M UHAM M AD NAEEM ANW AR, J. By invoking constitutional jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner seeks the following prayer: "on acceptance of this writ petition, this Hon'ble Court may kindly be declared the whole proceedings initiated/conducted by the respondents and recommendation of inquiry officer against the petitioner, illegal, null and void, lawful authority and is of no legal effect".'
C.Ms. Nos. 2002/2018 and 2689/2019.
These are applications submitted by learned counsel for the petitioner for placing on record some additional documents, which, as per his estimation, are essential for just decision of the case. The CMs are, thus, allowed and the documents annexed therewith are made part and parcel of the main petition.
C.M. No. 2180/2018.
This is an application for adding the word "senior" with respondent No.2 in the heading of the writ petition and in Para No.5 of the writ petition, in line 1, the respondent No.1 may be read as respondent No.2 and in line 11, the respondent No. 2 may be read as respondent No.5. Apparently, it seems to be clerical errors, therefore, in view of the facts and circumstances of the case, this application is allowed and correctly be made accordingly.
2. Facts, which are necessary for decision of the instant petition, are that the petitioner was appointed as Patwari on temporary basis on 14.09.88 by respondent No.6. He has passed Patwar training School Examination in year, 1996 and examination of Kanango in year, 1999. As per averments of the petition, his services were confirmed on 06.04.1998 when he passed Patwar Training Examination which was a basic qualification for appointment as Patwari. Respondent No. 7 joined services as Patwari on 21.07.1996 and the dispute arose between the petitioner and respondent No.7 in respect of their inter se seniority because, as per the seniority list, the petitioner was senior to him. When the dispute arose, respondent No.7 has submitted an application/complainant to respondent No.2 whereby he questioned the appointment of petitioner by contending therein that the petitioner was not eligible to be appointed as Patwari in accordance with the previsions of paragraph 3.6 and 3.12 of the Land Record Manual. Respondent No.2, on the basis of application, appointed respondent No. 5 as an Enquiry Officer, who conducted enquiry under the provisos of Khyber Pakhtunkhwa, Government Servant (Efficiency and Disciplinary) Rules, 2011. After completion of the enquiry, recommendations were submitted in accordance with sub-rule (7) of Rule 11 to the competent authority. After receipt of the enquiry report, the competent authority, respondent No.6, being not satisfied with the findings of Enquiry Officer, has filed the same vide order dated 03.07.2018. After filing of the Enquiry, another application was submitted to Respondent No.2, whereby respondent No.6 was directed for taking further step in the light of the recommendation of the Enquiry Officer. The petitioner feeling himself aggrieved of the second round of enquiry, on the basis of application, submitted by him to respondent No.2 and finding no forum competent to decide the matter filed the instant petition.
3. Respondents were put on notice. Respondent No.7 has submitted written statement, whereas Respondent No.6 submitted parawise comment with the permission of the court wherein a request was made for dismissal of the instant petition.
4. We have heard learned counsel for the petitioner, learned AAG for the official respondents and learned counsel for Respondent No. 7 and gone through the record.
