2024 P L C (C.S.) 1254
[Appellate Tribunal Balochistan High Court Quetta]
Before Muhammad Kamran Khan Mulakhail, Chairman and Gul Hassan Tareen,
Member NAZIR AHMED
Versus
CHIEF JUSTICE HIGH COURT OF BALOCHISTAN through Registrar and another
Service Appeal No.10 of 2023, decided on 31st October, 2023.
(a) Civil service---
----Leave Preparatory to Retirement, withdrawal of ---Principle of locus poenitentiae ---
Application moved by the appellant ,Court Assistant availing Leave Preparatory to Retirement (L.P.R.), for withdrawal of L.P.R was dismissed---Validity ---Record revealed
that when the L.P.R was about to come to an end the appellant expressed his desire to withdraw his option of L.P.R.---Request of the appellant was misconceived as an effective order for his retirement had already been passed ---Option once having been exercised by the
appellant could not be withdrawn on the principle of locus poenitentiae ---Appellant had
taken the benefit of his L.P.R. notification and received the salary from the public exchequer during the L.P.R period---In his application, appellant had mentioned his intended date of
retirement (as 31st July, 2023) ---Option of L.P.R. could be withdrawn prior to its acceptance
by the competent authority, whereafter, it attains finality and becomes a past and closed
transaction ---Appellant could not have applied for withdrawal of his option of L.P.R which
was secured by the appellant at his own request ---Appellant could have applied for
withdrawal of his application made for availing the option of L.P.R prior to the issuance of
Notification by virtue of which, the L.P.R for 365 days was sanctioned---Appeal was dismissed, in circumstances.
Secretary, Government of Punjab, Food and Co- operation Department v. Shamoon
Bahadur PLD 1979 SC 835 and Commandant Pakistan Military Academy Abbottabad v. Nazran Abbasi and others 2012 SCMR 385 ref.
(b) Civil service---
----Leave Preparatory to Retirement, withdrawal of ---Scope ---Application moved by the
appellant, Court Assistant availing Leave Preparatory to Retirement (L.P.R.), for withdrawal of L.P.R was dismissed---Validity ---Record revealed that the Notification of premature
retirement was acted upon on acceptance of L.P.R. vide a notification ---Appellant proceeded
on L.P.R after relieving the charge of his office; he enjoyed the L.P.R for almost nine months and all of sudden, changed his mind--- According to Chapter -5, Rule 1.6, Serial No.2 the
ESTACODE, a written intimation once submitted by a government servant who intends to retire after completing twenty five years service qualifying for pension, shall be final and shall not be allowed to be modified or withdrawn---Hence, appellant's application had rightly been rejected by the Competent Authority---Appeal was dismissed, in circumstances.
(c) High Court Establishment (Appointment and Conditions of Services) Rules, 2020 ---
----Rr. 40 & 46 ---Leave Preparatory to Retirement, withdrawal of ---'High Court
Establishment' and 'Civil Servant' ---Distinction ---Competent authority, powers of ---
Application moved by the appellant, Court Assistant availing Leave Preparatory to Retirement (L.P.R.), for withdrawal of L.P.R was dismissed ---Contention of the appellant
was that as High Court Establishment (Appointment and Conditions of Services) Rules, 2020 ('the Rules, 2020') were applicable to the appellant which governed a civil servant, so appellant was entitled for withdrawal under R. 48 of the Leaves Rules, 2020---Validity ---
Sub- Rule (1) of R. 48 of the Leave Rules, 2020, provides that a civil servant may, with the
approval of the next above/higher authority to the competent authority to sanction L.P.R, withdraw his option of voluntary retirement within the period of LP.R ---According to said
rule, the approval of the next above/higher authority to the competent authority to sanction
L.P.R is a condition precedent for withdrawal LPR ---In the present case, the LPR was
sanctioned by the Chief Justice of the High Court as the competent authority---In the High
Court of Balochistan there does not exist any higher authority to the competent authority (the Chief Justice) ---As such, R. 48 of the Leaves Rules, 2020 was not applicable in the case of
appellant ---By virtue of R. 40 of the Rules, 2020, though, the terms and conditions of service
of the High Court's establishment, including leave, pay etc. shall be governed by the laws for
the time being enforced and applicable to civil servants in posts in the same scale in the
Provincial Government, yet, R. 48(1) of the Leave Rules, 2020, is not applicable in the High Court as higher authority to the Chief Justice does not exist ---Besides, while enacting Rules,
2020, R. 48 of Leaves Rules, 2020, was neither adopted nor enacted into Rules, 2020, therefore, reliance on such Rule by the appellant was mis -conceived ---Appeal was dismissed,
in circumstances.
