2017 P L C (C.S.) 275
[Balochistan High Court (Sibi Bench)]
Before Muhammad Ejaz Swati and Abdullah Baloch, JJ
MUHAMMAD HUSSAIN
Versus
The SECRETARY, GOVERNMENT OF BALOCHISTAN and 3 others
Constitutional Petition No.(S)111 of 2015, decided on 25th October, 2016.
Constitution of Pakistan ---
----Art. 199--- Constitutional petition --- Laches, principle of ---Applicability ---Civil service ---
Appointment in place of deceased civil servant ---Scope ---Father of petitioner died in the year
1996 and at that tim e petitioner was of tender age ---Respondent was appointed in the year 1998--
-Petitioner had not challenged the competence of appointment of respondent but asserted that he
had preferential right ---Constitutional petition was filed after lapse of 18 years w hich suffered
from laches ---Question of laches in filing constitutional petition could not be ignored subject to
facts and circumstances of each case---High Court could refuse to exercise its discretion
considering the conduct of the parties and change in situation ---Bar of limitation would operate
as a legal bar for grant of remedy whereas laches would operate as bar under equity ---No
explanation had been put forth by the petitioner to explain the inordinate delay of 18 years in
moving the petition before the High Court ---Constitutional petition was liable to be dismissed on
the ground of laches ---Petitioner had claimed that service of respondent be terminated and he be
appointed on his place ---Respondent had served for 18 years and order of his appointment had
taken legal effect ---Certain legal right had been created in favour of respondent and same could
not be withdrawn through constitutional petition which had been filed after 18 years of
unexplained delay ---Constitutional petition was dismissed in circu mstances.
PLD 2007 SC 472; 1994 SCMR 1024; 1972 SCMR 201 and Chief Secretary Government
of Punjab v. Malik Asif Hayat 2011 SCMR 1220 rel.
Muhammad Iqbal Marghzani for Petitioner.
Naseer Ahmed Bangulzai, Addl. A.G. for Respondents Nos.1 to 3.
Muhammad N asir Mari for Respondent No.4.
Date of hearing: 8th October, 2016.
JUDGMENT
ABDULLAH BALOCH, J. --- This judgment disposes of Constitutional Petition
No.(S)111 of 2015 filed by the petitioner Muhammad Hassan Khan son of Hotan, praying for his
appointment on the post of Levies Sepoy, which was vacated due to death of his father.
2. Facts of the case are that the petitioner's father namely Hotan was a Sepoy in Federal
Levies and died during the service i.e. 27th December 1996. It is averred in the petition t hat as
per Levies Rule after the death of his father, the petitioner was entitled to be appointed in place
of his late father, but instead the respondent No.4 was appointed against the vacant post by the
respondent No.2, hence this petition has been filed.
3. The official respondents filed their parawise comments by stating that the petition suffers
from laches as the same has been filed after lapse of 18 years as the private respondent No.4 was
appointed in the year 1998 and presently he has completed major portion of his service. Besides,
the Services and General Administration Department issued notification for appointing the
widow or one of the child of deceased Government servant in the year 2007, while the father of
petitioner was died much prior to the said policy, thus in such view of the matter the petitioner is
not entitled to be appointed on the post in question. It is further averred that at the time of death
of his late father, the petitioner was tender -age and could not be appointed in place of his late
father.
4. The private respondent while filing his counter affidavit conceded the above and further
added that his father was also serving as Levies Sepoy and after his death he was appointed in
place of his late father. It is further stated that the Levies Thana is situated in the area of
Telingokh Tehsil Marwan and this area belongs to Kungrani and Rahmkani tribes, while the
petitioner has no concern with the areas as he belongs to Loharani tribe and resident of Lasayzai
Kohlu and distance of bot h areas is about 180- KMs. The respondent No.4 further added that two
brothers of the petitioner has already been appointed as Levies Sepoy in their own areas i.e.
