GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Elementary and Secondary Education, Civil Secretariat, Peshawar Versus ABDUR RAQIB
This matter concerns the validity of Class-IV public sector appointments made under a long-standing policy incentivizing the gratis donation of land for public welfare projects, such as schools. The core legal question was whether the government could lawfully grant a preference to land donors or their nominees for Class-IV positions, notwithstanding the general principle that public appointments must be made strictly on merit. The Federal Constitutional Court held that such a policy is lawful and serves a public purpose by minimizing fiscal burdens on the state. The Court affirmed that where land is voluntarily alienated for public welfare, a preferential margin may be accorded to the donor or their nominee for Class-IV recruitment, provided the candidate meets all prescribed eligibility, suitability, and fitness criteria. While the Court recognized the validity of this policy, it declined to interfere with the High Court's judgment regarding the respondents' specific appointments due to the significant efflux of time since their initial recruitment. The principle established is that donor preference policies for Class-IV posts are legally permissible and distinct from merit-based recruitment requirements.
- Is a government policy granting preference to land donors for Class-IV public sector appointments legally valid?
- Does the requirement for merit-based public appointments preclude the implementation of a policy incentivizing land donations for public welfare?
- Can a donor or their nominee be granted preference for a Class-IV position if they meet the prescribed eligibility criteria?
- Article 199, Constitution of Pakistan 1973
SYED ARSHAD HUSSAIN SHAH, J.--- By this single judgment we intend to dispose of both the captioned petitions, as common questions of law and facts are involved therein and they have arisen out of the same judgment, which is impugned before this Court. For the sake of ease, operative part of the impugned judgment is reproduced hereunder:-
In view of the above discussion and exposition of law, we allow this writ petition and set aside the impugned orders dated 06.11.2020 and 06.10.2006 issued by respondent No.3, being illegal, unlawful, and of no legal effect upon the rights of the petitioners. Consequently, the appointment orders of the petitioners dated 26.09.2006 and 29.03.2017 are restored. However, since during the intervening period petitioner No. 3, namely Hamza, has attained the age of superannuation, the impugned order, to the extent of cancellation of his appointment, is maintained.
2. At the outset, we take up C.P.L.A. No. 132-P of 2023, filed by the employees seeking back benefits as well as reinstatement/appointment of petitioner No. 3 (before the High Court) namely Hamza, who, at the time of pronouncement of the impugned judgment, had already attained the age of superannuation. Today, despite issuance of notice for fixation of the petition, none has appeared on behalf of the petitioners. No intimation is received. Consequently, this petition is dismissed for non-prosecution.
3. Turning to C.P.L.A. No. 15-P of 2023, filed by the Government of Khyber Pakhtunkhwa, we have heard the learned Additional Advocate General, Khyber Pakhtunkhwa and perused the record with his able assistance. Suffice it to observe that the controversy involved in the present lis pertains to the appointments of respondents Nos. 1 to 5 as Naib Qasid, Mali, Chowkidar, Mali, and Bearer, respectively, at the Government Higher Secondary School Gardai, Bajaur, vide Office Endorsements dated 26.09.2006. Admittedly, the said school was constructed on the land donated gratis by M/s Muhammad Karim son of Faizullah and Ayub Khan son of Said Zarif. Prior to the respondents joining their duties, one Abdul Khaliq ( complainant ) submitted a complaint before the Political Agent, Bajaur, asserting that as the school had been constructed on the land donated gratis by his family, he had a preference over the respondents for appointment as a Class-IV employee under the policy in vogue at the relevant time. Pursuant to the said complaint, the appointments of the respondents were initially held in abeyance and were subsequently withdrawn vide order dated 06.11.2020.
4. Aggrieved thereof, the respondents approached the High Court under Article 199 of the Constitution by way of filing Writ Petition No. 885-M of 2021, which was allowed, and the respondents were directed to be reinstated/appointed, except respondent No.5, namely Hamza, who had already attained the age of superannuation.
5. The learned High Court has relied upon a plethora of judgments of the superior judiciary in order to emphasize that appointments in the public sector must always be made strictly on merit, a principle with which there can be no cavil. It seems that the High Court was not adequately assisted, inasmuch as, the complainant submitted complaint seeking preference for appointment as Class-IV employee under the policy in vogue in the erstwhile North-West Frontier Province since 1962 or near about and not his appointment on merit. It is pertinent to mention here that through this policy, it had been the practice to elicit land grants gratis from individuals, B.D. Members or the village body of land-owners for construction/establishment or expansion of the schools, dispensaries or any other public welfare project on the condition that the donor of the land or his nominee was to be recruited as a Class IV employee, if there was vacancy or as soon as one became available. This policy or practice was somewhat formalized in a meeting presided over by the Minister for Education on 22.9.1987 and was so acted upon. Subsequently appointments made under this policy in different areas of KP (then NWFP) were challenged before the NWFP Service Tribunal ( Tribunal ). The Tribunal allowed the appeals and set aside the appointments made under the policy. Judgments of the Tribunal were called into question and ultimately the matter came up before a five-member bench of the Supreme Court of Pakistan in the case reported as 1993 SCMR 1287, whereby verdicts of the Tribunal were set aside, a number of appeals were allowed and appointments made under the policy were upheld.
6. It is a settled law that appointments within the public sector must be made strictly on merit, the learned High Court, prima facie , owing to inadequate assistance from the bar, appears to have overlooked the significant fact that the Government, as a matter of standing policy, incentivizes the gratis alienation of land for the construction and expansion of public welfare initiatives such as schools, dispensaries and tubewells etc. thereby alleviating the fiscal burden on the public exchequer. This policy enables the Government to minimize the costs and allocate resources towards other projects resulting in completion of a larger number of welfare projects. Consequently, the said policy merits both appreciation and continued implementation.
7. In the light of the foregoing, it is held that where land is voluntarily alienated as a gratis grant for public welfare initiatives, including but not limited to schools, dispensaries, or tubewells etc., a preferential margin may lawfully be accorded to the donor or his nominee for appointment to a Class-IV position. Such preference shall of course depends upon the candidate meeting all prescribed criteria for eligibility, suitability, and fitness at par with other candidates.
8. Notwithstanding the complainant s failure to actively pursue or assert his claim for appointment to a Class-IV position, his entitlement and that of his nominee remains extant and protected under the said policy. However, keeping in view significant efflux of time since appointments of the respondents, we are not inclined to interfere with or unsettle the findings of the High Court to the extent of the respondents appointments.
9. Accordingly, this petition stands disposed of in the above terms.
UN/35/FCC Order accordingly.