Ubaid-ur-Rehman Vs Govt of Khyber Pakhtunkhwa

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AUJA n a

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oF 2022

Ubaid-ur-Rehman son of Molvi Hazrat Yousaf resident of Sharkool Post Office Chattar Plain Tehsil & District Mansehra... ..........Petltloncr Versus

-Il Government of KPK through Secretary Education Khyber Pakhhrnkhwa, Peshawal, 2l Director Education KPK, Peshawar. 3l District Education Olficer (MaIe) Mansehra.....,.............Rerpoadent:

CONSTITTTTIO.It PSTITION I'NDER

ARTICLE 199 OF THE CONETITUTIOI{

OF ISLIIMIC REPI'BLIC OT PAISSTAN.

19?3 FOR A OI{ TO TIIE

EFFE T THAT REFUSAL OF

RESPOITDLilA NO. 3 TO APPOIITT

ER BPS.12 ON THE

GROI'ND OF OVER AGE AI{D CHAI{GE

OF ADDRESS IN CNIC I8 WRONG.

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R I'AC:rS. FATCNIUL. ARBITRARY AIID

I'N COT{STITUTIOI|AL

Fq o I c E.ncn ?.th tJ I Or c16 Rerpectfully Sheweth:

1)That, respondent No' 3 advertised some posts in Education

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JUDICIAL DEPAR t

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JUDGMENT SHEET

0 rTAB 19 WRIT PETITION No. 1177-A/2022

Date of hearing: .....29.03.2023

Petitioner/s (Ubaid-ur-Rehman) By Mr. Dildar Ahmad Lughmani, Advocate.

Respondents (Govemment of Khyber Pakhtunkhwa through Secretary, Education Khyber Pakhtunkhwa Peshawar By Mr. Sajid-ur-Rehman Khan, AAG.

* t* *,t t(* * ** * * * i( * t !t * *'t FAZAL SUBHAN. J.- Through this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (constitution) the petitioner have prayed as following: - " lt is, therefore, most humbly prayed that on acceptance of the instant writ petition lhe respondent No. 02 may please be directed to remove the entries of non malching of address in both the CNICs of the petitioner from merit list and after giving age relsxalion of about two years to the c o9y petitioner, appoint the petitioner as PST 1( \rc rtrlie dto be B ETA BPS-|2 in Govt. Primary School Sharkool union council Chattar Plain or in any other $i school of union council Chattar Plain Tehsil Itd 0drclt $,!n c or,

al S. tEr & District Mansehru which is near to the residence of the Petitioner or any olher relief for r+,hich the petitioner is entitled keeping in view the facts and circumstances of the case ".

2.Facts of the instant writ petition are that respondent No. 3 advertised some posts in Daily Mashriq and petitioner being eligible applied through online for the post of PST (BPS-12) and appeared in test and obtained 115.34 marks and he was placed at Serial No.ll of the merit list. That petitioner is permanent resident of Village Sharkool, Revenue Estate Laachi Mang, Post Office Chattar Plain, Tehsil & District Mansehra and all his other family members are also residing there. That the petitioner passed his SSC examination from Govt. High School Garhi Habibullah, Tehsil Balakot District, Mansehra and he was issued Character Certificate with same address and Secretary, Union Council, Lumberdar Village Sharkool and Chairman Village Council Sharkool Chattar PIain also issued Permanent Resident Certificate (PRC) to petitioner. That his icd lo bG fr Ue c oPY

CC R

e XAMI N domicile prepared in the year, 2001 is also of s? [? Village Sharkool Chattar Plain, Tehsil & District Calrn Ara irrrcr ?!th.t al Hrtli t. , t tra otdtlt Mansehra and marriage of petitioner was also solemnized in same viltage. Similarly, the property of father of petitioner is also situated in the same Revenue Estate. That the petitioner earlier fited

writ petition which was disposed of by this court being premature. That now respondent No. 3 has finalized the merit list and appointed the candidates. That there are 14 posts of PST (BPS-

12)in Union council Chattar Plain, Tehsil & District Mansehra and respondent No. 3 appointed only 09 candidates. That the respondents are legally bound to appoint the petitioner on the vacant post. Feeling aggrieved from the refusal of respondents to appoint petitioner, he filed instant writ petition.

