ADNAN-UL-KARIM MEMON J. Through this common order , we intend to decide the present lis as the controversy and questions raised, on behalf of the petitioners, is common.
2. Petitioners are seeking declaration to the effect that they are eligible and fit candidates for appointment on any ministerial posts in different departments of local government, Government of Sindh on the basis of deceased quota in terms of Rule 1 1-A of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974.
3. At the very outset, we asked the learned Counsel to satisfy this Court with regard to maintainability of the instant Petitions on the ground that the petitioners' deceased parents were not Civil Servants, thus the benefit of Rule 11-A cannot be extended to them in the light of decision rendered by the learned Division Bench of this Court in the case of Fazal Ahmed Samtio Vs. Province of Sindh through Secretary Local Government and 3 others (2010 PLC C.S 215 ).
4. Learned counsel replied that the Respondents are discriminating the Petitioners in violation of Rule 11-A of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules 1974 ; Learned counsel further added that Petitioners are entitled to be appointed to the ministerial posts on the basis of dece ased quota as well as on merits ; that the Petitioners have been seriously prejudiced and not treated equally , therefore, the Petitioners are entitled to be treated equally in accordance with law, as provided under Articles 4 and 25 of the Constitution of Islamic Republic of Pakistan, 1973 ; that grave injustice has been done with the Petitioners with no fault on their part by depriving them for their appointment to the ministerial posts, for which they are fit and qualified ; that due to such acts and deeds of the Respondents, the Petitioners have suffered a lot of mental torture, agonies and by such situation, the Petitioners are facing probl ems too ; that the denial in this regard by the Respondents amounts to invade upon and infringement of fundamental and legal rights of the Petitioners as guaranteed by the Constitution of Islamic Republic of Pakistan 1973, which are enforceable by this Court in exercise of its Constitutional jurisdiction ; that the Petitioners have been continuously approaching personally to the Competent Authority of respective departments to appoint them for any suitable posts on the basis of deceased Quota / policy in vogue, but nothing has been done so far; that the Petitioners are aggrieved by the illegal action of the Respondents. In support of their contentions they heavily relied upon the Notification dated 05.05 .2017 issued by Government of Sindh Local Government and Housing Town Planning Department, and argue d that the Rule 11-A is made applicable in local Councils. They also relied upon in the case of Ayaz Ali and others versus Governme nt of Sindh & 67 others (2014 PLC (C.S.) 1060 ) and argued that the case of petitioners is akin to the decision referred to hereinabove; therefore, they may be treated accordingly . They lastly prayed for allowing the instant Petitions.
5. Mr. Allah Bachayo Soomro, learned Additional Advocate General representing Secretary Local Government has argued that Rule 10-A and Rule 11-A of the Sindh Civil Servant (Appointment, Promotion and Transfer) Rules 1974 provide that where a civil servant dies while in service or is declared invalidated or incapacitated for further service, one of his unemployed children may be employed for which he / she possess the minimum qualifications prescribed to that post. He added that since petitioners' deceased parents were employed in different departments of Local Government Department, and were not civil servants, therefore, their matters do not fall within the ambit of rule 11-A. However he agrees that let all the petitioners approach the competent authority for decision in their cases, who have applied for different posts in local councils / authorities / corporations and other departments of local government on the basis of deceased quota and no prejudice shall be caused to the respondents if the Competent Authority takes care of the issue involved in these proceedings in accordance with law .
6. During the course of arguments Mr. Imran Qureshi learned counsel for Hyderabad Municipal Corporation has raised objection to the maintainability of the instant petitions on the ground that there is no provision in law to accommodate the petitioners on the basis of deceased quota. We queried him whether the policy in vogue provides the mechanism for dealing the issue of appointment in different local councils working under the umbrella of Sindh Local Government, he states that these are policy decisions to be taken by the Competent Authority .
7. We have heard learned counsel for the parties and perused the material available on record and case law referred to herein above.
8. We have scanned the rule position and found that Rule 11-A explicitly provides that where a civil servant dies while in service or is declared invalidated or incapacitated for further service, one of his / her children or, as the case may be, widow (when all the children of the deceased employee are minor) shall be provided job who applies within a period of two years of death or declaration of invalidity of incapacity of civil servant on any of the basic pay scales No.1 to 15 in the Department wher e such civil servant was working; Provided that such appointment shall be made after fulfillment of formalities as required in the requirement rules and holding interview , for the post applied for; provided further that the cut of date shall be within two years of the death of the officer or official" Third proviso of Rule 10-A as well as second proviso of Rule 11-A, specifically provide cutof f date for making of an application for appointment under deceased employees quota within two (02) years of the occurrence of death of the Government Official. Through a further Notification dated 16.09.2014, two further provisos were added in Rule 10- A and 11-A and they are as follows:- "1. Under Rule 10-A after third proviso, the following fourth proviso shall be added:- "Provided further that if a right of employm ent has already accrued to any of the children of deceased or invalidated or incapacitated civil servant then the former shall not be deprived of the benefit accrued to him under Notification dated 1 1.03.2008 and 17.07.2009 of these rules."
2. Under Rule 1 1-A, after second proviso, the following third proviso shall be added:- "Provided further that if a right of employm ent has already accrued to any of the children of deceased or invalidated or incapacitated civil servant then the former shall not be deprived of the benefit accrued to him under Notifications dated 1 1.03.2008 and 17.07.2009 of these rules"
9. The aforesaid rule position makes it very clear that the aforesaid deceased quota facilities is / was available for the children, whose parents, being civil servant died while in service, or were declared invalidated or incapacitated for further service, admittedly petitioners deceased parents were not civil servants and were employees of local Government, therefore, rule 1 1-A is hardly applicable in the cases of petitioners.
10. In view of the above, it is crystal clear that the Respondent-councils, corporations, authorities cannot circumvent the law to make recruitment on the basis of Son / deceased quota by invoking Rule 11-A of Sindh Civil Servants (Appointment, Promotion, Transfer) Rules 1974, without referring the matter to competent authority for the recruitment on merit.
11. In the light of above discussion, the instant constitutional petitions are not maintainable. However , if the petitioners in all the captioned petitions move their fresh applications along with all the requisite attested documents to the competent authority / Chief Secretary , Government of Sindh, Karachi, who shall examine all the cases individually and decide the applications of the petitioners strictly in accordance with law and applicable rules as well as Government Policy in vogue.
12. These petitions stand dismissed in the above terms.