NOMAN ALI MEMON Versus PROVINCE OF SINDH through Chief Secretary
ORDER
MUHAMMAD SALEEM JESSAR, J.--- Through instant Petition, the Petitioner has claimed the following relief:
(a) That this Honorable Court may be pleased to direct the Respondents to convene the DRC, complete the scrutiny of documents of the petitioner and to issue appointment order of deceased quota in terms of his recommendation under summary approved by the Chief Secretary Government of Sindh and Secretary School Education and Literacy Department Government of Sindh Karachi, without further loss of time.
(b) That this honorable court may be pleased to direct the respondents to issue appointment order of deceased quota to the petitioner for the post of junior Clerk or any other post as admissible according to his qualification in Education Department Government of Sindh without further loss of time.
2. The facts of the case as asserted in the Petition are that the father of Petitioner namely late Altaf Hussain Memon was serving as Superintendent (BS-17) in District Education Office (ES & HS) Larkana, who died while in service on 02.12.2019, leaving Petitioner and others as surviving legal heirs. Petitioner filed an application with the Respondent for his appointment under deceased quota, which was forwarded to the Secretary School Education and Literacy Department, Government of Sindh, Karachi for consideration vide letter dated 22.02.2024. The Respondents did not decide the request of Petitioner, thus he filed instant Petition.
3. The Respondents in their reply have asserted that Rule 11-A has been omitted pursuant to decision of Hon'ble Supreme Court, therefore, Petitioner cannot be appointed in service.
4. Mr. Javed Ahmed Soomro, Learned Counsel for the Petitioner contended that the Petitioner is a layman educated person. He applied for the job within time under quota of children of deceased employee. He contended that the application of the Petitioner was decided and department had recommended his appointment. He prayed for allowing instant petition.
5. Conversely Mr. Liaquat Ali Shar Learned Additional Advocate General Sindh has strongly opposed the petition, on the grounds that the policy regarding employment of children of civil servants who died while in service is not in force. The Government of Sindh has withdrawn Rule 10 A and 11 A from Sindh Civil Servants (Appointment, Promotion and Transfer), Rules 1974 (APT Rules) following the judgment of Honourable Supreme Court of Pakistan in the case of General Post Office, Islamabad and others v. Muhammad Jalal (Civil Petition No.3390 of 2021) reported as PLD 2024 SC 1276. In compliance to aforesaid decision, the matter was placed before Sindh Government and the cabinet reconsidered earlier policy of appointment on deceased/son quota in the light of above judgment of Honorable Apex Court and decided to omit Rules 10-A and 11-A of APT Rules. It was decided that no one shall be entitled to claim for appointment on deceased/son quota. He prayed for dismissal of the Petition.
6. Heard learned Counsel for the parties and perused material available on record.
7. Perusal of record reveals that case of the Petitioner for appointment under deceased quota is pending decision with the department since five years for unknown reasons, though his father died on 02.12.2019 and rules 10-A and 11-A were inserted in APT Rules through sub ordinate legislation by the Government of Sindh on 02.09.2002, admittedly a right in favor of the family of deceased employee occurred when policy to accommodate the children of deceased employees was introduced by the Government. Rules 10-A and 11-A of APT Rules were a beneficial legislature aimed at supporting the bereaved families of deceased civil servants who died during service. The Honorable Supreme Court of Pakistan in its decision dated 10.08.2016 passed in C.Ps. Nos. 482-K and 503-K of 2016 has held that those candidates under the above quota whose right of employment has already occurred and the clog of two years for making the application for employment under the deceased quota for children who have already applied for employment before making this rule, was done away with. The right of the Petitioner had already occurred and he was entitled to appointment which right was denied by the Department for unknown reasons.
8. The employment in a civil service is a source of earning livelihood for the families; denial of such a right in a casual manner is never warranted under the law. It is the duty of the administrative department in which deceased employee worked to inform in time to his family the accrual of any of the benefits or rights in their favor on account of the bereavement of employee while in service. The father of the Petitioner was a Superintendent and Petitioner appears to be a layman, the laxity on the part of the department to provide relief to the bereaved family available under the law cannot in any manner be attributed to the Petitioner, which tilts to the Respondents as is apparent from their conduct as the department has failed to decide fate of application moved by Petitioner since last three years and Petitioner is before this Court. The Department has acted with gross negligence in Petitioner's case; he should have been given equal treatment as meted out to the children of other employees while became entitled to get benefit of Rule 11-A of APT Rules during the above period. It is the duty of the concerned department to provide all benefits in time to the bereaved family, the provisions of employment under deceased quota were a beneficial subordinate legislation and cleared an ambiguity in the existing service rules regarding the appointment of children of employees who died during service of became incapacitated to perform the service further, thus the interpretation of such legislation would be construed in a liberal prospective.
