MUHAMMAD NAEEM ANW AR, J. Through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioners seek the following players: - i. The appointment of respondents No. 13 to 155 may kindly be declared as illegal, unlawful, without lawful authority thus having nullity in the eyes of law and void ab-initio. ii. That the official respondents may kindly be directed to appoint the petitioners on the available posts of class-iv , drivers and clerks etc. as per their qualification according to the merit in the best interest of justice. iii. That official respondents may graciously be directed to fill the remaining posts as per law and rules as well as the judgment of this court on the subject. iv. Any other relief, not specifically prayed may also graciously be granted/issued/g iven, if appears just, necessary and appropriate, in the circumstances of the case.
2. Facts leading to the institution of this petition are that the petitioners are qualified, have completed PTC course, diploma in information technology , well conversant with computer program and some of them are license holder of LTV/HTV , Qari etc. They have time and again applied for their appointments as class-IV , Qari, PTC teacher commensurate with their respective qualification against vacant posts. Respondents have made number of appointments on the recommendations of MNAs, MPAs, District and Tehsil members on the basis of political affiliation as per their whims and wishes against the posts of Drivers, Shovel Operator , Tube Well operators, Naib Qasid, Roller Cleaner , and sanitary Workers without following the prescribed procedure i.e. without being registered with Employment Exchange and publishing proper advisement in newspapers. It was also alleged that NAB authorities have also taken cognizance in the matter and in this Reference is also pending before Accountability Court at Peshawar .
3. Respondents were directed to submit their para-wise comments, in response to which respondents No. 4 to 6 have furnished their comments raising therein certain legal and factual objections and, as such, opposed issuance of the desired writ.
4. Learned counsel representing the petitioners contended that the appointments of respondents No. 13 to 155 are against the prescribed procedure as provided in the Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion & Transfer) Rules, 1989 as prior to the appointment neither the private respondents were registered with Employment Exchange nor any advertisement was ever published in any newspaper , rather all the appointments were made by the respondents No.4 to 6 in order to compensate their blue eyed either on their own desire or on the recommendation of political figures such as MPAs, MNAs, District and Tehsil members. He added that the matter of illegal and irregular appointments was also inquired by the NAB authorities, which was, later on, converted into investigation and on its competition, a Reference has been filed under section 18(g) read with section 24 of NAB Ordinance, 2000, which is sub judice before the Accountability Court at Peshawar .
5. Contrarily , learned counsel for official respondents strenuously opposed the contentions of learned counsel for the petitioners and argued that the employees of Tehsil Municipal Administra tion are not Civil Servants in accordance with Khyber Pakhtunkhwa Local Council Service Rules 1980, and all the appointments were made in strict compliance thereof. He also contended that mere filing of NAB Reference would not amount to conviction, which would be decided on its own merits. He further contended that nothing with respect to issuance of Employment Exchange Card has been annexed with the petition and, as such, at this stage, it could not be determined that the petitioners were registered with Employment Exchange, thus, involving intricate questions of facts in the matter , requires recording of evidence, and on this score alone this petition warrants dismissal.
6. Learned counsel representing the private respondents contended that the private respondents were appointed in accordance with law and rules applicable for the appointment of class-IV employee s and if there is any irregularity in their appointments that cannot be attributed to them as they have vested right to hold the posts.
7. We have considered submissions of learned counsel for the parties and gone through record of the case.
8. Interestingly , Barrister Amir Khan Chamkani, learned counsel for the official respondents at the very outset candidly conceded that for filling the posts, the official respondents have neither advertised these posts nor the private respondents were registered with the Employment Exchange, however , added that as the official respondents are not civil servants, so, they were not bound to follow the procedure as they have their own rules for initial recruitment.
Khyber Pakhtunkhwa, Local Council Servants Rules, 1980, in its Part III, provides Method of Recruitment. In accordance with Rule 5(1)(c), it may be made through initial recruitment whereas Rule 8 provides that appointment by initial recruitment to a post shall be made on the recommendation of Selection Sub-Committee by the appointing authority . Likewise, Rule 11 specifically provides that "in all other matters not specifically provided for in these rules, the employees shall be governed by such rules and orders which are, for the time being in force and applicable to the persons holdings corresponding position government service subject to such modification as the Local Government may, with the prior approval of Government specify". It is also pertinent to mention here that till 26th April 2019, Local Governments of Khyber Pakhtunkhwa have got no policy in explicit term for the recruitment of staff. Except a Notification No. SRO-VI (E&AD) 1-3/2008, dated 03-11-2008, for initial appointment of class IV employees, two modes were provided such as,
(a) On the recommendation of Departmental Selection Committee through the District Employment Exchange concerned, or
(b) When in a District, the office of Employment Exchange does not exist, after advertising the post in the leading paper .
