MRS. SYEDA TAHIRA SAFDAR, C.J.---- This petition was filed by one Ruqqiya Atta (the petitioner), while contending that she was appointed against the post of Physical Training Instructor (PTI) in Union Council Pishin Bazzar , District Pishin vide appointment order dated 28th October 2015, issued in her name by the District Education Officer, Pishin with the appro val of the competent authority i.e. the Secretary , Secondary Education Government of Balochistan, as she was on merit and stood at serial No.1 of the merit list. That consequent to her appointment she joined her place of posting and performed her duties and received the salaries. That respondent No.4 Tabinda Shahid challenged her (petitioner's) appointment, while claimed herself entitled for the additional marks allowed by the Policy , as she (respondent No. 4) held qualification of ADE, that the complaint of respondent No.4 was accepted. That the representa tion filed by her (petitioner) against the decision was not replied. It was prayed that: "In view of above submissions it is respectfully prayed that impugned decision of CRC may be set aside and resultantly , the petitioner may kindly be allowed to continue her services against the post of P.T.I.
Government Middle School Muchan, District Pishin.
Any other relief which this Hon'ble Court deems fit and proper may also be awarded to the petitioner .
Further , the Approval of Res. No.5 as JET in contravention of merit may be declared as without lawful Authority ."
2. Though name of Mehnaz Maryum appeared in the list of respondents as respondent No.5 and a relief was also claimed to her extent, but on 24th April 2019 the learned counsel for the petitioner was with the statement that he did not intend to press the relief to the extent of respondent No.5. Thus the petitioner pressed her claim only to the extent of respondent No. 4.
3. In reply it was contended by responden t No. 4 that 10 marks were awarded to her, having qualification of ADE as allowed by the Policy , thus her appointment as PET (BPS-14) was not suffered with any illegality . She asserted to perform her duties in Killi Abdullah Jan, Pishin from last three months.
4. The Secretary Secondary Education and the Director Education Schools (respondents Nos. 1 and 2) in the reply filed jointly questioned locus standi of the petitioner to invoke the jurisdiction of this court, as the issue in hand pertains to the terms and conditions of service of a civil servant, thus the exclusive jurisdiction lied with the Services. Tribunal as mandated by Article 212 of the Constitution. It was contended that in presence of Service Appeal No. 333/2018, already filed by the petitioner to question the same decision, the instant petition was not maintainable. It was further contended that the Complaint Redressal Cell (CRC) already passed a decision in favour of respondent No.4, thereby awarded additional marks of professional qualification, thus she (respondent No.4) was on merit and was appointed as PTI with approval of the competent authority , thus no illegality was committed in appointment of respondent No.4.That the petitioner left her job in April 2016, as she accepted the decision of the CRC.
5. Learned counsel for the parties were heard at length, on merit of the case and also on the objection raised by respondents Nos. 1 and 2 on jurisdiction of this court. The petitioner seemed to be aggrieved of the decision given by the CRC on complaint filed by respondent No. 4. It was decided to issue appointment order in favour of respondent No. 4, as she was on merit on addition of ten (10) marks, it was with a direction to cancel/ withdraw/ terminate the appointment order of the petitioner . As the services of the petitioner were directed to be placed to an end, thus the petitioner after filing representation to departmental authority appro ached the Services Tribunal for redressal of her grievance. Though this fact was not disclosed in body of the petitio n, but before the court it was not denied. Rather the learned counsel for the petitioner appeared with the statement that the appeal filed before the Tribunal had already been withdrawn. He asserted that on withdrawal of service appeal, the objection of non- maintainability of the instant petition lost its weight. The copy of the order dated 06th August 2019 of the Tribunal was placed before the court in affirmation thereof on court's query the learned counsel for the petitioner was reluctant to state that for what purpose the service appeal was filed before the Services Tribunal. Copy of the service appeal bearing No. 333 of 2018, was very much available in the case file, annexed with the application (C.M.A. No. 1626/2018) filed by the respondents Nos. 1 and 2. It was apparent from perusal of the contents of the appeal that the appeal was filed with the same facts and for same relief as claim ed in the instant petition. It was evident that the petitioner approached both the forums simultaneously , for a favourable order while claiming same relief. This appeal was filed as far as back in May 2018, while the instant petition was filed on 01st June 2018. The petition in hand was filed without disclosing the fact of filing of the appeal before the Tribunal. These facts disentitled the petitioner for the relief claimed. The conduct of petitioner and her counsel though seriously noted, but due to certain facts became evident while hearing the instant petition, necessitated to pass a decision addressing the same it would be for guidance of all the concerned.
