1981 PLP (C (PLC(CS))

Ghulam Sarwar Chaudhry for Petitioner. Syed Najamul Hassan for Respondents. Date of hearing :19th May, 1981. The petitioner who was working as a Secretary, Market Committee, Kasur was retired under section 12 (ii) of the Punjab Civil Servants Act, 1974, after he had served for 25 years entitling him to pensionary or other benefits. He was also given an offer that he may apply, fur Leave Preparatory to retirement admissible to him, within 15 days from the date of the order. Consequently, the petitioner chose to avail of the benefit offered. He did apply for L. P. R., and the same was granted to him.

2. Subsequently, the case of Abdur Rashid v. Administrator (P L D 1980 Lah. 509) succeeded before this Court. The petitioner, therefore, also filed the present petition.

3. It is contended by his learned counsel that as the Punjab Civil Servants Act does not apply to the employees, officers and servants, perform ing functions under the Punjab Agricultural Produce Market Ordinance, 1978, and as even rule 70 (6) of the Punjab Agricultural Produce Markets (General) Rules, 1979 (hereinafter called the Rules) do not apply the order of retirement was void ab initio and, therefore, could not operate.

4. The learned counsel for respondent No. 2 states that as the petitioner has already availed the concession of L P. R., given to him in the impugned order, he cannot turn round at this stage to say that the order retiring him be declared to be without lawful authority and so inoperative.

5. The petitioner in reply states that as he, at that time, bona fidely believed that the respondent did have the authority in law, he chose to avail of the concession. He is, however, prepared to get the said period treated as leave admissible and refund if any amount is due against him.

6. The short question arising in this case is whether the order of retirement was within the power of respondent No. I or not and whether the petitioner who opted to proceed on L. P. R., is estopped from challenging it? It had been held in the judgment referred to above that no such power vested in the respondent No. 1 as neither the Rules nor did the Punjab Civil Servants Act, apply to the Market Committee. In view of above finding, the impugned order was void ab initio any hence inoperative.

7. The next question is that if the petitioner acted on part of the order of the respondent No. 1, is he estopped to chal lenge it? It is a very well‑established position of law that there is no estoppel against law. This Court, on the other hand, can deny a relief on the basis of the conduct of a petitioner. The fact of this case is that the petitioner, believing that the respondent had the requisite power acted on a part of the order to avail L. P. R. He, therefore, did not do so voluntarily as failing that he would have been deprived of even that concession.

8. However, even on equitable basis the order can be set aside only if the petitioner is prepared to refund such benefits as could not have been otherwise admissible to him. As said above, the petitioner is prepared to do so. In view of the above, I declare the impugned order to be without lawful authority and of no legal effect. The petitioner shall, however, refund all such benefits as would not have been due to him had this order not been passed. Consequently, any leave admissible to him shall be adjusted and he be asked to refund the remaining benefits. The parties shall bear their own costs.