ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

C.P.D- No.764 of 2008.

DATE

OF HEARING

ORDER WITH SIGNATURE OF HON’BLE JUDGE

FOR KATCHA PESHI.

19.02.2010.

Mr. Syed Kazim Raza Shah advocate for petitioner along with petitioner.

Mr. Abdul Hamid Bhurgari, Addl. A. G.

-.-.-.-.-.-.-.-

The facts as pleaded in the petition are that the petitioner’s father one Roshanudin Bhutto was employed in the Education Department as Primary School Teacher who died during service in 1986. It is claimed in the petition that on 27.12.2001, the petitioner was appointed as Primary School Teacher and petitioner worked from January 2002 to August 2002 and was being remunerated accordingly. It is further stated in the petition that the petitioner’s services as verbally terminated. Thereafter petitioner claimed that he knocked at various doors and ultimately on 17.11.2008, he filed this Constitutional Petition.

Comments have been filed by the respondents. It is stated in the comments that rule regarding appointment of son/daughter of a civil servant who dies during service was (Rule 11-A) added in the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 in September 2, 2002 and therefore at the time of alleged appointment of the petitioner there was no such rule. It was specifically denied that the petitioner was appointed as Primary School Teacher. This denial is made by the EDO, Education Jacobabad, by the District Officer, Education Jacobabad as well as by Secretary Education and Literacy Department, Government of Sindh.

On 18.12.2009, the petitioner was required by this Court to satisfy the Court on the point of latches because according to him his employment was verbally terminated in August 2002 and he slept over his rights for more than six years and chose to file petition on 17.11.2008. On 11.2.2010, the petitioner relied upon 2004 SCMR 400 Farzand Raza Naqvi and 5 others versus Muhammad Din through legal heirs and others and sought time to assist the Court on the question of latches and also on the question that since father of the petitioner expired in 1986 whether at that time when his father expired there was any rule or practice having force of law that son of employee who expired in service is to be accommodated. Learned counsel relied upon Masooda Begun through Legal Heirs versus Government of Punjab through Secretary Forest, Lahore and 9 others PLD 2003 Supreme Court 90 to contend that latches cannot be equated with statutory bar of limitation and where equity favours a person latches should not be hurdle in his way. Learned counsel also placed on record copies of orders issued on 12.12.2007 by Secretary Government of Sindh, Education and Literacy Department by which orders Pervez Ahmed and one Zubair Ahmed have been reinstated in service. Learned counsel submitted that same benefit should be, on the principle of equity and equality be extended to him.

Mr. Abdul Hamid Bhurgari, learned Addl. A. G pointed out firstly the bar of latches, secondly non existence of rule at the time of death of father of the petitioner as well as on the date when the petitioner claims to have been taken in employment and thirdly specific denial by the functionaries of Government. Regarding two letters placed on record by Mr. Shah, Mr. Bhurgari stated that the letters do not reveal as to what were the circumstances of said Pervez Ahmed and Zubair Ahmed and therefore nothing in the letters can be read to conclude that said two persons were employed as children of the deceased or had remained silent for six years.

We have considered the submissions made by the learned counsel and have also gone through the record.

There is no denying of the fact that Rule 11-A was introduced in the Sindh Civil Servants Rule 1974 vide Notification dated September 2, 2002. The Rule is prospective in nature and therefore benefit of the Rule cannot be extended to any person taken in employment prior to September 2002. Therefore, in any case the petitioner cannot claim benefit of Rule 11-A. However, it does not mean if a person is taken in employment by giving similar benefit prior to commencement of Rule his appointment would be ipso facto illegal.

