2022 PLP (C (PLC(CS))

KAMRAN HAYAT MIANKHEL, J.

By means of this constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has prayed for the following relief:- "It is, therefore, most humbly prayed that on acceptance of the instant writ petition, the impugned illegal act of the respondents by not appointing the petitioner on the quota reserved for the employees retired on medical board may please be declared illegal, unlawful, against the rules and policy on the subject and be set aside and respondents may please be directed to appoint the petitioner on the quota reserved for permanently incapacitated/invalidated employees as provided in Rule 10(4) of Civil Servants (Appointment, Promotion and Transfer) Rules, 1989. Any other relief as deem fit and appropriate in the attending circumstances may also be granted."

2. The facts of the case, in brief, are that the wife of the petitioner was appointed as Female Welfare Assistant (BPS-5) by the respondent/ Department vide appointment order bearing No.1(2)2009-10/Admn: dated 17.04.2010, in the office of Population Welfare Officer, District Lower Kohistan. The petitioner's wife, after rendering her services for a decade, finally retired from service on medical ground vide office order dated 26.05.2021, being permanently incapacitated / invalidated for further service. According to the petitioner, he becomes entitled to be appointed under Rule 10(4) of the Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989, after the retirement of his wife on medical grounds. The petitioner has moved application for appointment, however, no response has been given to the petitioner. Hence, this petition.

3. Arguments heard. Record perused.

4. Perusal of the record reveals that wife of the petitioner was employee of the Population department in District Lower Kohsitan. The wife of the petitioner has been retired from service on medical ground on 26.05.2021. The petitioner has applied for his appointment against any post commensurate to his qualification against quota reserved for employees who retired on medical ground but no response has so far been given by the respondents.

5. The government has formulated a policy and also framed rules for appointment of children and widow of the employees who had been retired from service on medical grounds or died during service. In this regard, Rule 10(4) of the Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989 being relevant is reproduced below for convenience. "

10. Appointment by Initial Recruitment (1) Initial appointment to posts in various basic pay scales shall be made- (a) .or (b) . (2) . (3) . (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 Khyber Pakhtunkhwa Public Service Commission."

6. It is obvious that if a civil servant dies, or renders invalidated or incapacitated permanently during his/her service, one of his/her child or widow/wife may be appointed to a post in any of the basic pay scales Nos.1 to 15, if he/she possesses minimum qualification prescribed for appointment against such post. However, in the said Rule, there is no scope of appointment for a widower/husband in case his wife dies during service or retires on medical ground except one of her children be appointed according to his/her qualification. Thus, in view of explicit Rules on the subject, which provides only for appointment of one of her children in basic pay scale 1 to 10, the petitioner cannot be appointed against said quota being widower/husband and said quota is reserved only for children of deceased employees who dies during service or those employees who retires on medical grounds.

7. It is also to be mentioned here that the Government of Khyber Pakhtunkhwa Establishment Department (Regulation Wing) has issued a Circular bearing NO.SOR-VI/E&AD/8.17/2021/Vol-II dated 18.01.2022, according to which, a widower (husband) is not entitled for appointment under Rule-10(4) of the Khyber Pakhtunkhwa, Civil Servants (Appointment, Promotion and Transfer) Rules, 1989.

8. In view of the above discussion, the present writ petition being bereft of any merit stands dismissed. SA/193/P Petition dismissed.