THE HIGH COURT OF SINDH, BENCH AT SUKKUR

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Constt: Petition No.D–1316 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: 26.01.2023

Date of order: 27.01.2023

Mr. Shabir Ali Bozdar, Advocate for petitioner

Mr.Shaharyar I. Awan AAG

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ABDUL MOBEEN LAKHO,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) “That this Honourable Court may be pleased to declare the act of the respondents by not issuing the offer letter of appointment to the petitioner against the qualified post of the Police Constable (BPS-05) in Sindh Police as per merit list by keeping the name of petitioner at Serial No.56 and qualified all kind of tests as required on account of registration of FIR bearing Crime No.63/2016 of P.S Mirpur Mathelo, in which petitioner has already been acquitted, illegal, unlawful, against the norms of justice, hence the same act of the respondents may be declared as null and void.

(b) That this Honourable Court may be pleased to direct the respondent to issue offer letter of appointment to the petitioner against the qualified vacant post of police constable (BPS-05) in Sindh Police, as the name of petitioner is kept at Serial No.56 against the vacant posts of 254 as per merit list.”

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.46 in the merit list. Thereafter, during process, the petitioner was found involved in FIR No.63/2016 registered at P.S Mirpur Mathelo, for offences under Sections 376-I/ 34/ PPC, therefore, his name was rejected by the Recruitment Board vide IGP Sindh Karachi’s Order No.13476-78/EB-III/T-7/S&S dated 06.09.2022. 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 Bilawal Kalwar applied for the post of Constable and after qualifying the recruitment process, his name was placed at Serial No.46; 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 Deputy Inspector General of Police, Sukkur and SSP Ghotki. The DIGP Sukkur in his comments stated that the report into the matter was called from SSP Ghotki who furnished report mentioning therein that during character verification/ antecedent report petitioner Bilawal son of Mushtaque Ahmed Kalwar appears at Serial No.46; however, the petitioner was found involved in case FIR No.63/2016 u/s 376-I, 34 PPC of Police Station, Mirpur Mathelo and his case alongwith other candidates were discussed in the meeting of Sindh Police Recruitment Board held on 31.08.2022. The Board has perused the acquittal orders/Judgments of Honourable Courts and criminal record, and recommended rejection of his case for appointment as Police Constable vide IGP Sindh Karachi’s Order No.13476-78/EB-III/T-7/S&S dated 06.09.2022.”

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 was acquitted by the learned trial Court vide judgment dated 29^th January, 2018 passed in aforesaid Crime. 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 but in the case in hand the petitioner has been acquitted by the trial Court. 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. The offence in which the present petitioner was allegedly involved, was the result of private dispute which offence is not against the society. 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.

J U D G E

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