MUHAMMAD ALAM Versus The SECRETARY BISE (SCHOOL) DEPARTMENT GOVERNMENT OF BALOCHISTAN, QUETTA

SHAUKAT ALI RAKHSHANI, J.--- The instant constitutional petition has been filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 ("Constitution") by the petitioner, which carries the following relief;

"It is therefore, respectfully prayed that this Hon'ble Court may kindly be pleased to declare that respondent No.4 did not belong to union council Khushab and is not entitled to be appointed on post Chowkidar B-01 in government High School Khanai Baba and his appointment is in violation to recruitment policy 2019, therefore, appointment order No.2356-67 dated 03.08.2023 be declare illegal and the same be cancelled. Further declare that the act of respondents Nos.1 to 3 by of not abiding Rules 12 and 12-A of Balochistan Civil Servant (Appointment, Promotion and Transfer) Rules, 2009 is illegal, as such, is not maintainable, consequently directions may be issued to respondents to follow Rules 12 and 12-A of Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009 and then re-advertise the posts with any other relief and costs of the proceedings throughout in the interest of justice."

2. Concisely stated, the petitioner claims appointment on the basis of son quota in terms of Rule 12-A of Balochistan Civil Servant (Appointment, Promotion and Transfer) Rules, 2009 ("Rules of 2009") and on the ground that the post was to be filled in Government High School Khanai Baba District, Pishin on Union Council basis, but Muhammad Anwar (respondent No.4) pursuant to the advertisement bearing PRQ No.2703 dated 21.02.2021 has been appointed against the post of Chowkidar (B-01), who belongs to another Union Council.

3. In response to the petition, respondents Nos.1 to 3 filed parawise comments, whereas respondent No.4 filed counter affidavit, contesting the petition on factual as well as legal premises.

4. Heard. Record perused with the able assistance of learned counsel for the parties. The claim of the petitioner for appointment against the post of Chowkidar on the basis of deceased quota in terms of Rule 12-A of the Rules of 2009, has no substance and legal backing because the apex Court in the case of "General Post Office, Islamabad v. Muhammad Jalal" (PLD 2024 Supreme Court 1276) has declared it to be discriminatory and ultra vires to the Constitution. The relevant para No.25 is facsimile herein below;

"25. Any law, policy or rule which is manifestly inconsistent with the Constitutional commands, retrogressive in nature and discriminatory inter se the citizens is subject to judicial review. In the case of Government of Khyber Pakhtunkhwa through Secretary Agriculture v. Tahir Mushtaq and 13 others, while dismissing the claim of the son of a retired civil servant of the Agriculture Department of Khyber Pakhtunkhwa who sought appointment in BPS-5 on the basis of employee's son quota policy, it was held by a four member Bench of this Court that: 'The Constitution of the Islamic Republic of Pakistan prohibits discrimination as stated in Article 25 and further stipulates and entrenches the principle in respect of service of Pakistan in Article 27. In preferring the children of a government servant or reserving seats for them offends the Constitution. The same also detracts from a merit based system of employment. The taxpayers hard earned monies pay for the salaries, benefits and pensions of government servants. The people's interest lies in having the best person for the job, and not to suffer those who secure employment on the basis of a filial relationship. The stated instructions undermine transparency and good governance, therefore, the government of Khyber Pakhtunkhwa will be advised to withdraw all such instructions/notifications'. For the above reasons, while granting leave, Civil Petition No. 3390 of 2021 is converted into an appeal and is allowed. The impugned order dated 13 April 2021 passed by the Peshawar High Court in favour of the respondent is set aside. Policies, office memorandums, employment under the Package of the Prime Minister, the Financial Assistance Package, Rule 11-A of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, Rule 10 (4) of the Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989, Rule 12 of the Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009 or any other rule, policy, memorandum, etc. whereunder appointments without open advertisement, competition and merit, of the widow/widower, wife/husband or child of civil servants in different grades, who die during service or become permanently disabled/invalidated / incapacitated for further service and take retirement from service, are declared to be discriminatory and ultra vires Articles 3, 4, 5(2), 18, 25(1) and 27 of the Constitution. The prescribed Federal and Provincial authorities are directed to withdraw the same. However, it is clarified that the instant judgment shall not affect the appointments already made of the widow/widower, wife/husband or child of deceased or retired civil servants. It is further clarified that this judgment shall not affect the policies, rules or compensation packages of the Federal and Provincial Governments for the benefit of the legal heirs of martyred personnel of the law enforcement agencies and of civil servants who die on account of terrorist activities"

5. The petitioner has also questioned the appointment of respondent No.4 on the ground that the post of Chowkidar (B-01) was announced and published for Government High School Khanai Baba, District Pishin, therefore, as per the Rules of 2009, the candidate had to be selected from the concerned union council. The post of Chowkidar was announced for Government High School Khanai Baba, District Pishin, which shows nowhere that it was allocated for the union council of the petitioner, therefore, there is no violation of any rule or recruitment policy.

6. Besides above, the advertisement for the post of Chowkidar was published on 21.02.2021, whereas this instant petition was filed on 22.08.2023, which is hit by laches, whereof no explanation has been offered by the petitioner. More-so, the instant petition is also not maintainable for want of alternate remedy before the Complainant Redressal Cell ("CRC"), which is mandatory.

For what has been discussed hereinabove, the petition being shorn of merit is dismissed.

MQ/114/Bal. Petition dismissed.