2023 PLP (C (PLC(CS))

IJAZ ANWAR, J.

Through this single judgment, we intend to decide the instant writ petition and Writ Petitions, listed below, since in all these cases, vires of Section 3 of the Khyber Pakhtunkhwa (Appointment, Deputation, Posting and Transfer of Teachers, Lecturers, Instructors and Doctors) Regulatory Act, 2011 (hereinafter to be referred as "the Act") have been questioned. The connected writ petitions are:- i. W.P. No.2598-P/2014 titled, Mst. Neelam Bibi v. Government of Khyber Pakhtunkhwa through Secretary, Elementary and Secondary Education, Peshawar and others ii. W.P. No.1540-P/2019 titled, Mst. Rehmat Bibi v. Government of Khyber Pakhtunkhwa through Secretary, Elementary and Secondary Education, Peshawar and others iii. W.P. No.106-P/2020 titled, Sana ur Rehman and others v. The Government of Khyber Pakhtunkhwa through Secretary Education, Peshawar and others iv. W.P. No.1907-P/2020 titled, Mst. Sana v. The Secretary Elementary and Secondary Education, Peshawar and others v. W.P. No.2631-P/2020 titled, Mst. Nadia Fayaz v. The District Education Officer (Female), Nowshera and others vi. W.P. No.2651-P/2020 titled, Mst. Zainab Aziz Khan v. The District Education Officer (Female), Nowshera and others vii. W.P. No.3134-P/2020 titled, Mst. Robeen Kausar v. Government of Khyber Pakhtunkhwa through Secretary Elementary and Secondary Education, Peshawar and others viii. W.P. No.3147-P/2020 titled, Muhammad Shahid and another v. Government of Khyber Pakhtunkhwa through Secretary Education, Peshawar and others ix. W.P. No.3351-P/2020 titled, Rahim Badshah and another v. Government of Khyber Pakhtunkhwa through Secretary Education, Peshawar and others x. W.P. No.3923-P/2020 titled, Waqas Ullah v. Government of Khyber Pakhtunkhwa through Secretary Education, Peshawar and others xi. W.P. No.4611-P/2020 titled, Mir Zaman v. Government of Khyber Pakhtunkhwa through Secretary, Elementary and Secondary Education, Peshawar and others xii. W.P. No.5542-P/2020 titled, Mst. Sumera Khan v. District Education Officer (Female), Peshawar and others xiii. W.P. No.783-P/2021 titled, Mst. Fozia Shaheen v. The Government of Khyber Pakhtunkhwa through Secretary Elementary and Secondary Education, Peshawar and others xiv. W.P. No.2156-P/2021 titled, Mst. Ilham v. District Education Officer (Female), Peshawar and others xv. W.P. No.4743-P/2021 titled, Mst. Bushra Nayab v. District Education Officer (Female), Peshawar and others

2. In the instant writ petition, petitioner has prayed for the following relief:- "It is, therefore, most humbly prayed that by accepting this petition, an appropriate writ may be issued to:-- a. Declare the impugned order of respondent No.3 whereby, he appointed respondents Nos.4 to 6 who were low in merit than the petitioner as illegal, unlawful, against the merit position and thus, ineffective upon the rights of the petitioner. b. Direct the respondent No.3 to appoint the petitioner being higher on merit than respondents Nos.4 to 6. c. Grant any other remedy, not specifically asked for, deems fit and appropriate by this Hon'ble Court".

3. Comments were called from the respondents who furnished the same, wherein, they opposed the issuance of desired writ asked for by the petitioners.

4. Arguments heard and record perused.

5. In this and the connected matters, mainly the vires of Section 3 of "the Act" have been questioned on the ground that the said provision is violative of Articles 4, 9 and 25 of the Constitution of Islamic Republic of Pakistan, 1973 and that the law in question has given preference to the locals instead of merit based appointments. The main emphasis is, however, on the recent judgment of the Hon'ble Supreme Court of Pakistan passed in 2023 SCMR

217. We have gone through the said judgment of the Hon'ble Supreme Court of Pakistan which is infact a leave refusing order maintaining a judgment of this Court. Though, there are certain observations of the Hon'ble Supreme Court of Pakistan pertaining to the interpretation of Section 3 of "the Act"; however, there is also a direct judgment of the Hon'ble Supreme Court of Pakistan pertaining to the same matter, wherein, it was held that "the vacancy of primary school teacher shall be filled in from the candidates belonging to the Union Council of their permanent residence mentioned in their Computerized National Identity Card and domicile, on merit...". The said statutory provision insists upon consideration of the permanent residence of a candidate on the basis of his Computerized National Identity Card as well as his domicile and, thus, any direction issued by the High Court regarding appointment or consideration of the respondents on the sole basis of his domicile certificate has been found by us to be militating against the express statutory provision mentioned above. In these circumstances, we are constrained to observe that the impugned orders/judgments passed by the High Court in the present matters had been passed and issued while departing from the above mentioned statutory requirements. In this view of the matter this appeal and all these petitions are disposed of with a clarification that while considering the matter of appointment of the private respondents the appellants/petitioners shall adhere to the above mentioned statutory requirements and shall dispose of all the matters in accordance with the law. With these observations and clarification, this appeal and these petitions are disposed of".

