Farhan-ud-Din Vs Govt. of KP through Secretary E& SE Deptt Peshawar, etc

Judgment Sheet

(Judictal Department)

WPNo.22l-812024

Farhan-ud-Din Vs Government of KhYber Pakhtunkhwa through Secretary Elementary & Secondary Education Department, etc.

JADGMENT

For petitioner(s): Pir Hamid Ullah Shah Advocate For respondent(s): Mr. Abdul waheed, A.A.G. (for official respondents)

Mr. Masood-ur-Rehman Wazir Advocate for s private respondent No.5 (N-it Ullah Iftan).

IWs Kashan Abdullah and Arshad Aman Gandapur, Advocates for respondent No.6 (ErEA).

Abdul Samad Wazir,L.O., in attendance.

Date of hearing: 03.12.2025 **,r**

MIIHAMMAD TARIO AFRIDI. J.- Through the instant writ petition, filed under Article 199 of the Constitution, the petitioner has prayed for the following relief:

,,For the aforesaid reasons and others to be stated at the time of arguments, it is, therefore, most humbly prayed to issue an appropriate writ to the respondents by directing them to:

(a)set aside / cancel the impugned appointment order dated 01.11 .2023 of respondent No.5 / Nazir Ullah Khan as Primary School Teacher, being illegal, arbitrary, fanciful, and against the very right of the petitioner, and consequently, direct the respondents to appoint the petitioner on the post of Primary School Teacher in Union Council Mira Khel, being top on merit; or

(Ghafoor Zaman) (D.B.) Hon'ble Mr Justice Muhammad Afridi Hon'ble Mr. Iustice Abdul FaYaz

(b)to appoint the petitioner as Primary School Teacher (BPS-12) as per merit in Union Council Mira Khel, District Bannu w.e.f 10.11.2022 with all back benefits, being next meritorious, wherefrom other candidates vide same advertisement dated 03.12.2.021 have been appointed, as one post lying vacant due to resignation of Tahir Faheem Khan. And the respondent No.l may also kindly be directed to initiate disciplinary proceedings against the respondent No.3 DEO (M), Bannu for committing illegality and violating the law, rules and policy of the Government. This Honourable Court may further be pleased to grant any other remedy as deemed fit in the circumstances, to meet the ends ofjustice."

2.The brief facts of the case, as pleaded in the instant writ petition, are that pursuant to advertisement dated 03.12.202I issued by the District Education Officer (DEO) (Male), Bannu, the petitioner applied for the post of Primary School Teacher (psT) (BPS-12) in Union council (uc) Mira Khel, District Bannu. The petitioner participated in the test conducted by the Educational Testing and Evaluation Agency (ETEA), followed by an interview, ffid secured a total of 110.20 marks. It is contended that there were 16 vacant posts of PST in UC Mira Khel and that the petitioner initially stood at Serial No.19 on the merit list. Subsequently, owing to the fact that one candidate, Tahir Faheem Khan (Serial No.2), joined as PST but later resigned upon appointment as School Leader; two candidates, Mehran Khan (Serial No.3) and Abdul Wahab (Serial No.4), did not join their posts; and two other candidates, Imran Ullah Khan (Serial No.l7) and Nazir ullah Khan (Serial No.18), were declared by ETEA as cases of UFM I impersonation, the petitioner merit position improved to Serial No.14, thereby entitling him to appointment against a vacant slot.

(Ghafoor Zaman) (D.B.) Hon'ble Mr. Justice Muhammad Afridi Hon'ble Mr. Justice Abdul FaYaz

3.It is averred that despite repeated efforts, respondent No.3, the DEO (Male), Bannu, failed to consider the petitioner for appointment, which led to the filing of WP No.539-B12023. In the said writ petition, the respondents were directed to consider the petitioner's plea for appointment in accordance with law, rules, and policy vide order dated 05.10.2023. However, the matter remained unattended, compelling the petitioner to file another writ petition, WP No.690-B/2023, wherein interim relief was granted vide order dated 02.IL.2023, directing the respondents to keep one post vacant. Notwithstanding the said interim order, respondent No.3 illegally issued an appointment order in favour of respondent No.5, Nazir Ullah, with a back date of 01.11.2023, which is evident from the fact that charge of the said post was handed over to him on 08.11.2023. It is further avelred that upon learning of the said appointment, the petitioner withdrew WP No.690-B 12023 on 18.04.2024 with permission to file the present petition, so as to challenge the validity of the aforesaid appointment as well.

