THE HIGH COURT OF SINDH, BENCH AT SUKKUR

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Constt: Petition No.D–1332 of 2022

DATE OF HEARING

ORDER WITH SIGNATURE OF JUDGE

Present:-

Mr. Justice Salahuddin Panhwar, J.

Mr. Justice Abdul Mobeen Lakho, J

For hearing of main case

Date of hearing: 11.01.2023

Date of order: 17.01.2023

Mr. IllahiBuxJamali, Advocate for petitioner

Mr.Shaharyar I. Awan AAG

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SALAHUDDIN PANHWAR,J.- Through this constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has prayed for the following relief(s);

(a) “Direct the respondents to issue appointment order to the petitioner for the post of Police Constable as after completing all the codal formalities, he was found eligible for the said post.”

2. The essential facts mentioned in the memo of the petition are that the petitioner in response to an advertisement applied for the post of Police Constable and successfully passed the recruitment process, as such stood at S.No.151 in the merit list. Thereafter, during process, the petitioner was found involved in FIR No.34/2017 registered at P.S Ahmedpur, for offences under Sections 302/ 324/ 337H(2)/ 147/ 148/ 149 PPC read with Section 7 of Anti-Terrorism Act 1997, therefore, his name was rejected by the Recruitment Board vide IGP Sindh Karachi’s Order No.9955-56/EB-III/T-7/S&S dated 01.07.2022. Hence, he has invoked the constitutional jurisdiction of this Court.

3. Notices were issued to the respondents, who filed their comments, wherein they admitted that petitioner Asif Nawaz applied for the post of Constable and after qualifying the recruitment process, his name was placed at Serial No.151; however, during recruitment process, he was found involved in the aforesaid FIR, as such Recruitment Board rejected his name as he was not found entitled to be appointed on the post of Constable. Per comments filed by SSP Khairpur, the name of petitioner Asif Nawaz son of Ali Nawaz Chandio appears at Serial No.8 wherein it is mentioned that “his name shown in column No.2 same was accepted by the Honourable Court of ATC, Khairpur”

4. We have heard learned Counsel for parties and scanned the material available on record.

5. Learned AAG is unable to controvert the factual position as placed by the petitioner as well as flashed in the comments filed by the respondents. No doubt the petitioner was nominated in the aforementioned FIR, but during investigation the Investigating Officer found him innocent and while submitting challan in the Court placed his name in column No.2 and such report was accepted by the concerned Court. Besides, judgment of that case has been placed on record which also shows that petitioner was not joined at the trial by the Court or complainant. Someone’s nomination cannot be equated with his involvement in a criminal case. A person’s nomination in a criminal case by the complainant may be correct or incorrect, whereas, involvement of an accused in a criminal case rests on the basis of investigation and collection of incriminating material against him and then commencement of his trial by a competent court of law. So, mere nomination of any person in any FIR is not sufficient to disentitle him from his legal right earned during the legal process under the doctrine of locus poenitentiae, therefore, in these circumstances, rejecting the petitioner from recruitment, appears to be patently illegal whereby the Petitioner has been deprived of his vested right accrued in his favour that could not have been withdrawn or cancelled in a perfunctory manner.

6. In similar circumstances in case of Inspector General of Police, Quetta and another v. Fida Muhammad and others (2022 SCMR 1583), it was held by the Apex Court that: “The doctrine of vested right upholds and preserves that once a right is coined in one locale, its existence should be recognized everywhere and claims based on vested rights are enforceable under the law for its protection. A vested right by and large is a right that is unqualifiedly secured and does not rest on any particular event or set of circumstances. In fact, it is a right independent of any contingency or eventuality which may arise from a contract, statute or by operation of law. The doctrine of locus poenitentiae sheds light on the power of receding till a decisive step is taken but it is not a principle of law that an order once passed becomes irrevocable and a past and closed transaction. If the order is illegal then perpetual rights cannot be gained on the basis of such an illegal order but in this case, nothing was articulated to allege that the respondents by hook and crook managed their appointments or committed any misrepresentation or fraud or their appointments were made on political consideration or motivation or they were not eligible or not local residents of the district advertised for inviting applications for job. On the contrary, their cases were properly considered and after burdensome exercise, their names were recommended by the Departmental Selection Committee, hence the appointment orders could not be withdrawn or rescinded once it had taken legal effect and created certain rights in favour of the respondents”.

7. Accordingly, this petition is allowed and respondents are directed to issue appointment order in favor of the petitioner within one month’s time under compliance report to this Court through Additional Registrar. Above are the reasons of order dated 11.01.2023, whereby this petition was allowed.

J U D G E

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