Malik Muhammad Asif vs Secretary Irrigation

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

ABBOTTABAD BENCH.

JUDICIAL DEPARTMENT

W.P No. 618-A of 2013

JUDGMENT

Date of hearing____________________________ Appellant(s)/Petitioner (s)_______________________ Respondent (s) ________________________________ QALANDAR ALI KHAN, J:- While

proclaiming themselves as Chairman, President and General Secretary of Hazara Irrigation Union, Abbottabad, the petitioners approached this Court for declaration of appointments of respondents No.6 to 8 by respondents No.1 to 5 as unconstitutional, illegal, without lawful authority, against merit and policy governing the procedure of recruitment in the government departments. The petitioners also prayed for a direction to the respondents to appoint locals to the posts of Class-IV employees in the department.

2.The background of the case,

explained by the petitioners in their writ petition, is that there were 15 vacancies of Class-IV employees in Sara-i-Saleh, Haripur, in different cadres, which were to be filled in through appointment of locals, but the Executive Engineer, Irrigation Department, Hazara Division Abbottabad (respondent No.5) appointed respondents No.6 to 18, belonging to Mansehra, Abbottabad and other Districts, without advertisement of the vacancies and in total disregard of the merit. The petitioners claimed that prior to the impugned appointments, four persons were appointed against class-IV vacancies, which led to inquiry against respondent No.5, which was still underway. The petitioners alleged that while making appointments, prescribed Quota for retired class-IV Employee’s Sons was also violated. According to the petitioners, they challenged the impugned appointments through a civil suit, but despite an order of temporary injunction in the suit, the respondents made appointments, resulting in filing of an

application for contempt of Court proceedings against the respondents. However, the civil suit was dismissed by the trial Court for want of locus standi on the part of the petitioner; hence the instant writ petition.

3.In their comments, respondents No.3 and 5 not only challenged the locus standi of the petitioners to file writ petition but also claimed that besides two posts falling vacant due to retirement and transfer of two incumbents, 13 posts were created for six Districts in Hazara Division and not for Sara-i- Saleh, Haripur, alone, as alleged by the petitioners. The respondents pointed out that names of the candidates were supplied by the Employment Exchanges of all the Districts in the region and that the appointments were made by the Departmental Selection Committee in a transparent manner. The respondents further disclosed, in their para-wise comments/reply, that the appointments were also earlier challenged by one Muhammad Ihsan, but his writ petition was disposed of on the ground of lack of jurisdiction by this Court.

Likewise, the civil suit and contempt petitions have also been disposed of by the Courts of competent jurisdiction. The respondents, however, remained evasive with regard to the contention of the petitioners that inquiry with respect to earlier appointment of four Class-IV employees was still pending, and replied to relevant para-5 in the writ petition, by offering ‘no comments’.

4.Arguments of the learned counsel for the petitioners and learned Additional AG heard, and record perused. Respondent No.5 also appeared in person in response to the notice of the Court.

5.Notwithstanding the fact that the self styled office bearers of Hazara Irrigation Union could not furnish proof with regard to their legal status and authorization by the Union to represent it in the case before the Court in order to meet the objection of the Irrigation Department with respect to their locus standi, there can possibly be no cavil with the proposition that once an alleged illegality/irregularity is brought to the notice of the Court, then it

cannot remain an idle spectator and watch helplessly not only commission but also repetition of such illegalities/irregularities.

Respondent No.5 and learned Additional AG were clueless when asked about the fate of the inquiry. They, however, admitted that there was, indeed, an inquiry into such like appointments in the post.

6.Therefore, we are left with no other choice but to intervene in the matter in order to urge adherence to law and set procedure in the matter of appointments, so as to ensure transparency and merit on the one hand and allay misgivings about integrity of the process on the other.

7.Consequently, the writ petition is disposed of in the following terms.

I. The Secretary to Government of KPK, Irrigation Department, Peshawar (respondent No.1) is directed to intimate result or progress of inquiry into the earlier appointments of class-IV Employees by respondent No.5 to the Additional Registrar of this Court within a week of the receipt of this judgment/order.

II. Respondent No.1 is further directed to conduct probe into the impugned appointments in a fair and transparent manner to determine whether the posts were meant only for Sara-i-Saleh, Haripur, or for the entire Hazara Division and whether class-IV employees could be appointed in Sara-i-Saleh, Haripur, from other District as well, by ignoring the reserved Quota for retired Class- IV Employee’s sons and rules/procedure prescribed for appointments against such vacancies and also whether and how far grievances of other employees of the department relating to the impugned appointments were genuine and well founded.

III. The authority should fix responsibility if at all rules and merit have been violated, and proceed in accordance with law against those held responsible for misuse of authority.

IV. The authority should also devise necessary means for upholding merit and adherence to

rules/procedure in the matter of appointments.

8.With direction to respondent No.1 to report compliance to the Additional Registrar of this Court at the earliest, but in no case beyond one month of the receipt of this

judgment/order, the writ petition stands disposed of, accordingly.

Announced:

JUDGE

JUDGE