JANAT KHAN vs CHIEF SECRETARY GOVERNMENT OF KHYBER PAKHTUNKHWA R — 2024 PLC(CS) 972 PESHAWAR-HIGH-COURT

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JANAT KHAN VS CHIEF SECRETARY GOVERNMENT OF KHYBER PAKHTUNKHWA R.4(1)(b)(iii)---Land Record Manual, Paras 3.6 & 3.12---Constitution of Pakistan, Art.199---Patwari, appointment of---Patwar course---Removal from service---De novo proceedings---Petitioner was aggrieved of refusal to grant age relaxation for his appointment as Patwari on the basis of notification issued by Government of Khyber Pakhtunkhwa, Revenue and Estate Department, on 25.11.2016---Validity---Record transpired that on the basis of clashes between petitioner and respondent No.7, pertaining to inter se seniority, the latter submitted an application wherein he questioned appointment of the former, which, according to him, was not in accordance with the provisions of paragraphs 3.6 and 3.12 of the Land Record Manual---Proper enquiry was conducted by respondent No. 5, the Assistant Secretary (Stamp), who was appointed as an Enquiry Officer, and he submitted his recommendations---Deputy Commissioner filed the recommendations---Order for filing of the enquiry was passed on 03.07.2018 by Deputy Commissioner which was never challenged by respondent No.7 and astonishingly, on 17.07.2018 another application was submitted to respondent No.2 by mentioning the same allegations, who, on receipt of the application, directed respondent No.6 for taking further step in the light of recommendations of the Enquiry Officer and submission of compliance report---Admittedly, the matter in respect of inter se seniority became the cause for submitting the application and initiation of proceedings against the petitioner to the extent that he should be removed from service for the reasons the Enquiry Officer conducted the enquiry, and suggested that major penalty of removal from service under the provisions of sub-rule (b)(iii) of R. 4 of the Khyber Pakhtunkhwa Government Servants (E&D) Rules, 2011---Not only the application but appeal was also filed by respondent No.7 by impleading the present petitioner in the array of respondent; the said appeal was from the year 2017, thus, when the earlier application was filed by respondent No.7 to respondent No. 2 for initiating proceedings the appeal before the Khyber Pakhtunkhwa Service Tribunal was pending---Record further revealed that Service Appeal No. 603 of year 2017 was decided by the tribunal on 26.11.2019, wherein the dispute pertaining to the seniority of respondent No.7 with the petitioner and others was resolved---Contents of appeal filed before the Tribunal also contained the same allegations as narrated in the application which was submitted to respondent No.2---Animosity between the petitioner and respondent No.7 was of such extent that respondent No.7 could not stop himself from dragging the petitioner whereby he faced the enquiry as well as appeal which remained pending adjudication in the competent forum---Competent authority was not bound to accept the recommendations/suggestions as submitted by the Enquiry Officer---As such, the respondent No.6, while going through the entire facts of the dispute and while confronted with the proceedings of appeal before the Tribunal, had filed the enquiry, thus, if respondent No.7 was feeling aggrieved form the order of respondent No.6, the same should have been assailed before the competent forum but in no case he could submit another application to respondent No.2 with the same allegations---Likewise, respondent No.2, while considering the contents of the application so mentioned in it, had to apply his prudent mind with respect to the allegation and the fate of enquiry but he, while putting aside all the facts, either by ignorance of the basic provisions of law or intentionally, forwarded the matter with the direction to respondent No.6 to decide it in accordance with the recommendations of the Enquiry Officer---Authorized Officer in no way could impose his own findings or direct the competent authority to decide the matter in a particular manner as the competent authority was not his personal servant---Authorized Officer had to obey the law in its true spirit---So, initiating de novo enquiry or directing the competent authority to recommend the enquiry was not only misconception of law but also resulted into miscarriage of justice---Respondent No.2 was not supposed to direct respondent No.6 to comply with recommendation of the Enquiry Officer which order of respondent No.2 was nullity in the eye of law, as it was an excess of power and misuse of his authority---Petition was accordingly allowed.

JANAT KHAN vs CHIEF SECRETARY GOVERNMENT OF KHYBER PAKHTUNKHWA R — 2024 PLC(CS) 972 PESHAWAR-HIGH-COURT

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