Muhammad Ali Mazhar, J: The petitioners have brought aforesaid petitions and in one voice they have challenged the advertisements published in the various newspapers for inviting applications for the appointments of the Chairman, Controller of Examinations, and Secretary of the Board of Technical Education and Boards of Secondary and Intermediate Education. The brief facts of each petition are mentioned separately as under:-
(1) C.P.No.D-6723 of 2015 In pursuance of Sections 14 and 15 of the Sindh Boards of Intermediate and Secondary Education Ordinance, 1972, the petitioner was appointed as Chairman, Board of Secondary Education, Karachi vide Notification dated 19.6.2015 with effect from 29.6.2015 for a period of two years. The respondent No.2 issued an advertisement in the newspapers on 25.09.2015 for appointment in Board of Secondary Education Karachi. The petitioner is aggrieved by this advertisement and asserted that during his tenure of appointment as Chairman he has legitimate expectation to complete his tenure; therefore, this advertisement is illegal.
(2) C.P.No.D-7848 of 2015 In this case vide Notification dated 3.6.2015, the petitioner was appointed as Chairman, Board of Intermediate Education, Karachi with effect from 20.6.2015 for a period of three years. It is contended by the petitioner that under Section 15 (1) of the Sindh Boards of Intermediate & Secondary Education Ordinance, 1972, the Chairman shall hold office for a term of three years. The petitioner is aggrieved by the same advertisement dated 25.09.2015.
(3) C.P.No.D-6600 of 2015 In this case vide Notification dated 13.10.2014, the petitioner who was already performing his duties as Deputy Controller of Examination, Board of Intermediate & Secondary Education, Hyderabad was assigned an additional charge of vacant post of Controller of Examination, BISE Hyderabad as an interim arrangement with effect from 14.10.2014 till further orders. The claim of the petitioner in this case is that by virtue of his seniority, educational qualification and the rules of the Board he is entitled to be promoted permanently as Controller of Examination in Grade 19.
(4) C.P.No.D-6630 of 2015 In this case vide Notification dated 22.6.2015, the petitioner was appointed as Chairman, Sindh Board of Technical Education, Karachi on contract basis for a period of three years with effect from 29.06.2015. His tenure will expire on 28.6.2018 but he shocked to see the advertisement dated 25.9.2015 for inviting applications to fill the post of Chairman, therefore, he has prayed that the advertisement to the extent of his post of chairman shall be declared unlawful.
(5) C.P.No.D-6675 of 2015 In this case the vide Notification dated 9.12.2014, the petitioner was appointed as Secretary, Sindh Board of Technical Education, Karachi, however, vide notification dated 16.05.2015 in addition to his normal duty as Secretary he was also given the additional charge of the post of Chairman, Sindh Board of Technical Education, Karachi with effect from 18.05.2015 by the controlling authority. He has also impugned the advertisement dated 07.10.2015 whereby applications were invited for the posts of Secretary and Controller of Examinations of different boards including Sindh Board of Technical Education, Karachi.
(6) C.P.No.D-5251 of 2014 Vide Notification dated 16.12.2013, the petitioner was already holding the post of Deputy Secretary (Establishment), Board of Intermediate & Secondary Education Sukkur but he was assigned additional charge of Controller of Examinations as an interim arrangement with immediate effect and till further orders. The claim of the petitioner is that under the Sindh Boards of Education Employees Service Rules, 2013 it is clear that the posts of Secretary and Controller of Examinations are filled by promotion and seniority cum fitness basis on the recommendations of appointment committee.
(7) C.P.No.D-7034 of 2015 In this case vide Notification dated 14.9.2015 the petitioner, who was holding the post of Deputy Controller of Examination (Coordination) BISE, Larkana was assigned additional charge of Controller of Examinations as a stop gap arrangement till further orders. He has also claimed that being Deputy Controller he is eligible for the promotion to the post of Controller of Examination, which is under the domain of appointment committee.
(8) C.P.No.D-7083 of 2015 Vide Notification dated 20.8.2015 on the recommendation of Chairman, Board of Intermediate and Secondary Education, Larkana the petitioner was assigned the additional charge of Secretary in addition to his duties as Deputy Secretary as stop gap arrangement till further orders. He has also claimed that the appointment to the post of Secretary should be made on the basis of promotion and seniority cum fitness. He has also challenged the advertisement published for inviting applications.
