' ABDUL MAALIK GADDI, S.--- This Constitutional Petition has been filed by petitioner Muhammad Juman Malana with the following prayer (s):--- "A. That this Honourable Court may kindly direct the respondents Nos.1 to 4 and their responsible officer to pay the salaries of the petitioner i,e, since 1-8-2010 uptill resignation dated 15-9-2011.
B. To direct the respondent No,2 to release the salaries if the salaries stopped by him or any other his responsible officer.
C. Any other relief(s) which this honourable Court may deem fit and proper may kindly be grant."
2. Briefly stated the facts of the case are that vide order dated 15-4-1993, the petitioner was appointed as Statistical Assistant (BPS-11) in Health Department by the respondent No,
1. The petitioner served about six years up to 31-3-1999, where after due to certain unavoidable domestics problems and long illness of his father (who expired), he could not continue his job w,e,f, 1-4-1999 to 7-2-2010 (approximately 11 years), however during this period no adverse action/order has been passed against the petitioner by the competent authority. It is alleged that after 11 years absence from duty, the petitioner at his request was allowed to join duty in the office of EDO, Health Tando Allahyar by respondent No,1 vide its letter dated 8-2-2010 but he was refused. Again the petitioner moved an application to the respondent No,1 and vide its letter dated 18-2-2010, the respondent No,3 was directed to accept the joining report of the petitioner and then the petitioner joined his, duties on 13-3-2010. According to the petitioner, after joining, he performed his duties with entire satisfaction of his superiors and was paid salary w,e,f, 14-3-2010 to 31st July, 2010 but the salary for remaining period w,e,f, August, 2010 till the date of his resignation i,e, 15-9-2011 has not been paid to him without any legal justification, hence this petition.
3. Respondents Nos.1 to 4 have filed their written comments, wherein they have taken the plea that though the petitioner was appointed as Statistical Assistant (BPS-11) in the year 1993 in Health Department but subsequently he remained absent from his duties w,e,f, 1-4-1999 to 7-2-2010 (approximately 11 years) however there is no mention in the comments whether any adverse order was passed against him with regard to his absence period or not. It appears from the comments that the petitioner again joined his duties w,e,f,' 13-3-2010 with the approval of respondent No,1 and he performed his duties till 15-9-2011 and he was also paid salary till 31st July, 2010 but the salary for remaining period i,e, from 1-8-2010 to 15-9-2011 has not been paid to him due to the objection of District Accounts Officer, Tando Allahyar at the advice of Finance Department, Government of Sindh vide letter dated 12-2-2011, for want of long absence of the petitioner from his duties.
4. Miss Nasim Abbasi, advocate has appeared on behalf of the petitioner, who while reiterating the same facts and grounds as mentioned in the memo. Of petition, has argued that though the petitioner was remained absent from his duties for about 11 years due to some unavoidable circumstances but till date no adverse action/order has been passed against him. Subsequently, he joined his duties on 13-3-2010 in the office of EDO (Health), Tando Allahyar with the approval of respondent No,1 and his salary was also released up to 31st July, 2010. She further states, that the legitimate dues of the petitioner towards his salary from 1-8-2010 to 15-9-2011 are not being released by the respondent No,2, as prayed in the petition, hence she prayed for allowing this petition by relying the case-law reported as Mst. Mehrun Nisa and 2 others v. Province of Sindh through Secretary, (Education), Government of Sindh and 4 others, 2012 PLC (C.S.) 1161.
5. Conversely, learned A.A.-G. While relying the comments filed by official respondents submits that the petitioner remained absent from service for about 11 years without any intimation, hence being a civil servant he is not entitled for the relief as claimed. In support of his arguments, he has relied upon the case-law reported as Government of Sindh through Secretary Education and Literacy Department and others v. Nizakat Ali and others, 2011 SCMR 592.
6. We have heard learned counsel for the petitioner, learned A.A.-G and perused the relevant record with their assistance.
7. The main grievance of the petitioner is that the legitimate dues of the petitioner towards his salary as mentioned in the prayer clause are not being released by the respondent No,2 though the petitioner served with them with entire satisfaction of his superiors. The petitioner claims his outstanding salary from 1-8-2010 till the date of his resignation i,e, 15-9-2011. Comments have been filed by the respondents, wherein they have admitted that the salary for the aforementioned period was not paid to the petitioner on account of his unexplained absence. There is nothing on record to show that whether any action whatsoever has been taken against the petitioner with regard to his absence by the official respondents. When this fact was also confronted with learned A.A.-G., he had no reply for the same. We have noted that respondent No,3 has admitted in Para-4 of his comments that the petitioner after his long absence, joined duties in his office on 13-3-2010 with the approval of respondent No,1 and thereafter, admittedly the petitioner was paid salary w,e,f, 14- 3-2010 to 31st July, 2010. Had there been any objection with the official respondents, why they had released salary of the petitioner for this period.
8. We have also perused the order sheet dated 20-3-2014, which shows that on the said date Dr. Hakeem Ali Talpur, Deputy Director Health, Hyderabad and Dr. Ali Murad Malano, Additional District Health Officer, Tando Allahyar were present before this Court and on query, they were also unable to explain as to why the petitioner's salary was not paid to him for the said period.
9. Learned A.A.-G. While referring the comments of respondent No,2 has also taken the plea that the petitioner remained absent from his duty for more than three years, therefore, as per Rule 33 of Sindh Civil Service Rule Manual Volume-I, the present petitioner ceased to be a government servant. Since we have already observed above that the petitioner joined his duties on 13-3-2010 with the approval of respondent No,1 and salary was also paid to him for this period (up to July, 2010), therefore, in our view, in doing so the respondent No,2 waived his right, if any, as such this plea has got no force and perhaps has been taken only to defeat the claim of the petitioner. In this regard it is also suffice to say that party to case could not approbate and reprobate about same matter in same breath. Reliance in this aspect is placed on the case of Muhammad Sharif v. Chief Administrator Auqaf and others reported in 1975 SCMR 104 and A.R. Khan v. P.N. Bona through legal heirs, PLD 1987 Supreme Court 107.
10. Since the petitioner was serving in Department till his resignation, no complaint whatsoever about his conduct is available on record, therefore, he has vested right that his salary should be paid to him for the period w,e,f, 1-8-2010 to 15-9-2011 and the reasons given by the respondents in their comments for non-paying the salary of said period are vague, evasive and not sustainable in law. Therefore, the case law cited by learned A.A.-G. Is distinguishable to the facts and circumstances of the present case.
11.In the given circumstances, it appears that the petitioner has made out a case for allowing this petition. Accordingly we allow this petition only to the extent of prayer clauses and direct the concerned respondents to release the salary of the petitioner w,e,f, 1-8-2010 to 15-9-2011 within a period of one month.
12.Before parting with this judgment, we would like to make it clear that this judgment would not come in the way of official respondents to deal with the absence period of the petitioner as per law.
13.The petition stands allowed in the above terms.