Haji SARDAR MUHAMMAD Versus
This petition for leave to appeal challenged a Peshawar High Court judgment that dismissed a constitution petition regarding the compulsory retirement of a government servant. The petitioner, a former Section Officer, sought to challenge his retirement, which took effect in 1976, after a subsequent review petition under Martial Law Order 23 was rejected in 1978. The core legal questions concerned whether the High Court correctly dismissed the petition on the grounds of laches and whether the retirement order was vitiated by the absence of the specific phrase 'public interest' or allegations of mala fides. The Supreme Court upheld the High Court's decision, holding that the High Court exercised its discretion appropriately regarding laches, given the significant delays in filing. Furthermore, the Court affirmed that the mere omission of the specific words 'public interest' in a retirement notification does not invalidate the order if the action was otherwise lawful under the relevant statute. The judgment establishes that discretionary dismissal on the basis of laches is a matter for the High Court's judgment based on the specific circumstances of each case.
- Does the omission of the phrase 'public interest' in a notification of compulsory retirement invalidate the order?
- Is the High Court's dismissal of a petition on the grounds of laches a matter of judicial discretion?
- Can a petitioner claim discrimination based on the fact that other Benches of the High Court took a different view on the issue of laches in similar cases?
- Section 13(1), North-West Frontier Province Civil Servants Act, 1973
- Martial Law Order 23
ORDER
1. ANWARUL HAQ, C. J. ‑‑This petition seeks leave to appeal against the judgment of Peshawar High Court dated the 2nd of April, 1979, whereby a constitution petition moved by the petitioner Haji Sardar Muhammad against his compulsory retirement from Government service was dismissed in limine, on the ground of laches. A review petition filed by the petitioner was also dismissed by the" learned Judges vide' their order, dated the 24th of April, 1979.
2. Having started service as a L. D. C. in 1949, the petitioner rose to the position of a section Officer in grade 17, and was serving in the Industries and Development Department of the North‑West Frontier Province Government, when he was compulsory retired from service with effect from 6‑11‑1975 after competing 26 years of service. By two subsequent notifications he was allowed leave proparatory to retirement, with the result that his compulsory retirement, ultimately took effect from 7‑11‑1976.
3. On the proclamation of Martial Law Order No. 23, the petitioner filed a review petition on 22nd of October, 1977, which was, however, dismissed by the Review Board on the 16th of March, 1978. It was in these circum stances that the petitioner invoked the writ jurisdiction of the Peshawar High Court on the 31st of March, 1979. The learned Judges took the view that the petitioner had not given any satisfactory explanation for keeping silent for more than a year after the rejection of the review petition on the 16th of March, 1978.
4. In seeking leave to appeal, it is submitted by Mr. Safdar Hussain, learned counsel for the petitioner, that in several other cases the same Bench of the High Court, and other Benches have not thrown out writ petitions of the affected Government servants on the ground of laches, and, accord ingly, the order under appeal suffers from discrimination against the petitioner. The learned counsel further submits that the order made by the Review Board stands vitiated for the reason that although the petitioner was invited to appear before the Board, yet he was not given any hearing at all, and could not present his point of view against his compulsory retirement. Mr. Safdar Hussain, finally, contends that the order of retirement was mala fide and was also defective as the relevant notification did not mention that the retirement was being ordered in the public interest as required by section 13(1) of the North‑West Frontier Province Civil Servants Act, 1973.
5. We regret we see no merit in these submission. The learned Judges of the High Court have rightly remarked, in the order made by them on review on the 24th of April, 1979, that the mere fact that the same Bench or other Benches might have taken a different view in respect of laches would not constitute a ground for review in this case. It is in the discretion of the High Court to take note of laches on the part of the petitioner and to decide the question in the light of all the relevant circumstance having a bearing on this matter. Now, in the present case the compulsory retirement was first ordered on the 28th of April, 1976, but the petitioner did not take any step to challenge the same until the 22nd of October, 1977, when he filed a review petition under Martial Law Order 23. This Martial Law Order was promulgated much later than the order of compulsory retirement. Even after his review petition was rejected on the 16th of March, 1979, the petitioner waited for another year before approaching the High Court. In the circumstances, the learned Judges were justified in refusing to entertain the petition on the ground of laches. We see no justification to interfere with the order made by the High Court in this behalf.
6. Even otherwise, the real challenge is not to the Review order passed under Martial Law Order 23 but to the order of compulsory retirement made by the Provincial Government in 1976. The petitioner was governed by the provisions of section 13(1), of the North‑West Frontier Province Civil Servants Act, 1973, under which compulsory retirement could be ordered on the completion of 25 years of service in the public interest. Although the petitioner has alleged that the order was made: male fide but he has not been able to give any particulars in support of this allegation. The mere omission of the word "public interest" would‑ not vitiate the order of compulsory retirement.
7. As a result, this petition fails and is hereby dismissed.
8. Petition dismissed.