2025 PLP 1585 (CLC)

MOHSIN AKHTAR KAYANI, J.

By way of this common order, I intend to decide the captioned writ petitions along with civil miscellaneous applications arising out of similar question of facts and laws involved in these cases.

2. Through the captioned writ petitions, the petitioners have prayed for issuance of direction to the respondents to fill up vacant posts of Patwaris in Islamabad Capital Territory (ICT) as per the guidelines and provisions of Land Record Manual and OM dated 19.10.1989 from the aspirants having Patwar Post Certificate and are residents / domiciled of Islamabad.

3. Succinctly, the petitioner in W.P. No.3352/2018 claims to be permanent resident of Islamabad having passed his SSC and HSSC Examination from the Federal Board as well as passed Patwar course after seeking permission from ICT Administration. He submitted his credentials vide Diary No. 4894, dated 31.08.2010, to the respondent Chief Commissioner, Islamabad for entry in the register maintained under Rule 3.6 of Land Record Manual containing the record of qualified Patwaris read with memorandum, dated 19.10.1989, whereby the list shall be annually verified when applicable but, despite his request his name has not been incorporated in the list and even no reason has been conveyed to him despite his repeated applications.

4. Similarly, the petitioners in W.P. No. 1149/2019, who are residents of district Islamabad, have alleged that they have also successfully passed their examination of Patwari course and holding a Patwar Certificate, as such, despite their application for registration of their names in the register maintained under Rule 3.6 of the Land Record Manual, their names have not been enlisted.

5. Learned counsel for respective petitioners contended that the petitioners are qualified persons having successfully completed the Patwar course, who have submitted their applications in terms of Land Record Manual to the respondent office for incorporation of their names in the list maintained by the revenue officer but, despite repeated demands their names have not been incorporated from last 10 years, which apparently shows negligence on the part of respondent; that this Court in W.P. No. 4832/2010 (Ch. Waqar Ahmad v. Chief Commissioner, Islamabad) has passed direction for repatriation of Patwaris appointed on transfer and deputation basis from Islamabad to their parent department and then fill in the vacant posts in accordance with law but, the said judgment has not been complied with and at present majority of Patwar Circles are lying vacant with the outcome that dual charges have been assigned to different Patwaris.

6. Conversely, learned AAG as well as learned Standing Counsel along with learned counsel for applicants, who have filed CMs for impleadment in this case, stressed that the Islamabad Capital Territory has applied to the Ministry of Interior for NOC for recruitment against vacant posts, whereafter induction will be made in accordance with the law on quota basis; that Nadeem Abbas (petitioner) has passed the Patwar course on 19.08.2010 from Board of Director Land Record, Peshawar, KPK and submitted his application on 31.08.2010 to the Deputy Commissioner for entry of his name in register of Patwaris but, till date the credentials have not been verified from the relevant quarters despite issuance of reminders on 12.12.2011 and 12.03.2012, as such, the requisite information is still awaited and after receiving such information the register of Patwar can be amended accordingly; that 19 posts are still lying vacant in revenue department of ICT, which would be filled in accordingly.

7. Arguments heard, record perused.

8. Perusal of record reveals that petitioners are primarily aggrieved for not including their names in the list maintained for Patwar Circles for the appointment of Patwaris in terms.of the Land Record Manual despite the fact they have submitted their respective applications to the relevant office after successful completion of Patwar course. Furthermore, the petitioners have become overage and have also made another request to the Chief Commissioner, Islamabad for age relaxation as the maximum age limit to be appointed as Patwari is 25 years as per Establishment Division memorandum, dated 24.06.2010.

