PESHAWAR: Peshawar High Court has ruled that Supreme Court’s judgement declaring unconstitutional the relevant rule for appointment of child or spouse of a deceased or incapacitated civil servant has to be applied prospectively and the individuals, whose right to employment has accrued prior to this verdict, will be afforded such right.
A bench consisting of Justice Syed Arshad Ali and Justice Babar Sattar, while disposing of 16 petitions of aggrieved persons, directed that the applications of the petitioners, seeking appointment, should be deemed pending before the competent authorities with the employing departments and should be decided within a period of one month, in accordance with law.
The question raised by petitioners whether the law laid down by the Supreme Court in the “General Post Office versus Mohammad Jalal” was to be applied prospectively such that individuals whose right to employment had accrued prior to rendering of such judgement in terms of Rule 10 (4) of Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion, Transfer) Rules, 1989 (KP APT Rules) would be afforded such right.
Discussing different aspects of the apex court’s judgement and the matter in detail, the bench ruled: “We therefore, find that law laid down by the Supreme Court in General Post Office is to be applied prospectively.”
Bench rules right of a child or spouse already accrued to be afforded
“It is clarified that the rights contemplated by Rule 10(4) of KP APT Rules would have accrued in favour of such individuals, who satisfied the minimum qualification for the appointment in question in terms of the first proviso of Rule 10(4) of KP APT Rules at the time of the death/incapacity of civil servant, where such death/incapacity resulted in the accrual of such right prior to 26.09.2024 when the judgement of the Supreme Court in General Post Office was rendered and Rule 10(4) of KP APT Rules was declared to be illegal,” the bench ruled in its nine pages detailed judgement authored by Justice Babar Sattar.
Several lawyers appeared for the petitioners including Khadim Hussain Khosa, Saadullah Marwat, Asif Ali Shah, Jalaluddin and Shehzada Irfan, etc.
They contended that the right had already accrued to the petitioners in term of Rule 10(4), when such rule was in the field prior to the apex court’s verdict. They added that the judgement couldn’t be applied retrospectively.
The additional advocate general, Taskeenuddin Khattak, said that in view of the judgement of apex court, Rule 10 (4) of KP APT Rules had been repealed, therefore, there existed no provision in law pursuant to which a child or spouse of an incapacitated or deceased civil servant could be afforded employment.
He submitted that the word used for making an appointment under the erstwhile Rule 10(4) was ‘may’ and not ‘shall’, which reflected that the provision was discretionary in nature and not mandatory.
The bench observed: “A plain reading of the rule reflects that the relevant trigger event creating a right in favour of a child and/or widow/wife of a deceased or incapacitated civil servant is the event of death or incapacity.”
“Such right is conditional upon the child or wife/widow possessing the minimum qualification prescribed for appointment to a post in BPS-1 to 10. The second condition prescribed is the availability of a vacancy. The third proviso to the rule further states that where there exist two vacant posts, the child or widow/wife shall ordinarily be appointed to the post in the higher pay scale,” it said.
The bench ruled that the first proviso to the rule, when read with the rule, clarified that the right vested in the child or spouse at the time of death of the civil servant or his/her incapacity, and the question of determination of minimum qualification of the child or the spouse was to be made at such time.
“The rule accordingly creates an option for the wife of the deceased or incapacitated employee to avail the benefit in the event that the child is a minor or otherwise does not possess the required minimum qualification for the post in question,” the bench ruled.
It further pointed out: “In other words, unlike the rules promulgated by Sindh and Balochistan provinces, the rules enacted by the government of Khyber Pakhtunkhwa did not provide for the vested right to be availed by a child of a deceased/incapacitated employee upon reaching the age of majority.”
Referring to the argument of AAG that the erstwhile rule was discretionary in nature and not mandatory, the bench ruled: “In view of the fact that Rule 10(4) of KP APT Rules was a beneficial statutory provision, and the legislative intent behind the provision setting out relevant conditions to be satisfied for purposes of such appointment, we find that the word ‘may’ in the main provision is to be read as ‘shall’.
“The rule-maker cannot possibly have intended to vest broad discretion in government agencies to make appointments under the said rule or refuse to do so at their whim. Such interpretation of the rule would render it completely arbitrary.”
Published in Dawn, May 25th, 2026