TASSADUQ HUSSAIN JILLANI, J.---This order shall dispose of Civil Petitions Nos. 1449-L and 1450-L of 2010 as they are directed against the same judgment dated 17-6-2010 passed by the learned High Court whereby the constitutional petitions filed by the petitioners and others similarly placed were disposed of with observations/ directions as under: -- "(i) All the teachers in the lower scales shall be promoted to the post of E.S.T out of 50 % in-service quota in accordance with their qualification required for the aforesaid post and length of their service in the lower grades.
(ii) All Elementary School Teachers (ESTs) and all English Graduate Teachers (now E.S.T. (English)) will be promoted to the post of S.S.T. Out of 50% in-service quota in accordance with the amendment introduced by the Government of the Punjab in the year 2008 in the Punjab Education Department (School Education) Recruitment Rules, 1987."
2. Facts in brief are that petitioners, who were initially contract employees and were selected as English Graduate Teachers in the year 1994 in BPS-14, sought their regularization and made representations; filed appeals before the Service Tribunal which exercise ultimately culminated in the judgment of this Court dated 28-3-2003 in Civil Petitions Nos. 127, 4178 to 4180-L of 2002 whereby this Court held them eligible for consideration for the grant of SST Grade in terms as follows:-- "6. Having considered the arguments canvassed at the bar, without dilating upon the respondents' stance of confirmation, acquiring permanent status with the efflux of time, we find ourselves in agreement with the conclusion arrived at by the learned Chairman Punjab Service Tribunal, holding that the respondents are not contractual employees.
7. Factum whereof is patently demonstrated by the bare perusal of their appointment letters explicitly categorizing the same as temporary, regulated under the Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974, without being school specific, for the spelt out restriction in terms of time span is only to avoid rapid transfers to extraneous considerations, therefore, for all intents and purposes are eligible for consideration of their candidature for the sought for awarding of S.S.T. Grade.
8. In view whereof, the petitions being devoid of any substance, fail are hereby dismissed, leave declined."
3. Notwithstanding the afore-referred judgment, petitioners and others made complaints that the judgment of this Court was being misinterpreted and a second round of litigation commenced. Petitioners before this Court filed Writ Petitions Nos. 9624-of 2010 and 8567 of 2009. In the former writ petition, petitioners .Sought direction that the respondent Department be directed to upgrade their posts from BPS-14 to BPS-16 with all back benefits whereas in the latter writ petition the prayer was that the respondents be directed to implement the orders of the High Court passed in Writ Petition No, 5366 of 2007. Vide the order dated 23-6-2009, a learned Single Judge of the High Court had directed as follows:-- "Report and parawise comments filed by the respondents are not satisfactory. They are bound to implement the order dated 28-3-2003 passed by August Supreme Court of Pakistan in letter and spirit. They cannot defy the above-said order through wrong interpretation as well as the lame excuses. This petition is allowed. The respondents are directed to award the petitioners SST grades BPS-16 in the light of judgment of Hon'ble Supreme Court of Pakistan within a period of two months positively. This petition is disposed of accordingly."
4. Petitioners have all along maintained that this Court vide the judgment to which reference has been made in para 2 above, had directed the respondent Department to grant them SST Grade i,e, BS-16. In support of these petitions, learned counsel for the petitioners submitted that the petitioners are still in Grade-14 despite the judgment of this Court and the order of the High Court to which reference has been made above whereas the Primary School Teachers who were in BPS-9 stand promoted.
5. Learned Additional. Advocate-General, on the other hand, defended the impugned judgment by submitting that all the petitioners and several other teachers were recruited in the year 1994 as English Graduate Teachers in BPS-14 on contract basis; that their appointment was school specific; that the terms and conditions of appointment did not envisage any onward mobility; that subsequently they filed representations to be regularized in service; that their representations were dismissed against which they filed appeals before the Punjab Service Tribunal which were allowed vide the judgment dated 20-10-2002 against which the Government of Punjab filed petitions for special leave to appeal before this Court (Civil Petitions Nos.127, 4178-L to 4180-L of 2002) which were dismissed and this Court while upholding the judgment of the Punjab Service Tribunal had directed that the petitioners and similarly placed teachers be considered for awarding SST Grade. He adds that in compliance with the judgments of Punjab Service Tribunal and of this Court, 50 % seats/posts of SST Teachers were filled in by promotion quota and several colleagues of the petitioners were accommodated in the said quota and petitioners, who could not qualify on account of their seniority position, agitated the matter afresh in the current round of litigation, which is not tenable.
