IFTIKHAR MUHANMMAD CHAUDHRY, J.--- This appeal by leave of the Court is directed against the judgment passed by High Court of Balochistan Quetta dated 25th March, 2004.
2. Precisely stating the facts of the case are that appellant joined service in the Office of Board of Revenue as Junior Clerk (B-5) as back as on 1st July, 1987. He improved his academic qualification by passing examination of F.A./B.A. In 1992 and M.A. In Pakistan Studies in 1996 while M.A. In Brahvi in 1997. The Secretary (Admn.), Board of Revenue, vide publication, appeared in "Daily Mashriq", dated 20th September, 1998, advertised vacancies of different cadres including six vacancies for the post of Assistant (B-11) and invited applications from the candidates having Bachelor Degree with typing speed of 30 w.p.m. As it has been prescribed under the Balochistan Board of Revenues Ministerial Service Rules, 1982 (hereinafter referred to as "the Rules, 1982"). The appellant applied for one of the posts of the Assistants being bona fide resident of District Kalat. The Departmental Selection Committee without holding typing test recommended names of respondents (6-9) for appointment against six vacancies of the Assistants. As the appellant was not selected, therefore, he approached to Chief Minister on 4th February, 1999 by submitting departmental appeal. As no reply was given to him, he preferred Service Appeal No,31 of 1999, before the Balochistan Service Tribunal, which has been dismissed by a majority judgment of two and one.
3. Before dilating upon respective contentions of the parties counsel, it would be appropriate to reproduce herein below relevant portion from the impugned judgment for sake of convenience.
(a) Extract from the minority judgment of one of the members i,e, Syed Iftikhar-ul-Islam.
"(11) There is no denial of the fact that the qualifications prescribed in the Service Rules and published in the newspapers for the post of Assistant are as under:--
(i) Bachelor Degree from a recognized University.(ii) Minimum speed of 30 words per minute in typing.
(12) The Selection Committee was, therefore, bound to conduct not only interview and also to hold a typing test in order to meet the requirements of Service Rules but according to the comments of official respondents no typing test was conducted by the Departmental Selection Committee and thus, the provisions of Service Rules were not complied with by the Selection Committee which is a violation of relevant Service Rules. The Government had framed the recruitment policy in the year 1988 which was amended in 1991, according to which six vacancies were required to be filled in accordance to the quota system prescribed for direct recruitment of posts in B-2 to above. The six posts, therefore, were required to be filled up according to the recruitment policy as under:--
(i) Merit
(ii) Kalat Division
(iii) Zhob Division
(iv) Naseerabad Division.
(v) Mekran Division
(vi) Quetta Division.
(13) The recruitment policy was framed in pursuance of provision contained in the Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 1979 read with the Constitutional provision, but instead of filling up the posts, the Board of Revenue with the approval of Minister appointed six private respondents from Quetta Division, by ignoring the quotas of other Divisions i,e, Kalat, Zhob, Naseerabad and Mekran, which was a violation of recruitment policy without any legal grounds or justification. The appellant was a candidate from Kalat Division and his grievance is not only supported by rules but also by the standing instructions having the force of rules while following the recruitment policy in letter and spirit. There is a provision for relaxation in case of non- availability of suitable candidates but in the instant case no relaxation was accorded by the Government as no document was filed with the rejoinder containing the relaxation order of the Competent Authority granted while directing the appointment from Quetta Division only."
(b) Extract from the majority judgment "In present case the main contention of the appellant is that while appointing respondents Nos.4 to 9 the recruitment policy has been violated, while appointments have been made in violation of Zonal quota. The respondents in reply strongly denied the contention of the appellant. According to them in relevant Rules i,e, the Balochistan Board of Revenue Ministerial Service Rules, 1982, there is no Zonal allocation of posts. The perusal of the relevant Rules reveals that nothing is mentioned therein in respect of quota meant for different zones. Rather, the appellant has relied upon some policy made by the Government wherein quota has been reserved for merit, Quetta City and six Divisions, which have to be observed by rotation. It may be a policy but it does not have effect of law and Rules, as it has not been included in the Rules. Thus, their violation does not meant violation of the Rules, and its violation does not have same effect as of violation of relevant Rules.
Secondly, the advertisement made in same respect also does not specify that advertised posts are meant for specific zones. Nothing has been mentioned therein about zonal allocation. Six posts were advertised for Assistants but it has not been mentioned therein that the appointment shall be made on basis of merit or for any particular zone. The appellant has failed to specify that the ratio in which the posts in questions are to be filled on basis of zonal allocation, further whether at relevant time and of these posts comes within the quota of Kalat Division. He further failed to specify that which of the said post come within the purview of quota meant for Kalat Division, from where he belong, and whom of the respondents was appointed on said post in violation of the said policy. The appellant has completely failed to mention that even in case there is violation of zonal quota, then how he becomes entitled to raise objection on remaining five posts which are not meant for Kalat Division as per his own showings. Furthermore, the appellant is not aggrieved of remaining five posts even if there is any violation of quota. In such a case what would be the justification to set aside the appointment orders of the rest of the five incumbents of the posts.
Even where there is no objection from anyone belonging to remaining zones. The appellant has further failed to produce any Rules whereby zonal allocation of the post have been made and which compliance is necessary."
