1. WAQAR AHMAD SETH, J:- Rashid Gul petitioner through the instant constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973 has approached this Court to declare the impugned notification dated 11/09/2014 of appointment of respondent No.4 as Controller of Examination, Mardan, on deputation basis as illegal, unlawful, void ab-initio and of no legal effect and also sought direction to the respondents to consider him for promotion to the post of Controller of Examination, B.I.S.E. Mardan, with no further delay.
2. 2- Briefly stated the facts of the case are that the petitioner was initially inducted as Assistant Controller Examination (BPS-17) on contract basis in the Board of Intermediate & Secondary Education (BISE), Mardan vide appointment letter dated 29/10/2003 and subsequently his contract services were regularised from the date of his appointment i.e.01/11/2003 vide office order dated 20/12/2006. It was further averred in the petition that the petitioner being fully equipped with the requisite qualification, fit and eligible for consideration for promotion since 2008, submitted an application for considering him for promotion against the post of Controller in the year 2003 but the same was turned down for the reason that filling in of the said post was within the discretionary powers of the controlling authority; that one Muhammad Aslam Marwat Associate Professor, Superior Science College, Peshawar was posted as Controller of Examination on deputation vide order dated 12/12/2012 which was assailed by the petitioner through Writ Petition No.2751-P of 2013 which was disposed of by this Court on 19/02/2014 in the following manner:- "After hearing this case at some length learned counsel for petitioner states that he would not press this petition provided the controlling authority be directed to consider the case of petitioner along with others strictly in accordance with rules and regulations after expiry of service period of respondent No.4.This petition is disposed of accordingly".
3. That on the expiry of the deputation period of respondent No.4 in the earlier writ petition, the official respondents ignoring the above referred direction of this Court, appointed Shaukat Hayat (respondent No.4 herein) as Controller, Examination in BISE, Mardan on deputation for a period of three years vide Notification dated 11/09/2014, hence the petitioner having no other adequate and efficacious remedy available to him, has again knocked the door of this Court through the instant constitutional petition.
4. 3- Respondents No.1 & 3 furnished the requisite comments wherein it is stated that the petitioner being a civil servant could not invoke the constitutional jurisdiction and that even an act of the competent authority is malafide one, then too, the Service Tribunal has exclusive domain to step-in and resolve the matter. That no vested right of the petitioner has been infringed, as the Government was always empowered to change the promotion policy and to prescribe qualification for a particular post through amendment in the relevant rules and the petitioner has no right to challenge the same. Moreover, as per Chapter XXVIII the posts of Controller shall be filled by direct recruitment or by deputation/ or by promotion, at the discretion of the controlling authority and that too on the basis of seniority-cum-merit and that the civil servant cannot ask for promotion as a right and granting or refusal of promotion is a matter which is exclusive domain of the Government / Executive Authority. Further stated that the post in question is filled by the controlling authority after exercising discretionary powers and with due course of law and rules on the subject, thus they prayed for the dismissal of the instant writ petition.
5. 4- We have heard the learned counsel for the parties and have also gone through the record of the case with their able assistance.
6. 5- Learned counsel for respondents No.1 and 3 alongwith learned AAG raised two preliminary objections, firstly regarding the maintainability of writ petition, in view of Article 212 of the Constitution, as according to them the petitioner is a civil servant and as such cannot invoke the constitutional jurisdiction of this court, and secondly that promotion is not a vested right which cannot be claimed as of right.
7. 6- Petitioner being an employee of the Board of Intermediate and Secondary Education, Mardan has called in question the appointment of respondent No.4 as controller of examination, on deputation basis. Board of Intermediate and Secondary Education is a statutory body and the same is the creation of Act / Ordinance-IV of 1990, commonly known as "North West Frontier Province (Now Khyber Pakhtunkhwa), Board of Intermediate and Secondary Education Act / Ordinance 1990", with Controlling Authority as Chief Minister and as such under no stretch of imagination petitioner can be declared as civil servant, learned counsel for respondents failed to bring it on record any such precedents wherein the Board employees are declared as civil servants. As regarding the maintainability of the writ petition, regarding promotion is concerned, the respondents while agitating the preliminary objection have placed reliance on 2011 SCMR 788 wherein it is held that promotion is not such a guaranteed right as anyone can claim or seek enforcement through a court. Rational beyond the judgment given in the said reported case seems to be the satisfaction of the ultimate competent authority in the hierocracy to which the civil servant may belong, as the best judge to determine the suitability of a particular person for the post vested with the competent Departmental Authority. In the instant case, petitioner has not claimed his promotion, rather has asked for considering him for promotion, which in fact is the right of every eligible, competent and fit employee to ask for. Moreover, it has been time and again held that whenever the Law, Rules and Regulations meant for the promotion purposes are violated then it becomes the vested right of an employee to call in question. In this respect reliance is placed on judgment of the Apex court reported in 2003 PLC (C.S) 526 (d) wherein it is held as under:- "---promotion---Vested right of employee-- Where the Rules, Regulations and Policy had been framed for regulating appointment and promotion, any breach or deviation from them for mala fide reasons or due to arbitrary act of Competent Authority, would entitle an aggrieved person to challenge the same".