On the question of latches the learned counsel relied upon firstly Farzand Raza Naqvi’s case. Facts of that case were that predecessor-in-interest of petitioner being owner of the house sought ejectment of the tenant from that house and during the execution of the ejectment order, also claimed possession of another house taking plea that it was part of the house in respect of which ejectment had been ordered. Respondents resisted the execution of the order to the extent of his second house through an objection petition and the executing Court held that two properties to be distinct and separate and disposed of the objection petition accordingly. The predecessor-in-interest of petitioners filed an appeal against the order of the Executing Court and on its dismissal Civil Revision was filed in the High Court which was also dismissed vide judgment dated.06.4.1979. Thereafter Civil Suit was filed seeking declaration that second house was part of first house and was not an independent property. The suit was dismissed. An appeal was filed but thereafter appeal was withdrawn and fresh suit was filed in which an ex parte decree was passed. Application for setting aside of the ex parte decree was dismissed. Instead of availing remedy of appeal, the respondent preferred to enter execution of decree through an objection petition but he remained unsuccessful. Successors in the interest of respondents filed writ petition. It was contended that predecessor-in-interest due to paralysis attack remained confined to bed and could not pursue the matter effectively with the result that the ex parte decree as well as order of dismissal of the application for setting aside the ex parte decree could not be challenged by him through an appeal. The writ petition was allowed by the High Court. In the Supreme Court it was contended that the writ petition should have been dismissed on latches. The Supreme Court observed as under:

“The dismissal of writ petition on the sole ground of laches depends upon the facts and circumstances of each case, but there can be no exception to the rule that the delay in seeking the remedy of appeal, review or revision beyond the period of limitation provided under the statute in absence of reasonable explanation, cannot be condoned and in the same manner if the remedy of writ petition is not availed within reasonable time, the interference can be refused on the ground of laches.”

“……..The laches in simplest form mean failure of a persons to do something which should have been done by him within a reasonable time and is not synonymous with delay along but it can be worked out to the disadvantage to another person in the matter of his right. In suitable cases, the Court in its discretionary jurisdiction, subject to the offering of reasonable explanation, can condone the delay in filing an appeal, review or revision as the case may be and similarly, can also ignore the delay if any in filing the writ petition in the interest of justice. Din Muhammad, predecessor-in-interest of respondents, after filing written statement failed to appear in Court due to his disability either in person or through his representative and as a result thereof, an ex parte decree was passed against him in the suit. The explanation offered by the respondents of non-representation of Din Muhammad was that he due to the physical disability could not pursue the case and file the appeal, would be a valid ground to condone the delay. The respondents in proof of the ailment of Din Muhammad placed on record, the Medical Certificate of the doctors, who have been providing him treatment and the High Court having found the same sufficient evidence instead of dismissing the writ petition on the ground of laches, decided it on merits. We while taking into consideration the nature of ailment of Din Muhammad, predecessor-in-interest of respondents and the dispute between the parties, are of the view that despite of non-representation of defendants in the suit, the trial Court was under legal obligation to attend the important question relating to the maintainability of the suit and the genuineness of the claim of plaintiff arising out of the pleadings of the parties, and decide the suit on merits to avoid any injustice to any party in his absence. The interest of administration of justice always demands that one should not be allowed to get any benefit in absence of his opponent to which he is not entitled in law.”

