Abdus Samad Khan Vs Government of Khyber Pakhtunkhwa through Secretary LG&RDD, Peshawar etc.

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JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

BANNU BENCH

(Judicial Department)

Abdus Samad Khan Vs Government of Khyber Pakhtunkhwa through LG&RDD, Peshawar, etc.

JUDGMENT

For petitioner(s): Mr. Masood-ur-Rehman Wazir Advocate

For respondent(s): Mr. Naiib Ullah. A.A.G. (for official respondents)

For respondent No.5: Mr. Muhammad Usman Khan Advocate Date of hearing: 12.02.2025

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AURANGZEB, J.- Through the instant writ petition under Article 199 of the Constitution, the petitioner has prayed for the t\ following relief:

It is, therefore, humbly prayed that on acceptance of the instant writ petition, this Hon'ble Court may kindly declare the appointment order bearing No.387- dated 09,12.2021, of respondent No.5 as illegal, against the law, rules, and regulations, unconstitutional, and an arbitrary and fanciful exercise of power, ineffective upon the rights of the petitioner, and the petitioner be appointed in place of respondent No.5, with all back benefits, with such other relief as is deemed appropriate in the circumstances of the case.

2.Brief facts of the case as set up by the petitioner are that in response to an advertisement made by the respondents, he (Ghafoor Zaman) (D.B.) Hon'ble Mr. Justice Dr. Khurshid lqbal Hon'ble Mr. Justice Aurangzeb

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applied for the post of Village Secretary. He appeared in the ETEA test and scored 111 as per the merit list. However, the private respondent No.5, who was a permanent resident of Miran Shah, fraudulently obtained the domicile of Razmak and thereby managed, in collusion with the official respondents, to secure appointment as Village Secretary in Union Council Gharyom, whereas, the petitioner, despite deserving appointment on merit, was ignored. This prompted the petitioner to move this Court for the redressal of his grievance'

3.In their comments, the respondents stated that the petitioner has already exhausted his remedy of filing civil suit (#88/1 of 2022) before the civil court and, therefore, this petition is not maintainable. On merit, they maintained that the recruitment process was conducted on merit in accordance with the rules and policy in vogue.

4.Arguments heard and record perused.

5.Undeniably, whenever a person is aggrieved and has multiple remedies available to him under the law, he may choose one of them. However, once a remedy is elected, he is precluded from pursuing another that is inconsistent with the first. In jurisprudence, this rule known as the doctrine of election, which is a fundamental principle of procedural law, ensuring that a titigant does not simultaneously invoke different (Ghafoor Zaman) (D.B.) Hon'ble Mr. Justice Dr. Khurshid Iqbal Hon'ble Mr. Justice Aurangzeb

t Page-3-ofS 1a forums for the same relief in a manner that undermines the coherence of judicial proceedings. This doctrine serves to prevent forum shopping and maintain judicial discipline by requiring a litigant to abide by the consequences of the remedy initially chosen. It is closely linked to the principle of exhaustion, and once a litigant elects a judicial path available to him, he is precluded from initiating subsequent proceedings that contradict or undermine the claims and remedies that could have been pursued through the initial action.

6.Pertinently, ORDER II, Rule 2, CPC, bars a pW from instituting a subsequent suit for claims that ought to have been included in the earlier one. Also, Article 114 of the Qanun-e- Shahadat,1984, enshrines the doctrine of estoppel, preventing a party from asserting a position contrary to one he has already taken in judicial proceedings. Similarly, Section 11, CPC, which embodies the principle of res judicata, barc re-litigation of a matter that has already been adjudicated upon.

7.In the present case, the petitioner had multiple remedies available to him: either to institute a civil suit under the provisions of Section 42 read with 54 of the Specific Relief Act, 1877, or to petition this Court under Article 199 of the Constitution. Admittedly, the petitioner chose to avail himself of the remedy of filing a civil suit (#88/l of 2022) before the (Ghafoor Zaman) (D.B.) Hon'ble Mr. Justice Dr. Khurshid Iqbal Hon'ble Mr. Justice Aurangzeb

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civil court for the same cause of action, which was dismissed on 11 .07.2024. By electing to proceed before the civil court, the petitioner stood precluded under the doctrine of election from invoking the constitutional jurisdiction of this Court under Article 199 of the Constitution. In holding so, we place reliance on Chief Exccutive Olficer, NPGCL, GENCO-Iil, TPS Muzaffargarh v. Khalid Umar Tariq Imran and others Q024 SCMR 518), wherein the Supreme Court authoritatively ruled as under:

11.It is a well-settled proposition of law that when an aggrieved person intends to commence any legal action to enforce any right and or invoke a remedy to set right a wrong or to vindicate an injury, he has to elect and/or choose from amongst the actions or remedies available under the law. The choice to initiate and pursue one out of the available concurrent or co-existent actions or remedy from a forum of competent jurisdiction vest with the aggrieved person. Once the choice is exercised and the election is made then the aggrieved person is prohibited from launching another proceeding to seek relief or remedy contrary to what could be claimed and or achieved by adopting other proceeding/ action and or remedy, which in legal parlance is recognized as doctrine of election, which doctrine is culled by the courts of law from the well-recognized principles of waiver and or abandonment of a known right, claim, privilege or relief as contained in Order II, rule (2), C.P.C., principles of estoppel as embodied in Article ll4 of the Qanun-e- Shahadat Order 1984 and principles of res judicata as articulated in section 11, C.P.C. and its explanations. Reference in this regard may be made to the case of Trading Corporation of Pakistan v. Devan Sugar Mills Limited and others (PLD 2018 Supreme Court 82S).

(Ghafoor Zunan) (D.B.) Hon'ble Mr. Justice Dr. Khurshid Iqbal Hon'ble Mr. Justice Aurangzeb

Page-5-ofS n Giving a choice to select a remedy from among several co- existent and/or concurrent remedies prevents the recourse to multiple or successive redressals of a singular wrong or impugned action. It also provides an opportunity for an aggrieved person to choose a remedy that best suits the given circumstances. Such a rule of prudence has been developed by courts of law to reduce the multiplicity of proceedings. As long as a party does not avail of the remedy before a Court of competent jurisdiction all such remedies remain open to be invoked. Once the election is made then the party generally, cannot be allowed to hop over and shop for one after another co-existent remedies.

8.In these circumstances, the instant writ petition is not maintainable for being hit by the doctrine of election and is dismissed accordingly.

Announced

JU

JUDGE

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(Ghafoor Zaman) (D.B.) Hon'ble Mr. Justice Dr. Khurshid Iqbal Hon'ble Mr. Justice Aurangzeb