6. Though all the relevant papers have not been filed, but the papers available on the record and the facts as contained in the petition and the replies filed by the respondents, official and private, it had come on record that some process was held for appointment of teaching staff in District Pishin. In the process both the petitioner Ruqqiya Atta and respondent No.4 Tabinda Shahid participated. Names of the petitioner and respondent No.4 appeared in the merit list issued on holdin g of the test by the NTS. In the list maintained for PTI (BPS-14) the name of Ruqqiya Atta was at serial No.1 with total marks 54.1, while the name of the respondent No.4 Tabinda Shahid was at serial No.8 of the list with the total marks 48.95. Another merit list, also issued by NTS, for the post of JVT (BPS-09) for Pishin Bazzar . The name of the petitioner was at serial No.2 and the dame of respondent No.4 was at serial No.21 of the second list. Third list issued by the NTS was for the post of JET (BPS-14), also available in the case file, which also contained the name of the petitioner at serial No.3 and of respondent No.4 at serial No. 23. All these three lists were issued by the NTS on conducting of the test for the mentioned posts.
7. The appointment order was issued in the name of the Ruqqiya Atta (petitioner) on 28th October 2015. It was with the approval of the competent authority i.e. Secretary , Government of Balochistan, Secondary Education Department. She was appointed as PTI in Union Council Pishin Bazzar and was posted at Government Girls Middle School Muchan. It was subject to the availability of the post and verification of all the credentials, on basis of the NTS and the merit finalized by the District Recruitment Committee (DRC). According to the petitioner she joined her place of posting and also received the salary . While respondent No.4 questioned this appointment on the ground that she (respondent No. 4) obtained a certificate of ADE, thus was entitled for 10 marks in addition to the marks obtained in test as per the Policy . This complaint was allowed and she was appointed on the post of PET (BPS-14), and as per contents of appointment order dated 9th May 2018 she was posted at Government Girls Middle School Killi Abdullah Jan. The of ficial respondents also relied on the decision given by the CRC.
8. This decision was with the date 1st February 2018, and was with the contents: "Response of Education Department : The appeal of complainant is based on merit and she is awarded 10 additional marks for her ADE. After revising the merit list of union council Pishin for the post of PET , the complainant will stand on merit No-1 with 58.95%.
DRC recommend appointment of Miss Tabinda Shahid as PET from union council Pishin as he stands on merit No.1 and the appointment orders of Miss Ruqia Atta will stand cancelled.
Decision of CRC: Keeping in consideration the available record, it transpires that as per local/ domicile certificate, the complainant belongs to union council Pishin Bazar , where initially she was on merit No.8 for the post of PET. The complainant has objection that her ADE marks may be added to her total. Therefore, after consi dering her ADE additional marks as per Recruitment Policy , 2014, her total will be revised as 58.95% marks. Resultantly , she will stand on merit No.1 for the post of PET in union council Pishin Bazaar .
There is one vacant post of PET in union council Pishin Bazar and the complain ant is on merit No.1. Hence her case merits favourable consideration. Therefore, CRC unanimously recommend appointment of the complainant as PET from union council Pishin Bazar in the best interest of justice, equity and fairplay ."
The official respondents supported the decision and also the appointment order issued in favour of respondent No. 4.
9. The policy on which reliance was made was the RECRUITMENT POLICY -2014 FOR APPOINTMENT OF TEACHING STAFF OF SED BPS-5 -- 15 (other than Drivers). It was issued by the Government of Balochistan, Secondary Education Department, meant for Teaching and staff of SED BPS 5 to 15. The District Recruitment Committee (DRC ) was constituted, with the formation of Deputy Commissioner as Chairman, District Education Officer, District Account Officer, District Officer Education (F) and District Officer Education (M) as members by para 5 of the Policy . The purpose for which the Committee was constituted was described that all the Committee members will be responsible for smooth and transparent conduct of recruitment process by facilitating the NTS and application of weightage formula. The merit list was to be prepared on completion of the process as contained in para No.5(v) of the Policy . It states that the merit list have to be signed by the members of DRC, and have to be placed on website and notice boards of the respective District Offices of Education. It further provide that the merit list shall remain valid for a period of 60 days from the date of approval of DRC and the Appointing Authority shall complete the process of appointment with the approval of the Chairman District Recruitment Committee, within the stipulated period.
10. Apart from other conditions this Policy also approved constitution of the Complaints Redressal Cell (CRC ) at divisional level. Para-1 1 of the Policy contained formation of CRC. It consisted of the Commissioner as Chairman, Divisional Director Education and Principals of the Colleges for male and female at Divisional Headquarter as members. It further required that Chairman may forward decision of the CRC to the concerned Chairman Recruitment Committee for further course of action regarding redressal of complaints.
11. In view of the referred to Policy the process for the purpose of recruitment have to be followed by the respective Committees within the provided period of time. The official respondents placed before the court the minutes of meeting of the District Education Authority held in March 2017, meant to check and scrutinize the decision of the CRC, and the recommendations so made for further approval and guidance of the authorities. At serial No.2 of the complaints considered in the meeting was with the entry that "Ruqqiya daughter of Atta Muhammad appointment order stand cancelled/withdrawn/ termina ted." This District Education Authority no where mentioned in the' Policy .
