1998 PLP (C (PLC(CS))

ZIA MAHMOOD MIRZA, J.

Allah Diwaya, uncle of Khalid Nadeem, the present petitioner was a Porter (Qulli) in BPS-1, in C & W Department, Government of N.-W.F.P. While it. service, he was struck with paralysis and was retired on medical ground on 30-6-1991. It appears that while Allah Diwaya was on medical leave, Muhammad Mushtaq respondent was appointed in his place against the leave vacancy on 22-4-1991 and his service was later regularised on 30-6-1991. Five months thereafter, Allah Diwaya and the present petitioner brought a suit for declaration that on the retirement of Allah Diwaya from service on medical ground, the vacancy should have been filled by appointing his nephew Khalid Nadeem in accordance with the rules and departmental practice. They also challenged the appointment of Muhammad Mushtaq alleging that it was violative of the rule and the Government policy.

2. Learned trial Court after recording the evidence adduced by both the parties dismissed the suit holding that the plaintiffs had no cause of action to assail the appointment of Muhammad Mushtaq which was made lawfully and by competent Authority. It was also observed that the plaintiffs never moved any application for appointment of Khalid Nadeem nor did they ever object to Mushtaq's appointment until they brought the suit and by that time, Mushtaq had already served on the post for about 8 months.

3. Khalid Nadeem alone challenged the judgment and decree of the trial Court in an appeal which, too, was dismissed by the learned District Judge holding that no law was produced before him to show that the departmental authorities were bound to appoint the petitioner as Qulli in place of his uncle Allah Diawaya. It was observed that the petitioner was not the real son of Allah Diwaya and, therefore, had no right of appointment in his place. Petitioner then invoked the revisional jurisdiction of the High Court but with no better result as his revision petition has also been dismissed by a learned Single Judge vide judgment dated 12-2-1995. Petitioner has now approached this Court to seek leave to appeal against the judgment of the High Court.

4. We have heard the learned counsel for the petitioner. He has not been able to point out any illegality or any other infirmity in the impugned judgment of the High Court or of the Courts below. Law regarding the appointment of the children of a deceased civil servant is contained in Rule 10.(4) of N.-W.F.P. Civil Servants (Appointment, Promotion and Transfer) Rules, 1989. The provision in its relevant aspect is reproduced hereunder:-- "(4) Notwithstanding the procedure prescribed in sub-rule (2), the appointing authority may appoint one of the children of a deceased civil servant, who died during service, to a post in any of the Basic Pay Scales Nos. I to 15, provided that the child possesses the minimum qualification prescribed for appointment to the post." A bare reading of this provision quite clearly shows that it is for the benefit of the children of a civil servant who has died during service. In the present case, it is an admitted position that neither the petitioner is son of Allah Diwaya nor the latter died during service. He had, in fact, retired on medical ground. In the circumstances, petitioner had no lawful claim to be appointed to the post which fell vacant on the retirement of Allah Diwaya. We find from the impugned judgment of the High Court that the petitioner had abandoned his claim on the basis of relationship. Learned counsel has submitted that the counsel appearing for the petitioner in the High Court had no authority to abandon the claim made by the petitioner. Even if that were so, petitioner in any case, as held above, was not entitled in law to be appointed to the post in question.

5. Learned counsel next sought to assail the appointment of Mushtaq respondent contending that his appointment was made on the recommendation of Chairman, District Development Committee which was violative of the rules. We find no merit in this contention. Learned trial Court has found on the basis of evidence that the said respondent was regularised in view of his service record and not on the recommendation of defendant No. 7 and that "His regularisation was made by the competent departmental Authority". Even otherwise, the petitioner having never applied for the post and his claim on the basis of relationship being unsustainable in law, he had no locus standi to challenge the respondent's appointment.

6. Upshot of the above discussion is that there is no merit in this petition which is accordingly dismissed and leave sought is refused.