Habib Ur Rehman etc Vs Senior Member Board of Revenue Khyber Pakhtunkhwa etc

PESHAWAR HIGH COURT, PESHAWAR

(JUDICIAL DEPARTMENT)

Writ Petition No. 2470-P/2022

Habib Ur Rehman etc.

....Petitioners.

Versus

Senior Member Board of Revenue Khyber Pakhtunkhwa etc.

....Respondents.

For the Petitioner(s): M/s Daniyal Khan Chamkani, Nazir Ahmad and Noman Kundi, Advocates.

For the Respondent(s): M/s Shumail Ahmad Butt, Rehmat Ali and Yasir Khalid, AAGs.

Date of Hearing: 10.9.2025

JUDGMENT

WIQAR AHMAD, J.- Petitioners before us are the employees of the establishment of KP Inspector General of Registration, working under the Registration Act, 1908 (herein after referred to as the Registration Act) for the purpose of registering documents under said Act. They have been civil servants of the province and their concerned department have also framed rules under sub-rule 2 of Rule 3 of the Khyber Pakhtunkhwa Civil Servants (Appointment Promotion and Transfer) Rules, 1989, (herein after referred to as the “APT Rules”). It is the case of the petitioners before this Court that, under the prevailing departmental rules, only Sub-Registrars duly promoted within the service cadre may be assigned the functions and notified as

Sub-Registrars under the Registration Act. They contended that the appointment of Naib Tehsildars (respondents No. 4 to

16)as Sub-Registrars in the present matter was unlawful. The petitioners further rely upon opinion of the department itself, to the effect that Naib Tehsildars should not be posted against the posts of Sub-Registrar. In this regard, they refer to a summary moved in 2009, which was duly concurred by the Senior Member, Board of Revenue, as well as the then Revenue Minister, who ultimately directed the withdrawal of all orders whereby Naib Tehsildars had been posted as Sub- Registrars. When reply was called from the department concerned they have accordingly narrated their main defence in reply to para-5 as follow;

Para 5.

Paragraph 5 of the writ petition is correct only to the limited extent that Head Registrar Clerks having five (05) years of service may be considered for promotion to the post of Sub-Registrar. However, the petitioners have deliberately omitted to refer to the express mandate of Section 6 of the Registration Act, 1908, which unequivocally empowers the Provincial Government to appoint any person, whether a public officer or not, as Registrar or Sub-Registrar. For ready reference, the relevant provision is reproduced below:

"Section Registrars 6. Sub-Registrars.-The and [Provincial Government] may appoint such persons, whether public officers or not, as it thinks proper, to be Registrars of the several districts, and to be Sub- Registrars of the several sub-districts, formed as aforesaid, respectively." (Stress Supplied) From the plain and unambiguous language of the above provision, it is evident that the discretion to appoint Registrars and Sub-Registrars lies solely with the Provincial Government, and the Petitioners cannot be permitted to impose restrictions or limitations on such lawful discretion conferred by statute.”

2.Learned counsel for petitioners referred to the rules of the department and contended that after the amendment made

to the rules vide notification No. LR-IV DLR/SSRRC/2020:

17635 dated 23.1.2020, the earlier existing clause providing a window for appointment of Naib Tehsildar, on temporary basis had also been closed and the new rules provided that Sub-Registrar could only be posted by promotion on the basis of seniority-cum-fitness from amongst the Head Registration Moharrars with at least five years service as such or having 10 years accumulative service as head Registration Moharrars and Registration Moharrar. Learned counsel also relied on the opinion of the department as mentioned in the facts above and contended that posting of Naib Tehsildar against the post of Sub-Registrar have been unlawful.

3.Learned counsel representing the private respondents argued the case in rebuttal. He contended that Registration Moharrars have been posted under the Registrations Act where section 6 and 12 were authorising the department to post any person or any public servant as Sub-Registrar and therefore, the appointment of respondents No. 4 to 16 have wrongly been impugned in the writ petition. Learned counsel also added objection as to jurisdiction of this court and claimed that same would stand barred by Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 as the matter related to terms and conditions of civil servants.

