MUHAMMAD NAEEM ANW AR, J.----The petitioners have challenged the validity of consolidated judgment and decree of learned Additional District Judge-IV , Lakki Marwat, dated 16.12.2013 whereby their appeals were dismissed, consequently , the judgment and decree dated 14.03.2013 passed by learned Senior Civil Judge, Lakki Marwat, was maintained.
2. Facts making back ground of the instant petition are that respondent No.1/plaintiff has filed a suit for declaration contended therein that he is the resident of Mela Shahab Khel and for the post of class VI or lab attendant the residents of Mela Shahab Khel were entitled to be posted after adopting due course of law but the official respondents without inviting application through advertisement or from the employment exchange appointed petitioners/defendants Nos. 6 and 7, furthermore that official respondent had no authority to make any appointment because he was given additional charge of District Lakki Marwat that too only to after the in- going official matters, he also prayed that his predecessor in interest has donated the land for construction of school thus, he has a preferential right for his appointment against the vacant post in comparison with petitioners therefore, the appointments may be declared as illegal, without lawful authority, against the law and ineffective upon his rights with an added prayer that he may be appointed. It was also prayed that in alternate the due compensation market rate may be awarded to him
3. Suit was contested by the respondents on various legal and factual objections. After framing of issues, the parties were directed to produce their evidence. On completion of evidence, learned trial court vide its judgment dated 14.03.2013 granted partial decree in favour of plaintif fs to the extent of declaring the appointment of petitioners Riaz Muhammad and Dilawar Khan as illegal and unlawful while rest of the claims of the respondent No.1 were turned down, being not contented with the same, the petitioners and respondents Nos.1, 7, 8 and 14 assailed the same through filing as many as five appeals which were dismissed on 16.12.2013 through consolidated judgment and decree hence, this petition.
4. Learned counsel for petitioners contended that the suit of respondent No.1 was incompetent from its inception, being filed for declaration under section 42 of the Specific Relief Act, 1877 without asserting any right and that too without accrual of any cause of action for the reason that suit was based upon alleged transfer of immovable property in favour of Education Department against which no service could be claimed, in accordance with dictum laid-down by the Hon'ble Supreme Court of Pakistan. He vociferated that the suit was defective for non-joinder and mis-joinder of the, parties and that civil court has got no jurisdiction when the petitioners were appointed initially against fixed pay and later on were regularized; thus, only Service Tribunal can adjudicate upon the suit against them. He added that neither respondent No.1 has submitted any application for his appointment nor he was registered with Employment Exchange and as for as the post of Lab: Attendant and Chowkidar respondent No.1 has got no vested right for his appointment against any one of these posts thus no declaration could be granted against the petitioners. He also added that though it was pleaded that the petitioners were appointed against fixed pay but even than learned trial court has not framed any specific issue as such the judgment against them is the result of mis-reading and non-leading of evidence. Lastly , he contended that through Ex.PW -5/3, DEO, i.e., Executive District Officer Schools and Literacy Department Lakki Marwat has accorded Ex-post facto sanction in favour of petitioners and respondent No.1 has got no locus standi to file a suit.
