HAFIZ TARIQ NASIM, J. --- Facts leading to this writ petition are that the petitioner was appointed as S. S.t. (Female) in the year 1975, she became eligible for further promotion in BS-18 at the relevant time but she could not be promoted on the plea that she is just B.A./B.Ed., whereas according to the departmental stance the promotion could be awarded to M.A/M. Ed. The learned counsel for the petitioner submits that in identical cases the learned Punjab Service Tribunal allowed the promotion to BS-18 on the basis of qualification as B.A. And he cited a judgment titled as Ahmad Yar v. Secretary (Schools) Appeal No. 2093/2005, dated 23.2.2005 this judgment was also upheld by the Hon'ble Supreme Court of Pakistan titled as Secretary Education v. Ahmad Yar Constitution Petition No. 866-L/2006, dated 15.12.2006. Further submits that as per law laid down by the Hon'ble Supreme Court of Pakistan reported as 1996 SCM R 1185 the petitioner is entitled for the same relief, which was extended to Ahmad Yar a similarly placed colleague.
2. On the other hand, the learned Assistant Advocate General Punjab, Lahore submits that as the petitioner was not a party to the case of Ahmad Yar hence she cannot claim the said benefit.
Further submits that the petitioner has already been retired from service on 19.4.2009 hence she cannot claim promotion in view of subsection (5) of Section 8 of Punjab Civil Servants Act, 1974 which clearly reveals that the promotion cannot be granted to retire civil servants.
3. Arguments heard; available record perused.
4. So far the main objection of the learned Assistant Advocate General Punjab, Lahore that as the petitioner has attained the age of superannuation on 19.4.2009 so she cannot be promoted in view of sub-section (5) of Section 8 of the Punjab Civil Servants Act, 1974 is concerned suffice it to say that the petitioner became eligible for promotion before her superannuation, depriving her from the right of fair consideration for promotion before her superannuation was not the petitioner fault because it was beyond the petitioner's control to get promotion before her superannuation rather the concerned Authorities are responsible for not extending the benefit of promotion to the petitioner before her superannuation and for that some responsibilities must be fixed and responsible be taken to task, It is further observed that the provision of sub-section (5) of Section 8 of the Punjab Civil Servants Act, 1974 cannot be made effective from a back date and cannot be made applicable to those who have already acquired a lawful right for promotion but could not get this right due to inaction of the departmental Authorities, in these circumstances, this objection of the learned Assistant Advocate General Punjab, Lahore is repelled.
5. So far the non-entitlement of promotion to BS- 18 on the basis of non-having M.A/M. Ed., qualification it shall be advantageous to reproduce the relevant portion of the judgment passed by the learned Punjab Service Tribunal in Appeal No. 2093/2005 of Ahmad Yar which is as under:- I have considered contentions from both sides and also gone through the relevant record. I have also gone through the earlier detailed judgment dated 9.3.2004 of this Tribunal in appeal No. 2516/03 and 14 other appeals on the same subject. I agree with the appellant that a note in service rules, which is not inserted at proper place cannot change the provisions of rules as existing at Sr.
No. 3. The provisions of the relevant rules are reproduced as under:- Serial No. 3.
"Qualification: Higher Secondary Schools/Elementary Colleges/in service teachers, training colleges in such cases M.A./M.Sc. 2nd Division with B.Ed, or equivalent qualification M.A./M.Sc. Shall be required."
2. It is further clarified under para-3 of the service rules "75% by promotion on the basis of seniority- cum-fitness from amoung headmasters (BS-17) High Schools/Deputy District Education Officers/subject Specialists of elementary colleges and Higher Secondary School. With i.e years service as such". -- It is therefore quite evident from a plain reading of these sen/ice rules that qualification of B.A./B.Ed. Possessed by S.S.Ts, (promoted as Deputy Headmasters) was basic and minimum qualification prescribed for promotion BS-18,, unless that it was case of promotion as principal. This view was fortified by large number precedents where the department had allowed promotions to BS-18 without linking the same with the condition of M.A./M Ed., appeal is therefore, accepted in terms of judgment dated 9.3.2004 of this Tribunal in appeals No. 2516/03 and 14 others. Appellant is ordered to be considered for promotion to BS-18 w.e.f, the date he was due for that promotion. "
3. To strengthen the argument of the learned counsel for the petitioner it shall be necessary to point out that the said judgment of the learned Punjab Service Tribunal was confirmed by the Hon'ble Supreme Court of Pakistan in C.P. No. 866-L/2006 and the concluding para is useful to be reproduced as under:- "The. Qualification of B.A./B.Ed., possessed by S. S. Ts. (promoted as Deputy Head Masters) has been the basic and minimum qualification prescribed for promotion to BS-18 unless it was a case of promotion as 'Principal.
The learned Tribunal while concluding so, has also observed that in this view of the matter, it has been verified that the earlier view taken in identical matters, particularly when reference to the judgment dated 9.3.2004 passed by the said Tribunal in Service Appeal No. 2516/2003 and 14 others in connected appeals had been accepted by the Education Department and not challenged any further, as such, the appellant (now respondent) could not be denied the benefit of promotion to BS-18 and that in a large number of cases; the Education Department had allowed promotions to BS-18 leaving the decision made by the Tribunal in the above-mentioned appeals without linking the same with the condition of possessing M.A./M.Sc. Degrees, hence; concluded that no exception to the case of the said appellant (now respondent) could be taken by the Tribunal."
4. After going through the entire case putting it to juxta position to the case of Ahmad Yar I am of the considered view that the petitioner is entitled for promotion to BS-18 and she is entitled for the same benefit which was extended to Ahmad Yar a similarly placed colleague of the petitioner and despite the fact that the petitioner was not a party to the lis of Ahmad Yar, she cannot be deprived the said benefit and in arriving this conclusion I can take the strength from the law said down by the Hon'ble Supreme Court of Pakistan reported as 1996 SCM R 1185 and 2009 SC MR 1.
The writ petition is allowed in terms of prayer of the petitioner.