HAFIZ TARIQ NASIM, J.--- The petitioner is working as Senior Clerk and according to his learned counsel, he is eligible for promotion as Assistant on the basis of seniority-cum-fitness, the posts reserved for selection from within office are lying vacant, office circular dated 6-9-2006 was issued for appointment against the reserved posts, the petitioner being eligible applied for the same along with others but with no progress, whereas the respondents-Board is taking a plea that the Secretary Education Department has directed the Board to shift the mode of recruitment from regular to contract and as such appointment against the posts reserved for selection from within the office be also made in accordance with the Contract Appointment Policy, 2004. The petitioner and his colleagues approached the concerned quarters but with no result, so this writ is filed with the prayer that the letter dated 13-12-2006 and inaction of the respondent in not completing the process of selection in accordance with the letter dated 6-9-2006 be declared illegal with a further prayer that the petitioner be ordered to be promoted/selected against the post applied for. In support of his submissions, the learned counsel has relied on a judgment in the case of Hafiz Ghulam Mohayuddin v. Government of the Punjab and others 2000 PLC (C.S) 95 and a judgment passed by the apex Court reported as Rana Muhammad Ilyas and others v. Board of Intermediate and Secondary Education PLD 2001 SC 531.
2. On the other hand, respondent No,1 is represented by the learned Assistant Advocate General who submits that as per Chapter 19(2)(vii) of the Calendar of Board of Intermediate and Secondary Education, Mode of Appointment of Superintendents, Assistants and Senior Clerks as under:-- "Every" fifth post in the cadres of Superintendents, Assistants and Senior Clerks shall be filled in by selection from within the office on the basis of merit and qualifications mentioned in Rule 19.1(iv) and (v) after filling the first four posts by promotions in each cadre from the next lower grades on the basis of seniority cunt merit and without restriction of qualifications mentioned in Rule 19.1(iv) and (v); ' The true sense of the above Mode of Appointment that is every fifth post in the cadres of Superintendents, Assistants and Senior Clerks is to be filled in by selection from within the office on the basis of merit and qualification mentioned in Rule 19.1(iv)(v) is to incorporate fresh blood for smooth working of the Boards/establishment. As to the letter dated 13-12-2006 the same has been issued by respondent No,1 pursuant to the advice of Regulations Wing, Services and General Administrative Department, directing all the Boards to comply with the instructions in accordance with the provisions of Contract Appointment Policy, 2004."
' Further submits that the Board of Intermediate is bound to follow the policy of the Government of Punjab and cannot deviate.
3. On behalf of respondents Nos.2 and 3, it is submitted that on 6-9-2006 the office of the Board of Intermediate and Secondary Education, Lahore vide office Circular No,3623-24 invited applications for the post of Assistant to be filled in by selection from within the office on the basis of merit and qualification. Before filling the above said posts of Assistants, the Government of the Punjab, Education Department being the Controlling Authority vide letter dated 13-12-2006 directed the Board of Intermediate and Secondary Education, Lahore to make all appointments against the post reserved for selection from within the office and direct recruitment on merit be made strictly in accordance with provisions of Contract Appointment Policy, 2004. The direction of Controlling Authority/respondent No,1 contained in letter dated 13-12-2006 by virtue of section 12(6) of the Punjab Boards of Intermediate and Secondary Education Act, 1976, is binding on the Board, so the Board is helpless to grant a relief to the petitioner.
4. Arguments heard. Available record perused.
5. In the case of Hafiz Ghulam Mohayuddin referred above, this Court held:-- "Such in-service teachers who had a legitimate expectancy of applying against the reserved quota were likely to be adversely affected by filling of total posts from fresh candidates-Any such policy of the Government was violative of the provisions of existing rules and the same was not sustainable---Where quota was fixed in Punjab Education Department (School Education)
Recruitment Rules, 1974, the Government could not make recruitment arbitrarily in disregard to such a quota---Contract appointments could be made against validly created posts and where provision had been made in the rules vesting an Authority to make such recruitment---Where the Department had no authority in law to arbitrarily dispense with the rules on the subject and convert substantive posts into contract posts, such an order/letter of the Department was set aside by High Court."
6. In the case of Rana Muhammad Ilyas and others, the Honourable Supreme Court of Pakistan categorically held that the directive of the Government which is applicable to the employees of the Education Department cannot be stretched to cover the case of the employees of the Boards.
7. In the present case, the petitioner is a legitimate expectant for the post applied in the year, 2006, his eligibility is not disputed, any condition contained in the letter dated 13-12-2006 cannot be applied in the petitioner's case in any respect, at the most direct recruitment by the Board can be made on contract following the Contract Policy of the Government of Punjab but the posts reserved for in-service quota cannot be amenable to the letter dated 13-12-2006 issued by the Government of IC Punjab.
8. Following the law referred above, it is held that the applications of the petitioner and his colleagues of the year, 2006 against the posts of Assistants shall be deemed to be pending, which shall be considered and finalized independent of letter dated 13-12-2006 issued by the Government of Punjab, Education Department.