SAHIBZADA ASADULLAH, J. The petitioner , has approached this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, with the prayer: It is, therefore, requested that on acceptance of the present writ petition the petitioner may kindly be appointed as regular Patwari by declaring the office order No.237/DC(DK) dated 08.2.2019 issued by the Respondents as null and void and without jurisdiction. It is farther prayed that if any action already taken by the respondents may also be reversed/set aside by declaring the same as void-ab-initio and having no binding ef fects upon the rights of Petitioner .
OR If any other efficacious relief which this august Court may deem proper/ appropriate in the interest of justice may also be granted to the Petitioner ."
2. Concise facts of the present petition are that the petitioner passed his Patwar Exam in the year 2010 and was appointed as Patwari in the on-going settlement operation in D.I.Khan. After going through the requisite formalities including getting of medical fitness certificate the petitioner assumed the charge and started to perform his official duties. While the petitioner was performing his duties with zeal and zest that in the meanwhile some 22/23 vacancies of Patwaris in the Revenue Department, D.I.Khan, surfaced and the competent authority was pleased to issue the appointment orders of respondents No. 7 to 9, vide office order No.237/DC(DK) dated 08.2.2019, by ignoring the petitioner , despite the fact that the appointed respondents were junior to him. The petitioner feeling aggrieved knocked at the doors of this Court through the instant writ petition by impugning the appointment order ibid.
3. The respondent No.4 was directed to furnish his Para-wise comments which were submitted accordingly .
4. It was submitted on behalf of the petitioner that the petitioner was senior to the appointed respondents and that he had the preferential rights to be appointed on regular basis instead the respo ndents No.7 to 9; and that the conduct of the respondents especially respondent No.4 speaks nothing but malafide on his part and a wilful attempt was made to deprive the petitioner of his due right and that on one hand he was not considered for the post being the most deserving whereas on the other the respondents created a classic example of discrimination, which is not sustainable in the eyes of law. I-Ie lastly submitted that there is no ambiguity regarding the appointment of Patwaris and the needed qualification, and hat the mode and method of appointment has been settled through the Land Record Manual.
5. Contrarily , the learned Addl: Advocate General submitted that the stance of the petitioner is unfounded and that the submissions so tendered are based on misunderstanding of the law created for the purpose; and that paragraph 3.6 of the Land Record Manual has left no ambiguity in this respect. He lastly submitted that the petitioner is travelling with suppression of facts and that he does not deserve the desired concession.
6. Heard. Record perused.
7. The case of petitioner is that, he being senior than respondents No. 7 to 9 was entitled to regular appointment but was ignored, and therefore, he may be appointed as Patwari in preference to respondents No.7 to 9 by cancelling their appointment order No.237/DC(DK) dated 08.2.2019. Respondents in their comments have refuted the stance of petitioner on the score that, at the time of his appointment the petitioner was overage, and therefore, he was not considered for appointment.
8. No doubt, according to the list of approved candidates given in the Register maintained according to appendix "G" of paragraph 3.6 of Land Record Manual, the name of petitioner rung at serial No.25 and respondents No.7& 8 have been shown at serial No.26& 27 respectively . The petitioner was admittedly appointed as Patwari for on-going settlement Operation in District D.I.Khan, vide Order bearing No.328/SK dated 15.04.2016, and according to the terms & conditions of appointment order petitioner was having no right claim his seniority with regular Patwaris.
The clause No.1 of the terms & conditions of the appointment order of petitioner runs as:
1. His appointment being against SNE posts is purely on temporary basis till the continuation of SNE. He will have no right to claim his seniority with regular Patwaris on the basis of this order .
9. The petitioner after admitting the terms & conditions of the said appointment letter, submitted his arrival report and started to continue his duties against the said post, despite the fact that it was clearly mentioned in the supra condition that the appointment was subject to continuation of SNE with no right of seniority . Even then petitioner opted to go with his said appointment, and never refused the same. Hence, accord ing to Paragraph 3.6, the name of petitioner was deemed to be excluded from the list of approved candidates per appendix "G". The Paragraph 3.6 of the Land Record Manual is reproduced hereunder for ready reference: 3.6. List of Patwar Pass persons.--- (1) For each Sub-Division, a list of all Patwar Pass persons shall be maintained by the Sub Divisional Collector/Political Assistant in Form P-1 given in Appendix "G" with a view to have ready information about the availability of eligible persons in the Sub Division to facilitate filling up the vacancies.
However , the appointment of Patwaris shall be made strictly in accordance with Service Rules and the Recruitment Policy as may be applicable at the relevant time.
