2012 PLP (C (PLC(CS))

SHAHID ANWAR BAJWA, J.

Father of petitioner No.1 was employed as tube-well Chowkidar and his employment was regularized vide order dated 17-1-1993. He expired while in service on 19-5-2002. On 20-6-2006 the petitioner applied for employment on the basis of son quota and the application was duly received. However, no decision on that application was communicated. Father of petitioner No.2 was employed as a Chowkidar and he expired while in service on 8-4-2006. Thereafter on 27-5-2006 the petitioner applied for employment. No decision was communicated to him and finally this petition was filed on 25-11-2009 with the following prayers:

(a) To declare that the case of petitioners is covered by Policy of deceased-quota of petitioners Nos.1 and 2 of their real fathers namely Faizullah Kalwar and Mushtaque Ali respectively and they are eligible to be appointed as Tube-well Chowkidars on Tube Well No.BM-55 and Tube-Well No.Jam-Wah-7 against deceased-quota. (b) To direct the respondents Nos.2 and 3 to consider the request of the petitioners regarding their appointment against deceased-quota of their fathers, who were serving as Tube-Well Chowkidars and died during service, which is admitted by respondents. (c) To direct the respondents Nos.2 and 3 to appoint the petitioners as Tube-Chowkidars against deceased-quota, as the tube-wells are installed in their lands. (d) To restrain the respondents Nos.2 and 3 not to appoint other persons at the place of the fathers, of the petitioners at Tube Well No.BM-55 and Jam-Wah-7. Learned counsel for the petitioner relied upon a judgment by a Division Bench of this Court, Irrigation and Power Employment Union v. Province of Sindh and others C.P.No.D- 611 of 2009 decided on 30-9-2010. Learned Assistant Advocate-General made two fold submissions. First although in the comments it is admitted that fathers of the petitioners were employed and died in service but regarding submission of these applications in 2006 it has been stated in the written comments that during arson following death of Mohtarma Benazir Bhutto record was burnt. Secondly it was contended that in terms of amendment brought about in Rule 11-A of the Sindh Civil Service (Appointment, Promotion and Transfer) Rules, 1974 with effect from 17-7-2009 a period of two years has been provided and since in the present case the deaths occurred in 2002 and 2006 respectively in other case it is not covered by Rule 11-A any more. We have considered the submissions made by the learned counsel and have also gone through the record. As far as submission of applications for employment in 2006 by both the petitioners is concerned, copies of the applications are available at pages 27 and 39 of the file and they do bear a receipt stamp by the concerned clerk/dispatcher of the official respondents. Therefore, it is not available to the official respondents to say that the record has been burnt particularly when they had the copies of applications bearing stamp with them for the last two years. Second contention of the learned Assistant Advocate-General was regarding amendment in Rule 11-A brought about in 2009. The amended Rule 11-A reads as under:

"11-A. Where a civil servant dies while in service or is declared invalidated or incapacitated for further service who applies within a period of two years of death, or declaration of invalidity or incapacity of civil servant, on any of the basic scales 1 to 15, in the Department where such civil servant was working provided that such appointment shall be made after fulfillment of formalities as required in the recruitment rules and holding interview for the post applied for. Further provided that the cut-off date for appointment under deceased quota to the scales in BS 1 to 15 will be 17-7-2007." This amendment, as stated above, was brought about on 17-7-2009. A Division Bench of this Court which decided Irrigation and Power Employees Union's case (supra) observed as under:

"It is by now well settled that Notifications operate only prospectively. A vested right can be taken away retrospectively only through an enactment passed by an Assembly or Parliament but not through subordinate legislation i.e. through issuance of Notifications by executive. In the present case, as the change in rule 11- A of Sindh Civil Services (Appointment, Promotion and Transfer) Rules, 1974 has been brought about through a notification, it can only have prospective effect. Therefore, the notification issued on 17-7-2009 shall become applicable from 17-7-2009 onwards only. Prior to this date, if a right of employment has already accrued to any of the children of a deceased or invalid or incapacitated civil servant then the former cannot be deprived of the benefit accrued to him under notification dated 11-3-2008 through a subsequent notification issued on 17-7-2009." Consequently, this petition is allowed and respondent No.3 is directed to issue letters of appointment and posting orders of the petitioners within a period of one month. H.B.T./H-1/K Petition allowed.