5. As against them, learned counsel for respondent No.1 contended that it was the bounded duty of education department to fill the vacancies through proper advertisement or through employment exchange by which a right to all including the plaintif f/respondent No.1 be afforded so that he could compete with petitioners being the resident of Mela Shahab Khel for the post of Chowkidar and Lab Attendant, by not inviting applications and by making the appointment of petitioners, the plaintif f's right was infringed for which he has got every right to seek declaration from the court of competent jurisdiction. He submitted that the grievance of the plaintif f/respondent No.1 was only against petitioners and the appointing authority who have properly been arrayed as a party and that Mr. Attaullah Khan Mina Khel who had no authority for appointment for the reason that he was temporarily given additional charge to deal with and to look after the affairs of Education Department, Lakki Marwat, while he was working at District Hannu. The appointments of the petitioners are illegal, corm-non-judice, un-warranted,' against the law and policy of the government. He referred to letter dated 17.11.201 1 pertaining to the violation of rules and misuse of authority in appointment and release of salary to Messrs Riaz Muhammad and Dilawar Khan (petitioners) initiation of inquiry proceedings, statement of allegations, charge-sheet, complaint inquiry against Mr. Attaullah Khan Ex- DEO (E&SE) Lakki Marwat, inquiry report and the notification dated 28.09.2 012 whereby minor penalty of withholding of two annual increments for two years were imposed upon Mr. Attaullah Khan Ex-DEO (E&SE) Lakki Marwat. He added that the law requires that appointment against a post could only be made either through registered candidates from Employment Exchange of a particular district or throug h advertisement, but the case in hand was result of sheer violation, misuse of authority by which the then EDO has made appointment of petitioners that too without any authority , which was rightly set-at-naught by the learned courts below and now there are concurrent findings which are immune while invoking revisional jurisdiction under section 1 15, C.P .C.
6. Arguments heard; record perused.
7. It appears from the contents of the plaint that though the plaintif f has sought declaration to the effect that he be declared entitled for his appointment against the post of either Lab: Attendant or Chowkidar being qualified and eligible for the same on the ground that the land was donated by his grandfather , however , record reflects that his this plea was not considered either by the learned trial court or by the learned appellate court and even he has not challenged the findings of the learned appellate court and to this effect both the learned courts below have correctly made reliance upon the dicta laid-down by the apex court in case titled "Munawar Khan v. Niaz Muhammad"
(1983 SCMR 1287 ) and case titled "Hameed Ullah and 09 others v. Head Mistress Government Girls School, Chokara District Karak and 05 others" (1997 SCMR 855), thus, the arguments of learned counsel that no appointment could be made against the donation of land has got no force because neither this relief was granted nor it is the prayer of respondent No.1 today before this Court.
8. Intrinsically , grievance of the plaintif f was that not only he is qualified and eligible but also belongs to the same vicinity in which the school is situated, he deserves to be appointed against the post of Class-IV that too in accordance with law. When the learned counsel for respondent was confronted about the entitlement of respondent as against petitioners for the post of Chowkidar or Lab Attendant, he admitted it correct at the bar that respondent No.1 has not submitted any application to the Education Department, but he added that even the respondents (education department) has not invited the applications for the vacant position and that Mr. Attaullah Khan the then EDO was given an additional charge of Lakki Marwat only for looking after the matters but B he could not make any appointment against the post of Class-IV or the Lab: Attendant. Record also reflects that respondent No.1 has approached to different forums to the effect that Mr. Attaullah Khan EDO was lacking the authority for making the appointment in Lakki Marwat, thus, the orders made by. him were unjustified. The submission of the respondent No.1 was substantiated through letter dated 17.11.201 1 when through Notification No. SO(S/M) E&SED/4-17/2009/ by which charge against Mr. Attaullah Khan was about violation of rules, misuse of powers, on the basis of which Dr. Mukaram Khan (BPS-20) Principal Government Degree College Peshawar and Mr. Zahir Shah DCO, Bannu were appointed as members of Inquiry Committee to conduct the inquiry against Mr. Attaullah Khan for alleged violation. Record also reflects that Mr. Attaullah Khan was charge-sheeted, statement of allegations further substantiates the contention of respondent No.1. Inquiry was initiated and recomm endations were forwarded to the effect that" (1) Mr. Attaullah Khan, the then, EDO (E&SE) Bannu in Charge EDO(E&SE) Lakki Marwat violated rules and misuse his official powers as Mr. Attaullah Khan was not legally empowered for any appointment or transfer in Lakki Marwat (2) Moreover , complainant is claiming that he is the land owner but as per decision of the Hon'ble Supreme Court of Pakistan, the land owner has no right to be appointed as Class-IV ." Inquiry committee has submitted report with the following findings and recommendations/suggestions: FINDINGS
(1) Attaullah Khan the then EDO of Bannu held dual charge only for look after the work of office of EDO, Lakki Marwat and is not empowered for any appointment or transfer in District Lakki Marwat.
