MUHAMMAD NAEEM ANWAR, J.- The petitioners i.e., the Government of Khyber Pakhtunkhwa through Secretary Elementary and Secondary Education Peshawar along with two others have filed the instant petition u/s 115 of the Code of Civil Procedure, 1908 (C.P.C) challenging therein the validity and correctness of the judgment and decree of the learned District Judge/Zila Qazi, Buner dated 02.07.2021, whereby their appeal against the judgment and decree of the learned Civil Judge/Illaqa Qazi-VII, Buner dated 23.09.2020 decreeing the suit of plaintiffs/respondents No. 1 to 3, was dismissed.
2. C.M No.1906-M/2021: Through this application, the respondents are seeking permission of the Court for placing on file the documents annexed with the application i.e., copy of W.P No. 145- M/2015 titled "Muzafar Khan and others Vs. Government of Khyber Pakhtunkhwa through Secretary Elementary and Secondary Education Peshawar and others", copy of consolidated judgment of this Court dated 28.11.2016 rendered in W.P No.176-M/2013 titled "Akbar Shah and others Vs. Government of Khyber Pakhtunkhwa and others", copy of memorandum of CPLA titled "Muhammad Azam Khan and 03 others Vs. The Government of Khyber Pakhtunkhwa through Secretary Elementary and Secondary Education Peshawar and others" alongwith copy of the judgment of the apex Court in C.Ps No.210 & 300 of 2017 dated 10.11.2018. As the contents of the application are verified through affidavit by Mr. Nasim-ul-Haq, Superintendent of the office of District Education Officer (Male), Buner - besides the documents annexed therewith are attested copies pertaining to the writ petition decided by this Court qua the application has not been resisted by the respondents, therefore, the instant application stands allowed and the documents annexed therewith are hereby read as part and parcel of the main case.
3. Arguments heard and record perused.
4. Perusal of record reveals that all the three respondents/plaintiffs approached to the civil Court through Civil Suit No.158/1 of 2019 filed on 27.11.2019 seeking declaration to the effect that they are entitled for their reinstatement in service in accordance with the provisions of the Khyber Pakhtunkhwa Sacked Employees (Appointment) Act, 2012 and the inaction on the part of the petitioners /defendants by not reinstating them, is ineffective upon their rights, with a further relief for mandatory injunction that the petitioners/defendants be directed to reinstate them in accordance with law. In the plaint, it was averred that the plaintiff No.1 was appointed as C.T and was posted at Government Middle School Batara while plaintiffs No.2 & 3 were also appointed as C.T and were posted at Government Middle Schools Tangora and Madadu, respectively. They were sacked by the petitioners /defendants on 15.07.1997. It further was averred that the respondents/ plaintiffs were appointed after fulfilling all the legal formalities and considering their eligibility criteria, therefore, they are entitled for the relief provided under the law. Suit was resisted by the present petitioners/ defendants on different legal and factual objections. In view of the divergent pleadings of the parties issues were framed by the learned trial Court. Completion of evidence and hearing of the parties resulted into a decree in favour of the respondents/ plaintiffs by the learned Civil Judge/Ilaqa Qazi-VII, Buner dated 23.09.2020, against which, the appeal filed by the petitioners was dismissed by the learned District Judge/ Zila Qazi, Buner at Daggar through impugned judgment and decree dated 02.07.2021.
5. The intriguing aspect of the instant matter was filing of W.P No.145-M/2015 before this Court, wherein all the plaintiffs/ respondents were at serial No.2, 3 & 4 respectively as the petitioners. Said petition was filed by ten petitioners including the respondents/ plaintiffs. Same was decided by this Court through consolidated judgment dated 28.11.2016 in W.P No.176-M/2013 titled "Akbar Shah and others Vs. Government of Khyber Pakhtunkhwa and others". In Para No.8 of said judgment dated 28.11.2016, it was held by this Court that: "The petitioners of writ petition No.176-M of 2013 Akbar Shah and 19 others were appointed against the posts of PTC through various appointment orders either against the leave vacancies or on stopgap arrangements and in the appointment orders of the petitioners, it has been clearly mentioned that their appointments are temporary and arc liable to termination/ reversion at any time without assigning any reason. So, the case of petitioners of above-said petitions does not come within the domain of the ibid Act, as their appointments were made purely on temporary basis as stopgap arrangements or against the leave vacancies," while as per ibid Sacked Employees Act only those persons would be given the benefit of the Act, who were appointed, on regular basis to a civil post in the province and who possessed the prescribed/ requisite qualifications and experience for the said post at the relevant time, which is not the case here."
