--Art. 199--Appointment of patwaries--Appointment of Respondents Nos. 5 to 14 was challenged by petitioners-vested right to appointment--Extra ordinary Jurisdiction--

 PLJ 2021 Peshawar (Note) 117

Constitution of Pakistan, 1973--

----Art. 199--Appointment of patwaries--Appointment of Respondents Nos. 5 to 14 was challenged by petitioners-vested right to appointment--Extra ordinary Jurisdiction--Direction to--contention of counsel for petitioners that petitioners had to be directly appointed against posts of patwaris on basis of entries in patwar register without written test and interview has no force--Mere entries in patwar register would not give any vested right to petitioners to be appointed without prescribed procedure provided by law i.e written test and interview--Petitioners could not make out a case for interference by High Court in exercise of its extraordinary Constitutional jurisdiction--Respondents are directed to initiate process of filling up vacant posts at earliest strictly in accordance with law applicable thereto--Appointment of Respondents Nos. 5 to 14 as Patwaris has been challenged, but at time of arguments, counsel for petitioners did not seriously challenged same and stated that petitioners are only interested in their own appointment--Court is not inclined to disturb appointment of Respondents Nos. 5 to 14 as there is no fault on their part and more so, they have served respondents for more than three years without any complaint from Department.   

                                                                 [Para 8, 9 & 12] A, B, C & D

Mr. Muhammad Yousaf Khan, Advocate for Petitioners.

Mr. Kamran Hayat Miankhel, Additional A.G. for Respondents Nos.  1 to 4.

Date of hearing: 27.11.2019.

 PLJ 2021 Peshawar (Note) 117
[D.I. Khan Bench]
Present: Syed Muhammad Attique Shah and Sahibzada
 Asadullah
 Asadullah, JJ.
MUHAMMAD YAQOOB and another--Petitioners
versus
GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Land Revenue Department, Peshawar and others--Respondents
W.P. No. 340-D of 2016 with C.Ms. Nos.  313-D of 2016 and
713-D of 2019, decided on 27.11.2019.

Judgment

Syed Muhammad Attique Shah, J.--Through this single judgment, we propose to dispose of instant W.Ps. Nos. 340-D of 2016 and W.Ps. Nos. 681-D of 2016 and 503-D of 2019 as common question of law is involved in all the three petitions.

2. In all the three petitions, the petitioners seek issuance of writ directing the respondents for their appointment as Patwaris according to register of Patwari candidates, however, in W.P.No. 340-D of 2016, the petitioners have also challenged the appointment of Respondents Nos. 5 to 14 as Patwaris.

3. In Writ Petitions Nos. 340-D of 2016 and 681-D of 2016, the respondents have filed their para-wise comments.

4. We have heard the arguments of learned counsel for the parties and perused the available record.

5. The most point for consideration before this Court is as to whether appointments of Patwaris would be made in accordance with the provisions of Chapter 3 of the Land Records Manual or the Government of NWFP Revenue and Estate Department (Tehsildar, Naib Tehsildar/Subordinate Revenue Service) Rules, 2008?

6. Paragraph 36 of Land Record Manual (Manual) being relevant in the instant matter is reproduced below for ready reference:-

“(1) For each sub-division, a list of all Patwar Pass persons shall be maintained by the Sub-Divisional Collector/Political Assistant in Form P-1 given in Appendix ‘G’ with a view to have ready information about the availability of eligible persons in the Sub-Division to facilitate filling up the vacancies. However, the appointment of Patwaris shall be made strictly in accordance with the Service Rules and the Recruitment policy as may be applicable at the relevant time.

(2) Maximum educational qualification for the Pawari is Matric/Secondary School certificate. The names of only those persons shall be enrolled, who are bona fide residents of the concerned Sub-Division.

(3) The names of the eligible persons shall be added to the list as and when the result of the Patwar Examination is received and no eligible person shall be refused enrolment.