2. Malik Naeem Iqbal, learned counsel for the petitioners in C.P.Nos.D-6723 and 7848 of 2015 argued that Board of Secondary Education is a statutory body constituted under the provisions of "The Sindh Boards of Intermediate and Secondary Education Ordinance, 1972". Initially the Governor of Sindh was the controlling authority, however, pursuant to an amendment made in the year 2011, now the Government of Sindh is controlling authority under Section 12. He further argued that the Chairman of the Board is whole time officer appointed by the controlling authority under Section 15(1) of the aforesaid Ordinance. The tenure of the post of Chairman is for three years from date of notification which is a permanent post. Both the petitioners were appointed under a valid administrative process and they are performing their duties with utmost care and best of their performance. Despite that the advertisement was published in the newspapers for the new induction on the same posts. The purpose of providing a fix tenure is to maintain the transparency and to ensure that the incumbent may perform his duties diligently without any undue interference. The release of advertisements for inviting applications in the newspapers is meant to curtail the fix tenure of the petitioners and also amounts to make an attempt of premature retirement. No termination notice was ever served upon the petitioners before publishing advertisement in the newspapers and their appointment is still intact. The advertisements are in violation of the provisions of the Sindh Boards of Intermediate and Secondary Education Ordinance, 1972. The appointing authority cannot be allowed to exercise their discretion at their whims or in an arbitrary manner but they are required to act fairly and justly. A person who has been appointed to hold a tenure post must be allowed to complete his tenure of service in accordance with the terms of his appointment. Adopting a new procedure for appointment is alien to Ordinance, 1972 and if the controlling authority wants to introduce a new procedure that should be applicable prospectively and not retrospectively which means the petitioners have legitimate expectation to complete their fixed tenure without any interference. Learned counsel has also shown us apprehension that new process of appointment has been introduced to accommodate and favour the blue eyed persons of the competent authority. He further argued that no rules and regulations are available to regulate the appointments through competitive process. In support of his arguments, the learned counsel for the petitioners referred to the following case law:-
(1) PLD 2014 Islamabad 38 (Muhammad Tariq Malik v. Pakistan through Secretary Establishment Division and others). Constitutional petition. Chairman, National Database and Registration Authority (NADRA). Removal from office. Notification of petitioner's appointment showed that he was appointed as Chairman, NADRA in accordance with Section 3(5) of National Database and Registration Authority Ordinance, 2000, and said post was a tenure post. Petitioner could not have been removed from office of Chairman except by adopting the procedure for termination from such office provided under Section 3(12) of National Database and Registration Authority Ordinance, 2000. Instead of following the law Federal Government had adopted a threatening attitude, which indicated that the Government frightened the petitioner with regard to his future actions in case he decided contrary to the wishes of the Government.
(2) PLD 2013 S.C. 195 (Syed Mahmood Akhtar Naqvi v. Federation of Pakistan). (commonly known as Anita Turab case) Tenure, appointment, promotion and posting/transfer are of utmost importance in the civil service. If these are made on merits in accordance with definite rules, instructions etc. the same will rightly be considered and treated as part of the terms and conditions of service of a civil servant. If, however, rules and instructions are deviated from and as a result merit is discouraged on account of favoritism, sifarish or considerations other than merit, it should be evident the civil service will not remain independent or efficient. we are aware that matters relating to tenure etc. cannot be put in a strait-jacket and that there is to be an element of flexibility. A balance between the competing pulls of discretion and rule based decision making is a fine one where perception of fairness and even handed treatment is of utmost importance.
(3) PLD 1965 S.C. 106 (Government of West Pakistan and Accountant General West Pakistan Lahore v. Nasir M. Khan). Constitution of Pakistan (1962) Article 178(3) read with Article 98. No specific rules in existing governing rate of increment during officiating charge. Rules cannot be changed with retrospective effect.
(4) 2012 SCMR 864 (Senior Member BoR & others v. Sardar Bakhsh Bhutta and another). Insertion or deletion of any provision in the Rules or the law, if merely procedural in nature would apply retrospectively but not if it affected substantial rights, which already stood accrued at the time when the un-amended rule or provision was in vogue.
3. Mr.Abrar Hasan, learned counsel for the petitioner in C.P.No.D-6600/2015 argued that before the appointment of the Deputy Controller of Examinations of the Board, the petitioner was Lecturer for the last 14 years, however he selected to hold the post of Deputy Controller of Examinations, Board of Intermediate and Secondary Education, Hyderabad. The petitioner is senior most Deputy Controller of Examinations in grade-18, therefore, on the eve of retirement of the Controller the petitioner was assigned additional charge of Controller of Examinations till the completion of competitive process for the appointment of Controller of Examinations. He further argued that keeping in view the seniority and educational qualifications the petitioner is entitled to be promoted permanently as Controller of Examinations in grade-19. He also referred to the Sindh Boards of Education Employees Service Rules, 2013 and argued that under these rules the method of recruitment of the Controller of Examinations of BPS-19 is by promotion on seniority cum fitness basis on the recommendation of appointing committee and the requirement of experience if any may be relaxed at the discretion of the Board. When a post is to be filled by promotion then there was no justification to invite applications for the appointment of Controller of Examinations without considering the qualification and experience of the petitioner who has legitimate expectation of promotion from the post of Deputy Controller to the post of Controller of Examinations.
