MARKET COMMITTEE, SAHIWAL vs Syed ZAIGHAM ALI and others

' MUHAMMAD YAWAR ALI, J.--- This Intra-Court Appeal filed under section 3 of Law Reforms Ordinance, 1972 is directed against an order dated 27-4-2011 passed by the learned Single Judge in Chamber while disposing of Writ Petition No,2249 of 2011.

2. Briefly stated the facts of the case necessary for the disposal of this Intra-Court Appeal are that respondent No,1 (herein) filed a petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 praying therein that a direction be issued to the Market Committee Sahiwal to employ respondent No,1 as Sub-Inspector in place of his ' father Syed Ashraf All Shah under section 17-A of the Punjab Civil Servants (Appointment, and Conditions of Service) Rules, 1974. In the petition it was strongly asserted that Syed Ashraf Ali Shah father of respondent No,1 was incapacitated being a heart patient as a consequence of which respondent No,1 was entitled to the same post that his father was holding. The learned Single Judge in Chamber while perusing the record which was brought to the court room by an official representing the appellant concluded that Syed Ashraf Ali Shah father of respondent No,1 retired on 25-10-2001 being an incapacitated person as a result of which respondent No,1 was entitled to be appointed in his place.

3. The learned counsel for the appellant contends that writ petition filed by respondent No,1 suffered from laches and was liable to be dismissed on this ground alone. Syed Ashraf Ali Shah father of respondent No, 1 served in the department from 11-11-1967 to 15-12-2001 whereas respondent No,1 filed a writ petition in the year 2011 after a lapse of ten years. On merits it was contended that respondent No,1 was never declared invalid or incapacitated by any medical board meaning thereby respondent No,1 was not qualified to be appointed in place of his father.

4. The learned counsel for respondent No,1 in rebuttal argued that valuable rights accrued in favour of respondent No,1 when his father became incapacitated and a petition which was filed for enforcement of a right conferred by law could not be defeated merely on the ground that the petition was filed after a delay of ten years. On merits it was contended that the learned Single Judge in Chamber after inspecting the record which was brought by an official representing the appellant rightly concluded that the father of respondent No,1 was incapacitated being a heart patient. No exception could be taken to the relief which was granted to respondent No,1 by the learned Single Judge in Chamber.

5. Whether or not the constitutional petition filed by respondent No,1 under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 before the learned Single Judge in Chamber was hit by the principle of laches is a. Question which is to be addressed in the first instance. It is an admitted position that respondent No,1 filed a petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 after a delay of ten years. A bare reading of the petition would show that no plausible explanation has been given as to why the petition was filed after such a long delay. It is trite that constitutional jurisdiction is discretionary in nature and he who seeks equity must approach the court with clean hands and remain vigilant in asserting for his rights as has been held by this court in Mst. Barkat Bibi v. Mst. Salma Bibi and 2 others 2005 CLC 1401.

Similarly in Mazhar-ul-Haq alias Mazhar Abbas v. Ghulam Muhammad and 2 others 2005 CLC 1169 this court dismissed a constitutional petition on the principle of Iaches on the ground that the petitioner had filed a constitutional petition after three months and 25 days of passing of the impugned order. The august Supreme Court of Pakistan in Khiali Khan v. 'Haji Nazir and 4 others PLD 1997 SC 304 has held that even a constitutional petition against a void order could be dismissed when the petitioner was estopped by his own conduct from challenging the same or if he had been guilty of lachcs. In the light of case-law referred to above and the facts of the case which can be gleaned from a plain reading of the constitutional petition it can easily be concluded that the constitutional petition was liable to be dismissed since it suffered from laches. While examining the merits of the case it has been observed that there was no certificate issued by any medical officer stating in clear and unequivocal terms that the father of respondent No,1 had become incapacitated. Section 1 7-A of Punjab Civil Service Laws reads as follows:--- '

"Notwithstanding anything contained in any rule to the contrary, whenever a Civil Servant dies while in service or is declared invalidated/in-capacitated for further service, any one of his unemployed children may be employed by the Appointing Authority against a post to be filled under rules 16 and 17 for which he/she possesses the prescribed qualifications and experience and such child may be given 10 additional marks in the aggregate by the Public Service Commission or by the appropriate Selection Board or Committee, provided he/she otherwise qualities in the test/examination and/or, interview for posts in BS-6 and above: ' Provided further that one child of a Government Servant who dies while in service or is declared invalidated/incapacitated for further service shall be provided a job against posts in BS-1 to 5 in the department in which the deceased Government Servant was working, without observance of formalities prescribed under the rules/procedure. Provided such child is otherwise eligible for the post."

6. From a bare reading of section 17-A of Punjab Civil Service laws reproduced above it is clear that an unemployed child becomes eligible to be appointed in the place of his father only in case his father dies while in service or is declared invalidated/incapacitated for further service. In order to ascertain as to who is the competent authority authorised to determine whether or not an employee has become incapacitated we have to go though the provisions of section 442 of Civil Service Regulations (Relating to Pension) which are reproduced below for the sake of reference:--- Section 442 "If an officer applying for an Invalid pension is sixty years old or upwards, no certificate by a Medical Officer is necessary; it suffices for the head of the office to certify to the incapacity of the applicant.

Otherwise incapacity for service must be established by a medical certificate."

7. In the present case Syed Ashraf Ali Shah father of respondent No,1 was never, declared to be an incapacitated person either by any Medical Officer or by the head of the department. Respondent No,1 in his petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 failed to establish that the department had acted in breach of law or regulation by not appointing him in place of his father.

8. For what has been stated above, this Intra-Court Appeal is accepted and the impugned order dated 27-4-2011 passed in Writ Petition No,2249 of 2011 is set aside.