9. I have also confronted Zahid Khan, District Collector / ADCR, ICT, Islamabad with respect to the position, who submitted the details in compliance of direction passed by this Court vide order dated 13.07.2021 qua the total number of Patwar Circles, vacant positions and the status of Register Patwarian. As such, this Court has observed the following factors from the report submitted by aforesaid revenue officer. The register of Patwaris maintained by District Collector, Islamabad was lastly amended / upgraded and entries were made in the year 2010 but, the District Collector, Islamabad has only verified the last mention entry at Serial No. 59 only, whereas rest of entries have neither been verified nor confirmed by the District Collector, Islamabad. Original register seen and returned. There are currently 43 Patwar Circles appointed in ICT and 19 posts lying vacant on which Patwaris have not been appointed. The present status of 24 Patwaris performing their duties in ICT have been referred by the District Collector, Islamabad reveals that three (03) Patwaris namely Muhammad Basharat, Mumtaz Haider and Faisal Saleem have filed cases for their absorption in ICT. The Deputy Commissioner, Islamabad has repatriated the Patwaris appointed on deputation to their parent department in compliance of judgment, dated 07.04.2011, passed in W.P. No.4832/2010 (Ch. Waqar Ahmad v. Chief Commissioner, Islamabad). The Chief Commissioner Office vide letter dated 24.01.2018 requested the Ministry of Interior to take up the matter with Establishment Division for obtaining NOC with regard to advertising the vacant posts of Patwaris in the office of Deputy Commissioner, Islamabad in compliance of Establishment Division OM No. 1/1/97-RW-4, dated 11.08.1999, which is meant for fresh recruitment. The Ministry of Interior vide letter dated 20.06.2019 requested the District Collector, Islamabad to provide vacant status of Patwaris in revenue department, ICT, Islamabad for processing of NOC with the Establishment Division. The Chief Commissioner Office, Islamabad vide letter dated 02.1.2020 communicated the vacant posts of Patwaris to the Ministry of Interior. The last appointment of Patwari in ICT, Islamabad took place in the year 2005. 10 posts were advertised on 08.01.2005 and 10.01.2005 in daily newspaper, against which 244 applications were received, out of which 136 were shortlisted by Committee after scrutiny for written test, whereupon 41 candidates qualified the written examination, who appeared before the Departmental Selection Committee for interview on 25/26th April, 2005, as a result whereof, the Committee unanimously selected 10 candidates for appointment as Patwaris on all Pakistan basis. The Establishment Division OM No. 4/5/93-R-2, dated 07.02.1994, communicated to Chief Commissioner, ICT, Islamabad vide memo No. 2/21/84-ICT, Government of Pakistan, Interior Division, whereby the summary was submitted to the Prime Minister who has pleased to approve the following proposal: It is proposed to accept the advice of Law and Justice Division and allow Islamabad Capital Territory Administration to make recruitment to the posts in BPS-3 to 15 in various offices of Islamabad Capital Territory Administration, except courts, on all Pakistan basis instead of confining it to residents of Islamabad Capital Territory or Province of Punjab. This will not entail any change in existing break up of provincial or regional quota applicable on recruitment to the civil post under the Federal Government. The Chief Commissioner, ICT, Islamabad vide Interior Division memo. No. 2/34/2000-ICT(i), dated 10.05.2001, has passed similar direction in the following manner: The case was referred to the Establishment Division who have advised that recruitment of post in BPS-3 to 15 in various offices of Islamabad Capital Territory Administration, except courts, is required to be made on all Pakistan basis under the instructions contained in the Establishment Division OM No.4/3/93/R.2 dated 07.02.1994, already conveyed to ICT under Interior Division memo of even dated 20.02.1994.

