC ? Could the Government be precluded to post him elsewhere ? The answer is obviously in the negative. As such in my opinion unlike his predecessor Dr. Raja Mumtaz the appellant was sticky and for his own interest he wanted at all costs to remain posted at FJMC. He made a well‑planned decision on material grounds like the George VIth who on the sentimental grounds for clinging to his foreign wife made a historical decision of the abdication of British Throne (kingship). Consequently the resignation is final and a closed matter:”

The‑dissenting Member summarised his conclusions in the following words:

“(i) In the case of the appellant there was no mistake of law because the appellant wanted his posting on all costs at FJMC and he achieved it ,by resignation from the Government service and posting with FJMC on permanent basis. This cannot be reversed without lending power to the Government through this Tribunal or through the learned High Court for setting aside the posting by the Governing Body after 1972 on ground of mistake of law.

(ii) This point speaks against the appellant that he “should not take advantage of his own wrong even if he considers it a wrong which is actually not the case. It is. understood that no other person can be blamed for self‑inflicted injuries rather in cases of attempted suicide, the person making such attempt is implicated under section 309, P.P.C.

(iii) In principle this view is correct but it has to be judiciously exercised because the appellant has not justified for the stated help much less at the cost of the rights of the contesting respondents. After all why should the seniority of contesting respondents 3 to 58 be affected and sacrificed for the sake of the appellant by permitting him to withdraw the resignation or to treat him in the Government service even after acceptance of his resignation on 19‑5‑1975, vide Annex. R of the amended appeal

(iv) As already stated so far as the appellant is concerned there is no mistake on the part of administration as he achieved his desire for posting at FJMC which he could not do without tendering his resignation on his own initiation.

It is likely to create complications, hardship and anomalies through the implementation of the respected judgment of this appeal.”

Hence the dissenting Member dismissed the appeal being time‑barred as well as on merits.

22. Mr. Maqbool Elahi Malik, the learned Advocate‑General who represents the Government of the Punjab (Appellant in CA.583/1990 and respondents Nos.2 and 3 in CA.178/86 and 582/90) reiterated the two preliminary objections to the competence of the appeal before the Tribunal. The first was with regard to the limitation. According to him, if the respondent No.1 felt aggrieved by the rejection of his representation against the withdrawal of resignation, then the appeal was hopelessly barred by time as his request was rejected by the Minister on 3‑5‑1976. There was no occasion left for preferring a second representation to the Martial Law Administrator which too stood rejected on 29‑4‑1978. The judgment of the High Court referred to and relied upon by the respondent No.1 for claiming extension in the period of limitation was not a judgment governing the subject. Such judgments do not by themselves either give a cause of action to a litigant nor do they enlarge the limitation which had already started running and had expired.

The second preliminary objection also related to the fact that the Martial Law Administrator having considered and rejected the representation filed by respondent No.1, it could not be brought for challenge before the Service Tribunal in view of the bar contained in Article 15(2) of the Provisional Constitution Order, 1981(C.M.LA.’s Order 1 of 1981).

23. On merits it was contended by the learned Advocate‑General that resignation submitted in the circumstances to take up any appointment either in the Government or outside, could not be reversed, recalled or modified so long after it had been acted upon and had been given effect to in the service matter. For this he has cited Abdullah Khan Kakar v. Province of Balochistan (PLD 1979 Quetta 168) and a decision from the Indian jurisdiction reported as Khangeshwar Prasad Yadav v. The Secretary, Ministry of Communication and others (1988 (6) Services Law Reporter page 442). It was dealt with by the Central Administrative Tribunal. In this case of Indian jurisdiction, an employee of the Postal Department had resigned his appointment in order to take up another appointment in All‑India Radio which was also under the Central Government. He thereafter claimed seniority and benefit for the purposes of fixation of pay and pension of the service rendered in Postal Department. For the purposes of pension, seniority and leave the benefit was denied but for the purposes of higher fixation of pay it was allowed. This according to him (the learned Advocate‑General) is the only case which dealt with Fundamental Rule 27 and Rule 4.18 (b) of the Civil Services Regulations comparable to rule 4.19 (b) of Civil Services Rules (Punjab), Volume II, which was invoked on behalf of the respondent No.` l for claiming benefit. He also contended that the mistake with regard to the control over the Fatima Jinnah Medical College whether it` vested in the Provincial Government or the Governing Body wag of no consequence to the case.

