2019 PLP (C (PLC(CS)N)

SARDAR ABDUL HAMEED KHAN, J.

The above titled appeal by leave of the Court has been filed from the judgment of the High Court dated 19.09.2017, whereby the writ petition filed by the predecessor-in-interest of the appellants herein, has been dismissed.

2. The summary of facts is that the husband of appellant No.1 and the father of appellants Nos. 2 to 8 (Muhammad Latif Khan) was serving in the Forest Department as Senior Forest Protection Officer. A controversy raised regarding his date of birth which stood settled through notification dated 12.04.1999 and his date of birth was declared as 26.05.1949. The said notification was cancelled through another notification dated 10.10.2000 and he was compulsorily retired from service with effect from 03 04.1998. He filed a review petition before the Prime Minister which was accepted and it was directed vide notification dated 20.11.2001 that Muhammad Latif Khan shall retire from service with effect from 10.10.2000 with all admissible emoluments. For implementation of notification dated 20.11.2001 he filed Writ Petition No.121/2002 before the High Court which was accepted on 27.06.2002 and the prayed relief was granted. Thereafter, a notification dated 21.04.2003 (annexure "PH") was issued through which it was declared that the date of birth of Muhammad Latif Khan is 26.05.1940 and he shall be accordingly entitled to pensionary benefits and the period of service from 27.05.2000 to 10.10.2000 shall be deemed on contract. Feeling aggrieved from the said notification the predecessor-in-interest of the appellants filed an appeal before the Service Tribunal which was accepted vide judgment dated 14.12.2007. In this background, he filed a writ petition before the High Court with the following prayer:- "It is therefore prayed that through the issuance of an appropriate writ the respondents be directed to obey and implement the Judgment of the High Court dated 27.06.2002 as well as the Judgment and Order of the Service Tribunal dated 14.12.2007 in their letter and spirit and arrange the payment of Rs.1312032/- and emoluments to which the petitioner is deemed entitled to as per rules. Any other relief to which the petitioner is deemed entitled to may also be granted to him very graciously." Muhammad Latif Khan died during the pendency of writ petition, hence, his legal heirs (appellants herein) were impleaded as parties. The learned High Court after necessary proceedings, dismissed the writ petition through the impugned judgment dated 19.09.2017, hence, this appeal by leave of the Court.

3. Mr. Iqbal Rasheed Minhas, Advocate, counsel for the appellants submitted that the impugned judgment of the High Court is against law and the record. He submitted that it is proved from the record that the date of birth of the predecessor-in-interest of the appellants is 26.05.1949. In view of the existing rules the age of superannuation is 60 years and after attaining the age of superannuation the date of retirement of the predecessor-in-interest of the appellants should be 26.05.2009, whereas through notification dated 21.04.2003, the departmental authority illegally declared the date of birth of the deceased as 26.05.1940 as well as the period of service of the deceased from 27.05.2000 to 10.10.2000 as on contract, in violation of the final judgment of the learned High Court dated 27.06.2002. The said notification was challenged before the Service Tribunal. The learned Service Tribunal set aside the said notification vide its judgment dated 14.12.2007. The writ petition which has been dismissed through the impugned judgment was filed for implementation of the final judgment of the Service Tribunal 14.12.2007 because the Service Tribunal has got no specific jurisdiction for implementation of its judgment. The learned High Court failed to consider this aspect of the case and illegally dismissed the writ petition through the impugned judgment, which resulted into miscarriage of justice and depriving the appellants of their legally vested fundamental rights. He requested for acceptance of appeal.

4. On the other hand, Messrs Raza Ali Khan, Advocate-General and Muhammad Farooq Khan Minhas, Advocate, the learned counsel for the respondents forcefully defended the impugned judgment of the learned High Court and submitted that the judgment passed by the learned High Court is perfect and legal which does not call for any interference by this Court. They argued that the appellants have got no locus standi to file the writ petition before the learned High Court because they do not fall within the definition of aggrieved person. The notification dated 20.1.2001 has already been acted upon through payment of pension to the predecessor-in-interest of the appellants, thus the same has attained finality under law. They further argued that the writ petition was hit by principle of laches. They argued that in the previous judgments of the learned High Court as well as the learned Service Tribunal, no direction has been issued for payment of the pension for the period as claimed by the predecessor-in-interest of the appellants. The appellants have brought a new case just to satisfy their own wishes which cannot be permitted under law especially when their predecessor-in-interest already accepted the notification dated 20.11.2001, hence he was acquiesced and estopped by his conduct to claim the salary for the period with effect from 10.10.2000 to 26.09.2009. The learned High Court has rightly dismissed the writ petition. They requested for dismissal of the appeal.

5. We have heard the arguments advanced by the learned counsel for the parties and perused the record made available. Muhammad Latif Khan, the predecessor-in-interest of the appellants, herein, was serving in the Forest Department as Senior Forest Protection Officer. A controversy raised regarding his date of birth, however, through notification dated 12.04.1999 his date of birth was declared as 26.05.1949. Thereafter, the said notification was cancelled through another notification dated 10.10.2000 and he was compulsorily retired from service. He filed a review petition before the Prime Minister (Competent Authority) which was accepted and it was directed vide notification dated 20.11.2001 that Muhammad Latif Khan shall retire from service with effect from 10.10.2000 with all admissible emoluments. For proper appreciation the notification dated 20.11.2001 is reproduced as under:- The predecessor-in-interest of the appellants accepted the terms and conditions of the aforesaid notification and did not challenge the same at proper forum, rather he filed writ petition in the High Court for implementation of the aforesaid notification. The said writ petition was accepted and the prayed relief was also granted by the learned High Court. On the direction of the learned High Court the said notification was implemented and the pensionary benefit were also paid to the deceased.

