MUHAMMAD NAEEM ANWAR, J.- Through instant petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, Mst. Nasreen Bibi, the petitioner has challenged the withdrawal of her appointment order by respondent No.1 dated 08.02.20022, with the prayer that the impugned order may be declared as illegal, unconstitutional, unwarranted, unjust and without lawful authority. It was contended by the petitioner that she being the daughter of Razz Khan who got retired on medical ground, being eligible and qualified applied for her appointment against the post of Class-IV and as such was appointed on 28.01.2022. She joined service and wasperforming her duties regularly but on 11th day of her joining service, her appointment order was withdrawn by respondent No.1 through impugned order and that too without providing her any opportunity to explain her position.
2. Respondent No.1 was directed to furnish para-wise comments who through her comments opposed issuance of writ on the ground that though the petitioner is the daughter of retired civil servant namely Raza Khan but since she has contracted marriage, thus, in pursuance of the Government of Khyber Pakhtunkhwa Establishment Department (Regulation Wing) notification bearing No.SO(Policy) E&AD/1- 3/2019/APT Rules dated 21st February, 2020, she was not entitled for her appointment against the subject post and on getting the knowledge of this fact, the respondents have terminated her service rather withdrawn the order of her appointment.
3. Learned counsel for the petitioner contended that the notification if not published in official gazette could not be given any effect, for which, he made reliance on the case of "Chief Administrator Auqaf Vs. Mst. Amna Bibi" (2008 SCMR 1717). He also added that office order/ policy dated 21.02.2020, being in conflict with rule 10 (4) of the Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989 (the Rules of 1989), requires to be declared illegal, for which, he placed reliance on the case of "Muhammad Nadeem Arif and dthers Vs. Inspector General of Police, Punjab Lahore and others" (2011 SCMR 408). Lastly, he submitted that the date of withdrawal of appointment order of the petitioner is 08.02.2022 whereas, the respondents have made a reference of the notification dated 28.04.2023 which was not in existence even at that time, therefore, no retrospective effect shall be given to any such notification.
4. Ms. Mehnaz, A.A.G representing the respondents contended that through impugned office order a clarification was issued in consonance with the office order of the establishment department dated 21.02.2020, which was in existence at the relevant time and in pursuance thereof the appointment order' of the petitioner was rightly withdrawn by the respondents. She supported the impugned order and requested for dismissal of the instant petition.
5. Arguments heard and record perused.
6. The fact that the petitioner was the daughter of the retired civil servant namely Raza Khan, was appointed within the purview of section 10 (4) of the Rules of 1989 as her father got retired from service on medical ground on 09.09.2021, has not been denied by the respondents rather it appears that the Departmental Selection Committee through its meeting held on 13.12.2021 recommended the present petitioner for her appointment as Naib Qasid and she was accordingly appointed on 28.01.2022. The respondents, hi their comments, have taken a ground that the petitioner has married to one Azmat Ullah earlier to her appointment and this fact has not been disputed by the petitioner rather Mr. Sabir Shah, Advocate representing the petitioner submitted at the bar that consummation of marriage, being daughter of the retired civil servant, is no ground which could be considered for withdrawal of the appointment order. The Government of Khyber Pakhtunkhwa Establishment Department (Regulation Wing) through referred to above notification dated 21St February, 2020 has circulated a guidance/ clarification regarding employment dependent of incapacitated or invalidated permanently or retired on medical ground to the effect that under Rule 10 (4) of APT Rules, 1989, the facility of appointment to one of the children of deceased/ invalidated Govt. servant is given in view of their dependence on their parents. This facility is equally available to male and female children. However, in case the female has contracted a marriage, she loses this right. Hence, a married daughter is not eligible for this facility. It was further clarified that in case the married daughter is separated judicially, she has to produce a divorce certificate duly issued by NADRA and if a married daughter who has separated from her husband customarily, she has to produce a certificate form the Deputy Commissioner concerned to the effect that she is separated and is fully dependent on her parents. In the event of separation and production of the separation she becomes eligible for her appointment on the quota of children of invalidated retired government employee. Thus, for the appointment of a daughter of a civil servant who has been retired on medical ground it is a condition precedent that a married daughter must meet certain eligibility criteria of financial dependency on her parents.
