MUHAMMAD NAEEM ANWAR, J. The petitioner, Salah ud Din, has filed the instant petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, seeking issuance of a writ to the effect that being qualified entered in the registered of Patwar since 2011 is entitled for relaxation of his age and appointment as Patwari in consonance with Para-No. 3.11 of Land Record Manual.
2. Learned counsel for petitioner contended that respondents are legally bound to follow the provisions of Par No.3.11 of land record manual and until para 3.6 of the manual is in existence and proper rules for the appointment of Patwaris are framed their appointment shall be made from those who are named in the registered managed for each Tehsil in accordance with their merit and order. In support of his contentions, he placed reliance on the judgments of this Court rendered in W.P No. 931-B of 2016 dated 17.01.2018 and of the apex Court in case titled Muhammad Aamir Khan v. Government of Khyber Pakhtunkhwa through Senior Member Board of Revenue and others (2019 SCMR 1021). On the other hand, learned AAG contended that Rules for the appointment of Patwaris have already been framed and now they are being appointed in accordance with the procedure as laid down in APT rules thus, petitioner cannot be appointed merely on the ground that he has completed the patwar course and has been entered in the registered.
3. Arguments heard and record perused.
4. The foundation of petitioner's case is the judgment of this Court in W.P No. 931-B dated 17.01.2018 and the provisions of Para 3.11 of Land Record Manual. In the- former, it appears the learned counsel for the petitioner in the instant case was representing the petitioner of referred to above petition and even at that time this Court was assisted with reference to Para No 3.11 of the Land Record Manual because subpara (2) of the para 3.11 was reproduced in the judgment of this Court. However, Paras Nos.3.11 and 3.12 have been omitted vide Circular No.6/89, Land Record Manual, dated 18th October, 1989, since then it is no more the part of the book. Thus, neither at the time of hearing of the referred writ petition nor today the learned counsel for petitioner is assisting the Court properly. When a particular para does not exist for almost the decades then how could reference of the same be given and prayer could be sought on the basis of a provision which has already been omitted. Secondly, the larger bench was constituted in order to resolve the controversy and this Court in Writ Petition No.129/2012, has held that appointment of Patwari(s) shall be made after conducting' test and interview and dispatching the Merit List. Similarly, in Writ Petition No.278 of 2012 (D.I. Khan Bench) issued direction that such appointments shall be made according to the position and seniority in the Register of Patwari Candidates. Thus, the Assistant Secretary Establishment in a letter, addressed to the Registrar of this Court, requested that the controversy arising out of the two judgments may be cleared, upon which the Honorable Chief Justice (Mr. Justice Waqar Ahmad Seth, as then he was} has constituted a Larger Bench for determination as to whether the appointment of Patwari is to be made in accordance with Paragraph 3.6 of Land Record Manual or otherwise. The Larger Bench, vide its judgment dated 04.02.2015, rendered in Writ Petition No. 3398 of 2014, decided that "till the amendment in the rules, respondents are bound to make appointments in accordance with the existing rules and policy which governs the appointment of Patwari". (Underlined and bold by us for emphasis).
5. Moreover, after the decision of larger bench the new amendments in the rules were notified on 25th of November 2016 in the official Gazette by I the Khyber Pakhtunkhwa, Revenue and Estate Department, in consultation with the Establishment and Finance Department, Peshawar, regarding the method of recruitment, qualifications and other conditions as specified in columns Nos. 3 to 7 of the Appendix to the said notification, whereby serial No.8 pertains to Patwari which reads as under;- 12 3 4 56 7 8Patwari- BPS-5District Officer (Revenue and Estate)/ CollectorIntermediate or equivalent qualification, who have passed the Patwari Examination having one year diploma in information technology from any institution recognized by Board of Technical education18 to 30By initial recruitmentBy initial appointment from amongst the Patwari passed candidates entered in Register maintained by the District Collector of the District concerned having one year diploma in information technology from any institution recognized by Board of Technical education. The condition of diploma will be applicable after three years from the date of issuance of Notification Sd/- Secretary to Government of KPK, Revenue and Estate Department
6. In the background of rules, it must be mentioned that rules can be amended in consonance with Chapter No.VI of Establishment Code Khyber Pakhtunkhwa, Edition, 2011 "(Estacode)" which provides the Constitution of Standing Service Rules Committee, which reads as; Constitution of Standing Service Rules Committee.
