Abdur Raqib and 04 others Vs Secretary E&SE KPK & others

I

JADGMENT SHEET

PESHAWAR HIGH COURT

MINGORABENCII

(ludicial Departmen) W.P. No.885-lvl/2021 Ilith Interim Relie

JUDGMENT

Date of hearing: 24.11.2022

Petiti oners: bdur Raqib & 04 others) bv Mr. Akhunzafut Ahmad Saeed, Adyocate.

Respondents (Secretarv E&SE KPK & others) bv Mr. Haq Nqwaz Khan. Astt: A.G.

MT] HAMMAD IJAZ KHAI\[. J.- Petitioners have filed the instant constitutional petition, under Article 199 of The Constitution of Islamic Republic of Pakistan 1973, with the following prayer;

"It is, therefore, most humbly prayed that by accepting this petition an appropriate writ may please be issues to:-

(i)Declare that impugned office order dated 06.10.2006 whereby the appointment orders of the petitioners were held in abeyance and impugned order dated 06.11.2020 whereby the appointment orders of petitioners were withdrawn/cancelled as illegal, unlawful, based on discrimination and malafide and thus ineffective upon the rights of the petitioners.

(iD Direct the respondents to reinstate * the petitioners on their posts with all back/consequential benefits.

(iiD Grant any other relief, not specifically asked for, deems fit and appropriate in the circumstances of the case, may also be granted bY this Hon'ble Court.

N.p.b (D,B) lIotr'bh nlr. Ju!tic. IUuht EErd Nr..o A.trr. Ilon'bl.IIr. Jut.ic. Nuh.EErd lrtt Ktrr

1 Precisely the nitty-gritty of the case of the petitioners is that they were appointed as Class- IV employees as per their respective dates of appointment as tabulated below: -

S,No. Name Designstion Date of appointment

I Abdur Raqib Naib Qasid 26.09.2006

2 Haji Rehman Mali 26.09.2006

3 Hamza Chowkidar 26.09.2006

4 Zakir Ullah Mali 29.03.2017

5 Sherin Zada Bearer 29.03.20t7

Amongst the other one of the term and

condition of their appointment letter was that they were required to join their respective posts within fifreet law. They have pleaded in their petition that before the expiration of the aforesaid prescribed days and before they could join their service a complaint was submitted by one Abdul I(haliq to the Political Agent Bajaur to the effect that since the school where the petitioners were appointed and posted, has been

I7

constructed on their property, therefore, he is entitled to be appointed. The aforesaid complaint was marked to the Assistant Political Agent Bajaur, who further marked the same to the Political Naib Tehsildar. The record further shows that it was on the 106 day of the Nrwrb (D,B) llo.'bl. il.. Jurtic. II$h. mErd Nr..d Antrr Ilon'bb nt.. Ju.ic.Iluh.mmtd ljt! t(htE

J

issuance of the appointment order of petitioners No.

I to 3 dated 26.09.2006 when their appointment orders were ordered to be beld in abeyance till the final decision of the political authority vide office order dated 06.10.2006. Similarly, due to the pendency of the aforesaid complaint of Abdul Khaliq, the petitioners No. 4 & 5 who were appointed on 29.03.2017 were also not allowed to join their duties. The record further shows that all the petitioners have made untiring efforts by submitting various applications highlighting their grievances before the respondents, however, of no fruitful result and ultimately their appointment orders which were passed way back on 26.09.2006 and 29.03.2017 were cancelled/withdrawn after fourteen and three years respectively vide the impugned order dated 06.11.2020, which order has now been challenged by the petitioners before this Court through the instant petition.

fr 3 When this case was taken up for

hearing on 05.10.2021 respondents were Put to notice and they were also directed to file their para-wise comments which they have accordingly submitted where they have taken the plea that in-fact an enquiry committee was constituted to inquire into the Nrirb(D.8) Ho!'bl!Mi Jlt.i.t Mu!.r!.d N...r A.'r, Hor'bL Mt J!.dc. Mrt r.rd U.t Ktr.

aforesaid appointment process and who after inquiry have recommended the withdrawal of all the previous appointment orders and initiation of a fresh appointment process.