8. Likewise, in the case of Walayat Ali Mir versus Pakistan International Airlines Corporation reported in 1995 SCMR 650, (d) it has been held as under: - "---Promotion---Essentials---Dictum that no employee has vested right in promotion is although correct yet where rules, regulations and policy have been framed for regulating appointment and promotion, any breach or deviation for malafide reasons or due to arbitrary act of competent authority, would entitle aggrieved person to challenge the same".
9. Hence both the preliminary objections are not entertain-able.
10. 7- Before dilating upon the discretionary powers of the Controlling Authority, in reference to the Calendar of the Board and the employees, it is important to mention that the petitioner previously filed a writ petition No. 2751-P of 2013, challenging the appointment of one Muhammad Aslam Marwat, as Controller of Examination of Mardan Board, on deputation basis. While deciding the said writ, vide order dated 19.2.2014, this court directed the Controlling Authority to consider the case of petitioner alongwith others for promotion, strictly in accordance with Rules and Regulation, after the expiry of period of deputation of the said employee. Record is suggestive that while issuing the impugned notification dated 11.9.2014,whereby present respondent No.4 has been appointed as Controller of Examination in BISE, Mardan, on deputation basis, the case of petitioner or other employees was not considered and any reasons for not promoting any of its employees, has been mentioned. Learned counsel for the respondents as well as AAG was time and again directed to produce / place on file, record / documents showing that the case of petitioner for the purpose of promotion was considered in pursuance of order dated 19.2.2014 in writ petition No. 2751-P of 2013.
11. Specific reference is made to order sheet dated 6.2.2015. Respondents failed to produce any such documents despite hearing the case by different benches at different occasions. Today once again they failed to show, at the bar, that the case of petitioner or other employees was considered for promotion before issuance of impugned notification, by the Controlling Authority. Since, the directions of this court dated 19.2.2014 stands violated therefore, on the face of it, the subsequent notification i.e impugned one seems to be malafide and unlawful. Petitioner has also filed COC No. 396-P/2014 as well, in this respect.
12. In the given circumstances, narrated above, the writ of the petitioner is competent. In the case of Brig. Muhammad Bashir versus Abdul Karim and others reported in PLD 2004, SC 271, (d) it has been held as under:- "---Art. 199---Constitutional jurisdiction of High Court, exercise of---Principles, object and scope-- -Article 199 of the Constitution casts as obligation on High Court to act in aid of law, protect the rights of citizens within the framework of the Constitution against infringement of law and Constitution by the Executive Authorities, strike a rational compromise and a fair balance between the rights of citizens and action of State functionaries, claimed to be in the larger interest of Society---Such power is conferred on High Court under the Constitution and is to be exercised subject to Constitutional limitations---Provision of Art. 199 of the Constitution is intended to enable High Court to control executive so as to bring it in conformity with the law-- Whenever the executive acts in violation of law, an appropriate order can be granted which can relieve the citizens of the effects of illegal action---Relief can be granted to the citizens of the country under Art.199 of the constitution, against infringement of any provisions of law or the Constitution as it is an omnibus Article---If the citizens of the country are deprived of the guarantee given to them under the constitution, illegally or not in accordance with law, then provision of Art. 199 of the Constitution can always be invoked for redress---Paramount consideration in exercise of constitutional jurisdiction is to foster justice and right a wrong---So long as statutory bodies and Executive Authorities act without fraud and bona fides within the power conferred on them by the statue, the Court to issue directions to an Executive Authority when such an Authority is not exercising its powers bona fide for the purpose contemplated by the law or is influenced by extraneous and irrelevant considerations.---Where a statutory functionary acts mala fide or in a partial, unjust and oppressive manner, High Court in exercise of its constitutional jurisdiction has ample power to grant relief to the aggrieved party".
