Atta Ullah etc Vs Secretary Elementary and Secondary Education etc.

V

Judgment Sheet

IN TIIE PESHAWAR HIGH COURT,

PESHAWAR

TADICIAL DEPARTMENT.

JUDGMENT

Writ Petition No.3306-P 12022.

Date of hearing 03.06,,2025, Atta UIIah etc Vs Secretary E&SE Department, KPK Peshawar etc.

Petitioner (s) by: Mn ZarJaj Anwar Advocate.

Respondent(s) by: IWs Muhammad Asif Yousafzai Advocate and Malik Amjad Inayat

AAG.

WIOAR AHMAD. J:-. Through instant petition under Article 199 of Islamic Republic of Pakistan 1973, petitioners have prayed for issuance of appropriate writ, by directing respondents to prepare merit list for the post of PST (BPS -12) on Union Council Base as per Section 3 of I(hyber Pakhtunkhwa Appointment Deputation, Posting and Transfer of Teachers, Lecturers, Instructors and Doctors Regulatory Act 20Il (hereinafter referred to as Teachers Appointment Act 201 1) as well as declaring advertisement published by respondents for the post of Primary School Teacher (PST) on Tehsil

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basis as illegal, unlawful and without lawful authority and void ab initio.

2 As per contents of instant petition, petitioners had applied for appointment on the post of Primary School Teachers @PS -12) advertised by respondents on Tehsil basis. Aggrieved from criteria for appointment of Primary School Teachers on Tehsil basis, petitioners have filed instant writ petition.

3.Respondents submitted their parawise comments and stated that respondents had advertised posts of PST for sub-division Darra Adam I(hel on basis of Tehsil as Union Council has not been notified in the merged areas. That so far Tehsil/ Sub-Division have been defining unit for appointment against post of PST.

It has also been stated in comments that this Hon'ble Court has already dismissed identical case vide detailed judgment dated 24.01.2023 in WP No.4583-P/2021'.

4.Arguments heard and available record perused.

t- Perusal of record reveals that petitioners are aggrieved of drawing merit list for appointment against the post of PST on Tehsil (sub division) basis instead of Union Council basis. Learned counsel for petitioners WP lIo.33O6-P12U22.

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argued that under Section 3 of the Teachers Appointment Act 2011, appointment of PST was supposed to have been made on Union Council basis while respondents have drawn merit list on Tehsil/sub Division basis which was against law therefore, same should be scraped and fresh merit list should be drawn on Union Council basis.

6.It is important to be noted that appointments are being made at sub division Darra Adam Khel, which was formerly part of Federally Administered Tribal Areas (Ex-FATA). Said areawas merged in the province of Khyber Pakhtunkhwa on 31't May 2018 as a result of 25|fi Constitutional amendment. Prior to merger, Khyber Pakhtunkhwa Local Government Ordinance 2001 (hereinafter referred to as Ordinance 2001) or Khyber Pakhtunkhwa Local Govemment Act 2013 (hereinafter referred to Act 2013) had never been extended to Ex- FATA. It was on merger of these areas that the Act 2013 got extended there. Local government had been defined in clause (xvi) of Section 2 of Ordinance 2001 (repealed) as follows:

2.(n 0 'local government' includes- (a) o District Government or o City District Government and Zillo Council; (b) a Tehsil WP Ilo.33O6-"12U22.

Municipat Administrotion and Tehsil Council;

(c)a Town Municipal Administration and Town Council; and (d) a Union Administration and Union Council;

7.Under Section 6 of the repealed Ordinance 2001, constituency of Union Council was required to have been delimited and notified for the purpose of election. It was from said act that connotation "Union Council" was borrowed by provincial legislature at the time of enacting Teachers Appointment Act 20ll and it was provided in Section 3 thereof that vacant seat of Primary School Teacher should be filled from the candidates belonging to Union Council of their pennanent residence. What happened in the meanwhile, was that thereafter Act 2013 was promulgated where the basic initial constituency of local government was declared to be a Village Council or Neighbotrhood Council. VillageAleighbourhood council was a different unit than the formerly called Union Courcil so far as the voting areas and boundaries were concerned. Under Section 5 of the Act 2013, following constitution of Local Government was Provided:

5.Constitution of local governments. (l) Subject to other provisions of this Act, local governments consfituted under this Act shall be:

W? f,o.3OO6-Plzfilz.

(a)a City District Government for district Peshawarl

(b)a District Government for a district other than Peshawarl

(c)'a Tehsil Municipal Administration for o Tehsil;

(d)a Town Municipal Administration .for a Town in the City District;

(e)a Wtlage Council for' a village in the, rural areas; and

(f)a Nelghbournood Council for a Neighbourhood in areus with urban characteristics.

