2020 P L C (C.S.) 548
[Balochistan High Court]
Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ
BIBI MARYAM and 8 others
Versus
GOVERNMENT OF BALOCHISTAN, through Secretary Education and 9 others
C.P. No.537 of 2017, decided on 13th November, 2019
Contract Act (IX of 1872) ---
----S.23 ---Civil service ---Donation of land for construction of school in consideration of
employment ---Scope ---Petitioners applied for appointment against vacant posts of Class -IV
and appeared in test and interv iew but they were not recommended by District Recruitment
Committee ---Complaint by the petitioners before Complaint Redressal Cell was accepted but
they were not appointed against the posts in question---Contention of petitioners was that
they had donated land to the school and on this count they were entitled for appointment ---
Validity ---No post could be filled on the recommendation of private person--- Alleged
agreement being not according to law had no legal sanctity--- Donation of land in
consideration of employment would amount to sale of a public office ---Petitioners could not
claim specific performance of void agreement ---Constitutional petition was dismissed, in
circumstances.
Haeedullah v. Head Master 1997 SCMR 855 rel.
Jamil Ramzan and Jamila Kakar for Petitioner.
Abdul Latif Kakar, A.A.G. for Respondents.
Date of hearing: 7th November, 2019.
JUDGMENT
ABDUL HAMEED BALOCH, J. ----This judgment disposes of Constitutional
Petition No. 537 of 2017, whereby the petitioners prayed as under:
"In the li ght to submission made above, the recommendation made by selection
committee may be declared as void illegal and without jurisdiction, and same may be discarded, and merits may kindly be ensured, in the interest of justice".
2. Brief facts of the case are that the Education Department Balochistan through
Advertisement in daily 'Jang' Quetta on 29th December, 2014 invited applications for vacant
posts of different categories from eligible candidates of different districts of the province;
that the petitioner s pursuant to the said advertisement also applied from District Noshki for
vacant post of class -IV and appeared in the test and interview but their names have not been
recommended by district recruitment committee (DRC) for appointment; that the petitioner
No.7 has submitted an application to the CRC; that the CRC entertained the application vide
Miscellaneous Appeal No.002/2015 and vide order No.450- 64, dated 16th October, 2015
recommended as under:
"Since the applicants have donated both the lands of Gir ls and Boys Schools;
therefore, they may be given preference over other candidates for appointments in
Govt. Girls High School and Govt. Boys Middle School, Killi Imam Bukhsh Khaisar, District Nuskhi."
The respondent No.1 vide letter No.918- 20 dated 18th March 2017 directed to
respondent No.3 to examine the matter personally; that in the light of recommendations of CRC, the petitioner No.7 also submitted a Complaint No.823/2016/PMS/194- 96 before the
Provincial Ombudsman Balochistan Quetta; that the Provinc ial Ombudsman vide letter
No.15th February, 2017 asked the respondents Nos.1 and 2 for implementation of order/Decision No.002/2015 dated 26.08.2015 passed by the CRC Quetta, but still the
grievances of the petitioners have not been redressed, as such the petitioners have invoked
the jurisdiction of this court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
3. Learned counsel for the petitioners contended that the petitioners applied for the six
vacant post of Girls High School and Boys High School of Killi Imam Bakhsh and appeared in the test and interview but the DRC did not recommended their names; that feeling
aggrieved the petitioners filed an appeal before the CRC, which was allowed and the petitioners were recommended for appointment; that the petitioners have donated the lands of both the Boy and Girls schools and in this regard an agreement had been signed with the education authority, therefore on this count the petitioners are entitled for appointment in lieu of land.
4. Learned AAG contended that the petitioners' names have not been recommended by
DRC and the petitioners could not claim appointment in lieu of land; that the agreement for appointment in lieu of land has no legal sanctity.
