' RAJA FAYYAZ AHMED, J.--- This civil petition for leave to appeal has been directed against the judgment dated 2-9-2003 passed in Service Appeal No,2088 of 2000 filed by respondent, Amil Khan Wazir, Director, Physical Education, whereby his appeal has been accepted and the departments of Education and Finance were directed to formulate a policy and service structure for the D.P.Es. On the pattern of Punjab Government or Federal Government before 31st May, 2004, failing which, the pattern/policy of Punjab Government would be deemed to have been adopted in letter and spirit.
2. The precise facts of the case are that the respondent filed service appeal before the learned N.- W.F.P. Service Tribunal, Peshawar, hereinafter referred to as the learned Tribunal', wherein the following reliefs were claimed:-- "It is, therefore, most respectfully prayed that on acceptance of this appeal, the impugned action of the respondents being discriminatory, violative of the Constitution, illegal, mala fide, without lawful authority and without jurisdiction and on such declaration, an appropriate order be issued to the respondents to allow BPS-18 to the appellant from 12-4-1978 and move-over to BPS-19 falling on due date including with all back benefits."
3. The case of the respondent, as set up in the service appeal, has been that he was initially inducted in service as Director, Physical Education in BPS-16 on 21-2-1974 after acquiring senior Diploma in Physical Education and subsequent thereto he qualified M.Sc. In Health and Physical Education on 12-4-1978-and later on move-over to BPS-18 was granted to him w,e,f, 1-12-1989. It has further been pleaded that the service structure of the Physical Education has elaborately been dealt with vide Education Policy issued by the Ministry of Education, Government of Pakistan in 1972 providing therein that the teachers belonging to Physical Education will be governed by the same terms and conditions of service besides salary and status including prospects of promotion as teachers with comparable qualifications available to the teachers of the other disciplines. However, the case of the respondent was that inconsonance with the above quoted Education Policy and analogy, the Government of Punjab issued a Notification, dated 10-9-1991, whereby the post of Director, Physical Education (BPS-17), who possessed degree of M.A. In Physical Education have been redesignated as Lecturers in Physical Education and in relaxation of Rule 3 of the Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974 to absorb them in the General Cadre of Lecturers (Colleges) of Education Department with immediate effect, whereas; petitioner No,2, Director of Education (Colleges) N.-W.F.P., Peshawar in view of the Education Policy, 1973 issued by the Ministry of Education, Government of Pakistan. And the above referred Notification of the Government of Punjab dated 10-9-1991, recommended and processed the matter for up-gradation of the post of Director Physical Education to BPS-18, vide recommendations dated 16-8-1995 and 3- 9-1996 but with no result. The respondent after issuance of Education Policy in the year 1973 and the first recommendations made by petitioner No,2 on 16-8-1995 for up-gradation of the post of Direction Physical Education to BPS-18 for the first time filed representation on 18-4-2000 to the Secretary Education, Government of N.-W.F.P., Peshawar requesting for re-designation of the post of Director of Physical Education, as Lecturer in Health and Physical Education/entitled to the benefits of 4-Tier Structure to which no response despite lapse of 90 days from the date of representation was filed, hence; he approached to the learned Tribunal by filing service appeal.
4. Mr. M. Bilal, the learned Senior Advocate Supreme Court for the petitioners and Mr. Roohul Amin, the learned Advocate Supreme Court for the respondent have been heard.
' Mr. M. Bilal, the learned Senior Advocate Supreme Court strenuously contended that the learned Service Tribunal travelled beyond its jurisdiction and the specified parameters of law, has granted the relief as prayed for in the service appeal. According to the learned counsel, the learned Tribunal had no jurisdiction to grant the reliefs prayed for within the provided spheres of law, as laid down by section 4 of the N.-W.F.P. Service Tribunals Act, 1974 and to direct the departments of Education and Finance, Government of N.-W.F.P. To formulate a policy and service structure for the D.P.Es. On the pattern of Punjab Government or Federal Government before 31-5-2004 failing which the pattern/policy of the Government of Punjab would be deemed to have been adopted in letter and spirit. The learned Advocate Supreme Court maintained that the matter does not relate to the terms and conditions of the service of the respondent in the light of the 4-Tier Structure notified Scheme issued by the Federal Government in respect of the teachers of General Cadre of the Federal Government Educational Institutions, Islamabad/Federal Area, whereby the service structure of the teachers of the General Cadre has been re-organized involving up-gradation/re- designation of teachers of the General Cadre, which by no stretch in terms could be made applicable to the case of the respondent nor the same can legitimately be enforced to the case of the respondent by approaching to the learned Service Tribunal, and; learned Tribunal cannot direct the Government to formulate policy and service structure for the D.P.Es. On the pattern introduced by the Government of Punjab or Federal Government before a specified date failing which the pattern/policy Punjab Government would be deemed to have been adopted in letter and spirit. The learned Senior Advocate Supreme Court further contended that the learned. Tribunal has mis- exercised the authority vested in it, as well as; passed the impugned judgment in violation of the law, liable to be set aside.