4.Arguments of leamed counsel for the petitioners as well as leamed Astt: A.G. for the official respondents were heard in considerable detail and the record perused with their able assistance. The leamed counsel for the petitioners vehemently argued that the petitioners were appointed by the competent authority, therefore, their appointment orders could not be withdrawn unilaterally. He further argued that the very consideration on the basis of which the appointment orders of the petitioners were withdrawn is illegal. He further added that no opportunity of hearing was provided to the petitioners before the impugned withdrawal/cancellation orders, which had conferred valuable rights on them. As against this, the learned Astt: A.G for the official respondents 0t states that a proper inquiry was conducted and thereafter the appointment orders of the petitioners were rightly withdrawn.

5 The facts of this case as placed before this Court would show that the petitioners No. I to 3 Nrw.b(D.B) Hod'bl. M., Jstlic. I$uhr6otd Nt..o A!*.r Hoo'bh ma Jut.Lt Mrh.DE.d Ij{ K}.r

were appointed in the year 2006 vide their appointments orders of even dated 26.09.2006 and it was on the 10th day of their issuance of the appointment letters when their appointment orders were ordered to be held in abeyance vide order dated 06.10.2006 and thereafter petitioners have been running from pillar to post by submitting various applications to all the public functionaries who arelwere at the helm of affairs i.e. Political Agent Bajaur, Assistant Political Agent Khar Bajaur, Agency Education Officer Bajaur and Director Education FATA, however, none of them had seriously attended and addressed to their grievance and their genuine plea was kept lingering on for years and years which lasted for fourteen (14) years when ultimately their appointment orders which were issued way back in the year 2006 and were cancelled/ withdrawn in the year 2020.

6.It is also part of the record and as highlighted by the leamed counsel for the petitioners at the bar that the very complaint which was filed by one Abdul Khaliq for the cancellation of the appointment orders of the petitioners was for an illegal and unlawful consideration as the complaint so filed by the said Abdul Khaliq would speaks that N.wrb (D.B) Hoo'bl. IUr, Jurtic. M ron.d Nr!.E Arw.r Ho!'bl. Mr, Jrtlic. Muhr8nrd ljl, Khr

he is claiming his appointment as Class-IV employee in the subject school on the ground that since the said school has been established/constructed over the property of their family, therefore, either he or any of his nominee/recommendee has to be appointed, but even then mere filing of this complaint was found as so fatal that appointment orders of the petitioners were ordered to be held in abeyance. Had the respondents been aware of the law of the land they would have then and there igrrored and dismissed the said complaint of the Abdul I(haliq but it appears that some invisible and mighty hands have played their cards in such a way so as to keep the petitioners on tenterhooks for years and years and thus the respondents through their inaction and omission have demonstrated a classical example of a submissive and servile public functionaries which has resulted and caused a severe kind of injustice with the petitioners, such conduct on the part of public functionaries c could not be appreciated as it goes a long way to defeat the object of good govemance. In the case of "Zahid Akht''ar v/s Go of Pun b & 02 othe rs" reported as PLD 1995 Supreme Court 530 it has been observed by the Apex Court that a tamed and subservient bureaucracy can neither be helpful to Nrvrb (D.B) IIon'bl. Mr. Jutlic. MuhreD.d Nr..m Ant.r Hon'hl.IUr. Judic. Muh.dErd lirt Kbrr

Govemment nor it is expected to inspire public confidence in the administration. Good govemance is largely dependent on an up-right, honest and skong bureaucracy, therefore, mere submission to the will of superior is not a commendable trait in a bureaucrat. It hardly needs to be mentioned that a Govemment servant is expected to comply only those orders/directions of his superior which are legal and within his competence. Compliance of an illegal or an incompetent direction/order can neither be justified, on the plea that it came from a superior authority nor it could be defended on the ground that its non-compliance would have exposed the concemed Govemment servant to the risk of disciplinary action.

