Gul Hassan Tareen, J. This appeal, preferred under Rule 46 of the High Court Establishment (Appointment and Conditions of Service) Rules, 2020 (Rules, 2020'), assails the order dated 25 May, 2023 (`impugned order') of the Hon'ble Chief Justice of the High Court of Balochistan ('competent authority') whereby, request of the appellant made for withdrawal of Leave Preparatory to Retirement ('L.P.R'), sanctioned vide notification No. 2328/PF/Admn dated 20 June, 2022 was regretted.
2. Facts of the case, briefly stated, are that, the appellant while working as Court Assistant in B-17, in establishment of the High Court of Balochistan, had applied for premature retirement/L.P.R w.e.f. 01 August, 2022 to 31 July, 2023 on completion of his twenty seven years qualifying service for pension vide an application dated 15 June, 2022. The application was allowed and the competent authority was pleased to sanction L.P.R for 365 days, with effect from 01 August, 2022 to 31 July, 2023 in favour of the appellant vide notification dated 20 June, 2022. However, the appellant, through an application dated 27 April, 2023, applied for withdrawal of his L.P.R notification dated 20 June, 2022 and has referred to the Rule 48 of the Balochistan Civil Servants Leave Rules, 2020 (leave Rules, 2020'). The competent authority vide impugned order has regretted the request of appellant.
3. Mr. Khushnood Ahmed, learned advocate of the appellant states that, a person on L.P.R will be treated in service for all intents and purposes and a civil servant may apply for withdrawal of his option of L.P.R prior to the completion of L.P.R period. He states that the L.P.R of appellant was to be expired on 31 July, 2023 whereas, application for withdrawal of L.P.R was submitted on 27 April, 2023.
As such, the same ought to have been allowed by the competent authority. The learned advocate has referred to the Rule 48 of the Leave Rules, 2020 and placed reliance on the following case laws: Muhammad Munawar v. District Police Officer, Mandi Baha-ud-Din and another 2011 PLC (C.S.)
546 Raja Muhammad Anayat Khan v. The Chief Secretary and others 2003 PLC (C.S.) 109 Registrar, Lahore High Court, Lahore v. Syed Javed Akbar and another 2007 SCMR 792
4. Mr. Muhammad Ali Rakhshani, the learned Additional Advocate General supported the impugned order and placed reliance on written reply of the learned Registrar of this Court.
5. Heard. Record gone through.
6. The appellant had applied for L.P.R on completion of his twenty seven years qualifying service for pension by an application dated 15 June, 2022. The competent authority was pleased to sanction L.P.R for 365 days w.e.f. 01 August, 2022 to 31 July, 2023 vide notification dated 20 June, 2022. The appellant had secured the L.P.R w.e.f 01 August, 2022 to 31 July, 2023 alongwith an observation that, respondent shall stand retired from his service w.e.f. 01 August, 2023 (after noon). The para No. 2 of the notification is reproduced hereunder: "2. On expiry of said L.P.R the above named Officer shall stand retired from his service on 01.08.2023 (A.N)."
When the L.P.R was about to come to an end, the appellant made an application dated 27 April, 2023 expressed his desire to withdraw his option of L.P.R. The request of the appellant was misconceived for, on 27 April, 2023, an effective order for his retirement had already been passed.
Option once having been exercised by the appellant cannot be withdrawn on the principle of locus poenitentiae.
7. The appellant has taken the benefit of notification dated 20 June, 2022 and received the salary from the public exchequer during the L.P.R period. In his application, appellant had mentioned his intended date of retirement as 31 July, 2023. The option of L.P.R could be withdrawn prior to its acceptance by the competent authority, whereafter, it attains finality and becomes a past and closed transaction. The Supreme Court of Pakistan, in the case of Secretary, Government of Punjab, Food and Co-operation Department v. Shamoon Bahadur, reported in PLD 1979 SC 835 held as under: ".........Nonetheless when the L.P.R. was about to come to an end the respondent, by an application dated 3rd of June 1971, showed his desire to withdraw his request which apparently was misconceived as on that date an effective order for his retirement had already been passed. The option having been once exercised it did not lie in his mouth to go back on it in the context of the finality of the consequences ensuing therefrom by its acceptance."
In this regard, reliance may also be placed on the case reported as Commandant Pakistan Military Academy Abbottabad v. Nazran Abbasi and others, (2012 SCMR 385). The relevant therefrom is reproduced hereunder: "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."
In view of the law laid down by the Apex Court, the appellant could have not applied for withdrawal of his option of L.P.R which was secured by the appellant on his own request. The appellant could have applied for withdrawal of his application made for availing the option of L.P.R prior to 20 June, 2022 when, vide notification dated 20 June, 2022, the L.P.R for 365 days was sanctioned.
8. The notification of premature retirement was acted upon for, on acceptance of L.P.R vide notification dated 20 June, 2022, the appellant proceeded on L.P.R after relieving the charge of his office. He enjoyed the L.P.R for almost nine months and all of sudden, changed his mind. According to Chapter-5, Rule 1.6 serial No. 2 the ESTACODE, a written intimation once submitted by a government servant who intends to retire after completing twenty five years service qualifying for pension, shall be final and shall not be allowed to be modified or withdrawn. Hence, appellant's application has rightly been regretted by the competent authority.
9. So far as Rule 48 of the Leave Rules, 2020 is concerned, the sub-rule (1) thereof provides that 'a civil servant may, with the approval of the next above/higher authority to the competent authority to sanction L.P.R, withdraw his option of voluntary retirement within the period of L.P.R. According to this rule, the approval of the higher authority to the authority to sanction the L.P.R is a condition precedent for withdrawal of L.P.R. In the present case, the L.P.R was sanctioned by the Hon'ble Chief Justice of this Court as a competent authority vide notification dated 20 June, 2022. In the High Court of Balochistan, there does not exist any higher authority to the competent authority/Chief Justice. As such, the Rule 48 ibid is not applicable in the case of appellant. By virtue of Rule 40 of the Rules, 2020, though, the terms and conditions of service of the High Court's establishment, including leave, pay etc. shall be governed by the laws for the time being enforced and applicable to civil servants in posts in the same scale in the Provincial Government, yet, the Rule 48(1) of the Leave Rules, 2020 is not applicable for, in the High Court, higher authority to the Chief Justice does not exist. Apart from afore discussion, while enacting the Rules, 2020, the Rule.48 of Leave Rules, 2020 was neither adopted nor enacted into the Rules, 2020, therefore, reliance on such Rule by the appellant's advocate is misconceived.
10. In the case of Registrar Lahore High Court, Lahore, as relied by the appellant's advocate, the Apex Court has held, that, 'a resignation can be withdrawn before its acceptance by the competent authority.' Same is, therefore, distinguishable. The rest of the two case laws cited by the appellant's advocate do not express the correct interpretation of the law as settled down by the Supreme Court of Pakistan in the cases referred to in Para No. 7 of this judgment.
For what has been discussed above, the appeal is dismissed.