1. ANWARUL HAQ, J.--This appeal by special leave is directed against an order made by a Division Bench of the former High Court of West Pakistan at Peshawar on the 23rd of August 1967, whereby a petition filed by the respondent Abdul Qayum Khan under Article 170 of the 1956-Constitution of the Islamic Republic of Pakistan read with Article 2(4) of the Laws (Continuance in Force) Order, 1958, was accepted and the order of his compulsory retirement from Government service was quashed and a direction given that he should be re-Instated with retrospective effect and paid the arrears of his pay and allowances.
2. The respondent had joined service as Assistant Master on 5-6-1928 in the Education Department of the N.-W. F. P. He was promoted to the rank of Head Master in November 1950. On the 14th of March 1959, when he was serving as Bead Master, Government High School, Sirai Niamat Khan in the district of Hazara, the Commissioner of Peshawar Division, in his capacity as Chairman of the Screaming Committee, set up under the provisions of the Public Conduct (Scrutiny) Ordinance, 1959, served upon him a notice asking him to show cause why he should not be recommended to the appointing authority for retirement on proportionate pension as the Committee was of the opinion that he could reasonably be considered to be corrupt/guilty of misconduct on the basis of the facts and circumstances mentioned in the statement attached with the notice. The notice also informed the respondent that he was entitled to be heard in person. The respondent submitted an explanation in response to this notice, but the notice was recalled by the Committee on the 27th of March 1959, find on the same date a fresh notice was served on him requiring him to show cause why disciplinary action should not be taken against him for unsatisfactory service. He was once again given an opportunity for personal hearing.
3. On the receipt of this notice, the respondent submitted a lengthy explanation, making reference to his previous explanation submitted in response to the earlier notice of the 14th of March 1959, and alleging that ho was being victimised owing to the personal enmity of Mr. S. Yahya Shah, the Director of Education, Peshawar Region, Peshawar. By an order made on 28th of April 1959, the Divisional Screening Committee decided to recommend to the appointing authority that the respondent be compulsorily retired from service on proportionate pension in accordance with the provisions of the Laws (Continuance in Force) Order, 1958, as amended from time to time, and other administrative instruc--tions received from the Government in this behalf. It was noted that the respondent had been given a personal hearing by the Committee before formulating this recommendation. The respondent was advised that he should file an appeal against this recommendation to the appointing authority.
4. The respondent accordingly filed an appeal, which was however rejected by the Director of Public Instruction, West Pakistan, on the 28th of May 1959. Thereafter, formal orders of compulsory retirement of the respondent were issued by the Director of Education, Peshawar Region, on the 5th of June 1959.
5. The respondent kept quiet for nearly three years on receipt of these orders and moved the High Court of West Pakistan by means of writ petition only on the 4th of June 1962. It was contended on his behalf that the Statute had been used against him for ulterior motives owing to personal vendetta by Syed Yahya Shah, the Director of Education ; that show-cause notices were issued to him without any valid reason and substance ; that on the recall of the first notice dated the 14th of March 1959, the matter stood closed and no fresh action could be taken ;that the Divisional Screening Committee was not properly constituted; that no proper and regular enquiry was held In order to ascertain the truth of the allegations made against the respondent ; and that be was not given an opportunity of being heard by the appellate authority.
6. The writ petition was resisted on behalf of the Provincial Government on the grounds that it suffered from serious laches inasmuch as it had been filed after three years of the impugned orders of retirement ; that the petitioner had accepted the order of retirement and waived his grievance and rights by applying for the grant of proportionate pension, and subsequently for the commutation of a portion thereof; that action had been rightly taken against the respondent on the basis of h unsatisfactory record of service as contemplated by the Law (Continuance in Force)
7. (Amendment) Order, 1958, and that I any case the High Court had no jurisdiction to enquire into the matter in view of the bar of jurisdiction contained in section 1 of the Public Conduct (Scrutiny)
8. Ordinance III of 1959, as we as in Clause (5) of Article 6 of the Laws (Continuance in Ford Order as introduced by President's Order No. 1 of 1959. It was submitted that in the circumstances of the case no right bearing accrued to the respondent for the disposal of his appeal and that payment of arrears of salary and allowances could not be ordered in writ proceedings.