6. The main issue involved in these cases is that the petitioners are not fulfilling the criteria as provided under Section 3 of "the Act". Section 3 of "the Act", being relevant in the controversy, is reproduced as under:- "

3. Appointment, posting and transfer of primary school teachers. (1) The vacancy of primary school teacher shall be filled in from the candidates belonging to the Union Council of their permanent residence mentioned in their Computerized National Identity Card and domicile, on merit and if no eligible candidate in that Union Council is available where the school is situate, such appointment shall be made on merit from amongst eligible candidates belonging to the adjacent Union Councils: Provided that on availability of a vacancy, a primary school teacher, appointed from adjacent Union Council, as referred to in this subsection, shall be transferred against a vacant post in a school of the Union Council of his residence within a period of fifteen days. (2) Upon marriage, the primary school teacher on request may be transferred to the school in the Union Council, where his spouse, ordinarily resides, subject to the availability of vacancy. (3) The primary school teacher shall be transferred to other school within the Union Council on completion of tenure as may be prescribed subject to the policy of rationalization for maintaining certain student teachers ratio, if any. (4) Government shall, within a period not exceeding one year of the commencement of this Act, make arrangement for posting of all the primary school teachers appointed prior to coming into force of this Act, to the schools of their respective Union Councils or adjacent Union Councils, as the case may be".

7. The above provisions are clear enough which provide that the post of Primary School Teacher shall be filled in from the candidates belonging to the Union Councils of their permanent residence mentioned in their CNICs and domiciles on merit. This issue also recently came up for hearing before a Larger Bench of this Court in Writ Petition bearing No.4347-P/2017 titled "Sidra Bibi v. Secretary, Elementary and Secondary Education, Government of Khyber Pakhtunkhwa and others", and almost all issues involved in these cases were addressed and decided vide judgment and order dated 24.02.2020. Relevant para of the said judgment is reproduced as under:- "Since, at the time of closing date of application, the permanent address of the petitioner in her CNIC was not falling within the limits of Union Council Toda Khazana, therefore, in view of the judgment dated 08.10.2019 rendered in Criminal Appeal No.01-P of 2019, Civil Petitions Nos.6-P, 7-P, 8-P, 54-P, 275-P, 288-P, 294-P, 295-P, 296-P, etc, she has rightly been refused appointment by the respondents against the post of PST. Deriving guidance from the judgment (ibid), this writ petition is hereby dismissed".

8. Interestingly, some of the cases have earlier been allowed by this Court and those petitioners were allowed appointments in contempt proceedings subject to the decision of the apex Court and the apex Court in Criminal Appeal No.01-P of 2019 decided on 08.10.2019 allowed the appeal and petitions and held that "any direction issued by the High Court regarding appointment or consideration of the respondents on the sole basis of his domicile has been found by us to be militating against the express statutory provisions. It was further held that in these circumstances, we are constrained to observe that the impugned orders/judgments passed by the High Court in the present matter had been passed and issued while departing from the above mentioned statutory requirements". Thus, despite the judgment of the apex Court, again writ petitions were filed against their termination orders and also vires of Section 3 of "the Act" have been questioned. To our understanding, those petitions were not maintainable being hit by the provisions of Order-II Rule 2 of the Civil Procedure Code, 1908; besides, after the observations of the Hon'ble Supreme Court of Pakistan in the above referred judgment, how can this Court again adjudicate their cases when their termination from service was pursuant to the orders of the apex Court.

9. It is pertinent to mention here that the legislative enactment could be struck down by this Court only on two grounds where the appropriate legislature did not have competency to make the law and secondly, the enactment abridged any of the fundamental rights enshrined in the Constitution or any other constitutional provisions. Reference can be made to the case titled "State of M.P v. Rakesh Kohli and another (2013 SCMR 34)".

10. We are faced with similar situation frequently and find that in many cases, candidates have domiciles of different Districts/ places at a time and they are applying simultaneously on these domiciles, depriving the genuine candidates of the same area of their rights. It is the need of the hours that a uniform and online system be developed, whereby, only one domicile is to be retained at a time as required under the law. Except the Khyber Pakhtunkhwa Public Service Commission, no other Departments have the capacity to check the practice of applying for appointment on different domiciles simultaneously. This issue requires to be resolved by the Government because, on the issue of double domiciles, there are hundreds of cases of appointments as well as for admission in colleges and institutions.

11. The facts in some of the cases pending today, we have noticed that candidates have changed their addresses in their CNICs after the cut-off date to bring them eligible within the meaning of Section 3 of "the Act", albeit, it is by now well settled that a candidate must be eligible in all respect in accordance with the advertisement on the last date of submission of applications for appointment and any subsequent changes after the cut-off date for bringing such candidate as eligible, are not sustainable.

12. We have also noted that some of the female candidates have applied on the domiciles of their husbands for appointment in terms of Section 3 of "the Act"; however, the addresses given in their domiciles as well as in the CNICs are also not tallying each other, because, even after changing the addresses in their CNICs after marriage, still the addresses in CNICs vary from the addresses of their husbands' domiciles certificates.

13. It is pertinent to mention here that pursuant to the impugned advertisement and Act, the petitioners have applied for appointments and it was never questioned at any stage, because, all these advertisements have duly mentioned that the addresses of the candidates must be in accordance with Section 3 of "the Act"; thus, when they were found ineligible, now they have belatedly questioned the vires of law. Such plea is also hit by the principle of waiver.

14. In view of the above, we have not found Section 3 of "the Act" to be violative of any of the express provisions of law or constitution or any incompetence in the legislative body that promulgated it. As such, this and the connected writ petitions, having no merit, stand dismissed. MQ/124/P Petition dismissed.