2018 PLP (C (PLC(CS)N)

MUHAMMAD ALAM, J.

This civil revision petition has been directed against the judgment/order dated 11-09-2015, passed by the learned Additional District Judge Gilgit, in C.F.A. No.108/2014.

2. Petitioners/plaintiffs filed a suit (Civil Suit No.69/2008) in the court of Civil Judge First Class Gilgit, who through her order dated 25-08-2014, dismissed the said suit. Feeling aggrieved from the same, petitioners filed an appeal (CFA No.108/2014). Petitioners/plaintiffs have based their suit on decree/ order dated 17-09-1999, passed by Civil Judge No.2 Gilgit, in Civil Suit No.68/96. Then petitioners/plaintiffs filed petition for execution of said decree. As part of proceedings in the said decree, the then Civil Judge No.2 Gilgit passed an order dated 25-09-2002 on the said execution petition. Further later on, petitioners filed Civil Suit No.69/08 which was decreed on 30-03-09.

3. I have heard learned counsel for parties and have gone through the file. Learned counsel for petitioners/plaintiffs and learned Additional Advocate General advanced arguments on the grounds that whether petitioners/plaintiffs have any right to be appointed against the suit post? Petitioner No.1 is father of petitioner No.2 and apparently he is a man of old age. In my opinion, this very fact is sufficient to hold that he cannot be appointed in any post against any vacancy in the government employment. The question for appointment of petitioner No.2 was debated by the counsel for parties. Learned two courts below have dismissed the suit on flimsy grounds without going into the merits of the case that parties contested previously. I have reproduced admitted state of affairs regarding previous litigation between parties in para No.2 supra and have underlined the same. Learned trial court as well as the learned first appellate court has not considered the effects of the previous litigation between parties and the result thereof. From plain perusal of Exh.P/2 and Exh.P/3, it is evident that respondents have agreed to appoint petitioner No.1 or any of his sons against any regular post as and when the same is created in the department of respondents Nos.2 to

4. It is not disputed that the required vacancy was created and was filled by respondent No.5. Exh.P/2 is order of the trial court in execution petition that petitioners had filed for execution of decree dated 17-08-99. The wording of the said order of the trial court is very important, therefore, reproduced hereunder:- 25-9-2002. D/holder along with his counsel Mr. Muhammad Hussain Shahzad advocate present. Judgment-debtors through representative Mr. Muhiuddin Assistant Warden Fisheries along with Mr. Jafar Ali Jani DA present. Mr. Ghulam Abbas AD Fisheries also present and furnished an office order whereby the d/holder is engaged as DPL for conservation duties w.e.f. 16-9-2002 to 15-11-2002 at the rate of Rs.40/- per day with four further conditions. The said order vide condition three entitles the d/holder or his nominated son for appointment on regular basis subject to creation of post in his area. The order is deemed complete execution of the decree by the d/holder and his counsel. Statement of the d/holder and his counsel in this regard recorded and made part of the record along with the office order No.DDF.Admn-2(4)/97 dated 22-8-2002 of the Office of the Deputy Director Fisheries Gilgit. "In view of the above said office order and statement of the d/holder and his counsel this execution petition stands disposed of in full satisfaction of the decree. File after due completion be consigned to record." Announced. 25-09-2002. sd/- Civil Judge 1st Class No.II Gilgit. Exh.P/3 is office order of appointment of petitioner No.1 against any contingent post, but in para No.3 of the same, respondents Nos.1 to 4 have very clearly undertaken to appoint any nominee of the petitioner No.1 against any regular post. Admittedly, respondent No.5 has been appointed against any regular post after Exh.P/3 was passed. For ready reference, I reproduce contents of Exh.P/3 hereunder:- No.DDF.Admn-2(4)197 GOVERNMENT OF PAKISTAN OFFICE OF THE DEPUTY DIRECTOR FISHERIES NORTHERN AREAS, GILGIT. Dated, the 22nd Aug, 2002. ORRICE ORDER. Mr. Shakoor Mohammad s/o Akbar Khan r/o Sai BalaBbalas is hereby engaged a DPL for conservation duties to control illegal fishing in Gasho Lake w.e.f. 16-09-2002 to 15-11-2002 @ Rs.40/- per day with the condition that:

1. The individual shall perform the conservation duty without remaining absent.

2. He will be bound to submit his progress report regularly.

3. He or his nominated son shall be appointed on regular basis subject to creation of post in his area.

4. This engagement is purely temporary and payable on muster roll. He will be engaged on each year subject to equal contribution of contingent of contingent fund in regular budget. The expenditure involved will be met from within the proposed budget allocation under the head 51900-03700 (contingent paid staff) for the year 2002-2003. Sd/- (SYED ALI SHAH) DEPUTY DIRECTOR FISHERIES NORTHERN AREA GILGIT Distributions:-

1. The Deputy Accountant General Pakistan Revenue, N.As, Gilgit.

2. The Assistant Director Fisheries Department Gilgit.

3. The Cashier Fisheries Department Gilgit.

4. The DPL Concerned.

5. Office copy. All this shows that at least petitioner No.2 was entitled to be appointed against the post filled through respondent No.5 or against any other post. In the above circumstances, it is very evident that respondents Nos.2 to 4 not only willfully floated the above referred orders of the court but also ignored their own commitment that they agreed in the light of para No.3 of the above referred order.

4. In view of above described admitted state of affairs, the learned two courts below have very astonishingly not taken judicial notice of the court orders in favour of the petitioners/plaintiffs. The two courts below have, instead of taking any stern action against respondents Nos.1 to 4, dismissed the suit of petitioners/plaintiffs. The learned two courts below have failed to administer substantial justice to the petitioners/plaintiffs. In my opinion, based on the above described admitted state of affairs, at least petitioner No.2 had every right to be appointed against the suit post, instead of making appointment of respondent No.5. I am of the further opinion that learned two courts below must have taken very serious notice of floating the above referred orders of the Civil Courts by respondents Nos.1 to

4. The above referred decree and then its execution are sufficient to hold that respondents Nos.1 to 4 have ignored the decisions of the courts and have flagrantly by-passed the same. In such a situation, the two courts below were not helpless and law empowers them to take notice of flagrant violation of court orders, instead of following beaten track of technicalities. In my opinion, this conduct of the two courts below amounted to a material irregularity inviting interference of this Court. I, therefore, in exercise of my supervisory powers, convert this petition into writ petition and hold that respondents Nos.1 to 4 are legally bound to pass appointment orders of petitioner No.2 against any vacant post with effect from the date of institution of the fresh suit (Civil Suit No.69/2008) and that also without effecting adversely the appointment of respondent No.5. Office is directed to give any Writ Petition number to this petition. Impugned order of Additional District Judge and that of Civil Judge are set aside accordingly. Order accordingly. This file be consigned to record. ZC/48/GB Petition allowed.