' KHAWAJA MUHAMMAD SAEED, J.---The above captioned appeals, with leave of the Court, are directed against the same order of the High Court passed on 21-3-2002, and raise common question of facts and law, hence are club together and decided through this consolidated judgment.
2. Admitted facts, are that the rules relating to the appointment of Primary Teachers were initially enforced on 24-9-1988 through "The Azad Jammu and Kashmir Directorate of School Rules, 1989"
(hereinafter to be referred as "the Rules of 1989). Under these rules minimum qualification for the post of Primary Teacher was laid as Matric with PTC or equivalent. These rules were subsequently amended through Government Notification dated 15-7-1990, under which even untrained persons were eligible for appointment as Primary Teacher in case the trained were not available.
Substantial amendment was made in these rules on 18-5-1994, whereby the minimum qualification for the post of Primary Teacher was provided Matric 2nd Division with PTC or equivalent. These rules were kept in abeyance on 14-6-1994 till further orders. On 1-1-1998, the order of abeyance of the rules of 1994 was lifted. This notification was again amended and the lifting of abeyance order was given effect from 1-2-1998, instead of 1-1-1998. The appellants before us belong to District Bagh and Muzaffarabad. They were appointed as Primary Teachers in the Education Department by the competent departmental authority on different dates vide different appointment orders during the period when even untrained persons could be appointed as Primary Teachers if trained were not available.
3. The Government issued a Notification on 13-5-2000, whereby different Committees were formed to examine in detail the appointments made in the Education Department. This notification was subsequently amended through another notification dated 6-9-2000, directing the Committees to examine the appointments made during the period commencing from 18-5-1994 to 1-2-1998, under the Rules of 1989 and from 2-2-1998, till the issuance of the notification dated 6-9-2000, whereby the Rules of 1994, were restored and all the notifications issued by the Government thereafter on the aforementioned dates keeping the enforcement of these rules in abeyance, were cancelled. The Government also issued a directives vide notification dated 4-11-2000, to the effect that all untrained teachers appointed contrary to the Rules of 1994 be removed from their services and the posts be filled in afresh according to the Rules of.1994. Thereafter another notification was issued by the Government on 14-7-2001, stating thereby that on the basis of the report of Inquiry Committee constituted under the notification dated 13-5-2000, some 856 untrained teachers appointed contrary to the Rules of 1994, be removed from their services and the posts held by them be taken as vacant and induction against them be made according to the merit list prepared by the Departmental Selection Committee from PTC trained persons.
4. The appellants filed four separate writ petitions in the High Court whereby they claimed that they were inducted in service during the period when the Rules of 1994 to the extent of P.T.C.
Qualification were kept in abeyance trough Government Notification dated 14-6-1994, as at the relevant time trained PTC teachers were not available. It was further claimed by them that they served with dedication and never gave any chance of complaint to the Department. During their service they were deputed for departmental training which they completed with success, however, few out of them, reappeared in different subjects of which, they got compartments.
5. In their written statements the official respondents stated that the appointments of the appellants were made contrary to the Rules of 1994, against merit and without advertising the posts, therefore, the appointment of the appellants cannot be protected. They prayed that the writ petitions be dismissed.
6. After taking necessary proceedings as required by law the learned Chief Justice of the High Court was pleased to direct the Secretary Education to hold an inquiry, in each case in the light of the Government directive dated 4-11-2000 to determine as to which of the candidate or candidates still lack required qualification till the passing of the order by the High Court. In order to meet the ends of justice it was directed that the candidates who have completed the required qualification till the receipt of the order of the High Court in the office of Secretary Education shall not be removed from their services and confirmation order be issued to them within one month period from passing of the order by the High Court. However, such persons who have not acquired the required qualification shall be removed from service and the posts occupied by them shall be declared vacant and filled in, in accordance with rules within three months of the passing of order by the High Court. This judgment of the High Court dated 21-3-2002 is under challenge in the present appeals.
