ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

C. Ps. No.D-597 of 2024

Date of

Hearing

ORDER WITH SIGNATURE OF JUDGE

BEFORE:

Mr.Justice Muhammad Saleem Jessar.

Mr.Justice Nisar Ahmed Bhanbhro.

1. For orders on office objection ‘A’

2. For hearing of main case

Petitioner: Through Mr. Fida Hussain Shah, Advocate.

Respondents: Through Mr. Liaquat Ali Shar, Addl. A.G, along with

Mr Karim Bux Junejo, Office Superintendent

District and Sessions Court Larkana

Date of hearing: 23.04.2025.

Date of Decision: 23 .04.2025

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ORDER

MUHAMMAD SALEEM JESSAR, J;- Through instant Petition, the Petitioner has claimed following relief:

“a. That this Honorable Court may be pleased to direct the Respondent No 1 District and Sessions Judge Larkana to appoint the Petitioner on deceased quota on any vacant post of BPS 2 to 7 while considering that his case falls in first category being son of deceased employee who died during service as was already directed by learned Registrar/ Respondent No 2 vide his letter dated 03.03.2010 and 23.07.2012 in terms of decision taken by Honorable Administration Committee as referred to above, issued to the all District and Sessions Judge of Sindh.”

2. The facts of the case of the Petitioner are that his father namely Roshan Ali Leghari was employed as Chowkidar in Sindh Subordinate Judicial Service, who died while in service on 16.01.2012 leaving behind Petitioner and others as surviving legal heirs. Mother of the Petitioner filed an application with Registrar of this Court for appointment of Akhtar Ali brother of Petitioner under deceased quota on failure to seek attention Akhtar Ali filed CP No D 925 of 2013 before this Court which was allowed vide order dated 02.12.2014 directing Learned District and Sessions Judge Larkana to appoint Akhtar Ali whenever any vacancy for the post of BS 01 to 5 occurs. Akhtar Ali failed to get appointment despite of hectic efforts therefore he left pursuing the case. Petitioner filed a fresh application dated 05.03.2023 seeking his appointment under deceased quota but to no avail. Learned District and Sessions Judge invited applications for recruitment against vacant positions in grade 1 to 5, petitioner also applied for recruitment along with an application for consideration under deceased quota, but remained unheeded. Petitioner filed this Petition.

3. On notices Respondent No 1 Learned District and Sessions filed its reply, wherein claim of Petitioner or his brother Akhtar Ali was not denied for their entitlement to appointment under deceased quota, however it was stated that Petitioner or his brother never moved any application for appointment under deceased quota, hence were not considered.

4. Learned Registrar / Respondent No 1 in its reply dated 08.11.2024 has stated that matter under litigation pertained to Respondent No 1 who has already filed its reply which may be treated as part and parcel of its reply. Respondent No 2 in its reply has stated that on direction of worthy Chief Justice a letter dated 03.08.2023 was circulated to all District and Sessions Judges of Sindh for strict compliance of policy in recruitment process of District Judiciary. Respondent No 1 prayed for dismissal of petition as Rule 11 – A of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules 1974 was declared ultra vires by the Honorable Supreme Court, pursuant to which Rule 11 – A stands omitted and Petitioner cannot seek appointment under deceased quota.

5. MrFida Hussain Shah Learned Counsel for the Petitioner contended that Petitioner is a layman, his family has been pursuing the case for appointment under deceased quota since the death of father of Petitioner but remained unheeded for unknown reasons. He contended that application of mother of Petitioner is pending decision with Respondent No 1 for last about 13 years but no action has been taken. He contended that during the intervening period many other people were appointed in District Judiciary and Petitioner cannot be penalized for inaction on the part of Respondents. He prayed for allowing instant petition.

6. Conversely Mr Liaquat Ali Shar Learned Additional Advocate General Sindh has strongly opposed the petition, on the grounds that the policy regarding employment of children of civil servants who died while in service was not in force as Government of Sindh has withdrawn Rule 10 – A and 11 – A from Sindh Civil Servants (Appointment, Promotion & Transfer), Rules 1974 (APT Rules) following the judgment of Honourable Supreme Court of Pakistan in the case of General Post Office, Islamabad and others v. Muhammad Jalal (Civil Petition No.3390 of 2021) reported as PLD 2024 SC 1276. In compliance to aforesaid decision, the matter was placed before Administration Committee of Sindh High Court wherein the policy for appointment under deceased quota was revised and it was decided that no one shall be entitled to claim for appointment on deceased/son quota. He prayed for dismissal of the Petition.

7. Heard Learned Counsel for the parties and perused material available on record.

8. Perusal of record reveals that case of the Petitioner for appointment under deceased quota is pending decision with Respondent No 1 since year 2012 for unknown reasons, as his father died on 16.01.2012 and bereaved family approached Respondents No 1 and 2 within nine months of the death of father of Petitioner. A right in favor of bereaved for appointment under deceased quota occurred at the time of death employee occurred and policy to accommodate the children of deceased employees remained in force until September 2024 when Rule 11 – A was omitted pursuant to judgment of Honorable Supreme Court. The subsequent developments in matters relating to appointment under 11 – A of APT Rules will not affect the rights Petitioner, as his deprivation from is result of inaction on the part of department without any fault of Petitioner.

