2018 PLP (C (PLC(CS)N)

Learned A.A.G. files comments on behalf of respondents Nos.1 to 3, taken on record. At the outset reply of paragraph No.5 is that:- "As regards the contents of Para 5, it is submitted that the application of the petitioner was enclosed by the respondent No.3 i.e. ADEO (Male), Mirpurkhas vide his letter No.ADEO (M)/Elem:/1465/2007-08, Mirpurkhas dated 30.05.2008 to DOE Elementary, Mirpurkhas respondent No.2 and the same was further endorsed/forwarded to the EDO Education, Mirpurkhas vide his letter No.DO(Edu)/Elem:/2198/2008-09 Mirpurkhas, dated 31.05.2008 and the then EDO, Mirpurkhas forwarded the application of the petitioner to Section Officer (S-IV), Government of Sindh, Education and Literacy Department, Karachi vide his letter No.EDO(EDU)Admn-11/4047, Mirpurkhas, dated 29.04.2009."

2. At this juncture, learned counsel for the petitioner inter alia contends that the petitioner's father was serving as PST in Education Department and he died on 03.04.2008 during service thus he applied for any post in Education Department on deceased quota but his request was not considered thus having no other remedy he has approached this Court. As per comments factual aspect is not denied by the respondents however, issue of cut-off date is to be resolved.

3. Since in the case of Mir Hassan decided by this Court in C.P. No.D-294 of 2011, it was held that "purpose of section 11 is only an assurance of job as a 'help' to the family of such civil servant (deceased)". It would be conducive to reproduce paragraph 8 of said judgment, which reads as:- "

8. The earlier portion of the said rule appears to be addressing the 'Authority' whereby bringing it under a mandatory obligation (by use of words shall) to provide a job to any of the unemployed children of such civil servant but by later portion such has been made subject to activation of such family itself but without any mechanism to first inform the family of such condition which may result in costing it (family) the benefit of such 'rule' even. Let it be clear that said 'rule' addressed the family of such a civil servant and even the later portion concludes to a result that it is not necessary for applying such right that there must have been publication of jobs which usually is not advertised on falling of a single vacancy. Thus, reading of the above 'rule' as a whole would result that if such move (applying under this rule) is not within a period of two years the family shall stand deprived of benefit of rule which in all senses shall mean a penal one which should not happen without an opportunity. Therefore, if the 'Authority' does not intimate to family of such civil servant before expiry of due date the object of such insertion/amendment cannot be sad to have served it purpose and object but we regretfully note that we have not experienced a single case where department itself activated to serve the object of the said rule."

4. It is the duty of the Department to rescue the family of the deceased employee who lost his life during service. It is not expected that family of the deceased employee was having knowledge about the scope of Section 11-A hence must have approached the Department. On the contrary, it is the duty of the Department to announce/intimate the family the benefits as provided under Civil Servant Act at the time of funeral proceedings so as to ensure availing of benefit of Section 11-A without any delay. In case, if such family has no interest or not willing to get such benefit, such fact shall be taken from that family in writing otherwise it shall be department which otherwise continues with obligation to be watchful and caring for its employee particularly of his (deceased employee's) family unless the benefit, created by Government, reaches to deserving. In the instant matter, the department has not come with a plea or substance that despite efforts of department the family of deceased's employee, including petitioner, did not intend to avail the benefit hence plea of cut-off date is not of any substance because a right shall always prevail over technical/procedural knock out. Even otherwise, it is settled law that a 'right' shall not be forfeited without affording an opportunity of hearing/notice.

5. Accordingly, instant petition is allowed. Respondent No.2 shall issue appointment order in favour of the petitioner after completing the requisite formalities. Needless to mention that no delay shall be caused on the pretext of requisite formalities. Non-compliance of this order would be treated as pejorative act. This exercise shall be completed within one month. Office shall convey this order to all concerned quarters as to the learned A.A.G. for compliance. ZC/A-145/Sindh Petition allowed.