' MUHAMMAD TASNIM, J.---- Thorough this petition, petitioner has prayed following relief:--- "A. To call the respondents with explanation regarding their colourable exercise of their power and direct them to act according to law. B. To call the respondents Nos.3 and 4 in person before this Honourable Court and call explanation about their illegal act. C. That as in view of order dated 14- 3-2008 petitioner made request that he is also" entitled, for same relief and he wants to withdraw from L.P.R. And wants to resume service and this request was already granted through order dated: 17-8-2012 therefore petitioner rightly, join the duty, but by taking false reason of union respondents Nos.3, 4 and 5 committed illegal act therefore to direct the respondents Nos.3, 4 and 5 to do not stopped the petitioner to sign the muster roll as non-signing the muster roll will affect the salary of petitioner. D. Any other relief(s) which this Honourable Court may deem fit and proper may kindly be granted."
2. Brief facts, leading to the controversy in the petition, are that the petitioner is an employee of and working as Chowkidar in Messrs Hyderabad Electric Supply Company (hereinafter called as "HESCO" ever since 2-11-1981. Petitioner moved an application dated 25-1-2012 for L.P.R. For retirement from service due to illness of his mother. It appears that on 27-4-2012 petitioner again moved an application for cancellation of L.P.R. To the Chief Executive Officer of HESCO but did not get any reply hence he addressed reminders dated 31-5-2012 and 4-6-2012. On 14-6-2012 Deputy Manager (T.M.P) HESCO wrote a letter to Superintending Engineer Operation Circle HESCO, Nawabshah requesting disposal of the application of the petitioner. On 19-6-2012 Superintending Engineer Operation Circle HESCO, Nawabshah wrote a letter to the Executive Engineer Operation Division HESCO, Tando Adam to look into the matter and dispose of the application of the petitioner in accordance with law 'being the competent authority. Followed by another letter dated 28-6-2012 it appears that in the meanwhile petitioner also moved an application dated 13-7-2012 inviting the attention of the respondents that similar request of another employee namely Ghulam Qadir Channa, UDC regarding withdrawal of L.P.R. Was considered and allowed. He prayed in his application that similar relief be granted to him. Superintending Engineer vide his letter dated 17-7- 2012 forwarded the application of the petitioner to the Chief Executive Officer HESCO, Hyderabad. It further appears that per order dated 17-8-2012 the request of the petitioner was accepted and withdrawal of option for 365 days L.P.R. w,e,f, 1-3-2012 to 28-2-2013 (both days inclusive) on qualifying service of 25 years was cancelled/accepted. The petitioner received such letter on 18-8- 2012, which was Saturday, and 19-8-2012 was Sunday, 20th, 21st and 22nd August, 2012 were Eid-ul- Fitr and there were holidays in the respondents Company, the petitioner reported for duty on 23-8- 2012. Though the petitioner was allowed to resume job but he was not allowed to sign muster roll. In the circumstances, petitioner made complaint to the Chief Executive Officer HESCO on 27-8-2012 but did not get any reply hence filed present petitioner.
3. After service of the notice of the petition, the respondents Nos.2 to 5 filed their joint comments along with documents annexures 'W-1' to 'W-9' and has submitted that after receipt of petitioner's application L.P.R. Was granted to the petitioner vide letter dated 24-2-2012, thereafter petitioner was relieved from duty and petitioner submitted his departure report on 29-2-2012. It is admitted that petitioner moved an application for cancellation of L.P.R. On 27-4-2012 and request of the petitioner for cancellation of L.P.R. Was accepted on 17-8-2012 but the office order dated 17-8-2012, whereby request of petitioner was cancelled/accepted was cancelled on 24-8-2012 being ab- initio. It is further pleaded in the comments that order passed by the respondent on 24-8-2012 is in accordance with law and in line with Pakistan WAPDA Pension Rules, 1977. It is also pleaded in the comments that petition is not maintainable.
