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Petitioner: ALLAH BACHAYA VS Respondent: CHIEF ADMINISTRATOR AUQAF, PUNJAB, LAHORE
2002 P L C (C
2002 P L C (C.S.) 926
[Lahore High Court]
Before Muhammad Akhtar Shabbir, J
ALLAH BACHAYA
versus
CHIEF ADMINISTRATOR AUQAF, PUNJAB, LAHORE and 2 others
Writ Petition No.2360 of 2000/BWP, heard on 21st May, 2001.
Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art.199‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑Civil Procedure Code (V of 1908), OXXXIX, Rr.l & 2‑‑‑Constitutional petition‑‑‑Civil service‑ Retirement‑‑‑Suit for correction of date of birth‑‑‑Notice to repay amount of salary for the period civil servant had worked after his due retirement‑‑ Petitioner/civil servant who was to retire on attaining age of superannuation, filed suit for correction of his date of birth and obtained restraint order in his favour. from Court and performed, his duties for more than three years and seven months from date of his retirement‑‑‑Suit filed by the petitioner was finally dismissed by the Trial Court and Appellate Court‑‑‑Department on the dismissal of suit issued notice to the petitioner for recovery of amount of pay which he had received in excess after his, retirement period‑‑Validity‑‑ Petitioner despite having reached the age of superannuation remained in service and caused loss to the treasury ‑‑‑Petitioner did not act bona fidely and dragged the Department in litigation and the Department had to incur litigation charges without its fault‑‑‑Petitioner was not entitled for any relief and was liable to refund the salaries received by him for excess period after his retirement‑‑‑Constitutional petition filed by the petitioner after delay of about three years was hit by laches and was also liable to be dismissed .on that ground.
Mehr Khan v. Executive Engineer, Electricity, WAPDA, Mianwali and 3 others 1998 SCMR 613 ref.
Shabbir Ahmad Bhutta for Petitioner.
M. Shamshair Iqbal Chughtai for Respondents.
Date of hearing; 21st May, 2001.
JUDGMENT
The case of the petitioner leading to the present writ petition is that the petitioner had been employee of the Auqaf Department till 22‑8‑1995. He had instituted a civil suit for the correction of his date of birth as 22‑8‑1935 instead of 13‑1‑1,932, therefore, he was to retire on 22‑8‑1995 and not on 13‑1‑1992. The Civil Court as well as the District Judge issued restraint order in his favour and the petitioner has been performing his duties till 22‑8‑1995. The suit of the petitioner had been dismissed by the learned Civil Judge on 28‑11‑1995 and the judgment of the Civil Court was maintained by the Appellate Court dismissing the appeal of the petitioner on 29‑10‑1996. The revision petition was also filed by the petitioner against the concurrent judgments and decrees of the Court below which was later on withdrawn. The Department has issued notice to the petitioner whereby he was directed to repay the amount of salary received during the period w.e.f. 13‑1‑1992 to 22‑8‑1995. The‑ said letter/notice has been impugned through the present writ petition.
2. The learned counsel for the petitioner contended that the petitioner has served the Department from the core of his heart and, therefore, Department is not entitled to direct the petitioner to refuse the salaries drawn by him w.e.f 13‑1‑1992 to 22‑8‑1995.
3. On the other hand, the learned counsel for the respondents opposed the contentions of the learned counsel for the petitioner contending that the petitioner was well‑aware that his date of birth is 13‑1‑1932 and he was to retire on 19‑1‑1992 and he continued to be in service after reaching the age of his superannuation under the garb of the injunction of the Civil Court.
4. I have heard the arguments of the learned counsel for the parties and perused the, record. The petitioner had to retire from his service on 13‑1‑1992 and intentionally and with mala fide he continued to remain in service by filing a civil suit challenging his birth entry. It is pertinent to mention here that the petitioner has been the employee of the Police Department from the years 1955 to 1967 where, due to his domestic affairs, he discontinued his service by submitting his resignation. The petitioner joined Auqaf Department after the police service. Date of birth of the petitioner is entered as 13‑1‑1932. Before receiving retirement order from the Auqaf Department, the petitioner instituted civil suit for correction of his birth entry. The petitioner did not act bona fidely. He should have challenged the birth entry while he was in police service or at the time of joining service of Auqaf Department.
5. The petitioner has not accepted his retirement at the time of his superannuation. The petitioner has dragged the Department in litigation and the Department has to incur litigation charges without fault. The petitioner having reached age of superannuation still remained serving for some time and caused loss to the Treasury, therefore, he is not entitled for any relief and is liable to refund the salaries received by him w.e.f. the date of retirement i.e. 13‑1‑1992 to 22‑8‑1995. Reliance in this respect can be placed on case of Mehr Khan v. Executive Engineer, Electricity, WAPDA, Mianwali and 3 others (1998 SCMR 613).
6. Furthermore, the writ petition against the order/letter impugned has been filed after a delay of about three years. Thus, the present writ petition is also hit by laches and liable to be dismissed on this ground.
For the foregoing reasons, the instant writ petition having no force is dismissed.
H.B.T./A‑294/L
Petition dismissed.