Nasrullah Khan Achakzai, Chairman.--The appellants have filed this appeal under Section 4 of the Balochistan Service Tribunals Act, 1974, against the impugned Notification of rules relaxation dated 25-11-2011, and impugned order dated 30-03-2012, passed by Member Board of Revenue Balochistan Quetta and stopping of further proceedings in consequence of impugned Notification dated 25-11-2011, with a prayer to set-aside the impugned Notification dated above and impugned order passed by Member Board of Revenue Balochistan Quetta, and subsequent proceedings and consequences thereof.
2. Brief facts giving rise to this appeal are that the Appellants No, 1 to 4 are ministerial employees (Assistants) working in the office of Deputy Commissioner in Revenue Establishment for the last more than five years, while the Appellants No, 5 to 7 are Mohasibs and Kanungos working in the Revenue Establishment for the last more than five years under the Balochistan Board of Revenue.
3. The Balochistan Naib Tehsildari Service Rules, 1980 comprising of: "(i) "Office Kanungos and Kanungos with a service of five years or more, of which at least two years must have been spent on the duties of a field Kanungo.
(ii) Muhasibs with at least three years experience.
(iii) Ministerial employees (Assistants) who have worked for at least five years in the Revenue Establishment of a District/Division or the Board of Revenue or the offices of the Directors of Land Records."
4. The method of recruitment with regard to the service, Rule 5 is relevant and the same is reproduced: "5. Method of Recruitment.--(1) Recruitment to the service shall be made by following methods:-- (a)Fifty percent of the posts shall be filled by initial recruitment on the basis of a competitive examination to be arranged by the Commissioner through the Departmental Selection Committee.
A syllabus of the examination shall be prescribed by the Board of Revenue and (b)The remaining posts shall be filled by selection on merit from the subordinate service in the Division through the Departmental Selection Committee on the basis of service record and interview. Preference will be given to personsith experience of settlement work from among Muhasib/Kanungo at the ratio of 3:1, Provided that three fourth of the posts shall be filled in among Muhasib/Kanungo.
(2) Ministerial employees of the Board of Revenue and Director Land Record eligible for appointment under sub-rule (1) shall, for the purposes of said clause, be deemed to belong to the division in which their home district is situated."
5. In Quetta division twenty (20) vacancies were existed for the post of Naib Tehsildars, while the competent authority in derogation of provision of the Naib Tehsildari Service Rules, 1980, have allocated twenty (20) vacancies/100% for initial recruitment. The all Pakistan Clerk Association made a representation on 29-02-2012 to the Minister for Revenue with regard to violation of Promotion Quota, which was allocated for ministerial employees posted in Quetta district and divisional offices among the others. Thereafter, the all Pakistan Clerk Association also filed a review application dated 01-08-2012, to the then worthy Chief Minister Government of Balochistan to review his order of relaxation and to restore 50% quota of Naib Tehsildars for ministerial and revenue staff. But since from 01-08-2012 till today no response has been given by the respondents.
6. On notice, the respondents have filed their rely, wherein they stated that the Government of Balochistan Revenue Department has accorded sanction through an order dated 14-11-2011 for the creation of forty (40) posts of Naib Tehsildars Peshi (B-14) in Quetta, Kalat, Sibi, Makran Naseerabad and Zhob divisions during the year 2011-12 in the following manner: {{TABLE}} S. No, Name of Division No, of posts of Naib Tehsildar Peshi (B-14)DDO Code 1 . Nasirabad Division 05 NB4030 2 . Quetta Division 20 QA4555 3 . Kalat Division 04 KR4045 4 . Zhob Division 04 L14058 5 .Mekran 04 TB4044 6 .Sibi Division 03 514046 {{TABLE}} The Board of Revenue, Balochistan vide Notification dated 25th November 2011 has conveyed the approval of the competent authority i,e, worthy Chief Minister Balochistan to all the Commissioners in Balochistan and directed them to advertise the above posts along-with the other vacant posts of Naib Tehsildars falling to the share of direct Naib Tehsildar quota, regarding relaxation of Rule 5(1)(b) of the Balochistan Naib Tehsildari Service Rules, 1980 and gave all the approved posts to the share of 100% initial recruitment, while according to the above mentioned approval/directions they have proceeded accordingly.
