Munawar Khan Vs senior Member Board of Revenue Government of KP, Peshawar and others

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PESHAWAR HIGH COURT, PESHAWAR

ORDER SHEET

Date of Order/ Order or other Proceedings with Signature of Judge.

05.04.2024 WP No. 402-P 12023 with IR

Present: Mr. Muhammad Irshad Mohmand, Advocate, for the petitioner.

Mr. Yasir Khalid, AAG, for the respondents along with Irfanutlah Shams Superintendent DC Office Charsadda.

SYED ARSHAD ALI. J.- Munawar Khan, the petitioner has filed the instant constitutional petition praying that: "It is therefore prayed that on acceptance of this writ petition, the respondents be directed to appoint the petitioner as Junior Clerlr/ or on any other post according to his qualification in the son quota reserved for employees retired on medical ground under Rule l0(4) of KPK APT Rules 1989 and the action/inaction of respondents by not appointing the petitioner in said Quota be declared as illegal, uniustified, unlawful, without lawful authority, based on mala /ide and the respondents are legally bound to appoint the petitioner as Junior ClerHor on any other post according to his qualification being the son of employee retired on medical ground".

2, Brief facts of the case are that father of the petitioner was appointed as Naib Qasid in the office of respondent No.3/Deputy Commissioner Charsadda and retired from service on medical ground vide order dated 03.02.2022. It is the claim of the petitioner that he having Bachelor of Science degree in Chemistry as well as Diploma of Information Technology and certificate o 4 typing speed & short hand course, submitted an application to respondent No.3 for his appointment under Rule 10(4) of the Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion & Transfer) Rules, 1989 ("APT Rules"), but to no avail; hence, this writ petition.

sc NED 3. Arguments heard and record perused.

4.It is alleged in the petition that father of the petitioner was appointed as Naib Qasid in the office of Deputy Commissioner, Charsadda in the yoffi, 1982 and after serving the department for 35 years; due to illness he was unable to perform duties, therefore, his case was referred by the Deputy Commissioner, Charsadda to the Standing Medical Board for his premature retirement on medical ground.

5.The Standing Medical Board ("Board") had confirmed the ailment of the father of the petitioner and thus the Board had recommended for his premature retirement. Therefore, on retirement of the father of petitioner, the petitioner is entitled to be appointed against a post commensurate to his qualification in terms of sub-rule (a) of Rule-l0 of the APT Rules.

6.The respondents in their comments have not denied the entitlement of the petitioner for appointment in terms of sub-rule (a) of Rule-l0 ibid, however, it is their assertion that the petitioner would be appointed on his tum and in this regard a seniority list has been maintained in the office.

7.It is not the first case which has come up for hearing before this Court that when a civil servant reaches the age near to superannuation, he opts for retirement on medical ground rather we have come across a good number of cases that it has become a common practice in this part of the Province that the civil servants when they are near to the age of superannuation, opts for retirement on medical grounds with an object to get his son appointed in terms of sub-rule (a) of Rule-lO ibid. We have also noticed that then unnecessary litigation starts for the appointment of his child in terms of the Rules ibid burdening the courts.

8.Hence, we deem it appropriate that sub-rule (a) of Rule-l0 of the APT Rules requires an interpretation because the verbiage omay' of sub-rule (a) would show that the appointing authority appoint one of the child of a person, who dies while in service or

incapacitated during service. In Khyber Pakhtunkhwa, the goveming law for appointment, and determining the terms and conditions of a civil servant is the Khyber Pakhtunkhwa Civil Servant Act, 1973 ("Act"). It is provided in section 5 of the Act that appointment to a civil service of the Province or to a civil post in connection with the affairs of the Province shall be made in the prescribed manner by the Governor or by a person authorised by the Governor in this behalf; whereas section 13 of the Act envisages for retirement from service which reads as under:- "Retirement from serttice.- (1) A Civil Servant shall retire from service on the complet:ion of sixtietn 6dh1 year of his age.

(2)A Civil Servant may opt to retire early from service, arter completion of twentyfive (25) years of qualfying service or attaining the age ofJiftyfive (55) years, whichever is later.

