B.I.S.E vs Governor Of Punjab etc.

Form No:HCJD/C-121

ORDER SHEET

LAHORE HIGH COURT,

RAWALPINDI BENCH, RAWALPINDI

JUDICIAL DEPARTMENT

Writ Petition No.3540 of 2024.

The Board of Intermediate and Secondary Education, Rawalpindi.

Versus

Governor of Punjab, etc.

S.No. of order/ Date of order/ Order with signature of Judge, and that of proceeding. proceeding parties or counsel, where necessary.

16.06.2026 M/S Haroon Irshad Janjua and Liaqat Hayat Khan Bhatti, Advocates for the petitioner. Mr. Tanveer Iqbal, Advocate for respondent No.3.

Mr. Muhammad Shahid Munir, Assistant Advocate General, Punjab.

Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, order dated 16.09.2024, passed by respondent No.1 (Governor, Punjab) in appeal has been assailed, whereby he confirmed the order dated 28.12.2023, passed by respondent No.2 (Provincial Ombudsman) accommodating the respondent No.3 (Abdul Qavi) to the benefit of recruitment under Rule 17-A of the Punjab Civil Servants (Appointment and Condition of Service), Rules 1974 (Rules 1974).

2.According to actual and factual background, one Abdul Ghafoor (father of respondent No.3), who happened to be a Naib Qasid in Board of Intermediate and Secondary Education (Petitioner) was retired from the service on 17.08.2009 on medical ground in category “B” on the report of District Health Headquarter Hospital, Rawalpindi. Said Abdul Ghafoor moved an application on

05.03.2023 for the recruitment of his son (respondent No.3) under Rule 17-A of the Rules. Respondent No.3 also moved a separate application for the same purpose, but of no avail.

3.Receiving no result, the petitioner moved his application to respondent No.2 (Provincial Ombudsman), which was accepted vide order dated 28.12.2023 directing the petitioner (BISE) to make appointment of the petitioner under Rule 17-A of the Rules 1974. Petitioner (BISE, Rawalpindi) challenged the said order through appeal before respondent No.1 (Governor of Punjab). Said appeal was dismissed and order passed by respondent No.2 (Ombudsman Punjab) was upheld vide impugned order dated

4.Learned counsel for the petitioner-BISE mainly focused on the points that an order passed by Ombudsman is recommendatory in nature as it is neither a judgment nor a decision, hence has no binding effect; performance of quasi-judicial functions by a “persona designate” does not convert him into the Court; placed reliance upon (2023 SCMR 908); Rule 17-A of the Rules 1974 was declared ultra-vires to the Constitution of Islamic Republic of Pakistan, 1973 (Constitution 1973) and struck down in a case titled “General Post Office, Islamabad and other Vs. Muhammad Jilal” (PLD 2024 SC 1276); said Rule do not exist from the very date of its inception; added that as per judgment of this Court, passed by the Division Bench, handed down in case titled “Province of Punjab, etc Vs. Syed Muhammad Ali Raza Shah” (2025 PLC (CS) 931), it was resolved that cases of the persons, who have obtained benefit of the said

Rule before its omission date i.e. 24.07.2024 would be treated as past and a closed chapter, whereas the persons, whose cases are in process, are not entitled to claim the benefit of the said Rule in the light of the judgment rendered in case of “General Post Officer, Islamabad” (supra), i.e 26.09.2024.

5.Rule 17-A of the Rules 1974 was inserted originally in 1987. It was in quite narrow and restricted form. Gradually with the passage of time it was considerably and consciously amended so as to reflect a much more beneficial intent. Said rule as existing immediately before its omission is being reproduced below for the facility of reference:- [17-A. Notwithstanding anything contained in any rule to the contrary, whenever a civil servant dies while in service or is declared invalidated/incapacitated for further service, one of his unemployed children may be employed by the Appointing Authority against a post to be filled under rules 16 and 17 for which he/she possesses the prescribed qualification and experience and such child may be given 10 additional marks in the aggregate by the Public Service Commission or by the appropriate Selection Board of Committee provided he/she otherwise qualifies” in the test- examination and/or interview of posts in BS-6 and above.

Provided further that only one child or widow or wife of an employee who dies during service or is declared invalidated or incapacitated for further service, if otherwise eligible for the post, shall be appointed to a post in BS-1 to BS-11 in the department where the Government servant was serving at the time of his death or the declaration, without observance of the procedural requirement prescribed for such appointment.”

6.Said Rule was omitted through amendment/notification dated 26.07.2024 by the Government of the Punjab, which reads as follows:-

No.SOR0III(S&GAD)2-60/2024.- In exercise of the powers conferred under Section 23 of the Punjab Civil Servants Act, 1974 (VIII of 1974) Governor of the Punjab is pleased to make the following amendment in the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, with immediate effect:- Amendment In the Punjab Civil Servants (Appointment and Conditions of Services) Rules, 1974, Rule 17-A shall be omitted.

7.It was borne out of the record that father of respondent No.3 retired on 17.09.2009 on medical ground in category “B”. An application for the appointment of respondent No.3 was moved on 05.03.2023. Said rule was omitted on 26.07.2024. Right for recruitment in favour of respondent No.3 accrued on 05.03.2023 when application for his appointment was made. The Hon’ble Supreme Court of Pakistan in a case titled “General Post Office, Islamabad and others Versus Muhammad Jalal” (PLD 2024 Supreme Court 1276) declared the said rule ultra viries to the Articles 3, 4, 5(2), 18, 25(1) and 27 of the Constitution of Islamic Republic of Pakistan, 1973, but was pleased to hold that the judgment shall not affect the appointments already made of the widow/widower, wife/husband or child of deceased or retired civil servant. The matter came up for discussion again before Supreme Court of Pakistan in a case titled “Ayyaz Ali and others Versus Federation of Pakistan” (2026 SCMR 42), wherein it was held that said judgment rendered in “General Post Office case” cannot be given retrospective effect.