4.It is contended that despite the fact that the petitioner was entitled to appointment on merit, the respondent No.3 issued the impugned appointment order, purportedly on 01.11.2023, in favour of respondent No.5, Nazir Ullah Khan, who, according to the petitioner, stood disqualified on account of impersonation / UFM findings communicated by ETEA through emails dated 05.01 .2023 and 16.01 .2023. The petitioner maintained that the said appointment was made in violation of [aw, ru[es, and policy, and in disregard of the interim order passed in WP No.690-Bl2O23 on 02.11.2023, whereby the respondents were directed to keep one post vacant. It is further contended that in another UC, Haved Landidak, not only a candidate similarly declared to be involved in impersonation / UFM was dropped, (Ghafoor Zaman) Hon 'ble Mr. Justice Muhammad Tariq Afridi Hon'ble Mr. Justice Abdul Fayaz

but also the next meritorious candidate, Kashif Ullah, was appointed vide appointment order dated 19.04.2023. Therefore, denial of similar ffeatment to the petitioner amounts to discrimination and violation of Articles 4, 25, and 27 of the Constitution, prompting the petitioner to file the present petition with the prayer as aforesaid.

5.In their comments, the official respondents No.l to 3 stated that the petitioner had obtained 110.20 marks and was placed at Serial No.19 in the merit list, whereas respondent No.5 (Nazir Ullah Khan) and Imran Ullah Khan stood higher with 110.44 and 110.54 marks respectively. It is funher stated that once a candidate joins duty, the post stands acfiialized, and resignation thereafter does not revive the vacancy for candidates on waiting list, which under goveflrment policy must be re-advertised. They maintained that the allegations of impersonation against respondent N.5 Nazir Ullah Khan and Imran Ullah Khan were never conclusively proved by ETEA, despite repeated colrespondence ffid, therefore, both were appointed strictty in accordance with law and merit.

6.The respondent No.5 also filed his reply, wherein it is stated that he was higher in merit than the petitioner and was rightly appointed after scrutiny by the Departmental Selection Committee. He denied the allegation of impersonation / UFM, asserting that no conclusive proof was ever produced against him, and maintained that the petitioner, being lower in merit and repeatedty changing his stance in successive writ petitions, has no vested right to appointment. He also disputed the very eligibility of the petitioner on the ground that the petitioner had obtained CNIC of UC Mira Khel after the cutoffdate.

7.The respondent No.6, i.e. ETEA, also filed its comments, wherein it is stated that its role was confined to conducting the (Ghafoor Zaman) Hon'ble Mr. Tariq Hon'ble Mr. Justice Abdul FaYaz

test and reporting irregularities, while the authorrty to appoint rests with the Education Department. It is stated that upon inquiry from the DEO (Male), Bannu, ETEA had categorically confirmed through emails dated 05,01 .2023 and 16.01 .2023 that Nazir Ullah Khan, Imran Ullah Khan, and Javed Ullah were cases of impersonation / UFM and had been blacklisted. It was further stated that the relevant data, including CNICs, rotl numbers, profile cards, and test day photographs, was duly shared with the Education Department on several occasions, and that no delay or concealment was attributable to ETEA. The respondent No.6 maintained that its responsibility was limited to providing factual information, and that the decision to appoint or drop candidates involved in UFM / impersonation lay exclusively with the appointing authority.

8.Arguments heard. Record perused.

g. There is no denial of the fact that the petitioner had secured 110.20 marks and was initially placed at Serial No.19 in the merit list prepared for UC Mira Khel against 16 advertised posts of PST. It is also an admitted position that the candidates at Serial No.3 and 4, namely, Abdul Wahab and Mehran Khan, did not join the Posts.

