' MUHAMMAD AZAM KHAN, C.J.--- The above titled appeal with the leave of the Court arises out of the judgment of the High Court dated 14th November, 2003, whereby Writ Petition No,476 of 2000 has been accepted.
2. Necessary facts for the disposal of instant appeal are that respondent No,1 was serving as Officer Grade II in AJ&K Cooperative Bank (hereinafter to be referred as the Bank). The Bank, in the light of decision of Board of Directors introduced "golden handshake scheme", for premature retirement of employees with their consent. The scheme was to the effect that a fixed number of officers/officials of grade B-17, B-16, B-1I, B-12, B-4 and B-1 can take benefit of this scheme. It was offered that the employees who want to get benefit from this scheme may apply to the Bank. Respondent No,1 opted to get benefit from the scheme and applied for the same. In the light of above order he opted for golden handshake scheme and on 11th March, 2000, an amount of Rs,9,72,806 was finally settled to be given to respondent No,1. After receiving the amount, the respondent on 26th September, 2000 filed a writ petition in the High Court which was dismissed in limine. On appeal, this Court accepted the appeal and remanded the case to the High Court for fresh decision. The High Court vide judgment dated 4th November, 2003, ultimately accepted the writ petition with the observation that the emoluments received by the petitioner, respondent herein, would be repaid to the Bank forthwith.
3. A preliminary objection was raised by Syed Nazir Hussain Shah Kazmi, the learned counsel for respondent No,1, that the Bank is part of cooperative department. The P.L.A. has been filed without Government sanction, therefore, the instant appeal is not properly filed. The appeal merits dismissal on this sole ground.
4. Mr. Raza Ali Khan, the learned counsel for the appellants, while relying upon entry No,8 of Schedule I of the AJ&K Rules of Business, 1985, argued that the Bank is not a Government department, it is an autonomous body of the Secretariat Department, i.e, Cooperative Department.
Under Clause 16 of the Azad Kashmir Cooperative Bank Bye laws, all the powers of the Bank vest in, the Board of Directors of the Bank. The Government sanction is not required for filing the case.
5. Syed Nazir Hussain Shah Kazmi after perusal of the Rules of Business and Clauses 16 and 21 of the Bye laws of the Bank accepted the position and has withdrawn the objection.
6. While arguing the case on merits Mr. Raza Ali Khan contended that the Bank issued a circular on 22nd June, 1999, whereby it was offered to the employees that the Bank is going to introduce golden handshake scheme for premature retirement of the employees and the employees of the Bank may opt for it. The respondent in response to it, accepted the offer, applied through application and received the emoluments in the shape of retirement benefits amounting to the tune of Rs,9,72,806/87. After receiving the same, the respondent is estopped from challenging the order dated 16-9-1999. He has acquiesced because after acceptance of writ petition on 4th November, 2003, he has not deposited the received amount in the Bank as held by the High Court in the impugned judgment. The learned counsel contended that the High Court has delivered the judgment in an arbitrary manner and has not considered that after receiving the amount the respondent is estopped from challenging the scheme. The learned counsel argued that in alternate, the remedy by way of appeal before the Board of Directors of the Bank was available, but the same was not availed by the respondent.
7. While controverting the arguments Syed Nazir Hussain Shah Kazmi argued that the offer was conditional one. The respondent has accepted the offer conditionally and received the amount under protest. He further argued that the proof of accepting the conditional offer is evident from the fact that he immediately filed a review petition before the Chairman of the Bank.
8. We have heard the learned counsel for the parties and perused the record. It is admitted position that respondent No,1 was serving as Deputy General Manager, Finance, in the Bank. It is also admitted position that the Bank vide Circular dated 22-6-1999 offered golden handshake scheme.
The respondent accepted the offer conditionally after which he was retired vide office order dated 1st March, 2000. In compliance of said office order, he received an amount of Rs,9,72,806/87. It will be appropriate to reproduce the circular whereby the golden handshake scheme was offered:---
9. {{URDU TEXT}} ' A perusal of circular shows that the applications were sought on four conditions. Condition No,2 was to the effect that only those employees shall be considered for golden handshake scheme, who shall file applications and an applicant shall have a right to withdraw the application if he so chooses. In the light of said circular the respondent moved an application for acceptance of offer.