In Para No.9 of ibid judgment, it was held that: "The appointments of the petitioners were not made as per law envisaged u/s 10 of the Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989', as neither the posts were advertised nor appointments were made on recommendations of the Departmental Selection Committee, rather were appointed on leave vacancies as stop gap arrangement without following the provisions of ibid Rules of 1989."
Being aggrieved from the judgment of this Court, the respondents/ plaintiffs along with one Abdul Baqi and others approached to the apex Court through C.Ps No.210 to-300 of 2017, wherein the apex Court, while dismissing the petitions, has observed that: "It was admitted by the learned ASC for the petitioners that none of the petitioners was regular employee and that they have been appointed on temporary basis by the Education Minister Nawabzada Muhammad Khan Hoti. The sacked employees as defined in the Act, required that the employee has to be regular employee to avail its benefits."
On 11.10.2018, their petitions were dismissed by the apex Court and leave was refused.
6. Thereafter, on 08.01.2019 another W.P No.51-M/2019 was filed by the respondents/ plaintiffs before this Court by concealing all the facts of filing of their earlier writ petition bearing No.145- M/2015, without making any reference of filing of earlier W.P No.145-M/2015 by the respondents/ plaintiffs, the decision thereon by this Court on 28.11.2016, filing of C.Ps No.210 & 300 of 2017 before the apex Court and its dismissal on 11.10.2018 rather as a summersault it was contended by the respondents/ plaintiffs and others that they have earlier approached to this Court through W.P No.141-M/2014, which was decided on 02.04.2014 but the respondent No.2 (of ibid W.P No.51- M/2019) has decided only three cases with illegal observations and no positive response was given to the petitioners by the respondents of that petition. The said W.P No.51-M/2019 was decided by this Court alongwith other petitions through consolidated. judgment dated 22.10.2019 in W.P No.530-M/2017, in terms that there are factual controversies and the petitioners of those petitions including the respondents / plaintiffs opted not to pursue their petitions rather they shall approach to the Civil Court, as such, all those petitions including that of the respondents/plaintiffs were disposed of. In view of the above, the respondents/ plaintiffs filed Suit No.158/1 of 2019 for declaration before the Civil Court, which was decreed by the learned Civil Judge/Illaqa Qazi-VII, Buner through judgment and decree dated 23.09.2020, 'against which, appeal of the petitioners was dismissed by the learned District Judge/ Zila Qazi, Buner through his judgment and decree dated 02.07.2021.
7. It is significant to mention that in the judgment of W.P No.176-M/2013 to the extent of present respondents/ plaintiffs, this Court has observed that appointment of the petitioners (respondents/ plaintiff) of W.P No.145-M/2016 have been made through various appointment orders upon the directives of the then Education Minister Nawab Zada Muhammad Khan Hoti on temporary/ad-hoc basis as a stopgap arrangement against the leave vacancies, as it manifests from the very appointment orders, placed on file by the petitioners, so, neither the respondents/ plaintiffs were regular appointees of the education department nor they were possessing the prescribed qualification for the respective posts at the relevant time nor the posts were properly advertised in any national newspapers besides they were not appointed on recommendations of the legal and lawful 'constituted , Departmental Selection Committee. Moreover, the answering respondents submitted their comments, wherein it has been mentioned that the petitioners approached the respondent No. 2 i.e. District Education Officer (Elementary 86 Secondary) Education Department District Buner for redressal of their grievances and in this respect a special committee was constituted in order to ascertain as to whether the petitioners fall within the ambit of Sacked Employees Act, 2012 or not and after proper scrutiny and inquiry the committee submitted its report, wherein it was opined that the cases of . petitioners do not fall within the -purview of ibid Act. With the afore-said observations, the writ petition was dismissed by this Court.