6. Having heard learned counsel for the petitioners and learned Law Officer at some length, we are of the view that the grievance of the petitioners agitated in the earlier round of litigation was attended to by the Punjab Service Tribunal in its judgment dated 20-10-2002; their appeals were allowed and it was observed and held as follows:-- "13. The playing field having been levelled, further question, which arises for adjudication, is whether the appellants were entitled to compete for the post of SST in higher grade. The teachers made eligible to be appointed on 50% basis from in service quota were required to be B.Ed or to possess higher qualifications. All the appellants, I am told are B.Ed and one of them is in possession of Master Degree, a fact not refuted by the respondents. It would be violation of the fundamental rights of equality as well as the right to choose one's profession, if their applications are not considered for appointment to the post of SST.
14. The upshot of the discussion, therefore, is that impugned order of the director Public Instructions (SE) Punjab, Lahore dated 15-7-2002 is set aside on the ground that reasoning given is not acceptable on the detail exegesis made in the preceding paragraphs of this judgment. Appeals of the appellants are accepted and their application for appointment as SST shall be deemed to be pending and would be considered without any loss of time on merit in accordance with law."
7. The afore-referred judgment was challenged by the respondent Punjab Government, which was dismissed on 28-3-2003 by this Court to which reference has been made in Para-2 above.
8. To give effect to the afore-referred judgments of the Punjab Service Tribunal and of this Court, the Government of Punjab amended the service rules vide notification dated 28-7-2004 whereby Graduate English Teachers were treated as civil servants and the Punjab Civil Servants (Appointment and Conditions of Service)
Rules, 1974, were made applicable. Vide a letter dated 23-12-2004 to which reference has been made in the impugned judgment, the Government of Punjab issued instructions to the following effect:- "1. Graduate English Teachers will be treated as regular appointments from the date of their joining subject to fulfilment of prescribed professional qualifications. They will be entitled for all service benefits as admissible to a civil servant.
2. Service of only such Graduate English Teachers will be regularized who are present in continuous service from the date of their appointment.
3. Appointing Authorities will issue formal notification of regularization of all Graduate English Teachers in their respective Districts with the prior approval of respective Departmental Selection/Promotion Committees, as per policy, rules and laid down criteria, presenting a proper Working Paper before the Committee.
4. Posting/transfers of Graduate English Teachers will be governed by the Transfer Policy of the Education Department in vogue.
5. The seniority of Graduate English Teachers will be maintained separately and district-wise. Each District will prepare and issue separate seniority list respectively. The English Teachers will have to lose seniority at the time of interdistrict transfer.
6. Those Graduate English Teachers who were proceeded against under E & D Rules or any other rules/law and have been removed, dismissed from service cannot be considered for regularization. Besides those Graduate English Teachers who are facing proceedings under any law, rule will not be considered for regularization."