The aforementioned notification and the notification, vide which second proviso to sub-rule 2 of rule 10 Proviso added vide Notification No. SOR-VI(E&AD)1-3/2003 (VI) dated 16-03-2004), are almost one and the same.
9. Thus, in such scenario, for transparent, clear and unambiguous recruitment, the statutory provisions regarding appointment of Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion & Transfer) Rules 1989 would be applicable, where in Rule 10, a detailed procedure in sub-rule 1 to 3 has been provided which is reproduced as under ,
10. Appointment by Initial Recruitment: -
(1) Initial appointment to posts [in various basic pay scales] shall be made-
(a) If the post falls within the purview of the Commission, on the basis of Examination or test to be conducted by the Commission; or .
(b) if the post does not fall within the purview of the Commission, in the manner as may be determined by Government.
(2) Initial recruitment to posts which do not fall within the purview of the Com mission shall be made on the recommendation of the Departmental Selection Committee, after vacancies have been advertised in newspapers.
Provided that nothing contained in this sub-rule shall apply to the household staff of the Chief Minister House Peshawar , [Khyber Pakhtunkhwa] House Islamabad, [Khyber Pakhtunkhwa] Rest Houses Bannu, Swat and Abbottabad, [Khyber Pakhtunkhwa] House Nathia Galli and Shahi MehmanKhana, Peshawar and any other House to be established by the Government: Provided further that the appointment in Basic Pay Scale-1 to 4 shall be made on the recommendations 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 newspapers] added by vide Notification No. SOR-VI(E&AD)1-3/2003 (VI) dated 16-03-2004.
(3) A candidate for initial appointment to a post must possess the educational qualification or technical qualifications and experience and except as provided in the rules framed for the purpose of relaxation of age limit, must be within the age limit as laid down for the post, provided that- (i) where recruitment is to be made on the basis of written examination, then, notwith standing anything to the contrary contain ed in any other rules for the time being inforce, age shall be reckoned on 1st January of the year in which the examination is proposed to be held;
(ii) in other cases, as on the last date fixed for submission of applications for appointment.
10. It is not disputed by the official respondents rather learned counsel representing them candidly conceded at the bar, during arguments, that no post was advertised for initial recruitment. The argument that private respondents have acquired a vested right to hold Class IV posts is clearly misconceived. Admittedly , the petitioners were appointed on Class IV posts without any transparent selection process. The posts against which they were appointed had not been advertised by official respondents. No requisition was sent to the Employment Exchange as per the requirement of the Employment Exchanges provided in second proviso of rules of 1989 or notification of 2008 (supra). On the basis of such appointments, no right much less a vested right has been acquired by the private respondents to be continued in employment. As the appointment of the respondents did not precede by the advertisement of the posts or sending of requisition to the Employment Exchan ge with a view to enable other eligible persons to be considered for recruitment against the vacant posts. Therefore, there is no escape from the conclusion that the respondents (private) got entry in the service by back door method and they have been benefitted by fraudulent system of emplo yment engineered by official respondents. It is their misfortune that the respondents did not consider it to adopt an appropriate mode, either without sending requisition to the Employment Exchanges or without issuing advertisement with a view to give opportunity of competition to other eligible persons including the petitioners, which process were violative of the doctrine of equality embodied in Articles 18 of the Constitution. We, therefore, hold that the petitioners did not acquire any legal right to hold the post on which they were appointed. Petitioners have appended a list of the 144 appointees as annexure (S), consisting upon 15 leaves, which remained uncontroverted during arguments, which depicts that not even a single of them from 144 for whom list would have been demanded from employment exchange. Most of them were either not registered or registered on the date of interview . So much so twenty of them were registered with Employment Exchange, Mardan, who were appointed in District Nowshera.
11. The Hon'ble Supreme Court of Pakistan in Human Rights Cases Nos. 104 (i), 104 (ii), 104 (iii) and 104 (iv) of 1992 (1996 SCMR 1349 ) has held that, "While inquiring into various complaints of violation of Fundam ental/ Human Rights, it has been found that the Federal Government, Provincial Governments, Statutory Bodies and the Public Authorities have been making initial recruitments, both ad hoc and regular , to posts and offices without publicly and properly advertising the vacancies and at times by converting ad hoc appointments into regular appointments. This practice is prima facie violative of Fundamental Right (Article 18 of the Constitution) guaranteeing to every citizen "freedom of profession."