9. PLD 1963 SC 185) as a result of which the respondent was enabled to invoke the writ jurisdiction of the High Court. Tile High Court has also held that the action taken against the respondent on account of unsatisfactory service did not appear to be covered by Article 6 of the Laws (Continuance in Force) Order, 19i8, as the Divisional Screening Committee had met only once to consider his case, and that meeting was held under the provisions of the Public Conduct (Scrutiny)
10. Ordinance, 1959. The learned Judges have further observed that as there was no finding by the Screening Committee that the respondent was being screened out on account of inefficiency, therefore, the appellate authority did not know the ground on which the respondent was being retired. On these findings relief was granted to the respondent.
11. Leave to appeal was granted in this case to consider the following points :---
(i) That the Writ Petition which was moved after three years of termination of service should have been dismissed on the ground of laches ;
(ii) that the, action was taken against the respondent in exercise of the powers conferred by clause
(5) (b) of Article 6 of the Laws (Continuance in Force) Order, 1958, as amended from time to time, and the High Court therefore was not competent to question the-legality or propriety of the said action of the Government ; and
(iii) that the direction for payment of arrears of pay and allowances retrospectively was unsustainable in law.
12. After hearing the learned counsel for the parties we are of the view that this appeal has to be allowed on the grounds of laches and acquiescence on the part of the respondent, Abdul Qayum Khan.
13. It has already been stated that the Writ Petition was filed by the respondent three years after the impugned order of his compulsory retirement was passed and his appeal had been dismissed by the Director of Education. West Pakistan. The respondent himself gave no explanation for the delay but the learned Judges in the High Court have condoned the delay on the ground that at the time the impugned order was passed the law laid down by the Supreme Court in Zafarul Ahsan v.
14. RepublicofPakistan was that writ petition was not competent in view of the bar of jurisdiction contained in the relevant statutes under which action was taken, but that this view was changed sub--sequently in the cases of Mohammad Zaman Khan v. .4f. B. Nishat and The Province of East Pakistan v. M. Amir Hussain. The last mentioned case is not relevant as it was decided by the Supreme Court on the 7th of February 1963, and was reported in the Law Journals in that year, whereas the respondent's petition was filed in June 1962. As regards Mohammad Zaman Khan's case, a perusal of that judgment would show that the principles already laid down by this Court in Zafarul Ahsan's case were reiterated and relied upon, as would be clear from the following observations appearing on page 27 of the report :- "As was held by this Court in Zafrul Ahsan's case, if a statute provides that an order, made by an authority acting under it, was not to be called in question in any Court, the conditions necessary for ouster of the jurisdiction of the Courts would be that the authority should have been constituted as required by the statute, the person proceeded against should be subject to the jurisdiction of the authority, the ground on which action was taken should be within the grounds stated by the statute and the order made should be such as could have been made under the statute. The first three conditions are satisfied in the present case, but the fourth one has been clearly transgressed . . . . . ."
15. It would be seen, therefore, that the High Court was in error in thinking that in Mohammad Zaman Khan's case any new principle was enunciated by this Court, or a different interpreta--petition was given, regarding the bar of jurisdiction as contained in section 10 of the Public Conduct (Scrutiny)
16. Ordinance, 1959, and Article 6 of the Laws (Continuance in Force) Order. The ground on which the High Court has condoned laches on the part of the respondent is, therefore, not tenable, and the learned Judges were not justified in saying that the doctrine of laches was not attracted to this case.
