2019 PLP (C (PLC(CS)N)

SYED ARSHAD ALI, J.

Through the instant petition, the petitioner Mosawar Khan has invoked the constitutional jurisdiction of this Court with the following prayer:- "It is therefore, humbly prayed that on acceptance of the instant writ petition, this Honorable Court may kindly be issue an appropriate writ to the Respondent No.3 to appoint/re-instate the petitioner under the Khyber Pakhtunkhwa Sacked Employees Act, 2012 along with all back benefits according to the spirit of Act as per his eligibility. Any other relief which this Honorable Court deems fit and proper in the circumstances may also be very kindly granted."

2. It is averred in the petition that the present petitioner was appointed against the post of Primary School Teacher (PST) vide appointment order dated 30.11.1995 and through subsequent order dated 09.04.1996 on account of non-availability of the qualified trained primary school teachers, the petitioner along with others were ordered to continue their services till appointment of trained teachers. Thereafter, vide office order dated 24.06.1997 the petitioner was terminated from service, therefore, he is entitled to be reappointed under the enabling provisions of the Khyber Pakhtunkhwa Sacked Employees (Reinstatement) Act, 2012 ("Act").

3. On being noticed, the respondents appeared, out of whom, the respondent No. 3 submitted his comments wherein he has stated that the petitioner is not entitled to be appointed against the post of PST because at the time of his appointment he did not possess the requisite qualification and his appointment was not made against the permanent/regular post but he was appointed as stop gap arrangement purely on contract basis.

4. Arguments heard and record of the case was perused.

5. It is evident from the appointment letter of the petitioner that he was appointed as PTC teacher "ON STOP GAP ARRANGEMENT" at G.P.S Serai Nibay vide appointment order dated 30.11.1995. Through another order dated 09.04.1996 owing to the non-availability of duly qualified trained PTCs, the appointment of the petitioner along with others were ordered to be continued, however, the petitioner was terminated from service on 24.06.1997 as reflected from the record of his service book placed on file.

6. Indeed, through the instant petition, the petitioner seeks his reappointment under the Act. Moreover, it is also an admitted fact that at the relevant time the present petitioner did not possess the professional qualification for the post of Primary School Teacher (PST) i.e. a certificate of PTC and his appointment was not against the sanctioned post. Whereas the spirit of the Act of 2012 was to re-employ those civil servants who were terminated during a specific period but were appointed on a regular post and possessed the prescribed qualification. The word 'sacked employee' has been defined under section 2(g) of the Act 2012 as following:- S. 2(g):- " sacked employee" means a person who was appointed on regular basis to a civil post in the Province and who possessed the prescribed qualification and experience for the said post at that time, during the period from 1st day of November, 1993 to 30th day of November, 1996 (both days inclusive) and was dismissed, removed, or terminated from service during the period from 1st day of November, 1996 to 31st day of December, 1998 on the ground of irregular appointments." The perusal of the said definition would show that in order to qualify reappointment, the said sacked employee have to qualify the following:- i. He was appointed on regular basis to a civil post in the province. ii. He possesses the prescribed qualification/experience for the said post. iii. The appointment should have been made from 1st day of November 1993 to the 30th day of November, 1996. iv. and has been terminated from service during the period from 1st day of November 1996 to 31st day of December 1998. Although, the petitioner qualify the last two conditions but do not qualify the first two conditions, as his appointment was on stop gap arrangement and at the relevant time he did not possess the required qualification.

7. The petitioner has referred to certain judgments of this Court where similarly placed persons were ordered to be appointed, however, it is settled law that the Courts have no jurisdiction to add or subtract to the clear words of the Statute. Reliance can be placed on "Abdul Haq Khan and others v. Haji Ameerzada and others (PLD 2017 Supreme Court 105)" wherein it was observed that:- "the reading in of words or meaning into a statute when its meaning is otherwise clear is not permissible. As a matter of statutory interpretation, Courts generally abstain from providing 'casus omissus' or omissions in a statute, through construction or interpretation. An exception to this rule is, when there is a self-evident omission in a provision and the purpose of the law as intended by the legislature cannot otherwise be achieved, or if the literal construction of a particular provision leads to manifestly absurd or anomalous results, which could not have been intended by the legislature. However, this power is to be exercised cautiously, rarely and only in exceptional circumstances. Similarly, the august Supreme Court of Pakistan in case law cited as "The Collector of Sales Tax, Gujranwala v. Messrs Super Asia Mohammad Din and Sons and others reported as 2017 SCMR 1427 regarding the principle of 'casus omissus' has observed that:- "In fact the Courts should refrain from supplying an omission in the statute because to do so steered the courts from the realms of interpretation or construction into those of legislation." Therefore, extending benefit of re-employment to the petitioner would amount to addition to the clear provision of the Act, which does not envisage for re-employment of an employee who did not possess the essential qualification.

8. The matter can be viewed from another angle, the post for which the present petitioner seeks his appointment relates to teaching to students at primary level. The present petition is completely deficient regarding the fact as to whether during this intervening period from termination in the year, 1997 till today the present petitioner ever remained associated with teaching in any private or public sector schools. Although, this Court in some judgments have extended benefit of the Act to those employees who did not have the requisite qualification for the post of PST but in the present state of affairs, when the present petitioner was completely disassociated with the profession of education then it is not the job of the Court to provide employment to the people at the cost of the children, who are getting their education in public sector educational institutions. If the petitioner had the requisite ability to teach the students then during this intervening period he must have remained associated with teaching profession in private sector or at least should have improved his qualification.

9. It is clear from the conduct of the petitioner that he is not devoted to imparting education but rather he is interested in getting employment, however, the same benefit cannot be extended to the petitioner at the cost of those children who are getting their education in a government/public sector educational institutions.

10. The petitioner is also guilt of 'laches' because the Act on the basis of which he seeks his re-employment was promulgated in the year 2012 whereas he filed this petition in 2017 which is patently time-barred.

11. In view of the above, this petition has got no force, which is accordingly dismissed in limine. ZC/100/P Petition dismissed.