We deem it proper to reproduce the same which is as under:--- {{URDU TEXT}} ' A perusal of acceptance letter shows that the respondent moved the application that if the golden handshake scheme is implemented, he is ready to accept the same provided some better benefits are offered and if some better benefits are not offered, he will not accept the scheme.
Thereafter the Board of Directors issued a circular on 16th September, 1999, whereby it was notified that finally the golden handshake scheme has been approved and certain conditions were laid down in that notification. The notification is as under:--- {{URDU TEXT}} ' A perusal of the above referred circular shows that five officers of B-17, two officers of B-16, one Computer Operator B-11, seven Sub-Accountants of B-11, two Stenographers, five drivers and eleven gunmen could take benefit of the aforesaid scheme. Lastly it is laid down in the Circular that the officers/employees who have submitted their applications in response to Circular dated 22nd June, 1999 are directed to give their final consent up to 25th September, 1999 and after that date, no application will be considered. It appears that the respondent gave the consent and thereafter on 1st March, 2000, an Office Order was issued, whereby respondent was ordered to be retired with his consent. The order is as under-- {{URDU TEXT}} ' The order reveals that the respondent and one Syed Zahid Ayub Bukhari were prematurely retired with their consent after acceptance of golden handshake scheme. In the order of retirement, the conditions are laid down that the retiring employees under this scheme shall have no further claim apart from what they have received. If, in the audit report, it is found that there is any liability against them, they will be liable to realise the same. The final payment will be made after certification of Accounts Department and the order shall take effect from the date of issuance. As is evident that this order was issued on 1st March, 2000 and after passing of this order, the respondent received final payment on 11th March, 2000 amounting to Rs,9,72,806/87. It is proved that the respondent voluntarily applied for acceptance of golden handshake scheme. He gave the final consent and after giving final consent his order of retirement was issued. After 11 days of issuance of retirement order, he received above mentioned final payment in lieu of a receipt.
9. The learned counsel for the respondent laid much stress on the point that the respondent gave conditional consent and when the condition was not fulfilled, there was no estoppel against him under law. A perusal of application submitted by the respondent on 28th June, 1999 shows that there was only one condition in the application that if better benefit's are not offered, he will not opt for the scheme. The conduct of the respondent shows that he gave final consent after the perusal of the conditions laid down in the circular dated 16th September, 1999. The respondent himself applied for taking the benefit of golden handshake scheme, accepted the same, received the amount of retirement benefits and later on tried to build up a new case that he accepted the offer conditionally. After accepting the offer and receiving the retirement benefits he is estopped from challenging the same through writ petition. He was himself instrumental in his retirement through golden handshake scheme, therefore, he is estopped from challenging the same. In a case reported as Abdul Qadir v. Abdul Karim and 4 others 1999 PLC (C.S.) 947 it was observed as under:- -- "It was laid down by this Court that the conduct of the appellant was such that he could not be given any relief in respect of his retirement. It was also clearly laid down that having himself requested for retirement and having received a substantial amount of pensionary benefits he could not be allowed to turn round to demand reinstatement. These findings show that equity and justice were against the respondent. Clearly the order of reinstatement passed by the Prime Minister cannot be defended on the ground that it was just and equitable, when a contrary finding had been recorded by this Court. We may add that acquiescence and estopple are two recognized grounds in presence of which jurisdiction based on equity cannot be exercised in favour of a litigant. A common example may be found in the writ jurisdiction of the High Court which is equitable in nature and no relief is granted to a litigant if he himself is instrumental in the making of an order or if he acquiesces in it. He is not allowed to turn round and challenge it. Equitable jurisdiction cannot also be exercised in favour of a litigant with objectionable conduct. If any authority is needed on this point we may refer to the judgment of this Court reported as Muhammad Sharif v. Muhammad Manzoor and others [1993 SCR 92] and the case titled Ghulam Mustafa v. Azad Government and 2 others [1996 MLD 355]."