In Masooda Begum’s case facts were that land in possession of Forest Department was allotted to displaced persons from Jammu and Kashmir. The allotees sold part of area of land to different persons including one appellant before the Supreme Court. Subsequently on an application moved by the Divisional Forest Officer, Sialkot, the Settlement Commissioner cancelled the allotment vide order dated 25.3.1972. Appeal against cancellation was filed before the Chief Settlement Commissioner, who dismissed the appeal vide order dated 31.10.1977. Writ petitions followed which were allowed by the Single Judge of the High Court vide judgment dated 6.5.1996. The Province of Punjab, through the Forest Department went to the Supreme court but its petitions were dismissed by the Supreme Court on 18.3.1997. In the meanwhile, the Deputy Commissioner/Collector in pursuance of order of the Chief Settlement Commissioner directed cancellation of mutation and the concerned Revenue Officer after canceling it incorporated name of Provincial Government in the column of ownership in the revenue record. The appellant before the Supreme Court i.e Masooda Begum’s case was also affected by the order of the Chief Settlement Commissioner but they neither filed a separate petition nor became party in the writ petition earlier decided by the High Court on 06.5.1996. However, they on coming to know about the subsequent development filed a writ petition against the order of Chief Settlement Commissioner. This writ petition was filed in 1997 and plea was taken that delay in filing the writ petition would not affect their rights in the land already recognized in the judgment of the High Court passed in 1992 and that only a formal order of enforcement of said rights was to be passed. It was further stated that Masooda Begum who had filed appeal before the Chief Settlement Commissioner for lack of knowledge of dismissal of her appeal remained under the impression that same was still pending but later on upon coming to know about the acceptance of the writ petition in 1992, had filed this writ petition in 1996. The Supreme Court held as under :

“The appellant sought a simple declaration in their writ petition the light of judgment in Writ Petitions Nos.115-R of 1992 in which, the order challenged by them had already been declared illegal and to have been passed without lawful authority. This is the settled principle of law that the bar of laches cannot be equated with statutory bar of limitation as the laches operate in equity and in case of laches, the dictates of justice and equity are to be weighed as the legitimate rights cannot be denied on the ground of laches unless it is found that it will cause injustice to the opposite party but a person can be non-suited on the basis of laches if due to his negligence, rights were created in favour of opposite-party. The order affecting the rights of a person besides being illegal if is also found unjust and improper, notwithstanding the laches, can be set aside by the High Court in writ jurisdiction as the injustice cannot be allowed to be perpetuated on he technical grounds. The non-suiting a person in discretionary jurisdiction of writ petition merely on the ground of laches without determining the nature of his right may cause injustice to him, therefore, the discretion should not be exercised by the Court in aid of injustice and should examine the dictates of justice in claim of each party in addition to the examination of law and the question of jurisdiction as an obligation. There is sufficient case-law on the question of condonation of laches of more than a decade and the dismissal of the writ petition on the ground of delay of few months, therefore, no hard and fast rule can be laid down for application of the principle of laches. In the present case, we in the light of peculiar facts of the case, find that the judgment of the High Court would not demonstrate that the relief being sought by the appellants, if would have been granted to them, it would be an action in aid of injustice. The case of the appellants being not distinguishable to that of the petitioners in Writ Petitions Nos.115-R and 116-R of 1992 on merits, the refusal of same to them by dismissing their writ petition on the ground of laches would amount to defeat the concept of equitable justice on technical grounds.”

Both these cases are clearly distinguishable from the case of the present petitioner. In Farzand Raza Naqvi’s case what prevailed with the Supreme Court was nature of ailment of Din Muhammad predecessor-in-interest of the respondents and what prevailed with the Supreme Court in Masooda Begum’s case was earlier granting of writ petition No.115 of 1992. In the present case, the position is totally different. There is no history of previous litigation and there is none of either the petitioner or predecessor-in-interest (there is no predecessor-in-interest) being in capacitated in any manner. Therefore the petition suffers from laches and is liable to be dismissed on this ground.

As far as two orders passed in respect of Pervez Ahmed and Zubair Ahmed by Secretary, Government of Sindh are concerned the orders merely that they have been reinstated in services. There is no statement as to when they were dismissed and what transpired in the intervening period and more over these letters are produced in this petition at the time of final arguments while the petition was filed as long ago as 17.11.2008. Mr. Bhurgari, learned Addl. A. G is correct that in the absence of information regarding these aspects no presumption can be drawn. This Constitutional Petition for the above reasons is dismissed.

However, the petitioner is at liberty to institute appropriate proceedings for establishing that the appointment letter claimed by him to have been issued by competent authorities were so issued details of beneficiaries of those letters and what would be consequently legal effect on such a determination.

Judge