Ali Rahman & others Vs Govt of KPK & others

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

MTNGORA BENCH (DAR-UL-QAZA), SWAT

(ludicial Department) W.P. No. 663-M/2017

JADGMENT

Date of hearing: r3.02.2018

Petitioners:- (Ali Rshman & otheril bv Sved Abdul Hau, Advocate.

Respondents: - ( Governntent of KPK & others) bv Mr. Ruhim ,Shuh, Astt: Advocate General.

MOHAMMAD IBRAHIM KHAN J.- Ali Rehman & 5 others Petitioners herein, are imploring the constitutional jurisdiction of this Court for issuance of an appropriate writ as per their prayer set-out in their petition in the following forr.n:-

" It is, therefore, humbly prayed lhul on occeptonce of this h,rit pelition in the lighl of aforementioned submissions, this Courl may kindly issue appropriate wfit to the Respondent No.3 to reinslate the Petitioners on their own posts with ull r I I back benefits, according the spirit of act.

2, That this honoruble Court may also issue direclions lo the concerned Respondents to count lheir seniorily from the date of their Jirst appointment mentioned in Para-2 of this petilion."

Newab(DB ) Hon'bte j\lr r. Juslice lshtiaq Ibrs

1 In essence the present Petitioners were PST teachers in different schools of District Dir Upper. Subsequently, their services were dispensed with by the Respondents being no more required as they have been appointed purely on temporary basis as stop-gap arrangements.

3 In the meanwhile, the Government of Khyber Pakhtunkhwa passed the "sacked Emplovees Act 2012". wherein it has been decided that only those government employees will be given the benefit of reinstatement who have been terminated during the period from I st day of November 7996 to 31st day of December 1998. After promulgation of the ibid Act, some of the Petitioners submitted applications for their reinstatement on 20.10.2012 before the competent authorify, while the others l6J- upprouched the Service Tribunal for redressal of c_ their grievance. Yet despite all these visible efforts, the Respondents are not willing to compensate the Petitioners by way of their re-appointment as school teachers. In such N.wrb (D.8.) Hon'ble Mi Jusli.. UohrmDtd lbmhin Khtn Hon ble ]tr. Jurri.e lshti.q lbnhim

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circumstances, they have knocked the door of this Court through the writ petition in hand inter-alia on the grounds enumerated therein.

4 The Respondents were put on notice, amongst whom, comments were sought from the Respondent No. 3 on 11.10.2017 but the same are still awaited and from such careless attitude of the concerned Respondent i.e. District Education Officer (Male) District Dir Upper, it seems that the said officer has nothing to say in his defence, therefore, despite lapse of such considerable time the reply on his behalf is still awaited.

Having heard arguments of learned counsel for the Petitioners and learned Astt:

Advocate General appearing on behalf of official Respondents being present in Court in (d - connection with some other cases, the available record placed on file was gone through with their valuable assistance.

6.Before rendering anY findings in respect of the grievance of the Petitioners, it Nrwrb (D.8.) Hon'ble Mr. J$lice ltohammtd Ibrthim Khrn Hon'ble Mr. Jusri.e hhtirq Ibrrhim

would be appropriate to reproduce the relevant provisions of the Khyber Pakhtunkhwa Sacked Employees (Appointment) Act 2012, which runs:-

Preamble:- Vl/hereas, it is expedient to provide relief to those sacked employees who fi,ere aooointed on rcsular basis lo a civil post in the Province of the Khyber Pakhlunkhwa ond who Dossessed th e prescribed uali ion and nce required for the said post, during the period from lst day of November, 1993 to lhe 30lh day of November 1996 (both days inclusive) and were dismissed, removed or terminated from service during the period from lst day of November, 1996 to 3Ist day of December, 1998 on various grounds, 5.2 (g):- sacked employee" meons a person who was oppointed on regular basis to a civil post in the Province and who possessed the prescribed qualilicalion and experience for the said posl at thal time, during the period from lst dsy of November, 1993 to 30th day of November, 1996 (both days inclusive) and h)as dismissed, removed, or terminated from service during the period from lst doy of November, 1996 to 31st doy of December' 1998 on the ground of irregular appointments."

7 It is crystal clear from above quoted . provisions of the Act ibid lhat only those v^ LL/_ persons/employees wou ld be given benefit of reinstatement, who were appointed on regular basis to a civil post, Possessed the requisite/prescribed qualification and experience for the subject post and above all Nrsrb (D.B.) Hon'ble Mr. Justice Ilohtmmtd Ibrahis llon'ble lltr. Ju(ice lshiiiq Ibr.him

terminated from service during the period from lst day of November, 1996 to 3lst day of December, 1998. A bare perusal of the record would reveal that the services of the petitioners were terminated on 13.02.1997, so by means they are falling within the cut-off date as referred to above.