24. Mr. Zakiuddin Pal, Senior Advocate, the learned counsel representing the appellants in Civil Appeals Nos.178/86 and 582/90 repeated the two preliminary objections to the competence of the appeal of the respondent No.1 before the Service Tribunal.

On merits, the learned counsel contended that the definition of `college’ in MLR 118 of 1972 excluded from its ambit the Fatima Jinnah Medical College whose identity and management remained distinct from the Government till it was ultimately taken over by it on 1‑7‑1980. Hence, according to him, the cases on which the majority judgment of the Service Tribunal had been rendered was not applicable.

25. Mr. KM.A.Samdani and Raja Muhammad Anwar, Senior Advocates who also represent the appellants in Civil Appeal No.178/86 also pressed the two preliminary objections with regard to the competence of the appeal before the Service Tribunal.

On merits, a slight concession was made that MLR 118 had the effect of vesting the control of Fatima Jinnah Medical College in the Government. Nevertheless, de facto the Governing Body and the Executive Committee of the College were continued by the Government and allowed to exercise all the powers of appointment etc. which they had been enjoying since before the nationalization was accomplished by the MLR 118‑The acts done by such a dg facto authority were all in order and for this reliance was placed on Lt.‑Col. Farzand Ali and others v. Province of West Pakistan through the Secretary, Department of Agriculture, Government of West Pakistan, Lahore (PLD 1970 SC 98 at 125), Gokaraju Rangaraju v. State of Andhra Pradesh (AIR 1981 SC 1473), Abdul Salam Qureshi and another v. Judge, Special Court of Banking for Sindh and another (PLD 1984 Kar. 462) and Atlas Autos Limited and 5 others v. National Industrial Relations Commission and 16 others (PLD 1990 Kar. 362).

On merits ‘it is also submitted that the resignation was given by the respondent No.1 only to avoid transfer to Bahawalpur and having derived the benefit of both remaining in Lahore and serving the Fatima Jinnah Medical College he could not be permitted to resign and successfully avoid such a resignation.

On the question of efficacy and the binding effect of such a resignation, reliance was placed‑on Dilbar Hussain v. Province of Punjab and othersJ1980 S C M R 148), Secretary, Government of Punjab, Food and Co operation Department v. Shamoon Bahadur (PLD 1979 SC 835) and Province of Punjab through the Deputy Director, Food, Rawalpindi Region v. Muhammad Iqbal, Ex‑Foodgrains Inspector (1984 SCMR 334).

26. Mr. S. M. Zafar, Senior Advocate, the learned counsel for the respondent No.1 in all the appeals'(Dr. Muhammad Latif Chaudhry) did not consider the mistake of the Government and of the. respondent No. 1 treating at the relevant time Fatima Jinnah Medical College to be a non‑governmental institution, to be one of law, as held by the Tribunal, but he considered it to be a mistake of fact. According to him, the service is in the nature of a contract between the employee and the employer. So a mistake of fact at any stage of the service, and the action taken under it becomes void and no rights accrue to either party under such mistaken act, whether acted upon for a long period or not. For this, reliance has been placed on Kuchwar Line & Stone Co. Ltd. v. Secretary of State and others (AIR 1937 Patna 65), Syed Ghousuddin Ahmed v. Chairman, Karachi Port Trust (PLD 1967 Kar. 275) and Chitty on Contracts, Volume I, General Principles Twenty‑fourth edition (Monographs 274 and 275).

