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 Punjab Service Tribunal, Lahore whereby appeal filed by petitioner has been dismissed. Concluding para therefrom reads as under thus:-- "A copy of the relevant Rules have been placed on record. According to the rules, M.A Second Division in the pre-requisite for promotion from BPS-17 to BPS-18. Since, the appellant is admittedly MA 3rd 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 3rd 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 2nd 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 Head Master/Head Mistress are not required to at least possess 2nd Division in M.A. For reference Item No, 5 pointed out by the learned counsel is reproduced herein below:- 1,2,3 4,5,6 7,8 Headmaster/Head- mistresses High Schools with(i) M.A./M.Sc (2nd Div) provided that for those who are33% initial recruitment 67% by promotion enrolement less thanM.A. (English) (3rd from amongst SSTs.
1500 Div(c) the same condition shall apply Note:1: SSTs on Deputy District as mentioned in strength of the Education column (5) Education Department Officer/Subject- (ii) B.Ed. (2nd Div immediately before Specialists. (C) enforcement of these Elementary College(iii) For promotion rules, will be eligible for and Higher to post of Subject- promotion as Head Secondary School Speicalists, the Master/Headmistresses/ (BPS-17). above mentioned Deputy District qualification in the Education Officer relevant subject 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 Head Master/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, wherein candidatures of the candidates, who possess degree of M.A. in 3rd 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 CPSLA 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 Hon'ble 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 (Secondary Education) Rules, 1987, and while possessing master degree in third division was entitled for promotion to the post of Head Master/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 MA/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 Tribunal 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 the enforcement of the Punjab Education Department (Schools Education) Rules, 1987, even if where not holding the Master Degree, would be entitled for promotion as Head Master/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/04, (Government of Punjab through Secretary Education vs. Ahmed Yar Biota), 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 MA/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 MA/M.Sc. Second Division was not applicable to this category of SS Teachers.
4. The learned AAG, 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 Head Master/Deputy District Education Officer, BPS 18, and for Subject Specialist without any distinction and relaxtion in favour of SS Teachers referred in Note-I to the above rules was only to the extent of posts of Head Master/Deputy District Education Officer BPS 17 of the promotion quota.
5. The careful examination of the above rules 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 postgraduate. The right of promotion of the first category of SS Teachers, was protected against the posts of Head Master/Deputy District Education Officer in BPS-17 of promotion quota and SS 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 Head Master/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 the 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 vs. 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 the appellant was eligible for promotion to BPS-18 under the Punjab Education Department (Second Edition) Recruitment Rules, 1987 and notwithstanding his retirement pending final decision of the case, he would be considered for promotion for the post of Head Master/Deputy District Education Officer (BPS-18) as per his entitlement in accordance with law. In view thereof, we set side the judgment of the Tribunal and allow this appeal with no orders as to costs.
8. The connected two Petitions Bearing Nos, 1178-L and 1179-L of 2004 are dismissed.