5. Record transpires that on the basis of clashes between petitioner and respondent No.7, pertaining to the inter se seniority, the latter submitted an application wherein he questioned appointment of the former, which, according to him, was not in accordance with the provisions of paragraph 3.6 and 3.12 of the Land Record Manual. Proper enquiry was conducted by respondent No. 5, the Assistant Secretary (Stamp), who was appointed as an Enquiry Officer, has submitted his recommendations, which, for ready reference, are reproduced as under:- "Mr. Fida Hussain son of Manzoor Hussain resident of Kurram Agency Parachinar has submitted an application to the worthy Senior Member, Board of Revenue Khyber Pakhtunkhwa against the take/bogus appointments of Mr. Janat Khan. Mr. Ashiq Ali, Muhammad Amin Khan, Mr. Alamgir Khan, Mr. Asghar Hussain and Mr. Mumtaz Ali Shah patwaris. All Patwaris were directed to attend the office of the Inquiry Officer for recording their statements but they have not attended this office except Mr. Janat Khan and Mr. Asghar Hussain. From perusal of the record of the above two Patwaris i.e, Mr. Jannat Khan and Mr. Asghar Hussain, Mr. Jannat Khan Patwari was appointed on Adhoc/temporary basis on 09.09.1988 and Patwari examination was passed in the year, 1996. According to Para 03.12 (Chapter 03) of Land Record Manual "candidate who have not passed the Patwari examination must not be appointed" and according to Para 3.6 of the Land Record Manual "the names of the eligible person shall be added to the list as and when the result of the Patwar examination is received and no eligible person shall be refused enrolment". As the incumbent was appointed on temporary/ad hoc basis and no proper regular order was issued as well as qualification is also Metric. As far as, Mr. Asghar Hussain Patwari is concerned he was also appointed on ad hoc/temporarily basis and Patwar examination was passed in the year, 1996 and no regular appointment order was issued and his qualification is also Metric, which is totally violation of rules and regulations. On the other hand Revenue and Estate Department has issued a notification that no person shall be appointed in the service unless he has passed F.A or equivalent examination from a recognized Board and Patwar examination from a Patwar Training School. As such, qualifications of both the Patwaris are Metric and no regular appointment order has been issued to them by the concerned Authority as well as other Patwaris namely Mr. Ashiq Ali, Muhammad Amin Khan, Mr. Alamgir Khan and Mumtaz Ali Shah.
They have not attended this office nor provided any written statement to the undersigned in their defence. All are appointed on ad hoc/temporary basis and there is no regular appointments order, which reveals that they have nothing in their defence. From perusal of the record and personal hearing, they have not cleared their position and found guilty of the charges levelled against them. In view thereof, it is recommended that the Patwaris namely, Mr. Jannat Khan, Mr. Ashiq Ali, Muhammad Amin, Mr. Alamgir Khan, Mr. Asghar Hussain and Mr. Mumtaz Ali Shah may be awarded major penalty under section 4(b)(iii) of the Khyber Pakhtunkhwa Government Servant (E & D) Rules, 2011 of Removal from Service."##TE##
6. When recommendation of the enquiry officer was submitted to the Deputy Commissioner/respondent No.6, who, while considering the entire facts, have concluded the same as under:- " In view of the above, the claim of Fida Hussain Patwari is not considerable, which may be filed because Fida Hussain Patwari himself and other Patwaris have filed appeals which are under trial in the Khyber Pakhtunkhwa Service Tribunal Peshawar and august court Peshawar High Court, Peshawar".
7. The said order for filing of the enquiry was passed on 03.07.2018 by the Deputy Commissioner which was never challenged by the respondent No.7 and, astonishingly, on 17.07.2018 another application was submitted to respondent No.2 by mentioning the same allegations. who, on receipt of the application, through its office order No. Estt: VII/inquiry File/2973, dated 8.8.2018, directed respondent No.6 for taking further step in the light of recommendations of the Enquiry officer-and submission of compliance report.
8. Admittedly, the matter in respect of inter se seniority became the cause for submitting the application and intending initiation of proceedings against the petitioner to the extent that he should be removed from service for the reason that by considering contents of the application that the enquiry officer conducted the enquiry, who suggested that major penalty under the provisions of Sub-rule (b) (III) of Rule 4 of the Khyber Pakhtunkhwa Government Servant (E&D) Rules, 2011 of Removal of Services be imposed. Not only the application but the appeal was also filed by respondent No.7 by impleading the present petitioner in the array of respondent at serial No.10, the said appeal is of year, 2017, thus, the perusal of record reveals that when the earlier application was filed by respondent No.7 to respondent No. 2 for initiating the proceedings and the appeal before the Khyber Pakhtunkhwa Service Tribunal Peshawar was pending. The record further reveals that Service Appeal No. 603 of year, 2017 was decided by the tribunal on 26.11.2019, wherein the dispute pertaining to the seniority of respondent No.7 with the petitioner and others was resolved. The contents of appeal filed before the tribunal were also containing the same allegations as narrated in the application which was submitted to respondent No.2. The agony so developed between the petitioner and respondent No.7 were to the extent that respondent No.7 could not stop himself from dragging the petitioner whereby he faced the enquiry as well as appeal which remained pending adjudication in the competent forum.