According to the learned counsel, the provisions of MLR 118 were self‑operative and the control of the Fatima Jinnah Medical College came over to the Provincial Government without any further step required to be taken. He also contended that the concept of resignation is of a voluntary act suffering from no mistaken view of fact or law. For determining whether a resignation is voluntary or not, all the circumstances surrounding the event of resignation had to be taken into consideration and appraised. In this connection, the learned counsel has referred to various definitions of the word “resignation” and also to the decisions in Abraham Reuben v. The Karachi Municipality (AIR 1929 Sindh 69), Muhammad Khan v. Pakistan through Secretary, Ministry of Interior, Karachi (PLD 1958 Kar. 75), Muhammad Yaqub Shah v. Superintendent of Police, Muzaffargarh District and 2 others (1980 PLC (C.S.) 215), P. Kasilingam v. P.S.G. College of Technology 1982 Pakistan Supreme Court Cases 151 (Supreme Court of India), Union of India etc. v. Gopal Chandra Misra and others (AIR 1978 S.C. 694) and Rahim Bakhsh v. Chief Election Commissioner and others (PLD 1967 Lah. 49).

The learned counsel has once again pressed that due to the mistake of fact and law and the surrounding circumstances it was clearly established that, the resignation was forced out of the respondent No.1 and as such could’ not be taken to be a voluntary resignation.

Finally, reliance was placed on rule 4.18(b) and the comparable rule 4.19(b) referred to above for contending that such a resignation could not be taken to be a resignation at all.

As regards the preliminary objection with regard to the limitation, it is contended that where the order itself was void, there was no question of limitation arising and he referred to Imtiaz Ahmad v. Ghulam Ali and others (PLD 1963 SC 382 at 400) and Khuda Bakhsh v. Khushi Muhammad and 3 others (PLD 1976 SC 208 at 212). He also contended that the fact that the respondent No.1 continuously agitated against it would keep his cause alive. Reliance is placed on Mst. Rehmat Bibi and others v. Punnu Khan and others (1986SCMR962).

It was also contended that in the matter of claim of seniority no technicalities should be allowed to intervene. Reliance has been placed on Muhammad Ibrahim Munshey and others v. Province of West Pakistan through Chief Secretary and others (PLD 1968 SC 1 at 13).

The learned counsel also referred to a number of cases where the Service Tribunal had applied its mind and condoned the delay and this Court did not interfere with the jurisdiction so exercised. He relied on WAPDA and another v. Abdul Rashid Dar and others (1990 SCMR 1513 at 1515; Province of Punjab v. Ikramul Haq and another (1986 SCMR 1994) and Mazhar Ali v. Federation of Pakistan/President of Pakistan through the Secretary, Establishment Division and 2 others 1992 SCMR 435 at 440).

At the end, he invoked the Islamic principle of Ehsan as enshrined in Article 2‑A of the Constitution and understood and interpreted in Messrs Macdonald Layton Constrain Limited, West Wharf, Karachi v. Punjab Employees’ Social Security Institution, Lahore and 2 others (PLD 1991 SC 1055).

27. Out of the statutory provisions having a bearing on the subject and relevant to it only MLR 118 was kept in view by the Tribunal and by the learned counsel for the parties. In order to make the understanding of the matter on the legal plane somewhat easier, the other relevant provisions of law have also to be kept in view. The following provisions should have also been noticed:‑‑

(i) Section 9 of the Punjab Civil Servants Act. The Act was enacted as an Act on 4‑6‑1974 and contained the following provision with regard to posting and transfer of Government servants:‑‑

“9. Posting and transfer ‑‑Every civil servant shall be liable to serve anywhere within or outside the Province in any post under the Government of the Punjab or the Federal Government or any Provincial Government or a local authority or a corporation or a body set up or established by any such Government:

Provided that where a civil servant is required to serve in a post outside his service or cadre, his terms and conditions of service as to his pay shall not be less favourable than those to which he would have been entitled if he had not been so required to serve.

(ii) Rule 15 of the Punjab Civil Servants Appointment and Conditions of Service Rules, 1974. The Rules were enforced on 24‑8‑1974 and contained the following rule 15 with regard to deputation:‑‑

(1) A person .in the service of an Autonomous or Semi‑Autonomous Organization who possesses minimum educational qualifications, experience or, comparable length of service prescribed for the post shall be eligible for appointment to the said post on deputation, for a period not exceeding 3 years at a time, on such terms and conditions as may be sanctioned by the Government in consultation with the lending Organization.

