MUHAMMAD HASHIM KHAN KAKAR, (CHAIRMAN).---This appeal under section 4 of the Balochistan Service Tribunals Act, 1974 has been filed by the appellant with the following prayer:--- "It is, therefore, respectfully prayed that this Hon'ble Tribunal may graciously be pleased to set aside the impugned Notification No,SOR-II(4)21/S&GAD/347-400 dated 20th March, 2010, issued by the respondent No,2 to the extent of condition/note imposed to the appendix at S.No,13 SST (General) (B-16) of Balochistan Education Department (School Branch) (Men's Section) (Grade-1 and above) Service Rules, 1981 as well as circular/letter No,50% promotion 6120-5/EB dated 3rd April, 2010, issued by the respondent No,4, being illegal, unlawful and unjust and to direct the respondents to consider the promotion of the appellant as SST (General) (B-16) on the basis of seniority list prepared on Provincial basis w,e,f, the date of passing of B.ED examination, in the interest of justice, fair play and equity."
2. The relevant facts in small compass are that the appellant was appointed as J.V. Teacher in Government High School, Kotwal by the then District Education Officer Quetta, vide order dated 23rd September 1987. Thereafter the appellant did his B.A and on the basis of permission granted by the concerned authorities got admission in the Government Agro Technical Teacher's Training Centre and passed his B.Ed. Examination conducted by the University of Balochistan in the year 1997.
3. It is the case of appellant that as per provisions of the Balochistan Education Department (School Branch) (Men/Women Section) (B-16 and above) Service Rules 1981) and appendix thereto at S.No,13 hereinafter referred to as the said rules) the post of Secondary School Teacher (General)
(hereinafter referred to as SST General) was to be filled in on the basis of 50% by promotion and 50% by initial recruitment The 50% by promotion from amongst the members of the subordinate service holding the post of JVT (B-7) and JET (B-9) possessing BA.BED Degree with five years' experience in the relevant field at the ratio of 2:3 respectively on seniority-cum-fitness basis. As per appellant the respondents in order to accommodate the persons of their own choice amended the said rules by means of Notification dated 20 March 2010 wherein at S.No,13 SST (General) following condition/note were imposed:--- "Only those candidates will be eligible for promotions who are serving in the District where the vacancies exist in accordance with the seniority list prepared on the basis of the length of service in the respective District, provided that they have been in continuous service in that district for the last three years."
4. According to the appellant in compliance to the afore said amendment made in the Rules, the respondent No,4 issued a circular dated 3-4-2010 to all the Executive District Officers for preparation of seniority list. The appellant being aggrieved made certain representations to the respondents but all in vain, lastly while finding no other way out, approached this Tribunal by filing the instant appeal.
5. On the other hand the respondents contested the appeal on legal and factual grounds by filing their formal reply.
6. We have heard the learned counsel for the parties and also perused the record with their valuable assistance.
7. At the very out set the learned Additional Advocate-General Mr. Naseer Bangulzai contended with vehemence that this Tribunal has no jurisdiction to deal with the vires of the Rules as it involves constitutional issues, which are beyond the domain of Service Tribunal. The contention of the learned Advocate-General is devoid of force for the reasons that it has been consistently held inter alia that a civil servant if is aggrieved by a final order. Whether original or appellate, passed by a departmental authority in respect of his service terms and conditions, his remedy, if any, is by way of an appeal before this Tribunal even where the case involves vires of a particular Service Rule. We are of considered view that if a statutory rule or a notification adversely affects the term and conditions of a civil servant, the same can be treated as an order in terms of subsection (1) of section 4 of the Balochistan Service Tribunals Act, 1974 in order to file an appeal before Tribunal. In such circumstances even constitutional issues could be taken and dealt with by the Tribunal in exercise of its exclusive jurisdiction.
8. We are conscious of the fact that vires of legislative Measures is not open to the scrutiny of the superior Courts on the sole ground of mala fides because legislative measures are presumed to be bona fide. On B the other hand, the Tribunal under section 5 of the said Act is deemed to be a civil Court for the purpose of deciding any appeal before it with all powers under the code of civil procedure. As any other Civil Court the Tribunal have the jurisdiction to examine whether or not a law is void by reason of the conflict with the statute, fundamental rights constitution or is otherwise ultra vires or the order made is mala fide.
9. We are in agreement with the learned counsel for appellant that an amendment in any rule having implication of affecting terms and conditions of civil servant definitely affect interests of a civil servant and the constitutionality, legality and vires of such amendment can be competently adjudicated by this Tribunal. This Tribunal is competent to , strike down such an amendment, which affected the fundamental rights of a civil servant.
10. We are of considered view that when the Parliament makes a Sub Constitutional Law, it does so in the exercise of its delegated legislative powers given by the constitution and in the case of subordinate legislation; also the maker authorizes the delegated authority. In each case, there is a law higher in authority and the test to determine the vires is whether the subordinate law conflicts with the higher law. If it does, then it must be held as of no legal effect and validity, to be valid a law or amendment must be intra vires, reasonable in itself, certain in its terms and must not be repugnant to the General Law or 'Constitution. It is settled principle of interpretation that if subordinate legislation is directly repugnant to the General purpose of the Act, which authorize it, or indeed is repugnant to any settled and well established principle of statute, it is ultra vires.
11. We are conscious of the fact that when legislature confers power on government to frame rules it is expected that such power will be used only bona fide, in a responsible spirit and in true interest of the General Public while in the instant case the amendment in the said rules seems to be unreasonable, bad faith, and misconstruction of enabling Act.
12. Admittedly the condition of the education in the Balochistan province is deteriorating day by day. In such circumstances the respondents were expected to take concrete steps for improvement of quality education but it seems that they have inserted the impugned condition just to discourage the merit and deteriorate the already dilapidated condition of the education in Balochistan. It seems that by insertion of impugned Notification, the respondents have opened the back door for blue eye chaps to get rapid promotion in spite of less experience and qualification.
We are in agreement with the learned counsel for appellant that due to addition of impugned condition the authority, in the first instance, post the person of their likings to one district where a post of SST lying vacant and thereafter in exercise of condition imposed in the amendment dated 20th March 2010, promote him as SST (General) B-16 and on acquiring said post again transfer/post him to the district of his choice. This condition cannot promote the ultimate purpose of quality education; rather it will deteriorate the already dilapidated condition of the education. It is a high time to discourage nepotism, regionalism and quota system especially in the field of education and promote merit. The impugned condition is not only unreasonable but is also uncertain repugnant to the enactment and is also violation of the object and reasons of the enactment.
13 For the discussion made hereinabove the appeal is allowed. The impugned Notification SOR11(4)21/S&GAD/347-400 dated 20th March, 2010 issued by respondent No,2 to the extent of condition/note imposed to the appendix at S.No,13 SST (General) (B-16) of the Balochistan Education Department (School Branch) (Men's Section) Grade-1 and above) Service Rules 1981 as well as circular/letter dated 30-4-2010 issued by the respondent No,4 are declared ultra vires and deemed to be deleted from the said Rules. There is no order as to costs.