2023 P L C (C.S.) 1399
[Balochistan High Court]
Before Rozi Khan Barrech and Muhammad Aamir Nawaz Rana, JJ
ABDUL JABBAR
Versus
GOVERNMENT OF BALOCHISTAN, FORESTS AND WILDLIFE DEPARTMENT,
QUETTA, through Secretary and 4 others
Constitution Petition No.96 of 2023, decided on 21st March, 2023.
Contract Act (IX of 1872) ---
----S.23 ---Specific Relief Act (I of 1877), S. 21 ---Civil service ---Contracts not specifically
enforceable--- Scope ---Any agreement, which stipulates selling of public office posts in lieu
of land would be illegal, void and shall not create any right ---In case any such illegal
contract has been concluded, apart from being void the same is also not enforceable in view of S. 21 of the Specific Relief Act, 1877---Intention of the legislature is very clear; where under a contract, the obligation is cast upon a person to perform continuously a particular duty for a period longer than 3 years from the date of agreement, the same cannot be specifically enforced ---Appointments on public offices are to be made strictly on merits, and
such public offices are not supposed to be sold under any pretext.
Hameedullah and others v. Headmistress, Government Girls School, Chokara District
Karak and others 1997 SCMR 855 rel.
Ameenullah Kakar for Petitioner.
Date of hearing: 6th February, 2023.
ORDER
MUHAMMAD AAMIR NAWAZ RANA, J. ----The petitioner is a resident of Mahal
Kala Chena, Mouza Kach, District Ziarat. According to petitioner, his area is worldwide famous for Juniper trees, and in order to protect the Juniper trees as well as wildlife, the Government of Balochistan, through Forest and Wildlife Department, had taken certain initiatives to establish nurseries, parks, water ponds as well as schools. The petitioner asserts that his tribe i.e. Panezai Tribe had given their lands free of cost to the Forest Department with the understanding that if certain posts are created in the Forest Department in District Ziarat then the candidates of Panezai Tribe would be appointed; in this regard, according to petitioner, an agreement dated 27/04/2000 was executed by the uncle of petitioner, Malik Nooruddin, and representative of Forest Department, Government of Balochistan.
The petitioner further asserted that in the year 2007, certain vacancies were advertised
by the Forest Department, and in view of the ibid agreement the candidates from Panezai
Tribe were appointed.
The petitioner averred that certain posts in District Ziarat recently have been
announced by Forest Department duly advertised in different newspapers which include the posts of Tube Well Operator, Driver, Security Guard, Waiter, Game Watcher, Mali, and Chokedar, but in spite of the fact that candidates from Panezai Tribe have applied for the said posts, they are not being considered on priority basis, so being aggrieved, the jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has been invoked by the petitioner by filing Constitution Petition which carries the following prayer:
"It is, therefore, respectfully prayed that this Hon'ble Court may be pleased to declare the action of respondents of not considering the candidates of Mohal Kala Chena, Mouza Kach, District Ziarat in the appointment process on different posts advertised vide PRQ No.3018 22 -03-2022, PRQNo.3097 01- 04-2022, PRQ No. 3153 06- 04-
2022, PRQ No.3807 16- 05-2022, PRQ No.3937 20- 05-2022, PRQ No.3951 21- 05-
2022 and interview calls vide publication PRQ No.4182/ 01- 06-2022 to be illegal, as
such, not maintainable, consequently direction may be issued to respondents to honour the commitment as well as agreement dated 27/04/2000 and consider the candidates of Mohal Kala Chena, Mouza Kach, District Ziarat in the appointments with any other relief and cost of the proceedings throughout in the interest of justice."
2. The learned counsel for the petitioner contends that since huge chunk of property,
which exclusively belongs to Panezai Tribe of Ziarat, had been given to the Forest
Department free of cost, therefore, the petitioner's tribe had preferential right over the advertised posts in District Ziarat by Forest Department.
Arguments heard, and relevant record perused.
3. We have gone through the contents of the alleged agreement dated 27.04.2000 but
could not find any such condition which could entitle the petitioner for the relief claimed for vis-a-vis appointments on different Government posts.
4. Even otherwise, any agreement, which stipulates "selling of Public Office" in lieu of
land would be illegal, void and shall not create any right. Reliance in this regard is being placed upon Section 23 of the Contract Act, 1872:
23. What considerations and objects are lawful or what not. - The consideration or
object of an agreement is lawful, unless,-
it is forbidden by law; or
is of such a nature that, 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
the Court regards it as immoral, or opposed to public policy
In each of these cases, the consideration or object or of an agreement is said to be
unlawful every agreement of which the object or consideration is unlawful is void.
5. In case any such illegal contract has been concluded, same apart from being void is
also not enforceable in view of Section 21 of the Specific Relief Act, 1877. The Section 21(G) provides as under:
21. Contracts not specifically enforceable
The following contracts cannot be specifically enforced: -
(a) ......
(b) ......
(c) ......
(d) ......
(e) ......
(f) ......
(g) A contract the performance of which involves the performance of a continuous duty extending over a longer period than three years from its date;
The intention of the legislature in ibid Section is very clear; where under a contract,
the obligation is cast upon a person to perform continuously a particular duty for a period
longer than 3 years from the date of the agreement, the same cannot be specifically enforced. In present case, the petitioner is alleging that agreement between Panezai Tribe and Forest Department was executed for all times to come and for all generations to follow, this claim itself is not only illogical, but any such understanding or agreement is ex- facie void ab -initio.
6. The relief sought by the petitioner on the basis of alleged agreement is devoid of any
legal backing, as appointments on Public Offices are to be made strictly on merits, and such Public Offices are not supposed to be sold under any pretext. Reliance in this regard is being placed upon the case of Hameedullah and others v. Headmistress, Government Girls School, Chokara District Karak and others
1, the relevant excerpt is reproduced herein below for ready
reference:
"As regards the policy of making appointments against land grant, we find that this amounts to, in fact, sale of public office for property. Not only it is against the Constitutional Law applicable to public office but is not conducive to public interest. What could be done within the framework of the law was to create a margin of
preference for those who make such grants, other conditions of eligibility and
suitability and fitness being equal. We, therefore, overrule this practice prospectively,""
In the wake of above deliberations, the petitioner has not been able to point out
violation of any of his fundamental right, the alleged agreement is neither valid nor enforceable, therefore, petitioner is not entitled for any of the relief which he has sought, as such, the petition being devoid of merits is dismissed in limine.
SA/93/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,
let us know.