CONSOLIDA TED JUDGMENT WIQAR AHMAD, J.----This order is directed to dispose of W.P No. 723-M/2019, W.P No. 3331-P/2019 and W.P No. 706-M/2019 through this single judgment as facts and law are common and related in all the three petitions.
2. Syeda Humaira Sultana petitioner in W.P No. 723-M/2019 and W.P No. 3331-P/2019 has been Principal of Bajaur Public School. (hereinafter referred to as 'the Sehool' ), Girls Section since 10.04.2010. She has stated in the said writ petitions that she had earlier brought Writ Petition bearing No. 4699-P/2016 along with other staff members for regularization of their service s against the newly created fourteen (14) posts for the School which was allowed by this Court vide order dated 03.05.2018 with direction to the respondents to regularize their services.
They were waiting for regularization of their services that the Deputy Commissioner , Bajaur who is respondent No. 3 in the Writ Petitions issued a proclamation in the newspaper inviting applications for the post of Principal of the School (boys and girls section). Accordin g to the petitioner , respondent No. 3 was not at all competent to invite applications for the post of Principal of the School or to make appointment on the said post.
3. Respondent No. 3 was summoned who filed his para-wise comments, wherein it was disclosed that the petitioner had been terminated on 17.06.2019. Beside the said fact, the assertions in Writ Petitions were rebutted in the para-wise comments. The petitioner filed rejoinder to the comments, wherein she submitted that her services were terminated on 17.06.2019 while an Inquiry Officer was appointed vide order dated 19.06.2019 for conducting an inquiry in the matter subsequently . She further asserted that she had not been heard or made aware of passing of any order of termination and prayed in the rejoinder that the termination order may be declared as null and void.
She had also filed another Writ Petition bearing No. 3331-P of 2019 alleging her harassment at the hands of respondent No. 3 and had prayed for the following reliefs; "It is respectfully prayed that appropriate writ may graciously be issued to the following ef fect:- i. Declare that the respondent No. 3 has no legal authority to interfere/intervene into the affairs of the School or take any action against the petitioner or expel her from the of ficial residence; ii. Declare that any action of the respondent No. 3 against the petitioner as illegal, unlawful, ultra vires of the judgment of this august Court as she has been regularized on the respective post of Principal by the Hon'ble Peshawar High Court, Peshawar in W . P No. 4699-P/2016 dated 03.05.2018; iii. Set aside any illegal order or adverse action, if taken by the respondent No. 3 which is not in knowledge of the petitioner; iv. Direct the respondents to treat the petitioner in accordance with law; v. Any other favorable relief may also graciously be granted to the petitioner as may be deemed just and proper in the facts and circumstances of the case."
4. Petitioner Sultan Muhammad who was the Principal and seven (07) other employees of the School (Boys Section) had brought Writ Petition bearing No. 706-M of 2019, after feeling aggrieved of the issuance of proclamation by the Deputy Commissioner , Bajuar seeking applications for the post of Principal in the School and stated that he was neither competent to invite applications for the post or to make any order of appointment thereon. Sultan Muhammad petitioner has retired during pendency of the writ petition. The other petitioners are however interested in pursuing the matter .
5. Para-wise comments were filed by respondent No. 4, wherein it has been alleged that the School showed no remarkable result due to inefficiency of the Administrative body of the School and therefore, the Deputy Commissioner , Bajaur felt compelled to make appointment of another Principal and take some more steps for rectifying the situation.
6. Learned counsel for the petitioner Syeda Humaira Sultana narrated before the Court the history of past litigations and particularly laid stress on the fact that the petitioner had been ordered to be regularized as Principal by this Court, therefore her termination constituted a contempt of the order of this Court. He further relied on the Notification bearing No. S.O(F ATA)EDU /1-0/ Misc/201 1/1504-1 1 dated 26.03.2 011 of the FATA Secretariat, Administration and Coordination Departm ent, wherein the Board of Directors (hereinafter referred to as 'BOD') had been conskuted and authority in respect to appointment and promotion of junior teaching staff, ministerial staff and other employees in BPS-1 to 16 had been given to the BOD. He also relied on Notification bearing No. S.0 (FATA)
EDU/1-0/Misc/1514-24 of the FATA Secretary Administration and Coordination Department and submitted that the Board of Governors (hereinafter referred to as 'BOG') had been established for Model Schools in the erstwhile Federally Administered Tribal Areas (hereinafter referred to as FATA') and the authority for appointment and promotion of the staff in BPS-17 and above falls in the domain of the BOG. Learne d counsel further relied upon the case of Tariq Mehmood v. District Police Officer, Toba Tek Singh and another reported as PLD 2008 Supreme Court 451, case of District. Coordination Officer, District Dir Lower and others v. Rozi Khan and others reported as 2009 SCMR 663, case of Samina Kanwal v. Director Punjab Forestry Research Institute, Faisalabad reported as 2011 PLC (C.S.) 1553 and the case of Amjad Khan v. Wafaqi Mohtasib (Ombudsman)'
Secretariat through Secretary , Islamab ad and another reported as 2014 PLC (C.S.) 476 and contended that the order of termination had not only been passed by an incompetent authority but was passed in a fanciful and arbitrary manner without notice and conducting any proceedings, therefore same is liable to termination.
