2018 PLP (C (PLC(CS)N)

MALIK HAQ NAWAZ, J

The gist of the present writ petition in brief is that the petitioner No.1 was appointed as Arabic Teacher BPS-7 on 13-07-1987, petitioner No. 2 on 13-07-1987, petitioner No.3 BPS-9 on 04-02-2002 and petitioner No.4 BPS-9 on 02-09-2009. Per contention of the petitioners the Writ Petition No. 42/2012 filed by the other petitioners was allowed by this Court vide order/judgment dated 06-06-2013 and the case of the petitioners being at par, they are also entitled for the following relief as per prayer clause, which is reproduced as under:- "It is therefore humbly prayed that by accepting this petition direct the respondents to upgrade the post of the petitioners Nos.1 and 2 in BPS-9 to BPS-14 w.e.f. 01-06-1991 and BPS-16 w.e.f. 28-05-2010 and award BPS-14 to the petitioners Nos.3 and 4 in BPS-9 to 14 w.e.f. their initial appointment with consequent financial benefits as per Government orders vide Finance Division (r.w.) Islamabad O.M. No. F: IX (2)/R.1/91-762, dated 18-07-1991 and also on the basis of judgment dated 06-05-2013 passed by this Hon'ble Chief Court in Writ Petition No.42/2012 to meet the ends of justice."

2. On the other hand the learned Assistant Advocate General and the learned counsel for the respondents submitted that the petition is based on misrepresentation of facts, as the petitioners are not Arabic Teacher and they are OT Teachers. Petitioner No. 1 was appointed as MT BPS-7 on 13-07-1987 instead of OT. The learned Assistant Advocate General and learned counsel for the Education Department further submitted that petitioners Nos.2 to 4 are OT and not Arabic Teachers as stated in the petition. The learned counsel further submitted that petitioner No.1 filed departmental appeal for up gradation on 30-08-2004 but his appeal was dismissed on the plea that his initial appointment was as MT and not as Arabic Teacher. They further stated that in the year 1991 no post of OT was available. Chief Secretary Gilgit-Baltistan on the recommendation of Secretary Education upgraded the post of petitioners vide office order dated 19-12-2011 and their eligibility has been shown as OT (BPS-14) and not as Arabic Teacher as claimed. The writ is not maintainable and liable to be dismissed. The law of laches is fully attracted in the case.

3. We have heard the learned counsel for the parties and perused record of the case and all the relevant documents presented by both the parties. As evident from the parawise comments submitted by the respondents no any post of OT was upgraded in 1991. The posts of OT has been upgraded by the Chief Secretary Government of Gilgit-Baltistan vide office order No. Sec-Edu-1(26)/2009, dated 31-03-2010 in the year 2010. Notification dated 31-03-2010 is reproduced as under:- Government of Gilgit-Baltistan Gilgit-Baltistan Secretariat (Secretary Education) No. Sec. Edu-1(26)/2009 Gilgit dated 31 Mar, 2010. OFFICER ORDER The Chief Secretary, Gilgit-Baltistan has been pleased to approve up-gradation of the posts of OT/Arabic Teacher, PET/PTI and DM (BS-09) to BS-14 in the Education Department Gilgit-Baltistan with immediate effect without any retrospective financial benefits on the part Government of Gilgit-Baltistan. Promotion of the incumbents in BPS-14 will be considered as per terms and conditions laid down in Finance Division OM No. F.1 (2)/R.I/91-762, dated 18th July 1991. Sd/xxx (RASHIDULLAH KAHN) Section Officer Education Ph:- 05811-960412 In the light of above notification Education Directorate issued Notification No. DE-3(4)/2011(Admin) dated 19-12-2011, wherein the name of petitioner No. 1 figures at serial No. 14, while the name of petitioner No. 4 at serial No. 18 and in office order dated 04-02-2011 the petitioner No. 2 is placed at serial No. 18 and the petitioner No. 3 at serial No.

19. The petitioners kept mum since 2010 and 2011. Law of laches is fully attracted in the case. The wisdom is sought form the following judgments. (i) PLD 2007 SC 472 (g) Constitution of Pakistan (1973)

Art. 199

Constitutional petition

Laches

Principles

Laches per se is not a bar to the constitutional jurisdiction and question of delay in filing would have to be examined with reference to the facts of each case

Question of delay/laches in filing constitutional petition has to be given serious consideration and unless a satisfactory and plausible explanation is forth coming for delay in filing constitutional petition, the same cannot be overlooked or ignored subject to facts and circumstances of each case. [p. 491] G & H (ii) 2012 CLC 1729 (c) Constitution of Pakistan

Art 199

Constitutional petition

Laches

Aggrieved person may invoke the jurisdiction of the High Court under Article 199 of the Constitution within "reasonable time" and "reasonable time" had been interpreted as 90 days. [p. 1734] D iii. 2004 MLD 2024 (d) Constitution of Pakistan (1973)

Art. 199

Constitutional petition

Laches

Order was passed on 13-04-2004

Petition filed on 26-06-2004 suffered from laches. [p. 2029] D iv. PLD 2003 SC 132 (e) Constitution of Pakistan (1973)

Art. 199

Constitutional Jurisdiction of High Court

Scope

Laches

Effect. Writ jurisdiction is undoubtedly discretionary and extraordinary in nature which may not be invoked by a party who demonstrates a style of slackness and laxity on his part. Furthermore, if a party does not choose legal remedy available under the statute, strictly speaking constitutional jurisdiction of the High Court cannot be exercised in his favour. Law is well settled that a party guilty of gross negligence and laches is not entitled to the equitable relief. One who seeks equity must show that equities lean in his favour. v. 2013 MLD 287 (g) Constitution of Pakistan

Art. 199

Constitutional petition

Laches or delay

Legal effect

Laches per se would not be a bar to constitutional jurisdiction of High Court

Question of delay in filing constitutional petition would be examined with reference to facts of each case

Where facts of case and dictates of justice demanded, laches of several years could be overlooked or laches of few months might be fatal

Delay would defeat equity

Equity would aid vigilant and not indolent

Superior courts refuse to come to the aid of a party having not been diligent, vigilant and acted in a prudent manner. vi. 2004 MLD 2024 (d) Constitution of Pakistan (1973)

Art. 199

Constitutional petition

Laches

Order was passed on 13-4-2004

Petition filed on 26-6-2004 suffered from laches.

4. The Notification No. Sec. Edu-1(26)/2009, dated 31-03-2010 clearly depicts that the up-gradation of the petitioners from BPS-09 to BPS-14 will be with immediate effect and no retrospective financial benefit will be admissible to them, which was accepted by the petitioners without any reservation and the designation of the petitioners has been shown as OT and not as Arabic teacher, but in writ petition they have been shown as Arabic teacher, which is incorrect and against the official record.

5. In the view of above legal as well as the factual background that the petitioner slept over the matter for decades and they are not Arabic teacher further they cannot be allowed to reap the benefit of their own laxity and the petition is liable to be dismissed on ground of laches coupled with their being from different cadre.

6. In view of above discussion, we are not inclined to accept the petition, which is dismissed being meritless. ZC/224/GB Petition dismissed.