This petition in revision arises in the background that Khuda Bakhsh son of Amir Bakhsh had filed a declaratory suit against the Government of N.-W.F.P. And others with permanent injunction against appointment of Umar Khan, petitioner herein, as Chowkidar per office order No. 5196--5271, dated 7-9-1989 on the ground that he being a Class IV part-the for the last nine years was entitled as such on regular basis in view of the instructions issued by the Government and that the appointment of petitioner Umar Khan by respondent No. 3 as Chowkidar on permanent basis was in violative of the prescribed rules and policy of the Government on the subject.
2. The suit was contested by the petitioner by filing written statement and from the averments of the pleadings, the following issues were framed:--
(1) Whether the plaintiff has got -a cause of action and locus standi?
(2) Whether the plaintiff by his own conduct was estopped to sue?
(3) Whether defendant No. 4 has been lawfully appointed and plaintiff is not entitled to the decree as prayed for?
(4) Whether the Court has got the jurisdiction to entertain the present suit?
(5) Relief?
3. After recording evidence of the parties pro and contra, the learned trial Judge decreed suit of the plaintiff vide judgment dated 10-7-1994. Feeling dissatisfied from the said judgment of the trial Court, the petitioner Umar Khan went in appeal before the learned District Judge, D.I. Khan where to he met the same fate vide judgment dated 10-10-1994. Hence this revision petition.
4. I have heard S. Zafar Abbas Zaidi, Advocate for the petitioner and Sh. Muhammad Bashir Gohar, Advocate for plaintiff-respondent No. 4 and perused the record.
5. The plaintiff besides himself had produced four witnesses in support of his claim. During pendency of the suit, Umar Khan petitioner had moved an application on 18-11-1991 under Order 7, Rule.11, C.P.C. For rejection of the plaint on the ground that since the matter related to the terms and conditions of service, therefore, it exclusively falls within the jurisdiction of Service Tribunal of N.- W.F.P. The trial Judge admitted this fact to the extent that the Court cannot consider the factum of appointment of the petitioner being a Government servant, but as the plaintiff-respondent No. 4 is a part-the servant being paid from contingency, as such the Civil Court could entertain such types of cases of employees who are not Government servants and case of the defendant/plaintiff was, therefore, entertained.
6. After completion of evidence of the plaintiff defendant No. 4 herein, Umar Khan, petitioner was directed to deposit the expenses for summoning of the official witnesses which was complied with.
Mr. Gul Muhammad Khan, Clerk Registration Office, D.I. Khan appeared as D.W.1., while Karim Bakhsh Clerk of the Office of District Education Officer, D.I. Khan and Nizamuddin, Head Teacher were examined as D.Ws.2 and 3 on 2-3-1993 and 26-7-1993 respectively. However, till 19-5-1994 the petitioner was unable to produce rest of the evidence and the Court, therefore, struck of his defence under Order 17, Rule 3, C.P.C.
7. Defendant No. 4 produced three official witnesses before the trial Court. Of them, Qazi Sirajuddin had brought Fard Jamabandi for the year 1979-80, Khata No. 514, Khasra No. 1461, copy Exh. P.W.1/1, Nimmuddin, Head Teacher of the School appeared as P.W. 2 and stated that the defendant Khuda Bakhsh is working in the School since April, 1979 and getting his pay regularly in his capacity as Sakka Khakrob, while Zafrullah, Junior Clerk, Office of District Education Officer (Male), D.I. Khan had appeared as P.W. 3 and brought the minutes of the meeting of District Development Advisory Committee held on 22-9-1987 at Peshawar, copy of which is Exh. P.W.3/1. Defendant No. 4 had, however, appeared as his own witness and stated that he is working in the School since 1979 and on creation of a post of Chowkidar, he was legally entitled to be regularised there against under the Government Policy, copy Exh. P.W. 3/1 but instead the petitioner was appointed as such. He had, however, admitted that he is working against the post of Sakka Khakrob and he had never been appointed as part-the Chowkidar nor he is working against the same post.
8. Mr. Nizamduddin, Head Teacher of the School had also appeared as D.W. 3 and corroborated his statement as P.W. 2 by reiterating that the defendant/respondent No. 4 was appointed as Chowkidar against a newly created post vide order dated 7-9-1988 and had assumed his duties as such on 10-9-1988 vide Exh. D.W. 3/1, but on receipt of status quo order on 12-9-1988, the petitioner/defendant was not allowed to perform his duties.
9. The only point which prevailed upon the learned trial Court was that the defendant/respondent No. 4 per the policy of the Provincial Government referred above was entitled to be appointed as Chowkidar instead of petitioner Umar Khan who never remained in service and appointed newly on the recommendations of Chairman, District Development Advisory Committee, D.I. Khan. Reliance was also placed on the case reported in 1993 SCM R 1287 wherein it was observed that all such appointments are null and void and may be declared as such by all the Courts.
10. Careful perusal of the record reveals that prayer of the petitioner made on 18-11-1991 for rejection of the plaint under Order 7, Rule 11, C.P.C. Was acceded to due to lack of jurisdiction to consider his appointment in service as Chowkidar but had opined that the Court is competent to consider the suit filed by defendant No. 4 as he was not a Government servant being apart-the employee. In his-declaratory suit, the plaintiff had prayed for appointment as Chowkidar being a part-timer since 1979 and that the appointment order 7-9-1988 of Umar Khan petitioner was liable to be set aside. By decreeing the suit, the learned trial fudge has violated her own order-dated 8- 12-1991 by striking down the appointment order of a Government servant which does not fall within her jurisdiction.
11. The Policy Decision of the Government produced as Exh. P.W.3/1 by P.W. 3 at its Serial No. 5 speaks as under:-- "The persons who have already been appointed as part-the Chowkidars be regularised. However, the genuineness of their appointment be ascertained by the M.P.As. Before regularisation. The remaining posts be filled up by the persons who donated lands free of cost for the School/on the recommendations of concerned M.P.A."
The said policy decision was also not favourable to respondent No. 4, as it is in the evidence that he was working as Sakka Khakrob--part-the service and was not posted as part-the Chowkidar. Therefore, he cannot get any benefit of the said policy decision. Further, the moment petitioner assumed the charge as Chowkidar, he became a Government servant for all practical purposes and means and hence any matter which relates to the terms and conditions- of his service would exclusively fall within the jurisdiction of N.-W.F.P. Service Tribunal alone. Since respondent ho. 4/plaintiff had impugned in his plaint the terms and conditions of service of the petitioner Umar Khan, therefore, by decreeing the suit in favour of plaintiff/defendant A No. 4, the trial Judge had exceeded her jurisdiction. The dictum laid down by the august, Supreme Court in the authority (1993 SCM R 1287), relied upon by the learned trial Judge, was also not followed by the trial Court in its true prospective, because in the said judgment it was held that ordinary Civil Courts had no jurisdiction in reference to the service matters which was not the case before the Court below. The appellate Court to had fallen in an error by concurring with the finding of trial Court and not applying its own mind to the facts of the case.
6. In the light of foregoing discussion, the revision petition has substance and is, therefore, accepted. The impugned judgments/decrees of the Courts below are set aside and suit of respondent No. 4 Khuda Bakhsh stands dismissed with no order as to costs.