SYED ARSHAD ALI, J.---Rizwan Ullah, the petitioner , who is working against the post of Superintendent in the Board of Intermediate and Secondary Education, Swat has invoked the Constitutio nal jurisdiction of this Court with the following relief:- "It is, therefore, humbly prayed that on acceptance of this Writ Petition, the impugned acts of respondents to up the post of Assistant Controller (Secretary), BISE Swat by way of direct appointment be declared as illegal and unconstitutional. Hence, a prohibitory writ may be issued against respondents. In addition, mandamus may be issued to responde nts for considering petitioner for prom otion to the post of Assistant Controller (Secretary). Any other remedy through may not specifically prayed for, but which the circumstances of the case and requirements of justice would demand, may also be granted."
2. It is averred in the petition that the petitioner is a regular employee of the Board of Intermediate and Secondary Education, Swat ('The Board' ) and was initially appointed as Junior Clerk in the year 1988. Presently , the petitioner is holding the post of Superintendent in BPS-16 and has been holding the said post since 1998. He has also averred in his petition that earlier he was promoted to the post of Assistant Secret ary, however the said order was later withdrawn by the respondent No. 1 for the reason that it lacked the requisite approval of the competent authority . The said order of withdrawal was challenged by the petitioner before this Court but with no success. He seeks his appointment against the post of Assistant Controller (Secrecy) which at the relevant time was lying vacant in dif ferent Boards in the Province of Khyber Pakhtunkhwa.
3. The respondents were put to notice. In response to the notice, the respondent No. 2 (the Secretary Elementary and Secondary Education Department, Peshawar) has filed para-wise comments, wherein inter-alia the main defence/ plea of the respondent is that there are no rules or regulations framed by the competent authority for any kind of promotion for the post of Assistant Secretary (any cadre), Assistant Controller of exam etc. According to the Boards of Intermediate and Secondary Education Calendar , the posts of Chairman, Secretary , Controller , Audit Officer, Deputy Secretaries/Controllers and Assistant Secretaries / Controllers shall be filled by direct recruitment or by deputation or by promotion at the discretion of the controlling authority . Therefore, the petitioner has no vested right to claim promotion to a post which has to be filled by the Controlling Authority .
4. Arguments heard and record of the case was perused with the valuable assistant of learned counsel for the parties.
5. The constitution and establishment of a Board for conducting and supervising examination at Matriculation and Intermediate level etc is regulated through Khyber Pakhtunkhwa Board of Intermediate and Secondary Education Act, 1990 (`The Act'). According to section 3 of the Act, the Provincial Government may, by notification in the official Gazette, constitute and establish one or more Board(s) or re-constitute an existing Board, as it may deem fit which shall be a body corporate and shall have perpetual succession and a common seal. Section 11 of the Act empowers the Governor of the Province or his nominee to act as a Controlling Authority . Presently , the Chief Minister of the Province acts as a Controlling Authority of all the Boards constituted under the Act.
6. Under section 12 of the Act, in the matter of appointment into the service of the Board, the Controlling Authority has been bestowed upon the powers as following:- 12(8): Notwithstanding anything to the contrary containing in this Ordinance, the Controlling Authority may: i) Place the services of any of the officers of other employees of any Board at the disposal of Government or any other Board or institution of such period and as may be determined by him, provided that such terms and conditions shall not be less favourable than those admissible to him immediately before his transfer . ii) Make appointment to any post in the Board in a capacity from persons in the service of Pakistan from other officers or employees of any other Board.
7. Under section 20(2) of the Act, the Board has been empowered to frame Regulations but with the approval of the Government relating to the terms and conditions of service of the employees of a Board, including matters relating to grant of leave and retirement from service. The Act is appended with schedule and chapters providing for different purposes for which the Board has been established.
8. Chapter XXVIII deals with qualification s and mode of appointment of employees of the Board and its minimum qualifications. Since, the present matter pertains to the appointment of Assistant Secretary/Controller , therefore clause-2 of the chapter which envisages the qualification for the post of Assistant Secretary/ Controller is reproduced as following:- 2 (a): Assistant Secretary/Controller : i) Master's Degree in the First Division. Or ii) Master's Degree in the Second Division or Bachelor's Degree in the First Division and five years experience.
Or iii) Bachelor's Degree in the Second Division and ten years experience.
Similarly the mode of appointment for certain posts including the Assistant Secreta ry/ Controller has been provided as following:- 1.(a) The posts of the Chairman, Secretary , Controller , Audit Officer , Deputy Secretaries/Controllers and Assistant Secretaries Controllers shall be filled by direct recruitment or by deputation/ or by promotion, at the discretion of the Controlling Authority .
(b) In the case of permanent employees of the Board, the condition of minimum qualifications may be relaxed or waived off for promotion to the above posts.
(c) Every third post of Assistant Secretary/Assistant Controller , shall be filled in by selection from within the office on the basis of merit and qualifications mentioned in Chapter XXVIII, Rule 2(a), after filing the first two posts in the cadre by promotion from the next lower grade on the basis of Seniority cum merit or on deputation and without restriction of qualifications mentioned in Rule 2 (a).
