Govt of KPK through Secretary Elemantary & Secondary Education, Peshawar Vs Iftikhar Wali Khan

v

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

BANNU BENCH

(Judicial Department)

Government of Khyber Pakhtunkhwa through Secretary Elementary & Secondary Education, Peshawar, etc.

Vs Iftikhar Wali Khan

JUDGMENT

Date of hearing: 27.10.2025

For petitioner(s): Mr. Naiib Ullah. A.A.G.

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

MUHAMMAD TARIQ AFRIDI, J.- Ihis civil revision petition, filed under Section 115 of the Code of Civil Procedure, 1908 ("CPC"), calls into question the legality and propriety of the judgment and decree dated 26.01.2022 passed by the learned Additional District Judge-IV, Bannu, whereby the appeal prefemed by the petitioners was dismissed, thereby affirming the judgment and decree dated 20.12.2021 of Civil Judge- XI[, Bannu, through which the respondent's suit for declaration cum permanent mandatory injunction was decreed.

2.The brief facts of the case are that the plaintiff (Ghafoor Zunan) (S.B.) Ilon'ble MI'. Justice Muhammad Tariq Afridi

v Iftikhar Wali Khan (hereinafter referred to as the respondent) instituted a suit seeking declaration and permanent injunction against the defendants, Secretary, Elementary and Secondary Education Department, Peshawar, etc. (hereinafter referred to as the petitioners), asserting that he was entitled to appointment against a Class-IV post. It was averred that the appointment of 74 candidates by the petitioners was illegal, politically motivated, ffid in violation of Rule l0(2) of the Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989, as no list was requisitioned 4 from the Employment Exchange or Departmental Selection Committee constituted for the purpose.

3.The petitioners contested the suit by filing written statement, wherein they stated that the appointments were made transparently and in accordance with law. The divergent pleadings of the parties led to framing of legal and factual issues. Both parties led evidence. After hearing the arguments, the Trial Court decreed the suit in favour of the respondent vide judgment and decree dated 20.12.2021. The petitioners assailed this decision but was affirmed by the learned Additional District Judge-IV, Bannu vide judgment and decree dated 26.01.2022.

Hence, this revision petition.

(Ghafoor Zaman) (S.B.) Hon'ble Mr. Justice Muhammad Tariq Afridi

4.Arguments heard. Record perused.

5.The grievance of the respondent was that the appointments made by the petitioners were in violation of Rule 10(2) of the Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989, which mandates that appointments to posts in Basic Pay Scale I to 4 shall be made on the recommendations of the Departmental Selection Committee through the District Employment Exchange concerned, or where such office does not exist, after advertisement in leading newspapers.

/t The respondent contended that the appointments were made without requisitioning any list from the Employment Exchange and were influenced by political favoritisrn.

6.In order to appreciate the nature and legality of the appointments ln question vis-ir-vis claim of the respondent, the evidence led by the parties warrants close scrutiny. Relevant in this regard are the testimonies of Muhammad Iqbal Khan, Manager, Employment Exchange, Bannu (PW-01) and Barkat Ali Khan, Litigation Officer, Elementary and Secondary Education Department (DW-01). In his statement, PW-01 admitted it correct that no list was requisitioned from him by the (Ghafoor Zaman) (S.B.) tlon'ble Mr. Justrce Muharnmad Tariq Afridi

department while making the appointments, whereas DW-01 admitted in unequivocal terms that no advertisement was issued for the Class-IV posts and that no list was requisitioned from the Employment Exchange. These admissions are significant, as they directly demonstrate contravention of the mandatory requirements of Rule 10(2) of the Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion & Transfer) Rules, 1989, which stipulates that appointments to posts 4 in Basic Pay Scale I to 4 shall be made either through the Employment Exchange or, where such office does not exist, by advertising the vacancies in leading newspapers.

7.DW-01 further stated that the candidates who were ultimately appointed had produced Demi Official (DO) letters issued by Members of the Provincial Assembly (MPAs) and Members of the National Assembly (MNAs), and that such letters formed the basis of their selection. He candidly admitted that had the respondent produced a similar DO letter, he too would have been appointed. This testimony not only confirms the lack of a lawful recruitment process but also reveals that the appointments were made on extraneous considerations, bypassing the institutional mechanisms prescribed under the Iaw.

