ALI BAQAR NAJAFI, J. Through this Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner has challenged the impugned order dated 23-8- 2022 passed by Addl. Director General (HQ) LDA whereby the application of the petitioner in compliance of order dated 07.06.2022 to passed in Writ Petition No. 34768 of 2022 to accommodate her under Rule 17-A of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 was rejected on the ground that her brother and deceased son of the employee had already availed the benefit of appointment in LDA by getting the benefit of said Rule and also served there for three years but then preferred to resign from service.
2. Brief facts giving rise to the filing of this Constitutional petition are that father of the petitioner namely, Muhammad Jahangir, was working as Assistant (BS-11) in LDA and during his service he was murdered by land mafia in 1997 while performing his duties. His widow was awarded the pensionary and other benefits. The petitioner's mother/widow of the Muhammad Jahangir, was not awarded sufficient fund which are generally awarded to such family. However, in year 2012 Nauman, brother of the petitioner, was accommodated by the LDA under Rule 17-A of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 as Junior Clerk in LDA but he resigned from the service on 01.01.2015. The petitioner then filed an application for her appointment as Assistant Estate Officer (BS-16) at the place of her deceased father by invoking the said Rules but on 30.09.2021 she was refused on the grounds that earlier on 15.10.2015 her brother was accommodated. A review application for order dated 30.09.2021 was filed on 22.10.2022 which remained pending. The LDA authorities have refused to accommodate the petitioner as under the said Rules only one member of deceased's family could exercise such right with the consent of all family members which was exercised and cannot be exercised again. The petitioner filed Writ Petition No. 34768 of 2022 which was disposed on 07.06.2022 directing the D.G., LDA to decide the review application of the petitioner which was decided on 23.08.2022 vide impugned order, hence this writ petition.
3. Learned counsel for the petitioner contends that the petitioner has an independent right to be appointed under Rule 17-A of the Punjab Civil Servants (Appointment and Conditions of Service)
Rules, 1974 after the death of her father as benefit of Rule 17-A of the Punjab Civil Servants (Appointment and Conditions of 'Service) Rules, 1974 is to be extended to the family of the deceased father, employee of the LDA. Further contends that petitioner is far more deserving than her said brother Co be accommodated because she is better qualified and also needs the financial assistance. Also submits that father of the petitioner died in the line of duty requiring special support and prays for the relief.
4. Conversely, learned Chief Legal Advisor, LDA submits that while acknowledging the right of the deceased/Muhammad Jahangir, the brother of the petitioner namely, Nauman, was appointed in accordance with Rule 17-A of the Punjab Civil Servants (Appointment and Conditions of Service)
Rules, 1974 and that it is not a matter of selection within the family to divide such right in piecemeal amongst others particularly when it has been exercised with concurrence and, therefore, cannot be re-agitated. Adds that it was the joint decision of the family members that brother of the petitioner namely, Nauman, was the most deserving to be accommodated and after the exercise of their right it is no more available for the family of the deceased employee.