8. Relief u/s 42 of the Specific Relief Act of 1877 could only be granted to a person who approaches to the Court of law with clean hands in accordance with the maxim that one who seeks equity must do equity. In the case of Atta Muhammad vs. Maula Bakhsh and others (2007 SCMR 1446) it was held that the Courts should also keep in mind that relief of declaration is discretionary and a plaintiff who seeks discretionary relief must come to the Court with clean hands. In the matter in hand, the respondents/ plaintiffs have concealed the entire facts and succeeded in getting a decree in their favour from the learned trial Court. When confronted, learned counsel for the respondents/ plaintiffs submitted at the bar that these facts were mentioned in W.P No.141-M/2014 and hence on his request, file of W.P No.141-M/2014 was also requisitioned from the record room of this Court, where neither the respondents/ plaintiffs were party nor same was decided through any consolidated judgment. More-so, no relief was granted to the respondents/ plaintiffs, thus, their contention that the respondents/ plaintiffs alongwith others approached to this Court through W.P No.141-M/2014 was misconceived and against the facts. Needless to say that the eligibility criteria, requisite qualification, the appointments made in accordance with law, aspect of floating of advertisement in the newspapers, submission of the applications, appointments made on recommendations of the then Education Minster and appointments as a stopgap arrangement were properly considered by this Court when writ petition of the respondents/ plaintiffs was dismissed and said judgment was upheld by the apex Court, wherein the Hon'ble Supreme Court has held that none of the petitioners (respondents/ plaintiffs) has been appointed in accordance with law. Not only the facts were concealed but misrepresentation was also made by the respondents/ plaintiffs while mentioning in the writ petition No.51-M/2019 before this Court that earlier they approached through W.P No.141-M/2014. Had the material been placed before the learned trial Court or had it been apprised of the judgment of this Court and that of the apex Court, the impugned decree would have not been granted in favour of the respondents/ plaintiffs.
Concealment of facts and misrepresentation thereof are the grounds, which disentitle the respondents/ plaintiffs from the relief claimed by them u/s 42 of the Specific Relief Act, 1877. This Court in the case of "Government of Khyber Pakhtunkhwa through Secretary (E&S) Education Department Peshawar and 02 others versus Na jib Ullah Khan" (2022 CLC 100) has held that: "A discretion is to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the court to follow it. In fact, it was of discretionary relief which is to be granted on the basis of the facts, statutory provision of law within the parameter of discretion which must be exercised equitably, justly and in accordance with law. When the respondent/plaintiff himself concealed the fact from the court and when it was brought into the notice of this Court irrespective of the fact that these points were not categorically mentioned in the memorandum of instant civil revision petition, this being the question of law and not denied could validly be re-agitated by the petitioner. Concealment of fact is a ground to preclude the respondent from the relief so claimed by him before the trial court. In fact, the judgment and decree of both the learned courts below is based upon the concealment of fact. Had the petitioners mentioned the facts regarding institution of writ petition and dismissal thereof on the same set of grounds which were taken in the contents of the plaint the result would be totally different. Reliance is placed on case title "Fazal Hussain Vs. Deputy Director, Administration & Housing Management, Kot Lakhpat Housing Protect Township Lahore" (PLD 1987 Lahore 297). It is settled law that one who seek equity must come to the court with clean hands, as the petitioner has concealed material facts from this court as such this court is not inclined to exercise its discretion in favour of petitioner."