10. While going through above referred report and facts recorded in this case, it is necessary to dilate upon the concept of recruitment of post of Patwari, which has been provided in Chapter 3 of the Land Record Manual, Part II, which deals with Patwari candidates in terms of Clauses 3.6 and 3.7, which are as under: 3.6 Register of Patwari: (a) for each Tehsil, a register of candidates is kept in form P-1 given in Appendix G. In this register, candidate shall be entered in the order in which their applications are accepted, but priority of entry shall give no priority of claim to appointment. (b) The total number of candidates in any district should never exceed fifteen percent of the total number of the Patwaris and Assistant Patwaris employed in the district. In Districts under settlement this limit may be raised to thirty percent at the discretion of the settlement officer. ANyu further increase in these percentages by the Deputy Commissioner or the Settlement Officer requires the previous sanction of the Board of Revenue. (c) Seventy five percent of the candidates must belong to rural areas or to the families owning or cultivating land and having rural outlook and bias. (d) A separate list of Patwari Candidates will be maintained by the colonization officer to meet the requirements. 3.7 Qualifications of Applicant: Application for entry in this register must be made by candidates in person to the Collector or such other officer not below the rank of Assistant Collector of the First Grade as he shall appoint, but no name should be entered in the Register except by the Collectors own order, passed after he has seen the candidate. In the case of Candidates who claim to be agriculturist, Collectors should satisfy themselves by documentary evidence that they are really so and the evidence should be preserved. The Chief qualifications of the candidates are as follows: (1) Ability to write Urdu character with facility and with a legible formed hand. (2) Ability to work out correctly and quickly simple sums in Arithmetic such as occur in a patwari's daily work. (3) Good Physique and health, good eyesight, age not less than 17 or more than 23 years. Note: Deputy Commissioner may, however, accept candidates above the age of 23 years with a special sanction of the Director of land record. (4) Respectable character, antecedents and family, dismissal from any other employment for serious misconduct will disqualify. Before entering an applicant's name, it should also be noted whether there are any vacancies. (Vernacular Final Examination) is the minimum educational qualification for all classes of patwari candidates and from all localities. The name of any applicant who does not posses the prescribed minimum educational qualifications should in no case be entered. Note: The Rules in respect minimum educational qualifications may, in cases of real hardships be waived by the Director of Land Records.

11. The above referred legal position left nothing in favour of the respondent i.e. District Collector Islamabad to deviate from this legal position, as such, when he has been confronted with the induction process provided in Land Record Manual, he conceded that Patwaris have to be appointed through Land Record Manual but, due to non-maintenance of their register in terms of clause 3.6 they are now seeking NOC from Ministry of Interior for appointment of Patwari in ICT on all Pakistan basis after advertisement, test and interview, though this concept of transparency in the recruitment of Patwari is more transparent but, the law applicable in this case is entirely different as envisaged in clauses 3.6 and 3.7 of the Land Record Manual reproduced above. Now the question arises as to whether the District Collector, ICT, Islamabad can appoint any person through advertisement, test and interview after getting NOC from Ministry of Interior when the recruitment process provided in the Land Record Manual is entirely different, the answer of such question has already been given in 2016 PLC (C.S.) 106 Peshawar (Ameer Taimoor and 7 others v. Government of KPK) in the following manner. "

10. The rules and policy is the formal expression of the will of the legislative organ of the State. There is clear-cut procedure for appointment of Patwaris in the Land Records Manual as well as in the West Pakistan (Northern Zone) Patwar Subordinate Service Rules, 1963. The arguments of learned A.A.-G. that the object of advertisement and test and interview is to ensure the fair selection, minimize the chances of discretion and favoritism, therefore, test and interview from amongst the list of the candidates of patwar pass persons is the better course than that of the selection provided in the land Record Manual has no force because competent authority has the powers to bring changes in the relevant rules for appointment on a particular post by making amendment in order to maintain efficiency in the services. If conduct of test and interview for appointment of Patwari keeping in view the exigency of services is necessary, it is the prerogative of the Government to make amendment in this regard in the relevant rules. In this respect, reliance is placed on the case titled Zafar Iqbal and another v. Director Secondary Education, Multan Division and 3 others (2006 SCMR 1427) wherein, the august Supreme Court has observed that:

"The Government is always empowered to change the promotion policy and the domain of the Government to prescribe the qualification for a particular post through amendment in the relevant rules, is not challengeable. This is also a settled law that notwithstanding fulfillment of the requirement qualification and other conditions contained in the rules, the promotion cannot be claimed as a vested right."