(2) Subject to any rules or orders on the subject issued by the Government, a civil servant who fulfils the conditions and is considered suitable may send on deputation to an Autonomous or Semi‑Autonomous Organization, established by law, on such terms and conditions as may be decided by appointing authority in consultation with the borrowing organization:

Provided that leave and pension contribution shall invariably be made by the borrowing organization.

(iii) Rules 2 and 4 of the West Pakistan Civil Services (Applications for Posts) Rules, 1957, providing as hereunder:‑‑

“2. Eligibility.‑‑No Government servant shall be eligible for appointment to any service of the Province or to any post in connection with the affairs of the Province, other than the service of the post to which he is for the time being appointed, unless he applies with the permission in writing of the head of office or department in which he is employed.

4. Release on selection for a ointment to a post for which application has been forwarded.‑‑When a person whose application has been forwarded to the appointing authority or a Public Service Commission in accordance with these rules, is selected for appointment, he shall ordinarily be released.

(iv) Rule 3 of the Punjab Health Department Medical Educational Institutions (Class I) Service Rules, 1971. It provides as hereunder:‑‑

“Constitution and composition of service.‑‑The service shall consist of the post specified in’ column 3 of Appendix A and such other class 1 posts in the Department as may be sanctioned by Government from time to tune for Government medical educational institutions.”

Appendix `A’ does not contain any post attached to Fatima Jinnah Medical College as in 1971, it was not one of the Medical Educational Institutions of the Government ‑of the Punjab. There is no indication that any such post of Professor of Fatima Jinnah Medical College was added to this cadre or service.

28. The two other rules which attracted the attention and were referred to during the course of arguments before us were rules 4.19(b) of Civil Services Rules (Punjab). Volume II, relating to Pensions and Provident Funds and rules 3.11 to 3.15, on the subject of substantive appointment and lien contained in Civil Services Rules (Punjab), Volume I. Rule 4.19 reads as hereunder:‑‑

“4.19. (a) Resignation of the public service, or dismissal, or removal from it for misconduct, insolvency, inefficiency not due to age, or failure to pass a prescribed examination entails forfeiture of past service.

(b) Resignation of a post to take up another post, service in which counts, is not a resignation of the public service.”

29. The Tribunal dealt with mistake of fact and mistake of law and made it the basis of the judgment but the statutory provisions dealing with such mistakes namely sections 20 and 21 of the Contract Act were not taken into consideration. Section 20 alongwith illustrations provides as hereunder:‑‑

“20. Agreement void where both parties are under mistake as to a matter of fact.‑‑Where both the parties to an agreement are under a mistake as to a matter of fact essential to the agreement, the agreement is void.

Explanation.‑‑An erroneous opinion as to the value of the thing which forms the subject‑matter of the agreement is not to be deemed a mistake as to a matter of fact.

Illustrations

(a) A agrees to sell to B a specific cargo of goods supposed to be on its way from England to Karachi. It turns out that before the day of the bargain the ship conveying the cargo had been cast away ant the goods lost. Neither party was aware of these facts. The agreement is void.

(b) A agrees to buy from B a certain horse. It turns out that the horse was dead at the time of the bargain, though neither party was aware of the fact. The agreement is void.

(c) A, being entitled to an estate for the life of B, agrees to sell it to C. B was dead at the time of the agreement, but both parties were ignorant of the fact. The agreement is void.”

Section 21 alongwith illustration provides as hereunder: ‑

“21. Effect of mistake as to law.‑‑A contract is not voidable because it was caused by a mistake as to any law in force in Pakistan; but a mistake as to a law not in force in Pakistan has the same effect as a mistake of fact.

After the establishment of the Dominion of Pakistan this section applies in relation to Central Acts made for an Acceding State as it applies to laws in force in Pakistan.

