By this single judgment, I would like to decide the following writ petitions having similar question of law and facts:-- (1)W.P. No. 13843/2009 (2)W.P. No. 13844/2009 (3)W.P. No. 13845/2009 (4)W.P. Nb. 14861/2009
2. The petitioners have filed the instant writ petitions seeking a direction to Respondents No. 1 to 3 to consider the petitioners' case for promotion to the posts of Senior Subject Specialist (BS-18) on the principle of Seniority-cum-fitness and for restraining them from making promotion to the post of Senior Subject Specialist (BS-18) on the basis of any promotion policy/ promotion formula which is not approved by the Government of the Punjab as required under sub-section (2) of Section 24 of the Punjab Textbook Board Ordinance, 1962/1971.
3. The brief facts as stated by the petitioners are that the petitioners were appointed as Assistant Subject Specialist by the respondents and they have been working as Subject Specialist in BS-17 in the Punjab Textbook Board, Lahore, and a combined seniority list of the Subject Specialist (BS-17) of the Punjab Textbook Board was duly notified vide Notification dated 14.09.2004 and 14.05.2007 respectively. It is further stated that the petitioners are now entitled to be promoted as Senior Subject Specialist in BS-18 but are being denied the same on account of the respondents adopting an illegal method of preparing seniority list of the Subject Specialist other than the combined seniority list already prepared in accordance with the Punjab Textbook Board Employees Service Regulations, 1980.
4. It is contended by the learned counsel for the petitioners that through Notification dated 25.07.1981, the method of appointment to the posts of Senior Subject Specialist (BS-18) is as follows:- {{TABLE}} Sr.
No.Functional UnitName of PostExisting pay ScaleAppointing AuthorityMin. qualificationMethod of recruitmentAge for initial recruitment Min.Max 38 Academic WingSenior Subject SpecialistNPS-18 Board By promotion from amongst subject specialists or if no such person is available by direct recruitment25 Years.
Years.45 {{TABLE}} It is further contended that since the establishment of the Punjab Textbook Board till 2004, the posts of Senior Subject Specialist BS-18 used to be filled by promotion on seniority-cum-fitness basis strictly in accordance with the provisions of the above said rules, however, in the year 2005, Respondent No. 1 had framed some policy relating to the promotion to the post of Senior Subject Specialist whereby instead of making appointments by promotion to the posts of Senior Subject Specialist on seniority-cum-fitness basis, it was decided by Respondent No. 1 to fill in the posts of Senior Subject Specialist on the basis of specific subjects only, keeping aside the general principle of senioritycum-fitness whereas neither the said policy has so far been delivered to the petitioners nor the said policy has been notified after the approval of the Government of the Punjab as required under the specific provisions of sub-section (2) of Section 24 of the Punjab Textbook Board Ordinance, 1962 as amended in 1971.
5. It is further contended that in the year 2006 Respondents No. 1 to 3 held departmental promotion committee for filling in the posts of Senior Subject Specialist by adopting policy of making promotion on the basis of specific subjects, keeping aside the well-recognized principle of seniority-cum-fitness; as such, the petitioners submitted their representations before Respondent No. 2 wherein the petitioners specifically requested that the promotion to the post of Senior Subject Specialist may be made on the basis of the seniority-cum-fitness basis as provided under the relevant regulations of the Board but unfortunately the petitioners genuine request was kept aside and Respondents No. 1 & 2 promoted certain colleagues of the petitioners vide order dated 04.07.2007 to the post of Senior Subject Specialist by way of applying illegal policy of making promotion on the 'basis of specific subjects instead of general principle of seniority-cum-fitness; as such, through the said order dated 04.07.2007 two colleagues of the petitioners were promoted, who were juniors to the petitioners whereas the petitioners have been duly ignored. It is submitted that the petitioners agitated the matter before the Chairman Punjab Textbook Board in the year 2006 but due to immense political pressure, Respondents No. 2 & 3 ignored the petitioners in violation of the regulations of the Board by way adopting an illegal promotion criteria of promotion to the posts of Senior Subject Specialist.
6. It is further stated that the petitioner Sarfraz Ahmad is fully qualified being MA in Urdu and is eligible for promotion as Senior Subject Specialist and in spite of a vacancy in the said department, he is not being promoted as Senior Subject Specialist. It is further contended that the petitioner Abdul Rauf Zahid, who is a Assistant Subject Specialist in Physics is also being not promoted as Senior Subject Specialist in spite of vacancy existing in the Physics Department on the vacancy of the said post by a lady namely Nazma Sheikh. It is also contended that the petitioner Muhammad Akhtar Sherani, who has been working as Assistant Subject Specialist in the Math, he has been deputed to work in the manuscript department of the respondents and is not being promoted in spite of the vacancies existing in the Statistics and Computer Science Departments; as such, it is a violation of Article 4 of the Constitution. Reliance in this regard is placed on Muhammad Vs. Pakistan Railways and others (2004 YLR 521). It is vehemently contended by the learned counsel for the petitioners that the amendment being made in the service rules and regulations, is illegal as - the same has been made in violation to sub-section (2) of Section 24 of the Punjab Textbook Board Ordinance, 1971; as such, the bifurcation of the subject specialist cannot be made without the approval of the Government. Reliance in this regard has been placed on Muhammad Ilyas Khokhar and 24 others Vs. Federation of Pakistan and others (2006 SCM R 1240).