(2) Maximum Educational qualification for the Patwari is F.A/intermediate. The names of only those persons shall be enrolled, who are bona fide residents of the concerned Sub-Division.
(3) The name of the eligible persons shall be added to the list as and when the result of the Patwar Examination is received and no eligible person shall be refused enrolment.
(4) The aforesaid list shall be verified and up-dated by the Collector concerned at least once in a year so as to exclude the names of those, who have become un-available on account of death, migration, employment on any other post, etc. (our emphasise)
10. The sub-Paras (3) and (4) of the paragraph 3.6 of Land Record Manual make it clear that only eligible candidates are to be included in the list of approved Patwarcandidatesand the same shall be verified and updated, at least once in a year, to exclude those who have become unavailable on account of death, migration and employment on any other post. As discussed above, the petitioner had joined his posting in the on-going settlement operation, therefore, he had become unavailable on account of his said employment. It was mandatory to update the list of approved Patwar Candidates, but the same was not done and petitioner cannot claim the benefits due to non-updating of the list. Further , the petitioner had also become over-age and, therefore, per sub-Para (3) above, only a list of eligible candidates can be maintained.
11. There is no cavil with the proposition that at the time of issuing impugned appointment order , i.e. on 08.02.2019, petitioner was unavailable, and therefore, respondents No.7, 8 & 9 were appointed as they were available in the list of Patwari Candidates being eligible in view of sub-Paras (3) & (4) above. Petitioner failed to point out any aspect of cherry-picking in the impugned appointments.
12. Learned counsel for the petitioner contended that the age of petitioner was over up-to four months only whereas, respondents have awarded age relaxation to other candidates upto four years. In this regard we may observe that firstly it is not the case of petitioner to award him relaxation in the upper age limit, rather in his writ petition he only sought his appointment by cancellation of the impugned appointment order; and secondly , the august Supreme Court of Pakistan in the case of Muhammad Aamir Khan VS. Government of Khyber Pakhtunkhwa through Senior Membe r Board of Revenue, KP and others (2019 SCMR 1021 ) has in unequivocal words ousted the scope of age relaxation to Patwaris beyond 35 years of age. The relevant excerpt from the judgment of Apex Court runs as under: "3. --- Though vide notification dated 01.10.2010 upper age limit for the post of Patwari was extended to 35 years by amending existing NWFP Revenue and Estate Department (Tehsildar , Naib Tehsildar/Subordinate Revenue Service) Rules, 2008 (RED Rules), but contended that these rules were further relaxed and, in this respect, made reference to the NWFP Initial Appointment to Civil Posts (Relaxation of Upper Age Limit) Rules, 2008 (Amending Rules). So far this submission of the learned ASC for the petitioner is concerned, the notification dated 01.01.2010 reads as follows: "GOVERNMENT OF NWFP REVENUE AND EST ATE DEP ARTMENT Dated Peshawar the 01.01.2010 NOTIFICA TION No._____ /Admn:VII/A. Relaxation. In pursuance of the approval by the Chief Executive NWFP and in exercise of the Powers conferred by section 26 of the NWFP Civil Servants Act, 1973 read with this Department Notification No.32102/ Admin:I/135/SSRC, dated 26.12.2008, the following amendment in the NWFP Revenue and Estate Department (T ehs ildari, Naib T ehsildari/Subordinate Revenue Service) Rules, 2008 (Patwari S.No.8 Appendix):- AMENDMENT The Upper Age limit for the post of Patwari is extended to 35 years by amending the existing NWFP Revenue and Estate Department (Tehsildar , Naib Tehsildar/Subordinate Revenue Service) Rules, 2008 (Patwari S.No.8 Appendix) once for all. And no provision for age relaxation over 35 years will be allowed under any circumstances by any Authority .
Sd/- Senior Member Board of Revenue"
This amendment as noted above, was specifically made in the RED Rules, which specifically apply to the case of patwaris. Amending Rules apparently have no application to the patwaris as the same are applicable to general employees of the provincial government. Thus, these rules having no application in the case of the petitioner , the relaxation of upper age as mentioned in these rules, relates only to the initial appointment of the general employees of the province."
13. We may further note that in the Para 3.6 (1) of the Land Record Manual, there is specific reference that the appointment of Patwaris shall be made strictly in accordance with Service Rules and the Recruitment Policy as may be applicable at the relevant time. Relance is also placed on the supra the supra case of Muhammad Aamir Khan.
14. Considering the above facts and circumstances, the instant writ petition thus does not require any consideration and indulgence and is accordingly dismissed along with listed applications.