(3)Notwithstanding anything contained in sub-sections (l) and (2), the competent authority may in the public interest, direct that a Civil Servant rnay retire from service, from such date, as may be determined by the cornpetent authority, after he has completed twenty (2) years of service, qualifying for pension or other retirement benefits, in the manner as may be prescribed:

Provided that no direction under this sub-section shall be made until the Civil Servant has been informed in writing of the grounds on which it is proposed to make the direction, and has been given a reasonable opportunity of showing cause against the said direction.

Explanation: In this section, the expression "competent authority" means the appointing authority prescribed in rule 4 of the Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, I 989 ".

g, Similarly, the Khyber Pakhtunkhwa Civil Servants Pension Rules, 2021(,,Pension Rules") provides a length of service/age retirement as well as retirement of a civil servant due to mental infirmity or permanent incapacitation. The relevant rules are reproduced as under:

Rule 5.

Retiring pension- (1) A retiring pension is granted to a civil servant, who not being eligible for superannuation pension and

(a)opts to retire after twenty five years qualifying service oi attaining the age of fifty-five years' whichever is later; or

(b)is compulsory retired from service on such date as the authori m direct

under clause (a) of section 13 of the Act; or (c) is compulsory retired from service by the competent authority to remove him from service on grounds of inefficiency, misconduct or Rule 6.

Invalid pension (l) An invalid pension is awarded to a civil servant on retirement from Government service, before reaching the age of superannuation, who, by bodily or mental infirmity, is permanently incapacitated for further service on production of a Medical Certificate, prescribed at Pension Form

-I.

10.We have minutely perused the Act nowhere it envisages for earmarking any quota for any class of the civil servants for appointment. However, in the APT Rules, the rule framers have ea(narked quota, inter alia, for a civil servant who dies during services or is incapacitated while in service. The relevant rule to the present controversy is reproduced as under:

10.Appointment by Initial Recruitment.-(1) Initial appointment to posts in various pay scales shall be made.

(4)lil'here a civil serttant dies or is rendered incapacttated or invalidated permanently during service or retired on medical board, notwitltstanding the procedure provided for in sub-rule (2), the appointing authority may appoint one of the children of such civil servant or if the child has not attained the age prescribed for appointment in Government service, the widow or wife as the case may be of such civil servont, to

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a posts in any of the basic pay scales 3 to I in Provincial i cadre post and basic pay scales to 12 in District cadre posts:

Provided that the child or the widow or wife, as the case may be, possesses the minimum qualification prescribed for appointment to the Post:

Provided further that if there are two widows or wives of the deceased civil servant, as the case may be, preference shall be gwen to the elder widow or wife:

Provided also that appointment under this sub-rule is subject to availability of a vacancy and if more than one vacancies, in dffirent pay scales, are available at a time and 4 the child or the widow or wife, as the case may be, possesses the qualifications eligible for appointment in more than one post, such child or the widow or wife, as the case may be, shall ordinarily be appointed to the post carrying higher pay scale:

Provided also that the provision of this sub-rule shall not be applicable to posts faUing within the purview of the Commission".

11.The original text of sub-rute (a) of Rule-10 of the APT

Rules only envisaged for employment of a child of a civil servant, who dies during service, however, the said provision was amended through Notification No. SO (R-VD E&AD/1-3.2015 dated 19.04.2016, which provides that a civil servant, who is permanently invalidated or incapacitated to serve and retire on medical ground, is also eligible for the said appointment. The verbiage of sub-rule (a) is otherwise very clear that the appointing authority 'may'appoint one of the child of a civil servant who dies during service or is rendered incapacitated against any post basic pay scales 3 to 11 in Provincial cadre or in basic pay scales 3 to 12 in District cadre.

12.The question whether it is mandatory upon the appointing authority to appoint a child of a civil servant, who dies during service or is incapacitated during his employment or it is only directory providing a discretion to the appointing authority to appoint any child of a civil servant, as stated above, keeping in view fact and circumstances of the case. No doubt that it is well settled that the words 'may' and 'shall' in legal phraseology are interchangeable, depending on the context in which they are used, and are not to be interpreted with the rigidity which is attributed to them in ordinary parlance.l

