1996 SCMR 292 (PLP)

Nemo for Respondents, Date of hearing: 8th November, 1995. MUHAMMAD BASHIR KHAN JEHANGIRI, J: ‑‑This petition for special leave to appeal arises from the judgment of the Peshawar High Court, Peshawar, dated 24‑10‑1994 whereby Constitutional petition. filed by the petitioner bringing into challenge the refusal of the respondents to grant the petitioner family pension of her deceased husband who had retired from the service of Government of N: W.F.P. in the Buildings and Roads Department.

2. Petitioner's husband Haji Rafiq Ahmad had joined service on 30‑12‑1953 as Sub‑Engineer in the former B&R Department of the Government of N.‑W.F.P. Subsequently his services were placed on deputation at the disposal of the Rural Works Programme for the period from 13‑1‑1969 to 25‑10‑1979 as District Engineer. On, 26‑10‑1979 he was repatriated to his 'Parent Department again as Sub‑Engineer fromwhere he was granted earned leave for 90 days till 30‑3‑1980. On the expiry of this leave, the petitioner's husband opted to retire on completion of qualifying service for pension with effect from 25‑10‑1980. According to the petitioner, her husband's claim for pension was not entertained by his parent Department holding that in 1974 he had tendered resignation from service while he was on deputation in Rural Works Programme and, therefore, had ceased to be civil servant whereas the borrowing Department declined the pensionary benefit to him saying that he was on deputation in Rural Works Programme when his tenure of service was hardly ten years. The grievance of the petitioner was that stand of the respective Departments was not tenable.

3. In their comments, the C&W Department maintained that petitioner's husband had tendered resignation which was accepted by the competent Authority on 5‑12‑1974 but he had managed to get this fact suppressed and manipulated his repatriation. According to them, an inquiry was duly conducted and, in consequence of the positive finding that the petitioner's husband had played fraud by removing his resignation from the record and 'O'erased the entries in his service record and, therefore, he was found disentitled to pensionary benefits. The stance taken by the L.G. and R.D.D. in their separate comments was that the petitioner's husband had been initially working against a contingent post but later on had served as an Assistant Engineer against a regular post from 26‑6‑1975 to 25‑10‑1979 which was less than qualifying period for pension.

4. The learned Judges of the Division Bench in the High Court held, firstly, that the respective contentions of the respondents to be well‑founded as it they were duly substantiated by the record; and, secondly, that the petitioner's' husband in the year, 1980 sought retirement and, therefore, "the petition suffered from gross laches and was, accordingly, liable to dismissal on this ground alone". The petition was accordingly dismissed on 24‑10‑1994.

5. Mr. Hussain Khan, learned counsel for the petitioner, contends that the story of tendering resignation by the petitioner's husband from B&R Department, its acceptance on 5‑12‑1974 by the authority and the allegation of its removal from the record by manipulation was a farce, in that, the petitioner's husband was never associated with any such inquiry. The learned counsel submits that without conceding, petitioner's husband was, in any case, entitled to pension from 30‑12‑1953 to 5‑12‑1974 from B&R Department which was responsible to get pensionary contribution from the borrowing Department for the period he remained on deputation. The learned counsel further submits that the petitioner being an invalid female was running from pillar to post for getting the relief and. therefore, any delay that had occurred could have been condoned in entertaining the petition.

6. The contentions raised by the learned counsel for the petitioner q involves a question of law and of public importance. Leave to appeal is accordingly granted to consider the contentions raised before us. AA./Q‑64/S Leave granted .