7. Learned counsel for the petitioners Sultan Muhammad and others also relied on the above-referred two Notifications and contended that the Deputy Commissioner concerned had nothing to do with the appointment of Principal in the School, therefore the process of recruitment initiated by him was totally without lawful authority .
8. The learned Additional Advocate General as well as the learned Deputy Commissioner , Bajaur who was present in person addressed the Court in rebuttal to the arguments of learned counsel for the petitioners. Both of them stated that earlier the appointments and matters of the School used to be dealt with by the Political Agent, Bajaur and the Deputy Commissioner , Bajaur being his successor had stepped into his shoes and he was fully competent to regulate the matter . The Worthy Deputy Commissioner , Bajaur further added that Political Agent had been Chairman of the BOD constituted vide Notification bearing No. S.0 (FATA)EDU/1-0/Misc/201 1/ 1504-1 1 dated 26.03.201 1 and in the said capacity , he was fully authorized to remove a Principal or make appointment of another Principal. He also described in detail the alleged irregularities and embezzlements particularly conducted by the erstwhile Principals of the School and added that since the School was being run with mismanagement and dishonesty , therefore somebody had to step-in and take the decision which task was assumed by him as per the consistent past practice and there is 410 illegality in his impugned actions.
9. We have heard arguments of learned counsel for the petitioners, learned Additional Advocate General along with the W orthy Deputy Commissioner , Bajaur and perused the record.
10. Bajaur Public School was one of the Model Schools established in FATA under the executive authority of the Federation which was being exercised by the Governor under Article 247 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as Constitution'). The School along with other Schools and Colleges were regulated under instructions issued by the Governor from time to time. Vide Notification bearing No. S.O(F ATA)
EDU/1-0/Misc/201 1/ 1504-1 1 dated 26.03.201 1, a BOD was constituted for the said School which comprised of the following members:-
1. Political Agent/Addl: Political Agent................................ Chairman
2. Principal of the School concerned.................. Member/Secretary
3. Agency Education Of ficer................................................... Member
4. Agency Accounts Of ficer..................................................... Member
5. Once Social Activist/Retired Govt Servant....................... Member
6. One representative of Parents of student studying in the model School ................................................................................... Member Through another Notification bearing No. S.0 (FATA) EDU/1- 0/Misc/1514-24, a BOG was constituted for the Model Schools managed by the Political Agent which comprised of the following members:--
1. Governor Khyber Pakhtunkhwa...................................................... Chairman
2. Secretary Admn. and Coord F ATA................................................... Member
3. Secretary Finance F ATA.................................................................... Member
4. Political Agents Khyber and Kurram Agencies.............................. Member
5. One public representative from F ATA........................................... Member 6.One representative of Parents of students studying in the Model School................................. Member
7. Director Education F ATA.................................................................. Member
8. Managing Director F ATA Education Foundation.......................... Member
9. Principals of three Model School.................................................... Member The Notifications also contained certain TORs for the respective BOD and BOG. Later on, Governor's Model Schools Management Board was constituted vide Notification bearing No. SO(C-III)FS/GMS/1844-73 / 2014 dated 10.06.2014, which consisted of the following members:- i. Secretary Admin. Infra. and Coord (F ATA) ......................................... Chairman ii. Secretary Planning and Development (F ATA).................................... Member iii. Secretary Finance F ATA........................................................................ Member iv. Political Agents Khyber , Bajaur and Kurram Agencies...................... Member v. Director Education (F ATA)..................................................................... Member vi. Managing Director F ATA Education Foundation............................... Member vii. Two Representative from Parents of Students studying in the Model School....................................
