SALEEM AKHTAR, J.---This appeal with the leave of the Court challenges the judgment passed by the learned Judge in Chamber whereby the revision application filed by Shabbir Ahmed respondent No.5 against the judgments and decrees passed by the to Courts below were set aside and the appellant's suit for specific , performance of the agreement was dismissed.
2. The appellant filed a suit for specific performance of the agreement alleging that under an agreement he transferred land in favour of the Education Department through Mutation No.21585 dated 12-1-1974 for construction of Government Girls Middle School subject to the condition that appointment against class IV post in the said school shall be made by the donor of the land. It was pleaded that in spite of the transfer of land, respondents Nos. l to 4 in violation of the said agreement, did not appoint the appellant or his nominee against a vacant post of class IV. Instead respondent No.5 was appointed, and therefore, there is a breach of agreement. The appellant sought cancellation of appointment of respondent No.5 and claimed his appointment on the said post of peon in terms of the agreement and claimed its specific performance. The respondents admitted that the land was transferred to the school, but denied that any condition as alleged was attached. They further raised legal objections about maintainability of the suit and denied the claim of the appellant. The, learned trial Court decreed the suit as prayed, which was confirmed by the learned District Judge. Respondent No.5 filed revision application in the High Court, which was allowed and the appellant's suit was dismissed. The learned Judge in Chamber noted that the appellant had not filed any agreement. The Civil Court had no jurisdiction and that the alleged agreement cannot be enforced. In the leave ranting order the alleged agreement deed has been reproduced, which according to the learned counsel for the respondent and as observed in the impugned judgment, was not produced in evidence and was not exhibited. The alleged agreement is reproduced below:-- "Agreement Deed In the light of Deputy Inspector of Girls Schools letter, dated 28-11-1973 the required land has been donated to the Government Girls Middle School Chokara through Mutation No.12585, dated 22-1- 1974 subject to the condition that the appointment against class 1V posts in the said school will go to the donor of the land.
(Sd.)
Najibullah (Sd.)
Dy. Inspector of Schools, Kohat. "
The appellant having failed to produce agreement which was sought to be specifically performed, could not have at this stage produced it without permission of the Court particularly when it had not been produced in evidence and had remained on the record as alleged by the appellant. The learned trial Court and the learned District Judge both seem to have presumed that there existed an agreement in writing with terms and conditions as pleaded in the plaint. Leave was granted to consider that Munawar Khan v. Niaz Muhammad (1993 SCM R 1287) has not been properly appreciated.
3. The learned counsel for the appellant contended that as the agreement was conditional and was current in N.-W.F.P. Duly approved by the Government specific performance thereof should have been granted and the appellant should have been appointed as a peon against a vacant post, which was available and was given to respondent No.5, The learned counsel for the respondent contended that firstly there was no agreement on record, secondly if such an agreement existed. It is against public policy and is not enforceable under law. Both the learned counsel have relied on the afore stated judgment of this Court.
4. Without entering into the controversy whether agreement as pleaded was exhibited or not, question is weather such an agreement is legal and can be enforced under law, It is true that in the Province of N.-W.F,P. Since 1962 or near about it had been the practice and policy to elicit land grant free of cost from individuals for establishment or extension of primary schools at the cost of the Government on the condition that the donor of the land or his nominee was recruited if there was a vacancy or it becomes available in class IV. Such an agreement came up for consideration in Munawar Khan (supra) in which reference was also made to H.R.No.104 of 1992. In this Human Right case it was held that "recruitments made without open advertisement were prima facie violative of Fundamental Right 18 and could not be countenanced". Having noted this observation in the referred case, it was observed as follows:- "What we have noticed in all these cases which are under consideration before us is that appointments of both the parties contesting the appointment were made without such advertisements, publicity or information in the locality from which the recruitments were to be made. In view of the Constitutional requirement and the interim order already passed in Human Right Case 104 of 1992 it is expected that in future all appointments shall be made after due publicity in the area from which the recuitments had to take place, This will, however, not apply to short-term leave vacancies or to contingent employment.
As regards the policy of making appointments against land grant, we find that this amounts to, in fact, sale of public office for property. Not only it is against the Constitutional Law applicable to public office but is not conducive to public interest. What could be done within the framework of the law was to create a margin of preference for those who make such grants, other conditions of eligibility and suitability and fitness being equal. We, therefore, overrule this practice prospectively,"
From the afore stated observations it is clear that the agreement between the Government and the appellant was in the nature of sale of a public office, consideration being the transfer of land, Sale of public office cannot be a legal transaction, It is completely illegal and against public policy.
Therefore, such an agreement is hit by section 23 of the Contract Act, which makes it void. As the agreement amounting to sale of public office is void and illegal, specific performance thereof cannot be granted.
5. Another ground which has been pressed is that such agreement cannot be specifically performed. Section 21 of the Specific Relief Act specifies the contracts which cannot be specifically enforced. Section 21(g) provides as follows:- "S.21, The following contracts cannot be specifically enforced:--
(g) A contract, the performance of which involves the performance of a continuous duty extending over a period longer than three years from its date. "
The principle involved in this section is that where under a contract the obligation is cast upon a person to perform continuously a particular duty for a period longer than three years from the date of the agreement, the same cannot be specifically enforced, In the present case the agreement seems to be in C perpetuity for all times to come, generation after generation. It casts an obligation on respondents Nos.1 to 4 to appoint the appellant or his nominee against a class IV post and this process shall continue till such the the school is in existence. Such an agreement which has cast a duty of performance for a period longer than three years cannot, therefore, specifically be enforced.
6. The learned counsel while referring to Munawar Khan (supra) contended that the appellant is entitled to a margin of preference as it is available of those who make such grant, Such observation has been made in the said judgment, but it is restricted with the condition that amongst all the candidates' eligibility, suitability and fitness are equal, It is only on this condition that the donor or his nominee as compared to other candidates if equally eligible, suitable and fit for the post, may be given preference. In such circumstances, the appointing authority may use the discretion in favour of the donor, but such preference will not be in performance of the agreement, There is nothing in evidence on record to show that the appellant was equally eligible, suitable and fit for the post as compared to respondent No.5, The appointment is to be based on merits and if on merits the donor or his nominee is at par with other candidates, only then preference can be given to him. By the observation referred hereinabove, the donor or his nominee is not vested with any right to claim the post.
7, The learned counsel then contended that if specific performance of the agreement is not granted, then the appellant should be compensated for the land donated by him, Such a plea was not raised before any of the Courts below. However, it is doubtful that compensation can be claimed in respect of an agreement, which is void ab initio. The appeal is dismissed with no order as to) costs.