IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA

Const. Petition No. D- 601 of 2017

DATE	ORDER WITH SIGNATURE OF JUDGE

Present:

Mr. Justice Muhammad Saleem Jessar Mr. Justice Adnan Iqbal Chaudhry

Petitioner : Kashif Hussain Gaad

through Mr.Irfan Badar Abbasi, Advocate

Respondent: Federation of Pakistan & others

through Mr.Abdul Rasheed Abro, Asstt: Attorney General

Date of hearing: 15.01.2019

Date of decision: 13 .02.2019

O R D E R

Adnan Iqbal Chaudhry, J.- The Petitioner prays for writs to declare that he is eligible for employment in the Pakistan Railways Police under the ‘deceased quota’, and for a direction to the Superintendent and Inspector General of the Pakistan Railways Police (Respondents 2 and 3) for appointing him so.

2. The facts, in brief, leading to this petition are that the Petitioner’s father, Khadim Hussain was serving as a constable in the Pakistan Railways Police when he passed away on 03.07.1996 by falling from the train while on duty. The Petitioner claims to be the eldest son of the deceased. These facts are not disputed by the Respondents.

3. Learned counsel for the Petitioner submitted that at the time the deceased passed away (in 1996), the Petitioner was minor; that on attaining majority, his mother made an application to the Superintendent of Police, Pakistan Railways on 01.09.2015 requesting that her son (the Petitioner) be given employment on the deceased quota; but that the Respondents avoided to do so; hence the petition. Learned counsel also disclosed that prior to applying for employment on the deceased quota, the Petitioner had also appeared in a test held by the NTS on 20-07-2014 for recruitment to the posts of Constable and Assistant Sub Inspector in the Pakistan Railways Police where the Petitioner had secured 55 marks, but he was not considered for further process.

4. On the other hand, the learned Assistant Attorney General submitted that appointments on the deceased quota in the Pakistan Railways are governed under the ‘Prime Minister’s Assistance Package for Families of Government Employees who die in Service’ (hereinafter ‘the Assistance Package’), which instructions were first issued vide Establishment Division’s Office Memorandum No.7/40/2005-E.2 dated 13-06-2006, and thereafter those have been amended from time to time. He submitted that vide Office Memorandum No.7/40/2005-E.2 dated 11-07-2006 issued by the Establishment Division, the Assistance Package was made applicable only w.e.f. 01-07-2005, and since the father of the Petitioner had passed away in 1996, much before the applicable date, the Petitioner’s case did not fall under the Assistance Package, and thus vide letter dated 22-09-2015, the Respondent No.3 asked the Respondent No.2 to inform the Petitioner that his application cannot be accepted.

The Assistant Attorney General further submitted that the Petitioner’s application merited rejection also for the reason that he did not make the application with one year of attaining the age of 18, which was another condition of the Assistance Package. He therefore opposed the petition.

5. Adverting first to the latter argument of the Assistant Attorney General, the copy of the CNIC of the Petitioner shows his date of birth as 17-11-1995. Therefore, he attained the age of 18 years on 17-11-2013. Though his application for employment was made on 01.09.2015, beyond the period of one year after turning 18 year of age, but that delay of 10 months or so appears to have been waived by the Respondent No.3 inasmuch as, that delay is not the ground cited by the Respondent No.3 in his letter dated 22-09-2015 for rejecting the Petitioner’s request. Therefore, the argument that the Petitioner’s application for employment was beyond the stipulated period, has no force.

6. Before addressing the primary submission of the Assistant Attorney General that the benefits under the Assistance Package were available only in respect of employees who passed away on or after 01-07-2005, it will be expedient to first set-out, in chronological order, the various Office Memorandums issued by the Establishment Division in respect of the ‘Prime Minister’s Assistance Package for Families of Government Employees who die in Service’ (‘the Assistance Package’).

The Assistance Package was introduced vide Establishment Division’s O.M. No.7/40/2005-E.2 dated 13-06-2006 to provide for employment to the deceased employee’s children to posts in BS-01 to BS-15 on a two-year contract, without advertisement. Subsequently the Establishment Division issued the following Office Memorandums:

“No.7/40/2005-E.2 Islamabad, the July 11, 2006

OFFICE MEMORANDUM

Subject: ASSISTANCE PACKAGE FOR FAMILIES OF GOVERNMENT EMPLOYEES WHO DIE IN SERVICE.