(2) The proper procedure for recruitment of Class-IV has not been adopted.
(3) The headmaster of the concerned school is still drawing the pay of the Class-IV while the then competent authority has been cancelled the appointment order on 17.10.2007.
(4) The case has been filed in the august Peshawar High Court Bench D.I. Khan vide W.P. No.491/2010 which is under trial.
(5) That as per relevant policy of Govern ment Mr. Attaullah Khan the then Incharge EDO(E&SE) Lakki Marwat is not empowered for fresh appointment in District Lakki Marwat.
(6) That the proper procedure for recruitment against Class-IV vacancies modified by the Government vide Local Government and Rural Division Department has not been observed.
(7) Mr. Attaullah Khan the then EDO (E&SE) has not involved the District Selection Committee during the recruitment process.
(8) That the competent authority (Zilla Nazim) has expressed displeasure on appointment order issued without the approval of Zilla Nazim and DCO at the District and has cancelled this order fort with with remarks issued to District Account Officer, Lakki Marwat not to honor pay bill of the officials vide EDO (E&SE) office order issued under No. 1614-18 dated 10.10.2007 and No. 16165.70 dated 10.10.2007 but the headma ster concerned draw their pay regularly .
RECOMMENDA TION/SUGGESTION All the above noted facts prove that Mr. Attaullah Khan the then EDO (E&SE) Bannu Incharge EDO(E&SE) Lakki Marwat violated the rules and misused official power as Mr. Attaullah Khan the then EDO is not empowered for any appointment or transfer in District Lakki Marwat.
Moreover , the complainant is claiming that he is land donor but as per the decision of the Hon'ble Supreme Court the land dollar--has no right to be appointed as Class-W ._
9. On receipt of inquiry report notification dated 28.09.2012 was issued vide which the Secretary Education Government of Khyber Pakhtunkhwa under Rule-3 of Khyber Pakhtunkhwa Government Servants Efficiency and Disciplinary Rules, 2011, imposed minor penalty of withholding of two annual increments for two years. All the above- mentioned documents were properly placed on file in the statements of PWs though the official witnesses were cross-examined but undisputedly the proceedings were taken against Mr. Attaullah Khan and ultimately penalty was imposed. When the allegations against Mr. Attaullah Khan were approved to the effect that he was given additional charge to look after into the matters of Education Department Lakki Marwat then he could not make any appointment, thus, the appointments of petitioners being without authority was of no legal effect. It is also pertinent to mention here that petitioner s were appointed initially on fixed pay through order dated 10.10.2007 whereas the suit was instituted on 08.06.2008 till then the petitioners were not regular employees of Education Department as such at the time of institu tion of the suit no rights whatsoever was accrued in favour of petitioners.
Record also reflects that after institution of the suit, petitioners have submitted application for rejection of plaint and after hearing the parties the learned trial court through its order dated 28.01.2009 rejected the plaint against which an appeal was filed which too was dismissed on 04.02.2010, thereafter , respond ent No.1 approached this Court through C.R.No.201-B/2010, which was allowed and the judgment and orders of both the courts below were set- aside and the case was remanded to the learned trial court with direction to decide the same in accordance with law. Petitioners were given proper oppo rtunity to defend their right and to contest the suit of respondent No.1, however , they could not substantiate their version. Both the learned courts below have properly appreciated the facts of the case and evaluated the evidence in true G perspective as such the concurrent findings of both the courts below are well-reasoned, legally correct whereby suit of respondent No.1 was partially decreed and it was held that appointments of present petiti oners were without lawful authority , unlawful and illegal. Likewise, the regularization of service could only be made when at the time of appointment proper procedure was adopted i.e., duly qualified person appointed in accordance with the prescribed method of recruitment. It is well settled principle of law that where a law requires doing of something in a particular manner it has to be done in the same manner and not otherwise. Reliance in this respect is place upon the cases of Muhammad Hanif Abbasi v. Imran Khan Niazi (PLD 2018 SC 189), (Shahida Bibi v. Habib Bank Limited (PLD 2016 SC 995) and Human Rights Cases Nos.4668 of 2006 and others ( PLD 2010 SC 759 ).
