Bibi Hasina Vs Govt: of KPK & others

JUDGMENT SHEET

PESHAWAR HIGH COURT, MINGORA BENCH

(DAR-UL-QAZA), SWAT

(Judicial Department)

W.P No. 85-M/2023

Bibi Hasina

—Versus— Govt. of K.P through Chief Secretary at Civil Secretariate Peshawar and others

Date of hearing: 25.09.2025

PRESENT:

Mr. Shahid Ali Yaftali, Advocate for petitioner. (Via Video Link)

Mr. Rahimullah Chitrali, Assistant A.G. for official respondents.

Mr. Saif Ullah Mongol, Advocate for private respondent.

JUDGMENT

QAZI JAWAD EHSANULLAH, J.- The petitioner, through instant petition, has invoked the constitutional jurisdiction of this Court for the following reliefs:

It is, therefore, most humbly prayed that on acceptance of this petition, this Hon’ble Court may graciously be pleased to:

i. Declare the impugned appointment order bearing No. ADE/EMA/E&SE/2-4/DCMAs-F/2023/011 dated 11.01.2023 as void ab initio, illegal, unlawful and without lawful authority.

ii. Direct the respondents to grant age relaxation to the petitioner.

iii. Direct the respondents to appoint the petitioner the said post with the back benefits.

iv. Grant any other relief deemed appropriate by this Hon’ble Court in the circumstances of the case.

2.The petitioner has averred that she has been serving in the Independent Monitoring Unit, Elementary Tajamul/CS | DB: Hon’ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Qazi Jawad Ehsanullah

Education Department, now reconstituted as the Khyber Pakhtunkhwa Education Monitoring Authority (KPEMA), as a Data Collection & Monitoring Assistant (BPS-16) since 03.04.2019, presently posted at District Dir Upper. On 15.10.2022, the KPEMA advertised various posts, including two positions of Data Collection & Monitoring Assistant (DCMA) reserved for females in District Chitral Upper. The petitioner, applying through proper channel, appeared in the recruitment process. After test and interview, she secured first position in the merit list.

Despite this, her candidature was rejected on the ground that she was over-aged by three years and ten months. It is in this backdrop that she has approached this Court by filing the instant petition.

3.Learned counsel for the petitioner contends that the services of employees in the respondent department are regulated by the Khyber Pakhtunkhwa Education Monitoring Authority Employees (Terms and Conditions of Service) Rules, 2021 (hereinafter “the Rules of 2021”).

According to him, Rule 51 thereof stipulates that in matters where no express provision exists regarding terms and conditions of service, the employees shall be governed by the rules applicable to Government servants. On the strength of this rule, it is argued that the Khyber Pakhtunkhwa Initial Appointment to Civil Posts (Relaxation of Upper Age Limit) Rules, 2008 (hereinafter Tajamul/CS | DB: Hon’ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Qazi Jawad Ehsanullah

“the Rules of 2008”) are fully attracted. Rule 3(i) of the said Rules, he argued, provides automatic general age relaxation up to ten years for Government servants who have completed two years of continuous service. The petitioner asserts that she has been holding the post of Data Collection & Monitoring Assistant (BPS-16) with more than two years of continuous service to her credit, and is thus entitled to the benefit of automatic age relaxation of up to ten years under Rule 23 of the Rules of 2008.

4.In response, respondents No. 4 & 5 have filed their official comments whereby they have refuted the assertions of the petitioner on legal and factual grounds.

5.Heard. In support of the petitioner’s claim, her learned counsel has primarily relied upon Rule 51 of the Rules of 2021 which was enacted to remove ambiguity in the said Rules. For facility of reference, the same is reproduced below:

“51. General.--- In all those matters not expressly provided for or any ambiguity in these rules, the employees shall be governed by the rules, applicable to Government employees.”

The respondents, in their official comments, have maintained that the Rules of 2021 do not contain any provision dealing with age relaxation, and they have sought to deny the petitioner’s entitlement under the Rules of 2008.

This point so taken by respondents is not in consonance Tajamul/CS | DB: Hon’ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Qazi Jawad Ehsanullah

with law. As the KPEMA do not have its own age relaxation rules, therefore, by virtue of Rule 51 ibid, the Rules of 2008 are fully attracted and are applicable. The relevant Rule 3(i) of the Rules of 2008 provides as under:

3.(i) Maximum age limit as prescribed in the recruitment rules shall be relaced in respect of the candidates mentioned in column 2 to the extent mentioned against each in column 3 of the table below:

S.# Category of Candidates Age relaxation admissible Government servants who Upto ten years i.

have completed 2 years Automatic Relaxation continuous service Candidates belonging to Three years Automatic ii.

backward areas as specified Relaxation in the Appendix attached herewith

iii.

A bare perusal of the above provision clearly shows that the entry at Serial No. (i) squarely covers the case of the petitioner, as she has already completed more than two years of continuous service on the post of Data Collection & Monitoring Assistant (BPS-16). The respondent organization, namely the Khyber Pakhtunkhwa Education Monitoring Authority, is a statutory body established under the Khyber Pakhtunkhwa Education Monitoring Authority Act, 2019. Its statutory service rules were duly framed under the said Act and notified in the official Gazette by the name Khyber Pakhtunkhwa Education Monitoring Authority Employees (Terms and Tajamul/CS | DB: Hon’ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Qazi Jawad Ehsanullah

Conditions of Service) Rules, 2021. In this legal context, Rule 51 of the Rules of 2021 attracts the application of the Rules of 2008, thereby entitling the petitioner to the benefit of automatic age relaxation of up to ten years under Rule 3(i) thereof. The denial of such entitlement by the respondents, despite the clear statutory mandate, amounts to an illegality and has resulted in depriving the petitioner of due consideration for appointment against the advertised post.

6.It is a matter of record that after bypassing the petitioner, respondent No.7 was issued the appointment letter. Learned counsel appearing on behalf of respondent No.7 is present in Court and has apprised that his client has proceeded abroad for higher studies and, in consequence thereof, has already tendered her resignation before the competent authority. It is thus evident that the post in question has fallen vacant once again and presently remains unfilled.

7.Foregoing in view, as the petitioner stands at the top of the merit list and is legally entitled to automatic age relaxation under the law and rules discussed above, coupled with the fact that the subject post is presently lying vacant, she has successfully established her case for interference of this Court in exercise of its constitutional jurisdiction under Article 199 of the Constitution. Accordingly, this writ petition is allowed; the impugned order bearing Tajamul/CS | DB: Hon’ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Qazi Jawad Ehsanullah

No. ADE/EMA/E&SE/2-4/DCMAs-F/2023/011 dated 11.01.2023 is hereby set aside to the extent of respondent No. 7 namely Mst. Tashfeen Akram d/o Muhmmad Akram.

The respondents are directed to appoint the petitioner to the post in question after extending to her the benefit of automatic age relaxation as admissible under the relevant law and rules. There shall, however, be no order as to costs.

Announced Dt:25.09.2025 Sd/-

JUDGE

Sd/-

JUDGE

Tajamul/CS | DB: Hon’ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Qazi Jawad Ehsanullah