WAQAR AHMAD SETH, J:- Through this single judgment we intend to decide the instant writ petition as well as identical writ petition bearing No. 3027-P of 2015, as common question of law and facts are involved therein.
2. Through the instant writ petition, the petitioners have prayed for issuance of an appropriate writ declaring the impugned appointment as illegal, void-ab-initio, without jurisdiction, malafide, favouritism, without lawful authority and of no legal effect with further direction to respondents No. 1 to 5 to call them being permanent resident of District Peshawar and appoint them on merits and in accordance with law.
3. In essence, grievance of the petitioners is that they had applied through Employment Exchange to the respondent/Institute i.e. K.T.H. Peshawar for appointment of Ward Orderly , Chowkid ar and Sweepers (Class-IV) but the respondents, without fulfilling codal formalities, have appointed respondents No. 8 to 34 while they have been ignored; hence, the instant W rit Petition.
4. Respondent No.2 has furnished comments and stated therein that: "Incorrect. All the appointment was made through the Employment Exchange and on the recommendation of Departmental Selection Committee. According to the Medical and Health Institution Rule 2001 Medical Superintendent is empowered to make appointment in BPS-1 to 10. No undue influence either from Health Minister was made for filling of these vacant posts or some other authority. There is no prescribed qualification for appointment of class IV as the persons appointed as class-IV has come through Employment Exchange were given appointment as Class IV".
5. Through identical Writ Petition i.e WP No. 3027- P of 2015 filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner therein has prayed that:- "On acceptance of this writ petition, the impugned appointment order Endst: No 1631-36 / DEO (F) NSR / EA- S / Apptt / Class-IV dated 30.06.2015 of the private respondents being illegal, unlawful, without jurisdiction / authority may kindly be set aside and the respondent No 3 may kindly be directed to advertise the posts afresh so that all the eligible persons including the petitioner be allowed to participate for the said posts".
6. In essence the grievance of the petitioner is that 18 posts of Class-IV were vacant with the respondents whereupon appointment of respondents 4 to 21 were made, but without adopting proper procedure as prescribed for the same i.e. without advertising them in any reputed daily news paper.
7. Respondents were put to notice by the Court, while answering respondents Nos. 1 to 3 contested the petition by submitting their para-wise comments.
8. Perusal of record reveals that vide order sheet dated 19.06.2017 responden ts i.e. District Education Officer (Female) Elementary & Secondary Education, District Nowshera was summoned to produce the record regarding employment exchange registration of respondents Nos. 4 to 21. But on 06.09.2017 one Fayyaz Hussain, DEO (F) alongwith Mr. Inayat Ullah, ADO (Legal) who is also present today , stated at the bar that "No Such Record Is Available". Record further suggests that on 26.10.2017, again directions were given to the learned AAG alongwith Mr. Inayat Ullah, ADO (Legal) who were present in Court to produce all relevant record regarding filling up of posts through employment exchange specially letter addressed to the emplo yment exchange for requisitioning of requisite persons and response thereof, and the case was posted for today i.e. 07.12.2017.
9. Today when the case was taken up for hearing, same ADO (legal) Mr. Inayat Ullah, who had made statement on 06.09.2017 at the bar that there is no such record is available, produced list of respondents as well as abstracts of registers and stated at the bar that respondents Nos. 4 to 21 have got registered themselves with the Employment Exchange Nowshera. Scrutiny of the documents so produced by ADO (Legal) reveals that there is no such letter whatsoever available on the file which could suggests that respondents had made requisition of available candidates for their appointments from the Employment Exchange Nowshera which is the mandatory requirement for the just and fair appointments.
10. Petitioners in WP No. 3005-P/2014 , admittedly belongs to District Pesha war, whereas most of private respondents / selectees belongs to other Districts than Peshawar , but have been appointed. Cutting it short, the official respondents have admitted their appointment, but are of the view that they made the appointment according to Appointment, Promotion and Transfer) Rules-1989 on the recommendation of Departmental Selection Committee through Employment Exchange. Alongwith the reply / comments they have annexed the photocopies of Employment Exchange cards which do confirms their registration but in their respective Districts i.e Swabi, Nowshera etc and that's why vide order dated 9.3.2017, respondents No.1 and 2 were directed to produce copy of letter addressed to the Employment Exchange concerned i.e Peshawar as the posts were lying vacant at Peshawar . Respondents were further directed to produce even the letters address to Employment Exchange, Swabi and Nowshera, as well, but today at the bar they admitted that there are no such letters, addressed to any of the Employment Exchange, confirming that all the private respondents were appointed on the recommendations of their favourite one directly and subseq uently their registrations with the Employment Exchange have been procured, hence the appointment is declared, based on nepotism and favouritism.