7. Messrs Khawaja Shahad Ahmed, Khawaja Muhammad Nasim, Khawaja Attaulllah Chak, Sardar Shahid Hamid, and Khawaja Farooq Ahmed the learned counsel for the appellants, in Appeals No,104, 105, 106, 107, 108, 109, 110, 111, 112, 113 and 127 of 2002, argued that the Government notification dated 4-6-1994, whereby the qualification of Matric 2nd Division coupled with PTC was laid down for Primary Teacher, was suspended and kept in abeyance. On account of this difficulty from various parts of the State, trained teachers were not available, therefore, even untrained persons who were Matric 2nd Division, were allowed to contest on merits before departmental Selection Committees constituted for this purpose. The appellants were not in possession of PTC certificate, however, they were Matric 2nd Division and in the light of the Government policy, they appeared before the Selection Committees on the due date as advertised by the department and later on, on the basis of the merit prepared by the Departmental Selection Committee, were inducted in service as Primary Teachers. There is no complaint against the appellants about their performance as Primary Teachers or attributing any other misconduct to them in the performance of their duty, therefore, the appellants could not be deprived of from their vested rights after such delay merely on the ground that they were not P.T.C. On the date of their appointment as Primary Teacher.
According to them, the reason at this belated stage is in fact based on political and mala fide considerations that at the time of their induction in service, they were not P.T.C. Qualified. It was further argued by the learned counsel for the appellants, that during their service the Department itself sent Duntrained persons for departmental training attached with the posts which they completed successfully. Few appellants, who were deputed late for departmental training have been placed in compartments in different subjects which they have now qualified. They totally refuted this ground that the posts were not advertised by the Government. It was further submitted that the appellants were given jobs in the light of the Government Notification wherein it was specifically mentioned that in case PTC trained candidates are not available, simple Matric 2nd Division desirous candidates would be eligible to appear in the test and interview for the post of Primary Teacher. On the basis of advertisement the appellants appeared before the Departmental Selection Committee which was authorized by the competent authority to take test and interview of desirous candidates to determine their merit and later on the appellants, on the basis of their merit, were inducted in service. It was further argued by them that not a single person challenged the appointment order of any appellant at the time when he was given job as Primary Teacher from any area of Azad Jammu and Kashmir where a PTC trained candidate was available. This fact, according to the learned counsel, is the ample proof that at the relevant time PTC trained teachers were not available in the Azad Jammu and Kashmir, as such, in order to meet the requirements of the time, simple Matriculate 2nd Division persons were allowed to appear in the test and interview and on the basis of their merit were later on inducted in service. In the wisdom of the learned counsel for the appellants the High Court has not properly interpreted the Government notifications and the law on the subject, as such, has failed to give the law and the notification issued thereof, proper legal effect.
8. On the other hand, Raja Muhammad Hanif Khan and Mr. Riaz Naveed Butt, Additional Advocate- General, the learned counsl for the Azad Government also criticised this part of the judgment of the High Court whereby the services of such teachers have been protected who after their induction as Primary Teachers have completed the requisite qualification.
9. Raja Muhammad Hanif Khan, the learned counsel for the Azad Government, further argued that the appointments of all those teachers were illegal who were not possessing the certificate of PTC at the time of their induction as Primary Teacher. He further argued that the High Court war, not justified in law to ratify the appointments of those teachers who after obtaining their appointment orders completed PTC course at Government expense because it was the requirement of the Rules of 1994 that only such person could be accommodated against a vacant post of Primary Teachers who were Matric 2nd Division with PTC or equivalent qualification. As the appellants and other teachers who have been given the protection by the High Court were not in possession of PTC qualification at the time of their induction in service, therefore, they were not entitled to retain their job merely on the ground that subsequently they have acquired PTC qualification at Government expense. The reliance was placed upon a case titled Azad Government v. Haji Mir Muhammad Naseer and 10 others 1999 PLC (C.S.) 1173, wherein it is laid down that a post or vacancy has to exist before it is advertised. The learned counsel further argued that the relaxation notification relating to P.T.C. Qualification was taken back by the Government through notifications issued on 13-5- 2000, 6-9-2000, 4-11-2000 and 14-7-2001, So without challenging the legality of these notifications the judgment of the High Court to the aforementioned extent was bad in law,
10. We have considered the respective arguments of the learned counsel for the parties and gone through the record of the case. The appellants, herein, in Civil Appeals Nos. 104, 105, 106, 107, 108, 109, 110, 111, 113 and 127, have challenged the order of the High Court to the extent that those who have not completed their PTC till the passing of order by the High Court, were ordered to be removed from their services and the posts held by them were declared vacant. The Education Department was directed to make appointments against these vacant posts in accordance with the Rules of 1994 after advertising the same within next three months, whereas the Government through Civil Appeal No,112 has challenged the same order of the High Court to the extent whereby the service of those were protected who have acquired the requisite qualification till the passing of the order by the High Court and the officials of the Education department were directed to issue them confirmation orders within one month from the passing of the judgment by the High Court. As common questions of law and facts were involved and the parties to the litigation were also the same, therefore, it was felt appropirate to take consolidated proceedings in these appeals.