Registrar, Lahore High Court, Lahore v. Syed Javed Akbar and another 2007 SCMR
792 distinguished.
Khushnood Ahmed for Petitioner.
Muhammad Ali Rakhshani, Additional Advocate General for Respondents.
Date of hearing: 18th October, 2023.
JUDGMENT
GUL HASSAN TAREEN, MEMBER---- This appeal, preferred under Rule 46 of the
High Court Establishment (Appointment and Conditions of Service) Rules, 2020 ('Rules,
2020'), assails the order dated 25 May, 2023 ('impugned order') of the Hon'ble Chief Justice
of the High Court of Balochistan ('competent authority') whereby, request of the appellant
made for withdrawal of Leave Preparatory to Retirement ('L.P.R'), sanctioned vide Notification No.2328/PF/Admn dated 20 June, 2022 was regretted.
2. Facts of the case, briefly stated, are that, the appellant while working as Court
Assistant in B -17, in establishment of the High Court of Balochistan, had applied for
premature retirement/ L.P.R w.e.f. 01 August, 2022 to 31st July, 2023 on completion of his twenty seven years qualifying service for pension vide an application dated 15 June, 2022. The application was allowed and the competent authority was pleased to sanction L.P.R for 365 days, with effect from 01 August, 2022 to 31 July, 2023 in favour of the appellant vide Notification dated 20 June, 2022. However, the appellant, through an application dated 27 April, 2023, applied for withdrawal of his L.P.R Notification dated 20 June, 2022 and has referred to the Rule 48 of the Balochistan Civil Servants' Leave Rules, 2020 ('Leave Rules, 2020'). The competent authority vide impugned order has regretted the request of appellant.
3. Mr. Khushnood Ahmed, learned advocate of the appellant states that, a person on
L.P.R will be treated in service for all intents and purposes and a civil servant may apply for withdrawal of his option of L.P.R prior to the completion of L.P.R period. He states that the L.P.R of appellant was to be expired on 31 July, 2023 whereas, application for withdrawal of L.P.R was submitted on 27 April, 2023. As such, the same ought to have been allowed by the competent authority. The learned advocate has referred to the Rule 48 of the Leave Rules, 2020 and placed reliance on the following case laws:
Muhammad Munawar v. District Police Officer, Mandi Baha -ud-Din and another
2011 PLC (C.S.) 546
Raja Muhammad Anayat Khan v. The Chief Secretary and others 2003 PLC (C.S.) 109
Registrar, Lahore High Court, Lahore v. Syed Javed Akbar and another 2007 SCMR 792.
4. Mr. Muhammad Ali Rakhshani, the learned Additional Advocate General supported
the impugned order and placed reliance on written reply of the learned Registrar of this Court.
5. Heard. Record gone through.
6. The appellant had applied for L.P.R on completion of his twenty seven years
qualifying service for pension by an application dated 15 June, 2022. The competent
authority was pleased to sanction L.P.R for 365 days w.e.f. 01 August, 2022 to 31 July, 2023 vide Notification dated 20 June, 2022. The appellant had secured the L.P.R w.e.f. 01 August, 2022 to 31 July, 2023 along with an observation that, respondent shall stand retired from his service w.e.f. 01 August, 2023 (after noon). The para No.2 of the Notification is reproduced hereunder:
"2. On expiry of said L.P.R the above named Officer shall stand retired from his service on 01.08.2023 (A.N)."
When the L.P.R was about to come to an end, the appellant made an application dated
27th April, 2023 expressed his desire to withdraw his option of L.P.R. The request of the appellant was misconceived for, on 27th April, 2023, an effective order for his retirement had already been passed. Option once having been exercised by the appellant cannot be withdrawn on the principle of locus poenitentiae.