4.Learned Addl: Advocate General also opposed the petition and adopted the arguments of learned counsel for private respondents.

5.We have heard the arguments of learned counsel for parties and perused the record.

6.Perusal of record reveal that rules and criteria framed by the department under sub-rule 2 of rule 3 of APT rules (on 3.4.1993 vide notification No. 7363/Admn: VII/KC-12-A) had been providing for appointment of Sub-Registrars in the following manner;

(2)Sub-Registrar... (A) By promotion, on the basis of seniority-cum-fitness, from amongst the Head Registration Clerks with five years service as such; or

(b)By temporary transfer from amongst Naib Tehsildars, if no suitable person is available for promotion.

Said departmental rules were amended vide Notification dated 23.01.2020, whereby, against Serial No. 2 in Column 5, relating to the method of recruitment for the post of Sub- Registrar, the following new entry was substituted:

“ By promotion, on the basis of seniority-cum- fitness, from amongst the Head Registration Muharrirs with at least five years’ service as such or having ten years accumulative service as Head Registration Muharrirs and Registration Muharrirs.”

7.It is case of the petitioners, that after the aforesaid substitution, a Naib Tehsildar could not have been appointed as Sub-Registrar. The appointments of respondents No. 4 to 16, as Sub-Registrars in various districts of the Province were

therefore claimed to have been wrong and inappropriate. On the other hand, the respondents have primarily relied upon the powers of the Provincial Government under Sections 6, 7 &12 of the Registration Act, both in their written comments as well as during arguments at the Bar. For ready reference, texts of Sections 6 and 7 of the Registration Act is reproduced herein below:

“6. Registrars and Sub-Registrars. The Provincial Government) may appoint such persons, whether public officers or not, as it thinks proper, to be Registrars of the several districts, and to be Sub- Registrars of the several sub-districts, formed as aforesaid, respectively.

7.Offices of Registrars and Sub-Registrars.-(1) The [Provincial Government) shall establish in every district an office to be styled the office of the Registrar and in every sub-district an office or offices to be styled the office of the Sub-Registrar or the offices of the Joint Sub-Registrars.

(2)The Provincial Government] may amalgamate with any office of a Registrar any office of a Sub- Registrar subordinate to such Registrar, and may authorize any Sub-Registrar whose office has been so amalgamated to exercise and perform, in addition to his own powers and duties, all or any of the powers and duties of the Registrar to whom he is subordinate:

Provided that no such authorization shall enable a Sub-Registrar to hear an appeal against an order passed by himself under this Act.”

8.For considering context of providing powers of the provincial government under-sections 6&7, the whole scheme of Registration Act should be considered. The Registration Act, 1908 was promulgated on 18th December, 1908 for consolidating the enactments relating to registration of documents. Its part-1 was preliminary while part-11 was given the heading “of the registration establishment”. Section-3 provided for establishment of the office of an Inspector

General of Registration. Section 5 defined District and sub- district for the purposes of registration of document. Section 6 was vesting authority in provincial Government to appoint such persons whether public officer or not to be Registrars of several districts and to be Sub-Registrar of several sub- districts in accordance with section 5 of the Registration Act.

Section 7 provided for establishment of offices of Registrar and Sub-Registrar while section 8 provided for appointment of Inspectors of Registration offices. Section 10 of the registration act aimed to regulate a situation of absence of Registrar from office and occurring of a vacancy in the Office of Registrar. Section 11 was also providing for regulating a situation of absence of Registrar in a district. Section 12, on the other hand was providing for a situation where a Sub- Registrar is absent or his office falls vacant temporarily then any person appointed by Registrar of the district was to perform duties in absence or till the filling of the vacancies.

Rest of the provisions of the registration Act have not been relevant for our present discourse, as same were mostly relating to regulating process of the registration of the document and ancillary matters thereto.