11. For what has been discussed above, we are of the view that until and unless rules prescribed for appointment of Patwaris provided in the Land Record Manual as well as service rules with regard to method of recruitment of patwaris are not amended or struck down, the respondents are bound to make appointment in accordance with the existing rules and policy governing the subject matter as it is settled principle for administration of justice that when law requires a thing to be done in a particular manner then that thing be done in that particular manner and not otherwise.

12. Similarly, in another judgment of the Hon'ble Peshawar High Court reported as 2017 PLC (C.S.) Note 17 Peshawar (Humayun Khan v. Government of KPK), it was held that appointment on the posts of Patwaris shall be on seniority basis according to the list given in Register "C" strictly according to the manual and policy formulated by the Government, as such, there is no concept of test and interview.

13. Learned Standing Counsels along with District Collector, ICT, Islamabad have put much emphasis on the recruitment process on all Pakistan basis in terms of the concept provided in Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, where initial appointment to the post of BPS-1 to BPS-15 or equivalent shall be made on the recommendations of Departmental Selection Committee after vacancies are advertised in newspapers. The Patwari is appointed in BPS-5 and his appointment is made in terms of Section 11 of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 and the persons enlisted in the register in terms of clause 3.6 of the Land Record Manual are eligible to apply after the advertisement by way of separate application, which will be considered as per law.

14. The arguments advanced by the respondents side has highlighted the issue of bad governance and mismanagement on the part of Chief Commissioner, Islamabad and Deputy Commissioner, Islamabad, who have not maintained the list for the last 10 years, rather deprived majority of the eligible candidates of their right to life in terms of Article 9 of the Constitution of the Islamic Republic of Pakistan, 1973. In such scenario, the apparent mistake and negligence is on the part of administration of the Islamabad Capital Territory, who are now claiming that petitioners are overage and any person who is of more than 35 years of age is not entitled to be enlisted in the register of Patwaris. Such aspect has drawn attention of this court towards the principle that a person cannot benefit from his own wrong and giving benefit of a wrong to a wrongdoer would be against the administration of justice as held in 2020 SCMR 832 (Sakhi Jan v. Shah Nawaz). Therefore, the petitioners could not suffer for the wrongdoing of administration of ICT as they filed their applications before the Collector of the Islamabad Capital Territory for registration of their names in the register, but petitioners' credentials have not been verified from relevant quarter for the post of Patwar, which is the primary duty of the respondent to get the credentials verified accordingly.

15. The second important question raised in this case is as to whether a Patwari can be appointed through any other mode than the process provided in the Land Record Manual, the answer to such question is negative. However, in order to understand the applicability of law in its true perspective, I have gone through the changes of law and history, whereby Clause 3.6 of the Land Record Manual provides the list of Patwar course passed persons for each sub-division, which has to be maintained by Sub-Divisional Collector and in terms of Clause 3.11, when the office of Patwari is vacant in any circle, whether temporary or permanent, it shall be filled in by selection from the register of candidates of the Tehsil in which the vacancy occurs or, if necessary, by selection from the register of other adjacent Tehsils. Additionally, the Board of Revenue, Punjab have also amended the Land Record Manual, whereby appointment of Patwari shall be made strictly in accordance with the service rules and recruitment policy as may be applicable in relevant time.

16. The above referred position, if seen in the context of the existing structure of the ICT, Islamabad, it appears that the Government of West Pakistan while exercising powers conferred under Articles 178 and 179 of the Constitution of the Islamic Republic of Pakistan, 1973 made the rules regulating the recruitment and condition of service of Patwari, known as "West Pakistan (Northern Zone) Patwar Subordinate Service Rules, 1963" whereby Rule 5 of the said Rules deals with the initial recruitment of the post. The ICT was constituted under the control of President by virtue of President Order No. 1 of 1970 (Province of West Pakistan Dissolution Order), whereby Article 4 empowers the President of Pakistan to make laws with respect to all matters of ICT and in terms of Article 6 of the Constitution the Islamabad Capital Territory was within the jurisdiction of Punjab at that time.

