2012 PLP (C (PLC(CS))

WAQAR AHMAD SETH, J.

Instant judgment shall also decide W.Ps. bearing Nos.3848, 1668, 3951 of 2010 and 2330 of 2011 as in all the petitions the petitioner seeks appointment against the post of A.S.I. under the deceased's sons employees quota.

2. Facts of the instant writ petition are that father of petitioner, namely, Ghuncha Gul joined Police Department as Constable on 16-10-1975 and was finally promoted as Sub-Inspector on 7-6-2005. While posted at Police Station Yar Husain, Swabi, during the . raid conducted for the arrest of proclaimed offenders, he suffered heart.attack due to exchange of fire shots and ultimately breathed his last in the hospital on 8-1-2010, therefore, being his real son seeks appointment as an A.S.-I. having passed Graduation in the year, 2009 against the quota reserved for deceased's son.

3. Background of W.P.3848 of 2010' is that father of petitioner, namely, Hazrat Khan, who was serving as Sub-Inspector at DCT/CID, Peshawar and during encounter with narcotics smugglers, he died on 20-9-2003, hence the petitioner being his real seeks appointment as an A.S.-I. against the quota reserved for the children of the deceased.

4. Facts of W.P.1668 of 2010 are that father of petitioner (Faridullah Khan) was appointed in Police Department in the year, 1978 and was subsequently promoted/confirmed as Inspector (BPS-16) vide Notification dated 26-10-2005. While posted as Inspector, Anti-Corruption, Peshawar he suffered from Hepatitis-C and died on 22-9-2007 leaving behind a widow and six children, hence the petitioner being his son applied to respondents twice for appointment as an A.S.-I. against the reserved quota but his request was not acceded to.

5. Facts of W.P.3951 of 2010 are that father of petitioner, namely, Noor Muhammad was serving in Police Department as Sub-Inspector, who died on 2-9-2000 during his service. The petitioner being son of the deceased and haying the requisite qualification of FA, applied to respondents for appointment as an A.S.-I. but his request was turned down.

6. In W.P.2330 of 2011, the petitioner being real son of deceased, namely, Bahadar Sher Khan, who was serving as Sub-Inspector in Police Department and died during service due to Cardiopulmonary Arrest, therefore, applied to respondents for appointment as an A.S.-I. having the prescribed qualification but his request was not entertained.

7. At the outset, learned counsel for petitioner referred to W.Ps.1182 of 2003 and 98 of 2009 decided on 18-6-2004 and 3-3-2010, respectively, wherein, it was held that under the relevant rules son of the deceased civil servant is to be appointed on a post for which he possesses the required qualification irrespective of the fact that the same falls within the purview of N.-W.F.P. Public Service Commission.

8. As against that learned, DAG representing the respondents relied on Clause (ii) of Rule 3 of the N.-W.F.P. Public Service Commission (Functions) Rules, 1983, wherein, posts in basic pay scales 11 to 15 or equivalent, specified in the listed departments therein, except district cadre posts, have to be recommended for appointment by the NWFP Public Service Commission, thus, until'and unless the petitioner undergo the screening test and interview successfully, he could not be extended the benefit of sub-rule (4) supra, therefore, he is not, entitled to be appointed on the strength of the said rule.

9. On 20-9-2011, while admitting the instant writ petition to' regular hearing, this court observed that 'whether Rule 10(4) of the N.-W.F.P. Civil Servants (Appointment, Promotion and Transfer)" Rules, 1989, which, prima facie, overrides Rule 10(2) can have the effect of overriding any other rule or law for the time being in force ' including the Public Service Commission Ordinance'. In this respect, we I are of the view that the legislature has given the answer to this query in Rule 10(4) by saying "where a civil servant dies 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 of such civil servant, to a post in any of the basic pay scales 1 to 15. " Similarly, on 5th September, 2006, the Establishment and Admn. Department Government of N.-W.F.P. have also issued a Notification in this regard., Since rule 10(4) has overriding effect, therefore, it attains the status of special provision/law, thus, special law will prevail on the general law.

10. Admittedly, the judgments delivered by this court in the aforementioned writ petitions have attained finality as the same have been followed in a number of other cases and is still in the field. In view of the law as referred to above as well as dictum laid down by this court c in the cases as mentioned in the earlier part of this judgment, this petition and the connected writ petitions are allowed. The respondents are directed to consider the case of the petitioner as an A.S.-I. on the strength of sub-rule (4) of Rule 10 of N.-W.F.P. Civil Servants (Appointment, Promotion and Transfer) Rules, 1989. H.B.T./383/P?????????????????????????????????????????????????????????????????????????????????????? Petitions allowed.