17. The learned counsel for the respondent submitted that as the writ petition was admitted to a full hearing by the High Court after considering the question of delay and laches, it will there--fore be deemed that the same had been condoned by that Court and the question should not be reopened at this stage. This argument, however, overlooks the fact that at the time the writ petition of the respondent was admitted to a full hearing by the High Court, the opposite-party, namely, the respondents before the High Court and the appellants before us, had no opportunity of presenting their point of view, and there is no lack of authority for the proposition that in such a case the respondent ,has the right to raise his objections at the time of the final hearing of the case.
18. Mr. Peer Bakhah Khan then submitted that this was a fit case in which delay ought to be condoned on the grounds of equity and the fact that the respondent had been agitating in the matter by way of departmental petitions and applications. In support of this submission the learned counsel placed reliance on John Obojo Agbeyegbe v. Pestus Makene Ikomi and another (PLD1953PC19) and Abdul Qadir v. Govt. Of West Pakistan (PLD1967SC506).
19. The last mentioned case has no application to the facts and circumstances of the present case, for the reason that there was no evidence before the High Court, nor has any such material been placed before us, to show that during the three years that elapsed between the respondent's retirement and the institution of the writ petition in the High Court, the respondent had been agitating against the impugned order by way of departmental proceedings. On the contrary, there is evidence that he was making applications for the settlement of his pension case, an aspect of the matter to which we shall advert later. In Abdul Qadir's case the Court had held that time spent in departmental appeal and subsequent mercy appeal and other applications to various authorities could be condoned,- but no such circumstance is present fn the case of the respondent.
20. As pointed out by their Lordships of the Judicial Committee in the case of John Obojo Agbeyegbe, in cases of delay two Important circumstances are the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy. Now, in the instant case, the delay is undoubtedly of a long period of three years, during which the Education Department made alternative arrangements to fill the vacancy caused by the retirement of the respondent. Any belated relief would of necessity result in upsetting the arrangement to the detriment of those who might have been appointed or promoted in the respondent's place. For these reasons, the Court must be reluctant to grant a belated remedy to a petitioner who has slept over the matter for three years without any reasonable explanation.
21. There has not only been delay on the part of the respondent in invoking the writ jurisdiction of the High Court, but there has also been positive acquiescence on his part inasmuch as he applied for the grant of proportionate pension almost immediately after the order of retirement was passed against him, and sub--sequently even obtained an order for the commutation of a part of that pension. At a later stage he also applied to the Education Department for re-employment as a retired Government servant. The appellants have placed on the record application made in this behalf by the respondent on 5-8-1959, 11-9-59, 31-12-59 and 7-11-60. A perusal of these applications is enough to show that the respondent had accepted the order of his compulsory retire--ment, and agreed to receive consequential benefits by way of pension and commutation etc. His request for re-employment also proceeded on the same basis. In these circumstances, it was no longer open to the respondent to challenge the order of retirement three years after the event.
22. We were informed by the appellants that the respondent had obtained employment in a semi- Government Institution run by an Army Centre, and for that reason also he should be held to have waived his grievance against the Government. In view of the circumstances already found against the respondent, it was not really necessary for the appellants to press this fact into service, and suffice it to say that obtaining alternative employment in a semi-Government or a private institution could not operate as an estoppel or acquiescence on the part of the respondent. Having been compulsorily retired from Government service the respondent was naturally obliged to seek alternative employment, and this fact by itself will not disentitle him to relief which may be available to him under the law.
23. For the reasons discussed above, we have reached the conclusion that the writ petition filed by the respondent should have been dismissed by the High Court on the ground that it was highly belated, and there was no satisfactory explanation for this delay. The respondent had also acquiesced in the order of compulsory retirement passed against him by accepting proportionate pension allowed to him and by applying for commutation of that pension, and also by applying to the Govern--ment for re-employment as a retired employee. On this view of the matter, it is not necessary to examine the case on merits. We would accordingly accept this appeal, set aside the order of the High Court, and dismiss the respondent's writ petition. However, in view of the circumstances of the respondent the parties are left to bear their own costs.