9.The Registration Act, in its part-11 was aiming to provide for the authority of the provincial government to erect an edifice of a department for registration of documents and conferring of powers on various office holders besides establishment of various offices like Inspector General of

Registration, Registrar, Sub-Registrar and Inspectors of Registration offices. The Registration Act, however was not providing for method of appointment, promotion, maintaining of seniority list and other ancillary matters of the officers who were to be appointed as Registrar or Sub-registrar. Said job has been done by the provincial government in its rule making powers under section 26 of Khyber Pakhtunkhwa Civil Servant Act, 1973 and then by the concerned department under rule 3 of APT rules. It was also an appropriate course for the reason that Article 240 of the Constitution of Islamic Republic of Pakistan, 1973 was requiring that appointment, terms and conditions of service of a person in the service of Pakistan should be determined, in case of service of the Federation, by or under an Act of parliament and in case of service of a province by or under an Act of the provincial assembly. Under same constitutional competence the Provincial Assembly of Khyber Pakhtunkhwa has promulgated the Khyber Pakhtunkhwa Civil Servants Act, 1973. Appointment to civil post or post in connection with the affairs of the province are being made in accordance with the provisions of Civil Servants Act, 1973 of the province as well as Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989 (APT Rules). The rules have been framed under section 26 of the Civil Servants Act, 1973. Rule 3 of APT rules authorised the department to frame rules regarding method of appointment etc. Under rule 3 of

APT rules, the department had provided rules for establishment of Inspector General of Registration vide notification No. 7363 dated 3.4.1993. In the earlier rules, beside appointment of Sub-Registrars by promotion, it had also been provided that they could also have been appointed by way of temporary transfer of Naib Teshildars but with the condition that when no suitable person was available for promotion. This power of posting of Naib Tehsildars on temporary basis was also removed by amending rules of the concerned department vide notification No. 17635 dated 23.1.2020. As per the prevalent rules a Sub-Registrar can only be appointed by promotion on the basis of seniority-cum- fitness, amongst Head Registration Muharrirs with at least 5 years service as such or having 10 years accumulative service as Head Muharrir and Registration Muharrirs. The existing rules were not allowing for appointment of Naib Tehsildars, and that also in such large scale as has been done in the case in hand.

10.Coming back to defense of the department as well as private respondents that the posting order has been made under powers of the provincial government (under section 6 of the Registration Act) it is important to be noted that section 6 should be read alongwith section 5 and the other provisions clubbed in chapter-II of the Registration Act (Part-II), where intention of the legislature was clear that it was intending to give lawful competence and authorization to the provincial

government for establishment of Districts and sub-districts for the purposes of registration of documents and the enabling powers to appoint Registrar and Sub-Registrar for such districts and sub-districts. The legislature was providing a basic charter to the executive authorities to create, establish and notify district and sub districts as well as offices of Registrar and Sub-Registrar, rather than providing for method of recruitment, appointment, promotion or transfer of those persons who were to be appointed against those posts. This authorization at the end of the legislature was necessary for legal purposes and effects with which the legislature was intending to cloth the registered documents. In part 10 of same Act provisions have been put in place which provided for effects of registration and non-registration of documents. One of the most provision quoted in civil jurisdiction happens to be section 49 of the Registration Act, placed in same part 10 which provided for the effects of non-registration of documents required to be registered. Same provision provided that no document, required to be registered under the Registration Act would operate to create, declare, assign, limit or extinguish any right, title or interest, whether vested or contingent, to or in immovable property or confer any power to adopt, unless same has been registered. Similarly, other provisions like Section 50 was providing for effects of registered document viz a viz unregistered documents and other similar matters. The Registration Act was not only a

procedural law but same was also providing for substantive law having the effect of creating, extinguishing or effecting vested rights in properties. It was felt necessary by the legislature, while enacting the Registration Act, to provide proper protocols and methods for registering documents and at the same time the legislature also provided the basic authorization of the Provincial Government to establish, appoint and notify those officers who would exercise authority in respect of registering documents, hearing appeals against decisions of the Registering Officers as well as establishment and controlling authority having respective powers as defined in the law. Matters relating to method of appointment, transfer, posting, promotion, maintaining seniority list and other matter like disciplinary proceedings, leave etc, have been left to the provincial government to be regulated under a separate legal regime i.e. Law dealing with the establishment and maintaining of Civil Service of the province. The provincial legislature have also regulated the field of Civil Service under Civil Servants Act, 1973 and rules framed (as discussed above).

