1. MRS. SYEDA TAHIRA SAFDAR, J.---It is case of the petitioners that their fathers were working as Collie, Work Charge Collie, Gang Collie in the Department of B&R, Government of Balochistan, who died on different dates while serving in the Department. Whereafter, they filed separate applications to respondents Nos.4 and 5 for their appointment in the Department in place of their fathers, despite the same neither they were appointed, nor any action was initiated in same respect. It is further their case that as per Notification No,SOR1.5-(13)1/S&GAD/2007/328-422, dated 18-4-2007 issued by the Government of Balochistan Rule 13-A of Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules 1979 has been substituted. They claimed themselves eligible to be appointed in place of their fathers, despite the same in violation of said Rule they have neither been appointed, nor any action has been taken by the Authorities. The respondents have failed to exercise the authority vested in them. They have prayed that respondents be directed to appoint them in place of their fathers.
2. ' Respondent No,2 in parawise comments through admitted issuance of Notification dated 18-4- 2007, but in addition to the same it is their contention that as per Notification dated 8-6-2007 it has been clarified that only such widow or child of deceased Government Servant will be eligible to be appointed in his place who has the required qualification for the post. It is further clarified therein that the provision of said Rule would be applicable from the date of issuance of the Notification i.e, 18-4-2007. As the fathers of the petitioners have expired prior to the issuance of Notification, therefore, employment could not be granted to them. Dismissal of the petition has been prayed.
3. ' Though in present petition the petitioners only prayed for issuance of direction to the respondents for their appointment in place of their fathers, further prayed for calling the respondents to explain that why they are not exercising their power/authority vested in them. They relied on Rule 13-A of Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules 1979. Though the respondents in reply admitted that the fathers of the petitioners were employees of B&R, while died during tenure/pendency of their service. But contended that as their fathers died before promulgation of said Rule, therefore, the benefit of the same cannot be extended in their favour.
4. Rule 13-A of Rules of 1979 as substituted through Notification dated 18-4-2007 states as under:-- "13-A Notwithstanding anything contained in any rule to the contrary whenever a Civil Servant dies while in service, the widow or one of his child may be employed by the appointing authority against a post in BPS-1 to 10 in the department in which deceased Government servant was working without observing the condition of open advertisement: ' Provided that such widow or the child as the case may be possesses the prescribed educational qualification, age and required experience prescribed for the said post."
5. It is further to be noted that during pendency of instant petition the said Rules of 1979 are repealed by Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules 2009, while Rule-12 of the same is similar in nature to that of Rule 13-A of. Repealed Rules. But as the cases of the petitioners pertains to the year 2007 and prior while the instant petition has been filed in 2008, thus in the circumstances it is required to be seen that what are the Rules which would be applicable in case of the petitioners, as they are claiming their right under this Rule.
6. ' Rule 13-A of the Rules of 1979 was substituted, as mentioned above, through Notification dated 18- 4-2007, while clarification has been made about effectiveness of the substitution through Notification dated 8-6-2007, which is mentioned as the date of issuance of the Notification i.e, 18- 4-2007. Thus in view of the same, the said substitution become effective after 18-4-2007, having no retrospective effect. It is further to be noted that through this Notification the existing Rule 13-A was submitted, which was initially added in the Rules of 1979 through Notification dated 16-11-1994, which states as under:-- "13-A. Notwithstanding anything contained in any rule to the contrary whenever a civil servant dies while in service or during the performance of duty, becomes invalidated or incapacitated for further service, one of his children may be employed by the Appointing Authority, against a post in B-1 to B-15 in the Department in which the deceased Government servant was working, without observance of formalities prescribed under the relevant rules/procedure, provided such child possess the prescribed qualification and required experience prescribed for appointment to the post."
7. ' This Rule was later on substituted through Notification dated 21-3-1998, which states as under:-- "Rule 13-A---Notwithstanding anything contained in any rule to the contrary whenever a Civil Servant dies or becomes invalidated or incapacitated while in service, one of his sons or daughters otherwise eligible may be considered for employment to a post under rules 10 and 11 and such son or daughter will be allowed 10-grace marks in the aggregate by the Public Service Commission or the appropriate Selection Board or Committee;-- ' Provided that no other son or daughter of the deceased incapacitated employee is employed by the Government of Balochistan except on merit."
8. ' This Rule was again substituted through Notification dated 18-4-2007 as quoted above. Reframing of these Rules are to be seen keeping in view the facts of the case. As per their (petitioners) own showings father of petitioner No,1 namely Rahim Dad died on 21-1-2007, while father of petitioner No,2 namely Rasool Bakhsh died on 20-4-2000. Father of petitioner No,3 namely Dad Muhammad died on 1-1-2001, while father of petitioner No,4 namely Din Muhammad died on 5-3-2000. As such surely their fathers died before issuance of Notification dated 18-4-2007, as issued later in time, thus not applicable on their cases. Further, during period from 2000 till issuance of said Notification Rule 13-A as substituted by Notification dated 21-3-1998 was in field, while the cases of the petitioners were required to be decided keeping in view of the same. But the concerned Authorities did not consider this aspect; rather they only insisted that the substituted Rules of 2007 are not applicable in cases of the petitioners, as their fathers died before issuance of Notification and substitution of the Rule. This is a misconception of the law.
9. ' Keeping in view the above discussion, it seems just and proper to direct the competent authority to consider the cases of the petitioners as per provisions contained in Rule 13-A of The Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 1979 as substituted through Notification dated 21-3-1998 and decide their cases strictly in accordance with law.
10. ' Petition is disposed of in the above terms.