4. So far as the case of petitioner in C.P.No.D-6630/2015, the learned counsel argued that the petitioner was earlier appointed as Chairman, Board of Secondary Education Karachi on 29.6.2012, thereafter, vide notification dated 22.6.2015 he was appointed as Chairman, Sindh Board of Technical Education, Karachi on contract basis for a period of three years with effect from 29.6.2015.
The tenure of the petitioner will expire on 28.6.2018. The respondents have no justification to give the advertisement for the same post. The so called competitive process has been initiated to appoint favorites of controlling authority.
5. The learned counsel further argued that keeping in view of special qualification in the engineering and the credentials, the petitioner in C.P.No.D-6675/2015 was appointed Secretary, Sindh Board of Technical Education for a period of three years. After his retirement from CDGK, he was employed for certain other assignments as Adviser Engineering, Sindh University Jamshoro and Adviser (Planning and Development), University of Karachi, thereafter, he was appointed Secretary to the Sindh Board of Technical Education, Karachi for a period of three years. The appointment is the prerogative of the appointment committee under the regulations of the Board and it has exclusive powers, therefore, any other parallel body constituted for this selection is totally unlawful and in violation of the regulations of the Board.
6. Mr.Abdul Salam Memon, learned counsel for the petitioner in C.P.No.D-5251/2014 argued that the petitioner is a permanent employee of the Board of Intermediate and Secondary Education, Sukkur since 1979. Presently he is working as Deputy Secretary and also holding additional charge of Controller of Examinations BPS-19. He further argued that in view of Sindh Boards of Education Employees Service Rules, 2013, the appointing authority of Secretary and Controller of Examinations is Board through appointment committee. Though the petitioner is having additional charge of Controller of Examinations, Board of Intermediate and Secondary Education, Sukkur as an interim arrangement, but the regular appointment to this post may be made only through promotion. A post which is to be filled by promotion cannot be filled by direct induction. In fact the petitioner has been denied his right of promotion to the post of Controller of Examinations. In support of his arguments, he relied upon the following case law: 2010 SCMR 1301 (Tariq Azizuddin and others : in re. Human Rights Cases Nos.8340, 9504-G, 13936-G, 13635-P & 14306-G to 143309-G of 2009 decided on 28th April 2010). Section 9 Civil Servants (Appointment, Promotion and Transfer) Rules, 1973. Promotion. Selection Grade. Basic Scale-21 to
22. Provisions of Section 9 of Civil Servants Act, 1973, mainly deal with promotion up to Basic Scale- 21 procedure whereof has been laid under Civil Servants (Appointment, Promotion and Transfer)
Rules, 1973. Presently rules are not available for promotion to selection grade i.e. from Basic Scale- 21 to Basic Scale-22. In absence of any rules for promotion to Basic Scale-22, reliance has to be placed on Section 9(2)(a)(b) of Civil Servants Act, 1973, according to which in case of selection post, selection has to be made on the basis of merit and in case of non-selection post on the basis of seniority cum fitness. There are no rules for promotion to selection post of Grade-22, meaning thereby that competent authority may exercise discretion which has to be structured in view of the principles laid down in judge made law by full application of mind.
7. Mr.Anand Kumar, learned counsel for the petitioner in C.P.No.D-7034/2015 argued that the petitioner was appointed as Assistant Controller of Examinations in the year 1996, thereafter, he was promoted to the post of Deputy Secretary in the year 2005. Due to his good performance and dedication he was assigned the additional charge of Controller of Examinations vide Notification dated 14.9.2015. The post of Controller of Examinations cannot be filled through direct appointment.
He also referred to the Sindh Boards of Education Employees Service Rules, 2013 that for appointment of Secretary and the Controller of Examinations the appointing authority is the Board.
So far as the petitioner in C.P.No.D-7083/2015 is concerned, the learned counsel argued that this petitioner has been given additional charge of the Secretary in addition to his duties as stop gap arrangement. Since the post of Secretary as well as the Controller of Examinations are to be filled by promotion therefore no direct recruitment or appointment can be made on these posts.
8. Mr.Mukesh Kumar Karara, learned AAG referred to the Section 14 of the Sindh Boards of Intermediate and Secondary Education Ordinance, 1972 and argued that under the purview of this Section the Chairman, Secretary, Controller of Examinations and Audit Officer are appointed by the controlling authority on such terms and conditions as may be determined by the controlling authority. All the petitioners were appointed without any competitive process. The controlling authority reviewed all the appointments in education boards and decided that all appointments must be made through competitive process and earlier appointments should be cancelled.