17. Similarly, in terms of Article 19 of the President's Order No. 1 of 1970, the protection was given to all laws, including any act, ordinance, order, rule, regulations, by-laws, notification or other legal instruments. The President Order No.12 of 1971 (Islamabad Capital Territory Administration Order, 1971) empowers the Government of Punjab to exercise all powers in relation to the Islamabad Capital Territory, and, as such, the Government of Punjab was empowered to pass any such direction or rule for regulating the affairs of ICT at relevant time, which was given further protection and declaration in case reported as PLD 1981 SC 81 (Islamabad Club v. Punjab Labour Court), whereby it was held that the Government of Punjab shall on behalf of President, exercise and perform duties in relation to the affairs of Islamabad Capital Territory, the same powers and functions as were exercisable in relation to that territory by the Government of West Pakistan immediately before the 1st day of July, 1970. On the other hand, the Governor of Punjab vide notification dated 19.06.1990 made new rules known as Punjab Revenue Department (Revenue Administration Post) Rules, 1990 for appointment of revenue staff in the revenue department and the previous Rules of 1963 stand repealed. The Governor of Punjab also exercised his powers conferred under the Punjab Civil Servant make new rules for revenue staff known as the Punjab Revenue Department (Revenue Administration Post) Rules, 2009, vide notification dated 07.01.2009 and the previous Rules of 1990 stand repealed. As such, by virtue of President Order XII of 1971, all laws, acts, orders, ordinances, rules, regulations, by laws, notifications or other legal instruments passed or issued by Government of Punjab are applicable in Islamabad Capital Territory until other provision is made in this behalf by the competent authority and, as such, the last applicable Rules of 2009 issued by Government of Punjab seem to be applicable to Islamabad Capital Territory, especially when the Presidential Order XII of 1971 is still operational and not repealed by the competent authority.

18. In view of historical background of the rules and the procedures for appointment of the revenue staff, this Court is of the view that ICT has to promulgate their own rules for appointment of revenue staff in ICT, though the basic qualification and procedure provided in Land Record Manual is strictly applicable unless the law has been changed, therefore, at this stage the respondent department while relying upon direction passed by this Court in W.P. No. 4832/2010 Ch. Waqar Ahmad v. Chief Commissioner, Islamabad Capital Territory, Islamabad, to the extent of repatriation of deputationist Patwari has rightly applied the law, even the apex Court in judgment reported as 2014 SCMR 799 (S. Masood Abbas Rizvi v. Federation of Pakistan, etc.) has declared that all such absorptions are illegal and those persons who have been absorbed stand repatriated to their parent department. However, in the said judgment of Ch. Waqar Ahmad supra, the respondents have been refrained from filling up of vacant post without advertisement, rules and laws, which is a clear cut direction to be followed but, it does not mean that Chapter 3 of the Land Record Manual is to be ignored, the entire focus of judgment is based on Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, in which the Court seems to be under influence of the provincial and regional quota, as such, it is an admitted position of law that where law requires doing of something in a particular manner, it has to be done in that particular manner or not to be done at all and all other modes of doing it would stand excluded. Reliance is placed upon 2020 SCMR 2129 (Ajmir Shah v. Inspector General, Frontier Corps KP) and PLD 1999 Lahore 446 (Muhammad Alim Chotia v. Zafar Iqbal). Hence, any appointment contrary to the Land Record Manual or any other direction in this regard is considered to be doing of thing against the particular manner provided in the law. Similarly, it is an admitted position and declaration of this Court in case reported as 2019 PLC (C.S.) 1361 Islamabad (Muhammad Zaryab Ali v. Ministry of Religious Affairs, etc.) that all positions of BPS-1 to BPS-15 of District and Islamabad Capital Territory, Islamabad, which are local posts have to be fulfilled from those persons having domicile of ICT and all other regions and quotas are not applicable, including the persons residing in provinces have no right to apply on those positions, hence, the Establishment Division and Law Division's notification, dated 19.08.2020, as well as previous O.M. dated 07.02.1994 and Chief Commissioner view on the basis of Ministry of Interior memo, dated 10.05.2001, for recruitment of post in BPS-3 to BPS-15 in various offices of Islamabad Capital Territory Administration, except courts, on all Pakistan basis, in view of instructions contained in Establishment Division O.M. No.4/3/ 93-R.2, dated 07.02.1994 already conveyed to ICT under Interior Division memo of even date, 20.03.1994, are held to be ILLEGAL having no effect on the recruitment in the Islamabad Capital Territory against the post which are only meant for ICT and are not federal post within the meaning of Federation. As such, it is high time to clarify that all the positions in district courts, district administration; ICT and local offices, whose territorial jurisdiction is only within the ICT having no nexus with provinces are considered to be local posts, which have to be filled in from all those residents of Islamabad having domicile of ICT.