' The proposition proposition also came under consideration of this Court in a case titled Azad Government and 4 others v. Syed Muhammad Akbar Shah 1996 PLC (C.S.) 838 wherein it was observed as under:--- "20. We may now advert to the argument raised by the learned counsel for the respondent that the requests made by the respondent were conditional and were in fact more of protests than prayers for retirement. This argument runs counter to the contents of the applications moved by the respondent from time to time. In the lengthy application firstly moved by him the respondent narrated different grievances and grouses and ultimately made the following prayers:--- 'In the circumstances and the reasons stated above the undersigned has decided to retire on 4th of February, 1994, approval for which may be obtained. However, if it is deemed appropriate, steps may also be taken for final disposal of the following applications, copies of which are attached.
(A)
(B)
(C)
(D)
' Signed (Syed Muhammad Akbar Shah) Officer on Special Duty (translated)'
' Another application which is Exh.P.G. in the Service Tribunal file, was filed by him on 30th of January, 1994 in which he stated that he had filed different applications for seeking retirement in which he had narrated the circumstances which forced him to seek retirement. He stated that it is the right of a Civil Servant to seek retirement after putting in the qualifying service. He again protested against certain observations made by Senior Member of the Board of Revenue and also state that an impression might have been conveyed that he was seeking retirement in order to get posting but it was not true. He stated that where the honour of a civil servant was not safe it was better to beg rather than asking for a posting. In the last sentence of the application he stated as follows:-- 'In these circumstances necessary proceeding may be taken for my retirement from the 1st of February, 1994. On that date I would consider myself to have retired and would go away.'
' He moved another lengthy application on 12th of February, 1994, which is Exh.P.H. in the Service Tribunal file. In it he stated that he had completed the qualifying service for pension of 33 years.
According to pension rules a civil servant can intimate to the Government that he wanted to retire on the completion of 25 years service. In light of that provision he had applied for retirement with effect from 1st of February, 1984. After making this request retirement becomes final. It cannot be changed nor be withdrawn. Copies of the rules were also attached with the application. It was further submitted that he had already gone away and that he was only coming to the Services Department for his pension. In the end he also stated that due to delay in the issuance of his retirement order it may be misconstrued that he was trying to get a good posting by displacing the favourite civil servants. He said that he reserved the right of taking legal action but prayed that within one week Order for his retirement with effect from 1st of February, 1994, may be issued after settling all matters. It may be pointed out that this application was moved on 12th of February, 1994, when the date fixed by the respondent had already passed. We have already noted that the respondent said that he had already proceeded on retirement.
21. It was the contention of the learned counsel for the respondent that the applications should have been read as whole to arrive at the correct conclusion. In this connection reliance was placed on Anwar-ul-Haq v. Federation of Pakistan 1995 SCMR 1505. We agree that the document must be read as a whole and we have accordingly read each application as a whole but the irresistible conclusion is that the option of retirement was clear and unequivocal. The un-conditional option was backed up by reminders and an expression of anger that his request has not been acceded to.
In fact he ultimately informed the Government that he had already proceeded on retirement. There is protest in the applications but they leave no doubt that the prayer for retirement was unconditional, clear and repeated."
10. After submitting the application for acceptance of the scheme, the respondent gave consent, got issued retirement order and received the retirement benefits. He is estopped from challenging the same. The finding of the High Court that there is no estopple against the petitioner, respondent herein, because he immediately protested after the issuance of order of retfrement by filing a review petition before the Chairman of the Bank and thereafter by filing a writ petition and amount received would be treated to have been received under protest is not sustainable because while moving the first application the respondent imposed only one condition that if better terms and conditions are offered, he will accept the golden handshake scheme and when the terms and conditions of said scheme came in light, he accepted the same and after acceptance of same received the retirement benefits. After receiving the benefits of retirement, he filed review petition, whereby he instead of taking ground that better terms and conditions have not been awarded, he took a different stand that he should have been retired in grade B-18. This is an afterthought and a new stand. The respondent cannot be allowed to turn round and take a new stand contrary to one taken previously.
11. The result of above discussion is that the appeal is accepted and the judgment of the High Court dated 4-11-2003 is set aside with no order as to costs.