In continuation of this Division’s O.M. of even number dated 13-06-2006 on the above subject, the undersigned is directed to say that the assistance package for families of Government employees, who die in service, circulated vide above quoted O.M. will be applicable w.e.f. 01-07-2005. However, assistance cases already decided will not be re-opened.”

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“No.8/02/2014-E.2 Islamabad, the 28^th November, 2014

OFFICE MEMORANDUM

Subject: ASSISTANCE PACKAGE FOR FAMILIES OF GOVERNMENT EMPLOYEES WHO DIE IN SERVICE.

The undersigned is directed to refer to Railways Division’s Office Memorandum No. 26(I)/2005-E-I, dated 21^st October, 2014 on the above subject and to say that the instructions issued vide Establishment Division’s O.M. No.7/40/2005-E-2, dated 13^th June, 2006 read with O.M. No. 4/1/2005-C.P-I, dated 13.04.2005 provides that the widow or one child of deceased Government servant can be appointed on contract basis within one year after the death of the deceased Government servant and if the child is minor, the period of one year will start from the date he attains the age of 18 years.”

Our research shows that by another Office Memorandum No.8/65/2016-E-2 dated 09-09-2016 issued by the Establishment Division, the benefit of employment provided under the Assistance Package dated 13-06-2006 was amended to read as follows:

“Employment for posts in BS-01 to BS-15 on Five (05) years contract appointment without advertisement which may further be extendable till the age of superannuation or regularization as the case may be”.

However, since the application made on behalf of the Petitioner for employment was dated 01.09.2015, and it was turned down on 22-09-2015, therefore, we confine ourselves to the Assistance Package as it existed on the date the Petitioner’s application was turned down.

7. The Assistance Package (O.M. No.7/40/2005-E.2 dated 13-06-2006) placed on the record shows that it provided a number of benefits to the family of an employee who died in service, those benefits being ‘lump sum grant, pension, accommodation, employment, education, health, plot of land and house building advances’. However, the benefit of ‘employment’ was vague as it only described the benefit as “Employment for posts in BS-01 to BS-15 on two years contract without advertisement”.

8. It was not until Office Memorandum No.8/02/2014-E.2 dated 28-11-2014 (reproduced in para 6 above) that the Establishment Division brought a clarity to the employment envisaged under the Assistance Package by providing “that the widow or one child of deceased Government servant can be appointed on contract basis within one year after the death of the deceased Government servant and if the child is minor, the period of one year will start from the date he attains the age of 18 years.” It will be seen that though the Office Memorandum dated 28-11-2014 imposed certain conditions on the benefit of employment available to the deceased employee’s children, it did not restrict its application to those employees who pass away after the Assistance Package. Rather, in providing for employment for children of a deceased employee who turn 18 years of age, the said Office Memorandum dated 28-11-2014 was applicable retrospectively to those employees who had passed away prior to the Assistance Package but whose children were minor at the time of the Assistance Package. In other words, the date of applicability of the Assistance Package “w.e.f. 01-07-2005” that had been introduced by O.M. No. No.7/40/2005-E.2 dated 11-07-2006 (reproduced in para 6 above) related only to the monetary benefits of the Assistance Package and not to the benefit of employment provided thereunder. Any other construction of the Assistance Package would be discriminatory of children of deceased employees who were minors at the time of the Assistance Package notwithstanding the date of death of their deceased father, and would be violate of Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973. Surely, for the purposes of providing the benefit of employment under the Assistance Package there can be no reasonable classification between children of a deceased employee who were minors at the time the Assistance Package was introduced, and the minor children of an employee who passed away after the Assistance Package was introduced. Therefore the ground that the benefit of employment under the Assistance Package (as distinct from the other monetary benefits thereunder) was not available to the Petitioner as his father had passed away prior to the Assistance Package, was misconceived. We hold that the Petitioner was/is entitled to be considered for employment (only) as such.

9. In view of the foregoing, this petition is allowed by directing the Respondents to place the case of the Petitioner before the Departmental Selection Committee of the Pakistan Railways Police in line with Rule 11 of the Civil Servants (Appointment, Promotion & Transfer) Rules, 1973 for considering employment (only) on contract basis as envisaged under the Assistance Package.

J U D G E