13. 8- Now coming to the question of discretionary power's of Government functionary, particularly in the case of Board of Intermediate & Secondary Education, in reference to mode of appointment given in chapterXXVIII, which requires the filling up the posts of Chairman, Secretary, Controller, Audit Officer, Deputy Secretaries/controllers and assistant Secretaries / controllers, by direct recruitment or by deputation / or by promotion, at the discretion of the controlling authority, (the under line is by us to have emphasis), but it is an admitted fact on record that since creation of Board of Intermediate & Secondary Education, Mardan, the post of Controller of Examination has been always, without any break has been filled in on the basis of deputation and the other two options at the discretion of the Controlling Authority have been rendered redundant. 9- One of the argument of the learned counsel for the respondents is that under section 15 (2), since the Secretary and Controller of the Examination shall hold the office for a term of three years from the date of notification, therefore, the post is being filled on deputation for a period of three years, and if at all the post is filled in on the basis of initial recruitment or through promotion then the person appointed would claim to remain posted till his retirement. In order to discuss the same it is important to read section 15 as a whole, which reads as under:- i) The Secretary and the Controller of examination shall be whole time salaried officers of the Board and shall be appointed by the Controller Authority on such terms and conditions as it may determine. (Under line is by us) ii) The Secretary and the Controller of Examination shall hold office for a term of three years from the date of notification of their appointment and shall be eligible for reappointment for such further period nor exceeding three years as may be specified in the order of reappointment. iii) Notwithstanding the provisions contained in sub-section (i) and (2) the Controlling Authority may at any time, review the work of the secretary and the controller of examination and if on such review it is found that in the interest of the Board, or for any other sufficient cause, it is necessary to do so, it may after giving the Secretary or as the case may be the Controller of Examination, an opportunity of showing cause to dispense with his service any time during the original or extended term of his office.
14. 10- The bare reading of this section would clear two things beyond shadow of doubt, firstly that controller of examination shall be whole time salaried officer of the Board and thus chipping out the appointments of deputationists in first instance; secondly the apprehension of the Board regarding appointment on initial recruitment or promotion that the incumbent would claim till retirement. The intention of the legislature is clearly reflected by giving the tenure to the incumbent for three years only hence, both the apprehensions of respondents held negative.
15. 11- If section 15 as a whole is read with the mode of appointment giving in the chapter-XXVVIII, whereby the Controlling Authority has been given the discretion of appointment through initial recruitment or deputation or promotion would show that the deputationists would only be appointed when there is no suitable, eligible, competent, and fit person within the whole time salaried officers of the Board, in view of which the constant and consecutive appointment of Controller of Examination in the BISE Mardan, only on deputation basis seems to be arbitrary.
16. 12- Even otherwise the appointment of deputationsts in another department is always discourage by the Superior Judiciary of the country, as it has been time and again held that by inducting outsiders in other department, the employees of that department who are already serving after qualifying the departmental examinations and going through the selection process, have been adversely effected and there reasonable expectation vis--vis their promotion, seniority etc, has been snatched away while importing the outsiders. By posting outsiders on the basis of deputation has also created an unrest and sense of deprivation having been created amongst the employees already working there and practice of such appointments on deputation basis has been declared against justice, equity and good governance. In this respect discretionary powers are not unbrided or unfettered, but said discretion required by law to be exercised in judicial manner which means that same must be exercised on sound judicial principles. In the case of Walayat Ali Mir versus Pakistan International Airlines corporation reported in 1995 SCMR 650 (c) the apex court has held as under:- "---Exercise of---Mode---While exercising discretion, Authority should not act arbitrarily, unreasonably and in complete disregard of relevant rules and regulations---Discretion to be exercised has to be judged and considered in the background of acts and circumstances of each case-- Discretion is not to be exercised on whims, caprices and mood of Authorities---Exercise of discretion is circumscribed by principles of justice and fairness---Authority exercising discretion should take into consideration and advance aim and object of the enactment, rule or regulation under which it was authorised to act; it should not act in complete negation of the object of such law, rule , regulation or established policy otherwise it would not be fair, reasonable and just exercise of power-- pre-conditions imposed for exercise of discretion should be honoured and respected unless for valid reasons, they have to be discarded.
