Fakhr uddin Vs Government of Khyber Pakhtunkhwa throgh secretary and others

Judgment Sheet

PESHAWAR HIGH COURT, PESHAWAR

( JUDICIAL DEPARTMENT)

W.P No: 1663-P of 2020 Fakhr ud Din and 34 others.

VERSUS

Govt. of KPK through Secretary

JUDGMENT

PRESENT.

For Petitioners. Mr. Saadat Ullah Khan Tangi. Advocate.

For Respondents. Nemo

Date of hearing : 01.09.2020

MUHAMMAD NAEEM ANWAR, J:- By invoking the

constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have prayed for the following relief.

(i)Notifications impugned in the instant writ petition may kindly be declared as illegal without lawful authority, void ab-initio, hence ineffective upon the rights of the petitioners.

(ii)The respondents may kindly be directed to adjust the petitioners in their services.

(iii)Any other remedy not specifically prayed for but to which petitioners are entitled, in the circumstance of the case may also be granted to the petitioners.

2.The requisite facts for disposal of the instant petition, as per the contents of petition, are that the petitioners were appointed as Teachers in Working Folk Grammar Schools in the morning shift by the respondents after fulfilling the codal and legal formalities.

They were, later on, transferred in the second shift, where they had performed their duties. It was alleged in the petition that through different notifications, though, the services of the petitioners were terminated, but, later on, were reinstated in

services. It was also averred that the respondents have once again terminated them from their services without giving them any notice, by which their fundamental and legal rights have been violated and, as such, they have got no other appropriate and efficacious remedy filed the instant petition.

3.Learned counsel for the petitioners while making reliance on the judgment of this Court titled Muhammad Younas & others versus Federation of Pakistan through Secretary Ministry of Overseas Pakistani & Human Resource Development (HRD) & others, rendered in W.P No. 347-B of 2016 dated 25.10.2018 contended that case of the present petitioners and that of the petitioners in the above referred writ petition is at par with each other, therefore, the petitioners deserve to be treated alike. He further contended that termination of the petitioners’ services, when valuable rights have accrued to them for having remained in service, are against the law and the fundamental rights as protected by Chapter-II of the constitution.

4.Arguments heard and record perused.

5.Though, as per Para No.1 of the petition, all the petitioners were appointed as Teachers in the Working Folk Grammar Schools in the morning shift by the respondents but the record speaks otherwise, as out of the thirty five (35) petitioners, only fourteen (14) were appointed as Teachers, while there is no record regarding appointments/terminations of the petitioners No.16 and 20, whereas rest of the nineteen (19) petitioners were appointed as Aya, PTI, Naib Qasid, Junior Clerk, Electrician, Sanitary Worker, Mali, and Driver. The detailed description with regard to the

appointments, terminations and their job descriptions is tabulated as under: -

S.No Petitioner’s Date of Date of Job Description Posted at No. appointment Termination 1 1 20.07.2012 17.06.2013 Teacher for working Folks Hattar. Grammar Higher Secondary School.

2 2 14.02.2012 25.11.2013 Teacher in Working Folk Takht Grammar School. Bhai 3 3 31.03.2012 25.11.2013 Teacher in Working Folk Takht Grammar School. Bhai 4 4 16.03.2012 25.11.2013 Teacher in Working Folk Thall Grammar School. Wazir.

5 5 16.03.2012 25.11.2013 Aya in Working Folk Thall Grammar School. Wazir 6 6 25.08.2011 25.11.2013 Teacher in Working Folk Swat Grammar School.

7 7 14.02.2012 25.11.2013 Teacher in Working Folk Takht Grammar School. Bhai 8 8 05.04.2012 16.09.2013 Teacher in Working Folk Bannu Grammar School.

9 9 10.03.2012 25.11.2013 PTI in Working Folk Kohat-II Grammar School.

10 10 16.01.2013 25.09.2013 Naib Qasid Monotec Peshawar .Institute 11 11 31.10.2011 25.11.2013 Subject Specialist in Swat Working Folk Grammar School.

12 12 01.10.2012 25.11.2013 Junior Clerk in Working Srao Folk Grammar School. Norang 13 13 19.06.2012 Security Guard working Hakim City 352 Family Quarter Abad 14 14 12.10.2012 Electrician in worker City Hattar 360 Family Flats .

15 15 07.09.2912 25.11.2013 Naib Qasid in Working Kohat-I Folk Grammar School.

17 17 21.01.2013 29.05.2013 Teacher in Working Folk Shahbaz Grammar School. AhmedKh el Bannu.

18 18 21.01.2013 25.09.2013 Teacher in Working Folk Shahbaz Grammar School. AhmedKhel Bannu 19 19 14.03.2012 25.11.2013 Sanitary worker in working Kohat-II Folk Grammar School

21 21 29.03.2012 25.11.2013 Mali in Working Folk Thall Grammar School. Wazir 22 22 29.03.2011 08.07.2013 Naib Qasid Zonal Office Haripur 23 23 27.09.2012 25.11.2013 Mali in Working Folk Karak Grammar School.

24 24 27.09.2012 ----- Driver in working Fold D.I. Khan Grammar School 25 25 28.03.2011 08.07.2013 Sanitary Worker Junior Haripur. upgraded school.