9. However, the issue was not conclusively resolved and another controversy erupted i,e, whether the in-service Lower School Teachers were to be absorbed against the posts of Secondary School Teachers (BPS-16) with effect from the date of their passing professional qualification (B.Ed and M.Ed) or their length of service was to be taken into account. Teachers canvassed that they be absorbed on the basis of their length of service whereas the respondent Education Department was of the view that in case of absorption of Lower Scale Teachers, the date of their passing of professional qualification of B.Ed and M.Ed should be considered. The teachers went in appeals before the Punjab Service Tribunal which were allowed and it was directed that in service teachers who were duly qualified, be given SST Grade on the basis of seniority cum fitness. This was challenged by the Government of Punjab in Civil Petitions Nos. 1326-L, 1382-L to 1385-L, 1392-L, 1409-L and 1424-Li of 2005, which were dismissed and the court vide the judgment dated 7-2-2006 observed as under:-- "The Government of the Punjab, Education Department, vide Memorandum No, SO (NG)1-47/72, dated 14-1-1974, took, a policy decision whereby 50% quota was reserved for those in service teachers in all the higher grades who would improve their, educational qualification whilein service. For that purpose a merit list was to be prepared for each category of higher post up to the post of Senior English Teacher (nomenclature changed to that of SST) from the date of qualifying the respective - educational qualification prescribe for each category of posts. The Services General Administration and Information Department, Government of the Punjab vide notification dated 8-1-1987 made the Punjab Education Department School Education Recruitment Rules, 1987, where under post of Secondary School Teacher (SST) (BS-16) was required to be filled by initial recruitment. The minimum qualification for the post was BA/BSC and B-Ed/DT from a recognized University or equivalent qualification of higher qualification i,e, MA in Education. The qualifying age for the post was between 18 to 35 years. The said Rules were amended by the Government notification dated 27-7-1991 which laid down that the post of SST was to be filled by initial recruitment provided that 50% posts would be filled from in service teachers possessing prescribed qualification for initial recruitment for the post. These reserved posts of SST (BS-16) are neither advertised nor any test, competitive examination or interview is conducted by the competent authority in order to determine the merit. Even the upper age limit of 35 years is not adhered to avoid hardship to the teachers. The conditions laid down in Rules 16 and 17 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, are not satisfied in the case of in service candidates (Although the posts of SST (BS-16), out of reserved quota of 50% are to be filled by initial recruitment of in service teachers but no tangible and rational basis or minimum length of service in a particular cadre or post has been laid down). It is all left to the whim and caprice of the Government to act in any manner it may like. The respondents who are admittedly qualified and senior to those who were appointed earlier on the basis of date of acquisition of academic qualification. The Tribunal took a just, fair and equitable view of the matter in directing the grant of SST grade of duly qualified and suitable in service teachers on the basis of seniority cum-fitness. A some what similar view has already been taken by this Court in the cases of Director Public Instructions Schools (SE) Punjab and others v. Zaka Ullah Khan (Civil Review Petition No,451 of 2001 decided on 20-5-2004), Director Education (Secondary), Murree Road, Rawalpindi and others v. Abdul Rauf Kiyani and others (Civil Petition No,1079-L of 2003 decided on 15-12-2005) and Raja Muhammad Ashraf and others v. Secretary Education, Government of Pakistan and others (Civil Petitions Nos. 491 and 504 to 510 of 1997 decided on 23-12-1997). The impugned judgment does not suffer from any defect or other legal infirmity."
10. Pursuant to the afore-referred judgment, the Government of Punjab, Education Department issued letter dated 13-5-2006 whereby it was directed that 50% posts of Secondary School Teachers (BS-16)/SV, EST, AT would be reserved for in service teachers possessing prescribed qualification for initial recruitment. Pursuant to the afore-referred judgment,. The Government of Punjab issued letter dated 13-5-2006 wherein with a view to avoid any anomalous situation, it was directed as under: -- "(1) A consolidated merit list of lower scale teachers i,e, GET/EET, LEARNED COUNSEL, EST, OT, AT, SV, DM, PET, PTC etc. Shall be prepared on the basis of length of regular service in the respective district.
(2) The vacancy position against 50% quota prescribed in the recruitment rules/policy of the post of SST, EST, AT, SV, on the basis of district sanctioned strength shall be calculated in the respective district.
(3) The synopsis/Character role of lower scale teachers who possess the prescribed qualification of the post of SST, EST, AT, SV, shall be prepared and placed before District Selection Committee for recommendations.
(4) The appointing authority, on receipt of recommendations of District Selection Committee, shall issue appointment orders accordingly. The above policy instructions shall come into force with immediate effect."
