ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Constitution Petition No.D-603 of 2015

DATE OF HEARING

ORDER WITH SIGNATURE OF JUDGE

23.02.2017.

PRESENT:

Mr. Justice Nazar Akbar,

Mr. Justice Muhammad Saleem Jessar,

For KatchaPeshi.

Mr. Sain Dino G. Shaikh, advocate for the petitioner.

Mrs. Kalpana Devi, Asst. A.G alongwith Maqsood-ul-Haq Qureshi, DEO, Shikarpur.

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NAZAR AKBAR, J.-This is a case in which the petitioner has sought appointment in the Education Department, Govt. of Sindh, on the ground that he is son of deceased Raham Ali Shah, who was serving as HST (BPS-17) in the Govt. Boys High School Ghulam Goth, at Hothi, Taluka Lakhi, District Shikarpur, when he expired on 14.02.2007. The petitioner has made written representation for appointment against deceased quota and Respondent No.3 with his covering letter dated 20.09.2010 has forwarded petitioner’s application to the respondent No.1 for favorable consideration. However, since then except correspondence amongst respondents themselves nothing has materialized. Respondent No.3 on 10.12.2015 with the approval of Additional Secretary (Law) Education and Literacy Departmenthas filed comments.

2. We have heard learned counsel for the petitioner, Asstt. A. G. and perused documents filed with the petition and the comments.

3. Learned Counsel for the petitioner has emphatically referred to Annexure‘C’ at page-21, which is clear cut statutory policy of Govt. of Sindh, for appointment of a child of a civil servant who dies during service provided “the child possesses the minimum qualification prescribed for that post”. This statutory policy was issued by Govt. of Sindh, in exercise of powers conferred by Section 26 of the Sindh Civil Servants (Appointment, Promotion & Transfer) Rules, 1974, through statutory notification dated 02.09.2002 and it reads as follows:-

““GOVERNMENT OF SINDH

SERVICES, GENERAL ADMINISTRATION &

COORDINATION DEPARTMENT

KARACHI, DATED THE 2^ND SEPTEMBER, 2002.

N O T I F I C A T I O N.

No.SORI(S&GAD)/2-3/2002:- In exercise of the powers conferred by Section 26 of the Sindh Civil Servants Act, 1973, the Government of Sindh are pleased to make the following amendments in the Sindh Civil Servants (Appointment, Promotion & Transfer) Rules 1974, namely:

AMMENDMENTS.

1. After Rule 10, the following new Rule shall be added:-

“10-A(1) Notwithstanding anything contained in these Rules the appointment authority may appoint one of the children of a civil servant who dies during service to a post in any of the basic pay scales No.11 to 20; provided that the child possesses the minimum qualifications prescribed for appointment to that post.

(2) The appointment as aforesaid shall be subject to the availability of a vacancy and where two or more vacancies in different pay scales are availableat a time and the child possesses the qualifications to make him eligible for appointment to more than one post he will preferably be appointed to the post carrying higher pay scale.

2. After Rule 11, the following new Rule shall be added :-

11-A. Where a civil servant dies while in service or is declared invalidated or incapacited for further service one of his children shall be provided job on any of the pay scales No.1 to 10 in the Department in which the deceased civil servant was working without observance of the prescribed formalities if such child is otherwise eligible for the post.

Chief Secretary,

Government of Sindh.”

4. Respondent No.3 in his comments has admitted the basic facts necessary for appointment of the petitioner in terms of Rule 10-A(1) above on the basis of his minimum qualifications. These admitted facts are:(1) the petitioner is son of Reham Ali, a HST-BPS-17;(2) his father was in active service in Education department when he died on 14.2.2007; and (3) the petitioner’s minimum qualification is B.A. in Ist division, M.A(English) in Second division as well as M.Ed. (Master in Education) in first division. However, learned AAG while contesting the right of the petitioner has referred to a notification issued by SGA&C Department, Govt. of Sindh on 13.07.2011. According to this notification cut-off date for making an application for appointment on deceased quota is two years from the date of death of the officer. The contention of the learned counsel is misconceived in the given facts of the case. The notification dated 30.07.2011 cannot be given retrospective effect and an excuse for denying the entitlement of the petitioner for his appointment against deceased quota. His father had died in 2007, four years prior to the date of the said notification. Even his application for appointment on deceased quota was forwarded to by respondent No.3 in September, 2010 prior to the said notification.

5. Learned AAG next contended that the Government of Sindh by a notification dated 13.08.2016 has constituted a committee to scrutinize and decide the cases of deceased quota for the posts from BPS-01 to BPS-11 and she insists that the petitioner’s case may be referred to the said committee. Even this contention of the learned counsel has no force. Reference to the notification dated 13.8.2016 is not relevant in the case of the petitioner. His case does not fall within the ambit of Rule 11-A of the amended Rule quoted in para-3 above. The case of the petitioner is not for the appointment against the posts from BPS-01 to BPS-11 on deceased quota. The petitioner holds two master degrees and his minimum qualification is for appointment to the post in BPS-17. Therefore, his case falls within the ambit of amended Rule 10-A(1) & (2) of the Rule reproduced in para-3 above.

