2012 PLP (C (PLC(CS))

SYED SAJJAD HASSAN SHAH, J.-- By way of this petition, the petitioner has sought the following relief: "It is, therefore, humbly prayed that on acceptance of this petition this Hon 'ble Court may kindly be pleased to direct the respondents to act in the matter in accordance with law and to consider petitioner as for the appointment as Naib Tehsildar BPS-14 and to appoint him accordingly. "

2. Brief facts of the case are that the father of the petitioner was an employee in the respondent's department, who has been passed away during his service and the petitioner being his son seeking his employment as Naib Tehsildar as per provisions contained under Rule 10(4) of the N.-W.F.P. Civil Servant Appointment, Promotion and Transfer Rules 1989, wherein, it has been provide that:

"Notwithstanding the procedure prescribed in sub-rule (2) the appointing authority may appoint one of the children of the deceased civil servant who died during service to a post in any basic pay scale Nos.1 to 15 provided that the child possesses the minimum qualification prescribed for appointment to the post, the appointment aforesaid shall be subject to the availability of the vacancy and if two or more vacancies in different pay scale are available at a time and the child possess the qualification which makes him eligible for appointment to more than one post he shall be appointed to the post carrying higher pay scale." It is further averred by the petitioner that at the timm, of death of his father he was student and after, his graduation applied for the post of Naib Tehsildar in the year 2005. His application was not considered, whereas, from time to time on vacation of posts, the appointments against the said posts have been made by the respondents. Moreover, the petitioner done his LLB in the year 2007 and claimed that he is fit for appointment as Naib Tehsildar in (BPS-14). Arguments considered and record carefully perused. The only question agitated by the learned A.A.-G. that the father of the petitioner died in the year 1985 prior to the promulgation of the N.-W.F.P. Civil Servant Appointment, Promotion and Transfer Rules, A 1989, therefore, the benefit of said rules cannot be extended to the . petitioner. The relevant para-3 of the comments is reproduced as under:

"Correct. The case' of the petitioner for appointment as Naib Tehsildar under deceased son's quota was examined under Rule 10(4) of Civil Servant (Appointment Promotion and Transfer) Rules, 1989, which provides that the procedure prescribed in sub-rule (2) the appointing authority may appoint one of the children of the deceased civil servant who died during service to a post in any of the basic pay scales Nos.1 to 15, provided that the child possesses the minimum qualification prescribed for appointment to a post. As the post of Naib Tehsildar meant for initial recruitment is filled through Public Service Commission, Khyber Pakhtunkhwa, and not through Departmental Selection Committee, as such the request of the petitioner was filed by the competent authority." Similar matter has already been come for consideration of his lordship Hon'ble Mr. Justice ljaz Afzal Khan, the Chief Justice of Peshawar High Court, Peshawar, wherein, it was observed that:

"It is not disputed on the record that the father of the petitioner was a former employee of the Education Department and died during his service. When so he would be an employee to all intents and purposes, notwithstanding the rules giving right to the employees son were promulgated in the year 1989. Even, otherwise, this is settled law of the land that a statute or rule giving right to the citizens always invariably operates retrospectively."

6. In such like cases another question cropped-up for consideration that the appointment of civil servant of the grade for which the petitioner is seeking his appointment to be filled by the Public Service Commission as it falls within the purview of the Public Service Commission. In this regard, reliance placed upon an unreported judgment of this Court bearing No. W.P. No.47 of 2005 decided on 26-11-2008.

8. In view of the above, this petition is allowed and we direct the respondents to appoint the petitioner on a vacant post of Naib Tehsildar (BPS-14) subject to the availability of the post falling within the quota meant for the son/daughter of the deceased civil servant without making any requisition to the N.-W.F.P. Public Service Commission. No order as to costs. S.A.K./320/P Petition accepted.