4. Ms. Nasim Abbasi, learned counsel for the petitioner has submitted that petitioner moved an application dated 25-1-2012 for early retirement and such application was accepted vide letter dated 24-2-2012. Thereafter petitioner made application dated 27-4-2012 for recalling of L.P.R. She further submitted that the request of the petitioner was accepted vide order dated 17-8-2012 and he was allowed to resume his duties but he was not allowed to sign muster roll. She further submitted that office order dated 24-8-2012 was passed by Superintending Engineer Operation Circle HESCO, Nawabshah as suo motu recalling letter dated 17-8-2012. She further submitted that no ground, whatsoever, for recalling of order dated 17-8-2012 has been mentioned in the impugned letter dated 24-8-2012 except "is hereby cancelled ab initio". She further submitted that the office order dated 24-8-2012 is without any reason and is in violation of provision under section 24-A of the General Clauses Act, hence is liable to be set aside. She further submitted that it is open to an employee to recall option of early retirement before the actual' retirement could take place keeping in view of special facts and circumstances of the case. Learned counsel for the petitioner submitted that order dated 24-8-2012 passed by Superintending Engineer Operation Circle HESCO, Nawabshah be se -aside and petitioner may be allowed to do his duty in accordance with law.
5. On the other hand, Mr. Javed I. Bukhari, learned counsel for the respondents has submitted that petition is not maintainable; the petitioner had moved application for his early retirement at his own freewill. He further submitted that application of the petitioner was accepted and he was sent on L.P.R. He further submitted that petitioner proceeded on L.P.R. And under the law he was not entitled to recall his earlier request for recall of early retirement. He further submitted that no doubt his request for early retirement was accepted by the respondents vide order dated 17-8-2012 but such order was subsequently recalled vide order dated 24-8-2012 as the same was in violation of law. He further submitted that order dated 24-8-2012 is in accordance with law and petition is liable to be dismissed. In support of his contentions, learned counsel for the respondents relied upon an unreported judgment of Division Bench of this Court passed in C.P.No,D-264 of 2008 (Muhammad Raza v. Hyderabad Electric Supply Company and others).
6. We have heard the learned counsel for the parties and have perused the record.
7. The sole question which requires consideration in this case is whether an employee can withdraw request for premature retirement which has already been accepted or after passing of the order by the employer, it attains finality and becomes the past and closed transaction.
8. To deal with the above question, it will be advantageous to quote rule 5 of Chapter III of the Pakistan WAPDA Pension Rules, 1977, which reads as under:--- ""An option once exercised under clause (i) shall be final. However, if a WAPDA employee withdraws his application for premature retirement or modifies the date of retirement, before its acceptance by the competent authority, the application or the date of retirement, shall be deemed to have been withdrawn or modified, as the case may be"."
9. Admittedly the above rules are applicable to the parties to the proceedings. Bare examination of the above quoted rule would show that if a WAPDA employee withdraws his application for premature retirement or modifies date of retirement, before its acceptance by the competent authority, the application or the date of retirement, shall be deemed to have been withdrawn or modified, as the case may be. The documents produced by the respondents clearly demonstrate that request for grant of L.P.R. Was made by the petitioner on 25-1-2012, the request of the petitioner was accepted and communicated to the petitioner vide letter dated 24-2-2012. Thereafter the petitioner was relieved from duties on 29-2-2012 to proceed on L.P.R. w,e,f, 1-3-2012 to 28-2-2013. It was also mentioned in the aforesaid letter that on expiry of completion of L.P.R. Period the petitioner shall stand retired from HESCO (WAPDA) services on 28-2-2013 A.N. It appears that in compliance of the above letter dated 29-2-2012 the petitioner submitted a letter dated 29-2-2012 titled as "departure report" and proceeded to avail his L.P.R. It further appears that after proceeding on L.P.R.
Petitioner changed his mind and vide letter dated 27-4-2012 followed by other reminders sent to the respondents requesting for cancellation of L.P.R. Earlier granted to him. It further appears that application dated 27-4-2012 regarding cancellation of L.P.R. Was not acceded to and petitioner was informed by letter dated 14-5-2012 by respondent No,4, which reads as under:- "Your application, dated 27-4-2012 regarding cancellation of LPR, already sanctioned vides office order under reference as per your request duly recommended by the concerned SDO, Of. S/Div.
