1969 PLP 4 (SCMR)

Nemo for Respondents. Date of hearing : 9th October 1968. HAMOODUR RAHMAN, J.‑The petitioner who was a Senior Superintendent in the Health Directorate, Lahore Region, in a substantive capacity, was compulsorily retired from service with effect from the 30th September 1966, lay air order passed on the 11th October 1967. He moved the High Court of West Pakistan, under Article 98 of the Constitution, to have the legality of the said order tested after his representations to the Departmental authorities had proved futile. The High Court was not wholly unimpressed by the case of the petitioner who appeared to have been dealt with rather harshly, but, nevertheless, dismissed the petition in limine for the following reason "We may have considered the issuance of a direction to the competent authority to pass an order in accordance with the paragraph 15 in any other case but in view of the conduct of the petitioner we feel that he has disentitled himself to this discretionary relief because we do not countenance indiscipline in services." It appears that the immediate cause for the retirement of the petitioner was his failure to carry out an order transferring him from the Directorate to the office of the Secretary, Health, Department, Government of West Pakistan, on the 4th June 1966. The petitioner replied to this letter on the same day saying that since he was an employee of the Directorate, he could not be transferred to the Secretariat and, therefore, he was reporting for duty to the Directorate on the expiry of his leave. He never actually moved to the Secretariat, for, he insisted that his case was governed by the rules of service framed in 1955 and not by the amended rules of 1964 under which alone he would have been liable to serve anywhere in Pakistan. Another point which impressed the High Court was that the Directorate was refusing to give effect to an order of the Government to treat him as on duty in the Directorate of Lahore Region and to pay him against a post to be created by that Directorate. The petitioner's case has been placed before us with considerable ability but we regret that we are not in a position to say that the High Court had no discretion in the matter or that it had exercised its discretion improperly. It is clear that the petitioner did refuse to carry out the transfer order. In these circumstances the High Court was justified in saying that it would not assist the petitioner as that would amount to encouraging indiscipline in the service, It would have been much better for the petitioner to have moved in the matter after carrying out the order of transfer. Be that as it may we are unable to interfere in this case as it cannot be said that High Court's discretion has been either perverse or arbitrarily exercised. It may still be open to the petitioner to move the Govern ment to remedy the injustice done to him and to allow him to retire from the 1st of October 1967, instead of retrospectively, from the 30th September 1966, as he does also appear prima facie to be entitled to the general extension of service given to non gazetted employees of Government. With this observation, however, we dismiss this petition as it is not the practice of this Court to interfere merely with discretionary orders of the High Court when that discretion appear to be based upon sound judicial principles. Leave refused.