Various applications have been received and the persons were called for interviews. The maximum age limit of 62 years has been prescribed for the post of Chairman. One of the petitioners, Professor Anwar Ahmed Zai has already crossed the age of 70 years who is also a retired Government Servant. He has already enjoyed three terms as Chairman. He further argued that the hon'ble Supreme Court of Pakistan in Suo Motu Case No.16/2011 has discouraged the re-employment. The controlling authority has decided to fill all the posts through a competitive process on merits in a transparent manner. This competitive process has been initiated across the board keeping in view the directions of the hon'ble Supreme Court that all posts should be filled after giving advertisement in Media, so that everybody shall have an equal opportunity to apply on merits. He further argued that most of the persons were enjoying the posts on a contract basis which cannot be enforced through writ petition and if the petitioners have any grievance regarding their contractual engagements and its terms and or violation for which they may claim the damages but no declaratory or injunctive relief through constitution petition. The controlling authority has constituted a search committee to ensure that the appointments are made on merits. He further argued in relation to the petitioner in C.P.No.D-7848/2015 (Muhammad Akhtar Ghouri) that Muhammad Aminul Haq has filed C.P.No.D-4203/2015 to challenge the appointment of Muhammad Akhtar Ghouri as Chairman, Board of Intermediate Education Karachi on the ground that he has been performing his duties as Secretary to the Governor of Sindh and without obtaining no objection/clearance of Government of Sindh, he has been appointed Chairman, Board of Intermediate Education Karachi. Even for this appointment, no competitive process was initiated, but the appointment was made on pick and choose basis. The petitioner is also a BPS-20 officer of Provincial Secretariat Service (PSS) and if his contract as Chairman, Board of Intermediate Education Karachi is terminated he will not become jobless but revert back to his parent department for further posting. In fact his appointment is also in violation of the judgment of the hon'ble Supreme Court reported in 2013 SCMR 1205. So far as the petitioners holding the post on stop gap arrangements or additional charge, the learned AAG argued that a person who is holding additional charge as stop gap arrangement cannot claim any vested right to permanency. He also refuted the existence of 2013 Rules which according to him are non-statutory and never approved by the Government. He further argued that under the Act these posts are for direct recruitment and not through promotion, therefore, the alleged rules are in conflict with the parent Act and has no legal sanctity as it is well settled proposition of law that Act will prevail on the rules. Any petitioner who is holding additional charge or any charge on stop gap arrangement may also apply to the post under the competitive process and their applications will also be considered by the controlling authority. Mr.Ali Azhar Tunio, learned counsel for the Respondent No.3 in CP.No.D- 7083/2015 adopted the arguments of learned A.A.G. The learned A.A.G referred to the following case law:-
(1) PLD 2010 Supreme Court 841 (Abid Iqbal Hafiz & others v. Secretary; Public Prosecution Department, Government of the Punjab, Lahore & Others). Article 199. Constitutional petition.
Petitioners were appointed on contract basis, who assailed the act of authorities for advertising posts in question for regular appointments. Plea raised by petitioners was that their services could not be terminated by authorities. Validity. Having accepted conditions of service, petitioners had no locus standi to file Constitutional petitions seeking writs of prohibition and mandamus to authorities to refrain from terminating their services and to retain them on their existing posts on regular basis.
(2) 2001 PLC (C.S.) 249 (Maj. (Retd.) Shehzad Hussain Khan v. Government of the Punjab and others). Constitutional petition. Contractual liability. Deciding of such matter amounts to make an order for specific performance of contract and as such the same is not possible in exercise of Constitutional petition. Contractual appointment, termination of. Doctrine of locus poenitentiae belongs to genes of estoppel by record but is hardly attracted where both parties are equally placed to frustrate the terms of agreement. Where suit for damages is appropriate remedy, doctrine of locus poenitentiae is of limited application.
(3) 2012 PLC (C.S.) 172 (Trustees of the Port of Karachi v. Saqib Samdani). Section 4. Contract employee. Reinstatement in service. Respondent was employed on a contract of one year, whereafter, he was terminated from service. Respondent was in employment on contract basis, hence no vested right was created in his favour for reinstatement in service. Respondent was not appointed as regular employee against any particular quota to give him a valid cause of action.
9. Heard the arguments. To start with we would like to have a flip through few provisions of Sindh Boards of Intermediate and Secondary Education Ordinance, 1972. Under clause (g) of Section 2 "Controlling Authority" means the Controlling Authority of a Board while under Section 12 the Governor of Sindh or his nominee was the controlling authority of a board, however, by virtue of Sindh Boards Intermediate and Secondary Education (Amendment) Act, 2008, notified on 15.7.2011, the "Government is the controlling authority under Section 12 instead of "Governor of Sind". Under Section 14 of the aforesaid Ordinance the list of officers of the Board is provided which is reproduced as under:- "14.(1) The following shall be the officers of the Boards:-
(i) The Chairman;
(ii) The Secretary;
(iii) The Controller of Examinations:
(iv) The Audit Officer: and
(v) Such other officers as may be appointed by the Board.