Under the provision of Rule 3(2) of KPK Civil Servant (Appointment, Promotion and Transfer) Rules, 1989, the Provincial Government is pleased to consider it with immediate effect and in supersession of services and General Administration Department Notification No. SOR-II (S&GAD) 2 (a) / 97 dated 12th September, 2001, the Standing Service Rules Committee with the following composition; The formation of the committee was as under: 1.Administrative Secretary concerned Chairman 2.Additional Secretary (Regulation) E&A Department Member 3.Additional Secretary Finance Department Member 4.Additional Secretary Law Department Member 5.Head of attached Department concerned Member 6.Deputy Secretary (Admn) of the Department concerned Member/Secretary
7. Consequently, in the light of Standing Service Rules Committee (SSRC), the Government of.
Khyber Pakhtunkhwa, Revenue and Estate Department, on 26th of December 2008, issued a notification, which was published in the official Gazette Part-III on 4th February, 2009, which reads as; "No. 32102-61/Admn/135/SSRC. - In pursuance of the provisions contained in sub-rule (2) of rule 3 of the North West Frontier Province Civil Servants (Appointment, Promotion and Transfer) Rules, 1989 read with the Cabinet Division Notification No. SRO 457(1)/ 2001 dated 28th June, 2001 and in supersession of all previous rules issued in this behalf, the Revenue and Estate Department, in consultation with the Establishment and the Finance Department, hereby lays down the method of recruitment, qualification and other conditions specified in columns 3 to 7 of the Appendix to this Notification and applicable to posts born on the cadre strength of Revenue and Estate Department specified in column 2 of the said appendix"
8. It may not be out of context that earlier to the amendments, the Patwaris were to be appointed in BPS-5, however, the Board of Revenue, Government of Khyber Pakhtunkhwa, upgraded the post of Patwari from BPS-5 to 7 and, thereafter, from BPS-7 to 9. Before framing of the Rules, the basic qualification for Patwari was metric with Patwar passed course but consequent upon the upgradation of post from BPS-5 to 7 and, thereafter, from BPS-7 to 9 the qualification was accordingly enhanced i.e., with computer literate. The rules, thereafter, were amended to meet the object of the computer operating system and to update the record with regard to revenue administration with current necessities of the post, as such, on the basis these changes in the rules the amended notification was issued/notified which for convenience is reproduced as under: "By initial recruitment from amongst the Patwar passed candidates entered in the Patwar Candidates Register of Tehsil or District on the basis of Test and Interview to be conducted after advertising the posts."
9. It is pertinent to mention that new amendments in the rules notified on 25th of November 2016, was assailed in two Writ Petitions No.4785-P of 2016 and No.1894-P of 2017, but both the petitions were dismissed on 30.10.2018. It is also undisputed that in Writ Petition No.4785, decided on 30.10.2018, a Review Petition No.247-P of 2018 was filed, which was decided on 22.01.2019, the operative part of which is reproduced as under: "4. The issue decided by this Court in Writ Petition No. 4785 of 2015 was that till now rules are not framed by the Government, the respondent/government was bound to make appointment of Patwari is in regard to the old policy, so inadvertently the writ petitions were dismissed. As such the instant petition is disposed of in term that the last paragraph of the impugned judgment is rectified as "consequently, both the writ petitions referred above are disposed of accordingly."
10. In fact, on 25.11.2016, notification was issued, thus, on the date of decision in review petition i.e., on 22.01.2019 amendment was in the field. So, neither through Writ Petition nor vide Review, the amendments in the rule were declared to be unconstitutional, illegal, without jurisdiction and against the statute.
11. Likewise, another significant aspect of the matter is as to whether the amendments in appendix at serial No. 8 column No.7 are inconsistent, incoherent, discordant or in conflict with Para 3.6 of Land Record Manual. For ready reference, Para 3.6 is reproduced as under; "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 Education qualification for the Patwari is F.A/Intermediate. The name 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 and when the result of the Patwar Examination is received and no eligible person shall be refused enrollment 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."
12. As we have seen that Sub-Para (1) of Para 3.6 of Land Record Manual provides that "the appointment of Patwari shall be made strictly in accordance with service rules and the recruitment policy, as may be applicable at relevant time", (Underlined and bold by us for emphasis). So, now the service rules and the recruitment policy explicitly provide that it shall be on the basis of Test and Interview to be conducted after advertising the post, so, there is no inconsistency or conflict in between the Land Record Manual and the service rules for the recruitment of Patwari. The amendment in the rules for recruitment of Patwaris was after the judgment of the larger bench dated 04.02.2015 which is neither in conflict with the any provision of law nor is inconsistence with the provisions of Land Record Manual. The contentions of the learned counsel for petitioner are misconceived and without any substance.
13. In addition to the above, the, impugned notification was issued by the Government of Khyber Pakhtunkhwa, Revenue and Estate: Department, on 25.11.2016, thus, it would have only prospective effect, on the basis of notification applications were invited for the post of Patwari to be filled in accordance with the criteria as provided in service rules for the recruitment of Patwari in the Khyber Pakhtunkhwa Civil Servant (Appointment, Promotion and Transfer) Rules, 1989, the effect of the notification was never intended by the respondents to have retrospective in nature and it was not even disputed by the respondents. After issuance of notification the appointment of Patwari shall be made in accordance with the amended rules which are in consonance with Paragraph 3.6 of the Land Record Manual, the effect shall be given from the date of publication of Notification and not from the date of passing of examination of Patwar course accordingly, the arguments of learned counsel for the petitioner pertaining to section 6 of the General Clauses Act, 1956 and Article 264 of the Constitution have also no force. The petitioner at the 4st may compete with others candidates through proper test and interview as and when the posts are advertised where his prayer for age relaxation shall be considered in accordance with the law.
14. In view of the above discussion, this petition being without any substance is hereby dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.