7. We have heard the learned counsel for appellants and the learned Additional Advocate General for the respondents and have perused the record and relevant rules with their able assistance for the purpose of convenience we have reproduced Rule 13 of Balochistan Naib Tehsildari Service Rules, 1980: "13. Relaxation.--Any of these rules may, for reasons to be recorded in writing, be relaxed in individual cases, if Government is satisfied that a strict application of the rule would cause undue hardship to the individual concerned."
While examining the Rule 13 of Balochistan Naib Tehsildari Service Rules, 1980, the power granted to the competent authority for relaxation of this rule has been given in individual case and the word 'individual concerned' has been used which indicates that these rules can be relaxed for an individual person or in other words this rule indicates that these rules can be relaxed and not for more than one person, while the reason recorded for relaxation of these rules, as has been shown as 'unemployment' which is not a specific reason for all intends and purposes. As contemplated in Rule 13, while this sort of relaxation is not only in total derogation/transgression of Rule 13, but on the other hand this approach of the competent authority has infact caused disappointment among the employees of subordinate staff of the concerned divisional revenue offices. We have also noted that in case of Muhammad Saleem Vs. Government of Balochistan in S.A. No 129/2011, the lower Revenue staff of Quetta division i,e, Kanungos, Mohasibs and Assistants have been working on the same posts for more than twenty five (25) years without any certain hope of promotion. This situation in our view is not tolerable and healthy as well as is not in accordance with law. In November 2007, forty nine (49) Naib Tehsildars were recruited while 50% promotion quota was ignored and in the year 2011, twenty (20) more posts of Naib Tehsildars have been given to initial recruitment but the respondents in their reply have not stated that from when and to what extent the promotion quota has been violated as provided under the rules. We are supported for taking this view by 1998 PLC (CS) 1315 Supreme Court of Pakistan titled Muhammad Anis, Secretary, Central Board of Revenue Islamabad & 13 others vs. Abdul Haseeb & 53 others, wherein it has been held by their lordship at page 1320 (A) that provision of Section 23 of the Civil Servant Act, 1973 can only be resorted to in an individual case of hardship and not for upgrading the posts of 194 officers.
In case of Nazir Ahmed Sheikh vs. Government of Sindh through Secretary S&GAD Sindh, Karachi and others, which is reported in 1998 PLC (S) Page 607 that where, in such a given case, the civil servant concerned was to be relieved of the rigours of law, that could not, arbitrarily, be at the expense of another civil servant. The same principle has been taken out in the case of Shabbir Ahmed Chughtai vs. Secretary to Government of the Punjab, LG&RD Department, Lahore and 3 others 1998 PLC (CS) 667, wherein at Page 683 (c) it has been held that relaxation of rules by Chief Minister, essentials power to relax Rules was although vesting in Chief Minister, yet such power was subject to condition that relaxation could be given only to remove hardship and only to the extent of removing such hardship and without taking away right of other civil servants guaranteed under the law and rules. Thus, on the principle annunciated in the above mentioned referred case laws as well as the contents of Rule 13 of Balochistan Naib Tehsildari Service Rules, 1980 do not allow the competent authority to relax the rules in favour of more than one person without giving convincing reasons and specially in relaxing the rules without taking away any right of any civil servant but here in the impugned order of relaxation of rules in favour of direct recruits for all purposes and intends had taken away the rights of subordinate staff of Revenue working in the offices of District Tehsil and Commissioner levels.
8. Thus, we allow this appeal and the relaxation Notification dated 25.11.2011 and order of Member Board of Revenue dated 30.3.2012, whereas the consequent proceedings which have been taken by the Commissioner Quetta division are set-aside to the extent of Quetta division being passed without lawful authority, with the direction to first of all exhaust the quota which was allocated for the promotion of subordinate staff as earlier held by us in S.A. No, 129/2011 titled Muhammad Saleem vs. Government of Balochistan, while after exhausting the promotion quota as provided under the rules then if any post left, the same may be given to the direct quota but this principle should be kept in view that if any post of Naib Tehsildar is created or vacated due to other reasons, the promotion quota should be exhausted first and then the direct quota. Accordingly the appeal is dispose of. With no order as to costs. File after completion be consigned to record.