9. Be that as it may, the question before us is as to whether once the inquiry officer has submitted his report, whatever it may be the recommendation, within the provisions of the of the Khyber Pakhtunkhwa Government Servant (E&D) Rules, 2011, the competent authority was legally bound to forward the same along with his suggestions to the Authorized officer?, Answer is simple that the compete authority is not bound to accept the recommendations/suggestions as submitted by the Enquiry Officer to him. As such, the respondent No.6 while going through the entire feets of the dispute and while confronting with the proceedings of appeal before the Tribunal, has filed the enquiry, thus, if respondent No.7 was feeling himself aggrieved form the order of respondent No.6, the same should have been assailed before the competent forum but in no case he could submit another application to respondent No.2 with the same allegations. Likewise, respondent No.2 while considering the contents of the application so mentioned in it, would have to apply his prudent mind with respect to the allegation and the fate of enquiry but he while putting aside all the facts, either by ignorance the basic provisions of law or intentionally forwarded the matter with the direction to respondent No.6 to decide it in accordance with the recommendations of the Enquiry Officer.
10. The Authorized officer in no way could impose his own findings or direct the competent authority to decide the matter in a particular manner as the competent authority is not his personal servant.
He will have to obey the law in its true spirit as the petitioner, respondent No.7 and the other official respondents, being the resident of the sovereign State of the Islamic Republic of Pakistan being governed by the provisions of the Constitution of the Islamic Republic of Pakistan, as such, for each and everything there is specific provisions and criteria for determination and resolving the matter but by no stretch of imagination, the respondent No.2 as per his whim and wishes, to get impose his intention to be complied with by respondent No.7, the competent authority.
11. Though, during the course of arguments, counsel for the respondent No.7 has raised objection regarding maintainability of the instant petition on the ground that respondent No.7 and the petitioner are civil servants, therefore, in view of the specific bar under Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973 this court cannot adjudicate upon the matter. Before us, the matter does is not pertain to the terms and conditions of service and for that matter relating to the basic appointment order of the petitioner, which, as per contention of respondent No.7, was illegal, void ab initio and contrary to the provisions of paragraph 3.6 and 3.12 of the Land Record Manual. There is no dispute with regard to the mechanism as earlier it was provided in paragraph 3.6 resident of 3.12 of the Land Record Manual for the purpose of appointment of the patwari, however, the instant matter pertains to the order passed by respondent No.2 on the basis of the application submitted by respondent No.7 whereby it was intended by him that the recommendations given by the Enquiry Officer should not only be complied with stricto sensu but also the petitioner should be removed from services. The competent authority while not considering the enquiry in consonance with the provisions of law coupled with the facts of the case has filed the same, which may be right or wrong, but one, who considered himself aggrieved from the findings of the Enquiry, should have challenged the same in accordance with law. No sooner did, respondent No. 6 file the enquiry, the respondent No.7 has submitted another application. The matter also remained pending adjudication before the Service Tribunal where besides other allegations pertaining to legal aspect of the case as to whether the petitioner was appointed in accordance with law or otherwise, where no such findings to that effect were recorded by the Service Tribunal, however, the basic dispute with regard to the inter se seniority was laid to rest. It is settled principle of administration of justice that when a thing is required to be done in a particular mode and manner then it must be done in that particular manner not otherwise, so, initiating de novo enquiry or directing the competent authority to recommend the enquiry is not only misconception of law but also resulted into miscarriage of justice. Respondent No.2 was not supposed to direct the respondent No.6 to comply with recommendation of the Enquiry Officer which order of respondent No.2 is nullity in the eye of law, as it is an excess of power and mis-use of his authority.
12. In view of what has been discussed above, we admit and allow the instant petition as prayed for.