2. Every fifth post in the cadres of Superintendents. Head Assistant, Assistants, Junior Auditors, Senior Clerks shall be filled in by selection from within the office on the basis of merit and qualificatio ns mentioned in Chapter XXVIII (3), (4) and (5) after filing the first four posts by promotion in each cadre from the next lower grade on the basis of seniority cum merit and without restriction of qualifications mentioned in Chapter XXVIII (3), (4) and (5): Provided that if person with the requisite qualifications and merit are not available from within the office, the posts may be filled in by direct recruitment.
9. Since, the aforesaid regulations are made under the Act and being consistently followed by the respondents, therefore there is no doubt that the same has a statutory status.
10. Some of the employees of the Boar d had earlier filed a Writ Petition bearin g No. 2250-P of 2014 seeking issuance of a writ of mandamus to the respondents for the approval of some proposed Employees (Service) Rules, 2013 or frame fresh proper service structure for the employees of all the Boards of Khyber Pakhtunkhwa under the Act of 1990. The said petition was accepted by this Court vide judgment dated 22.11.2016, whereby the respondents were advised to introduce service structure of all the Boards of Intermediate and Secondary Education, Khyber Pakhtunkhwa as per observation made in the said judgment. However , so far no progress has been made by the respondents in providing service structure to the employees of the Boards. Similarly , the august Supreme Court of Pakistan in Civil Appeal No.231 of 2016 while keeping in view the mode of appointment as stated above has passed the following observations:- "6. A look at the rule reproduced above reveals that employees of the Board if fulfill the requisite qualification and length of experience could be appointed by promotion against any of the posts enumerated in 1(a) of the rule.
When the employees of the Board possessing the requisite qualification and length of experience could be appointed by promotion, we are at a loss to understand why does the Authority hesitate to consider eligible employees of the Board for appointment by promotion, it would be thus violation of the rules mentioned above to refuse to consider the employees of the Board possessing the requisite qualification and length of experience.
7. For the reasons discussed above, we allow this appeal, set aside the impugned judgment and direct the Authority to consider the appellant along with other eligible candidates for appointment against the post of Controller if and when it falls vacant."
11. However , recently , seven (7) vacanc ies of Assistant Controllers (Secrecy) and one (1) vacancy of Assistant Secretary in various Boards in the Province of Khyber Pakhtunkhwa were filled. The directions of the august Supreme Court of Pakistan was indee d flouted as in the summary prepared by the respondent No. 2 for appointments against the eight (8) posts no employee of the Board was considered and only appointments of Assistant Controllers/Secretaries were recommended to be appointed from a panel of the employees of the Provincial Government in Education Department on deputation.
12. The said conduct/recommendation of the respondents is not only against the mode of appointment as provided in Chapter XVIII of the Act, the aforesaid referred judgment of the august Supreme Court of Pakistan but surely discriminatory and as such of fends Articles 4 and 25 of the Constitution.
13. Regarding the appointment against the post of Assistant Secretary/Controller , the aforesaid rules are very clear which clearly envisages that "every third post of Assistant Secretary/Assistant controller shall be filled in by selection from within the office on the basis of merit and qualifications mentioned in Chapter XXVIII Rule 2(a), after filling the first two posts in the cadre by promotion from the next lower grade on the basis of Seniority cum merit or on deputation and without restriction of qualifications mentioned in Rule 2(a) ibid." Thus, the respondent Controlling Authority is bound that in the available vacant posts, the first two posts shall be filled by promotion from the next lower grade on the basis of seniority-cum-merit or on deputation and the third post being a selection post in all circumstances be filled from the employees of the Board.
14. While it is true that regarding the first two categories, the Controlling Authority has the discretion either to fill the said post by promoting the employees from the Board or fill the said post on deputation. However , it is by now settled law that when an authority is conferred with the powers of exercise of a discretion in any matter , such powers is to be exercised in a judicious, transparent and impartial manner keeping in view the fundamental principles of non-discrimination qua reasonable classification and not in the arbitrary or whimsical manner . The aforesaid criteria for appointment against the post of Assistant Secretary/Assistant Controller envisages for equal opportunity to the employees of the Board as well as other Civil Servants / Government Servants in services of Pakistan/Province to be considered and appointed against the said post. Howeve r, only filling the said post on ad hoc/deputation is not only against the aforesaid rules but is a big question mark on the good governance of the Province. The august Supreme Court of Pakistan in the case of Abdul Wahab and another v. Secretary , Government of Balochistan and another (2009 SCMR 1354 ), while dealing with the subject of structu ring of discretion observed as follows:-- "Discretionary power conferred on government should be exercised reasonably and subject to existence of essential conditions, required for exercise of such powers within the scope of law. All judicial, quasi-judicial and administrative authorities while exercisin g mandatory or discretionary jurisdiction must follow the rule of fair exercise of power in a reasonable manner and must ensure dispensation of justice in the spirit of law. Seven instruments that are the most useful in structuring of discretionary power are open plans, open policy statement, open rules, open findings, open reason, open precedents and fair informal procedu re. Power to exercise discretion would not authorize such authorities to act arbitrarily , discriminately and mala fide. They have to act without any ulterior motive."