9. The employment in a civil service under deceased quota was a beneficial legislature which provided a source of earning livelihood for the bereaved families; denial of such a right in a casual manner is never warranted under the law. It was the duty of administrative department in which deceased employee worked to provide all the legal rights accrued in favor of bereaved family on account of his death while in service. The father of Petitioner was a Chowkidar a low-capacity employee and Petitioner requested for job in grade 1 to 5 for which eligibility criteria under APT rules was permanent residence in the relevant area. The lethargic attitude of department to provide relief to the bereaved family available under the law cannot in any manner be attributed to the Petitioner, as departmentfailed to decide fate of application moved by mother of the Petitioner and even did not comply with orders passed by this Court in CPD 925 of 2013 filed by brother of Petitioner. The Department has acted with gross negligence in Petitioner’s case; he should have been given equal treatment as meted out to the children of other employees while became entitled to get benefit of Rule 11 – A of APT Rules during the above period. It is the duty of the concerned department to provide all benefits in time tobereaved family, provisions of law for employment under deceased quota were a beneficial subordinate legislation and cleared an ambiguity in the existing service rules regarding the appointment of children of employees who died during service or became incapacitated to perform the service further, thus the interpretation of such legislation would be construed in a liberal perspective.

10. The contention of Learned Additional Advocate General Sindh that the law regarding appointment under deceased quota is no more in existence after the judgment of Honourable Supreme Court in the case of General Post Office, Islamabad and others v. Muhammad Jalal (supra)has relevance for future, where an employee who dies or incapacitated to perform job after omission of pronouncement of judgment. It is pertinent to mention that Honourable Supreme Court has passed judgment in Muhammad Jalal case on 26.09.2024, wherein appointments without open advertisement, competition and merit of the widow/widower, wife/husband or child of civil servants in different grades, who died during service or became permanently disabled/invalidated/ incapacitated for further service and retired from service, were declared to be discriminatory and ultra vires to the Articles 3, 4, 5(2),18, 25(I) and 27 of the Constitution. The Federal and Provincial Governments were directed to withdraw such rules. The judgment of Honorable Supreme Court shall not affect the rights of appointment of those children of deceased or retired employee falling under the definition of Rule 11 – A of APT Rules, in whose favor such right occurred prior in time to the judgment of Honorable Supreme Court, as no judgment or order of any Court of Law operates retrospectively unless so directed. In present case, the father of Petitioner died while in service in year 2012 and such right occurred to him in year 2012 and subsisted until 26.09.2024. The Honorable Supreme Court in its judgment has protected the appointments made during the intervening period of 2002 to 2024, meaning thereby that the rights of a bereaved family for appointment under said provision of law during the above period shall remain unaffected.

11. The Honourable Supreme Court while dealing with a similar issue of appointment under deceased quota in the case of Zahida Parveen v. The Government of Khyber Pakhtunkhwa and others in C.P.L.A No.556-P/2024, decided on 17.03.2025 observed that the judgment passed by the Honourable Apex Court shall not operate retrospectively, in Para No.11 of the judgment, it has been held as under:

“11. For completeness of record, it is clarified that the judgment of this Court reported as General Post Office, Islamabad and others v. Muhammad Jalal (PLD 2024 SC 1276) has struck down Rule 10(4) of the Rules as being ultra vires the Constitution but has no application on appointments that have been already made. It is well settled that the judgments of this Court operate prospectively, unless declared otherwise. Therefore, the present case remains unaffected by the said judgment”.

12. We have carefully examined the case of Petitioner; in our view denial of job to the Petitioner under deceased quota would be an act of discrimination, as it appeared from record that the petitioner was not dealt in accordance with law, which violated his fundamental rights enshrined under articles 4, 5, 9, 25 and 27 of the Constitution. Case of the petitioner was pending adjudication before competent authority for consideration since 2012 and by that time policy regarding employment of children of ex-employees, who died while in services or retired being incapacitated to further perform services was in force, therefore, the same shall not be affected in any manner by the Judgment of Honorable Supreme Court in the case of Muhammad Jalal Supra.

13. The discussion made herein above leads us to conclusion that the petitioner has made out a case for indulgence by this Court under its writ jurisdiction vested under article 199 of the Constitution for issuance of writ against Respondents for inaction and attitude of indifference on their part. We are of the view that case of Petitioner for appointment under deceased quota requires consideration in the light of the policy and rules applicable at the time when the petitioner applied for appointment. We therefore allow this petition and direct the Respondents to consider the case of Petitioner for appointment in accordance with law and applicable rules and decide it within a period of 3 months from date of this order.

14. Since the Petitioner has been running from pillar to post and agitating his grievance before the Department for last about more than 12 years and if by passage of time he has become over age for appointment, his upper age limit shall be deemed to have been condoned and relaxed and he shall not be denied appointment on this score as he is not a contributory towards delay in deciding the fate of his case.

Office is directed to send copy of this Order to Respondents No 1 and 5 for compliance. The Petition stands disposed of along with listed applications.

JUDGE