10.The record reveals that two other candidates, namely Imran ullah Khan (Serial No.17) and respondent No.5, Nazir Ullah Khan (Serial No.18), were declared by the ETEA to be cases of impersonation / UFM and were blacklisted. This declaration was accompanied by supporting material including CNICs, ro11 numbers, profile cards, and test day photographs, all of which were duly communicated to the respondent-department through emails dated 05.01 .2023, 16.01 .2023, 20.09.2023, and 24.10.2023. The authenticrty of these communications was confirmed not only in the comments (Ghafoor Zaman) (D.8.) Hon'bleMr. Justice Muhammad Tariq Afridi Hon'ble Mr. Justice Abdul FaYaz

fiIed by ETEA but also by the learned counsel representing ETEA before this Court. The respondent-department was fully aware of this position, as evinced from its own letters dated 01.1 1 .2022 and 05.09 .2023, wherein it sought a detailed report from ETEA regarding the impersonation / UFM cases of Nazir U1lah Khan and Imran Utlah Khan, a query duly replied to by ETEA via emails on 20.09 .2023 and24.10.2023.

11.The principle is well settled that where candidates higher on the merit list either do not join or stand disqualified in the recruitment process, the next meritorious candidate must be considered in order to uphold transparency and fairness in recruitment. This principle flows from the constitutional guarantees of equality before law and equal protection of law under Article 25, and from the settled jurisprudence that posts must be filled stictly on merit. Pertinent in this regard is also the circular letter bearing No.SOR-VI(E&AD)ll-10120104/ol- VII dated December 10, 2014, issued by the Govemment of Khyber Pakhtunkhwa, Establishment Departrnent, which explicitly provides that the waiting list prepared after recruitment shall remain valid for a period of three months from the date of appoinfinent, and that in case a candidate does not join within the stipulated time, the next candidate in order of merit shall be offered appointment. We are cognizant of the fact that resignation after joining does not revive the vacancy for candidates on the waiting list, but where a candidate is disqualified or fails to join, the next meritorious candidate must be considered. These policy instructions underpin the constitutional mandate that public employment is a trust to be discharged fairly and transparently, and that merit cannot be bypassed by arbitrary or discrimin atory treatment. The respondents, therefore, were bound to apply the same principle in the present case once candidates higher in merit either did (Ghafoor Zaman) (D.B.) Hon'ble Mr. Justice Muhammad Tariq Afridi Hon'ble Mr. Justice Abdul FaYaz

not join or stood disqualified on account of impersonation / UFM. Failure to extend such consideration to the petitioner, while in another UC, Haved Landidak, the next meritorious candidate, Kashif Ullah, w-as appointed aftet dropping a candidate on impersonation / UFM case, amounts to discrimination and violation of Articles 4, 25, and 27 of the Constitution as well as the policy instructions on the subject.

12.Learned counsel for respondent No.5 argued that the list provided by ETEA was unsigned and, therefore, no credence could be given to it. This argument does not carry any weight and is repelled. Once ETEA officialty replied to the letter dated 05.09.2023 of the respondent-department by sharing complete details of both Nazir Ullah Khan (respondent No.5) and Imran Ullah Khan, and when ETEA also confirmed the authenticity of such communications and attachments in its comments and submissions before this Court, the mere absence of a signature is of no consequence, especially when the test day photographs and profiles of these candidates were computer generated. It needs no reiteration that as per established standards, computer generated documents need no signature, and the present case is no exception. Neither the respondent-department nor respondent No.5 disputed the profile pictures available on the printed profile cards. Most significantly, when the profile picture of respondent No.5 is compared with the test day photograph, even on a naked eye, one can easily confirm that the two do not match, rather they materially contradict each other. On the face of such glaring discrepancy, this Court cannot turn a blind eye. This visual mismatch coroborates the finding of impersonation / UFM and lends complete weight to the declaration of ETEA.

(Ghafoor Zaman) Hon'ble Mr Muhammad Afridi Hon'ble Mr. Justice Abdul FaYaz

13.It is a cardinal principle of law that fraud vitiates even the most solemn acts. Impersonation in a competitive examination strikes at the root of merit and faimess. O:tce a candidate is found guilty of impersonation / UFM, he stands disqualified ab initio, and any appointment secured on the basis of such tainted process is void and non est. The respondent No.3 as appointing authority was under a legal obligation to act upon the material supplied by ETEA, ffid its failure to do so amounts to arbitrary exercise of discretion and violation of constitutional guarantees of equality and fair treatment under Articles 4,25, and27 of the Constitution. It is a well settled exposition of law that no person can claim equity or vested right on the basis of fraud, and that appointments tainted by impersonation or unfair means are liable to be annulled ab initio.

