Akhtar Hussain Vs Govt of KPK

JUDGMENT SHEET

PESHAWAR HIGH COURT

MINGORA BENCH

(Judicial Department) W.P. No. 733-M/2023 With Interim Relief

JUDGMENT

Date of hearing: 08.10.2025 Petitioner: - (Akhtar Hussain) by Mr. Rashid Ali Khan, ASC.

Respondents (Govt: of KPK & others) by Mr. Rahim Ullah (Chitrali), Astt: A.G, along with Said Zaman, Section Officer, in person. SALAH-UD-DIN, J.- Through subject writ petition preferred under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, petitioner seeks issuance of an appropriate writ, citing the following enumerated prayer:-

PRAYER: -

“It is, therefore, humbly prayed that on acceptance of this writ petition, the impugned office order dated 23.05.2023 to the extent of recovery, may very kindly be declared null and void upon the rights of the petitioner, and be set aside.

Any other relief not specifically prayed for, may also be granted in favour of the petitioner, if this August Court deems fit.”

2.Arguments of learned counsel for petitioner, as well as learned Astt: A.G for official respondents were heard and available record perused with their able assistance.

Nawab (D.B) Hon’ble Mr. Justice Sabit Ullah Khan Hon'ble Mr. Justice Salah-ud-Din

3.In essence, grievance of the petitioner is that he was initially appointed as Group Secretary/Field Clerk in Local Zakat Committee, Swat, on contract basis, for a period of one-year by dint of appointment order dated 01.12.2009 . Said contract service of the petitioner had subsequently been extended from time to time. During the course of his aforesaid service, petitioner was appointed as Chowkidar (BPS-03) in Food Department, Swat, vide appointment letter dated 05.10.2017.

Thereafter, the petitioner was served with an explanation by respondent No. 2 i.e. Senior District Zakat Officer, Swat, vide his letter dated 12.4.2023, whereby he was asked to explain his position as to whether he is a government servant or not. In response whereof, petitioner has filed his detailed reply dated 12.4.2023. Now petitioner is basically aggrieved of the impugned office order dated 23.5.2023, issued by respondent No. 2, whereby he was terminated from his service with effect from 14.4.2023, on account of his dual job. Through aforesaid impugned office order dated 23.5.2023, respondent No. 3 i.e. Assistant Director Food, Malakand Division, Swat, was directed to ensure recovery of withdrawn salaries amounting to Nawab (D.B) Hon’ble Mr. Justice Sabit Ullah Khan Hon'ble Mr. Justice Salah-ud-Din

Rs.1,012,000/- from the petitioner. Feeling aggrieved from the above-referred impugned office order dated 23.5.2023 to the extent of recovery of already paid amount in the form of salaries, petitioner has made resort to this Court through the subject writ petition.

4.Respondents were put on notice, out of whom respondents No. 2 to 5 have filed their para- wise comments. It was deposed in the comments that the petitioner was initially appointed as Group Secretary/Field Clerk in the Department of District Zakat Committee on 01.12.2009, on contract basis.

Said contractual service of the petitioner had subsequently been extended from time to time.

Despite his aforesaid service, petitioner was again appointed as Chowkidar in the Food Department, Swat by dint of office order dated 05.10.2017. It was also part of the comments that the petitioner had concealed the factum of his earlier government service of District Zakat Committee, Swat, whereby he has regularly been receiving salaries from the government exchequer till the date of his termination. It is also part of the comments that the Director General Audit Social Safey Nets, Auditor General of Pakistan during the process of audit of Nawab (D.B) Hon’ble Mr. Justice Sabit Ullah Khan Hon'ble Mr. Justice Salah-ud-Din

Provincial Zakat Fund, Khyber Pakhtunkhwa for the year 2021-2022 had recorded Audit Para No.

08, wherein it was observed that Mr. Akhtar Hussain, Group Secretary/Field Clerk of District Zakat Committee, Swat, was drawing monthly salaries from District Zakat Committee, Swat and at the same time he was also employee of the Food Department, Swat, in the capacity of Chowkidar, wherein he was also receiving monthly salaries from the government exchequer. On intimation of respondent No. 4 i.e. Assistant Administrator (Audit) Zakat & Usher, Department, Khyber Pakhtunkhwa, an explanation letter was served upon the petitioner in respect of his dual job. In response whereof, petitioner has furnished his comprehensive reply, wherein he has put-forward his line of defence in terms that he was unaware of the fact about the prohibition of dual government job and due to this sole reason, he has tendered his resignation on 12.4.2023, therefore, in view of such overwhelming documentary proof, respondent No.

2 has passed the impugned termination order dated 23.5.2023, wherein respondent No. 3 was also directed to recover the already received amount in the form of salaries from the petitioner.

Nawab (D.B) Hon’ble Mr. Justice Sabit Ullah Khan Hon'ble Mr. Justice Salah-ud-Din

5.In view of the above stated factual position of the case in hand, there is no denial to this fact that the petitioner has performed dual job in the capacity of government servant and in lieu thereof he had withdrawn monthly salaries from both the departments i.e. District Zakat Committee, Swat and Food Department, Swat. In lieu of his dual job, petitioner was terminated from his service vide the impugned office order dated 23.5.2023, however, at the same time, he was also found liable to re-imburse an amount in the sum of Rs.

1,012,000/- to the government exchequer, and now the petitioner has only been aggrieved of the latter findings of respondent No. 2 in respect of recovery of the already received amount in the shape of salaries.

6.Sole question for determination before this Court would be as to whether petitioner could be made liable for recovery of the already received amount in the form of salaries or otherwise? It was specifically deposed by petitioner in his reply to the explanation that he was unaware of the fact that as per government rules there was a clear embargo on dual government job, therefore, despite his previous contractual job of Group Nawab (D.B) Hon’ble Mr. Justice Sabit Ullah Khan Hon'ble Mr. Justice Salah-ud-Din

Secretary/Field Clerk, he has availed the second government job of Chowkidar in the Food Department and on getting knowledge by dint of letter of respondent No. 2 about prohibition of dual job, he had tendered resignation from his post of Group Secretary, therefore, he made a request for dismissal of Audit Para and consequential recovery of the already received amount in the form of salaries.

7.An identical controversy came before the august Supreme Court of Pakistan in case titled “Shahbaz Latif v/s DIG, Pakistan Railways Headquarters Office, Lahore & others” reported as PLD 2025 Supreme Court 560, it was held by that:-

“Principles of equity, good conscience, and public interest dictate that in the absence of fraud or dishonest conduct by the employee, retrospective recovery of wages is unjust. The recovery of salary for services lawfully and diligently performed is impermissible, notwithstanding defects in the initial appointment. Thus, the order for recovery in the present case is arbitrary, excessive, and in clear violation of equitable principles. Supreme Court set- aside the impugned judgment to the extent of recovery of salary from the petitioner, however, the petitioner's dismissal from service, on account of ineligibility at the time of appointment, would remain intact.”

Nawab (D.B) Hon’ble Mr. Justice Sabit Ullah Khan Hon'ble Mr. Justice Salah-ud-Din

8.In view of the above discussion, the instant writ petition is disposed of in terms that the impugned order dated 23.5.2023 passed by respondent No. 2 to the extent of recovery of already paid salaries amounting to Rs. 1,012,000/- stands set aside, however, rest of the impugned order shall remain intact in respect of termination of service of the petitioner.

ANNOUNCED

Dt: 08.10.2025 Sd/-

JUDGE

Sd/-

JUDGE

Nawab (D.B) Hon’ble Mr. Justice Sabit Ullah Khan Hon'ble Mr. Justice Salah-ud-Din