Salah-ud-Din Vs Govt of KP

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT. BANNUBENCH

(Judicial Department) Writ petition No. 463-812015

Salah-Ud-Din son of Mir Azad rlo Sparka W azir Sadraoon Tehsil Domel District Bannu.. ..... Petitioner.

Versus.

Govt of Khyber Pakhtunkhwa through Secretary Revenue & estate and 4 others ... . ....Respondents

Present:

Petitioner by: Mr. Anwar Ul Haq, Advocate.

Respondents by: Mr. Qudratullah KhanGanclapur, AAGAlong with Zulfiqar Khan AC Bannu.

Date of hearing: 20.10.2021.

JUDGMENT

MUHAMMAD NAEEM ANWAR,J.- The petitioner, Salah ud Din, has filed the instant petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, seeking issuancb of a writ to the effect that being qualified entered in the registered of Patwar since 201I is entitled for relaxation of his age and appointrnent as Patwari in consonance with Para- No. 3.11 of Land Record Manual

02.Learned counsel for petitioner contended that respondents are legally bound to follow the provisions of Par No.3.ll of land record manual and until para 3.6 of the manual is in existence and proper rules for the appointment of Patwaris are framed their appointment shall be made from those who are named in the registered managcd for each 'l'ehsil in accordance with their merit and order. In suppo( of his contentions, hc

placed reliance on the judgments of this Court rendered in W.P No.93l-B of 2016 dated 17.01.2018 and of the apex Court in case titled Muhammad Aamir Khan Vs. Government of Khyber Pakhtunkhwa Through Senior Member Board of Revenue and others (2019 SCMR 1021). On the other hand, learned AAG contended that Rules for the appointment of Patwaris have already been framed and now they are lrcing appointed in accordance with the procedure as laid dolvn in APT rules thus, petitioner cannot be appointed merely on the ground that he has completed the patwar course and has been entered in the registered.

03.Arguments heard and record perused.

04.The foundation of petitioner's case is the judgment of this Court in W.P No.93l-B dated 17.01.2018 and the provisions of Para3.ll of [.and

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Record Manual. In the former, it appears the learned counsel for the petitioner in the instant case was representing the petitioner of referred to above petition and even at that time this Court rvas assisted with reference to Para No 3.1 I of the Land Record Manual because sub para 2 of the para

3.I 1 was reproduced in the judgment of this Court. However, Para No 3. I I &,3.12 have been omitted vide circular No. 6189, Land Record Manual, dated lSth October, 1989, since then it is no more the part of the book.

Thus, neither at the time of hearing of the referred writ petition nor today the learned counsel for petitioner is assisting the Court properly. When a particular para does not exist for almost tlree decades then how could referencc of the same be given and prayer could bc sought on the basis of a

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provision which has already been omitted. Secondly, the larger bench was constituted in order to resolve the controversy and this Court in Wril Petition No.I29/2012, has held that appointment of Patwari(s) shall be made after conducting test and interview and dispatching the Merit List.

Similarly, in Writ Petition No.278 of 2012 (D.I Khan Bench) issued direction that such appointments shall be made according to the position and seniority in the Register of Patwari Candidates. Thus, the Assistant Secretary Establishment in a letter, addressed to the Registrar of this Court, requested that the controversy arising out of the two judgments may be cleared, upon which the Honorable Chief Justice (Mr. Justice Waqar Ahmad Seth, as then he was) has consiituted a Larger Bench lor determination as to whether the appointment of Patwari is to be made in \ accordance with Paragraph 3.6 of Land Record Manual or otherwise. The Larger Bench, vide its judgment dated 04,02.2015, rendered in Writ Pctition No. 3398 of 2014, decided that "till lhe qmendment in the rules, resn ' ''s are bound to moke a-^nt''- ents in accordance wilh the existing rules and policv which governs the sopoinlment of Patwori".

(Underlined and bold by us for emphasis).