Members viii. One Educationist to be nominated for 02 years.............................. Member ix. Principals of 1 x Male and lx Female Model School........................... Members The controversies involved in the present writ petitions mainly related to the authority of Deputy Commissioner , Bajaur to dismiss and appoint a Principal for the School. In this respect, the Worthy Deputy Commissioner , Bajuar submitted that the School was being run under the authority of Political Agent and that he being the successor of Political Agent was fully empowered to remove or appoint a Principal of the Scho ol and that as Chairthan of the BOD, he was very much within his powe r to remove the Principal or call applicat ions for appointment of the new Principal.
11. The Deputy Commissioner , Bajaur was particularly asked in the Court as to whether he had ever called a meeting of BOD and whether he had been authorized by BOD to remove the Principal or appoint a new Principal.
He replied that he had not done so nor had BOD ever authorized him but added that same was not necessary . The impugned act of the respondent/ Deputy Commissioner , Bajaur has not been authorized even by the erstwhile dispensation in the form of BOD or the BOG. The BOD did not have the author ity to remove or appoint a new Principal as it could only make appointment of junior teaching staff, ministerial staff and other employees in BPS-1 to 16. In this respect, Clause-ii of the TORs given in Notification dated 26.03.201 1 is important which is reproduced hereunder for ready reference:- ii. The appointment and promotion of junior teaching staff, Ministerial staff and other employees (BPS-1 to 16) shall be decided by the Principal concerned in consultation with the Board of Directors.
The authority for removal or appointment of the Principal lay with BOG in the erstwhile dispensation which has been so provided in Notification bearing No. S.O (FATA) EDU/1-0/Misc/1514-24. Clause-viii of the TORs contained in the said Notification is relevant which is reproduced hereunder for ready reference: viii. BOG may decide and approve all appointment and promotion cases of staff working in BPS-17 and above in Model Schools on the recommendation of FaEf.
It is thus clear that even in the erstwhile dispensation, the Political Agent, Bajau r did not have the authority to remove a Principal of the School or appoint another Principal.
12. Beside the fact that the Political Agent lacked the authority to remove or appoin t a Principal, it is very difficult for us to agree with the contention of the Worthy Deputy Commissioner , Bajaur that he had been the successor of former Political Agent, has stepped into his shoes automatically and has become the Chairman of the BOD and that his name should be read inserted in place of Political Agent in the Notification dated 26.03 .2011 and Notification bearing No. S.0 (FATA) EDU/1-0/Misc/1514-24. Succession of Public Offices can only be acquired by dent of some law or rules having the force of law. Without an affirmative law, inheritance of a public office cannot be claimed. In the case in hand, not only an affirmative law is missing to devolve the authority of Political Agent on the office of Deputy Commissioner; but the source of power and nature of authority of the two offices are also of different origin and character . The office of Political Agent was one of the Principa l Office of the civil service in the region of FATA. Sub-Article (1) of Article 247 (omitted) of the Constitution provided that the executive authority of the federation shall extend to FATA and that the executive authority of a Province shall extend to PATA. Sub-Article
(2) of the said omitted Article provided that the Governor of a Province shall exercise the executive authority under the instructions of the President. The office of Political Agent was one of the subordinate offices exercising the executive authority of the federation in FATA under various Regulations like FCR etc and other executive instructions issued by the Federal Government. The office of Deputy Commissioner on the other hand is an office exercising powers under the Land Revenue Act, 1967 and similar Provincial statutes but cannot be said to have been exercising the executive authority as an officer of the federation. The source of authority as well as nature and character of duties of the two of fices were entirely dif ferent from each other .
13. Besides the office of Political Agent mainly derived its existence and authority from the Frontier Crimes Regulation, 1901. With repeal of Article 247 from the Constitution, the said Regulation shall be deemed to have been repealed thereby . With the unqualified repeal, the office of Political Agent has seized to exist. No other office or officer can claim any legacy of the said office as no such law provides for the same. In other words, the office of Political Agent has been mummified and laid to rest in the cemetery of history along with all his belongings leaving no legacy for anyone else to utilize. The Deputy Commissioner , Bajaur is therefore not found to be the successor of Political Agent and he has never been a Chairman of the BOD nor had been subst ituted as member of the BOG or the School Management Board. Beside the Political Agent, other members of the BOD and BOG have also lost its existence with the promulgation of Act No. XXXVII of 2018 i.e. 25th Constitutional amendment (hereinafter referred to as the 'amending Act').
