MUHAMMAD KAMRAN KHAN MULAKHAIL, J .----Through this petition following relief has been sought: "It is therefore prayed that keeping in view the aforesaid submissions petition be allowed, respondents be directed to add/include the condition of diploma in physical education at least in 2nd division from recognized institution as required under Balochistan Education Department (Schools Branch) [Men's Section] [Basic Pay Scale 1 to 15] Service Rules, 1984 in the interest of justice."
2. The relevant facts of the case as stated are that in pursuance of an advertisement dated 28th December , 2016 published in Daily Jang, Quetta, the petitioners applied for posts of Physical Education Teacher (B-14) mentioned at Serial No.5 of the advertisement; that the service rules for the aforesaid post stipulates the requirement of a Diploma in Physical Education; that the petitioners approached respondent No.2, by submitting an application on a strength that they being duly qualified candidates, having the Master Degree and Diploma in Physical Education solicited to include the requirement of diploma in physical education for the subject post, in order to give them a fair chance to contest the position being the deserving candidates, but no heed was paid.
3. We have heard the learned counsel for the petitioners and learned Additional Advocate General on behalf of the respondents.
It was contended by the learned counsel that due to the purported act of the education department, their legal rights have been infringed and they being diploma holders are entitled for the posts of Physical Education Teacher , but due to a Notification dated 03rd May 2019, they have been deprived from their legitimate right. Further , contended that in presence of the Rules, the recruitment policy will have no overriding ef fect.
Conversely , the learned Additional Advocate General stated that in majority areas of the province, the facilities of physical education are not available, as such, in the best interest of the people of the province the policy has been devised vide Notification dated 03rd May 2019, but still the petitioner can apply for the post and in case of successfully qualifying the test and interview , the qualified candidates would be appointed.
4. The respondent No.2 has invited the applications for the different posts including the post of Physical Education Teacher , whereas the condition of holding diploma in Physical Education for the post of Physical Education Teacher was not stipulated. The petitioners have agitated their right being diploma holders in the physical education. It appears that vide Notification No. S.0 (R-II) (4)4/2015-S&GAD3223/73 dated 24th November 2016, the Government of Balochistan amended the Balochistan Education Department (Schools Branch) (Men's Section)
(Basic Pay Scale 1 to 15) Service Rules, 1984 (Rules, 1984) the following stipulation:- "In the aforesaid rules, in the Appendix, -
(a) After Serial No.7 the following new entries shall be inserted.
"7-A Junior Elementary Teacher (BPS-15)Associate Degree at least in Second Division in Education from the recognized UniversityBy initial recruitment 7-B Physical Education Teacher (BPS-14)(a) Bachelor's Degree at lease in Second Division from a recognized University; and
(b) Diploma in Physical Education at least in Second Division from a recognized Institution.
(b)..................................
In view of afore-referred amendment for the post of Physical Education Teacher (BPS-14), the candidates having diploma in Physical Education at least in Second Division from a recognized Institution were eligible to apply , but, the respondent No.1 vide another Notification No.S.O. (S-III)2-22/2019-Edu/527 0-5364 dated 03rd May, 2019, issued a Recruitment Policy , 2019, wherein, the stipulation of having a diploma of Physical Education for the post of Physical Education Teacher was removed/lifted. However , the perusal of Notification dated 03rd May 2019 shows that, no reasons were rendered for removing the condition of the diploma in Physical Education; rather the posts are left open for all A aspiring candidates to apply for the same. The policy statedly was devised for employment of efficient and eligible cand idates, but astonishingly , the condition of holding a diploma in physical education for the post of Physical Education Teacher has been removed, that too, without assigning any explicit, rationale and justifiable reason.
5. It is not out of place to observe here that the Rules, 1984, were framed and amended by the Services and General Administration Department, Gove rnment of Balochistan, in exercise of powers conferred by Section 25 of the Balochistan Civil Servants Act, 1974 (Act No. IX of 1947), whereas the "Revised Teaching Staff (BPS-09 to 15)
Recruitment Policy (2019) Secondary Education " was notified by the Secondary Education Department, Government of Balochistan and presently , both the Rules, 1984 and the Policy (2019) are in filed. The question before us is, that whether a policy can override the existing rules. It is- well settled that rules and regulations are subordinate and delegated legislation deriving authority and legal cover from the provisions of the parent statute.
As rules framed under a statute cannot override the provisions of the statute, under which they were framed and on which their very existence was dependent, similarly , any policy made/framed cannot override the rules, which is even otherwise a subordinate legislation. The Hon'ble Supreme Court, in its judgment, passed in Suo Motu Case No.13 of 2009 ( PLD 201 1 SC 619 ), held as follows:- "18. From an examination of the above case law it is clear that a rule making body cannot frame rules in conflict with, or in derogation of, the substantive provisions of the law or statute, under which the rules are framed. Rules cannot go beyond the scope of the Act. Thus, we are inclined to hold that no rule can be made which is inconsistent with the parent statute, where as, no regulation can be made inconsistent with the parent statute or the rules made thereunder and the provisions of these rules or regulations, as the case may be, to the extent of their inconsistency with the parent statute or the rules shall be inoperative."
6. The policy namely , "Revised Teaching Staff (BPS-09 to 15) Recruitment Policy (20019) Secondary Education" in presence of 'the Balochistan Education Department (Schools Branch) (Men's Section) (Basic Pay Scale 1 to 15)
Service Rules, 1984', will have no overriding effect over the Rules. The official respondents while devising the policy , neither amended the rules nor bothered to bring the policy in consonance with the rules, rather the policy 2019, did not find mentioned about lifting/removing the condition of holding a diploma of Physical Education for the post of Physical Education Teacher . The purported act of the respondent by issuing the policy , clearly shows that the right(s) of the person(s), who were/are Physical Education diploma holder and are eligible for the posts of physical education teacher , were infringed. The contention of the learned Additional Advocate General that in some of the areas in the province, the facilities of physical education are not available, therefore, in order to overcome the issue, the instant policy was framed, does not stand to any explicit reasons, though the proposed policy did state so, that due to not having the facility in any district or part of the province, but it was not specifically mentioned to justify the removing of condition of holding diploma. As stated above, the impugned policy was hopelessly silent on this aspect.
Though the entire policy has not been called in question before us, rather , the direction only to the extent of insertion of condition of diploma in physical education was sought. However , we intentionally refrain ourselves to render any observation on the legality or validity of the impugned Policy , 2019. Thus, we are leaving these questions opened for a judicial scrutiny on an appropriate juncture, whenever it may come before this court in any other case.
In view of the afore-discussed reasons, the petition is allowed. Consequently , the respondents are directed to insert the condition of a diploma of physical education, with at least 2nd division, mandat ed by the Balochistan Education Department (Schools Branch) (Men's Section) (Basic Pay Scale 1 to 15) Service Rules, 1984, and thereafter , appoint the eligible candidate(s) against the post of Physical Education Teacher , strictly in accordance with law and the order of merit to costs. The petition is accepted in the above terms, but with no order as to cost.