(4) The aforesaid list shall be verified and up-dated by the Collector concerned at least once in a year so as to exclude the names of those who have become un-available on account of death, migration, employment on any other post, etc.

(5) A separate list of Patwar pass persons, belonging to Cholistan area will be maintained by the Colonization Officer concerned to meet the requirements of the Organizations.”

Initially the post of Patwaris used to be filled under the provisions of Chapter 3 of the Land Record Manual. Subsequently, the procedure for the appointment of the Patwaris was codified through West Pakistan (Northern Zone) Patwaris Subordinate Service Rules, 1963, which was later on amended through Government of NWFP Revenue and Estate Department (Tehsildar, Naib Tehsildar/Subordinate Revenue Service) Rules, 2008 pursuant to the provisions contained in Sub-Rule (2) of Rule 3 of the Khyber Pakhtunkhwa, Civil Service (APT) Rules, 1989. The relevant amendment is reproduced below for ready reference:-

“By initial appointment from amongst the Patwari passed candidates entered in Register maintained by the District Collector of the District concerned having one year diploma in information technology from any institution recognized by Board of Technical Education. The condition of diploma will be applicable after three years from the date of issuance of Notification.”

Vide Notification dated 02.12.2011, the Government made further amendments in this respect which are reproduced below:

“(a) By initial appointment from amongst the Patwar passed candidates entered in the Register maintained by the District Collector of the district concerned having one year certificate in information technology from any Institution recognized by Board of Technical Education.

(b) Successfully completed 09 months settlement training. This condition will be applicable w.e.f January, 2014.”

However, vide Notification dated 23.01.2015, in supersession of all previous rules issued in this behalf, the Government laid down the method of recruitment, qualification and other conditions which reads as:-

“By initial appointment from amongst the Patwar passed candidate entered in the Tehsil patwar candidate register maintained by District Collector of the district concerned.”

Subsequently, the matter of appointment of Patwaris came up for hearing before this Court in the case of Ameer Taimoor and 7 others v. Government of Khyber Pakhtunkhwa through Senior Member, Board of Revenue and 3 others (2016 PLC (C.S.) 106) whareafter, amendments have been made in the earlier notification dated 26.12.2008 through Notification Nos. 38383-38423 dated 25.11.2016. The same is reproduced for ready reference.

“In the Appendix, against Serial No. 8, in Column No. 7, for the existing entry, the following shall be substituted, namely:

By initial recruitment from amongst the patwar passed candidates entered in the patwar candidates register of Tehsil or District concerned on the basis of test and interview to be conducted after advertising the posts.”

7. In all the three petitions, the prayer of the petitioners is for their appointment as Patwaris according to the register of Patwar candidates. As mentioned in Paragraph 3.6 of the Manual reproduced above, the maintenance of list of Patwar passed persons is mandatory to have ready information about the availability of eligible persons to facilitate filling up the vacancies and it is nowhere mentioned that appointment is to be made according to the entries in the list. If the appointments of Patwaris had to be made according to the entries in the list, then, there would have been no need to mention in Paragraph 3.6 of the Manual that “the appointment of Patwaris shall be made strictly in accordance with the Service Rules and the Recruitment Policy as may be applicable at the relevant time”.

8. In view of above, the contention of the learned counsel for the petitioners that the petitioners had to be directly appointed against the posts of patwaris on the basis of the entries in patwar register without written test and interview has no force. Mere entries in the patwar register would not give any vested right to the petitioners to be appointed without the prescribed procedure provided by the law i.e the written test and interview. The post of patwari is of great importance and significance as, no efficient revenue administration of a revenue area is possible unless, the patwar staff is properly qualified, trained and appointed on merit through a transparent, fair and competitive procedure.