The eligibility criteria shrinking the scope of appointment of daughter which is neither in conflict nor perverse nor repelling to the provision of rule 10(4) of Khyber Pakhtunkhwa (Appointment, Promotion and Transfer Rules) 1989 was mere clarification of the already existing rules. The Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989, were made in congruence with section 26(1) of Khyber Pakhtunkhwa Civil Servant Act 1973, and rule 18 of the Khyber Pakhtunkhwa APT rules provide that in all matters not expressly provided in these rules, civil servants shall be governed by such rules as have been or may hereafter be prescribed by Government and made applicable to them. The Government of Khyber Pakhtunkhwa, Establishment Department issued a clarification vide Department's letter dated 21.02.2020 bearing No. SO(POLICY)E&D/1-3/20/APT RULES that daughter after contracting marriage becomes a liability of her husband and not entitled to such appointment under Rule 10(4) of the APT Rules, 1989. Thus, with the parameters of law the competence of the authority could not be questioned.
7. The principle enunciated in the case of "Imtiaz Ahmed and others versus. Punjab Public Service Commission through Secretary, Lahore and others" (PLO 2006 SC 472), was that the conditions, qualifications and criteria prevailing at the time of appointment were to be taken into consideration and not what were in the past nor a candidate had a vested right to claim to be governed by any particular set of rules. Where rules relating to the subject had been modified, changed or altered, then the latter rules would prevail and would supersede the former. No vested right had accrued to the Petitioner under the old existing rules or by operation of law in view of the amended rules. Law makers were fully competent to make rules, alter qualification or criteria for a particular post and no one could make a grievance about the conditions and qualifications provided by the competent authority or rule making authority for appointment and selection against the post, which were to be considered as it existed at the time of appointment or inviting applications from the candidates for such post, as the case may be. It was ruled by the Supreme Court in the case of ."Mumtaz Ali Bohio and 24 others versus Federal Public Service Commission through Chairman at Islamabad and another" (2002 SCMR 772) that: "Neither the competency of respondent No.1 to change the rules in public interest could be challenged nor any candidate has vested right to be governed by any particular set of Rules. It is within the domain of respondent No.1 to make any alteration the recruitment policy before finalization of the appointments. If the rules are altered/changed, the latter rules will supersede the former. Vested rights originate from contracts, statutes, and by operation of law."
Moreover, office ordei dated 21' February 2020.has not been assailed by the petitioner. This policy decision is in line with rule 10(4) of the ibid rules. The question as to whether the police decision is inconsistent to rule 10 (4) of the Rules of 1989 or not, it shall be seen in juXtaposition with sub-rule 4 of rule 10, which reads as under: "(4) Where a civil servant dies during service, then notwithstanding the procedure provided for in sub-rule (2), the It appointing authority may appoint one of the children of such civil servant or if the child has not attained the age prescribed for appointment in Government service, the widow of such civil . servant, to a post in any of thebasic pay scales No. 1 to 15: Provided that the child or the widow, as the case may be, possesses the minimum qualification prescribed for appointment to the post: Provided further that if there arc two widows of the deceased civil servant, preference shall be given to the elder widow; Provided also that the appointment under this sub-rule is subject to availability of a vacancy, and if more than one vacancy in different pay scales is available at time and the child or the widow, as the case may be, possesses the qualification making him or her eligible for appointment in more than one post, he/she shall ordinarily be appointed to the post carrying higher pay scale."