14. The erstwhile regime of instructions mentioned above has also lost its significance by operation of the amending Act which was assented by the President of Pakistan on 31st May, 2018. Section 8 of the amending Act had the effect of merging the areas falling in FATA into the Province of Khyber Pakhtunkhwa, while Section 9 of the amending Act provided for omitting Article 247 from the Constitution. With the repeal of the said Article, without providing for any saving clause, all the Regulations promulgated by the President of Pakistan under sub-Article (5) of Article 247 of the Constitution or by the Governor under sub-Article (4) of Article 247 of the Constitution or before the enactment of the Constitution, seized to exist. As a corollary of the said development, the executive authority also shifted its abode from the Governor to the Provincial Government which included the Chief Minister and the Provincial Cabinet, according to Article 129 of the Constitution and ratio of Messrs Mustafa Impex's case reported as PLD 2016 Supreme Court 808.
15. It is by now the responsibility of the Provincial Government to regulate the affairs of the School and similar other educational institutions existing in FATA. The Government shall be duty bound to take interim measures in respect of the Schools and Colleges as well as to take permanent steps for smooth running of the said institutions.
The Government should provide a proper legal framework for these Schools which shall include the establishment of regulatory body and their powers and functions. The said exercise should be initiated as soon as possible and concluded with reasonable speed by putting in place the requisite legal framework for the Schools within three (03) months. The direction with respect to timeline is given by keeping in view the predicament of the students which can well be imagined in the present state of chaos due to lack of any regulatory framework. It is for the Government to take the decision in its policy making domain as to what sort of regulation are they bringing for the Schools, what qualification they prescribe for the teaching staff and administrative officers including the Principal, how they adjust the already regularized staff or the staff members which are yet to be regularized according to the judgment of this Court passed in Writ Petition bearing No. 4699-P of 2019 and what tenure is fixed for the post of Principal etc. Taking of such steps are not only require d for the betterment of the students study ing in the Schools but is also a Constitutional obligation of the Provincial Government arising out of Article 25-A of the Constitution. The above directions are being issued by way of this judgment for carrying forward the mandate of Article 25-A of the Constitution. Reliance in this respect is also placed on the case of Fiaqat Hussain and others v. Federatio n of Pakistan through Secretary , Planning and Development Division, Islamabad and others reported as PLD 2012 Supreme Court 224 and case of Petition Regarding Miserable Condition of the Schools reported as 2013 SCMR 764 .
16. The impugned order of termination of Mst. Syeda Humaira Sultana, petitioner in W.P No 723-M/2019 and W.P 3331-P/2019 issued by the Deputy Commissioner , Bajaur is therefore declared to have been made without any lawful authority and therefore of no legal effect. The initiation of recruitment process by the Deputy Commissioner , Bajaur for the post of Principal Boys section impugned in W.P No. 706-M of 2019 is also declared to be without lawful authority and of no legal ef fect.
17. We make it clear however that by declaring the order of termination illegal, we have not been condoning any alleged acts of misconduct of the petitioner Mst. Syeda Humaira Sultana and the Deputy Commissioner , Bajaur or any citizen may place the allegation against her before "appropriate forum when a regulatory mechanism is provided for the Schools by the Provincial Government.
18. In light of what has been discussed above, all the three Writ Petitions are allowed in terms that we hold and declare as follow:- a) The termination of petitioner Syeda Humaira Sultana is declared to have been made without lawful authority and therefore, she should be re-instated in service on the post of Principal of the School (Girls Section) till the promulgation of new legal regime for the School. b) The initiation of process of recruitment for the appointment of Principal of the School (Boys Section) by the Deputy Commissioner , Bajaur is also declared to be without lawful authority , of no legal effect and resultantly null and void. c) The Provincial Government of Khyber Pakhtunkhwa is directed to take steps on urgent basis for providing a legal framework for Baja ur Public School along with other similar Schools and Colleges situated in F ATA within three (03) months. d) Direct the Provincial Government of Khyber Pakhtunkhwa to constitute adhoc BOD till the constitution of the permanent BOD and other necessary regulatory bodies according to the legal framework to be provided by the Government. e) Direct the Government to notify the District Education Officer , Bajaur as acting Principal of the School (Boys Section) till the appointment of another Principal by the Governme nt after giving a proper legal framework.
Copy of this judgment be sent to the Secretary Education Khyber Pakhtunkhwa, Peshawar for taking necessary steps according to timelines provided herein.