7. On the other hand, learned counsel appearing on behalf of the Punjab Textbook Board, when confronted with the violation of subsection (2) of Section 24 of the Ordinance, could not controvert the same and the departmental representative present in Court stated that in pursuance of the same a summary has been sent for seeking the approval from the Government/ competent authority, which is in process. Learned counsel for the respondents, however, vehemently opposed the grounds taken by the learned counsel for the petitioners stating that these writ petitions are not maintainable since the matter pertains to the terms and conditions of the service of the petitioners; there is a bar of Article 212 of the Constitution and that prior to these arrangements, promotions were made on the basis of the seniority, which resulted into erratic posting and promotion in the main subjects and to overcome this problem, category of bracketed subjects specific policy was made and the same has been approved by the Board of Directors and no change is required to be brought in the Punjab Textbook Board Employees Service Regulations, 1980, only the criteria for promotion which is to be changed on the basis of the seniority of specific subjects and the same has been approved by the Advisory Council/ Board of Directors; as such, the respondents have committed no violation; therefore, these writ petitions have no merits and be dismissed.
8. Learned counsel for respondent Aisha Waheed states that in the year 2005-2006, the Board of Directors changed its policy of promotion on subject-wise basis in order to promote specialization which was lacking previously and was creating a hurdle and hampering the progress of the department and the same has been done in order to promote specialization, which is the need of the hour in the world.
9. The learned Addl. Advocate General adopted the contentions of the learned counsel for the respondent/Board.
10.Arguments from the learned counsel for the petitioners as well as of respondents pro and contra have been heard and the material made available on the record has been taken into consideration.
11.It is an admitted position that before the respondents have shifted to the specific subjects policy of the cadre of subject specialist, the same had been made without seeking any amendment as required under sub-section (2) of Section 24 of the Punjab Textbook Board Ordinance, 1962/1971.
Section 24 (2) of the Ordinance, which reads as under:-- "The regulations approved by the Board shall be submitted to Government and shall not take effect until they are approved by Government, Government may approve or disallow or remit them to the Board with its recommendations for further consideration."
In the instant case as admitted by the departmental representative, the approval of the same has yet not been made by the Government. In view of the same, the changing of the policy has been done in violation to Section 24(2) of the Punjab Textbook Board Ordinance, 1971, which cannot, in any circumstances, be considered to have been declared as lawful. In view of the same, it is an illegal act on the part of the respondents; as such, the same be declared null and void. In this regard, reliance is placed on Government of the Punjab, Food Department through Secretary Food and another Vs. Messrs United Sugar Mills Ltd. and another (2008 SCM R 1148) wherein the Apex Court has held that "Where law provided for doing of a particular act in a particular manner, then same would be done in such particular manner or not at all." Further it has been held by the Apex Court in Muhammad Ryas Khokhar and 24 others Vs. Federation of Pakistan and others (2006 SCM R 1240) that "Departmental circular varying the terms and conditions of service was in violation of and in conflict with Ss.3(ii) & 9(b), Civil Servants Act, 1973 as department had no lawful authority to lay down policy, unless the same was approved by the Establishment Division in accordance with the Rules of Business as well as the relevant law on the subject. Ex-post facto approval to such- circular by the Establishment Division would not make the circular valid and legal, which had no legal backing." In these circumstances, illegalities committed by Respondents No. 1 to 3 in clear violation of their own rules and regulations, the same cannot be allowed and it is a fit case where extraordinary constitutional jurisdiction of this Court can be exercised; as such, the bar under Article 212 of the Constitution would not deter this Court in striking down the illegal act on behalf of the respondents. In the case of Dr. Naveeda Tufail and 72 others Vs. Government of Punjab and others (2003 SCM R 291), it has been held that such appointment is a trust in the hands of the public authority and it is their legal and moral duty to discharge their functions as trustees with complete transparency as per requirement of law so that no person who is eligible to hold such post is excluded from the process of selection and is deprived of his right of appointment in service. In the case of Mrs. Abida Parveen Channar Vs. High Court of Sindh at Karachi (2009 SCM R 605), it has been held that "all the public powers must be exercised reasonably and honestly for the purpose for which the same are conferred".
12. In view of the above perspective, these writ petitions are accepted. The departmental specified policy is struck down and respondents are directed to consider the petitioners for promotion to the posts of Senior Subject Specialist (BS-18) on the basis of the combined seniority list as previously had been done by the respondents, strictly in accordance with the provisions of Serial No. 38 of the Schedule annexed with the Punjab Textbook Board Employees Services Regulations, 1980, which were duly notified vide Notification dated 25.07.1981 with the approval of the Government of the Punjab as required under sub-section (2) of Section 24 of the Punjab Textbook Board Ordinance, 1962/1971.