An identical view was expressed by the Apex Court in case titled MUHAMMAD ALI and 11 others Versus PROVINCE OF KPK through Secretary , Elementary and Secondary Education, Peshawar and others, 2012 SCMR 673 , wherein it was held as under:- "Having noted the relevant facts divulged from the case record, as above, which have not been disputed by the learned Advocate Supreme Court for the petitioners, we do not find any substance in the arguments of learned Advocate Supreme Court regarding denial of opportunity of hearing to the petitioners for the simple reason that one who seeks equity must do equity and approach the Court with clean hands, as opposed to protection of some ill- gotten gains. The petitioners, who admittedly got their appointments from the backdoor without advertisement of vacancies, inviting of applications and completion of codal formalities, in the given facts and circumstances of the case, cannot challenge the principles of good governance adopted at the highest level, mandating each and every appointment in the government service to be made on merits as per relevant rules and completion of codal formalities or lawfully agitate any grievance on the pretext of lack of due opportunity of hearing. The original order of termination of petitioner's service dated 4-9-2009 is self-explanatory and cannot be termed as illegal on any hyper-technical ground, as also rightly concluded by the Tribunal in its impugned judgment, therefore, calling for no interference in exercise of jurisdiction by this Court under Article 212(3) of the Constitution of Islamic Republic of Pakistan, 1973."
12. This court while deciding Writ Petition No.1038-P of 2018, titled Sareer Ahmad Versus The secretary , Government of Khyber Pakhtunkhwa {2019 PLC (C.S)170} has held that:- "Along with the comments of respondents Nos. 1, 3 and 4 nothing has been enclosed to show that when there was no advertisement and no letter was issued requisitioning the registered persons from the Employment Exchange, how come the selectees/added respondents came to know that posts are lying vacant. Respondents also failed to produce on record any list issued by the concerned Employment Exchange showing that any list was provided upon requisitioning, by the Employment Exchange concerned. AAG along with departmental representative present in the Court informed at the bar that selectees/added respondents provided photocopies of registration card issued by the Employment Exchange along with their applications and thus they were selected, clearly reflecting that selectees are the near and dear ones of the personalities involved in the selection process. How come a registered person other than the selected one came to know that posts are lying vacant. The date of selection and clouds of election, the caretaker setup is important".
We have gone through record of the case and found not only illegalities and irregularities in the appointments of the private respondents, which have been made in sheer violation of the dictum laid down by this Apex Court as well as this court, which cannot be allowed to remain in field. Adverting to the contentions of learned counsel for private respondents, suffice it to say that when the prescribed procedure in the appointments of respondents has not been followed and the others were not allowed even to participate in the process of selec tion and when neither the posts were advertised nor names of those who were registered with Employment Exchange were requisitioned, thus, they cannot claim any leniency and protection even on the principle of locus poenitentiae. The same view was expressed by the Lahore High Court, Lahore, in case titled "Ignees Maria and another v. District Coordination Officer, District Bahawalnagar and 2 others" [2012 PLC (C.S.) 772], wherein, at page 784 of the report, it was opined as follows:- "15. Next comes the objection of learned counsel representing the private respond ents/ newly appointed Class-IV employees that their appointment is protected by the principle of locus poenitentiae and that omissions made by the departmental authorities cannot be made basis to upset their appointments. I am afraid the principle of locus poenitentiae cannot be pressed into service to protect the ill-gotten gains. If some benefit has been obtained in sheer disregard to settled procedure and it also has been done by tarnishing the rights of other eligible persons, then such a benefit cannot be maintained perpetually".
Guidance was also derived from the 2004 PLC(C.S.) 653 (Abdul Razzaq versus Secretary Government), 2017 PLC (C.S.) 1142, 2003 PLC (C.S.) 69,2003 PLC(CS) 1484, 2002 SCMR 769, 2004 PLC(CS) 653, 2003 SCMR
291. 2006 PLC (CS) 1278.
13. In the light of what has been stated above, this petition is allowed in term that the appointments of private respondents being against the prescribed procedure, result of nepotism and favoritism are declared illegal, thus, the same are set aside and the compe tent authority is directed to re-initiate the selection process strictly in accordance with law .