Rasool Nawaz Vs Government of KP and others.

JUDGMENT SHEET

(Judicial Department)

W.P.No.728-Bl2017 with C.M.No.04-B/2024.

Rasool Nawaz

Versus

Govt. of K.P and others

JUDGMENT

Date of hearing: 1L.6.2025.

For petitioner: Mr. Muhammad Anwar Khan Mamash Khel, Advocate.

For respondents: Mr. Najib Ullah Khan Marwat, Asstt:

A.G.

MUHAMtuIAD TARIO AFRIDI. f.- The petitioner, Rasool Nawaz, was appointed as Junior Clerk (BPS-5) in the Communication & Works (C&W) Department, D.I. Khan vide office letter No.849-E/6421F-l(3\ dated 29.08.1996.

However, his services were terminated through offrce letter No.849-Ell05tB-I(3), dated 28.03.1997, on the ground that his appointment was illegal, ab initio void, and in violation of the prescribed rules. Subsequently, the petitioner submitted an application for reinstatement under the Khyber Pakhtunkhwa Sacked Employees (Appointment) Act, 2012, but his request was not entertained. Aggrieved thereby, he approached this Court through the instant writ petition under Article 199 of the Constitution, seeking a direltion to the

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respondents to reinstate him in light of the said Act along with back benefits.

2.Arguments of the learned counsel for the parties were heard, and the available record was perused.

3.It may be noted that earlier this Court had allowed the writ petition of the petitioner vide judgment dated 13.11.2019, directing the respondents to consider his case for appointment under the 25Yo quota reserved for sacked employees. The department, however, challenged the said judgmint before the Hon'ble Supreme Court of Pakistan by filing Civil Appeal No.l8l of 2021. The Hon'ble Supreme Court, vide order dated 19.10.2023, allowed the appeal, set aside the impugned judgment, and remanded the matter to this Court with a direction to hear the parties afresh, examine all relevant documents, and decide the matter through a reasoned order.

4.In compliance with the above direction, this Court has re-examined the record in light of the provisions of the Khyber Pakhtunkhwa Sacked Employees (Appointment) Act, 2012. Section 2(g) of the Act defines a "sacked employee" as:

"A person who was appointed on regular basis to a civil post in the Province of Khyber Pakhtunkhwa and who possessed the prescribed qualification and experience for the said post at that time, during the period from lst day of November 1993 to the 30th day of November 1996 (both days inclusive), and was dismissed, removed, or terminated from service during

the period from lst day of November 1996 to 3lst day of December 1998 on the ground of irregular appointments."

This definition sets out the following essential criteria:

i. The individual must have been appointed on regular basis against a civil post through a proper recruitment process; temporary, ad hoc, or daily-wage appointments are excluded.

ii. The post must be a civil post under the Khyber Pakhtunkhwa Government.

iii. The person must have possessed the prescribed qualification and experience as required under the relevant service rules at the time of appointment.

iv. The appointment must have occurred between 01.11.1993 and 30.11.1996, and termination must have taken place between 01.1I .1996 and v. The termination must have been on account of irregular appointment, not due to disciplinary action or any other ground.

5.Applying the above to the petitioner's case, it is evident from the record that his appointment was made purely on a temporary basis, as clearly stated in the appointment order. There is no material on record to suggest that his appointment was ever regularized, nor that it was made in compliance with the prescribed recruitment process. Accordingly, the petitioner does not fulfill the mandatory condition of having been appointed on a regular basis, and hence, falls outside the ambit of a 'osacked employee" as defined under the Act.

6.Reliance may also be placed on the judgment of the Hon'ble Supreme Court reported as Government of Khyber

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Pakhtunkhwa through Chief Secretary, Peshawar and others v. Intizar Ali and others (2022 SCMR 472), wherein the Apex Court held that:

"On the same analogy on which the Khyber Pakhtunkhwa Sacked Employees (Appoinfinent) Act, 2012 was enacted, earlier Legislature had enacted the Sacked Employees (Re-instatement) Act, 2010 for the sacked employees of Federal Government. However, this Court in Muhammad Afzal v.

Secretary Establishment (2021 SCMR 1569) has declared the Sacked Employees (Re-instatement) Act, 2010 to be ultra vires the Constitution by holding as under:

"Legislature had, tfuough ttre operation of the Act of 2010, attempted to extend undue benefit to a limited class of employees... Rights of those who had been inducted through proper recruitment processes could not be placed at a disadvantage... The Act of 2010 was in violation of Articles 4,9, and 25 of the Constitution and was thus void."

The Hon'ble Court's reasoning, though in the context of federal legislation, equally applies to provincial laws seeking to reinstate employees terminated for inegular appointments, particularly where such appointments were never made in accordance with law or regularized.

7, Additionally, the Act was promulgated on 20.09.2012, whereas the instant writ petition was filed on 28.09.2017, after a lapse of nearly five years. The petitioner has failed to offer any reasonable explanation for this delay, and as such, the petition is also hit by the doctrine of laches, which renders it not maintainable on this ground as well.

8.In view of the above discussion, the petition is bereft of merit and is accordingly dismissed.

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Announced.

Dt: I1.6.2025.

Imran/*

JUDGE

(D.B)

Hon'ble Mr. Justice MuhammadTariq Afridi Hon'ble Mr. Justice Abdul FaYaz