(2)Government ffiay, by notiJication in oflicial )Gazette, specify the name by which a local government shall be known and unless so ipecifrcd, it shall be known as the local government of the place where its offr,ce is situated.

(3)Save as otherwise provided in this Act, every local government shall be competent to acquire, hold or transfer any propefi, movahle and immovable, to enter into controct and to sue or be sued in its namc through officer designated in this regard,

(4)Government shall prescribe rules of business for local governments notifying structure and working of local government administration, groups of offices, allocation of business, appointment, posting; promotion and transfer of officers and of/icials, performance evaluation, channels of communication, coordination of local council business, consultation between ofrices and incidental matters for smooth and fficient disposol of official business,

8 A village was defined in clause (ii) of Section 2 ofthe Act 2013 as follows:

(it)?'village't means an integrated and contiguous human habitation commonly identifrcd by a name and includes a Dhok, Chah, Kalay, Goth, Gaown, Deh, Basti or any other comparable habitation ;

9.The Neighbourhood was defined in clause (s) of Section} ofthe Act 2013 as follows:

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@ "Neighbourhood" means a mohallah, a groap of streets, lanes or roads, in areas with urban characteristics, designated as Neighbourhood by Government;

10.Section 6 of the Act 2013 provided for delimitation of Neighbourhood Council and Village Council. When areas of Ex-FATA was merged in the province of Khyber Pakhtunkhwa in the year 2018, the Act 2013 was holding the field which under Section 120 of ibid Act had earlier repealed the Ordinance 2001. Thereafter, delimitation had taken place in new merged districts and delimitation has taken place in new merged districts for determining boundaries of Village Council or Neighbourhood Council under Section 6 of the Act 2013 for the purpose of elections. No law was mandating the Local Government Deparfinent to delimit or determine boundaries of Union Council in newly merged Districts €ts Ordinance 2001 had been repealed in the year 2013 under Section 120 of the Act 2013. So boundaries of Union Councils have never been delimited in accordance with any statutory mechanism in the newly merged Districts nor notified in accordance with law. To clariff this situation, we have also called a report from Director General, LG&RDD l(hyber WP io.3306-Pl2Q4r.

Pakfitunkhwa, which has accordingly been submitted.

Said report reads;

SUBIECT:W.P.NO.330GP/2022 ATTA aLIaW

AND OTHERS VS GOW OF KHYBER

PAKHTANKI{WA ETC

Pursuant to order sheet dated of Peshawar High Coart, Peshawar dated 21.11.2024, it is submitted that the concept of Ilnion Councils was replaced by Village /t{eighborhood Council with the introduction of the Local Government Act, 2013 (amended), whereby the entire province including Ex- FATA w(N divided and delimited into 4212 Wloge / Neighborhood Councils by the Election Commission of Pakistan (Schedule' XI). The exercise of delimitation ol 711 VCsA{Cs and its subsequent notifrcation in the merged areos was completed in 2020 by the Election Commission of Pakistan (Annexure-

A).

2, As far as the situation in Tehsil Darra Adam Khel, District Kohat is concerned it was divided into 16 Wage/I'{eighborhood Councils by the Election Commission of Pakiston, wherein the recruitment process of Secretaries in BPS-9 has been carried out as per extsting rules of Local Government Department. In order to facilitate the general masses at large and improve service delivery at the grass root level, prelerence has been given to the local resident of the VC/NC, while making appointment.

3, Report is submitted please.

Director General LG&RDD Khyber Pakhtunkhwu

11.The situation as it stands now is that in rest of Districts of Khyber Pakhtunkhwa, appointments of PSTs are being made in accordance with last delimitation of Union Council that had taken place under the repealed Ordinance 2OOl, for the reason that Section 3 of Teachers Appointment Act 20ll requires appointment lf,? Xo.3306-?12U22,

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in such a manner. In new merged Districts of Khyber Palrilrtunkhwa, which were formerly part of Ex-FATA, the appointments of PSTs are made on Tehsil basis and in case in hand also merit list has been drawn on Tehsil Basis. A report in this respect has also been submitted by Director, Elementary & Secondary Education, Khyber Pakhtunkhwa Peshawar, paras 3 &, 4 of which also needs consideration here and same also reproduced for clarifying the on ground situation:

3.That it is submitted, the Respondent No.3 advertised posts of PST for Sub-Division Darra Adam Khel on the basis of Tehsil as the Union Council has not been notiJied in the Merged Areas so far and Tehsil / Sub-Division is the deftning unit for appointment against the post of PST. It is submitted that this Honorable Court has already dismissed the identical case ide detail judgment dated 24-01'2023 in W.P No.4583-P/2023 titled as Mohsin Khan & others VS Director E & SE & Others (attached as Annex-A).

