2019 PLP (C (PLC(CS))

ABDUL SHAKOOR, J.

Muhammad Usman Khan and 8 others, petitioners, seek the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and praying that: "It is therefore, most respectfully prayed that on acceptance of this petition this Hon'ble Court may be pleased to: I. Declare the impugned notification dated 08.03.2017 whereby the appointments of the petitioners have been placed/held in abeyance and any subsequent order to his effect may be declared as illegal, unlawful and without any lawful authority. II. Direct the respondents to reinstate the petitioners into service with all arrears and back benefits. III. Direct the respondents to treat the petitioners in accordance with law and to let them continue their service in accordance with the rules/regulations. IV. Any other relief deemed appropriate in the circumstances of the case may also be allowed.

2. The brief facts leading to the instant petition are that Khyber Pakhtunkhwa, Public Service Commission, vide advertisement No.04/2014 dated 18.07.2014 advertised 263 posts of Assistant Sub-Inspectors (male) and 29 Posts of Assistant Sub-Inspectors (Female) for the recruitment in the police department. Petitioners in the light of said advertisement applied for the posts of ASIs. They after qualifying the entire required tests meant for the selection of ASIs have been held eligible to appear in viva voce. Before their viva-voce the Public Service Commission asked them to get their upper age relaxed from the concerned quarter, since the same deficiency would not make them eligible to appear in viva voce. In view of this position, they applied the Government and got relaxation in their upper age. The Public Service Commission after the relaxation of their upper age called them for viva-voce, wherein, they got success and resultantly were recommended for their appointments as ASIs. Accordingly the police department issued notification for their appointment as ASIs. Subsequently, they were posted at various police stations of this province as ASIs. They served in police department for one month and also paid salaries thereof. Before the petitioner would serve further as ASI in the police department suddenly in the second month of their service they were informed by respondents that as a consequence of 29th meeting of Police Policy Board the notification of their appointments have been held in abeyance till the decision of this Court in the cases of those candidates who were not awarded age relaxation by the Government of Khyber Pakhtunkhwa. All the petitioners being aggrieved form the order of respondents whereby their appointment notification were held in abeyance preferred appeals before the Worthy Inspector General of Police, Khyber Pakhtunkhwa, but nothing was done upon their said appeals. In the meanwhile, this Court passed his decision in the W.P No.4616-P/2016, which was filed by those who have not been granted age relaxation. The petitioners after the decision of this Court were very hopeful that they will be allowed to serve as ASIs on the basis of the notification of their appointment notification, as the same was held in abeyance till the decision of this Court, despite that they have not been called to serve the police department as ASIs. Hence this petition.

3. This Court in view of the facts and grounds of the instant petition vide order dated 08.08.2017 directed the respondents through Mr. Mujahid Ali; AAG to file their comments within a week and they were issued notice of interim relief for 17.08.2017. The respondents did not file their comments within one week time as directed by this Court. On 17.08.2017 Mr. Mujahid Ali, Addl: AG appeared on behalf of the respondents and requested that he be given a final opportunity to consult the respondents as why the appointment orders of the petitioners were held in abeyance despite the fact that they have earned one month salary against their service. The matter was adjourned to 23.08.2017. On 23.08.2017, Mr. Rahim Shah, the learned Assistant AG appearing for the respondents and Falak Nawaz, AIG who appeared as representative of the respondents sought adjournment, to again consult the respondents and the matter was adjourned for 24.08.2017.

4. Today, Mr. Mujahid Ali, the learned Addl: AG and Falak Nawaz, AIG present in Court on behalf of respondents when asked as what was their response regarding the order impugned herein after consulting the respondents, they could not advance any valid reason/justification, rule, regulation or law which may have justified and authorized them to held the appointment notification of petitioners in abeyance. It was only stated that that respondents in order to avoid the complications which may arise due to decision of this court in the case of those candidates who have not been granted age relaxation by Government have held the notification of appointment of petitioners in abeyance. After the acceptance of the petition of those candidates, now the matter is before the apex Court.

5. We have considered the submissions of learned counsel for petitioners and learned AAG for respondents and carefully gone through the record.

6. This Court is conscious of the fact that the present petitioners are government/civil servants and they in the case of violation of their rights in regard to their terms and conditions of service due to the barrier of Article 212 of the Constitution cannot invoke the constitutional jurisdiction of this Court. The issue in hand of holding the appointment notification/orders of petitioners in abeyance by the respondents on the face of it appears is not falling within the purview of the terms and conditions of the service of petitioners, thus ,this Court can look into the matter in hand.

7. This Court thoroughly examined the Police Rules and Khyber Pakhtunkhwa Civil Servants Act, 1973 and other relevant laws but did not find a provision where-under any competent authority may hold the appointment order of Civil/Governments servants in abeyance. Thus the holding of notification/order of appointment of petitioners in abeyance on the part of respondents is a classic example of misuse of authority and power. This act of the respondents clearly shows they have not dealt the petitioners in accordance with the law applicable in their case which is against the mandate of Article 4 of the constitution. If, something was wrong on the part of petitioners then they were to issue charge-sheet or explanation letter in accordance with rules, regulation and law applicable in their case. The act of respondents of holding the appointment notification/order of petitioners in abeyance without lawful authority clearly demonstrates that they have acted like a king or emperor which in the presence of Article 5 of the constitution is not permissible. As its provision commands every person even the President and Prime Minister of Pakistan cannot act in violation of the provision of the constitution and law of land. Therefore, we have no hesitation in holding that the respondents were having no lawful authority and jurisdiction to hold the notification/order of appointment of petitioners in abeyance.

8. For what has been discussed above we admit and allow this petition and set aside the impugned order whereby the notification/ appointment order of the petitioners was held in abeyance. ZC/1/P Petition allowed.