5. The learned Advocate Supreme Cart for the respondent contended that in the light of the Education Policy, 1973 issued by the Government of Pakistan, as well as; in view of the service structure of the staff members of the. Physical Education required to be re-organized or re- structured inline with the teachers of the General Cadre of the Federal Government Educational Institutions, Islamabad/Federal Area, as made by the Notification dated 4-9-2000, which has also been followed by the Government of Punjab adversely affected the legitimate rights of the respondent to further promotions in higher grades being at par with the other teachers of the Federal Government Educational Institutions and the Education Department of the Government of Punjab, were constrained to file Writ Petition No,379 of 2000 in the Peshawar High Court, Peshawar disposed of by the learned High Court on 6-6-2001 with the observation that in view of the constitutional bar as contained in Article '212 writ as prayed for could not be issued and secondly the relief prayed for since involves a number of changes in the entire structure of the service cadre of lecturers qua inter se seniority of the petitioners in addition to financial implications and the demand of the petitioners can be met with only after thorough examination by the concerned authorities with the further observation that the Provincial Government, to appoint a Committee to examine the entire case and, if possible to give them an adequate relief by making suitable changes in the service structure of the petitioners. After that according to the learned Advocate Supreme Court, the petitioners in the writ filed before the Peshawar High Court approached to this Court by preferring Civil Petition No,364-P of 2001, disposed of by this Court vide order, dated 7-5- 2004, as not pressed in view of the statement made before this Court by the learned Advocate- General, N.-W.F.P. That summary for suitable changes in the service structure of the petitioners has been moved to the Chief Minister and its finalization, would entail pursuant to which sometime through Notification dated 25-10-2003, a Committee on the subject was constituted by the Government of N.-W.F.P., Higher Education Department, but with no positive result, hence; being constrained and having been left with no option, the petitioners approached to the learned Service Tribunal N.-W.F.P. Peshawar seeking for appropriate reliefs. The learned Advocate Supreme Court strenuously contended that the respondent has been meted out with discriminatory treatment along with the other staff members of the Physical Education though being entitled in view of his qualification and status to be treated alike with the lecturers and so on by designation, status and grades similarly placed and situated in the Educational Institutions of the Federal Government and the Education Department of the Government of Punjab. The learned Advocate Supreme Court further submitted that the learned Tribunal appropriately on correct application of law passed the impugned judgment to which no exception can be taken. After concluding the arguments, Mr. Roohul Amin, the learned Advocate Supreme Court for the respondent placed on record photostat copies of the order, dated 6-6-2001 of the Peshawar High Court, Peshawar passed in Writ Petition No,379 of 2000 (Sultan Mahmood and others v. The Secretary Education and others), Notifications dated 25-10-2003, 16-12-2003 of the Government of N.-W.F.P., Higher Education Department, Peshawar, order, dated 7-5-2004 of this Court passed in Civil Petition No,364-P of 2001 (Sultan Mehmood and others v. Province of N.-W.F.P. Through Secretary Peshawar and others), judgment dated 15-2-2005 of this Court passed in Civil Appeals Nos.589 and 590 of 2000 (Muhammad Ismail v. Fazle Rehman) and Notification dated 10-5-2005 of the Government of N.-W.F.P., Higher Education, Archives and Libraries Department, Peshawar.
6. The contentions noted above put forth on behalf of the parties learned counsel have been considered in the light of the impugned judgment and the documents available on record including the photostat copies of the documents filed by the learned Advocate Supreme Court for the respondents after the conclusion of his arguments.
7. It is worthwhile to note that the respondent was not a party to the legal proceedings launched through writ petition before the learned Peshawar High Court and this Court, however; the fact remains that in the light of the observations made by the learned Peshawar High Court in its order, dated 6-6-2001 passed in Writ Petition No,379 of 2000 referred to above Notification dated 25-10- 2003 was issued by the Government of N.-W.F.P., Higher Education Department, whereby the Committee headed by the Secretary, Higher Education Department, as its Chairman was constituted to make recommendations in respect of the issue for re-designation of the post of Director Physical Education as Lecturer Physical Education and to merge them in the General Cadre by amending relevant rules, the implications involved in respect of the proposed amendments to be worked out for perusal and orders of the competent authority, which eventually submitted its recommendations on 11-12-2003 pursuant to which a sub-committee was constituted to hold its meetings on weekly basis in order to examine the case of the service structure of the D.P.Es. On the pattern of Punjab, Azad Kashmir and Federal Government to submit reports and recommendations to the Secretary Higher Education Department for further proceedings in the case, within a period of one month from the date of issuance of Notification, dated 16-12-2003. It appears that pursuant to the statement made by the learned Advocate- General, N.-W.F.P. Before this Court in Civil Petition No,364-P of 2001, the matter was expedited. Copy of the judgment of this Court passed in Civil Appeals Nos.589 and 590 of 2000 does not relate directly to the subject in hand. Eventually the Government of N.-W.F.P..Vide Notification dated 10-5- 2005 accorded administrative approval for the placement of 25% of the sanctioned posts of Director Physical Education BPS-16 in BPS-17 and 25% of the BPS-17 posts in BPS-18. Further notifying that share of male and female D.P.Es. Will be worked out on the basis of their sanctioned strength.