17. Likewise in the case reported in 1992 SCMR 1898, (c) it has been held as under:- "Discretion is not desire of the Judge but regulated by law. Discretion comes into play to choose one of the two or more alternatives, all of which are lawful. It is not proper exercise of discretion to refuse relief to a party to which it is entitled under law".
18. 13- The appointment of deputationists has not altogether been declared unlawful as in dare need the borrowing department has been permitted to obtain the service of an employee serving in another department, provided the landing department has consented to it and that no fit and suitable person commensurate to such post is available in the borrowing department, after undertaking a proper exercise for the said purpose. In the instant case the procedure given for hiring a person for deputation, as given in the ESTA Code has not been adopted or followed.
19. 14- Recently while adjudicating upon the contempt proceedings against the Chief Secretary Sindh, the august Supreme Court in its reported judgment 2013 SCMR 1752 at paragraph 127 to 137, has discussed the appointment of deputationsts and has concluded that the legislation on deputation is violative of the service structure guaranteed under Article 240 & 242 of the Constitution of Islamic Republic of Pakistan, in the following manner:- "The concept of power under our Constitution is distinct from other constitutions of common law countries. Under the Constitution of Pakistan, the sovereignty of vests in Allah and it is to be exercised by the people within the limits prescribed by Him" as a sacred trust. The Authorities in Pakistan while exercising powers must keep in mind that it is not their prerogative but a trust reposed in them by the Almighty Allah and the constitution. The impugned legislation is promulgated to benefit patent class of persons specific and violative of Article 25 of the Constitution as it is not based on intelligible differentia not relatable to the lawful object. The impugned legislation on deputation is violative of Constitution which provides mechanism for appointments of civil servants and their terms and conditions as envisaged under Act of 1973 and the Rules 1974 framed thereunder. The object of the Act of 1973 is to maintain transparency in appointments, posting and transfers of Civil Servants, whereas the deputationists who otherwise are transferred and have destroyed the service structure in Sindh and has blocked the promotions of the meritorious civil servants in violation of the fundamental rights guarantee to them under Articles, 4, 8, 9, 25, 240 & 242 of the Constitution, as discussed hereinabove and are liable to be struck down".
20. 15- The very challenging the appointment on deputation basis by the petitioner in earlier round as well as in this writ petition reflects that there is an unrest and sense of deprivation amongst the employees of the BISE, Mardan, therefore, such practise is against justice, equity and good governance. The Apex court while taking human right case No. 8340-G of 2009 etc, while emphasizing on the terms good governance observed as under:- "Before parting with the judgment, we may observe that good governance is largely dependent upon the upright, honest and strong bureaucracy particularly in written Constitution wherein important role of implementation has been assigned to the bureaucracy. Civil service is the back bone of our administration. The purity of administration to a large extent depends upon the purity of the services. Such purity can be obtained only if the promotions are made on merit in accordance with law and constitution, without favouritism or nepotism. It is a time tested recognized fact that institution is destroyed if promotions/appointments are made in violation of law. It will, in the ultimate result, paralyze automatically. The manner, in which the instant promotions in the civil services have been made, may tend to adversely affect the existence of this organ. Honestly, efficiency and incorruptibility are the sterling qualities in all fields of life including the Administration and Services. These criteria ought to have been followed in the instant case.
21. Fifty four persons were promoted in complete disregard of the law causing anger, anguish, acrimony, dissatisfaction and difference in ranks of services which is likely to destroy the service structure".
22. 16- Learned counsel for the respondents also cited four judgments of this court wherein the appointment on the basis of deputation while exercising the discretionary powers of the Controlling Authority, have been upheld. We have given our anxious consideration to the said judgments cited at the bar, which are unreported, but are of the view that the present writ petition is having different features, as in this case, the controlling Authority was specifically directed vide judgment / order dated 9.2.2014 to consider the case of petitioner & others for promotion, but without consideration them or giving any plausible reasons, issued the impugned notification.
23. Since we have given deep consideration to the continuous and consecutive appointment on deputation basis by the controlling authority, therefore, with utmost respect to the said judgments we are of the view, that the controlling authority has acted arbitrarily, while appointing the outsiders civil servants against the post to be filled in from the amongst the whole time salaried officers of the Board by rendering redundant other two options, given in the mode of appointment.
24. Practice of posting outsiders on the basis of deputation by changing their cadre has been depreciated by the Apex Court. The act, conduct of the controlling authority in this respect is clearly arbitrarily, unlawful, unjust and malafide and as such the impugned notification dated 11.9.2014 is set aside and the writ petition is allowed as prayed for.