6. The instant appeal is the outcome of the notification dated 21.04.2003, issued by the department authority i.e. the Secretary Forest/Tourism, which is reproduced as under:-- The aforesaid notification was challenged by the predecessor-in-interest of the appellants by filing an appeal before the Service Tribunal. The learned Service Tribunal while accepting the appeal set aside the said notification vide judgment dated 14.12.2007. For implementation of the aforesaid judgment the predecessor-in-interest of the appellants filed the writ petition in the High Court with the following prayer:- "It is therefore prayed that through the issuance of an appropriate writ the respondents be directed to obey and implement the Judgment of the High Court dated 27.06.2002 as well as the Judgment and Order of the Service Tribunal dated 14.12.2007 in their letter and spirit and arrange the payment of Rs.1312032/- and emoluments to which the petitioner is deemed entitled to as per rules. Any other relief to which the petitioner is deemed entitled to may also be granted to him very graciously." From the juxtapose appreciation of the above reproduced prayer clause and the notifications as well as the previous judgment of the learned High Court dated 27.06.2002, it is crystal clear that the issue relating to the date of birth of the Muhammad Lateef Khan (late) stood finalized through notification dated 20.11.2001. Muhammad Latif Khan (late) had not challenged the said notification, rather while accepting the terms and conditions of the said notification he filed a writ petition for implementation of the same which was issued accordingly. The writ petition which has been dismissed through the impugned judgment was filed for implementation of the judgment of the Service Tribunal dated 14.12.2007. The learned High Court has dismissed the writ petition not only on the ground of laches but also on the grounds of estopple and acquiescence.

7. A relief by way of writ petition is an equitable relief. If a person accepts the terms and conditions of a notification and later on, after complying with the order/notification turns round by claiming that he is entitled for the pensionary benefits from 2000 to 2009, such relief cannot be granted in writ jurisdiction and the writ petition is not maintainable. The matter came under consideration of this Court in the case reported as Abdul Qadir v. Abdul Karim and 4 others (1999 PLC (C.S.) 947) whereby it was observed as under:- "It was laid down by this Court that the conduct of the appellant was such that he could not be given any relief in respect of his retirement. It was also clearly laid down that having himself requested for retirement and having received a substantial amount of pensionary benefits he could not be allowed to turn round to demand reinstatement. These findings show that equity and justice were against the respondent. Clearly the order of reinstatement passed by the Prime Minister cannot be defended on the ground that it was just and equitable, when a contrary finding had been recorded by this Court. We may add that acquiescence and estoppels are two recognized grounds in presence of which jurisdiction based on equity cannot be exercised in favour of a litigant. A common example may be found in the writ jurisdiction of the High Court which is equitable in nature and no relief is granted to a litigant if he himself is instrumental in the making of an order or if he acquiesces in it. He is not allowed to turn round and challenge it. Equitable jurisdiction cannot also be exercised in favour of a litigant with objectionable conduct. If any authority is needed on this point we may refer to the judgment of this Court reported as Muhammad Sharif v. Muhammad Manzoor and others [1993 SCR 92] and the case titled Ghulam Mustafa v. Azad Government and 2 others [1996 MLD 355]. The same view has been reiterated in the case reported as Azad Government and 3 others v. Mrs. Jamshed Naqvi and 2 others [2014 SCR 13], whereby it was observed in para 12 of the report as under:- "

12. All the aforesaid documents sufficiently prove that the respondent herself was instrumental in moving the summaries for her contract appointment. Acquiescence and estoppels are two recognized modes on the basis of which equitable relief by way of writ cannot be granted." Thus, it can safely be concluded that after acceptance of the terms and conditions of the notification dated 20.11.2001 the predecessor-in-interest of the appellants had acquiesced. He could not turn round and claim the pensionary benefits from the years 2000 to 2009. The High Court has rightly dismissed the writ petition through the impugned judgment.

9. So far as the notification dated 21.04.2003 is concerned, although the said notification appears to be issued in pursuance of the notification dated 20.11.2001 which was issued just to meet the objection raised with regard to the payment of pensionary benefits. Prima facie, this notification appears to be in favour of the predecessor-in-interest of the appellants, however, the deceased himself challenged the said notification before the Service Tribunal and the learned Service Tribunal set aside this notification vide order dated 14.12.2007 with the further observation that the official respondents shall comply with the notification dated 20.11.2001 and the judgment of the High Court dated 27.06.2002. It is interesting to mention here that the predecessor-in-interest of the appellants approached the High Court for implementation of the notification dated 20.11.2001 and the learned High Court vide its judgment dated 27.06.2002 directed the official respondents for implementation of the said notification within a period of one month from the date the respondents received the order of the High Court, whereas, the instant writ petition has been filed for implementation of the judgment of the High Court dated 27.06.2002 and the judgment of the Service Tribunal dated 14.12.2007. So far as the judgment of the Service Tribunal is concerned, the learned Service Tribunal while setting aside the notification dated 21.04.2003 has not issued any direction or made any observation which may be implemented by the learned High Court while exercising the writ jurisdiction.

10. So far as the previous judgment of the learned High Court dated 27.06.2002, is concerned, if the said judgment was not complied with, then the predecessor-in-interest of the appellants should have approached the Court after expiry of the stipulated period. Meaning thereby that the said judgment has already been implemented in letter and spirit. Now at the belated stage after the elapse of the period of around eight years, the deceased filed the writ petition on misconception, which is clearly hit by the principle of laches. The learned High Court has committed no illegality while dismissing the writ petition. Resultantly, this appeal having no merits is hereby dismissed with no order as to costs. ZC/44/SC(AJK) Appeal dismissed.