8. As hereinabove noted, the learned Advocate Supreme Court for the respondent after the conclusion of his arguments placed on record the above mentioned documents including copy of Notification dated 10-5-2005, nor was the same provided beforehand to the other side. He also made no comments nor made any submissions in view of the Notification dated 10-5-2005 eventually issued by the Government of N.-W.F.P. Relating to the subject through which Grade-17 and Grade-18 respectively has been provided to the Directors Physical Education on ratio-wise basis without re-designating them as Lecturers Physical Education but as no arguments or contentions in respect of the last mentioned Notification was advanced by the learned counsel for the respondent nor during the arguments this Notification was brought to the notice of the Court, therefore, we refrain to take the same into consideration for the purposes of disposal of this petition.
9. Adverting to the contentions raised by the learned Senior Advocate Supreme Court for the petitioners, it may be seen that declaration was sought for from the learned Tribunal that refusal on the part of the concerned departments to re-designate and re-structure the service cadre of the Directors Physical Education in equal grades as compared to the College Lecturers of General Cadre similarly placed and situated is illegal, mala fide and violative of the Constitution and on such declaration an appronriate order be issued to the respondents in service appeal to allow BPS- 18 to the respondents from 12-4-1978 and move-over to BPS-19 with all back benefits, obviously in the circumstances of A the case falls beyond the scope of provisions of section 4 of the N.-W.F.P.
Service Tribunals Act, 1974, within which the learned Tribunal has to exercise its jurisdiction, but the learned Tribunal on the one hand accepted the appeal by granting the relief as prayed for including the grant of BPS-18 to the respondent with effect from 12-4-1978 and move-over to BPS-19 with all back benefits without examining the case of the respondent on merits as to his entitlement to the grant of BPS-18 with effect from 12-4-1978 and move-over to BPS-19 from the due date inclusive of all consequential benefits, which consequently in our considered view on this score alone is not sustainable being violative of law; and on the other hand, the learned Tribunal transgressed the authority vested in it to be exercised squarely within the purview of section 4 of the N.-W.F.P.Service Tribunals Act, 1974 by directing the administrative departments of the Government to formulate a policy in line with the service structure notified for D.P.,Es. On the pattern of Punjab Government or Federal Government before the specified date failing which the pattern/policy of the Punjab Government would be deemed to have been adopted in letter and spirit. This could not have been done in the lawful exercise of powers by the learned Tribunal to substitute its own decision for that of the Government of N.-W.F.P. To be taken and exercisable by it in accordance with the law after taking into account of the pros and cons of the matter involving financial and administrative implications including inter se seniority of the incumbents etc. As rightly so held by the learned Peshawar High Court in its above referred order.
10. Besides, the above discussed aspects of the case, it is worthwhile to note that according to the respondent's own showing in the year 1973, Education Policy was issued by the Ministry of Education, Government of Pakistan and after lapse of considerable period, the Government of Punjab in consonance with the Education Policy issued notification dated 10-9-1991, whereby the post of Director, Physical Education (BPS-17), who possessed degree of M.A. In Physical Education were redesignated as Lecturers in Physical Education and in relaxation of Rule 3 of the Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974 to absorb them in General Cadre of Lecturers (Colleges) of Education Department with immediate effect, whereas; for up-gradation of the post of Director of Physical Education to BPS-18, recommendations were made by petitioner No,2 dated 16-8-1995 and the respondent for the first time filed representation on 18-4-2000 to the Secretary Education, Government of N.-W.F.P, Peshawar requesting for re-designation of the post of Director, Physical Education, as Lecturer in Health and Physical Education Department, as well as; entitled to the benefits of 4-Tier Structure Scheme to which no response despite lapse of 90 days from the date of representation was shown, so he approached to the learned Tribunal by filing service appeal, therefore, in our considered view the representation made by the respondent was barred by time and consequently; on this score too, the service appeal filed before the learned Tribunal would be incompetent. Such a proposition has been dealt with by this Court in its judgment passed in the case of State Bank of Pakistan v. Khyber Zaman and others 2004 PLC (C.S.)
1213, wherein it has been held that it is a well-settled legal proposition that a service appeal would be incompetent in case the appeal before the departmental authority is time barred.
11. The learned Tribunal without applying its mind to the facts of the case, scope of powers, exercisable by it under the law passed a sweeping judgment in violation of the law, which could not be allowed to hold the field on any ground. Consequently, the impugned judgment is set aside by converting this petition into appeal, which stands disposed of in the above terms, leaving the parties to bear their own costs.