P L D 1969 Lahore 313 (PLP)

NASIM HASAN SHAH, J.‑The relevant facts, forming the background of this writ petition are that the case of the peti tioner, who was a zilledar in the Irrigation Department of the Government of West Pakistan and posted during 1959 at Akalgarh in the district Gujranwala, was scrutinized on 30‑3‑1959 by the District Screening Committee, Gujranwala, constituted under the Public Conduct (Screening) Ordinance, 1959, (Ordinance III of 1959). As a result of the scrutiny the following decision was recorded by the Screening Committee: "In its meeting held on 30‑3‑1959, your written and verbal explanation were considered by the Committee. They were, however, not found satisfactory. The committee was of the opinion that you are inefficient and not fit for retention in Government Service: The Committee is, therefore, recom mending to the appointing authority for your compulsory retirement. You may appeal against the recommendations of the Committee to your appointing authority within fifteen days of the receipt of this reference." The petitioner appeared against the above recommendations to the Chief Engineer, Irrigation. The appeal, however, was rejected by respondent No. 2, vide order dated 29‑6‑1959 and the recommendations of the District Screening Committee, Gujranwala were accepted (vide Annexure `R. A' attached with the written statement). The order reads as under "In exercise of the powers conferred by sub‑clause (b) of clause (5) of Article 6 of the Laws (Continuance in Force) Order, 1959, the Chief Engineer, Irrigation, West Pakistan is pleased to order your compulsory retirement for inefficiency with effect from 30‑6‑1959 A. N."

2. The petitioner, thereafter, on 6‑7‑1959, addressed a representation to the President of Pakistan endorsing a copy of the same to the Martial Law Administrator Zone (B). A reply was received from the latter on 21st September 1959, advising him to pursue his "case in the normal course of law". On 2‑8‑61 he addressed another representation, this time to the Provincial Chief Engineer, enclosing therewith a copy of a Court judgment showing that he had been acquitted in the criminal case pending against him. Another appeal appears to have been made to the respondent on 27‑5‑63, a copy whereof is not attached by the petitioner but it is referred to in Memo. No. 3‑27‑S. O. III (1) 59‑63 dated 6th November 1963 (Annex. `RB' to the written statement) which recites that the petitioner's appeal dated 27‑5‑63 had been considered and rejected. Underterred by this decision, the petitioner appears to have filed another petition, now to the Governor of West Pakistan and the Section Officer on behalf of the Secretary to the Governor of West Pakistan informed him on 30‑11‑64 that the same had been forwarded to the Additional Chief Secretary for disposal. The petitioner then seems to have approached the Board of Revenue by another appeal. This was ultimately forwarded to the Chief Engineer, Irrigation, Sargodha Region, to whom he thought it expedient to address a formal appeal as well, which was made on 20‑11‑

65. As this remained unanswered, the petitioner again reverted to respondent No. 2 and addressed a representation‑cum‑notice on 16‑3‑

67. This was also rejected on 15th July 1967. This reply, according to the petitioner "has closed all doors" upon him driving him to the necessity of filing the present petition under Article 98 of the Constitution.

3. Mr. Saeed Akhtar has been heard in support of this petition. He has contended that the order of compulsory retire ment passed against the petitioner on 29‑6‑59 is without lawful authority. It is argued that the petitioner having been proceed ed against under the Public Conduct (Scrutiny) Rules, 1959, action could only be taken under the terms thereof. He points out that the ground of "inefficiency" for taking action under the Scrutiny Rules stood omitted by virtue of an amendment made therein, on 2‑3‑59, and that therefore the impugned order dated 29‑6‑59, passed as it has been after the aforementioned amendment is without any legal authority. In support of this contention the learned counsel has cited Fazilat Nizami v. The Deputy Commissioner, Sheikhupura (W. P. No. 428/63, decided on 20th April 1966) and Abdul Qayum Khan v. The State (P L D 1968 Pesh. 6).