(2) The Chairman, the Secretary, the Controller of Examinations and the Audit Officer shall be whole-time officers and shall be appointed by the Controlling Authority on such terms and conditions as may be determined by it."
Whereas Section 15 provides the term of office of Chairman which is also reproduced as under:- "15. (1) The Chairman shall hold office for a term of three years from the date of notification of his appointment and on the expiry of the term of office shall be eligible for re-appointment for such further period as may be specified in the order of appointment.
(2) When the office of the Chairman is vacant temporarily or otherwise, by reason of leave, illness or other cause, for a period not exceeding one year, the Controlling Authority shall make such arrangements for carrying on the duties of the office of the Chairman as it may think fit.
(3) The Chairman shall be the principal executive and academic officer of the Board and shall, when present, preside at the meetings of the Board or a committee.
(4) It shall be the duty of the Chairman to ensure that the provisions of this Ordinance and the Regulations and Rules are faithfully observed and carried out, and he shall exercise all powers necessary for this purpose.
(5) In any emergency arising out of the administrative business of the Board and requiring in the opinion of the Chairman, immediate action, the Chairman may take such action as he may deem necessary and shall report the action so taken to the Board at its next meeting for approval.
(6) The Chairman shall exercise such other powers as may be prescribed."
10. Under Section 17 of the Ordinance the Board has the powers to make regulation consistent with the Ordinance which include the constitution, powers and duties of committees; Additional Powers and duties of the officers of the Board mentioned in Section 14; Rules of Service including rules regulating disciplinary action, grant of leave and retirement of the employees of the Board; Constitution of pension or provident fund; Admission of the institutions to the privilege of recognition and withdrawal of recognition; General scheme of studies, including the total number of subjects to be taught and the duration of courses; and such other matters as may be appear necessary for giving effect to the provisions of this Ordinance.
11. Nevertheless, under sub-section (2) of Section 17 it is conspicuously provided that the regulations approved by the Board shall be submitted to the 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. Whereas under Section 18, powers have been conferred upon the Board to make rules consistent with the Ordinance and the Regulations to provide for inspection of institutions and the reports; Conditions of admission of candidates to the examinations and eligibility for diplomas, certificates and titles and such other matters as may be required to be prescribed by Rules in the Regulations.
12. In tandem it is postulated under Section 28 that notwithstanding anything to the contrary contained in the Ordinance, the Regulations set out in the Schedule shall, on the commencement of this Ordinance, be deemed to be the First Regulations framed by the Board under Section 17.
Under the first Regulations of the Board, Regulation 5 germane to the terms of the members of the appointment committee which is reproduced as under:- "5. Terms of office of members of the appointment committee:-
(1) The Appointment Committee shall consist of:-
(i) The Chairman of the Board;
(ii) In case of:-
(a) The Board of Secondary Education, Karachi, the Chairman, Board of Intermediate Education, Karachi.
(b) The Board of Intermediate Education, Karachi, the Chairman, Board of Secondary Education, Karachi: and
(c) The Board of Intermediate & Secondary Education, Hyderabad or, Sukkur or Larkana the Vice Chancellor or his nominee:
(iii) In case of:-
(a) The Board of Secondary Education, Karachi the Director of School Education:
(b) The Board of Intermediate Education, Karachi, the Director of College Education; and
(c) The Board of Intermediate and Secondary Education, Hyderabad, or Sukkur or Larkana the Director School and College Education;
(iv) Two nominees of the Controlling Authority:
(2) The Appointment Committee shall recommend the appointment, confirmation and scale of pay of officers or employees of the Board whose scales of pay carry an initial salary of four hundred rupees or more per mensum.
(3) The members of the Appointment Committee other than ex-officio members shall hold office for two years.
(4) The quorum for a meeting of the Appointment Committee shall be three."
13. Some of the learned counsel referred to the Sindh Boards of Education Employees Service Rules, 2013 (as amended). These rules were meant to apply on the permanent and regular employees already in service of the Board before the enforcement of these rules so far as their terms of appointment are concerned. The definition of the appointment committee under these rules means appointment committee of the Board as constituted under the Ordinance. Along with these rules a schedule is also attached to indicate the appointment authority, nature of post, minimum qualification and experience on initial recruitment and method of appointment. According to these rules the appointing authority of the Chairman is the controlling authority while for the appointment of Secretary the appointing authority is Board of Governors subject to the approval of the controlling authority and for controller of examinations, again the Board of Governors subject to the approval of controlling authority. A large amount of emphasis was made by the learned counsel for the petitioners that the post of Secretary of Board and Controller of Examinations can only be filled by promotion on seniority cum fitness basis on the recommendation of appointment committee, therefore, no advertisement could be published for the appointment of these two posts for direct induction taking into account the aforesaid service rules. The next law which is relevant to decide the controversy in hand is the Sindh Board of Technical Education Ordinance, 1970. In this Ordinance earlier the controlling authority was the Education Secretary, Government of Sindh but in pursuance of Sindh Board of Technical Education (Amendment) Ordinance, 2002, the Governor of Sindh was made the controlling authority of the Board, however, on 1.10.2015 the Sindh Board of Technical Education (Amendment) Act, 2015 was promulgated whereby the Section 10 was amended to the extent that instead of 'Governor of Sindh', 'Chief Minister' was substituted. Under Section 16 the Chairman is appointed by the Government on such terms and conditions as may be determined by it while office of the Chairman is limited to a term of four years from the date of notification of his appointment and on the expiry of his term of office shall be eligible for re- appointment. So far as the appointment of Secretary and Controller of Examination is concerned, the procedure is provided under Section 17 of the Ordinance whereby the appointment of Secretary and Controller of Examinations shall also be made by the Government who shall be whole time salaried officers. The terms of the service of Secretary and the Controller of Examinations and their powers and duties shall be as such as may be prescribed by regulations.