HESCO Matiari, which is being availed by you since couple of months i,e, as applied with effect from 1-3-2012 is considered, but not acceded to and you are advised to avail the L.P.R."
10. It further appears that after receipt of the aforesaid letter plaintiff repeated his request regarding recalling of L.P.R. On 4-6-2012 and 16-7-2012 and such applications were disposed of by Superintending Engineer HESCO vide Office Order dated 17-8-2012 in the following words:--- "in consideration of the request of Mr. Muhammad. Iqbal Dasti Chowkidar Operation Sub-Division HESCO Matyari under. Operation Division HESCO Tando Adam and recommended/forwarded by the Director Adm. HR HESCO Hyderabad, the with drawl of Option for 365 days LPR with effect from 1-3-2012 to 28-2-2013 (Both days inclusive) on qualified Service 25-years is hereby cancelled/accepted.
11. It further appears that per order dated 24-8-2012, the office order dated 17-8-2012 was recalled, which reads as under:--- "Office Order No,SE/HESCO/N.Shah/Admn/10931-32 dated 17-8-2012 issued by this office regarding cancellation of LPR of Mr. Muhammad Iqbal Dasti Chowkidar Operation Sub-Divn HESCO Matiari under Opr Divn HESCO T.Adam is hereby cancelled ab initio."
12. From the perusal of the above quoted letters, it would be noticed that application dated 27-4- 2012 of the petitioner was disposed of vide order dated 14-5-2012 rejecting his request. It further appears that petitioner suppressed the aforesaid letter and made applications dated 4-6-2012 and 16-7-2012, which were disposed of by the Office Order dated 17-8-2012.
13. The similar question has come up for consideration before the honourable Supreme Court of Pakistan in the case of Province of Punjab through the Deputy Director Food, Rawalpindi Region v.
Muhammad Iqbal, Ex-Foodgrains Inspector (1984 SCM R 334). In the reported case the respondent- Food Inspector made a request of L.P.R. w,e,f, 31-3-1980. The competent authority granted the request of the respondent and it was ordered that respondent shall retire from service w,e,f, 20-10- 1980. On 29-9-1980 prior to his retirement respondent applied for cancellation of L.P.R. His request was not allowed by the competent authority. The- petitioner approached the Punjab Service Tribunal under section 4 of the Punjab Service Tribunal Act, 1974. The Punjab Service Tribunal after hearing the parties held , that notwithstanding the leave preparatory to retirement granted to the respondent, he continued in services while enjoying such leave and on the basis of its earlier decision in another case held that while continuing in service respondent had the right to recall his offer of retirement and having done so while in service the Government was bound to five effect to it. The Province of Punjab felt itself aggrieved and filed petition before the honourable Supreme Court of Pakistan, who after hearing the parties and considering the case-law on the subject allowed the appeal and set aside the judgment of the Service Tribunal and dismissed the claim of respondent.
14. In another case of Muhammad Naseer v. Deputy Inspector-General of Police, Multan Range Multan and another (2005 SCM R 1928). The petitioner being a Foot Constable having completed qualifying 25 years of service for pension applied for premature retirement/L.P.R. Vide application dated 10-7-2002 which was allowed by the competent authority vide letter dated 16-7-2002 granting 365 days leave preparatory to retirement. Petitioner subsequently vide letter dated 18-7- 2002 sought recalling of the earlier request, which was turned down on 8-5-2003. The petitioner felt himself aggrieved against the order dated 8-5-2003 filed appeal before Punjab Service Tribunal, which came to be dismissed vide judgment dated 30-10-2013. Feeling aggrieved, the petitioner in the reported case approached the Honourable Supreme Court of Pakistan, who after hearing the parties concluded that option could be recalled prior to its acceptance by the competent authority, whereafter it attains finality and becomes a past and closed transaction.
