SYED ARSHAD ALI, J. Through the instant Writ Petition, Naeemullah the petitioner , who is working against the post of Assistant Controller Examinations (Conduct) in the Board of Intermediate and Secondary Education, Malakand has invoked the Constitutional jurisdiction of this Court with the following prayer:- "It is, therefore, humbly prayed than on acceptance of this Writ Petition, an appropriate writ may please be issued declaring that the petitioner is perfectly fit and eligible and coming upto the criteria as per law and rules to be considered for promotion/posting as Controller of Examiner, Board of Intermediate and Secondary Education Malakand declaring the refusal of respondents in this respect as mala fide in law and facts, illegal unlawful, discriminatory, without lawful authority, with directions to the respondents to consider the petitioner for promotion/posting as Controller of Examination, Board of Intermediate and Secondary Education Malakand, with any additional relief, available and favorable to the petitioner in the ends of law, fairness and justice."
2. It is averred in the petition that the petitioner was initially appointed as Assistant Controller Conduct (BPS-17) in the Board of Intermediate and Secondary Education, Saidu Sharif Swat (`The Board') on contract basis for two years w.e.f. 26.07.2002 vide order/letter dated 18.07.2002. However , after amendment in Section 19 of the Khyber Pakhtunkhwa Civil Servants Act, 1973, the services of the petitioner were regularized from die date of his appointment and in July 2003, he was transferred/posted in the Board of Intermediate and Secondary Education, Malakand as Assistant Controller (Conduct) and since then he performed his duties with honesty , devotion and to the entire satisfaction of his superiors. He has also averred in his petition that due to his excellent service record, he was assigned additional charge of Controller of Examinations vide Office Order dated 23.09.2014 w.e.f.
23.09.2014 to 10.07.2015. He has further averred in his petition that according to the tentative seniority list of the Assistant Controller/ Assistant Secretaries and Account Officer of BISE Malakand dated 13.12.2017, he is on the top of the said list. However, time and again he approached the respondents for his promotion/ posting as Controller of Examinations in the Board but to no avail and on deputation one Mr. Jamil Ahmad was posted as Controller of Examinations in BISE Malakand. The petitioner being aggrieved of the said conduct of the respondents filed the instant writ petition.
3. The respondents were put to notice. In response to the notice, the respondents Nos. 1 and 2 filed their para-wise comments, wherein inter alia the main defence/plea of the respondents are that there are no any rules or regulation 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 Board of Intermediate and Secondary Education Calendar, the posts of Chairman, Secretary, Controller, Audit Officer, Deputy Secretary shall be filled by direct recruitment or by deputation at the discretion of the controlling authority. Therefore, the petitioner has no any 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 determine d 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 person in the service of Pakistan from other of ficers 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 qualifications and mode appointment of employees of the Board and its minimum qualifications. Since, the present matter relates to the appointment/promotion against the post of Controller , therefore the relevant rule i.e. Rule 1(a) of Chapter XXVIII of the Calendar of the Boards is reproduced as under:-- "1(a): The posts of the Chairman, Secretary , Controller , Audit Officer, Depu ty Secretaries/Controller and Assistant Secretaries/Controller shall be filled by direct recruitment or by deputation/or by promotion, at the discretion of the Controlling Authority ."
However , the post of Controller is indeed a selection post as I well as for a fix term of three years as provided under section 15 of the A Act which reads as under:-- 15-SECRETARY AND CONTROLLER OF EXAMINATIONS: "(1)- The Secretary and the Controller of examinations shall be whole time salaried officers of the Board and shall be appointed by the Controller Authority of such terms and conditions as it may determine.
(2)- The Secretary and the Controlling of Examinations shall hold office for a term of three years from the date of notification of their appointments and shall be eligible for re appointment for such further period, not exceeding three years, as may be specified in the order of re-appointment.
(3)- Notwithstanding the provisions contained in subsections (1) and (2), the Controlling Authority may, at any time, review the work of the Secretary and the Controller of Examinations 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 Examinations, an opportunity of showing cause, the dispense with his service any time during the original or extended terms of his office.
9. The respondents do not contest the eligibility of the present petitioner to be considered against the post of Controller of the Board as one another Assistant Secretary (Establishment) has already been appointed against the post of Controller in BISE Mardan vide Notification dated 27.10.2017 pursuant to the judgment passed by this Court in W.P No. 2950-P/2014 which was affirmed by the august Supreme Court of Pakistan in Civil Petition bearing No. 334-P of 2015. Hence, the only grievance of the present petitioner is that although the relevant Rule 1 (a) of the Chapter XXVIII of the Board envisages that the said post of Controller can be filled by promotion but in disregard of the said rule, only a deputationist has always been considered against the said post and despite the fact that the eligible candidates are available in the department but they are not even considered against the said post. The learned Asst: A.G representing the respondents could not controvert this assertion of the petitioner.
10. It is true that the Controlling Authority has the discretion either to fill the said post of Controller by promoting the employees of 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 B the arbitrary or whimsical manner. The aforesaid criteria for appointment against the post of 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. However, 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 structuring 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 exercising mandatory or discretionary jurisdiction must follows 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 procedure. 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 achieved 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 Article including Articles 4 and 25. Once it is acceptance 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 decide 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 Bald v. Mr. Zulfiqar Ali Bhutto PLD 1975 SC 383]. It is the duty and obligation of the competent 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. Express 'merit' includes limitations prescribed under the law. Discretion is to be exercised according to rational reasons which means that; (a) there be finding of primary 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 exercise reasonably subject to existence of essential conditions, required for 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 provision 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. Provisions 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 constitution 1. 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 2. 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."
11. 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 unfavorbale 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."
12. In a similar situation, the august Supreme Court of Pakistan while disposing of Civil Petition No.334-P of 2018 has observed that: "We expect that the competent authority will honour it commitment made before the learned Peshawar High Court and consider the case of respondent No.1 including respondent No.2 along with others for appointment as Controller of Examination strictly in accordance with law and the rules and regulations applicable uninfluenced by any observation made in the impugned judgment".
13. Therefore, in view of the above, we are constrained to allow the instant writ petition and direct the respondents to consider the present petitioner against the post of Controller Examinations in the Board of Intermediate and Secondary Education, Malakand by strictly adhering to the criteria as envisaged under Chapter XXVIII of the Act of 1990. The needful be done within a period of one month.
14. Needless to mention that the Controlling Authority shall be at liberty to consider other eligible candidates against the said post in view of the Rule 1(a) of Chapter XXVIII of the Act of 1990.
15. Since, the main writ petition is allowed , therefore the C.O.C. petition bearing No. 116-P of 2018 filed against the interim order dated 04.01.2018 passed in the above-referred Writ petition, has become infructuous which is accordingly dismissed.