P L D 2024 Balochistan 92 (PLP)

GUL HASSAN TAREEN J.

Through this constitution petition, the petitioner seeks setting aside of the appointment order of respondent No. 5 issued by the respondent No.

4. The petitioner has also sought writ of mandamus against the respondents Nos. 1 to 4, for his appointment against the post of Naib Qasid in Government Middle School Imam Bakhsh Kanrani.

2. The petitioner's counsel, Ms. Sarwar Mukhtiar Hina, Advocate contends that an agreement was executed on 12th December, 2006 ("agreement"), whereby the petitioner's brother namely Ali Hassan donated his ancestral land to the Education Department for up-gradation of primary school to middle school. The learned counsel added that employment of the brother and relatives of said Ali Hassan in the school was consideration for donation of the land through such agreement. The learned counsel contends that the petitioner was not appointed against the advertised vacancy of Naib Qasid by the respondents Nos. 1 to 4, though the Complaint Redressal Committee ("C.R.C.") passed favourable remarks in favour of the petitioner because of donation of land for school. In rebuttal, the learned Additional Advocate General supported the impugned appointment. Messrs Muhammad Ali Kanrani and Hazrat Ali Kakar, Advocates, representing the respondent No. 5 contend that the agreement sued upon is void and placed reliance upon the judgment of the Hon'ble Supreme Court of Pakistan titled as Umer Said and others v. District Education Officer (Female) and others, reported 2007 SCMR 296.

3. We have heard the learned counsel for the parties and perused the record with their able assistance. The petitioner has filed the instant petition on the strength of an agreement. Indeed, the petitioner has sought specific performance of the agreement through writ of mandamus. For the purpose of this petition, we refer to Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 ("the Constitution"), which reads: "

199. Jurisdiction of High Court. (1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law, -- (a) on the application of any aggrieved party, make an order-- (i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or (ii)

" In clause (i) the word "Law" means, sub-constitution piece of legislation. The relevant law in the case is section 23 of the Contract Act, 1872, which reads: "

23. The consideration or object of an agreement is lawful, unless- it is forbidden by law; or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void." The agreement is violation of the referred provision of law, as such, is against public policy. Every agreement against public policy is void in view of the referred provisions of law as such not enforceable. The respondents Nos. 1 to 4 are not under obligation to perform the agreement under the referred provision, therefore, they cannot be compelled to do an act which they are not required by the law to do. (section 23 of the Contract Act, 1872)

4. The case law referred to by the learned counsel for the respondent No. 5 bearing titled Umer Said and others v. District Education Officer (Female) and others reported 2007 SCMR 296 is relevant. The relevant portion reads: "

4. This Court in 1993 SCMR 1287 has categorically observed that the policy of making appointments against land grants is tantamount to the sale of public office for property, and further, that it was not only against the Constitution but also not conductive to public interest. We reiterate that such appointments are void ab initio. Amazingly, in the instant cases, the competent authority has, in flagrant disregard of the aforesaid verdict of this Court, had terminated the services of the petitioners because they could not donate lands to procure the job. " Apart from section 23, the Contract Act, 1872, the agreement cannot be specifically enforced/performed under section 21(g), the Specific Relief Act, 1877. Section 21 (9), reads: "S.

21. The following contracts cannot be specifically enforced:

(9) A contract, the performance of which involves the performance of a continuous duty extending over a period longer than three years from its date." In the present case, the agreement appears to be in perpetuity for all times to come, generation after generation. Such an agreement which has cast a duty of performance for a period longer than three years cannot, therefore, specifically be enforced. Section 21 relates to a specific relief which cannot be obtained in a civil suit. When a law for the time being enforce places an embargo on the jurisdiction of court in certain circumstances (as prescribed by section 21), then such embargo cannot be brushed away through invoking the constitutional jurisdiction of this Court. While exercising jurisdiction under Article 199(1)(a)(i), this Court cannot direct respondents Nos.1 to 4 to do an act which they are not required by law to do (section 23 of the Contract Act and section 21 of the S.R.A.). In such view of the matter, the petitioner is not an aggrieved party within the meaning of Article 199(1)(a)(i), the constitution because he has no legal grievance to maintain this constitution petition.

5. So far as the favourable observations of the C.R.C. in favour of the petitioner are concerned, the same were passed on the basis of donation of land for the school. In the light of above discussion, such observations of the C.R.C are illegal as such, bearing no binding effect upon the respondents Nos. 1 to

4. For what has been discussed above, we do not find any merit in this petition which is, resultantly dismissed. MQ/20/Bal. Petition dismissed.