14. The purpose of accentuating the relevant provisions of both the Ordinances in the preceding paragraphs is to congregate the line of argument of the learned counsel for the petitioners as much debate was made that the powers to appoint Secretary and Controller of Examinations is entrusted to the appointment authority of the Board which can be made by promotion only and not through direct induction or appointment whereas under both the Ordinances, powers to appoint Chairman, Secretary and Controller of Examinations are vested in the controlling authority and nothing is mentioned in the Ordinance that the post of Secretary and or Controller of Examinations shall be filled by promotion. Much emphasis were made on the 2013 Rules with the reference to schedule attached thereto that the Controller of Examinations and Secretary shall be appointed by promotion but the learned counsel for the petitioners failed to demonstrate that whether said rules have any statutory recognition or backing. Even otherwise, the rules despite having the statutory backing or force of law cannot override the express provisions of Act and or Ordinance and in case of any conflict, the provisions of parent law shall prevail.
15. Though under Section 17 of the Sindh Boards of Intermediate and Secondary Education Ordinance, 1972 the Board has powers to make regulations including rules of service and rules regulating disciplinary action, grant of leave and retirement of the employees of the Board, but under sub-section (2) it is clearly provided that regulation approved by the Board shall be submitted to the Government and shall not take effect until they are approved by the Government.
In our discernment and understanding, the rule making powers enumerated or classified under Section 18 are quite limited and it does not include the rules relating to the appointment or induction of any post by direct appointment or through promotion. Even otherwise, the rule making powers were given to Board under Section 17 which is subject to the approval of the Government.
No such approval is placed on record to show that 2013 Rules were framed under Section 17 or 18 and rules were approved by the Government. So we have no hesitation in our mind to hold that the Chairman, Secretary and Controller of Examinations are to be appointed by the controlling authority through direct induction and we are not convinced with the arguments progressed before us that the posts of Controller of Examinations and Secretary can only be filled by promotion.
16. Indeed all the petitioners have impugned different advertisements by means of which the controlling authority of the Board invited applications for the appointments of Chairman, Secretary and Controller of Examinations. The petitioner in C.P.No.D-6723/2015 claims that he has been appointed as Chairman, Board of Secondary Education, Karachi for a period of two years with effect from 29.6.2015, therefore, he has legitimate expectation that no Chairman can be appointed unless he completes his tenure. Admittedly, the age of this petitioner is more than 70 years who is a retired Government servant. This gentleman has already enjoyed three terms as a Chairman. The petitioner in C.P.No.D-7848/2015 was appointed as Chairman, Board of Intermediate Education, Karachi for a period of three years with effect from 20.6.2015, who is also performing duties as Secretary to Governor Sindh being an officer in BPS-20, PSS group. He has also entreated as a matter of right to complete his tenure of three years. The petitioner in C.P.No.D-6600/2015 was assigned an additional charge of Controller of Examinations as an interim arrangement till further orders. The petitioner in C.P.No.D-6630/2015 has been appointed Chairman, Sindh Board of Technical Education, Karachi on contract basis for three years on expiry of his term as Chairman, Board of Secondary Education, Karachi. The petitioner in C.P.No.D-6675/2015 is also a retired Government servant. He was appointed as Secretary, Sindh Board of Technical Education Karachi vide Notification dated 16.5.2015. Against him, the respondents pleaded that post of Secretary is in BPS-19 but a retired person from BPS-20 was appointed as Secretary, despite the fact that the petitioner does not meet the required qualification for the post of Secretary. The petitioners in C.P.No.D-5251/2014 and C.P.No.D-7034/2015 have been assigned additional charge of Controller of Examinations of their respective Boards as stop gap arrangement till further orders and the petitioner in C.P.No.D-7083/2015 is also holding additional charge of Secretary in addition to his duties of Deputy Secretary as stop gap arrangement. In our considered standpoint the petitioners who have been assigned the additional charge cannot claim any vested right of promotion to these posts. Holding of acting or additional charge is always meant for stopgap arrangement till such time the regular appointment or induction is made. We have already dispelled the argument that these posts can only be filled by promotion rather in our view point these posts can be filled by direct appointment and no restrictions can be imposed in this regard.