5. We have heard the learned co unsel for the parties at reasonable length, perused the
documents appended with memo of petition as well as the reply submitted by the official respondents. The perusal of record reveals that the respondent No.2 through Advertisement in daily 'Jang ' Quett a on 29th December, 2014 invited applications for vacant posts of
different categories from eligible candidates of different districts of the province. The Chairman District Recruitment Committer after conducting test and interview, recommended the names o f successful candidate for appointment, whereas the name of petitioners did not
appear in the list. The petitioner No.7 filed an appeal before the DRC, which was decided on 16th October, 2016 with the recommendation as under:
1. The instant recommendation s of District Recruitment Committee in favour of
Government Girls High School and Government Boys Middle School, Killi Imam
Bakhsh Khaisar, District Nushki may be cancelled.
2. The applicants, being resident of the same village, may be recommended against
the post of minority as no minority community lives in Kishingi Union Council.
3. The female candidate of the applicant's may be appointed in Girls High School instead of any male candidate.
4. Since the applicants have donated both the lands of Girls a nd Boys Schools;
therefore, they may be given preference over other candidates for appointment in Govt. Girls High School and Govt. Boys Middle School, Killi Imam Bakhsh Khaisar, District Nushki. The recommendation may accordingly be revised."
6. The recor d transpires that the petitioners claimed for appointment on the vacant posts
of Class -IV of Girls High School and Middle School Killi Imam Bakhsh Khaisar Kishingi,
District Noshki, which were constructed on the land which was donated by Azizullah and Imam Bakhsh. The petitioners stated that at the time of donating the land it was mutually
settled between the land owners and government officer that the category of Class -IV
employee will be filled through recommendations of land owner. The contention of
petitioners has no force. The agreement was not according to law because no post can be
filled on the recommendation of private person. Such agreement has no legal sanctity. It is
illegal and against the public policy. The petitioners in para No.5 of petition stated that
earlier the agreement was abiding by the education department. It means that on the basis of referred agreement no one has a right to be appointed except on recommendation of the donor of the land. Such exercise if allowed amounts to violation of Article -25 of the
Constitution of Islamic Republic Pakistan, which reads as under:
25. Equality of citizens. -(1) All citizens are equal before law and are entitled to equal
protection of law.
(2) There shall be no discrimination on the basis of sex.
(3) Nothing in this Article shall prevent the State form making any special provision for the protection of women and children.
7. If the alleged agreement is abided the landless citizen would be deprived of
expectation for appointment as Class -IV employe e. The agreement of donated land in
consideration of employment is tantamount to sale the public office, which is completely illegal. Section 23 of the Contract Act, 1872 being applicable is reproduced as under:
23. What consideration and objects are lawf ul and what not.
The considerate or object of an agreement is lawful, unless it is forbidden by law; or,
Is of such a nature that, if permitted, it would defeat the provisions of any law; or
is fraudulent; or
involves or implies injury to the person or property of another; or
in each of these cases, the consideration or object of an
agreement is said to be unlawful. Every agreement of which
the object or consideration is unlawful is void."
8. The Hon' able Apex Court in numbers of cases held that the appointment should be
made on merits in accordance with law. In this regard reliance is placed on the case of
Haeedullah v. Head Master 1997 SCMR 855 whereby it has been held as under:
6. The learned counsel while referring to Munawar Khan ( supra) contended that the
appellant is entitled to a margin of preference as it is available of those who make such grant. Such observation has been made in the said judgment, but it is restricted with the condition that amongst all the candidates' eligibility, suitability and fitness are equal. It is only on this condition that the donor or his nominee as compared to other candidates if equally eligible, suitable and fit for the post, may be given preference. In such circumstances, the appointing authority may use the discretion in
favour of the donor, but such preference will not be in performance of the agreement. There is nothing in evidence on record to show that the appellant was equally eligible, suitable and fit for the post as compared to respondent No.5. The appointment is to be
based on merits and if on merits the donor or his nominee is at par with other
candidates, only then preference can be given to him. By the observation referred
hereinabove, the donor or his nominee is not vested with any ri ght to claim the post.
For the above reasons, the petitioners cannot claim specific performance of the void
agreement, as such the petition is dismissed with no order as to costs.
ZC/163/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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