8.Federal Constitution Court of Pakistan in a judgment dated 27.02.2026, titled “Province of Sindh Vs. Muhammad Rizwan and others”, handed out in FCPLA No.508/2025, also clarified the said judgment

passed by Supreme Court in General Post Office case supra and observed that the relevant event which resulted into the accrual of the right was death of the civil servant: Further holding that said judgment shall operate prospectively and not retrospectively. I think it appropriate to have a look of relevant excerpt of the said judgment of Federal Constitutional Court of Pakistan, which is being produced below:- “The nub of controversy is that at the time when the judgment of Supreme Court of Pakistan supra was handed down, had the right accrued in favour of respondents? In this regard, the relevant event, which resulted in the accrual of the right, was the death of civil servant. As and when the death of a civil servant takes place, one of this children and/or spouse acquires the right to be appointed in civil service. The process of application and/or a formal appointment letter are administrative acts. Since right has accrued in favour of private respondent, hence judgment of the Supreme Court does not come in their way for appointment on deceased employee children/spouse quota. It is trite law that judgments of the Supreme Court operate prospectively and not retrospectively. Even otherwise, the Supreme Court in a subsequent decision, clarified that judgment reported as law, we do not find any legal infirmity in the reasoning handed down by the learned Sindh High Court, in the impugned judgment, warranting interreference.”

9.Another objection raised by learned counsel for petitioner-BISE Rawalpindi was that the children of an employee retired on medical ground in category “B” are not eligible to claim the employment/recruitment under Rule 17-A of the Rules 1974. He referred notification SOR- III(S&GAD)2-21/2016 dated 03.03.2021, which provides that invalidation/incapacitation from the government service in category “B” does not fall within the type of permanent incapacitation, hence

benefit of Rule 17-A cannot be extended to the legal heirs of the government servant, who invalidated in category “B”. Said notification was thoroughly examined and put at naught by this Court in a case titled “Muhammad Ijaz Versus Government of Punjab, etc.” (2021 PLC CS 1154), wherein it was held that Rule 17-A did not specify any deviation, distinction or bifurcation of categories of incapacitation or invalidation. Either one was incapacitated or not incapacitated likewise invalidated or not invalidated. No such thing as being partly invalidated or being semi-incapacitated exist. Rule 17-A was a beneficial rule and had to be construed liberally and departmental instructions could not be allowed to make inroads thereon. Administrative instruction had taken into account an absolutely irrelevant consideration of possible misuse of the facility, which rendered the notification illegal.

10.The Supreme Court of Pakistan dealing with a similar proposition in a case titled “Zahida Perveen Versus Government of Khyber Pakhtoonkhwa, etc.” (PLD 2025 SC 529) declared such like administrative clarifications to be ultra varies and without lawful authority. In the said case daughter of a deceased civil servant was appointed under Rule 10(4) of Khyber Pakhtoonkhawa Civil Servants (appointment, promotion and transfer) Rules, 1989, which is analogous to Rule 17-A of Punjab Civil Servants (appointment and condition of the service rules) 1974. Her appointment was terminated on the ground that she contracted marriage, on the strength of a clarification letter dated 21.02.2020 (impugned clarification) stipulating that the benefit of the said

appointment is not available for a female who has contracted marriage. It was further supplemented by another clarification letter dated 28.04.2023 providing that a married daughter may be considered eligible for appointment under the said rule only if she had separated from her husband and dependent on her parents. Honourable Supreme Court was pleased to hold that executive letters cannot restrict the scope of a rule and directed the authorities to restore the appointment of daughter of civil servant.

11.Crux and cumulative effect of the above discussion is that father of respondent No.3, who happened to be a Naib Qasid, stood retired from the service on 17.08.2009 on medical ground in category “B” and right for appointment in his favour accrue on said date i.e. 17.08.2009. An application for his appointment was made on 05.03.2023 after he attained majority and his right stood matured i.e. much prior to the date 24.07.2024, when the said rule was omitted. Right of appointment under the said rule in favour of respondent No.3 had already accrued, which could not be taken away by any stretch of imagination. Therefore, the order dated 28.12.2023, passed by respondent No.2 (Provincial Ombudsman) and the order dated 16.09.2024 passed in appeal by respondent No.1 (Governor Punjab) affirming the same are in accordance with law laid down by Supreme Court of Pakistan as well as Federal Constitutional Court of Pakistan, as such petitioner (BISE, Rawalpindi) is bound to comply with the same. It is made clear that if any person abuses, interfere with, impedes, imperils or obstructs the process of the Ombudsman in any way or disobeys

any order passed by the Ombudsman, the Ombudsman shall have same powers, mutatis mutandis as the High Court has to punish any person for its content (Section 16 of the Punjab office of the Ombudsman Act, 1997.

12.When the learned counsel for the petitioner was asked to identify any illegality, or material irregularity, or jurisdictional error in the said order, he failed to do the same.

13.For the reasons recorded above, the present petition has no force, hence dismissed. Petitioner is directed in clear terms to make appointment of respondent No.3 (Abdul Qavi) under Rule 17-A of Punjab Civil Servants (Appointment and condition of the service) Rules, 1974, according to his qualification within thirty days under intimation to this Court through the Deputy Registrar (Judicial).

(TANVEER AHMAD SHEIKH)

JUDGE

APPROVED FOR REPORTING.

JUDGE

Shahzad Ahmad Nasir*