5. Arguments heard. File perused.
6. Admittedly, Nauman, brother of the petitioner and now representing him as learned counsel was appointed under Rule 17-A of the Punjab Civil Servants (Appointment and Conditions of Service)
Rules, 1974 after the death of his father namely, Muhammad Jahangir, during service. It is also not denied that the petitioner accepted the appointment in favour of her brother (Nauman) and did not agitate that she was more deserving candidate amongst the legal heirs of deceased/Muhammad Jahangir. After the resignation of Nauman on 01.01.2015, the petitioner filed an application to appoint her on 24.08.2021; i.e. after six years of the said resignation which is well after thought. It is the case of the respondents that right of the family of the deceased Govt. servant under Rule 17-A of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 had already been acknowledged when relief was granted to the deceased's family which cannot be re-agitated as it is not the option of the legal heirs to exercise such right again and again after when it was properly granted to one of them. The right of the petitioner, if any, had existed before the appointment of her brother namely, Nauman, which was surrendered in his favour. If the petitioner was better qualified for the job she could agitate her right by competing within the family members and then with the consensus the respondents/authority could extend the right to her. But she though it appropriate not to do so. If the argument advanced by the learned counsel for the petitioner is allowed, I am afraid, there will be un-ending claim of the benefits against the family claim which has never been intended by the said Rule. Para No.9 of case titled Muhammad Ijaz v. Government of the Punjab through Director General Fisheries, Punjab, Lahore and 3 others reported as (2021 PLC (C.S.) 1154) is reproduced as under:- "9. It may be useful to mention here that Rule 17-A was originally not a part of the Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974. It is only in the year 1987 that Rule 17-A in its un-amended form was added to the Rules. The Rule in its original form was W.P. No.4396 of 2021 quite narrow and strictly framed. However, gradually over the years the reach, ambit, sweep and scope of the Rule has been considerably and consciously widened so as to reflect a much more beneficial intent, which is in line with the original rationale for introducing such a beneficial Rule. Here is a brief background of the Rule:- Rule 17-A of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 was added vide notification No. SOR-IV (S&GAD)152/86 dated 25.12.1987 (Annex-I). The said proviso reads as under:- Notwithstanding anything contained in any rule to the contrary, whenever a civil servant dies while in service any one of his unemployed children may be employed by the Appointing Authority against a post to be filled under rules 16 and 17 for which the possesses the prescribed qualifications and experience and such child may be given to additional marks in the aggregate by the Punjab Public Service Commission or by the appropriate Selection Board or Committee, provided he otherwise qualifies in the test, examination and/or interview.
The said rule was amended vide notification dated 14.10.1989 as under:- Notwithstanding anything contained in any rule to the contrary, whenever a civil servant dies while in serviced or is declared invalidated/incapacitated for further service, one of his unemployed children may be employed by the Appointing Authority against a post to be filled under rules 16 and 17 for which the possesses the prescribed qualifications and experience and such child may be given 10 additional marks in the aggregate by the Punjab Public Commission or by the appropriate W.P. No.4396 of 2021 Selection Board or committee, provided he otherwise qualifies in the test, examination and/or interview.
The rule ibid was further amended vide notification dated 28.08.1993 which provides as under:- Notwithstanding anything contained in any rule to the contrary, whenever a civil servant dies while in service or is declared invalidated/incapacitated for further service, one of his unemployed children, may be employed by the Appointing Authority against a post to be filled under rules 16 and 17 for which he/she possesses the prescribed qualification and experience and such child may be given 10 additional marks in the aggregate by the Punjab Public Service Commission or by the appropriate Selection Board or Committee provided he/she otherwise qualifies in the test/examination and/or interview for posts in BS-6 and above. Provided further that only one child of a government servant who dies while in service or is declared invalidated or incapacitated for further service shall be provided a job against posts in BS-1 to BS-5 in the department in which the deceased Government Servant was working, without observance of formalities prescribed under the rules/procedure, provided such child is otherwise eligible for the post.
The said rule was further amended vide notification dated 12.04.2003 by inserting the words "or his widow/wife" and "or widow/wife" and "the widow/wife" added respectively.
The rule was further amended vide notification dated 05.01.2008 to insert the words "and the posts of Junior Clerk".
The said rule was substituted vide notification dated 24.09.2017 as under:- Notwithstanding anything contained in any rule to the contrary, whenever a civil- servant dies while in W.P. No.4396 of 2021 service or is declared invalidated/incapacitated for further service, one of his unemployed children or his widow/wife may be employed by the Appointing Authority against a post to be filled under rules 16 and 17 for which he/she possesses the prescribed qualification and experience and such child or the widow/wife may be given 10 additional marks in the aggregate by the Public Service Commission or by the appropriate Selection Board or Committee provided he/she otherwise qualifies in the test/examination and/or interview for posts in BS-6 and above. Provided further that only one child or widow or wife of an employee who dies during service or is declared invalidated or incapacitated for further service, if otherwise, eligible for the post, shall be appointed to a post in BS-1 to BS-11 in the department where the Government servant was serving at the time of the death or the declaration, without observance of the procedural requirements prescribed for such appointment."
It clearly indicates that "a" child and not "children" of a deceased government servant is to be accommodated once which cannot be left at option of such accommodate child to transfer his/her right to another after testing the rigours of un-suitable job and transferring it to rather more deserving legal heir. Obviously, such right once exercised, is non transferable subsequent to joining of service was with the consent of the other legal heirs.
7. For the above stated reasons, this writ petition has been found ID meritless and is, therefore, dismissed.