8 Earlier, similarly placed persons, like Petitioners approached this Court through W.P. No. 1662-P of 2013 titled Haz.rat Hussqin V/S The Government of Khvber Pakhtunkhwa throush Chief Secreturv, Civil Secretsrist Peshawsr", which was allowed in the following manner:-

" It is worth to note llrot persons similarly placed wilh llte petitioners have been re- instaled by the department while giving effect to the judgments given the Khyber Pokhtunkhwa Service Tribunal. More so, one Mst. Gul Rukh whose services were terminuted by lhe respondenls alongwith d the pelitioners, has been appointed under the Act vide order dated 09.05.2013. It is cardinal principle of law that similaily placed persons should be treuted alike und no different yard stick should be used while reclressing their grievances, It is hollmark and grundnorm of our constilution thal every person is entitled lo equal protection of law. Not only similarly placed colleagues of the Petitioners have been tppointed by the respondents but the pelitioners are ulso N.wib (D.B.) Hoo'bl. Nlr. Justice Nlohttnnrd IbBhim Kht! Hon'ble Vr' Juslrce lshiirq Ibr.him

entitled to the relief given lo the sacked employees under lhe Acl.

For whot has been discussed above, we admilted and accept bolh the wfit petitians and direcl the respondents to consider the petitioners for their appointment in accordance with lhe provisions of the Act."

The above-refened judgment of this Court was assailed before the Hon'ble Supreme Court of Pakistan in Civil Appeal No. 401-P of 2016 under the title " Government o Kh ber Pakhtunkhws throush Secretarv Elementarv snd Secondsry Education, Pesltowor V/S Iftikhar Khan etc" along with other identical matters. The Hon'ble apex Court vide its judgment dated24.5.2017 upheld the verdict of this Court in the following manner:- " Vl/e have been apprised by the leorned counsel for the rcspondents that according to lhe udverlisemenl ond appoinlmenl letter issued to the respondents, lwo kinds of candidates could be appointed (i) those who have the requisile academic qualiJications and training; (ii) those who have the requisite academic qualifications but do nol possess the necessary lraining. As ,, )regard lhe second category, such persons rH be provided with an opportunity to {' -would complete lhe training within a specific period. This is exactly what the learned High Court has allowed in lhe relief grating pottion of the impugned iudgmenl. Untloubtedly, this is in consonance t'ith the Department's own advertisement and the terms and conditions of service, therefore, the learned High Court tlid nol fall into any ertor by requiring the Deparlment to allow the respondents to complete the N{wsb (D.8.) Ilon'ble Mr. Jusiice :|lohrmmnd I Ilor'ble Ntr. .lustice Ishtirq Ibrlhim

training within a speci/ic period of time and to take aclion againsl lhem in case of failure to do so. No exception can be taken to the impugned judgment, which is upheld. Resultantly, Civil Petition No. 401- P/2016 is dismissed on merit. The connected petitions are also tlismissed on the above score and being time-barred os no sufficient cuuse has been shown for condonalion of delay,

9 In the above developed scenario, there is no denial ofthe fact that the services of the Petitioners were terminated within the cut- off date i.e. lst day of November 1996 to 31st day of December 1998 coupled with the fact that similarly placed persons like Petitioners have been given the benefit of reinstatement by this Court, which judgment has been upheld by the Hon'ble Supreme Court of Pakistan, so, on this score too, the Petitioners deserves to be given the same benefit of re-instatement being similarly placed persons.

10.However, since no record of the t/- educational credentials of the Petitioners has been placed on record, in view of which, their present educational status/competency could be ascertained qua their eligibility for the subject posts of PTS. Even otherwise, it is appealable to Narrb (D.8.) Ho.'ble Mr. Justi(e Moh!mmrd lb.ahim Kh8n Ilon'ble Ur. Ju\rx'r l\htirq lbnhim

prudent mind that during the intervening period i.e. from the date of their termination up till now the Petitioners would have not improved their educational skills further and would have just waited for final outcome of their case. Learned Astt: Advocate General present in Court submits that if all the cases of Petitioners fall under the ibid Act, he would have no objection of their re-instatement subject to their eligibility for the subject posts of teachers. Moreover, the answering Respondent No. 3 despite Court direction has so far been unable to file the requisite comments, so, it is presumed that he is answerless in the matter.

11.In view ofthe above discussion, this writ petition is disposed of in terms that the RespondentslDepartment is directed to consider the case of Petitioners for their re-instatement ,-') under the umbrella of Sacked Employees Act 2012 coupled with the fact being similarly placed persons but subject to their eligibility for the requisite posts of PST teachers within a period of one month positively. Since the Nawrb (D.B.) Hon'ble lur' Justice Mohammtd Ibrthin Khtn Hon'ble Nlr Justice Ishtiaq Ibrahin

Petitioners are languishing for the ultimate outcome of their wheel of fortune since the year 1997, therefore, it is expected from the answering Respondents that this issue will be put to an end once for all within the target span.

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ANNOUNCED

Dt: 13.02.2018. JUDGE

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t-t-

Nrrrb (D.8.) Hon'ble Mr. Justic. Mohlm Hon'ble Mr. Justice hhtirq