Muhammad Imran Vs Govt. of Khyber Pakhtunkhwa

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT, D.I.KHAN BENCH

(Judicial Department)

Writ Petition No.312-D with C.M.No.1217-D of 2017 Muhammad Imran Versus Govt: of Khyber Pakhtunkhwa through Secretary Forest, Peshawar and four others

JUDGMENT

Date of hearing 26.3.2019

For Petitioner: Muhammad Waqar Alam Advocate For respondents: Mr. Adnan Ali, Asstt: A.G and M/S Sanaullah Shamim Gandapur and Jamal Abdul Nasir Awan Advocates

S.M.ATTIQUE SHAH, J.- Through the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner Muhammad Imran has challenged the appointment of respondents No.4 and 5 as Forester made through letters No.70 & 71 dated 24.3.2017 and instead seeks his appointment against the post of Forester (BPS-10) being most eligible and suitable candidate.

2.As per contents of the petition, respondent No.3 floated an advertisement in different newspapers for the post of Forester BPS-10. The petitioner being qualified for the post, applied and was short listed for interview but he was ignored and respondents No.4 and 5 were appointed on 24.3.2017, hence the instant petition.

3.The learned counsel for the petitioner vehemently argued that respondents No.4 and 5 were low in merit than the petitioner. He further contended that respondent No.5 is the real son of respondent No.2, an Ex-Divisional Forest Officer, D.I.Khan and his B.A degree is also fake, thus he was not eligible for appointment.

4.On the contrary, the learned Asstt: A.G and learned counsel representing respondents No.4 and 5 seriously controverted the arguments of learned counsel for the petitioner and contended that the appointments were made in accordance with the prescribed criteria, policy and by observing all the codal formalities. They further contended that the petitioner was over-age candidate and low in merit than respondents No.4 and 5, therefore, he was not eligible for appointment.

5.We have heard the arguments of learned counsel for the parties and have gone through the record.

6.The learned counsel for the petitioner vehemently contended that father of respondent No.5 was Chairman of the selection Committee, therefore, he favoured his son and appointed him. The respondents have annexed with their comments the office order dated 03.3.2017 issued by father of respondent No.5 in his capacity as Divisional Forest Officer, D.I.Khan regarding constitution of departmental promotion/selection committee being its Chairman as

Divisional Forest Officer. The respondent No.5, present in Court, could not controvert the stance of the petitioner, rather he candidly accepted that at the time of his appearance before the selection committee, his father was present and he was heading the said committee. Norms of justice and rules of transparency demanded that he should not have acted as Chairman of the committee before which his son was appearing, thus, his association in the selection process has marred such selection because being father of respondent No.5, his opinion could not remain uninfluenced/unbiased nor the same could be held to be independent and transparent. It is also a settled law that no one should be a judge of his own cause.

The Chairman could not participate in the meeting in which the case of his real son/respondent No.5 was considered. His presence in the said meeting was not a mere irregularity but an illegality which vitiated the whole proceedings culminating in the appointment of respondent No.5.

7.During the course of arguments on 13.02.2019, the learned counsel for the petitioner referred to an application of petitioner dated 08.10.2018 addressed to Controller of Examinations, Gomal University, D.I.Khan qua verification of B.A Degree of respondent No.5 and the note of Controller upon copy of the decree as ‘not verified’ and stated that the degree of respondent No.5 was fake and fictions. In such view of the matter, respondent No.3 present in Court, was directed to get verified the decree of respondent No.5 from the

concerned authorities and submit report. He has submitted his report alongwith the report of Controller of Examinations, Gomal University, D.I.Khan dated 19.02.2019, according to which, the degree has not been verified for the reason that marks of respondent No.5 in BA Part-II have been changed by tampering from zero to 24 and his result was declared and shown as pass by obtaining 264 marks whereas he is fail in B.A. According to advertisement, the basic qualification for the post of Forester was F.Sc second division with BA/B.Sc, meaning thereby that respondent No.5 was not eligible for appointment as his B.A. Degree was fake. Respondent No.5 had committed fraud by getting appointment through a fake and bogus degree, therefore, neither any law nor in equity relief could be granted to such errant, whose hands were sullied with improper conduct. In such circumstances, any leniency would amount to encouragement of foul play and unfair means which shall destroy the fabric of the society, therefore, it would be desirable that such appointee be weeded out so as to create confidence in the deserving. In this behalf, reference can be placed on the case of Deputy District Officer (Revenue) Kasur and another. Vs. Muhammad Munir Sajid (2013 SCMR 279) wherein it has been held that:- “The Tribunal holding that the respondent was even otherwise eligible for selection on the basis of Matric certificate and thus his F.A was not relevant has lost sight of the fact that this would have entitled the respondent to additional marks, which in fact he was granted. The main question here is the conduct

of the respondent by producing a fake F.A certificate in his testimonials, knowing well that it boosted his chances, disentitled him to be even considered for selection.”

Since respondent No.5 was lacking prescribed qualifications and his father was also the Chairman of selection committee which is against the principles of good governance and transparency, therefore, he was not entitled for appointment as Forester. Admittedly, the petitioner was at serial No.3 of the merit list and on exclusion of respondent No.5, the petitioner being at serial No.3 of the merit list becomes entitled for appointment as Forester. So far as the stance of respondent No.3 regarding the petitioner being over age is concerned, his case for relaxation of age can be referred to the competent authority, if it is beyond the competence of appointing authority, as per rules governing the subject.

8.For the reasons mentioned above, this petition is partially accepted, the appointment order of respondent No.5 dated 24.3.2017 is declared illegal and without jurisdiction and the respondents are directed to appoint the petitioner as Forester (BPS-10) against the seat of respondent No.5 immediately, of course, after getting age relaxation if it is beyond the competence of appointing authority.

Announced.

Dt:26.3.2019. JUDGE Habib/*

JUDGE

(DB)

Hon’ble Mr. Justice S.M. Attique Shah Hon’ble Mr. Justice Shakeel Ahmad