26 26 25.11.2011 25.11.2013 Mali Worker City TakhtBhai 27 27 ---- 08.07.2013 Mali . D.I. Khan 28 28 21.04.2011 25.11.2013 Teacher in Working Folk Karak Grammar School.

29 29 27.04.2011 25.11.2013 Mali in Working Folk Karak Grammar School.

30 30 02.07.2012 ----- AYA in Working Folk D.I. Khan Grammar School.

31 31 16.08.2012 08.07.2013 Electrician City 384 at Gadoon Pagage-II. Amazai 32 32 16.09.2012 16.09.2013 Teacher in Working Folk Bannu Grammar School.

33 33 25.04.2012 23.10.2014 Teacher in Working Folk Bannu Grammar School 34 34 20.07.2012 25.11.2013 Teacher in Working Folk Tank. Grammar School.

35 35 Repeated the same ptr at Sr.No.17

6.Record further depicts that no order by which the petitioners were reinstated, except the petitioner No.1, who was reinstated on 21.08.2013, subsequently, was terminated on 25.09.2013, was placed on file. Similarly, nothing is available on record which could show that after his alleged reinstatement, he has ever marked his attendance in any register. So far as, the judgment delivered in W.P No.347-B of 2016 whereby through consolidated judgment almost 39 writ petitions were decided is concerned, it is pertinent to mentioned that petitioners of those petitions, though, were terminated but they were, later on, reinstated and, thus, were performing their duties at their place of posting in their respective schools. They had properly substantiated their cases by placing on file the record of different meetings held on different dates wherein the fate of regularization of their services were discussed, but, here in the instant petition, the case is altogether different as the present petitioners were alleged to have been appointed as Teacher and out of thirty five ( 35) petitioners, only fourteen ( 14) petitioners were Teachers while rest of the petitioners were appointed on different posts, the description of which has been given in the last preceding para. It is also pertinent to mention here that the judgment, referred to above, passed in WP No.347-B of 2016, whereby the other connected writ petitions were also decided, were filed in the year 2016, 1017 and 2018 while the instant petition was filed on 25.01.2020, and that too, without proper documentation, disclosure of fact and cause of action and that without any plausible explanation for filing the petition in the year 2020,

irrespective of this fact that almost all the petitioners were terminated in the year 2013.

7.The doctrine of “delay and laches” being an equitable relief is based on the principle that every person taking equitable relief must not sleep over his right, if he does so, delay will defeat him. It is based on the well-known doctrine of equity “delay defeats equity”. The petitioners were terminated somewhere in the year 2013 but they, after awaking from deep slumber, filed the instant petition on 2020, after the delay of about six years, therefore, the petition is also hit by the principle of “delay or laches”, which is based on the maxim “Vigilantibus non dormientius aequitas subvenit,” which means equity aids the vigilant and not the ones, who sleep over his rights. It refers to the unreasonable delay enforcing a legal claim. “Sleeping over his rights” is, therefore, such a right which is no longer available as it is barred by the latches.

8.While discussing the principle of latches in juxtaposition with equitable and discretionary relief, the apex Court in a case titled Member (S & R) Chief Settlement Commissioner Board of Revenue versus Syed Ashfaque Ali as reported in (PLD 2003 SC 132) has held that:

“On account of laches in setting the machinery of law into motion they have indeed disentitled themselves to the exercise of discretionary and equitable jurisdiction, which in all cases must be exercised in order to foster the ends of justice and to right a wrong. Writ jurisdiction is undoubtedly discretionary and extra-ordinary in nature which may not be invoked by a party who demonstrates a style of slackness and laxity on his part. Furthermore, if a party does not choose legal remedy available under the Statute strictly speaking Constitutional jurisdiction of the High Court cannot be exercised in his favour. Law is well- settled that a party guilty of gross negligence and laches is not entitled to the equitable relief.”

9.Apart from the above, we have also noticed that the petitioners have not given the details that after joining their duties for how much period they performed their duties and from which particular date their salaries were stopped and these are the questions which cannot be resolved by this Court by invoking the constitutional jurisdiction under Article 199 of the Constitution and, similarly, the question of delay would have to be examined with reference to the facts of each case. Wisdom is derived from the principle as laid down in a case titled Ardeshir Cowasjee Versus Karachi Building Control Authority (KMC), Karachi

(1999 SCMR 2883).

10.So, keeping in view the above legal as well as factual position, especially, when the petitioners have slept over the matter for more than six years in seeking the redressal, cannot be allowed to reap the benefit of their own laxity and, similarly, cannot get any benefit of the dictum laid down by the Hon’ble Supreme Court in a case titled Government of Punjab, through Secretary Education, Civil Secretariat Lahore Versus Sameena Parveen, (2009 SCMR 1). Viewed in the above perspective, this petition is dismissed not only on the ground of being hit by the doctrine of ‘laches’ but also on the ground of being involved an intricate question of facts as well.

Announced: JUDGE

(Ayub)

JUDGE

Hon’ble Mr. Justice Lal Jan Khattak.

Hon’ble Mr. Justice Muhammad Naeem Anwar.