11.The Civil Servant Act or rules framed there under could not be ignored or washed away by the departmental authority, by claiming exercise of powers under section 6 or 7 of the Registration Act. The plea raised in the comments (or as relied upon by learned counsel for private respondents and learned AAG) based on purported exercise of powers under section 6

of the Registration Act was therefore found to be unsustainable. When learned counsel for private respondents and learned AAG had raised this plea of exercise of powers under section 6 on 03.07.2025, this Court had asked for submission of a report whether approval of cabinet had been obtained for appointment of respondents No.4 to 16. In response to said directions the concerned authorities of provincial government have submitted a report which being a short one is also reproduced for ready reference:

“1. All the appointment orders of respondent No. 4 to 16 have been placed on file duly annexed as directed by the Honourable Court. However no summary was moved in any case for posting of Sub-Registrars ( Respondents No. 4 to 16) as all the posting/transfer have been done under section 12 of Registration Act, 1980.

2.Approval of Provincial Cabinet was not required in the posting of respondent No. 4 to 16 as their order was done under section 12 of Registration Act, 1908.

3.The appointment/authorization of orders of respondent No. 4 to 16 as Sub-Registrar is annexed at (annex-A to Annex-K).”

12.It is interesting to be noted that while passing the impugned order for appointment of Naib Tehsildars as Sub- Registrars the competent authority had expressly mentioned in the orders that said appointments were being made under section 6 of the Registration Act. Same provision was though vesting authority in the provincial Government, as explained above, but same was not giving any powers to Inspector General of Registration for making the appointments. The impugned orders have been issued by Inspector General of Registration Khyber Pakhtunkhwa whereunder respondents No.4 to 16 had been posted as Sub-Registrars. Under Section

6 of the Registration Act, the Inspector General of Registration, established under Section 3 of the Act, had not been vested with the requisite authorization. It was in this perspective that this Court had asked for submitting a report whether authorization had been obtained from provincial cabinet before making the appointments. In response, it was mentioned that no such authorization had ever been obtained from the provincial cabinet. The concerned respondent i.e.

Inspector General of Registration however tried to take refuge behind section 12 of the Registration Act this time. Said provision was providing as follows:-

“12. Absence of Sub-Registrar or vacancy in his office. When any Sub-Registrar is absent, or when his office is temporarily vacant, any person whom the Registrar of the district appoints in this behalf shall be Sub-Registrar during such absence, or until [the vacancy is filled up).”

13.Section 13 and 14 also carry a relevance with section 12 which are also reproduced hereunder for ready reference:-

13.Report to Provincial Government of appointments under sections 10, 11 and 12.-(1) All appointments made under section 10, section 11 or section 12 shall be reported to the Provincial Government] by the Inspector-General.

(2)Such report shall be either special or general, as the [Provincial Government) directs.

14.Establishment of registering officers.-

(2)The (Provincial Government) may allow proper establishments for the several offices under this Act.”

14.Section 12 was only providing powers to the Registrar of the District to make temporary appointments in case Sub- Registrar goes on leave or remain absent or when the post is vacant temporary. Here also the powers have not been given

by legislature to Inspector General of Registration particularly for mass scale appointments of Naib Teshildar across the province as Sub-Registrars. Section 12 clearly aimed at regulating particularly powers of Registrar to appoint a Sub- Registrar (Temporarily) in case when regular Sub-Registrar is absent from duties or temporary vacancy occurs in his office.