Similarly , the apex Court in very unequivocal terms in Tariq Aziz-ud-Din 's case reported as 2010 SCMR 1301 has held that:- "It is a settled principle of law that object of good governance cannot be achie ved by exercising discretionary powers unreasonably or arbitrarily and without application of mind but objective can be achieved by following the rules of justness, fairness and openness in consonance with the command of the Constitution enshrined in different Articles including Articles 4 and 25. Once it is accepted that the Constitution is the supreme law of the country , no room is left to allow any authority to make departure from any of its provisions or the law and the rules made thereunder . By virtue of Articles 4 and 5(2) of the Constitution, even the Chief Executive of the country is bound to obey the command of the Constitution and to act in accordance with law and decid e the issues after application of mind with reasons as per law laid down by this Court in various pronouncements [Federation of Pakistan through Secretary ,Establishment Division v. Tariq Pirzada 1999 SCMR 2744 ]. It is also a settled law that even Chief Executive of the country is not above the Constitution [Ch. Zahur Ilahi v. Mr. Zulfikar Ali Bhutto PLD 1975 SC 383]. It is the duty and obligation of the comp etent authority to consider the merit of all the eligible candidates white putting them in juxtaposition to find out the meritorious amongst them otherwise one of the organs of the State i.e. Executive could not survive as an independent organ which is the command of the Constitution. Expression 'merit' includes limitations prescribed under the law. Discretion is to bell exercised according to rational reasons which means that; (a) there be finding of primar y facts based on good evidence; and (b) decisions about facts be made for reasons which serve the purposes of statute in an intelligible and reasonable manner . Actions which do not meet these threshold requirements are considered arbitrary and misuse of power [Director Food, N.-W .F.P. v.
Messrs Madina Flour and General Mills (Pvt.) Ltd. PLD 2001 SC 1]. Equally , discretionary power conferred on Government should be exercised reasonably subject to existence of essential conditions, required of exercise of such power within the scope of law. All judicial, quasi judicial and administrative authorities must exercise power in reasonable manner and also must ensure justice as per spirit of law and seven instruments which have already been referred to above regarding exercise of discretion. The obligation to act fairly on the part of the administrative authority has been evolved to ensure the rule of law and to prevent failure of justice [Mansukhlal Vithaldas Chauhan v . State of Gujrat (1997 (7) SCC 622).
In case of Pir Imran Sajid and others v. Managing Director/General Manager (Manager Finance) Telephone Industries of Pakistan and others (2015 SCMR 1257 ), the august Supreme Court of Pakistan has held that:- "11. It hardly needs to be emphasized that the whole edifice of governance of the society has it genesis in the Constitution and laws aimed at to establish an order , inter alia, ensuring the provisions of socio-economic justice, so that the people may have guarantee and sense of being treated in accordance with law that they are not being deprived of their due rights. Provision of Article 4 embodies the concept of equality before law and equal protection of law and save citizens from arbitrary/discriminatory law and actions by the Governmental authorities. Article 5(2) commands that everybody is bound to obey the command of the constitutional. Every public functionary is supposed to function in good faith, honestly and within the precincts of its power so that persons concerned should be treated in accordance with law as guaranteed by Article 4 of the Constitution. It would include principles of natural justice, procedural fairness and procedural propriety . The action which is mala fide or colourable is not regarded as action in accordance with law. While discharging official functions, efforts should be made to ensure that no one is prevented from earning his livelihood because of unfair and discriminatory act on their part."
15. The Government functionaries are always expected to use the discretionary powers in such a way that the person(s) against whom that discretion is exercised faces certain appreciable disadvantages which he would not have faced otherwise as improper use of discretionary powers can lead to discrimination. The Hon'ble Sindh High Court in M.Q.M. and others v . Province of Sindh and others (2014 CLC 335 ) has held that:- "But discrimination against a group or an individual implies making an adverse distinction with regard to some benefit, advantage or facility . Discrimination thus involves an element of unfavorable bias and it is in that sense that the expression has to be understood to this extent. However , it becomes an act of discrimination only when it is improper or capricious exercise or abuse of discretionary authority , and the person against whom that discretion is exercised faces certain appreciable disadvantages which he would not have faced otherwise. Under Article 25 of the Constitution, reasonable classification is not prohibited but it is required that all persons similarly placed should be treated alike."
16. In the present case, we have found that so far no post of Assistant Secretary /Controller has ever been filled from the strength of the employees in any of the category , whereas the rules i.e. mode of appointment as stated above are very clear and unambiguous in this regard. We have also found that while the Controlling Authority has been given the discretionary powers regarding certain appointments, however , the said discretionary powers have not been exercised in a fair and impartial manner .
17. In this view of the matter , we direct the respondents to immediately fill one third of the posts of Assistant Secretary/Assistant Controller by selecting the employees of the Board/of the office strictly by adhering the criteria as provided under Chapter XXVIII of the Act of 1990 and the remaining posts shall be filled on promotion from the employees of the Board in their respective cadres on the basis of seniority cum merit or deputation, but a balance be maintained between the two categories.
18. In view of the above, this writ petition is disposed of accordingly .