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Civil Petition No. 147‑P of 1973, decided on 17th June, 1980.

(On appeal from the judgment and order of the Peshawar High Court, dated 24‑4‑79 in C. M. 296/79 for review in W. P. 291/79).

----S. 3‑Laches‑Mere fact of same Bench of High Court or other Benches having taken a different view is respect of laches, held, not ground for review and High Court can decide question of laches in light of all relevant circumstances having bearing on matter.

----S. 13(1)‑‑Compulsory retirement ‑‑‑ Omission of word "public interest" held, would not vitiate order of compulsory retirement.

S. Safdar Hussain, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 17th June, 1980.

‑‑This petition seeks leave to appeal against the judgment of Peshawar High Court dated the 2nd of April, 1979, whereby a constitution petition moved by the petitioner Haji Sardar Muhammad against his compulsory retirement from Government service was dismissed in limine, on the ground of laches. A review petition filed by the petitioner was also dismissed by the" learned Judges vide' their order, dated the 24th of April, 1979.

Having started service as a L. D. C. in 1949, the petitioner rose to the position of a section Officer in grade 17, and was serving in the Industries and Development Department of the North‑West Frontier Province Government, when he was compulsory retired from service with effect from 6‑11‑1975 after competing 26 years of service. By two subsequent notifications he was allowed leave proparatory to retirement, with the result that his compulsory retirement, ultimately took effect from 7‑11‑1976.

On the proclamation of Martial Law Order No. 23, the petitioner filed a review petition on 22nd of October, 1977, which was, however, dismissed by the Review Board on the 16th of March, 1978. It was in these circum stances that the petitioner invoked the writ jurisdiction of the Peshawar High Court on the 31st of March, 1979. The learned Judges took the view that the petitioner had not given any satisfactory explanation for keeping silent for more than a year after the rejection of the review petition on the 16th of March, 1978.

In seeking leave to appeal, it is submitted by Mr. Safdar Hussain, learned counsel for the petitioner, that in several other cases the same Bench of the High Court, and other Benches have not thrown out writ petitions of the affected Government servants on the ground of laches, and, accord ingly, the order under appeal suffers from discrimination against the petitioner. The learned counsel further submits that the order made by the Review Board stands vitiated for the reason that although the petitioner was invited to appear before the Board, yet he was not given any hearing at all, and could not present his point of view against his compulsory retirement. Mr. Safdar Hussain, finally, contends that the order of retirement was mala fide and was also defective as the relevant notification did not mention that the retirement was being ordered in the public interest as required by section 13(1) of the North‑West Frontier Province Civil Servants Act, 1973.

We regret we see no merit in these submission. The learned Judges of the High Court have rightly remarked, in the order made by them on review on the 24th of April, 1979, that the mere fact that the same Bench or other Benches might have taken a different view in respect of laches would not constitute a ground for review in this case. It is in the discretion of the High Court to take note of laches on the part of the petitioner and to decide the question in the light of all the relevant circumstance having a bearing on this matter. Now, in the present case the compulsory retirement was first ordered on the 28th of April, 1976, but the petitioner did not take any step to challenge the same until the 22nd of October, 1977, when he filed a review petition under Martial Law Order 23. This Martial Law Order was promulgated much later than the order of compulsory retirement. Even after his review petition was rejected on the 16th of March, 1979, the petitioner waited for another year before approaching the High Court. In the circumstances, the learned Judges were justified in refusing to entertain the petition on the ground of laches. We see no justification to interfere with the order made by the High Court in this behalf.

Even otherwise, the real challenge is not to the Review order passed under Martial Law Order 23 but to the order of compulsory retirement made by the Provincial Government in 1976. The petitioner was governed by the provisions of section 13(1), of the North‑West Frontier Province Civil Servants Act, 1973, under which compulsory retirement could be ordered on the completion of 25 years of service in the public interest. Although the petitioner has alleged that the order was made: male fide but he has not been able to give any particulars in support of this allegation. The mere omission of the word "public interest" would‑ not vitiate the order of compulsory retirement.

As a result, this petition fails and is hereby dismissed.

Petition dismissed.

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