Illustration.‑‑A and B make a contract grounded on the erroneous belief that a particular debt is barred by the Pakistan Law of Limitation: the contract is not voidable.”

30. There is no dispute about the proposition advanced by the respondent No.1 that a resignation has to be intentional and voluntary and as defined in Black’s Law Dictionary it means “formal renouncement or relinquishment of an office. It must be made with intention of relinquishing the office accompanied by act of relinquishment”. It is also correct that the totality of the circumstances have to be taken into consideration for drawing a conclusion whether the resignation tendered was voluntary or not.

31. The learned counsel for the respondent No.1 has referred to the language used by the respondent No.1 while seeking the forwarding of his application for appointment as Professor in the Fatima Jinnah Medical College. He used the expression and requested to be relieved if he was permanently appointed in the Fatima Jinnah Medical College. This, according to the learned counsel for the respondent No.1, did riot amount to resignation of the description which may entail relinquishment of the appointment.

32. There are four very good reasons why this voluntary character of the resignation cannot be examined for the first time in the Supreme Court.

The first reason is that when the respondent No.1 approached the Tribunal with his original Memorandum of Appeal, he did not take it up as a ground. He did so only when he was required to implead others who were likely to be affected by his claim to seniority. Such an amendment was an afterthought.

Secondly, this ground of the resignation having been forced out of him has not been dealt with in the majority judgment of the Tribunal and has not prevailed with the dissenting Member also.

Thirdly, the respondent No.1 himself sought to be relieved only when he was “selected and confirmed on permanent basis” in the Fatima Jinnah Medical College: Evidently he could not hold two permanent posts/appointments at the same time nor’ a lien on two permanent posts. Besides, when he~ made the request after a month or so of tendering the resignation, he treated it voluntary and it was requested that his period be treated as deputation. It was afterwards that he thought of raising a ground of political lobby wording against him and then of the resignation having been forced out of him.

Finally, the respondent No.1 followed up his request for being relieved of Government service on receiving permanent appointment by tendering unequivocally his resignation on 19‑5‑1975 in the following words:‑‑

I have bee offered a permanent post as Professor of Opthalmology at FJ.M.C Lahore. I therefore tender my resignation from the Government, service:’ ‑‑

The resignation was accepted on the same date by the competent authority.

The strike in the Fatima Jinnah Medical College and the Minister’s statement reproduced above would also give the impression that the arrangement between the respondent No.1 and the Government was that the Government had no objection to his permanent absorption in the Fatima Jinnah Medical College, if the students wanted it, the Governing Body wanted it and the respondent No.1 himself wanted either for the purpose of remaining at Lahore or for making functional the valuable equipment. It was a matter of choice between the alternatives and the choice was clearly to be exercised by the respondent No.1. He chose to take a particular course of action which required resignation, which he submitted.

33.‑ If the Government wanted to send him to Fatima Jinnah Medical College without, getting the resignation from him, then section 9 of the Civil Servants Act etc., quoted above, as also the immediately preceding deputation of respondent No.1 were all of avail to it to so permit him. If he wanted to remain in Government service, there was nothing to compel him to submit his resignation. He should have remained at Bahawalpur and not sought permanent adjustment against another post in any other institution.

34. The object of reproducing sections 20 and 21 of the Contract Act alongwith the illustrations contained therein was to indicate the limited nature of mistakes which totally Frustrated or rendered void the contract. In the present case the existence of MLR 118 and its applicability to Fatima Jinnah Medical College was in the first place not a mistake of fact and secondly, it was not a mistake of that type which could frustrate or render void the contract.

Assuming everything that the post was in Government service, that the Government had full control over it, yet it being not included in the service cadre to which the respondent No.1 belonged, he could not claim a posting or transfer on it as a matter of right. He could be made to‑resign a post in Government service in order to join another post not borne on the cadre to which he belongs.