14.In these circumstances, when the candidates at Serial No.3 and 4, namely, Abdul Wahab and Mehran Khan, did not join, and once the candidates at Serial Nos.l7 and 18, Imran ullah Khan and Nazir ullah Khan, were declared by ETEA as impersonation / UFM cases, the petitionerns merit position stood improved to Serial No.15, thereby entitling him to consideration against the vacant slot.

15.It is also significant to note that in another uc, Haved Landidak, a candidate similarly declared to be involved in impersonation / UFM was dropped, and the next meritorious candidate, Kashif Ullah, was appointed vide appointment order dated 19.04.2023. The denial of similar treatment to the petitioner amounts to discrimination. The respondents were bound to ffeat like cases alike, and their failure to do so has resulted in violation of the petitioner's constitutional rights under Articles 4,25, and 27. The doctrine of equality requires that persons similarly situated must be dealt with in a similar (Ghafoor Zartan) (D.8.) Hon'ble Mr. Justice Muhammad Tariq Afridi Hon'ble Mr. Justice Abdul FaYaz

manner, and any departure from this principle without reasonable j ustifi cation amounts to ho stile discrimination.

16., Learned counsel for respondent No.5 raised objection that respondent No.5 was never confronted with the allegation of impersonation / UFM, and that neither any inquiry was conducted nor any opportunity of being heard was provided to him. It was contended that the findings of ETEA are not sustainable in law. This contention, however, is misconceived and cannot be accepted. It is a settled principle that recruitment examinations conducted by a duly notified testing agency are governed by its rules and procedures, and the agency is vested with the authority to detect and declare cases of impersonation or use of unfair means. Once the competent testing agency, namely ETEA, categoricatly declared respondent No.5 to be a case of impersonation / UFM and blacklisted him, along with Imran Ullah Khan, upon furnishing sufficient documentary record, the appointing authority was bound to act upon such declaration. The law does not require a parallel inquiry to re-examine the findings of the specialized testing agency, nor can the appointing authority override the testing agency's determination without lawful basis. Moreover, the record demonstrates that the declaration of impersonation / UFM was not made in vacuum, but was accompanied by supporting material including CNICs, ro11 numbers, profile cards, and test day photographs, all of which were duly supplied to the respondent-department. Most notably, neither respondent No.5 nor the department disputed the authenticity of these documents or the mismatch between the profile picture and the test day photograph. In such circumstances, the plea of lack of confrontation, inquiry, or hearing is of no avail, as impersonation in a competitive examination is a matter of (Ghafoor Zaman) (D.8.) Hon'ble Mr. Iustice Muhammad Tariq Afridi Hon'ble Mr. Justice Abdul Fayaz

objective fact, verifiable from documentaly and photographic v evidence, and does not depend upon sub.jective explanation.

17.The learned counsel also contended that respondent No.5 had filed a civil suit not only seeking appointment but also challenging the allegations of impersonation / UFM, and that when the respondent-department and ETEA, both arayed as defendants, allegedly found him innocent, he was issued the impugned appoinfment order dated 01.11 .2023, whereafter the suit was withdrawn on 30.01 .2024. This, according to him, validates the appointment of respondent No.5 and demonstrates that the allegations of impersonation / UFM were unfounded. This contention, however, is also misconceived and cannot be accepted for obvious reasons. Firstly, the withdrawal of a civil \r suit does not amount to adjudication on merits, nor does it confer any legal sanctity upon the impugned appointment order. The withdrawal of proceedings is a unilatetal act of the plaintiff and does not operate as res judicata or estoppel against subsequent proceedings. Secondly, the record before this Court categorically demonstrates that ETEA had declared respondent No.5 to be a case of impersonation / uFM, accornpanied by supporting material including CMCs, roll numbers, profile cards, and test day photographs, all of which were duly communicated to the respondent-department. These findings were reiterated in the comments filed by ETEA before this Court, and their authenticity has not been disputed, nor disproved by producing any evidence or material. Most significantly, neither the respondent-department nor respondent No.5 has been able to explain the glaring mismatch between the profile picture and the test day photograph of respondent No.5, which strongly corroborates the declaration of impersonation / UFM. In such circumstances, the plea that respondent No.5 was found innocent in a civil suit is of no avail, as no judicial (Ghafoor (D.B.) Hon Iustice Afridi Hon'ble Mr. Justice Abdul FaYaz

