' This writ petition calls in question a part of the order dated 28th January, 1982 (Annexure T) of the Assistant Secretary passed on behalf of the Secretary of the Board of Intermediate and Secondary Education, Lahore, whereby, the petitioner had been retrospectively placed under suspension with effect from 9tn October, 1980. The petitioner also seeks a declaration that non-payment of back benefits to him from the date of suspension i,e, 12th February, 1980 to the date of re-instatement was without lawful authority and of no legal effect.
2. The facts re1evant for the disposal of the writ petition are that initially the petitioner was placed under suspension by order dated 12th February, 1980 (Annexure B) of the respondent Board with immediate effect on account of a report relating to moral turpitude. This was eventually followed by an order of dismissal dated 9th October, 1980. The petitioner challenged this order before this Court by means of Writ Petition No, 4888/81. The writ petition was later withdrawn as the respondent Board in its meeting held on 14th January, 1982 (Annexure Q) recalled the order of dismissal of the petitioner and remanded the case to the competent authority for disposal afresh, after providing an opportunity of being heard to the petitioner. Thereafter; the Assistant Secretary of the Board acting on behalf of the Secretary inter alia intimated to the petitioner vide notice dated 28th January, 1982 (Annexure T) that his suspension order earlier passed shall remain intact.
3. Learned counsel for the petitioner contends that once the order of dismissal was withdrawn by the respondent Board and no direction having been issued either impliedly or expressly placing therein the petitioner under suspension, the Assistant Secretary or the Secretary of the respondent Board had no power to place him under suspension retrospectively. The submission is that the impugned order to this extent was ultra vires of the decision taken by the respondent Board in the aforesaid meeting. Learned counsel for the petitioner further contended that the order of suspension is in the nature of an executive order and, therefore, it could not be applied or enforced retrospectively. There can be no cavil with the proposition of law canvassed by the learned counsel for the " petitioner that an executive order cannot be enforced retrospectively. Reference may be made to Government of Pakistan v. Nasir Muhammad. Khan (1) and Mian Munawar-ud-Din v. The Federation of Pakistan (2) which support the plea taken by learned counsel for the petitioner. Mr. {{FOOT NOTE}}
(1) PLD 1965 SC 106 (2) PLD 1979 Lab. 699 {{FOOT NOTE}} ' ljaz Ahmad, learned counsel for the respondent has also frankly conceded that an executive order cannot be applied retrospectively. He, however, submits that the writ petition is not maintainable, in that, an adequate remedy is available to the petitioner to make a claim for tha balance of his salary and other dues for the disputed period. In support of his contention. Mr. Ljaz Ahmad, learned counsel for the respondent strongly relied upon the dictum of the Supreme Court in Abdul Khaliq Bangash v. Secretary, Government of Pakistan, Co-operative Department Lahore and two others
(1) wherein the earlier view in Mian Muhammad Hayat's case was reiterated that "the order of suspension is not a penalty and it does not violate any legal right vested in the suspended officer".
The same view was followed in : Capt. Muhammad Azhar v. Province of Punjab through the Secretary, Government of Punjab, Lahore and two others (2). Learned counsel for the respondent also took the objection that during the pendency of this writ petition, the petitioner was dismissed from service on 18th April, 1982 by the competent authority and, therefore the interim order of suspension was merged in the final order which no longer holds the field. The petitioner filed an appeal against his dismissal before the Board which was also dismissed. There is therefore, no live issue to be adjudicated upon by this Court.
4. I have given my anxious consideration to the submissions made by the learned counsel for the parties. The relief claimed by the petitioner ex facie relates to a claim for the payment of back benefits for the disputed a period which cannot be enforced through writ jurisdiction. This being so, respectfully following the dictum laid down in Abdul Khaliq Bangash' case, I hold that the present petition is not maintainable. Mian Munawar-un-Din's case cited by the learned counsel for the petitioner is distinguishable. In that case, the suspension order was passed by the Government in violation of rule 5 (1) of the Government Servants (Efficiency and Discipline) Rules, 1973 and the Federal Government acted in violation of its own departmental interpretation of rules in suspending the incumbent from service. The same was the case in the Government of Pakistan v.
Nasir M. Khan and others (3) where interpretation of certain service rules affecting Government servants were involved whose existing terms and conditions of service were protected under Article 178 (3) of the Constitution of Pakistan, 1962. In the instant case, the learned counsel for the petitioner has not been able to point out violation of any rule or instruction having the force of a statute. There also appears to be force in the second objection raised by the learned counsel for the respondent.
5. In view of the above discussion, the writ petition is dismissed with no orders as to costs. {{FOOT NOTE}}
(1) 1970 SCMR 103 (2) PLD 1975 Lah. 921
(3) PLD 1965 SC 106 {{FOOT NOTE}}