35. There was indeed a mistake of law inasmuch as t e parties were not clear as to which law at that particular stage applied to Fatima Jinnah Medical College. However, this mistake was not material to what was done by the parties in order to attain their objectives. Even if awareness of the law had been there, the same result could follow. What is more important and what has escaped the notice of everyone is that from the period 1972 the promulgation of MLR 118 to the date of notification in 1980

implementing the same, the Government had ratified and protected all the orders an steps taken by the Governing Body of the Fatima Jinnah Medical College. I had also protected the terms and conditions of the employees recruited by the Governing Body of the Fatima Jinnah Medical College. This legal instrument and the condition therein could both protect and crystallize the position of respondent No.1 as an employee of the Fatima Jinnah Medical College and not of the Provincial Government.

36. Rule 4.19 of the Civil Services Rules (Punjab), Volume II relied upon and reproduced in paragraph 28 of the judgment has a restricted application to the computation of pensionable service. It has nothing to do with the nature of service or the rights other than those relatable to pension. On its strength a wider claim to enjoy the character of a Government servant or to watch seniority cannot be advanced with any success. .

37. The Service Tribunal’s conclusions that‑‑‑

“(i) in view of this peculiar circumstances of the case and the law laid down so cited above, we are of the considered opinion that the resignation of the appellant was not a resignation in normal circumstances and this would be no resignation in the eye of law, as he was for all intents and purposes, a Civil Servant on account of un controverted fact that on 1‑9‑1972 the said Fatima Jinnah Medical College had become a Government Institution by operation of law, by virtue of MLR 118, which was a supra law, and

(ii) the appellant Dr. Muhammad Latif Chaudhry, was a civil servant working. As Assistant Professor of Ophthalmology from 15‑9‑1967 and was deputed to work in year 1973 to Fatima Jinnah Medical College, which was a Government Institution for all intents and purposes, by virtue of MLR 118. The act of Government by sending him to the said Institution on deputation, was an act in redundance, because a civil servant cannot be sent on deputation with another Government Institution,”

are factually and legally unsupportable. If the Service Tribunal had kept in view the substantive law laid down by this Court in the Chairman, District Screening Committee, Lahore and another v. Sharif Ahmad Hashmi (PLD 1976 SC 258) and S.Sharif Ahmad.Hashmi v. Chairman, Screening Committee, Lahore and another (1978 S C M R 367), the voluntary act of resigning from Government service would not have been so lightly set at naught nor the bar of limitation ignored in such a service dispute entailing a claim to re‑enter Government service after an intervening period of nine years, the resignation having been tendered in 1975 and the service appeal having been instituted in 1984.

38. As regards the appeal to principle of Ehsan enshrined in Article 2‑A of the Constitution, a reference may ‑be made to Messrs Mumtaz Industries through Haji Karim Bakhsh and 2 others v. Industrial Development Bank of Pakistan and another (PLD 1991 SC 729) wherein it was held by reference to Article 2‑A of the Constitution that inability to discharge a liability would hardly make out a case for interference either by the High Court or by this Court in the exercise of discretionary jurisdiction. The solemnity of contractual obligation is universally recognised in all systems of jurisprudence. In Bell and another v. Lever Brothers Limited and others (1932 Appeal Cases 161) the following observations have been made at page 224 by the House of Lords:‑‑

“…it is of paramount importance that contracts should be observed, and that if parties honestly comply with the essentials of the formation of contracts‑‑i.e., agree in the same terms on the same subject‑matter‑‑‑they are bound, and must rely on the stipulations of the contract for protection from the effect of facts unknown to them:”

39. The principle of estoppel as enunciated by M.Monir in his `Principles and Digest of the Law of Evidence’, Volume II under section 115 at page 1247 in the following words also gets attracted to the case:‑‑

“A party to a contract who has enjoyed a benefit under it cannot, when the right to get either rescission or reformation of the contract is barred, say that he is not bound by one of its terms.”

40. Hence, all the three appeals are allowed. The majority judgment of the Tribunal is set aside and the Service appeal filed by respondent No.1 stands dismissed on merits and as also barred by limitation.

M.BA./M‑1668/SAppeals allowed.

2009 PLC (C.S) 222 (Case Law regarding Resignation of Civil Servant)

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