17. So far as the contention raised by the petitioners who have been appointed to hold the post of Chairman is concerned, their learned counsel argued that the controlling authority cannot fill the post of Chairman before completion of their tenure. To fortify and strengthen this contention the judgment reported in PLD 2013 S.C. 195 was referred to which is commonly known as "Anita Turab Case". At the outset this case was with regard to civil servants laws in which it was held that tenure, appointment, promotion and posting/transfer are of utmost importance in the civil service. If these are made on merits in accordance with definite rules, the same will rightly be considered and treated as part of terms and conditions of the civil servant. If, however, rules and instructions are deviated from and as a result merit is discouraged on account of favoritism, sifarish or considerations other than merit, it should be evident the civil service will not remain independent or efficient. It was further held by the apex court that matters relating to tenure etc. cannot be put in a strait-jacket and there is to be an element of flexibility. A balance between the competing pulls of discretion and rule based decision making is a fine one where perception of fairness and even handed treatment is of utmost importance.
18. If we look into the earlier appointments in juxtaposition, we have no hesitation in our mind to hold that those were made at the sole whims/discretion or freedom of choice of the controlling authority without following any yardstick of screening test or competitive process and what's more in that appointment, the possibility of favoritism, preferential treatment and or jaundiced eye and sifarish cannot be ruled out but when the controlling authority has aimed to schematize and structure a competitive process for the appointment on merits much disappointment and anxiety has been shown leaving aside the ground reality that earlier to this no appointment was made through competitive process and selection was made without following any transparent procedure. No advertisement was issued for inviting applications to screen and choose the best candidate with an open and equal opportunity to all and sundry to apply on merits but appointment of Chairman was made at the solitary discretion of controlling authority. In our view there is nothing wrong if the controlling authority now has decided to make the appointments on merits through competitive process across the board, so that the best persons may be chosen to hold the important posts of Chairman, Secretary and Controller of Examinations. The Controlling Authority vide notification dated 8.9.2015, constituted a search committee for the selection of competent and qualified persons for the post of Vice Chancellors/IBA Directors, Pro-Vice Chancellors, Registrars, Controller of Examinations, Director Finance in the Public Sector Universities and Chairmen of all Education Boards in Sindh. Four persons have been appointed permanently with one co-opted member. Mandate of search committee is to select competent and qualified person(s) and make recommendation of three most suitable candidates for approval of controlling authority.
19. In the advertisement, the qualification, required experience, age limit, terms of the appointment are also provided. The procedure of appointment is also alluded to in the advertisement that appointments will be made from a panel of names recommended by the search committee. The maximum age limit is 62 years with more than 17 years teaching experience in BPS-17 or above, while the qualification of master degree or equivalent preference will be given to candidates with Ph.D in social sciences. The perks and privileges will be equivalent to BPS-20. No doubt at present the contracts of their engagements as Chairman are intact and on the basis of publication of advertisements they have approached this court for restraining the entire selection process, but they cannot claim vested right against the contractual engagements even against the tenure post as alleged by them because their case cannot be treated at par with the civil servants where different rules and regulations are applicable including the assignment as an additional and or acting charge for which also proper mechanism and procedure is provided. If the Controlling Authority has made a policy decision to maintain transparency in the appointment then such type of policy decision cannot be questioned in the writ jurisdiction particularly when there is no ambiance of any bias, partiality and unfairness but implementation of a policy matter across the board. This is not the case here that advertisement was published to remove any particular person with mala fide intention or to achieve any ulterior motive nor the policy decision made for the appointments through proper selection process can be avowed or characterized in violation or infringement of anybody's fundamental rights. The selection process has been initiated for all Boards and any person who lives up to the criteria/qualification may apply to the search committee for consideration of his application. One of learned counsel for the petitioners argued that in the advertisement so far as it relates to the appointment of Board's employees, only the post of Chairman is mentioned. This contention of the learned counsel seems to be correct that the search committee has not been given the mandate to appoint the Secretary, Controller of Examinations of the Boards but in our view if the controlling authority wants to maintain transparency, translucency and evenhandedness in discharge of their duty, then it is also essential that Secretary and Controller of Examinations shall also be appointed on the recommendation of the search committee through transparent manner and not directly by the controlling authority.