4. The learned Additional Advocate‑General in reply has submitted that the order of compulsory retirement passed against the petitioner has not been passed under the provisions of the Public Conduct (Scrutiny) Rules but in exercise of powers under sub‑clause (b) of clause 5 of Article 6 of the Laws (Continuance in Force) Order, 1958. The relevant clause provides: "(5) Nothing in this Article or in any law, rule or instrument having the force of law shall prevent a person mentioned in clause (1) from being‑ (a) suspended, reduced in rank, removed or dismissed for being corrupt or for misconduct (or for inefficiency) after such enquiry as may be held under the orders of the Central Government, or (b) retired for any cause mentioned in the preceding sub. clause, or for having the reputation of being corrupt, . . . . . .on such pension (if any) as may be admissible to him, pro portionate or otherwise by an order of the authority mentioned in clause (3) made before the first day of July 1959 [or in the case of a Chairman or Member of a Provincial Public Service Commission the six teenth day of February 1960], and no appeal shall lie against such order nor shall such order be called in question in any Court." It is submitted that the competent authority could order retire ment under sub‑clause (b) of clause 5 of Article 6 even without holding an enquiry and, in so far as, the jurisdiction of the Courts call in question any order passed under the provisions of this Article has been taken away, the validity of any order passed thereunder is immune from scrutiny. It is also submitted that both the cases relied upon by the petitioner are distinguishable. The case of Fazilat Nizami is not relevant as the order impugned therein was passed under the Scrutiny Rules and not under the Laws (Continuance in Force) Order; while in the case of Abdul Qayum no finding of "inefficiency" was recorded by the Screening Committee and the Constitutional Provision cited above was held inapplicable for that reason.

5. He has further submitted that the petition is barred by the doctrine of ]aches and delay. In this connection it is pointed out that the writ petition was filed on 4‑11‑672 more than eight years after the order in question was passed and thus cannot be entertained: Mr. Saeed Akhtar, learned counsel for the petitioner, in justification of the delay, has relied upon Pakistan v. Abdul Hamid (P L D 1961 S C 105) and Abdul Qadir v. Government of West Pakistan (P L D 1967 S C 506).