11. The purpose of addressing the letter requisitioning the eligible candidates for appointment against the posts is that, the names of eligible are recommended by the Employment Exchange on the basis of seniority in respect of date of registration and age. The photocopies so annexed with the comments reflect that majority of them were even registered just one week prior to their date of appointment in the year 2014, clearly showing the mala-fide on the part of respondents.
12. Even otherwise, the other Districts than the concerned are excluded when it comes to the appointment through Employment Exchange. The relevant 2 proviso to Rule-10 (2) of Khyber Pakhtunkhwa, Civil Servants (Appointment, Promotion & Transfer ) Rules, 1989 reads as under:- "Provided further that the appointment in Grade I. to 4 shall be made on the recommendation of the Departmental Selection Committee through the District Employment Exchange concerned, or where in a District, the office of the Employment Exchange does not exist, after advertising the posts in the leading newspaper ."nd
13. The underlining is by us in order to show emphasis on the two words. Admittedly , the posts are in the District Peshawar and as such the word District Employment Exchange will come into operation, therefore, appointing the respondents from other districts in the presence of eligible candidates within the district is totally uncalled for and reflects nepotism. The word 'concerned' in the said proviso has got binding effects and the phrase / word used in a Statute may in the circumstances have a defective effect on interpretation of a particular provision of law, but it's the duty of the Court interpreting a law to ensure that every word is giving due weight, consideration and importance. This is equally applicable to the phrase used by the legislature. If at all, the official respondents wanted to give advantage to the Class-IV Employees of the other districts they were supposed to have advertised the post in accordance with law , but in no circumstances they could be allowed to appoint the people as they did.
14. This Court has got the every material to undo the appointment orders of private respondents No.8 to 34, as the same are ab initio, void & illegal, but keeping in view the unemployment in the province, we are not in a mode to dispense with their services, however , we direct the respondents to adjust the petitioners before us, as they are the eligible, competent and fit for the post but were not considered under malafide intention, inspite of the fact that due to the malafide and malicious act of official respondents in connivance with the Political Government has violated the rights of other citizens, as well.
15. Since we are witnessing these type of violations every day in the shape of writ petitions, therefore, we feel it appropriate to direct the Provincial Government to implement the policy of Peshawar High Court, Peshawar for the appointment of Class-IV Employees in the entire Province, in all the Departme nts, which has been practised successfully by the Hon'ble Chief Justice Mr. Justice Yahya Afridi. This policy is commonly known as "Bowl Policy" in the judicial circle, being implemented successfully and at least the Class-IV Employees are satisfied with it.
16. The policy , so introduced by the Hon'ble Chief Justice, Peshawar High Court, Peshawar , after taking oath of the office is that all the names of the eligible candidates are put in a Bowl, who are otherwise physically fit and duly qualified/ eligible for the Class-IV , 1 to 4 post, if so prescribed, and in their presenc e, their names are picked up in reference to the vacant post, after appointing 25% from Retired Employees Son Quota. The selection against Retired Employee Son Quota shall be on seniority basis i.e from the date of Retirement. The selection / appointment through Employment Exch ange is always on the basis of senio rity assigned from the date of registration and age, and selection on open merit through Bowl Policy , as explained above.
17. Since in the recent past we have decided number of cases of Class-IV Employ ees and in each and every selection/appointment it is noticed that in our Province all the Departments are appointing Class-IV Employees by adjusting their near and dear ones / blue eyes, just in the garb of interview etc we, therefore, circulate this judgment to all the Departmental Heads of each and every Department of the Khyber Pakthunkhwa, to circulate the same for compliance I implementation for the appointment of Class-IV Employees in accordance with the said policy to be named as "Bowl Policy", failing which the candidates of Class-IV Post are directed to file COC / contempt petition against the concerned Department as any appointment made under the garb of interview / selection process would be an illegal act and violation of this judgment. We are implementing the Bowl Policy for Class-IV appointment, after giving due thought to all circumstances including the fact that there can be no interview for Class-IV Employees and nor can be the selection criteria, but just a pick and choose.
18. This writ petition is allowed, as indicated above. The adjustment / appointment notification of petitioners be issued within fifteen days from the date of receipt of this judgment. Additional Registrar (Judicial) is directed to circulate the judgment to all the Heads of the Department throughout Khyber Pakhtunkhwa for compliance and implementation. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.