7.It may also be noted that claiming government job as a consideration for the grant of land to the govemment has since been declared by the Hon'ble Apex Court as well as by this Court in plethora ofjudgments as illegal and unlawful, and the * same has been termed as a sale of public o.tfice, therefore, the respondents should have been rejected the complaint of Abdul Khaliq then and there, however, in the case of petitioners respondents have treated the same as a case of denial of a valuable n.@. Hoo'blc Mr. Juttlcc MuhrEdid ljt Ktrr

right of the complainant and thus have not discharged their functions and authorizes in a legal and lawful manner In the case of "Haeed h v/s Head Master" reported as 1997 SCMR 855, the Hon'ble Apex Court has held that it is only on this condition that the donor nor his nominee as compared to other candidates if equally eligible, suitable and fit for the post, may be given preference. In such circumstances, the appointing authority may use the discretion in favour of the donor, but such preference will not be in performance of the agreement. There is nothing in evidence on record to show that the appellant was equally eligible, suitable and fit for the Post as compared to respondent No. 5. The appointment is to be based on merits and if on merits the donor or his nominee is at par with other candidates, only then preference can be given. By the observations referred hereinabove, the donor or his nominee is not vested with any right to claim the ,7 post. The same view was also reiterated by the Hon'ble Apex Court in the case o f "Ghazi v/s M.

Abdul Khaliq & olhers" re Dorted as 1999 SCMR 2308 by observing that a person had no vested right to claim appointment on the basis of being nominee of donor of land for the school. Similarly, in the case N.wtb (D.B) Hon'bl.Mr. Jurtic. Muh.oe.d Holl'bl. [Ir, Jultice lluhrnn.d ljrt Kh.tr

of "Bibi Morvam & 08 others v/s Govt: of Bqluchislon & 09 others" reported as 2020 p LC rc.$ 548 it was held by the Hon'ble Baluchistan High Court that donation of land for consideration of employment would amount to sale of public office.

In the case of "Secretarv Communication & ll/orks Department, Govt: of Bqluchistan Ouetla & another v/s Abdul Maieed & 07 olhers" reported as 2g!_ CLC 1127, the Hon'ble Baluchistan High Court has also held that no one had a right to be appointed on recommendations of donor of land as the same was in violation of Article 25 of The Constitution of Pakistan.

8.During the course of arguments the leamed Astt:A.G representing the respondents was asked that as to whether the petitioners have committed any fraud or misrepresentation or as to whether they have submitted any fake or fictitious documents or administered any other illegal means to get their appointment orders, or as to whether the petitioners were ineligible for the subject posts, his reply was in negative. When such being the position, the issuance of appointment orders have conferred on petitioners a valuable right which could not be withdrawn in such a unilateral manner as was done Nrrvrb (D,B) Hor'bl. Mr' Jutlic. MubrmErd Nr..m A.vrr Hor'bl. Mr. Julicc Muht6n.d li.r Klrn

by the respondents in the present case. It may be noted that after issuance of the appointment letter the incumbent employee starts enjoying a privilege and right which could not be withdrawn or denied for any reason what to speaks ofany extraneous or illegal or unlawful consideration.

9 In the given facts and circumstances of this case as stated hereinabove the questions as to whether the public functionaries can rescind or withdraw an order when the same has been issued by a competent authority(ies) and when the same has not been obtained on the basis of any fraud or misrepresentation and when the subject/employee is not suffering from any legal disability and as to whether the phenomena of keeping a legal and lawful order as held in abeyance is lawful or not, have remained a favourite subject of the Hon'ble Apex Court as well as of this Court and as such there is judicial consensus and trend that the answers to all the above question is a big "No". In the case of ,t2 "InsDeclor General o fPo lice Ouetta & another v/s Fida Muh ad & othe reoorted as 2022 SCMR @, the Hon'ble Apex Court has held that where the employees were appointed after fulfilling of all the codal formalities then such appointment created Nr*rb (D,B) Hor'blc Mr. Juttic. Muhrmmrd Nr..fl Aorvrr lloo'bl. Mn Jutdc. MuhrBord lh, Xlrn

vested right in their favour and the same could not have been withdrawn or cancel in a perfunctory manner on mere presupposition or conjecture. In the case of 'Mst, Basharat Jehsn v/s tor eral deral cstion

Rowalpindi & others" reported as 2015 1418 it was held by the Hon'ble Apex Court that when a person is appointed after fulfilling of all the codal formalities and the appointment order is issued a vested right is created in his favour, therefore, such appointment letter could not be withdrawn. This Court in the case of "Jawad Ali & others v/s Superinlendent Jail & others" reported as 2!!2Lre.

G.il 587 has held that the govemment was not vested with the authority to withdraw or rescind an order if the same had taken legal effect and created certain legal rights in favour of an individual.

