' SALMAN HAMID, J.--- It was portrayed by Dr. Muhammad Muzaffar (the petitioner), a medical officer with the Karachi Port Trust (respondent No,2) that he was prematurely retired from his service on 19-8-2004 in terms of Rule 40.1 of the Karachi Port Trust Digest of Pay, Allowances and Leave Rules read with Appendix 'E' thereof (the Digest). It was also depicted that subsequently on 20-8-2009 the petitioner was reinstated in service of the respondent No,2 and at such time he was the senior most Medical Officer; then it was brought up that his reinstatement was a result of the directive of the Prime Minister of Pakistan when the cases of all employees of the government had been reviewed who were removed from service from 2003-2007. Present petition was preferred by the petitioner after his reinstatement and denial of back-benefits by respondent No,2 for the period he remained unemployed from 19-8-2004 up to the date of his reinstatement i,e, 20-8-2009.
Besides the claim of back benefits, the petitioner also claimed that he being the senior most Medical Officer in the general cadre and also senior to the present Chief Medical Officer (respondent No,4), respondent No,2 reconsider all eligible Medical Officers and general practitioners, available in the medical department of respondent No,2 and after considering their seniority, competence and ability, place the senior most medical officer as Chief Medical Officer in the medical department of respondent No,2. Learned counsel for the petitioner relied upon Lahore Development Authority and others v. Muhammad Naseem Kachloo and another (2006 SCM R 434) to claim back benefits.
2. Petition was resisted by respondents Nos.2 and 3. It was mentioned that the petitioner was appointed as a medical officer in BPS-17 w,e,f, 27-1-1980 on one year probationary period.
Performance/work of the petitioner found unsatisfactory, the probation period was extended by a further period of six months. The petitioner was finally confirmed on 29-7-1981. It was also brought to the notice of this Court that the petitioner was first charge sheeted for misconduct for his continuous unauthorized absence from duty from 11-4-1996 to 8-9-1996. This charge-sheet was not challenged by the petitioner. Competent authority, after inquiry, reduced petitioner's pay by two stages in time scale w,e,f, 10-3-1998. Yet again the petitioner was charge sheeted for misconduct for continued unauthorised absence from duty from 31-3-1997 to 30-12-1997 by leaving station without permission. Again the competent authority, after inquiry, imposed punishment of censure. The behaviour and attitude of the petitioner, despite above two charge sheeting, did not change. The petitioner was again charge sheeted for the third time for unauthorized absence from duty w,e,f, 28-1-2001 to 7-2-2001 which was without any information to the hospital administration. Pursuant to inquiry and previous track record, stoppage of annual increment for a period of two years without recurring effects was imposed by Order dated 21-4- 2003. This Order was assailed by a departmental appeal dated 15-6-2003 which was placed before the Review Committee by the competent authority (the Chairman of respondent No,2). It came to light before the Review Committee that the petitioner as a cover up kept sending one Khuda-e-Raham, a junior clerk for duty. The petitioner was also found not improving in his performance of duty, devotion, discipline and punctuality. The Review Committee, therefore, recommended his retirement from respondent No,2's service with immediate effect and he was accordingly retired on 19-8-2004 under Rule 40.1 - Appendix 'E' of the Digest. It was further mentioned that after retirement on 19-8-2004, the petitioner for the first time submitted his appeal to the Secretary, Ministry of Ports and Shipping, Government of Pakistan in June, 2008 i,e, after a lapse of four years. However, subsequently the Secretary, Ministry of Ports and Shipping was pleased to recommend reinstatement of the petitioner with immediate effect from 20-8-2009 but with the condition that the period for which the petitioner remained out of respondent No,2's service shall be treated as leave without. Pay; that the delay for reconsideration of the case for reinstatement in service of the petitioner w,e,f, 19-8-2004 to July/August, 2009 would be condoned and the petitioner would not be allowed back-benefits at the time of his reinstatement in the service of respondent No,2. It was mentioned by the learned counsel that -this qualified reinstatement having been accepted by the petitioner, he now cannot turn around and ask for back-benefits and/or any seniority over respondent No,4 or any other officer in the Medical Department of respondent No,2.' It was also urged that the petitioner under the circumstances of the case had been estopped in law in raising the claim of back-benefits and that he cannot approbate and reprobate. In such respect the cases of Wali-ur-Rehman and others v. State Life Insurance Corporation and others (2006 SCM R 1076) and Khadim Hussain v. Muhammad Azam Sati (2007 CLC 404 SC (AJ&K) were relied upon. It was urged that the petition being meritless is liable to be dismissed.
3. We have heard arguments of the learned counsel for the petitioner and of respondents Nos.2 and 3. No arguments had been advanced by the counsel/DAG appearing for the Federation.
Respondent No,4 also remained unrepresented.
4. Record of the file would show that the petitioner stood retired from service on 14-9-2011 after his reinstatement in 2009. It would be evident that after retiring the petitioner under Rule 40.1 - Appendix E of the Digest in the year 2004 when by such time he had already served the respondent No,2 for approximately 24 years (date of confirmation of employment 29-7-1981 date of retirement August 2004 - almost 24 years), the minimum threshold of 20 years, as rationed by Rule 40.1 Appendix E of the Digest had been achieved by the petitioner and/or the respondent No,2 were legally, allowed in treating the case of the petitioner under the above provision. It is also worthy to mention (as borne out from the record and admitted by the learned counsel for the petitioner during the course of arguments) that the petitioner did not challenge his retirement in August, 2004 for about four years and made a representation at a belated stage of time. It is also evident that the reinstatement of the petitioner with respondent No,2 was qualified and contingent inasmuch as such clearly stipulated (as evident from Annexure "C" (Page 39) - a letter dated 20-8- 2009 of Government of Pakistan, Ministry of Port and Shipping), that, "(i) the period which he (petitioner) remained out of KPT service may be treated as leave without pay; (ii) the delay for reconsideration of the case for reinstatement [in] service of the officer w,e,f, 19-8-2004 to July/August, 2009 be treated as condone[d]; and (iii) The officer may not be allowed back benefits while reinstating] him in service".
5. Since the reinstatement of the petitioner was contingent and the fact. That it was accepted as such, the case of Lahore Development Authority and others v. Muhammad Naseem Kachloo and another (2006 SCM R 434) relied upon by the petitioner is not applicable in the facts and circumstances of the present case inasmuch as in such precedent it was admitted by the counsel for L.D.A. That Muhammad Nadeem's leave was due and that he had also made applications in such regard and that medical certificates for availing of such leave had also been produced and that such leave was treated and/or adjusted in his absence from service and were treated as leave without pay. Therefore, Hon'ble Supreme Court of Pakistan held that once Nadeem's absence was treated as leave, he could have not been non-suited. As against this, the petitioner's very reinstatement was on the consideration that the period in which he remained out of the employment of respondent No, 2 shall be treated as leave without pay and that once it was treated as such and was also accepted by the petitioner, he subsequently cannot turn around and A claim that he be given all back benefits. Petitioner's reinstatement was against the consideration of leave without pay. This being the position, we find no merits in the present petition and the same is hereby dismissed, however, with no order as to costs. Pending applications are also dismissed.