Levies Thana Lasayzai; while the respondent No.4 was appointed in Levies Thana Telingokh,
which is existed upon his land in his village, thus being time barred petition, the same is required
to be dismissed.
5. Learned counsel for petitioner contended that the father of the petitioner was employ of
Federal Levies at district Kohlu and died during the course of service i.e. 27th December 1996;
that as per rule and regulations of Federal Levies the petitioner is entitled to be appointment on
the same post, but to the contrary the respondent No.4 namely Sakwan son of Hazar Khan was
appointed, hence in this manner the petitioner has been deprived from his legal right; that
numerous letters were issued by the authorities in favour of the petitioner, but the same were not
given due consideration.
6. Learned Additional A.G. assisted by the learned counsel for the private respondent
mainly averred that the instant petition suffers from laches as the same has been filed after lapse
of 18- years; that the private respondent was accommodated in place of his late father and in this
manner no legal or guaranteed r ights of the petitioner have been infringed, whereas after the
death of his father, the two brothers of the petitioner have been accommodated in the Levies,
hence the petition being not maintainable deserves dismissal.
7. We have heard the counsel for part ies and perused the available record. The petitioner
claimed his right of the (impugned) appointment on the strength of the rule and regulation of the
Federal Levies Rules, 1938 (Instruction Regulatory Federal Levies). Admittedly the father of the
petition er died in the year 1996, and at that time, the petitioner was of tender age. The respondent
was appointed in the year 1998, the petitioner has not challenged the competence of the
appointment of the respondent No.4, but asserted that he had preferential r ight. To invoke his
said right, the instant petition had been filed after lapse of 18 years, which suffers from laches.
The question of laches in filing Constitutional Petition has to be given serious consideration and
unless a satisfactory and plausible explanation is forthcoming for delay in filing the petition, the
same cannot be ignored subject to facts and circumstances of each case. The consideration upon
which, the court refuses to exercise its discretion where the petition is delayed is not limitation,
but the matter relating to conduct of the parties and change in situation. Bar of limitation
operates as a legal bar for grant of remedy whereas laches operates as bar under equity. Dictates
of justice and equity and balance of legitimate rights are ke pt in view in applying the principle of
laches. Reference is made to the judgment reported in PLD 2007 SC 472.
8. The concept of laches in service matters is different from that of ordinary litigation as
held in the judgment reported in 1994 SCMR 1024.
9. In the instant case, no explanation has been put forth by the petitioner to explain for the
inordinate delay of 18 years in moving the High Court under Article 199 of the Constitution of
Islamic Republic of Pakistan, his petition is liable to be dismissed on the ground of laches.
Reference is made to the case reported in 1972 SCMR 201.
10. The other aspect of the matter in the instant case is that the petitioner has asserted his
right of appointment in respect of post, whereon the respondent No.4 was appointed in the year
1998, in such circumstances, the petitioner claimed that service of the respondent be terminated
and he be appointed on his place. In the facts and circumstances of the instant case, the
respondent, who was appointed in the year 1998 and so far he served for 18 years and order of
his appointment has taken legal effect and certain legal rights have been created in his favour and
such right cannot be withdrawn through the instant petition, which had been filed after 18 years
of unexplained del ay. Reference in this respect is to be made to the case of Chief Secretary
Government of Punjab v. Malik Asif Hayat, 2011 SCMR 1220, wherein the Hon'ble Supreme
Court of Pakistan observed as under:
"There can hardly be any dispute with the rule that apart from the provisions of section
21 of the General Clauses Act, locus poenitentiate, i.e. the power of receding till a
decisive step is taken, is available to the Government or the relevant authoritie s. In fact,
the existence of such a power is necessary in the case of all authorities empowered to
pass orders to retrace the wrong steps taken by them. The authority that has the power to
make an order has also the power to undo it. But this is subject to the exception that
where the order has taken legal effect, and in pursuance thereof certain rights have been
created in favour of any individual, such an order cannot be withdrawn or rescinded to
the determent of those rights.
In view of the above, the instant petition is dismissed.
ZC/73/Bal Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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