finding to that effect has been placed on record, nor was the respondent No.5 held entitled to appoinffnent on merit. The issuance of the impugned appoinfinent order dated 01.11.2023, therefore, cannot be justified on the basis of withdrawal of the civil suit.

18.We have also noticed that this Court, in WP No.690-B t2023 fited by the petitioner, had directed the respondent-department vide order dated 02.11.2023 to keep one post vacant for the petitioner till further orders. The respondent-department, however, contended that it had already issued the impugned appointment order on 01 .11,.2023, thereby filling the vacant posts. We are cognizant of the fact that f candidates freshly appointed, especially those who are unemployed, ordinarily report arrival for joining duty at the earliest opportunity. In the present case, however, respondent No.5, though purportedly appointed on 01.11.2023, reported arrival for duty only on 08.11.2023. Neither the representative of the respondent-deparbnent nor learned counsel for respondent No.5 could furnish any plausible explanation as to why respondent No.5, despite being appointed on 01 .1I.2023, delayed his joining until 08.11.2023. This unexplained delay strengthens the submission of learned counsel for the petitioner that the impugned appointment order dated 01.11.2023 was deliberately issued back dated so as to defeat the interim order of this Court dated 02.11.2023. Such conduct on the part of respondent No.3 reflects mala fide and amounts to a clear attempt to circumvent judicial directions. We entertain no doubt that back dating of official orders to defeat tawful directions of the Court is impermissible and renders the action void ab initio. In the circumstances, the plea of the respondent-department that the appointment order had already been issued on 01 .11.2023 cannot be accepted. The surrounding facts and circumstances, (Ghafoor Zarmn) (D.B.) Hon'ble Mr. Justice Muhammad Tariq Afridi Hon'ble Mr. Justice Abdul FaYaz

particularly the delayed joining of respondent No.5 on 08.11 .2023, establish that the appointment order was contrived and back dated to frustrate the interim protection granted to the petitioner, This further reinforces the finding that the impugned appointment order is tainted with illegality, arbitrariness, and ma\a fide, and cannot be sustained in law.

19.Learned counsel for respondent No.5 disputed the very eligibility of the petitioner, contending that he had procured the CNIC purporting himself to be a permanent resident of UC Mira Khel after the cutoff date of the advertisement. This limb of the argument is also devoid of merit. The record of earlier WP No.539-B 12023 has been placed before us, and Annexure-A therein is the photocopy of the petitioner's CNIC. It clearly reveals that the CNIC of the petitioner had originally V been issued on 03.05.2011, with 30.04.2022 as the date of expiry, whereas the cutoff date for the advertisement was 15.12.2021. Similarly, in the present writ petition, the petitioner has annexed another photocopy of his CNIC, showing 07.03.2022 as the date of issuance, which evidently implies renewal of the CNIC upon expiry rather than fresh preparation with change of his earlier address. Renewal of a CNIC does not alter the permanent residence already recorded therein, nor does it affect the eligibility of a candidate who was duly qualified on the cutoff date.

20.The cumulative effect of the above discussion is that respondent No.5, Nazir Ullah Khan, stood disqualified ab initio on account of impersonation / UFM, and his appointment as psT (BPS-12) in UC Mira Khel is illegal, void, and of no legal effect and is declared as such. The petitioner, being next in merit after exclusion of non-joining and disqualified candidates, was entitled to consideration for appointment against the vacant (Ghafoor Zaman) (D.B.) Hon'ble Mr. Justice Muhammad Tariq Afridi Hon'ble Mr. Justice Abdul Fayaz

slot. Denial of such consideration, while a similarly placed candidate in another UC, Haved Landidak, was appointed, amounts to discrimination and violation of Articles 4, 25, and 27 of the Constitution.