Likewise, in the case of "Muhammad Usman Khan & 08 others v/s Secrelarv Home ent. Govt:

-A\ of KPK & 05 others" reported as 2019 H ) 380 this Court has held that the phenomena of "held in abe.vance" is alien to the service laws as such powers has not been conferred by any statute or law of the land on the authority to keep a validly issued Nrvrb (D.B) Hoo'ble Mr. Jstlic. Muhrmm.d N..e Ann.r Hoo'bl. Mr. Jurtice Muhrmm.d li.t Khrtr

order as held in abeyance and that too for an indefinite period.

10.During the course of arguments the leamed Astt: A.G raised an objection that the writ of the petitioners is hit by the doctrine of laches, however, such objection of the leamed Astt: A.G is not prima facie correct as the record would show that the petitioners were appointed vide orders of even dated,26.09.2006 and the same was held in abeyance vide order dated 06.10.2006 and then thereafter petitioners have been submitting various applications to the respondents which are available on the file pertaining to the year 2M, 2008, 2009, 201 l, 2013, 2!f!, 2017, 2018, 2019 and it was on 06.11.2020 when the impugned order with respect to the cancelation/withdrawal of the appointment orders was passed and then it was thereafter when the instant writ petition was filed, therefore, in view of the above it is manifestly spelling-out from the ,? record appended with this petition that the petitioners have been vigilant and vigorous to pursue their grievance, therefore, this plea of the leamed A.A. G is also misconceived. In the case of "Farza nd Raza Naavi & 05 oth ers v/s Muh ammad Din thro Lesal Heirs & others" reported as 2004 SCMR 400. the Nr*.b(D.B) llon'bl.IUn Jut.ic. Muhrllmrd Nr.!m A.srr lloa'blc Mn Judc. Muh.mr.d lj..Klr!

Hon'ble Apex Court has held that the question of laches in the writ petition is always considered in the light of the conduct of the person invoking the Constitutional jurisdiction of the High Court and the degree of his negligence if any and that if by grant of reliefbeing sought by him no injustice is caused to the opposite-party, the Constitution petition should not be dismissed merely on the ground of laches without examining the dictates of justice. The laches in simplest form mean failure of a person to do something which should have been done by him within a reasonable time and is not synonymous with delay alone but it can be worked out to the disadvantage to another person in the matter of his right

11.It may be observed and reiterated that imparting and administering justice is not only the duty of the Courts of law but all public functionaries who are vested by law of the land to exercise any sovereign power(s) on behalf of the State, are 1 constitutionally bound to administer justice at their level in a fair, honest, impartial and transparent manner but in the present case, we found a painted and tainted picture of the same, however, we expect that in the future they would not play with the rights of the citizens in such a casual, ignorant, indolent and n"@.

llor'blc Mr. Juilic. Iluhimmrd ljrz Khr[

t4

hands off manner. In the case of ,, Somi (Jlloh Khon at v/s o n Secr

Establishment & anolher', reported as 2 SCMR 1140,ihe Hon'ble Apex Court has observed that the exercise of powers by the public functionaries in derogation to the direction of law would amount to disobey the command of law and the Constitution.

The concept of administration of justice is not confined only to the judicial system rather every person discharging the functions in relation to the rights of people is bound to act fairly, justly and in accordance with law and ifa person holding a public office is found to have proceeded in violation oflaw or his acts and conduct amounted to misuse his official authority, he should be made answerable to law and should be proceeded against for an appropriate action by his superiors.

12.In view of the above discussion and exposition of law, we allow this writ petition and set 0 aside the impugned orders dated 06.11.2020 and 06.10.2006 issued by respondent No. 3 being illegal, unlawful and as such ineffective upon the rights of the petitioners and consequently restore the appointment orders of the petitioners dated 26.09.2006 and 29.03.2017, however, since in the Nrlrb (D.B) lloD'blc Mn Justic. IUuhrmdrd Nr..m Atrvrr Hoo'blc Mr. Juldc. Nlub.nnrd ljlt Khl!

intervening period petitioner No. 3 namely Hamza has attained the age of superannuation, therefore, to his extent the impugned order of cancellation of his appointment order is maintained.

ANNOUNCED

,$r Dt: 24.1 1.2022 JUDGE

E

{ot'v* Nrw.b (D.B) Hoo'bl. MnJu!.ic. Muhrmmrd N&.m Anvrr Ho!'blc Mn Ju5lic. Muhrmm.d lj.! Khrn