The existing sub-rule 4 of rule 10 has been substituted vide Notification No. SOR-IV (E&AD)1- 3/2003/Vol-II dated 05.09.2006, which manifests that the appointing authority may appoint one of the children of such civil servant or if the child has not attained the age prescribed for the appointment in government service, the widow/Wife of such civil servant to the post in any of the basic pay scales No.1 to 15 whereas, the office order of respondents dated 21.02.2020 elaborates that the female child of the retired employee on contracting marriage becomes ineligible could not get benefit of the rule which is otherwise beneficial to her. Keeping in view the language of sub- rule 4 of rule 10 of the Rules of 1989 in juxtaposition with the office order referred to above, it can safely be concluded that neither it is inconsistent nor the language of both are repellant to each other, therefore, the contention of learned counsel for the petitioner that irrespective of this fact this clarification or policy matter of the respondents has not been assailed, this Court may declare it ultra vires to rule 10 (4) of the Rules of 1989, is misconceived. It is the obligation and duty of the father to provide maintenance to her daughter till her marriage because after marriage it becomes the obligation of the husband to maintain her wife, thus, the interconnected benefits with the dependency of daughter comes to an end, and the benefits interlined with the incapacitation or invalidation of the father being government servant cannot be extended to said daughter.
9. It is an admitted fact that on the date of appointment the petitioner was married and she carries the same status till today thus, in view of the office order the petitioner at the time of her appointment though she was qualified but was not eligible for her appointment because the qualification means and includes the work experience, skills, education level and overall knowledge of a particular field of study whereas the eligibility is the hiring paths listed on the job. Since the petitioner was seeking her appointment against the quota reserved for the children of invalidated retired employee, the eligibility criteria for being the daughter of government employee to be her dependency of the parents which she was lacking at the time of her appointment thus, she was ineligible for appointment. In the afore stated facts two aspects are requiring resolution firstly, whether the appointing authority could withdraw the appointment order of the petitioner and secondly, is the applicability of the principle of locus poenitentiae. Section 20 of West Pakistan General Clauses Act empowers the authority to add to, amend, vary or rescind any notifications, orders, rules, scheme, form, bye-laws so issued. The appointing authority has the poWer to undo the order when it was issued without lawful authdrity or when the appointee Iwas not eligible for appointment at the time of appointment. It was ruled by the Supreme CoUrt in the case of "The Engineer-In-Chief Branch through Ministry of Defence, Rawalpindi and another Versus Jalaluddiii" (PLD 1992 SC 217) that "Locus poenitentiae is the power of receding till a decisive step is taken. But it is not d principle of law that order once passed becomes irrevocable and it is past and closed transaction. If the order is illegal then perpetual rights cannot be gained on the basis of an illegal order."
10. Moreover, the policy decision of the government could not be assailed and that too for the interest of an individual, under article 199 of the Constitution. It was held by the Supreme Court in the case of Punjab Public Service Commission and another versus. Mst. Aisha Nawaz and others, (2011 SCMR 1602) that the policy of the Government cannot be interfered with unless it is shown that such policy was violative of the fundamental rights. The policy decision of the authority or the department on the mere ground of the terms of appointment cannot confer any right on the employee to challenge it. In the case of "Landirenzo Pakistan (Pvt.) Ltd. v. Federation of Pakistan and 6 others" (2013 PTD Sindh 658) it was held that: "In matter of policy decisions, the Government is the best judge and it is not for the High Court to sit on the policy matters, unless those appear to be violative of constitutional guarantees. arbitrary, mala fide or on account of colorable exercise of power."
Likewise, in the case of "Junaid and another v. Federation of Pakistan and others" (2012 CLC 1962 Sindh), it was observed that; "We are unable to interfere with the policy decision of the government as it is within the domain of jurisdiction of authority taking the policy deCisions. In the matter of policy decision, the government is the hest judge and it is not for the Court to sit on the policy titters unless they appear to be arbitrary or mala fide on account of colorable exercise of or abuse of power."
11. In the awake of the above discussion, it can safely be concluded that the ibid policy of the government is neither perverse nor inconsistent with the Rules of 1989 and for that matter, the case laW relied upon by learned counsel for the petitioner pertaining to the declaration of the policy of the respondents to the extent of exclusion of daughter of a government servant for her appointMent on eve of retirement of her father on the ground of invalidation or incapacitation, being distinguishable, cannot be applied to the matter in hand. Learned counsel for the petitioner could not point out any illegality or exercise of wrong jurisdiction on part of the respondents while issuing the impugned order. Thus, the, instant petition, being bereft of merits, is hereby dismissed.