(Ghafoor Zamur) (S.B.) Hon'ble Mr. Justice Muhammad tariq Afridi

8.Such admissions, coming from the official witnesses of the Employment Exchange and the department, leave liule room for doubt that the appointments were made in disregard of the statutory framework and without adherence to principles of transparency, merit, and equal opportunity. the reliance on political endorsements in lieu of formal selection procedures constitutes a serious breach of administrative propriety and legal mandate. It is interesting to note that vr" both the Courts below unanimously held that the recruitment process was carried out in contravention of the method prescribed under Rule 10(2) of the Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989. However, they simultaneously proceeded to hotd the respondent entitled to appointment on the very basis of those irregularities. This approach is legally untenable for the simple reason that it conflates procedural impropriety with enforceable entitlement and overlooks the settled principle that no person can claim appointment merely because others were appointed in violation of law.

9.In this backdrop, I am of the considered view that the record does indicate procedural irregularities in the appointment process, including the absence of requisition (Ghafoor Zaman) (S.B.) FIon'ble Mr. Justice Muhammad Tariq Afridi

from the Employment Exchange and reliance on DO letters from MNAs / MPAs. However, the respondent's entitlement to appointment must be adjudged independently. It is a settled principle of law that the relief of appointment cannot be granted on the basis of comparative illegality. The Courts are not empowered to direct appointment merely because others were appointed in violation of law. The entitlement must flow from a vested right, established through a valid selection a process.

10.It is also pertinent to observe that the respondent did not implead any of the appointed candidates as party to the suit, nor did he challenge any specific appointment through appropriate proceedings. The relief sought was generic and declaratory in nature, without identiffing any particular act of discrimination or violation of his individual rights. In suits involving service matters, especially those seeking appointment or cancellation of appointments, the principles of natural justice require that affected parties be impleaded and heard. 'fhe omission to do so renders the proceedings defective and the relief legally untenable.

11.Moreover, the respondent's suit was premised on (Ghafoor Zaman) (S.B.) Hon'ble Mr. Justice Muhammad Tariq Afridi

the assumption that procedural irregularities in the appointment of others automatically confer a right of appointment upon him. This assumption is legally flawed. It is a well settled exposition of law that no person can claim appointment merely because others were appointed illegally. The right to appointment must be established independently. The Courts below failed to appreciate this distinction and proceeded to grant relief on a premise that is contrary to settled norms of law.

12.The respondent's registration with the Employment Exchange, though relevant for eligibility, does not by itself create a vested right to appointment.

The law requires not only registration but also recommendation by the Employment Exchange or selection through a Departmental Selection Committee in accordance with law. In the absence of either, the present claim remains unfounded in law and cannot be enforced through a decree of mandatory injunction.

13.The judgments and decrees of the Courts below suffer from material irregularity and misapplication of law. The findings recorded are based on assumptions rather than legal entitlement, and the relief granted exceeds the scope of judicial authority in matters of (Ghafoor Zwnan) (S.B.) I-lon'ble Mr. Justice Muhammad Tariq Afridi

v public employment. The Courts are not empowered to substitute administrative discretion or direct appointments in the absence of a valid selection process.

14.As a matter of law, a prior wrongful act cannot be relied upon as precedent to justiff a subsequent wrongful act, nor can such misconduct be invoked to secure a favourable ruling from a court of competent jurisdiction.

Since both the subordinate Courts have acted beyond their authority and have granted relief contrary to law, interference in revisional jurisdiction is, therefore, warranted.

15.For the foregoing reasons, this revision petition is accepted. The irnpugned judgment and decree dated 26.01.2022 passed by the Additional District Judge-IV, Bannu and judgment and decree dated 20.12.2021 passed by the Civil Judge-XIII, Bannu are hereby set aside.

Resultantly, the suit filed by the respondent / plaintiff is dismissed.

16.No costs.

lk- Announced deAl{I,mn 27.10.2025

JUDGE

I I I

(Ghafoor Zaman) (S.B.) Hon'ble Mr. Justice Muhammad Tariq Afridi

I