15. In another case of Section Officer, Government of Punjab, Finance Department and others v.
Ghulam Shabbir (2010 SCM R 1425), the respondent after completion of 26 years and 3 months qualifying services applied for voluntary retirement along with application for L.P.R. Both the applications were accepted vide order dated 16-6-2006. It appears that respondent vide letter dated 24-6-2007 requested for cancellation of L.P.R. Earlier granted, which was declined by the competent authority. Respondent filed constitution petition before the Lahore High Court, Bahawalpur Bench, which was allowed vide judgment dated 24-11-2008. The Government of Punjab filed petition before the Honourable Supreme Court of Pakistan. Initially the leave was granted, however subsequently appeal filed by the Government of Punjab was allowed and impugned judgment of Lahore High Court was set-aside.
16. In another case of I.-G. Punjab, Lahore and others v. Iqbal Mehmood (2012 SCM R 745), similar question came up for consideration before the Honourable Supreme Court of Pakistan, in which a mason working in police department applied for L.P.R, and subsequently made request for cancellation of said L.P.R. Since the request of the respondent was declined, he challenged the order before the Punjab Service Tribunal through an appeal which was allowed by the Tribunal. The I.-G. Punjab challenged the order of the Tribunal and the said appeal was allowed by the Honourable Supreme Court of Pakistan in the following terms:- "6. The ratio of the judgment reported at 2000 StMR 1964, we may observe with respect, has not been correctly appreciated by the learned Service Tribunal inasmuch as in paras 6 and 7 of the said judgment, this Court had referred to precedent case-law wherein the right of a civil servant to withdraw request for retirement had been acknowledged provided his earlier request for retirement had not been given effect to or if the earlier request was based on a medical advice which advice stood superseded by a subsequent opinion of the medical board. Admittedly the case of the respondent does not fall in eight of these two categories in the afore-referred circumstances, the impugned judgment is not sustainable. Consequently, this appeal is allowed and the impugned judgment is set aside."
17. In a very recent case decided by three member bench of the ,honourable Supreme Court of Pakistan reported as Commandant Pakistan Military Academy, Abbottabad v. Nazran Abbasi and others (2012 SCM R 385), the similar question came up for consideration and after reviewing of the case-law on the subject, the Honourable Supreme Court of Pakistan ruled as under:--- "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.
6. Under Article 188 of the Constitution, we accept the review petition as a result whereof judgment dated 21-1-2011 passed by this Court is reviewed; the petition filed by the petitioner (Commandant Pakistan Military Academy, Kakul), is accepted by converting the same into appeal and allowed Consequently, .- the judgment of the Federal Service Tribunal dated 10-11-2010, is set aside. Parties are left to bear their own costs."
18. Keeping in view the rule laid down in the above quoted cases decided by the honourable Supreme Court of Pakistan, if case of the petitioner is examined, it will be noticed that petitioner requested for L.P.R. On 25-1-2012, his request was accepted on 24-2-2012, he proceeded on L.P.R.
After relieving the charge. He also addressed a letter indicating his departure report dated 29-2- 2012. Once the petitioner's request for early retirement was accepted under law, his request for recalling of such acceptance was not justified in view of Rule 5 of Chapter III of the Pakistan WAPDA Pension Rules, 1977, which makes it clear that WAPDA employee can withdraw his application for premature retirement or modifies the date of retirement A before its acceptance. From the perusal of the above it will be seen that not only request of the petitioner was accepted, but the same was acted upon and the petitioner proceeded on L.P.R. In such circumstances, request for recall of L.P.R.
Vides application dated 27-4-2012 was declined through respondent letter dated 14-5-2012. The letter of the respondent dated 14-5-2012 was suppressed and petitioner once again moved application for recalling of L.P.R., which was disposed of through letter dated 17-8-2012. But immediately error was noticed by the respondents and vide letter dated 24-8-2012 the Office Order dated 17-8-2012 was recalled as it was void abs-initio. Since the request for recall of L.P.R. Was already disposed of such attempt of petitioner was an exercise in futility. No doubt a letter dated 17-8-2012 was addressed by Superintending Engineer Operation Circle HESCO, Nawabshah, quoted above, cancelling the L.P.R. But immediately error was noticed by the respondents and vide letter dated 24-8-2012 the Office Order dated 17-8-2012 was recalled as it was void ab-initio.
19. In view of above settled legal position, the petition merits no consideration, which is accordingly dismissed with no order as to costs.