MUHAMMAD NAWAZ ABBASI, J.--- This appeal by leave of the Court has been directed against the judgment dated 7-4-2003 passed by the Federal Service Tribunal, whereby the appeal filed by the present appellant for redressal of his grievance relating to the claim of promotion to BPS-18 under the Punjab Education Department (Schools Education) Recruitment Rules, 1987, was dismissed. The leave was granted in this appeal vide order, dated 29-12-2004 as under:- "This petition arises out of the judgment, dated 2nd April, 2003 passed by the Punjab Service Tribunal, Lahore whereby appeal filed by petitioner has been dismissed. Concluding para. Therefrom reads as under thus:- `Copies of the relevant Rules have been placed on record. According to the rules, M.A. Second Division is the prerequisite for promotion from BPS-17 to BPS-18. Since, the appellant is admittedly M.A. Third Division; therefore, he is not entitled to promotion from BPS-17 to BPS-18. Even otherwise, the question for the fitness for promotion is to be determined by the Departmental Authority and not by this Court.
A perusal of above para. From the impugned judgment indicates that petitioner has been non- suited on the ground that he was not eligible for promotion from BPS-17 to BPS-18 because he had passed M.A. Examination in third Division. Learned counsel by making reference to item No,5 from the Punjab Education Department (Schools Education) Recruitment Rules, 1987, as amended from time to time, contended that requirement of possessing degree at least of second Division in M.A. Is meant for those candidates who had applied for initial recruitment against 33% quota, whereas candidates whose cases were covered under 67% of promotion quota, amongst SSTs for the posts of Headmaster/Head Mistress are not required to at least possess second Division in M.A. For reference item No,5 pointed out by the learned counsel is reproduced hereinbelow:-- 1.2.3. 4.5.6. 7. 8.
Headmaster/ Headmistress High Schools with enrolment less than 1500 Deputy District Education Officer/ Subject Specialists.
Elementary College and Higher Secondary School (BPS- 17)(i) M.A./M.Sc. (2 Division) provided that for those who are M.A. (English (3Division) the same condition shall apply as mentioned in column (5)
(ii) B.Ed. (2 Division).
(iii) For promotion to post to Subject Specialists the above mentioned qualification in the relevant subject.i. 33% initial recruitment ii. 67% by promotion (3rd Division) the from amongst SSTs.
Note. I. SSTs on strength of the Education Department immediately before enforcement of these rules will be eligible for promotion as Headmaster/ Head-mistresses/ Deputy District Education Officer without having M.A./M.Sc. Degree but shall not be eligible for posting as Subject Specialists or for promotion to the posts in BPS-18 without possession M.A/M.Sc./ M.Ed./ M.A.
(Education)
Note II. Subject Specialists shall not be eligible for posting as Headmaster/ Head-mistress/Deputy District Education Officer shall not be eligible for posting as Subject Specialist unless they have served as such for a period of ten years.
After hearing learned counsel for petitioner and having gone through the impugned judgment carefully, we are of the opinion that contention so raised by the learned counsel, in view of above provisions of the schedule to the Rules, requires consideration as such leave to appeal is granted.
Learned counsel further contended that on the same subject learned Service Tribunal had taken a different view in some of the cases where in candidatures of the candidates, who possess degree of M.A. In third division, have been rejected. In this behalf he made reference to one of the judgments, which has been challenged before this Court in Civil Petition No,1178 of 2004. He further contended that said C.P.S.L.A. Be heard and disposed of along with the appeal arising out of instant petition.
Order accordingly. As short point is involved in the matter and petitioner is going to be retired on attaining the age of superannuation, therefore, office is directed to fix the appeal arising out of instant petition along with above noted petition for leave to appeal, after two months at Islamabad, subject to soliciting necessary approval from Honourable Chief Justice."
2. The claim of the appellant was that he was in service as SS Teacher prior to the promulgation of Punjab .Education Department (School Education) Rules, 1987, and while possessing master degree in third division was entitled for promotion to the post of Headmaster/Deputy District Education Officer (BPS-18) in terms of Note-I to the above rules as amended from time to time but he was wrongly deprived of the legitimate right of promotion and to get the retirement benefit of higher grade. The stance of the department on the other hand, was that the qualification provided in the rules for promotion to BPS-18 was M.A./M.Sc. Second division and appellant having not possessed the requisite qualification, was not eligible for promotion. The appeal of the appellant was dismissed by the Tribunal on the ground firstly that he was not possessing the requisite qualification for promotion to BPS-18 post and secondly, the determination of the question relating to the fitness or otherwise for holding a particular post was beyond the jurisdiction of Tribunal under section 4(1)(b) of the Punjab Service Tribunals Act, 1974.