11. The rules relating to the appointment of Primary Teachers known as "The Azad Jammu and Kashmir Directorate of Schools Service Rules, 1989" were first time enforced on 24-9-1989. The minimum qualification for the post of Primary Teacher under these rules was provided as Matric with PTC or equivalent. These rules were subsequently amended through notification dated 15-7- 1990, whereby untrained persons were also held eligible to contest for their appointment as Primary Teacher if trained were not available. It appears that on account of this notification certain candidates on the basis of test and interview conducted by the Departmental Selection Committee were inducted in service. Later on, on 18-5-1994 substantial amendments were effected in the Rules of 1989 through Rules of 1994. Under the new rules minimum qualification for the post of Primary Teacher was laid Matric 2nd Division with P.T.C. However these rules were also kept in abeyance vide Government notification dated 14-6-1994 and remained so up to 1-1-1998 in the light of even dated notification. Another notification was issued on 22-12-1999, wherein the lifting of abeyance of rules was given effect from 1-2-1998 instead of 1-1-1998. During this period the appellants and some other candidates were inducted in service as Primary Teachers on the basis of their merits as determinated by the Departmental Selection Committee. The notification dated 14-6-1994, whereby the operation of the Rules of 1994 to the extent of qualification was kept in abeyance, was recalled through Government Notification dated 13-5-2000. Thereafter a directive was issued by the Government vide Government Notification dated 4-11-2000, whereby those who were not PIC at the time of their appointment as Primary Teacher, were ordered to be removed from their services and officials of the Education Department were directed that the posts so vacated by them shall be filled in, in accordance with the rules of 1994. Thereafter on 14-7-2001 another notification was issued through which an Inquiry Committee was constituted which reported back that some 856 teachers were appointed contrary to the Rules of 1994 as they were not qualified PTC on the date when they were inducted in service. Resultantly the candidates who in the meantime had completed their PTC or were undergoing training at the expense of the Government, feeling aggrieved, filed their writ petitions in the High Court which were decided in the style indicated in para 37 of the judgment under challenge.
12. The appellants in Civil Appeals Nos. 104, 105, 106, 107, 108, 109, 110, 111, 113 and 127, and respondents in Civil Appeal No,112, at the time of their induction in. Government service were lacking the qualification of PTC. However, from the record it is clear that these persons were deputed for training by the Government on different dates. Except few, the remaining have completed the PTC.
According to the appellants, few out of them were placed in compartments in different subjects whereas the remaining completed their course soon after the judgment of the High Court as they were undergoing the requisite training in the relevant Institution when judgment was announced by the High Court. The appellants have placed on the file the deputation orders passed by the competent departmental authority and marks obtained by them in PTC course. The present appellants were deputed late by the department for PTC course, as such, had not completed their course when the judgment under challenge was passed by the High Court on 21-3-2002. Majority of-them have completed the course soon after the judgment of the High Court and rest of them who were placed in compartment in different subjects had appeared in the examination of such subjects but their result had not been announced on the date when order under challenge was announced by the High Court.