The learned Additional Advocate General unable to state the Policy Rules or Regulations under which this Authority was constituted and derive its powers. Rather the official respondents relied on the Policy , 2014, whereby the test was conducted by the NTS, pursuant thereto the authority concerned issued appo intment order in the name of the petitioner on 28th October 2015. This appointment was though objected by the respondent No.4 Tabinda Shahid, who claimed ten (10) additional marks for having ADE certificate. The decision of the CRC dated 1st February 2018, available on the record, not denied by either of the parties. It was grievance of the petitioner that she joined her place of posting, performed her duties and received the salary , but on decision of CRC she was denied of this benefit. The CRC exercised its power on strength of the Recruitment Policy , 2014 and decided the complaint of respondent No. 4, thereby appointed her (respondent No.4) and cancelled the appointment of the petitioner .
12. Both the Committees, DRC and CRC, constituted under the Policy by the Government with distinct functions, thus both have to work within the provided limits. The DRC was constituted to look after the recruitment process as desired by the Policy , while CRC was constituted to resolve the issues arose during the recruitment process. It required the Chairman of CRC to forward decision of CRC to the concerned Chairman Recruitment Committee for further course of action regarding redressal of complaints. The District Recruitment Committee designated as Recommending Authority , while the District Education Officer is Appointing Authority as contained in para 7 of the Policy . The function of preparation of final merit list also deputed to the DRC, signed uploaded in respective website and affixed on respective District Offices of Education. A period of sixty days have been provided for validity of the merit list, so prepared, from the date of approval of DRC. While the Appointing Authority has to complete the process with approval of Chairman DRC within the said period.
13. In the case in hand no Final Merit List seemed to have been prepared as required. Even there was no mention of the final merit list in the reply submitted by the respondents Nos. 1 and 2, the authorities concerned. The decision of CRC was not forwarded to the concerned Chairman Recruitment Committee. Rather it was under scrutiny of some District Education Authority . The minutes of the meeting of the Authority placed on record by the official respondents was with the contents that the decision given by CRC was considered and deliberated, and recommended for further approval/ guidance from the Authorities. The case of the petitioner was at serial No. 2 of the cases it was with the contents that "Ruqqia Atta appointment orders stand cancelled/withdrawn/terminated."
Nothing placed on record whereby any approval was given by the authorities concerned i.e. District Education Officer/ District Pishin and the Secretary , Secondary Education Balochistan for cancellation/ withdrawal or termination of the petitioner from service on basis thereof, nor any proper order was issued consequent thereto.
The procedure as contained in the Policy had not been followed.
14. In addition though the appointment order was issued in the name of Tabinda Shahid (respondent No.4) on 09th May 2018, which was with the approval of the Appointing Authority and the Secretary , Secondary Education, Government of Balochistan, but no order was passed to the extent of the petitioner . Neither the appointment order issued in the name of the petitioner on 28th October 2015 was cancelled or withdrawn, nor she was terminated from the service. The appointment order issued in her name remained intact. The issuance of appointment order in the name of respondent No.4 in no way amounted to cancel the appointment order issued in the name of the petitioner Ruqqiya Atta. It was further noted that the petitioner was appointed on the post of PTI (BPS-14) and was posted at Government Girls Middle School Muchan, while respondent No.4 was appointed on the post of PET (BPS-14) and was posted at Government Girls Middle School Killi Abdullah Jan. The petitioner and respondent No.4 were appointed on different posts and were posted in different schools. The official respondents unable to address this aspect of the case. The decision was given by the CRC though with a recommendation, but the act on part of DRC as required was missing. The Appointing Authority though was in agreement with the decision of the CRC, and also issued appointment order in the name of respondent No.4 pursuant thereto, but the fate of the petitioner was never determined. This issuance of appointment order in the name of the respondent No.4 in no way amounted termination of the petitioner from service, who was also appointed by the order of competent authority , though this appointment was subject to finalization of merit by DRC, which was never done.
15. In view of the described facts both the petitioner and respondent No.4 were appointed by the authority concerned, and their appointment orders still intact. As noted hereinabove they (petitioner and respondent No.4) were appointed on different posts and were posted in different schools, thus having less effect on service of each other . Till date they are in service, entitled for the benefit of the posts they hold. It was noted with concern that the authorities concerned were not only under some misconception, but also failed to follow the procedure as required.
If the authorities concerned intended to place to an end service of an employee, have to adopt the course provided by the Law and the Rules applicable to such service. Issuance of appointment order in favour of some other person, either on decision of the CRC or of some other authority , would not automatically terminate the service of a person appointed by the relevant authorit y earlier in time. For the purpose the legal course has to be adopted, and a specific order has to be passed to determine the fate of such appointment.
16. Though the petition was filed with concealment of the facts, with an intent to obtain a favourable order from any of the forums applied for the same relief., but no adverse order is passed, as the lapse seemed to be on part of the counsel representing the petitioner before both the forums, who surely have misguided the petitioner also.
However , the counsel for the petitioner is advised to remain careful in future, as the conduct adopted by him may be converted into proceedings, which may result in cancellation of his license of advocacy .
The petition is disposed of with the observations.