10. Moreover , though learned counsel for petitioners has strongly contended that an incompetent suit was filed by respondent No.1 without impleading the Provincial Government as a party , suffice it to say that the suit was instituted by respondent No.1 by seekin g therein that he was entitled to be appointed being resident of Mela Shahab Khel and the appointments of the present petitioners were made without adopting the proper procedure and without any authority . Though there was a relief that compensation of the property at the market rate may be awarded in his favor , however , this relief as well as the relief for his appointment was dismissed, thus, petitioner's suit was rightly held maintainable even other-wise non-joinder or mis-joinder ipso facto cannot be resulted into dismissal of suit in accordance with the procedural law as provided under Order I, Rule 9, C.P.C., that "no suit shall be defeated by reason of the misjoinder or non joinder of parties,' and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it".
11. More important it was also argued that petitioners remained in service for considerable period and for no fault on their part their services could not be declared illegal for which learned counsel for petitioners has relied upon 2011 SCMR 1581 wherein the appointment orders of the then petitioners were found fake and bogus and the appointees remained in service, however , in the appointment of appointees' proper procedure was adopted as there were no allegations that the appointments were made by an incompetent person and without authority . The only allegations against the appointees were that he procured the appointment order by concealing his dismissal from Pak Army , this judgment is distinguishable as in the instant matter even the authority was incompetent, proper procedure was not adopted neither the I j posts were advertised nor the applications were invited. Similarly , the record does not suggest that petitioners, were registered with Employment Excha nge. No other person was given an opportunity to compete with the petitioners, thus, mere on the ground that petitioners remained in service and received salary , principle of locus poenitentiae cannot be attracted, reliance may be placed upon the case titled "Muhammad Nadeem Arif v. IGP Punjab Lahore" reported as 2011 SCMR 408 and a case titled "Nadeem Ahmad Panhwar v. Government of Sindh through Chief Secretary Sindh" (2009 PLC (C. S.) 161). Like-wise, the contention of learned counsel for petitioners that civil court has got no jurisdiction and to this effect he made reliance upon 2004 SCMR 303, this argument of learned counsel has got no force because on the application filed under Order VII, Rule 11 and under Order VII, Rule 10 for return of plaint for want of jurisdiction the plaint was rejected and the appeal also failed nevertheless, the revision petition C.R. No.201-B/2010 filed before this court was allowed and the case was remanded. It is pertinent to mention that order of this court was not assailed before apex court as such it attained finality . It is now well settled that an issue decided against a party , if not challenged, shall attained the finality . Reliance in this regard is placed on the cases reported as "Muhammad Aslam and 2 others v. Syed Muhammad Azeem Shah" (1996 SCMR 1862 ) and "Kunwal Nain v. Fateh Khan" (PLD 1983 SC 53 ).
12. Apart from the above, impugned are the concurrent findings of fact recorded against the petitioners which do not call for any interference by this Court in exercise of its revisional jurisdiction in absence of any illegality or any other error of jurisdiction. Rel: (2006 SCMR 1304 ), (2007 SCMR 926), (PLD 2003 SC 155) and (2014 SCMR 1469 ), Petitioners have not been able to point-out any illegality or mis-reading and non-reading of record perversity in the impugned judgment, thus, the instant petition being without substance is hereby dismissed with no order as to costs.