21.Accordingly, the writ petition merits acceptance and is allowed. The impugned appointment order dated 01.11.2023 issued in favour of respondent No.5 is set aside. The respondents are directed to consider the petitioner for appointment as PST in UC Mira Khel against the vacant post, strictly in accordance with law, rules, and policy, within a reasonable period but not later than 30 working days from the 4 date of receipt of a certified copy of this judgment.

22.Before parting, we have noticed with great concern that respondent No.3, the District Education Offrcer (Male), Bannu, not only violated the law by appointing candidates, namely, Imran Ullah Khan and Nazir Ullah Khan, who had already been declared by ETEA to be cases of impersonation / UFM and were blacklisted, but also did so despite having fuIl knowledge of this fact. The record reveals that this fact had been duly communicated to respondent No.3 through emails dated 05.01 .2023, 16.01 .2023, 20.09.2023, and 24.10.2023, and astonishingly, respondent No.3 himsell vide letters dated 01.11 .2022 and 05.09.2023, had expressly acknowledged the impersonation / UFM cases of the said candidates. Notwithstanding the fact that this Court had directed respondent No.3 vide order dated 02.11.2023 in WP No.690-812023 to keep one post vacant for the petitioner whose case prima facie merited consideration for appointment, the impugned appointment order was nevertheless issued back dated as of 01.11.2023. The act of respondent No.3 in appointing candidates who had been declared impersonation / UFM cases (Ghafoor Zaman) (D.B.) Hon'ble Mr. Justice Muhammad Tariq Afridi Hon'ble Mr. Justice Abdul Fayaz

by a competent testing agency, ETEA, which had v communicated this fact with strong documentary record in the shape of CNICs, roll numbers, profile cards, and test day photographs on several occasions, constitutes a blatant violation of law, rules, and policy. Respondent No.3 nevertheless proceeded to appoint the disqualified candidates for reasons best known to him. We are cognizant of the fact that such acts on the part of public functionaries not only violate the constitutional guarantees of merit, fairness, and equality under Articles 4, 25, and 27 of the Constitution, but also amount to gross misconduct culpable under the provisions of the Khyber Pakhtunlchwa Government Servants (Effi ciency and Discipline) Rules, z}ll warranting initiation of disciplinary proceedings. Therefore, otr the face of such glaring illegalities and 1 irregularities, we would not turn a blind eye. We direct the Secretary, Elementary and Secondary Education Department, Government of Khyber Pakhtunkhwa, to initiate disciplinary as well as consequential proceedings against the District Education Officer (Male), Dishict Bannu, and other officials of the department, who may be found responsible for or complicit in the illegal appointment of respondent No.5 as Primary School Teacher (BPS-12) at Government Primary school, Taji Killa Adda, District Bannu. such proceedings shall be conducted in accordance with the relevant provisions of the Khyber Pakhtunlfiwa Government Servants (Efficiency and Discipline) Rules, 2OLl, after affording the officials concemed afair opportunity of hearing.

23, Furthermore, the record before us reveals that respondent No.5 was appointed on the basis of an ETEA result allegedly procured through impersonation, thereby rendering him and his accomplices liable to criminal proceedings in accordance with Iaw. Respondent No.5 (Nazir U[ah lftan) is also liable to the (Ghafoor Zaman) (D.B.) Hon'ble Mr. Justice Muhammad Afridi Hon'ble Mr Iustice Abdul Fayaz

recovery of all salaries and emoluments drawn by him on the v strength of such illegal appointment. The Secretary, Elementary and Secondary Education Department, shall ensure that such acts of impersonation and abuse of the recruitment process are not permitted to go unchecked.

24.The worthy Additional Registrar of this court shall communicate a copy of this judgment to the Secretary, Elementary and Secondary Education Department, Government of Khyber Pak*rtunkhwa, with direction to take notice of the matter strictly in accordance with law and to submit compliance report within 60 days for our perusal in chambers.

Announced

L

0s.12.2025

JUD E

-Sd- Judge

-Sd- Judge jv"'

JUDGE

SCAIINED

wf (Ghafoor Zaman) Mr. Justice Hon'ble Mr. Justice Abdul FaYaz