3.On filing the writ petition, para wise comments were called from respondents No. I to 3 which were duly filed.

a 4. Arguments of leamed counsel for petitioners and learned AAG heard and record perused.

5.On consideration of available record, it is evident that the respondents published an advertisement to fill the posts of Primary School to b e lruc c oPY Teachers (BPS-12) wherein a cut of date is ce rt ilr d e x A tJ\ mentioned as 15.12.2021 and it was specifically s1 Iul Cr*r $,9h crlln 1 r€ mentioned in the general conditions that after the l. t cut off date change in the permanent address would not be accepted. The posts of Primary

School Teachers were to be filled from Union Council's quota. The new CNIC issued to the petitioner on 21.06.2022 shows his pernanent place ofresidence as Sharkool, Post Office Chattar Plain, Mansehra, however, the new CNIC was procured after cut off date of 15.12.2021 and though petitioner stood at Serial No. I I of the merit list for Chattar Plain but he was not selected due to change ofaddress in the CNIC after cut off date. Section 3 of the Khyber Pakhtunkhwa, Appointment, Deputation, Posting and Transfer of Teachers, Lectures, Instructors, and Doctors, Regulatory Act, 20ll has laid criteria for appointment of Primary School Teachers, which is reproduced for convenience sake:-

"3. Appohtment, postlng and transler of p mary school teachers.-

(l)The vacancy of primary school teacher shall be filled in from the candidates belonging to the Union Council of their permanent residence mentioned in their c opy Computerized National ldentity Card and {!, I { {ruc {-a ,.,.' e Af',rlN domicite, on meril ond if no eligible candidate in that |Jnion Council is available where the s1 [t school is situale, such aPpointmenl shall be la !r.rD rtlh con €va t6nl!. rr l. l1 made on meril from amongst eligible candidales belonging to the adjacent Union Councils: Provided that on availability of a vacancy, a primary school leacher, appointed

from adjacent Union Council, an referred to in lhis sub-section, shall be truns/erred against a vacant post in a school of the Union Council of his residence within a period offifieen doys.

(2)Upon marriage, the primary school teacher on requesl may be transferred to the school in the Union Council, where his spouse, ordinarily resides, subject to the availab ility of vacancy.

@ The primary school reacher shall be transJbrred to other school within the Union Council on complelion of tenure as may be prescribed subject to the policy of ralionolization for mainlaining ce ain student teachers ratio, if any.

(4)Governmenl shall, within a period not exceeding one year of lhe commencement of this Act, make arrangement lor posting of all the primary school teachers appointed prior to coming into force of this Act, lo lhe schools of lheir respective Union Councils or adjacent Union Councils, as tlre case may be".

6 The said rule has prescribed that the post of Primary School Teacher is to be filled from the candidate of union council of their permanent residence mentioned in their CNIC and domicile, on merit. The petitioner has obtained fresh CNIC c dto be Tt uc CoPY EXA MINE after the cut off date. Similarly, the permanent 07 APR resident certificate from Secretary Union Council lld l,ct P.rh.r.r HrEl' C.u'tttc va Ooo':

u.rd.! !. and Chairman Vitlage Council were also issued much later then the cut off date while his old CNIC issued on 20.10.2016 shows his address of

Mohallah Khwajgan, Ghari Habibullah. Thus, the petitioner was not eligible to be appointed as Primary School Teacher on the closing date, having permanent address of Ghari Habibullah, hence, he cannot claim his appointment against the post of Primary School Teacher falling in union council Chgattar Plain.

7.This being the statutory position, the petitioner has been unable to convince us about his eligibility for appointrnent as Primary School Teacher for union council Chattar Plain, hence, his petition being without any substance is dismissed.

Anno unced 2

Dak of writing Judgement

XUDGE

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