20. It is well recognized principle that courts do not sit in judgment over a policy of Government nor interferes or strike down unless it is proved mala fide or made in a colorful exercise of authority or power. Assuming for the sake of argument that the persons holding the post of chairman is a tenure post even then, it does not mean that the appointing authority cannot determine or terminate their engagement but in all circumstances they have to be allowed to complete their tenure of contractual service. No such restriction can be imposed when the policy decision is put into action across the board with equal treatment. The apex court in "Anita Turab case" has also held that a balance between the competing pulls of discretion and rule based decision making is a fine one where perception of fairness and even handed treatment is of utmost importance.
Executive decisions generally are subject to judicial review, the assurance of transparency is itself to eliminate decision making based on considerations other than merits. In the Human Rights Case No.14392/2013 and others, reported in 2014 SCMR 220, the hon'ble Supreme Court held that the court exercises judicial restraint in matters of Government policy except where fundamental rights are violated. In the case of Doctor Alyas Qadeer Tahir reported in 2014 SCMR 997, the apex court held that "for enactment of rules or amendment therein is the prerogative of the Government. It can enact and amend the rules according to the needs and exigencies of service. It is not individual but institutional interest or uplift which shapes its service structure. Alright, at the time of appointment of the respondents, no such rules were enacted or enforced but it does not mean that the institution or the department having thus started would remain in wilderness. It may change with a change in attending circumstances and future prospects. Its right to improve and update its service structure to keep pace with modern age which is indisputable the age of specialization cannot be restrained or restricted on the ground that at the time of appointment of one or a few civil servants, such qualification was not a requirement for promotion. Higher qualification or a more specialized qualification for a post in a higher scale is a need of the hour which has to be taken care of. The vires or validity of Rules or amendments therein attending to such aspects, cannot, therefore, be looked askance at. The more so when there is absolutely nothing in the Rules to show that they are either person specific or an off shoot of mala fides." In the case of Executive District Officer (Revenue), District Khushab reported in 2012 PLC (C.S) 917, the hon'ble Supreme Court held that "the framing of the recruitment policy and the rules thereunder, admittedly, fall in the executive domain. The Constitution of Islamic Republic of Pakistan is based on the well-known principle of trichotomy of powers where legislature is vested with the function of law making, the executive with its enforcement and judiciary of interpreting the law. The court can neither assume the role of a policy maker or that of a law maker."
21. In the case of Muhammad Tariq Malik (supra) the learned Islamabad High Court held that even if appointment of petitioner was illegal as argued by Federal Government, his removal from office should not have taken place by an illegal procedure, and he should have been provided an opportunity of hearing. Instead of following the law Federal Government had adopted a threatening attitude, which indicated that the Government frightened the petitioner with regard to his future actions in case he decided contrary to the wishes of the Government. It was further held that the Federal Government avoided to refer the case of petitioner to the Federal Commission for Selection of Heads of Public Sector Organizations, which had been formed on the directions of the Supreme Court. The facts of this case hardly any relevance to the case in hand and found distinguishable by us.
22. In the cases of Government of West Pakistan and Accountant General West Pakistan Lahore and Senior Member BoR & others (supra), the court held that insertion or deletion of any provision in the Rules or the law, if merely procedural in nature would apply retrospectively but not if it affected substantial rights, which already stood accrued at the time when the un-amended rule or provision was in vogue. In this case the question of retrospectivity or retrospection was considered as we have already observed that even at the time of earlier appointment of the petitioners they were appointed without observing any competitive process and introduction of competitive process for selection on merits so this case is also distinguishable. So far as the case Anita Turab is concerned we have discussed it in the foregoing paragraphs. The case of Tariq Azizuddin has also no relevancy to the controversy involved in these petitions as this case was related to Rule 9 of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973. It was held that there were no rules for promotion to selection post of Grade-22, meaning thereby that competent authority may exercise discretion which has to be structured in view of the principles laid down in judge made law by full application of mind. The case law cited by learned AAG i.e Abid Iqbal Hafiz & others, (Maj. (Retd.)
Shehzad Hussain Khan and Trustees of the Port of Karachi (supra) are mainly related to the contractual employment and its enforcement. It is well settled that the contract of employment cannot be enforced through constitution petitions and where the suit for damages is proper remedy doctrine of locus poenitentiae is of limited application. It was further held that having accepted conditions of service, petitioners had no locus standi to file Constitutional petitions seeking writs of prohibition and mandamus to authorities to refrain from terminating their services and to retain them on their existing posts on regular basis. In our considered view, if the petitioners are aggrieved against the their premature termination of engagement, they may file the suit for damages but they cannot claim the specific performance through constitution petitions.
23. As a result of above discussion the petitions are dismissed, however, the respondents are directed to ensure transparency in the appointment process without any favoritism or consideration other than merits. All the petitioners having qualification commensurate to the positions advertised in the newspapers may also apply and the respondents are directed to consider their applications strictly on merits. The Controlling Authority will also make sure not only the appointment of Chairman of Boards, the Secretary and Controller of Examinations will also be made through Search Committee's recommendations to maintain transparency.