9. The contention of Learned Additional Advocate General Sindh that the law regarding appointment under deceased quota is no more in existence after the judgment of Honourable Supreme Court in the case of General Post Office, Islamabad and others v. Muhammad Jalal PLD 2024 SC 1276 supra. It is pertinent to mention that Honourable Supreme Court has passed judgment in Muhammad Jalal case on 26.09.2024, wherein appointments without open advertisement, competition and merit of the widow/ widower, wife/husband or child of civil servants in different grades, who died during service or became permanently disabled/invalidated/ incapacitated for further service and retired from service, were declared to be discriminatory and ultra vires to the Articles 3, 4, 5(2), 18, 25(1) and 27 of the Constitution. The Federal and Provincial Governments were directed to withdraw such rules. The judgment of Honorable Supreme Court shall not affect the rights of appointment of those children of deceased or retired employee falling under the definition of Rule 11-A of APT Rules, in whose favor such right occurred prior in time to the judgment of Honorable Supreme Court, as no judgment or order of any Court of Law operates retrospectively unless so directed. In present case, the father of the Petitioner died while in service in year 2019 and such right occurred to him in year 2019 and subsisted until 26.09.2024. The Honorable Supreme Court in its judgment has protected the appointments made during the intervening period of 2002 to 2024, meaning thereby the rights of a bereaved family for appointment under said provision of law during the above period shall remain unaffected.
10. The Honourable Supreme Court while dealing with a similar issue of appointment under deceased quota in the case of Zahida Parveen v. The Government of Khyber Pakhtunkhwa and others in C.P.L.A No.556-P/2024, decided on 17.03.2025 observed that the judgment passed by the Honourable Apex Court shall not operate retrospectively, in Para No.11 of the judgment, it has been held as under:
"11. For completeness of record, it is clarified that the judgment of this Court reported as General Post Office, Islamabad and others v. Muhammad Jalal (PLD 2024 SC 1276) has struck down Rule 10(4) of the Rules as being ultra vires the Constitution but has no application on appointments that have been already made. It is well settled that the judgments of this Court operate prospectively, unless declared otherwise. Therefore, the present case remains unaffected by the said judgment".
11. We have carefully examined the case of Petitioner, in our view denial of job to the Petitioner under deceased quota would be an act of discrimination, as it appeared from record that the petitioner was not dealt in accordance with law, he suffered due to red-tapism and lethargy of the department, which violated his fundamental rights enshrined under Articles 4, 5, 9, 25 and 27 of the Constitution. Case of the petitioner was pending adjudication before competent authority for consideration since 2019 and by that time policy regarding employment of children of ex-employees, who died while in services or retired being incapacitated to further perform services was in force, therefore, the same shall not be affected in any manner by the Judgment of Honorable Supreme Court in the case of Muhammad Jalal Supra.
12. This Court being the custodian of the fundamental rights of citizens cannot shut its eyes when reaches to a conclusion that action on the part of a statutory body or organization resulted in infringement of fundamental rights of a person. Though the appointment process is an internal mechanism of the department wherein this court sparingly interferes but would not hesitate to step in when a right to job otherwise available under the law was declined in a slipshod manner.
13. The discussion made herein above leads us to conclusion that the petitioner has made out a case for indulgence by this Court under its writ jurisdiction vested under Article 199 of the Constitution for issuance of writ against Respondents for inaction and attitude of indifference on their part. We are of the view that case of Petitioner for appointment under deceased quota requires consideration in the light of the policy and rules applicable at the time when the petitioner applied for appointment. We therefore allow this petition and direct the Respondents to consider the case of Petitioner for appointment in accordance with law and applicable rules and decide it within a period of 3 months from date of this order.
Office is directed to send copy of this Order to the Respondents Nos. 1 to 5 for compliance. The Petition stands disposed of along with listed applications.
UN/N-30/Sindh Petition allowed.