05.Moreover, after the decision of larger bench the new amendments in the rules were notified on 25th of November 2016 in the official Gazette by the Khyber Pakhtunkhwa, Revenue and Estate Department, in consultation with the listablishment and Finance Departnienl, Pcshawar, regarding thc method of recruitment, qualifications and other conditions as specihed in

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eolumns No. 3 to 7 of the Appendix to the said notification, whereby serial No.8 pertains to Patwari which reads as under;-

I 2 3 4 5 6 7

Intermediate ot !guivatent Iualification, lwho have y initial appointment from passed the the Patwari passed Patwari entered in Register District Examination by the District By ollector of the District concerned Patwari- Officer having one 18 to initial ving one year diploma in I (Revenue & year diploma ir1 BPS-5 30 recruit on technology from any Estate)/ information tment tution recognized by Board of Collector" technology from an,

rhnical education. 'Ihe institution of diploma will be cable after three years fiom recognized by date of issuance of Notification Board o1 Iechnical :ducation

sd/- Secretary to Government of KPK, \ Revenue & Estate Department

06.In the background of rules, it must be mentioned that rules can be amended in consonance with Chapter No.VI of Establishment Code Khyber Pakhtunkhwa, Edition 20ll "(Estacode)" which provides the Constitution of Standing Service Rules Committee, which reads as;

Constitulion of Standins Service RulesCommittee. Under the provision of rule 3 (2) of KPK Civil Servant (Appointment, Promotion and Transfer) Rules, 1989, the Provincial Government is pleased to consider it with immediate effect and in supersession of services and General Administration Department Notification No. SOR- II (S&GAD) 2 (a) I 97 dated l2th Setr,tember, 2001 , the Standing Service Rules Committee with tlre following composition;

The formation of the committee was as under

Administrative Secretary I concerned Chairman

Additional Secretary 1 (Regulation) E&A Department Member

Additional Secretary Finance 3 Department Member

Additional Secretary Law 4 Department Member

Head of attached Department 5 concerned Member

Deputy Secretary (Admn) of the Member/

6.Department concerned Secretary

07.Consequently, in the light of Standing Service Rules Committee (SSRC), the Government of Khyber Pakhtunkhwa, Revenue and Estate Department, on 26th of December 2008, issued a notification, which was published in the official GazettePart-lll on 4th February, 2009,which reads as

"No. 32102-6l/Admn:/I3S/SSRC. - In pursuance of the provisions contained in sub-rule (2) of rule 3 oi'the North West Frontier Province Civil Servants (Appointment, Promotion and Transfer) Rules, 1989 read with the Cabinet Division Notification No. SRO, 457(l)12001 dated 28'r' June,200l and in supersession of all previous rules issued in this behall, the Revenue and Estate Department, in consultation with the Establishment and the Finance Department, hereby lays down the method of recruitment, qualification and other conditions specified in column 3 to 7 of the Appendix to this Notification and applicable to posts bom on the cadre strength of Revenue and Estate Department specified in column 2 of the said appendix"

08.It may not be out of context that earlier to the amendments, the Patwaris were to be appointed in BPS-5, however, the Board of Revenue, Govt of Khyber Pakhtunkhwa, upgraded the post of Patwari from BPS-5 to

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7 and, thereafter, from BPS-7 to 9. Before framing of the Rules, the basic qualification for Patwari was matric with Patwar passed coursc but consequent upon the upgradation of post from BPS-5 to 7 and, therealler, from BPS-7 to 9 the qualification was accordingly enhanced i.e., with computer literate. The rules,.thereafter, were amended to meet the object of the computer operating system and to update the rccord with regard to revenue administration with current necessities of the post, as such, on the basis these changes in the rules the amended notification was issued/notified which for convenience is reproduced as under:

"By initial recruitment from amongst the Patwar passed candidates entered in the Patwar Candidates Register of Tehsil or District on the basis of Test and Interview to be conducted after advertising the posts."