Making of large number of appointment or transfer, orders under section 12 by the Inspector General of Registration, could not be held to have been authorized under section 12 of the Registration Act. This plea of the respondents was also therefore holding no water. It is also important to be noted that section 13 was requiring that even report of temporary appointments made under section 10, 11 or section 12 was to be submitted to the provincial government. Here also we found that the basic controlling authority has been vested in the provincial government and the Inspector General could not have resorted to exercise powers of the provincial government in any manner unless expressly authorized under the Registration Act or other laws. A report of temporary appointments made under section 10 was also required to be submitted to the provincial government, under section 13 of the Registration Act. It is well settled principle of law that where the law prescribes a thing to be done in a particular manner, it should be done in same manner, following the provisions of law without deviating from the prescribed procedure. In the case of M/s Tri-Star Industries (Pvt.)

Limited v. TRISA Burstenfabrik AG Triengen (2023 SCMR 1502), Hon’ble Supreme Court has held in this respect;

‘‘10. Where the law prescribes a thing to be done in a particular manner following a particular procedure, it shall be done in the same manner following the provisions of law without deviating from the prescribed procedure, and where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all.’’

15.Another plea raised in a separate report submitted by the department was that there had been shortage of regular Sub-Registrars in the province and therefore Naib Tehsildars were given look after charges, so as to facilitate general public. Short fall of regular Sub-Registrar is therefore claimed to be the reason that the Naib Tehshildars have been appointed in large scale on OPS basis. This shortfall could not be addressed by the concerned department in so many decades and if this practice is allowed then these shortfalls would remain for ever. It is high time that the department sanction the required number of posts, to make fresh appointments at the earliest and also promote the officers whose cases are ripe for promotion so that a proper hierarchy, as envisaged under section 14 of the Registration Act, is established. The plea of exercise of emergency powers cannot therefore be accepted particularly when same is not allowed by law. Additionally, through an interim order this court had restrained respondents from appointing out of cadre persons against the post of regular Sub Registrar. Same order has also been implemented by the department and as a result thereof respondent No.4 to

16 have been repatriated to their parent departments. The affairs of the department are being managed with the existing strength of the Registration Muharrirs, hence, no difficulty arises in the smooth functioning of the department.

16.So for as plea regarding lack of jurisdiction of this court is concerned it was apparent that petitioners were not aggrieved of any order passed by their departmental authority in respect of terms and conditions of their service, therefore they could not have invoked jurisdiction of KP Service Tribunal against appointment of respondents No. 4 to 16, they could not have filed a service appeal, as the matter was not the one which was directly effecting the terms and conditions of service of petitioners. Such appointment orders of another civil servant wrongly made could not be impugned before the Tribunal under the provisions of the KP Service Tribunal Act, 1974 and therefore petitioners were having no other efficacious alternate remedy than filing a constitutional petition before this Court. The Constitution mandates that public functionaries, deriving their authority from or under the law, must act justly, fairly, equitably, and reasonably, without any element of discrimination, and strictly within the parameters of law as applicable to the given situation. Any deviation therefrom is amenable to correction through appropriate orders under Article 199 of the Constitution. In the case titled "Brig. Muhammad Bashir v. Abdul Kareem"

(PLD 2004 SC 271) Hon'ble Supreme Court has held in this respect;

‘‘12...It is well settled by now that "Article 199 casts an obligation on the High Court to act in aid of law, protect the rights or the citizens within the framework of the Constitution against the infringement of law and Constitution by the executive authorities, strike a rational compromise and a fair balance between the rights of the citizens and the actions of the State functionaries, claimed to be in the larger interest of Society. This power is conferred on the High Court under the Constitution and is to be exercised subject to Constitutional limitations. The Article is intended to enable the High Court to control executive action so as to bring it in conformity with the law. Whenever the executive acts in violation of the law, an appropriate order can be granted which will relieve the citizen of the effects of illegal action. It is an omnibus Article under which relief can be granted to the citizens of the country against infringement of any provision of law or of the Constitution. If the citizens of this country are deprived of the guarantee given to them under the Constitution, illegally or, not in accordance with law, then Article 199 can always be invoked for redress".

There is ample power vested in the High Court to issue directions to an executive authority when such an authority is not exercising its power bona fide for the purpose contemplated by the law or is influenced by extraneous and irrelevant considerations.