4. Learned counsel for appellant contended that in pursuance of Rules 14 of the Balochistan Appointment, Promotion and Transfer Rules, 1979 (hereinafter referred to as "the Rules, 1979"), the Government of Balochistan vide a recruitment policy for the posts of BPS-3 to BPS-15 and BPS-16 and above had allocated the quota of the available vacancies to different areas, therefore, the Board of Revenue without adhering to said policy, deprived the appellant from reserved quota of the erstwhile Kalat Division. He further contended that the respondents were recruited contrary to the provisions of the Rules, 1982, because their typing tests were not held, therefore, their appointments deserve to be set aside. He also alleged that the respondents were recruited by the Departmental Selection Committee on the directions of the then Revenue Minister to the Government of Balochistan. Thus, on this score alone, the appointment made in favor of respondents may be set aside.
5. Learned Advocate-General on having seen the Rules, 1982 and recruitment policy of the Provincial Government stated that the typing ability of the respondents was not tested by the Departmental Selection Committee for the reasons not borne out from the record. He further contended that the Board of Revenue being one of the Departments of the Government of Balochistan was bound to follow the recruitment policy. He also stated that the respondents are in service from 1998 to onwards, during which they had gained sufficient experience, therefore, at this stage; it would not be fair to terminate their services. According to him, so far as the appellant is concerned, he can be accommodated against one of the vacancies which has fallen vacant as one of the respondents i,e, Abdul Qadeem had joined some other department.
6. Mr. Marjan Khan, Senior Member, Board of Revenue and Mr. Masood Ahmed, Secretary Services and General Administration Department, Government of Balochistan appeared along with Advocate-General and candidly admitted non-adhering to policy of the Government for making recruitment for the post in BPS-3 to BPS-15 and BPS-16 and above as well as failure by the Departmental Selection Committee to test the ability of the respondents and supported to the claim of appellant by accommodating him against a vacant vacancy of the Assistant.
7. Learned counsel appearing for respondents i,e, Messrs Jamal Khan Mandokhel, Advocate Supreme Court and Shakil Ahmed Hadi, Advocate Supreme Court, frankly conceded to the case of appellant and stated that they are not responsible for not following the rules by the Department because they applied for the posts of Assistants and after having qualified the interview they are in service without any hindrance since 1998. However, the contention of the appellant's counsel about their appointment as per the direction of the Revenue Minister was vehemently denied by them.
8. We have heard the learned counsel at length and have also gone through the dissenting judgment of the Service Tribunal. It seems that the learned Chairman and one of the Members, non-suited the appellant mainly for the reason that "policy does not have the effect of law and rules, and it has not been included in the Rules, thus, its violation does not mean violation of the Rules". We are not persuaded to subscribe to the view point of majority opinion relating to statutory status of the policy in view of the provisions of the Rae 14 of the Rules 1979, which reads as under:-- "14. Vacancies in the under mentioned posts shall be filled on Provincial basis with the merit and regional or District quota as determined by Government from time to time:---
(i) Posts in basic pay scales 16 and above and equivalent.
(ii) Posts in basic pay scales 3 to 15 and equivalent office which serve the whole Province."
A careful perusal of the above Rule suggests that Provincial Government has been authorized to make recruitments on Provincial, Regional or District quotas. In pursuance of the above provisions, Government had framed policies from time to time. However, copy of one of the said policies dated 22nd June, 1991 has been made available to us by the Advocate-General, which according to him, was invoked in 1998 when appointments of the respondents took place. The contents whereof indicate that rotation wise quota for each Division has been fixed. The A policy having a statutory backing attains the legal status and is required to be adhered to in letter and spirit by all the Departments of the Government, including the Board of Revenue, being one of the Department of the Provincial Government under the Rules of Business, 1976, therefore, they owe a duty to mention in the advertisement about the bifurcation of the posts according to rotation wise quota of the relevant Divisions. In addition to it, policy which is invoked since long and being applied must be adhered to in letter and spirit as it has attained the status of statutory document, as held in the case of Faizullah Khan v. Government Pakistan PLD 1975 SC 291. Besides, not following the IB recruitment policy, the Selection Committee had also failed to adhere strictly to the Rules, according to which for the recruitment of Assistant qualifying typing test at minimum speed of 30 w.p.m. Is one of the prescribed qualifications. Admittedly in the instant case, the typing ability of the respondents was not tested for which no explanation has been offered by any of the learned counsel appearing for respondents, including the Advocate-General. However, keeping in view the experience, which respondents have gained by the time as they are in service from 1998, we are not inclined to declare their appointments illegal on this score because the department had agreed to accommodate the appellant against one of the posts, which has fallen vacant, as one of the respondents Abdul Qadeem had joined some other department. In this behalf, a statement in writing had also been filed, duly signed by the parties, contents whereof read as under:-- "In view of the circumstances of this, Mr. Amir Hamza will be accommodated as an Assistant with immediate effect.
(Sd.) (Marj an Khan).
In view of the above the appellant accepts the accommodation appeal may be disposed of.
(Sd.) (S. A. M . Qauadri). "
Since the appellant is being accommodated against the post of Assistant, in view of the statement reproduced herein above, therefore, appeal stands disposed of accordingly, however, with the observation that the Board of Revenue is bound to follow the recruitment policy issued from time to time by the Provincial Government in exercise of powers under Rule 14 of the Rules, 1979 and non- adherence to such policy, which has got a statutory backing, can render the appointments so made by it illegal in future. Parties to bear therein costs.