13.Similarly, it is well settled that if the language of the statue, considered as a whole and with due regard to its nature and object oshall' and 'must' reveals that the Legislature intended the words to be directory, they should be given that meaning. Similarly, 4 under the same circumstances, the word 'may' should be given a mandatory meaning, and especially where the statue concerns the rights, and interests of the public, or where third persons have a claim de jure that a power shall be exercised, or whenever something directed to be done for the sake of justice or the public good, or is necessary to sustain the statute's constitutionatity.2

(PLD 1972 SC 326)

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Muhammad Saleh vs. The Chief Settlement Commissioner, Lahore and 2 others The Construction ofStatutes (2014 Edition) by Earl Theodore Crawford

To sum up, in determining the mandatory or directory nature of the command of the statute, the form of words used may give initial indication but finally the interpreter must ascertain the intention of the legislature. There is a long catalogue of such words which are used in enabling stafute such as o^ y,,,must', ,it shall be lawful', 'shall', 'shall be the duty', 'authorized,, ,ought,, 'shall have power', 'thinks necessary', 'consider necessary,, 'fairly', 'bone fide', 'having regard to', 'should', 'as he deems fit,, etc. In interpreting these words in the context of they being permissive or compulsory the objective of the statute, the purpose and the nature of things required to be done which are indicated by the legislature have to be taken into consideration.3 14. In view of the above, it appears that the language of Rule 10(4) of the APT Rules is absurd and it does not classiff/ structure the discretion of the government/ appointing authority for the appointment of a child of a civil servant (dying or incapacitated during service) and for that reason, this provision is oftenly misused. The essential question is that the appointment of a child of a civil servant in preference to the other candidates who are competing on merit is obviously discriminatory. If a civil servant reaches the age of 55 years or he has served the department for 25 years whichever is earlier, he is entitled to a pension in terms section 13 of the Act. The Act does not provide for retirement of a civil servant on ailment, however, the Pension Rules (Rule-6), as stated above, envisages for premature retirement on medical ground. Similarly, the qualiffing service for pension under Chapter-Il (3) of the Pension Rules is 10 yeaxs. There may be certain circumstances where a civil servant before reaching the age of 55 years due to invalidation may opt for retirement, however, when any civil servant reaches the age of 55 years or he has 25 years of qualiffing service then in such circumstances he is not Understanding Statutes (Fourth Edition) by S.M Zafar

v entitled for retirement on medical grounds. The object of the Act envisaging a period of retirement is very obvious as by the age 55 years a civil servant has been given an option to retire from service. Retirement on medical grounds is in extraordinary circumstances provided under the Pension Rules.

15.Thus due to the said anomaly in law the premature retirement on medical grounds has oftenly been misused which leads to discrimination in appointment against the quota as provided under Rule 10(4) of the APT Rules. we are clear in our mind that the language of Rule 10(4) of the APT Rules is not mandatory, however, the appointing authority may in hardship cases when in the case of incapacitation of a civil servant holds an opinion that the bereaved family would not be entitled to any pension then by applying the provision of Rulel0(4) of the APT Rules it may appoint a child of an incapacitated civil servant so that the bereaved family can be compensated to live their life in a respectable manner. However, the appointing authority is not bound to appoint the child of an incapacitated employee in all the circumstances as the same would obviously be discriminatory.

16.In the present case too it appears that the father of the petitioner had opted for retirement after the age of 55 years and has also received full pension, hence we are not inclined to hold that the present petitioner is entitled to any appointment in terms of Rule 10 (4) of the APT Rules.

17.In view of what has been stated above, we hold that: i. when a civil servant who is entitled to pension in terms section 13 of the Act that is to say he has completed twenty five (25) years of qualiffing service or attained the age fifty five (55) years shall not be entitled to retirement on medical ground.

ii. sub-rule (a) of Rule-IO of the APT Rules is discriminatory and thus requires to be suitably amended by the government

v to cater for only the genuine cases for appointment of the children/wife of a civil servant who is incapacitated while in service.

18.This petition is disposed of in the above terms. Copy of this judgment be sent to worthy Chief Secretary and Secretary Establishment of the Government of Khyber Pakhtunkhwa for doing the needful.

JUDGE

JUDGE

Date of hearing and announcement ofjudgment 05.04.2024

Date of preparation and sigting of Judgment 21.05.2024

D.B (Ilon'ble Mr. Justice Shakeel Ahmad & Hon'ble Mr. Justice Syed Arshad Ali) Mahmood Shah, SSS