9. In addition to the above, for all the respondents/plaintiffs, one Muhammad Afzal appeared as sole witness, whose statement was recorded as PW-1. Para No.3 of the judgment of the learned trial Court dated 23.09.2020 is of worth perusal, wherein the learned trial Court has held that the respondents/ plaintiffs filed a writ petition before the Peshawar High Court, Mingora Bench (Dar-ul- Qaia,- Swat). Same is reproduced as under: "It is necessary to mention here that the plaintiffs have filed a writ petition before the August Peshawar High. Court, Mingora Bench (Dar-ul-Qaza), Swat which was disposed of by their lordships with the following directions; "In view of the above, without giving any findings on any of the issue involved in the present case as same may prejudice the case of either party, the determination of entire controversies involved in these cases including the one relating- -to filing of applications for reinstatement within the given time is left to the determination of the civil Court. As the learned counsel for the petitioners have expressed their intention to invoke the jurisdiction of the civil Court, therefore, the concerned civil Court shall try to conclude the proceedings in the cases of the petitioners within six months of the filing of the plaint. Since these cases relate to the right of reemployment wherein most of the petitioners are of advance ages, therefore, the matter deserves to be dealt with by the learned civil Court, expeditiously. With these observations all these connected writ petitions are disposed of"
But as discussed above the observation of this Court is not in connection of the writ petition filed by the plaintiffs nor in any of their writ petitions, it was ever held by this Court. Issue No.4 was framed by the learned -trial Court as "whether plaintiffs were not qualified to be appointed under Sacked Employees Act, 2012, therefore, their non-appointment was according to law?" The learned trial Court has held that onus to prove this issue was on defendants/petitioners, from whom, Mr. Umar Farooq appeared as DW-1 and produced letter No.11369-94 file No.PA to DD (E) dated 16.10.2012 as Ex.DW1/2, dismissed employees list as Ex.DW1/3 and re-appointed employees letter as Ex.DW1/4.
Nothing in black and white has been produced. by the witness to justify the stance of ineligibility of the sacked employees in respect of reserved 30% quota as per the provision of the Sacked Employees Act, 2012. Neither it was placed on record that any advertisement was published according to law, respondents/ plaintiffs were eligible and qualified for the posts, DSC recommended them for appointment after due process of recruitment rather they were appointed on recommendation of a minister. These were the facts, which were concealed from the learned trial Court and the judgment of the learned trial Court reflects the specific portion of the decision of this Court in writ petition i.e., W.P No.516-A of 2013 dated 24.05.2016 and the judgment of the apex Court against the decision of the referred to above writ petition. Likewise, the factum relating to qualification and eligibility of the respondents/ plaintiffs has also not been decided by the learned Appellate Court rather for dismissal of the appeal of the petitioners, a reference was made to Civil Appeal No. 1148 of 2016 alongwith others pending adjudication before the apex Court. No doubt, certain decisions were made by this Court and by the apex Court as well but the decision in any other case could not determine the eligibility, requisite qualification and the appointment of the present respondents/ plaintiffs in accordance with law, as such, the impugned decisions of the learned Courts below are not in accordance with law, irrespective of the fact that the findings are concurrent. It has been held by the apex Court that the concurrent findings of facts are not sacrosanct from interference while exercising powers u/s 115 of the C.P.0 if it appears that the learned lower fora have fallen into wrong premises as a result of misreading and non-reading of the evidence on the record. Reliance in this respect is placed on the cases of "Nazim ud Din and others v. Sh. Zia ul Qamar and others" (2016 SCMR 24), "Noor Muhammad and others v. Mst.
Azmat-e-Bibs' (2012 SCMR 1373). More-so, scrutiny of record reveals that the respondents/ plaintiffs were not qualified and no process for their appointment was made by the petitioners prior to their appointment in accordance with law and policy on the subject rather they were appointed temporarily on stopgap arrangement and that too on recommendations of the then Education Minster.
10. Thus, for the reasons discussed above, the instant petition is allowed, the impugned judgments and decrees of the learned Courts below are set aside and consequently suit of the respondents/ plaintiffs is hereby dismissed. Requisition record of W.P No.51-M/2019 and W.P No.141-M/2014 be returned forthwith to the quarter concerned.