2019 PLP (C (PLC(CS)N)

SYED MUHAMMAD ATTIQUE SHAH, J.

Through the instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner Naseeb Ullah Khan has prayed as under:- 'That on acceptance of this writ petition, respondents be pleased to direct to appoint the petitioner on any suitable post according to the qualification of the petitioner against deceased sons quota from the date of discrimination on which any other person was appointed who had the inferior right than the petitioner and may kindly be declared the act of refusal of the respondents not to appoint the petitioner against the deceased son quota is ultra vires to the Articles 3,4,25,27 of the Constitution of Pakistan, 1973, Section 24-A of the General Clauses Act, 1897 and Rule 10(4) of the Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989'.

2. Brief but essential facts of the case are that father of the petitioner was employee of respondents/department and was performing his duty as Pump Operator against permanent post. That on 03.12.2011 during the course of service he passed away. That at the time of death of his father, petitioner was minor, who after attaining age of majority approached to the respondent/department for his appointment against the deceased sons' quota but in vain. Hence, the present writ petition.

3. We have gone through the record carefully and considered the submissions made by the learned counsel for the petitioner.

4. Admittedly the father of the petitioner died during his service and the department was duty bound to appoint anyone family member of the deceased employees. Rule l0(4) of Khyber Pakhtunkhwa (Appointments, Promotion and Transfer) Rules, 1989 on the point is very much clear, which reads as under:- Rule 10(4). Where a civil servant dies or is rendered incapacitated/invalidated permanently during service then notwithstanding the procedure provided for in sub-rule (2), the appointing authority may appoint one of the children of such civil servant, or if the child has not attained the age prescribed for appointment in Government Service, the widow/wife of such civil servant, to a post in any of the Basic Pay Scales 1-10: Provided that the child or the widow/wife as the case may be, possesses the minimum qualification prescribed for appointment to the post: Provided further that if there are two widows/wives of the deceased civil servant, preference shall be given to the elder widow/wife. Provided also that the appointment under this sub-rule is subject to availability of a vacancy and if more than one vacancies in different pay scales are available at a time, and the child or the widow/wife, as the case may be, possesses the qualifications making him or her eligible for appointment in more than one post, he /she shall ordinarily be appointed to the post carrying higher pay scale. Provided further that this shall not apply to any post in BPS-1-10 falling in the purview of the 34 [Khyber Pakhtunkhwa] Public Service Commission.

5. It is pertinent to mention here that a Writ Petition No.1022-P of 2013, titled "Irfan Ullah v. Director General, Agricultural Research" and other petitions, involving similar controversy, have been disposed of by this Court vide judgment dated 27.11.2014, therefore, this writ petition being identical in nature is also required to be given alike treatment and for the sake of reference, relevant portion of the same is reproduce as under:- "Once the government has announced a clear-cut policy for the welfare of families / sons of retired employees as well as sons / wives of the deceased employee, we don't understand that why the quarters concerned / dealing hands are so choosy and reluctant qua giving the benefit to deserving families, who, otherwise, deserve for the same and why they are compelling them to approach the Courts of law for getting their due rights, that too, when in many of the cases, against the aforesaid quotas, posts have been filled by transfer by depriving the deserving candidates. In the present scenario, instead of passing any order, which may prejudice the case of either party, we straightaway direct the respondents to look into the matter in accordance with law and policy and consider the case of each of the petitioners individually, include their names in the waiting list, if not already included and if they deserve to be considered for appointment, they should be appointed without any delay and if they refuse anyone of the petitioners for considering them for appointment solid reasons must be given for that purpose with the further direction to maintain / prepare the district-wise list, reflecting therein dates of retirement / death of the employee(s); total strength of the posts; total applications for appointments there-against; how many posts have been filled against the said quota till yet and the compliance of the said law / rules would be the responsibility of the head of the concerned department at district level, who is further supposed to affix the copy of waiting / seniority list on the conspicuous place of the office for facility of the candidates and copy of the same be also sent to the Additional Registrar (Judicial) of this Court for record, failing which, the responsible / delinquent officer / official would be dealt with under the relevant law besides disciplinary proceedings as this would amount to inefficiency on his part. It be noted that if the directions of this Court are not properly observed or those are in any manner, violated or any of the petitioners are not treated in accordance with law, the responsible person shall be taken to task and in this regard, the petitioners would be at liberty to file COC. The learned Additional Advocate General, present in Court, is also directed to convey the directions of the Court personally to the concerned quarters for doing the needful within the given time. These writ petitions are disposed of in the above terms."

6. During the course of arguments learned counsel for petitioner Produced copy of minutes of Departmental Promotion Committee dated 05.10.2018, vide which number of class-IV employees were promoted to the posts of junior clerks and stated that in result of above promotions, number of posts are lying vacant with the respondent/department to be filled by the initial appointment, but despite that the respondent/department is reluctant to appoint the petitioner on deceased sons' quota, which fact could not be controverted by the respondents.

7. Hence, in the light of above discussion, Khyber Pakhtunkhwa (Appointments, Promotion and Transfer) Rules, 1989 as well as the number of judgments already passed by this Court, we dispose of this writ petition with direction to the respondent/department to forthwith appoint the petitioner against the post in any of the Basic Pay Scales 1-10, according to his qualification. SA/40/P Petition accepte