4.That in light of directions of this Honorable Court and to streamline the cases of appointments of PST on settled side as well as Merged Areas, Respondent No.2 submitted a draft bill for amendment in Scetion-i of the Khyber Pahhtunkhwa (APPointment, Deputation, Posting and transfer of Teachers, Lecturers, Instructors and Doctors) Regulatory Act, 2011 to the Respondent No. I for placing before the competent forum for consideration. (Letter dated 27-11-2024 and draft bill attached as Annex-B & C),

12.So far as draft bill annexed with comments is concerned, same has not yet been enacted into a law therefore, same cannot be relied upon but there also the W? !Io.3306-"lzfillz.

proposal is that the word "IJnion Council" in the Teachers Appointment Act 2011, should be substituted with word 'sub-division or Town' for the purpose of appointment of PSTs. Whatever may be the situation, fact of the matter is that it is practically impossible that appointments are made in new merged Districts on the basis of Union Council which are not existing there.

Under Section 7 of West Pakistan General Clauses Act, 1956 (hereinafter referred to as General Clauses Act 1956) reference of connotation of 'oUnion Council" in the repealed Ordinance 2001 may be considered according to repealed law. While reading Section 3 of the Teachers Appointment Act 201t, the definition of Union Council may be considered according to the repealed law by employing the principle embodied in Section 7 of the General Clauses Act 1956) for appointment of teachers in other districts of Ktryber Pakhtunkhwa but in case of new merged Districts same cannot partially be so considered. Same cannot be considered in the newly merged Districts for two reasons, i.e one that Ordinance 2001 had never been extended to Ex-FATA therefore, it had not been given arry extent and operation thereof and secondly Union W? Ilo.93O6-812U22.

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Councils have never been delimited in Ex-FATA and it is practically impossible to make appointments on Union Council basis. Although learned counsel for petitioner has annexed a list in Tabular form showing names of certain Union Councils but it is an un-notified list. Same has never been prepared by competent Delimitation Authority under the Act 2013 or the Delimitation Rules framed thereurder. Same has never been notified in official gazette. If certain ministerial staff on its own volition and initiative has prepared such list then it would carry no significance.

13.Reverting back to our discussion that it is impracticable to draw merit list on Union Council basis in the area of Ex-FATA, it is a settled principle that a law cannot be interpreted in such a manner so as to cast an impossible and impracticable duty on a person or authority. This principle has its roots in the famous maxim s lex non cogit ad impossibilia (the law does not compel a person to do that which he cannot possibly perform) and argumentum ab impossibili plurimum valet in lege (An argument from an impossibility is good in law). Brooms in his treatise Lesat Mucims (1939: 10th SP Ito.3305-Plzfil2.

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edn, pp. 163 -164) illustrates the maxim by reference to the law relating to mandamus as under:

The maxim under notice may be excmplitied by reference to the law of mandamu* A writ or order of mandamus to a railway company, enjoining them to prosecute works in pursuance of statutory requirements, sappose the required act to be possible and to be obligatory when the writ or order issues; and, in general, suggests facts showing the obligation, and the possibtlity of fuffilling it; though, where on obligation is shown to be incumbent on the company, the onus of proving that it is impossible, lies upon those who contest the demnnd of fuffilment; if they succeed in doing so, the doctrine applies thot on mandamus, nemt tenetur ad impossibilia, Ilpon the same principle, where an order had been made by the Board of Trade upon a railway company requiring the company to carry turnpike road across the railway, the court refused a mandamus to compel the company to carry out the order apon proof that the company had no funds, was practically defunct, and was not in a position to obey the writ if granted

14.The maxim lex non cogtt ad impossibilia have repeatedly been recognized by the Courts of law in our jurisdiction, in the cases of Sa,feer Traryls (Pvt.r Ltd. vs.

Muhammad Khatid Shafi (PLD 2004 SC 690) & Pakistan Limited Commission er of Tax

(Revisiont Karachi (1993 SCMR 1406). In the instant case too, the petitioners are seeking issuance of a writ, the issuance of which would compel the recruiting authority to fulfill an impracticable obligation of preparing merit list on Union Council basis in an atea WP 1fo.3306-P12U22.

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where the Union Council had never been delimited. This Court is not inclined to issue such a writ in exercise of its Constitutional jurisdiction.

15.In light of what has been discussed above, instant Constitutional petition was found not maintainable and sirme is accordingly dismissed.

Announced.

J

JUDGE

JUDGE

PS" (DB) Hon,ble Mr, Jasdce Arshad All and Mr. lusdce Mqu Ahrrud" "A.Qayum

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