6. We have carefully examined the statutory notification dated 02.09.2002. The notification is statutory commitment by the government to the civil servant that in the event of death of civil servant during service one of his/her children shall be provided a government job, according to the minimum qualification of the child of the deceased civil servant. This commitment by analogy is in the nature of pensionary benefit for the family of civil servant in the event of death of civil servant before his actual retirement. We may add that amongst other service benefits to which the family of the deceased civil servant is entitled, the relevant rules guarantee an added service benefits for the family of the deceased civil servant. Therefore, we are of the considered view that the Rules quoted above are in the nature of family pension, and it has created a right in strictosensu in favour of one of the children in the family of the deceased civil servant. The petitioner under the aforesaid statutory Rule has acquired a right enforceable in law as guaranteed by Article-4 of the Constitution of the Islamic Republic of Pakistan, 1973. The failure of the government functionaries to decide his application for appointment in Education department at least in BPS-17 on the basis of his minimum qualification since 2010 till date is worst example of denying a statutory right to the deserving orphan of a government servant. It is breach of commitment by the State with its civil servant when he was alive and was performing his duty as Government servant. In fact, it is a settled principle of law that government is duty bound to fulfill its commitment with the citizen in accordance with the provisions of Article-4 of the constitution since every right of an individual is protected by law and everyone has to be “dealt with in accordance with law”. The petitioner has acquired a right to be inducted in government service on the death of his father during service in any of the basic pay scale (BPS) No.11 to 20 according to his minimum qualification. The government functionaries have miserably failed to treat him in accordance with the statutory law during the last more than seven (7) years by not even deciding the application of the petitioner either way and thereby denied his right of appointment in the government service under the aforesaid statutory rules. It is clear violation of Article-4 of the constitution.

7. We have already observed that in our humble view the right of appointment of a child of deceased Civil Servant in Government was a kind of pensionary benefit, the family of the deceased must have been adversely affected in terms of financial loss ever since the death of bread earner. The facts of this case remind us of the case of Prof. Ghazi Khan Jakhrani in which the Hon’ble Supreme Court has examined the effect of non-payment of pension for several years to Prof. Jakharani after his retirement and he has died without receiving pension owing to the lethargic behaviour of the government functionaries. In terms of the notification quoted above, the government functionaries have practically denied service benefit to the family of the deceased civil servant namely deceased Raham Ali Shah who served in education department for 36 years. The education department in the case in hand seems to be guilty of similar bad governance as have been discussed in para-7 of the judgment by the Hon’ble Supreme Court in the case of Prof. Jakhrani reported in PLD 2007 SC 35. Relevant observations of Hon’ble Supreme Court at page-43 of the judgment are reproduced below:-

7. It is pathetic condition that Government servants, after having served for a considerable long period during which they give their blood and sweat to the department had to die in a miserable condition on account of non-payment of pension/pensionary benefits etc. The responsibility, of course, can be fixed upon the persons who were directly responsible for the same but at the same time we are of the opinion that it is an overall problem mostly in every department, where public functionaries failed to play their due role even in accordance with law. Resultantly, good governance is suffering badly. Thus everyone who is responsible in any manner in delaying the case of such retired officers/official or widows or orphan children for the recovery of pension/gratuity and G.P. Fund has to be penalized. As their such lethargic action is in violation of Article 9 and 14 of the Constitution of Islamic Republic of Pakistan, 1973. Admittedly, it is against the dignity of a human being that he has to die in miserable condition and for about three years no action has been taken by the concerned quarters in finalizing the pension case and now when the matter came up before the Court, for the first time, they are moving in different directions just to show their efficiency and to clear their position before the Court. Such conduct on their behalf is highly condemnable and cannot be encouraged in any manner.

In the case in hand, too, not a single plausible explanation has been offered by the respondents for their failure during the last 10 years to discharge their statutory duty following the death of a Government Servant during service by not providing a job to one of the children of deceased civil servant. In the given facts of the case in hand, since we are of the view that this is also a case of denial of benefit of service to the family of civil servant the respondents are also required to be reminded of the following observations of the Supreme Court from the said judgment.

8. We, therefore, direct that all the Government Departments, Agencies and Officers deployed to serve the general public within the limit by the Constitution as well as by the law shall not cause unnecessary hurdle or delay in finalizing the payment of pensionary/retirement benefits cases in future and violation of these directions shall amount to criminal negligence and dereliction of the duty assigned to them. Thus having notices such miserable condition prevailing in the department particularly relating to the payment of the pension to retired Government servants or widows or orphan children, we direct all the Chief Secretaries of the Provincial Governments as well as the Accountant Generals and the Accountant General Pakistan Revenue, Islamabad, to ensure future strict adherence of the pension rules reproduced hereinabove and clear such cases within a period not more than two weeks without fail.(Emphasize provided).

8. The filing of petition by itself was notice to the Secretary, Education, Govt. of Sindh. The Respondents have not challenged entitlement of the petitioner for his appointment against deceased quota. Had the policy been honestly and properly applied by the Government, the petitioner should have been inducted in the service in 2010. He is still working for the enforcement of his right in terms of the policy after 10 years of the death of his father during service.

9. In view of above facts and the observations of the Hon’ble Supreme Court, this petition is allowed and the respondents are directed to appoint the petitioner in BPS-17 on the basis of his minimum qualification with seven annual increments from the date on which Respondent No.3 has forwarded his application within a period of 30 days.

10. Copy of this order be sent to the Secretary, Education, Govt. of Sindh, for compliance.

Judge

Abid H. Qazi/**