7. The appellant has taken the benefit of Notification dated 20 June, 2022 and received
the salary from the public exchequer during the L.P.R period. In his application, appellant had mentioned his intended date of retirement as 31 July, 2023. The option of L.P.R could be withdrawn prior to its acceptance by the competent authority, whereafter, it attains finality and becomes a past and closed transaction. The Supreme Court of Pakistan, in the case of
Secretary, Government of Punjab, Food and Co -operation Department v. Shamoon Bahadur,
reported in PLD 1979 SC 835 held as under:
"…….Nonetheless when the L. P. R. was about to come to an end the respondent, by
an application dated 3rd of June 1971, showed his desire to withdraw his request which apparently was misconceived as on that date an effective order for his
retirement had already been passed. The option having been once exercised it did not
lie in his mouth to go back on it in the context of the finality of the consequences
ensuing therefrom by its acceptance."
In this regard, reliance may also be placed on the case reported as Commandant
Pakistan Military Academy Abbottabad v. Nazran Abbasi and others, (2012 SCMR 385). The relevant therefrom is reproduced hereunder:
"5. With the assistance of the learned counsel for both the parties, we have gone through the judgment relied upon by the Service Tribunal thoroughly. The ratio decidendi of the judgments is that the Government Servant may withdraw his request for the premature retirement before its acceptance by the competent authority. Applying the law, laid down in this case and in view of the admission made by the learned counsel for respondent that the application for premature retirement was accepted vide order dated 12 -7-2009, copy of which has been placed on record,
therefore, we are of the opinion that no sooner application for premature retirement was accepted, the petitioner had no authority to withdraw the same on the basis of subsequent application made for withdrawal of the previous application for premature retirement after its acceptance."
In view of the law laid down by the Apex Court, the appellant could have not applied
for withdrawal of his option of L.P.R which was secured by the appellant on his own request. The appellant could have applied for withdrawal of his application made for availing the option of L.P.R prior to 20 June, 2022 when, vide notification dated 20 June, 2022, the L.P.R for 365 days was sanctioned.
8. The notification of premature retirement was acted upon for, on acceptance of L.P.R
vide notification dated 20 June, 2022, the appellant proceeded on L.P.R after relieving the charge of his office. He enjoyed the L.P.R for almost nine months and all of sudden, changed his mind. According to Chapter -5, Rule 1.6 serial No.2 the ESTACODE, a written intimation
once submitted by a government servant who intends to retire after completing twenty five years service qualifying for pension, shall be final and sha ll not be allowed to be modified or
withdrawn. Hence, appellant's application has rightly been regretted by the competent
authority.
9. So far as Rule 48 of the Leave Rules, 2020 is concerned, the sub- Rule (1) thereof
provides that 'a civil servant may, with the approval of the next above/ higher authority to the
competent authority to sanction L.P.R, withdraw his option of voluntary retirement within the period of L.P.R. According to this rule, the approval of the higher authority to the authority to sanction the L.P.R is a condition precedent for withdrawal of L.P.R. In the present case, the L.P.R was sanctioned by the Hon'ble Chief Justice of this Court as a competent authority vide notification dated 20 June, 2022. In the High Court of Balochistan, there does not exist any higher authority to the competent authority/Chief Justice. As such, the Rule 48 ibid is not applicable in the case of appellant. By virtue of Rule 40 of the Rules, 2020, though, the terms and conditions of service of the High Court's establishment, including leave, pay etc. shall be governed by the laws for the time being enforced and applicable to civil servants in posts in the same scale in the Provincial Government, yet, the Rule 48(1) of the Leave Rules, 2020 is not applicable for, in the High Court, higher authority to the Chief Justice does not exist. Apart from afore discussion, while enacting the Rules, 2020, the Rule 48 of Leave Rules, 2020 was neither adopted nor enacted into the Rules, 2020, therefore, reliance on such Rule by the appellant's advocate is misconceived.
10. In the case of Registrar Lahore High Court, Lahore, as relied by the appellant's
advocate, the apex Court has held, that, 'a resignation can be withdrawn before its acceptance by the competent authority.' Same is, therefore, distinguishable. The rest of the two case laws cited by the appellant's advocate do not express the correct interpretation of the law as settled down by the Supreme Court of Pakistan in the cases referred to in para No.7 of this judgment.
For what has been discussed above, the appeal is dismissed.
MQ/22/Bal. Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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