13. It is an admitted fact that all the untrained candidates were deputed for training by the Education Department itself. If any candidate was deputed at a later stage, his service should have also been protected by the High Court as all the State Subjects. Are equal before law and entitled to equal protection of law.
14. The appellants have claimed that they were inducted in service in accordance with the law. The High Court before admitting the writ petitions for regular hearing directed the official respondents to file their comments. In their comments which are at pages Nos.35 and 36 of the High Court file, the official respondents admitted their induction in service in accordance with the law applicable at the relevant time. It was admitted that posts were advertised by the Education Department and out of the desirous candidates on the basis of their merit as determined by the Departmental Selection Committee, untrained persons were appointed as Primary Teachers in different Primary Schools due to non-availability of PTC candidates. In under developed countries the permanent machinery of the Government running different Government departments, change their attitude by the change of the Government and adopt new line akin to the liking of new political set-up. We have noticed that in Azad Jammu and Kashmir every Government has tried to bypass the rules and regulations. In order to have the confidence of new elite in power,, the officials running Government departments also ignore the rules and regulations. If they receive any direction contrary to law, the case is not resubmitted well in time for fresh orders rather such officials sit over the file for indefinite time and are thus responsible for continuous wrong being committed in this part of the State.
15. The arguments of the learned counsel for the appellants in Civil Appeal No,112 of 2002, carries weight that the induction of trained teachers in service was conditional because only from such areas untrained persons could be appointed as Primary Teachers from where trained candidates were not available. No person at the relevant time challenged the appointment order of any untrained teacher on the ground that despite the available trained person he was appointed as Primary Teacher. This shows that in order to meet the requirement of the Primary Teachers in various Primary Schools, the Government was constrained, in the absence of trained candidates, to keep the Rules of 1994 in abeyance whereby a person Matric 2nd Division having PTC or equivalent qualification was held entitled to apply for the post of Primary Teacher. The appellants who were only Matric 2nd Division but were not in possession of PTC qualification were, therefore, allowed to appear before the Departmental Selection Committee for determining their merit against vacant posts of Primary Teachers. There must be consistency in the policies of the Government. The Government cannot penalise any person for the blunder committed by it. This view is fortified by an authority titled Ahmad Latif Qureshi v. Controller of Examinations, Board of Intermediate and Secondary Education Lahore and another (PLD 1994 Lah. 3) wherein it was laid down as under:-- "No one can suffer on account of the act of the Authority, who had to pass an order and who had taken some action which action was illegal or without lawful authority.. ....
' Person who had been wronged on account of such action of Authority was entitled to be restored to the same position as of right to the maximum possible extent, which he would have occupied."
16. We wonder that the Government wants to remove from their posts such teachers who have new obtained PTC training at Government expenses In a case titled Fida Hussain v. The Secretary Kashmir Affairs and Northern Affairs Division, Islamabad and another [PLD 1995 SC 701], it was laid down that it is within the competence of the Government to decide whether a particular qualification would be considered sufficient for promotion from a particular grade to a higher grade. In the same authority it was also laid down that it is within the domain of the Government to change the policy from time to time and that nobody can claim any vested right in any policy of the Government.
17. The Government is competent to change its policy and even to prescribe different qualificiation than that which was initially fixed for a particular post. However, if any right on the basis of the policy of the Government has vested in due course of time to any citizen, he cannot be deprived of the same later on. The appellants were inducted in service in the light of the policy which was adopted by the Government at the relevant time. Under that policy the competent officials of the Education Department inducted many untrained persons including the appellants in the service of Education Department. We, therefore, maintain the judgment of the High Court whereby the protection has been given to those who have completed PTC. However we extend this benefit even to the present appellants who were deputed for departmental training at late stage and on account of this reason they could not acquire PTC qualification before the order of the High Court or got compartments in few subjects which they cleared subsequently after passing of the order by the High Court. In our view a valuable right has vested in favour of appellants from which they cannot be deprived of by the Government.
' In view of above, the appeal filed by the Government having no force is hereby dismissed without passing any order as to costs, whereas the appeals filed by the appellants are accepted with no order as to the costs. Copy of this judgment shall be placed alongwith each appeal.