11. To further streamline the process of recruitment, Government of Punjab issued Punjab Education Department (Schools Education) Recruitment Rules, 1987, which laid down elaborate procedure for recruitment and for the grant of SST Grade. A reference to which would be in order, which is as under:-- *GOVERNMENT OF THE PUNJAB SERVICES AND GENERAL ADMINISTRATION DEPARTMENT Dated, Lahore, the 24th December, 2008 ' NOTIFICATION ' No, SOR-III-S&GAD-1-19/2004.---In exercise of the powers conferred upon him under section 23 of the Punjab Civil Servants Act, 1974 (VIII of 1974), the Governor of the Punjab is pleased to direct that in the Punjab Education Department (School Education) Recruitment Rules, 1987, the following further amendments shall be made: AMENDMENTS: In the said rules, in the schedule, for the existing entries against the post at Serial No, 7, in column Nos. 4, 5, 6 and 7 the following shall be substituted respectively:-- Name of the Deptt.Functional UnitName of the Post with GradeAppointing AuthorityMinimum Qualification for AppointmentMethod of RecruitmentAge for initial RecruitmentExamination Training and Conditions required for confirmation By initial RecruitmentBy PromotionMin Max 1 2 3 4 5 6 7 8 9 10 Edu- cation Deptt.School Education7.
Secondary School Teacher
(SST) (BS- 16)EDO (Education)BA/BSc. (2nd Div.) with B.Ed. (2nd Div.) from it a recognized University / Institute or equivalent qualification or Higher qualification in discipline of Education from a recognized University / InstittuteBA/BSc.
(2nd Div.) with B.Ed.
(2nd Div.) from it a recognized University / Institute or equivalent qualification or Higher qualification in discipline of Education from a recognized University / Instittute(i) 50% of the posts shall be filled in by initial recruitment provided further that:
(a) 75% from amongst the Science Graduates (having the B.Sc. qualification with three elective subjects out of Mathematics (a), Mathematics (b), Physics, Chemistry,18 35As may be prescribed by the Government.
Botany or Zoology).
(b) 25% from amongst Graduates in Arts subjects.
(ii) 50% of the posts shall be filled in by promotion from amongst the Elementary School Teachers (General, Technical, Agri, Vernacular, Arabic, Oriental, Drawing, Physical Education, English) having prescribed qualification as mentioned in Column No.6 on the basis of length of service from the date of regular appointment in the respective District, provided further that:
(a) 75% of the posts shall be allocated for teachers in Arts subjects.
(b) 25% of the posts shall be allocated to the Science Graduates (having the B.Sc. qualification with three elective subject out of Mathematics (A), Mathematics (B), Physics, Chemistry, Botany or Zoology).
' BY ORDER OF THE GOVERNOR OF THE PUNJAB ' JAVAID ASLAM ' ADDITIONAL CHIEF SECRETARY"
12. Notwithstanding the afore-referred Rules, it appears that the petitioners still maintain that this Court vide the earlier judgment referred to in para T above (dated 28-3-2003) had held them entitled to the grant of SST Grade. The judgment of the learned Single Judge of the High Court dated 23-6-2009 whereby on the one hand the court directed the respondents to "implement the order dated 28-3-2003 passed by August Supreme Court of Pakistan in letter and spirit" and on the other hand it added that "the respondents are directed to award the petitioners SST grades BPS-16 in the light of judgment of Hon'ble Supreme Court of Pakistan within a period of two months positively" was besides being inconsistent did not reflect, we may observe with respect, a correct interpretation of this Court's judgment. The right granted was to be considered for the grant of SST Grade which right is being regulated by the rules framed by the Education Department to which no exception can be taken. A learned Full Bench of the High Court in the current round of litigation vide the impugned judgment having considered the issues raised and the relief granted by this Court in the earlier round has disposed of the petitions by directing that all the teachers in the lower scale shall be promoted to EST out of 50 % in service quota in accordance with their qualification required for the aforesaid post and length of their service and with regard to the Elementary School Teachers and English Graduate Teachers it has held that they will be promoted to the post of SST out of 50% in service quota in accordance with the amendment introduced by the Government of Punjab in the year 2008 vide Punjab Education Department (School Education) Recruitment Rules, 1987. This judgment has not been found by us to be against the law, the rules framed by the Government of Punjab and the judgments of this Court referred to in the preceding paragraphs.
13. For what has been discussed above, we do not find any merit in these petitions, which are dismissed and leave refused.