In the case of Mr. Saleem Ahmad v. The Government of Khyber Pakhtunkhwa (2023 PLC(CS) 1043), this Court in its judgement observed that;

‘‘6...The Constitution requires that public functionaries, deriving authority from or under law, are obliged to act justly, fairly, equitably, reasonably, without any element of discrimination and squarely within the parameters of law, as applicable in the given situation. Any deviation therefrom can be corrected through appropriate orders, under Article 199 of the Constitution.’’

In the case of Mohammad Arshad V. The Provincial Government, Through Chief Secretary, Khyber Pakhtunkhwa, WP No. 5598-P/2023, this Court has also observed in its judgement that;

‘‘9. The Constitution under Article 199(1)(ii)(b), empowers the High Court to issue an order directing any individual within its territorial jurisdiction who holds a public office to demonstrate the legal authority under which they claim to occupy that position. Notably, the Constitution explicitly provides that the applicant seeking such an order is not required to be an 'aggrieved person.' The Supreme Court of Pakistan on number of occasions elaborated this concept in detail.’’

In the case of Jawad Ahmad Mir v. Prof. Dr. Imtiaz Ali Khan Vice Chancellor. Universitz of Swabi, and others (2023 SCMR 162), Hon’ble Supreme Court examined the overall scope of the writ of quo warranto and observed that in this type of jurisdiction it allows the High Court to examine whether an individual has unlawfully assumed a public office.

Its primary purpose is to verify the legality of the officeholder's claim and determine compliance with the law.

In the case of Muhammad Hanif Abbasi v. Jahangir Khan Tareen and others (PID 2018 SC 114), the Hon’ble Supreme Court of Pakistan held that the issuance of a writ of quo warranto lies within the discretion of the court. It further affirmed that the High Court had the authority to examine the motives and behavior of individuals contesting appointments to public office. Relevant portion of the judgment is also reproduced as under:

"There can be no cavil with the principle that to grant the relief in the nature of quo warranto is within the discretionary power of the superior

Courts, it should not be allowed as a matter of course, rather the conduct and the bona fides of the relator, the cause and the object of filing such petition is of considerable importance and should be examined; it should be ascertained if the petition has been filed with some mala fide intent or ulterior motive and to serve the purpose of someone else. We are of the considered view that quo warranto remedy should not be allowed to be a tool in the hands of the relators, who approach the court with mala fide intentions and either have their own personal grudges and scores to settle with the holder of the public office or are a proxy for someone else who has a similar object or motive. "

17.It is also settled that in all these matter where jurisdiction is not expressly conferred to a Service Tribunal, the High Court may exercise its constitutional jurisdiction.

Jurisdiction of Service Tribunal can be invoked against a final order, whereby things have been finally determined. In case law reported as "S.H.M Rizvi and 5 others v. Maqsood Ahmad and 6 others" (PLD 1981 Supreme Court 612), the Hon’ble Supreme Court has defined the connotation of final order as under: -

"A final order has the distinction of determining the rights of the parties. Where any further step is necessary to perfect an order, in this case the disposal of the objections received or finalization of provisional seniority list the order cannot be taken to be final. An order may be final if it determines the rights of the parties, concludes the controversy so far as the particular authority or forum is concerned notwithstanding that such an order may be open to challenge in appeal etc."

In the case of Faizan Khan v. Federation of Pakistan through Secretary, Revenue Division, 2023 P L C (C.S.) Note 4, Hon’ble Islamabad High Court has held that where the petitioner could not voice his grievance before the Service Tribunal then there was no bar in approaching the High Court.

Hence, the matter in hand is well within the jurisdiction of this Court.

18.In view of the foregoing discussion, the petitioners have succeeded in making out a case for indulgence of this Court.

Accordingly, the instant writ petition is allowed and the impugned orders whereby respondents No. 4 to 16 were posted as Sub-Registrars in various districts and sub-districts of the Province are hereby set aside.

Announced on;

10th of September, 2025 *Zarshad* -Sd-

JUDGE

-Sd-

JUDGE

(DB)Hon’ble Mr. Justice Sahibzada Assadullah and Hon’ble Mr. Justice Wiqar Ahmad WP No. 2470-P/2022