19. In view of above settled position, this Court deems it appropriate to pass the following directions: i) The Chief Commissioner, Islamabad and District Collector, Islamabad shall maintain the register of Patwari under clause 3.6 of the Land Record Manual within the period of 30 days by inviting application of all the residents of Islamabad, who have qualified their Patwar course from different jurisdictions and maintained the list after verification of their credentials within the period of 60 days by all means, including the name of petitioners after necessary verification with effect from 2010 to the extent of petitioners and other applicants, who have applied prior to this judgment. ii) The Chief Commissioner, Islamabad shall decide the issue of age relaxation of the petitioners as well as of applicants on case to case basis after considering facts of each case as delay should not be considered adverse to their rights as it was result of negligence on the part of Islamabad Capital Territory Administration. The ICT Administration shall adopt necessary procedure for extending the age relaxation under the law while considering the Initial Appointment to Civil Posts (Relaxation of Upper Age Limit) Rules, 1993 in the light of judgment reported as 2018 PLC (C.S.) 822 Islamabad (Rashid Ameer v. Federation of Pakistan, etc.). iii) The Chief Commissioner, Islamabad is directed to prepare a draft rules of the Islamabad Capital Territory Revenue Department (Revenue Administration Post) to regulate the affairs of appointment of Patwaris, Qanoongo, Halqa Girdawar, Naib Tehsildar, etc. and all revenue department positions, within the period of 03 months and summary thereof shall be forwarded to the Law Division and Ministry of Interior for their input and for final notification by the Government of Pakistan within the period of next 06 months while considering the needs and requirement of present time so that the Punjab Revenue Department (Revenue Administration Post) Rules, 2009 stand repealed. iv) The Federal Government shall issue notification while including the concept of test and interview in the appointment procedure amongst the list of Patwaris maintained by the District Collector in terms of clause 3.6 of the Land Record Manual so that the basic law should also be adhered to. v) All the Patwaris and Revenue Officials appointed on deputation basis shall be repatriated to their parent department immediately in the light of judgment of the Supreme Court reported as 2014 SCMR 799 (S. Masood Abbas Rizvi v. Federation of Pakistan, etc.). vi) No Patwari or revenue officer shall be appointed in Islamabad Capital Territory, Islamabad except the persons having domicile of ICT. Similarly, any other Patwari, who has been appointed on all Pakistan basisin the year 2005 in violation of the quota of Islamabad Capital Territory, Islamabad shall not be removed from his position being closed and past transaction. vii) The Registrar of this Court shall submit a note before the Hon'ble Chief Justice of this Court for fixation of all pending cases of absorption and repatriation pending before this Court to be fixed and decided accordingly.

20. In view of above terms, the instant writ petitions along with the miscellaneous applications stand DISPOSED OF. SA/33/Isl Order accordingly.