IN THE HIGH COURT OF SINDH

CIRCUIT COURT AT LARKANA

Constitution Petition D-1507 of 2014

Saleem Burdi  

vs.

Province of Sindh and Others

 

For the Petitioner:                            Mr. Athar Abbas Solangi

                                                          Advocate

For Respondent Nos. 1 to 3:         Mr. Ameer Ahmed Narejo

                                                          State Counsel

For the Respondent No. 4:            Mr. Habibullah G. Ghouri Advocate

Date of Hearing:                              26-09-2018

 

Date of Announcement:                 10.10.2018

O R D E R

AGHA FAISAL, J. Through this judgment we seek to determine the issue as to whether the employment of a person could be sustained in law notwithstanding his manifest ineligibility, on account of age, to have even been considered for appointment.

2.            The relevant facts of this case, as enunciated by Mr. Athar Abbas Solangi, Advocate for the petitioner, are that an advertisement was published in the newspapers, on 19.04.2012, whereby contractual employment inter alia for the position of junior school teachers was advertised (“Advertisement”). The age limit prescribed, in the said Advertisement, was within the age of 21 to 30 years. The said Advertisement also required that the applications in regard thereof to be submitted by the prospective candidates on or before 20th May 2012. It was demonstrated from the record that the respondent No. 4 was successful in respect of an advertised employment position and his services were engaged vide the order issued by the Directorate of Schools Education Larkana dated 16.07.2014 (“Appointment Order”). This appointment was undertaken notwithstanding the fact that the respondent No. 4 was over the age limit prescribed for the said position as his Secondary School Certificate of Intermediate Board Sukkur detailed his date of birth as being 01.04.1967. The said birth date was also corroborated from a copy of his national identity card placed on record.  It was thus manifest that at all material times relevant to the present controversy, being the date of Advertisement; the date upon which the application pursuant to the Advertisement was required to be submitted and the date upon which the Appointment Order was issued, the respondent No. 4 was beyond the pale of the age limit prescribed vide the Advertisement. It was argued that the appointment of the respondent No. 4 was predicated upon nepotism and other mala fide considerations, hence, could not be sustained. Per learned counsel for the petitioner, objections were filed before the respondent Nos. 2 and 3 with regard to the appointment of the respondent No. 4, but no heed was paid to thereto and hence the petitioner was constrained to institute the present petition and the same remains pending since 2014 while the respondent No. 4 continues to enjoy the benefit of his illegal appointment.

3.            Mr. Habibullah G. Ghouri, learned counsel for respondent No. 4, drew the Court’s attention to a notification issued by Government of Sindh dated 02.10.2012 (“Notification”), the content whereof is reproduced herein below:

GOVERNMENT OF SINDH

SERVICES, GENREAL ADMINISTRATION AND

COORDINATION DEPARTMENT

 

Karachi, dated the 2nd October, 2012.

 

NOTIFICATION

No.SOII (S&GAD) 5-64/2011: In continuation of this Department’s Notification No.SOII (S&GAD)6-12/2004, dated 15.04.2010 and with the approval of Chief Minister, Sindh notwithstanding the contents of table given under Rule-12(2) of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, and the orders contained in this Department’s Standing Order No.SORI (SGA&CD) 6/4/85, dated 19.04.2004, Standing Order No. SORI (SG&CD) 6/4/85 dated 15.06.2004 and Corrigendum dated 02.07.2004 issued in this behalf, Government of Sindh are pleased to allow relaxation upto maximum of 15 (fifteen) years in the upper age limit to all the applicants applying for the vacancies in all the Departments of Government of Sindh to be filled during the period with effect from 1st July, 2012 to 30th June, 2013 in relaxation of Rules.

 

CHIEF SECRETARY

GOVERNMENT OF SINDH

 

4.            It was thus demonstrated that an age relaxation was allowed by the competent authority and the upper age limit was extended by maximum of 15 years. It was however admitted by the learned counsel that even if the age relaxation was taken into account the petitioner remained beyond the maximum age limit prescribed, as even if the maximum age was deemed to be 45 instead of 30 the petitioner would still not qualify as he was older at all relevant times pertaining to his appointment. It was argued by the learned counsel that as per the merit list of the National Testing Service the score of the respondent No. 4 was the highest of the 14 candidates that had applied for the said position. It was further contended that the respondent No. 4 has been rendering valuable services since date of the Appointment Order and that his service record had remained stellar. In view thereof it was contended that the fact of the respondent No. 4 being over age at the time of his appointment may be condoned or ignored.

5.            The learned State Counsel confined his arguments to the iteration of the statement filed by the respondent No. 3, District Education Officer Larkana, in response to the petition. The said statement stipulated that the present petition may be disposed off with directions to the competent authority to determine the eligibility of the respondent No. 4.

6.            We have heard the submissions of the learned counsel and have also perused the record available before us. It is an admitted fact that the respondent No. 4 was beyond the prescribed age limit at all material times, notwithstanding the age relaxation extended in terms of the Notification.

7.            It is observed from the Notification that the relaxation of age was required to be in effect from 01.07.2012 to 30.06.2013. The Appointment Order is dated 16.07.2014 and the date of the said instrument places the appointment of respondent No. 4 beyond the remit of the relaxation of age granted vide the Notification. Even if the benefit of relaxation of age is extended to the respondent No. 4, it would appear that he would still not qualify within the extended age limit. This fact is borne from the record and it is unequivocally admitted by the learned counsel representing the respondent No. 4.

8.            In view of the admission of the learned counsel for the respondent No. 4, as cited above, we are of the considered opinion that it is just and proper for the competence of the Respondent No. 4, to be appointed in terms of the Advertisement and continue his employment, be determined by an authority of competent jurisdiction.

9.            Therefore, this Petition, along with pending application(s), is disposed of with direction to the competent authority / Respondent No. 1 to determine the eligibility of the Respondent No. 4, for appointment in terms of the Advertisement and subsistence in employment pursuant thereto, in accordance with the law and issue its decision in regard thereof, vide a reasoned speaking order, within two months from the date of this Judgment.

10.         This petition stands disposed of in terms herein.

 

                                                                                                      Judge

 

Judge

                                                                          

Abdul Salam/P.A