3. The learned counsel for the appellant with reference to Note-I in column No,7 of the (ibid) rules, has contended that notwithstanding the qualification of second division M.A./M.Sc. Prescribed for appointment/ promotion to BPS-18 posts, the SS Teachers who were in service prior to thend rd nd enforcement of the Punjab Education Department (Schools Education) Rules, 1987, even if were not holding the Master Degree, would be entitled for promotion as Headmaster/Deputy District Education Officer and their ineligibility would be confined only to the extent of posting as Subject Specialist or for promotion to BPS-18 posts but if such a SS Teacher was holding the M.A./M.Sc.
Degree in any division, he would be eligible for promotion to BPS-18 post as Headmaster/Deputy District Education Officer and could also be posted as Subject Specialist. The learned counsel has submitted that in the connected Petition bearing No,1178/L of 2004, (Government of Punjab through Secretary Education v. Ahmed Yar Butta), the Tribunal on the basis of opinion of S&GAD (Regulation Wing), Government of Punjab, vide judgment, dated 6-1-2004 held that SS Teachers with M.A./M.Sc.
Third division, who were in the service of Government of Punjab before the promulgation of 1987 rules, were eligible for promotion to BPS-18 as Headmaster/Deputy District Education Officer and the requirement of M.A./M.Sc. Second division was not applicable to this category of SS Teachers.
4. The learned A.A.-G., on the other hand. Has contended that the basic qualification of M.A./M.Sc.
Second division has been prescribed in the rules for the posts of Headmaster/Deputy District Education Officer, BPS-18, and for Subject Specialist without any distinction and relaxation in favor of SS Teachers referred in Note-I to the above rules was only to the extent of posts of Headmaster/Deputy District Education Officer BPS-17 of the promotion quota.
5. The careful examination of the above rule would show that by virtue of Note-I an exception was created in rules to protect the right of promotion of SS Teachers in service of Education Department, Government of Punjab, immediately before the enforcement of the rules in question.
These SS Teachers were of two categories, graduate and post-graduate. The right of promotion of the first category of SS Teachers was protected against the posts of Headmaster/Deputy District Education Officer in BPS-17 of promotion quota and S.S Teachers of second category possessing master degree in any division, were made eligible for promotion to BPS-18 posts and could also be posted as Subject Specialist. There was no ambiguity in the rules to suggest that the exception created in the rules, would be confined only to the extent of posts of Headmaster/Deputy District Education Officer other than. BPS-18 posts of promotion quota. It may be seen that there is no distinction in the rules so far as the qualification of master degree for promotion to BPS-18 is concerned except that the condition of second division was relaxed for a limited class of SS Teachers, who were in service prior to the enforcement of rules in question. The purpose of this relaxation was to protect their right of promotion and most probably reason for exclusion of the strict application of condition of second division Master Degree for this category of SS Teachers was that in the old promotion policy, there was no such condition of second division M.A./M.Sc.
Degree for promotion to BPS-18 posts of Headmaster/ Deputy District Education Officer. It may be pointed out that placing a different construction on the rules, would amount to deprive this limited class of SS Teachers from their legitimate right of promotion.
6. The Tribunal in a similar case, titled Ahmed Yar v. Secretary Education, Government of Punjab (supra) on the same subject on the basis of an opinion of S&GAD Department, Government of Punjab has taken a different view of the matter and we find that this view of the Tribunal was quite in consonance with law.
7. In the light of foregoing discussion, we hold that appellant was eligible for promotion to BPS-18 under the Punjab Education Department (Schools Education) Recruitment Rules, 1987 and notwithstanding his retirement pending final decision of the case, he would be considered for promotion for the post of Headmaster/Deputy District Education Officer (BPS-18) as per his entitlement in accordance with law. In view thereof, we set aside the judgment of the Tribunal and allow this appeal with no order as to costs.
8. The connected two Petitions bearing Nos.1178/L and 1179/L of 2004 are dismissed.