9. So far as authority of the Government to make amendments in the recruitment policy is concerned, as of now, it is settled that the Government is always empowered to change the policy or to make amendments in the same as per the requirements in the public interest and the rules applicable and the conditions required to be specified are those which are in force on the date of appointment and not which were earlier existing or in vogue at the time of inviting applications. Mushtaq Ahmad Mohal and others v. The Hon’ble Lahore High Court, Lahore and others (1997 SCMR 1043). Wisdom is also derived from Judgments reported as Imtiaz Ahmad and others v. Punjab Public Service Commission through Secretary, Lahore and others (PLD 2006 SC 472), Sh. Muhammad Sadiq v. Federal Public Service Public Service Commission and others (2013 SCMR 264) and Zafar Iqbal and another v. Director Secondary Education, Multan Division and 3 others (2006 SCMR 1427). Since the Government of Khyber Pakhtunkhwa has made amendments referred to above, which are in line with transparency, fair play and good governance, therefore, the same have to be followed in letter and spirit while making the appointment of Patwaris. The petitioners could not make out a case for interference by this Court in exercise of its extraordinary Constitutional jurisdiction. However, the respondents are directed to initiate the process of filling up the vacant posts at the earliest strictly in accordance with law applicable thereto.

10. The learned counsel for the petitioners heavily relied upon the judgment of this Court dated 17.01.2018 rendered in W.P.No. 931-B/2016 (Islam Ali and others v. Government of KPK through Chief Secretary, Peshawar and others). Perusal of the same reveals that ibid judgment has mainly been based upon Paragraph 3.11 of the Manual, however, the same is of no help and support to the petitioners, as the same stands omitted vide correction Slip No. 6/89 dated 18.10.1989. Therefore, the petitioners could not get any benefit out of the above referred judgment.

11. Granted, that Chapter 3 of the Manual has provided instructions in the matters pertaining to the appointment of the Patwaris and it had also been acted upon since long, but as earlier discussed, Paragraph 3.6 of the said instructions has clearly provided that “the appointment of Patwaris shall be made strictly in accordance with the Service Rules and the Recruitment Policy as may be applicable at the relevant time” and the applicable rules have manifestly provided that Patwaris shall be appointed By initial recruitment from amongst the patwar passed candidates entered in the patwar candidates register of Tehsil or District concerned on the basis of test and interview to be conducted after advertising the posts. Assuming, for the sake of arguments that Paragraph 3.11 of Chapter 3 of the Manual still holds the field, even then under the law the same cannot stand against the statutory rules, being in conflict with the ibid rules. It is equally true that long standing instructions could not be ignored, however, when there is conflict between the departmental instructions and the statutory rules, then the latter are to prevail. The Central Board of Revenue, Islamabad and others v. Sheikh Spinning Mills Limited, Lahore and others (1999 SCMR 1442) and Punjab Beverages Co. (Pvt.) v. Federation of Pakistan through Ministry of Finance and others (2016 PTD 1736).

12.  In W.P. No. 340-D of 2016, though the appointment of Respondents Nos. 5 to 14 as Patwaris has been challenged, but at the time of arguments, the learned counsel for the petitioners did not seriously challenged the same and stated that the petitioners are only interested in their own appointment. However, perusal of record transpires that Respondents Nos. 5 to 14 have been appointed vide order dated 12.01.2016, after the judgment of larger Bench of this Court dated 04.02.2015 in Ameer Taimoor’s case (supra) wherein it was held that:

“we are of the view that until and unless rules prescribed for appointment of Patwaris provided in the Land Record Manual as well as service rules with regard to method of recruitment of Patwaris are not amended or struck down, the respondents are bound to make appointment in accordance with the existing rules and policy governing the subject matter as it is settled principle of administration of justice that when law requires a thing to be done in a particular manner then that thing be done in that particular manner and not otherwise.”

In such view of the matter, this Court is not inclined to disturb the appointment of Respondents Nos. 5 to 14 as there is no fault on their part and moreso, they have served the respondents for more than three years without any complaint from the Department.

13. For the reasons mentioned above, all the three petitions are disposed of in the above terms.

                        Petition disposed of