6. The objection that the petition cannot be entertained on the ground of ]aches is in our opinion valid and must be upheld. It is to be noted that under the then existing law there was no provision for appeal against orders passed by the appointing f authority. Therefore the time taken on appeals anal petitions after the passing of the order of retirement is not condonable. In any case after the order dated 6th November 1963 was passed by respondent No. 2 stating clearly therein that the petitioner's appeal had been considered and rejected no possible scope was left for entertaining the belief that any further repre sentations to the departmental authorities against the orders of retirement could yield any fruitful result. In consequence, even if the period consumed between the order of compulsory retirement dated 29th June 1959, up to the date when the Government rejected the appeal by its order dated 6th November 1963 be treated as time spent in pursuing some departmental remedies no justification whatever exists for the delay of the further four years in filing the writ petition in November 1967. The time wasted in the representations and appeals filed after November 1963 cannot be excused on any hypothesis and there is thus no adequate explanation for the long period taken by the petitioner to come to this Court. The case relied upon by the learned counsel for the petitioner proceed on their own facts. Although in Pakistan v. Abdul Hamid, the writ petition was filed after eight years of the injury the petitioner therein had been representing to the authorities all through and it does not appear, from the report of the case that any of his representations had been rejected by an explicit order. As for Abdul Qadir v. Government of West Pakistan the writ petition had been filed some three years after the impugned order was made. The Supreme Court noted that the order of compulsory retirement was passed in August 1960, the appeal against it was dismissed on 29th December 1960 by the Additional Inspector‑General of Police and a further represent ation described, as a Mercy Petition to the Inspector‑General of Police, was rejected on 29th January 1962. Some other representations thereafter were also made and a legal notice also issued, whereafter the writ petition was filed in 1963. In the present case even if the time taken up to the rejection of the petitioner's appeal in 1963 is condoned there is then also a further delay of four years which cannot be reasonably explained. On the other hand the learned Additional Advocate‑General has relied upon New Kisan Transport Company Ltd. and others v. The Member, Board of Revenue and others (Civil Appeals Nos. 408 to 420 of 1967) where the learned Judges of the Supreme Court upheld the dismissal of a writ petition by the High Court on the ground of laches, as the petitioners therein had not taken steps to challenge the impugned order for periods ranging from three to four years. This Court has also in two recent cases, in connection with writ petitions arising out of orders passed during the Screening Operations, had occasion to consider the question of delay and laches. The following extract from the judgment in Mukhtar Hussain v. The District Manager, Provincial Transport Service, etc. (P L D 1966 Lah. 258 at p.261) is relevant "The petitions in our opinion must also fail on account of gross laches. The impugned orders, as observed above were made on the 29th of September 1959, and these writ petitions were not filed till January 1963, after the lapse of more than 3 years. Learned counsel for the petitioners contended that the petitioners initially thought that by reason of the decision of their Lordships of the Supreme Court in Mr. Zafar‑ul‑Ahsan v. Republic of Pakistan (2) the impugned orders (being the result of the recommendations of the Screening Committee convened under the Ordinance of 1959), could not be challenged on any ground, whatever, and that, therefore, the petitioners consider ed it futile to challenge the validity of the orders in a legal proceeding. Later on, however, when in a subsequent case, the case of Mr. Zafarul Ahsan was explained and distinguished, the petitioners filed these petitions without undue delay. This, learned counsel stressed, was a sufficient explanation for the condonation of delay. In support of his argument, learned counsel relied upon the case of Mubarak Ali Bhatti v. Fiayaz All Khan and others (3) wherein a similar plea prevailed and a delay of 21 years was condoned. In our opinion, the facts of three instant cases are different, Firstly, the delay in these cases is much more grievous than in the case of Mubarak Ali Bhatti. Secondly, it is difficult to avoid the impression that by delaying these proceedings for 31 years, the petitioners had virtually waived or abandoned the remedy in writ jurisdiction, which it is not denied, must be pursued with promptitude as was done by some of those who were hit by similar orders. Merely because the dictum in Zafar‑ul‑Ahsan's case was explained or distinguished in a subsequent case would not in our opinion revive a right which had virtually lapsed by waiver by reason of the petitioners' failure to initiate proceedings within reasonable time." The conclusion was thus expressed: "The long delay and this additional circumstance amounted to acquiescence by the petitioners and, in our opinion, they cannot be permitted at this late stage to turn round to challenge the validity of the impugned orders after the lapse of 3J years. Therefore, the writ petitions fail on the ground of gross laches also." Again in Muhboob‑ur‑Rehman v. Government of West Pakistan (P L D 1968 Lah. 1085) the following observations are in point ". . we find that the last order by the Department was made in 1962 and the present petition was moved in August 1966, and if the filing of the previous petition and its dismissal in default are ignored as being of no consequence either way, then the petitioner has allowed a period of four years to elapse before invoking the jurisdiction of this Court. The order of dismissal was passed in 1959, as already stated above, i. e. nearly eight years ago from today. The contention that the order is without jurisdiction and, therefore, a nullity in the eye of law does not in any manner condone the delay that must be presumed to have occurred on the part of the petitioner in instituting the present petition. We are not aware of any authority laying down the principle that once a question of jurisdiction is raised, then the question of laches is not to be considered by the Court. while acting under Article 98 of the Constitution."

7. We also note that the petitioner has attained the age of superannuation on 5th October 1968 having been born on 5th October 1913 and the petitioner's prayer that respondent be directed to re‑instate him to the post of zilledar from the date of his compulsory retirement cannot now be given effect to largely on account of the petitioner's own default. In the above circumstances, and for the foregoing reasons the petition is dismissed. There shall, however, be no order as to costs. A. E. Petition dismissed.