\ 09. It is pertinent to mention that new amendments in the rules notified on 25th of November 2016, was assailed in two Writ Petitions No.4785-P of 2016 and No.1894-P of 2017, but both the petitions were dismissed on 30.10.2018. It is also undis puted that in Writ,Petition No.4785, decided on 30.10.2018, a Review Petition No.247-P of 2018 was filed, which was decided on22.01.2019, the operative part of which is reproduced as under:

"4. The issue decided by this Court in Writ Petition No. 4785 of 2015 was that till now rules are not framed by the Government, the respondent / government was bound to make appointment of Patwari is in regard to the old policy, so inadvertently the writ petitions were dismissed. As such the instant petition is disposed of in term that the last paragraph of the inrpugned judgment is rectified as "consequently, both the writ petitions referred above are disposed of accordingly."

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10.In fact, on25Jl20l6, notification was issued, thus, on the date of decision in review petition i.e., on 22,01.2019 amendment was in the field.

So, neither through Writ Petition nor vide Review, the amendments in the rule were declared to be unconstitutional, illegal, without jurisdiction and against the statute.

11.Likewise, another significant aspect of the matter is as to whether the amendments in appendix at serial No. 8 column No.7 are inconsistent, incoherent, discordant or in conflict with Para 3.6 of Land Record Manual.

For ready reference, Para3.6 is reproduced as under;

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l) For each Sub-Division, a list of all Patwar Pass persons shall be maintained by the Sub Divisional Collector/ Political Assistant in Form P-l given in Appendix "G" with a view to have ready information about the availability of eligible persons in the sub- \ Division to facilitate filling up the vacancies. However, the appointment of Patwaris shall be made strictly in accordance with Service Rules and the Recruitment Policy as may be applicable at the relevant time.

2)Maximum Education qualification for the Patwari is F.A/ Intermediate. The name of only those persons shall be enrolled, who are bona fide residents of the concerned Sub Division.

3)The name of the eligible persons shall be added to the list and when the result of the Patwar Exarnination is received and no eligible person shall be refused enrollment

4)The aforesaid list shall be verified and up-dated by the Collector concerned at least once in a year so as to exclude the names of those, who have become un- available on account of death, migration, employment on any other post, etc."

12.As we have seen that Sub Para I of Para 3.6 of Land Record Manual provides that "the appointment of Patwari shall be made strictlv in occordance with service rules and lhe recruitment policv, os mav be

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apnllcable st releva&l tlme",(Underlined and bold by us for emphasis).So, now the service rules and the recruitment policy explicitly provide that it shall be on the basis of Test and Interview to be conducted after advertising the post, so, there is no inconsistency or conflict in between the Land Itecord Manual and the service rules fbr the recruitment of Patwari. J'he amendment in the rules for recruitment of Patwaris was after the judgment of the larger bench dated 04.02.2015 which is neither in conflict with the any provision of law nor is inconsistence with the provisions of [-and Record Manual. The contentions of the learned counsel for petitioner are misconceived and without any substance.

13.In addition to the above, the impugned notification was issued by the Govcrnment of Khyber Pakhtunkhwa, Itevcnuc and ljstate Department, on 25.11.2016, thus, it would have only prospective effect, on the basis of \ notification applications were invited for the post of Patwari to be filled in accordance with the criteria as provided in service rules for the recruitmcnt of Patwari in the Khyber Pakhtunkhwa Civil Servant (Appointrnent, Promotion and Transfer) Rules, 1989, the effect of the notification was never intended by the respondents to have retrospective in nature and it rvas not cvcn disputed by the respondents. Afl.cr issuance ol-notification thc appointment of Patwari shall be made in accordance with the amended rules which are in consonance with Paragraph 3.6 of the Land Record Manual, the eff-ect shall be given from the date of publication of Notification and not from the date of passing of examination of Patwar course accordingly, thc

arguments of learned counsel for the petitioner pertaining to section 6 of the General Clauses Act, 1956 and Article 264 of the Constitution have also no force. The petitioner at the best may compete with others candidates through proper test & interview as and when the posts are advertised where his prayer for age relaxation shall be considered in accordance with the law.

14.In view of the above discussion, this petition being without any substance is hereby dismissed.

Announced:

(lhsan)

JUDGE

JUDGE

r/ (DB) r/" llon'blc Mr. Justice Sahibzada Asadullah &

W qeaiyr!]ir) Ilon'ble Mr. Justice Muhammad Naeem Anwar

'Jiil":'