MUHAMMAD FAHEEM WALI, J. Through this petition, filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner has prayed for the following relief:- "It is, therefore, respectfully prayed that on acceptance of this writ petition, this honorable court may be pleased to issue a writ declaring the advertisement to be illegal and thus set-aside with further directions to the respondents to promote the petitioner for promotion to the post of SET .
Any other remedy not specifically aske d for but appropriate in the circumstances of the case may also be awarded to the petitioner".
02. Brief facts of the case, as per averments of the petition in hand, are that on 22.04.2004. the petitioner was appointed as Drawing Master by the respondents and from the date of his appointment, he is working on the said post. At the time of his selection, he was having qualification of Master in Islamic Theology from the University of Peshawar , however , later-on, he further improved his qualification and got degree of B.Ed from the said University .
On the promotion of one Noor Muhammad, to the post of Subject Specialist, the post of SET fallen vacant, hence, the petitioner submitted an application dated 04.02.2013, followed by a reminder dated 22.04.2013, to the respondents for his promotion against the vacant post of SET but in vain. It is further averred in the petition that usually C.T and Drawing Master teachers are promoted to the post of SET and earlier C.T teachers were promoted to the post of SET and his cadre was disregarded and by ignoring the cadre of Drawing Master , the respondents have invited applications, through advertisement, for filling the vacant post of SET by initial recruitment. The petitioner after advertisement, too moved application dated 29.09.2014, for consideration but no heed was paid to his application by the respondents, therefore, the petitioner having no other adequate, efficacious and alternate remedy , has filed the instant writ petition for his promotion and declaring the advertisement as illegal.
3. Respondents when put on notice, they filed their comments wherein they have opposed the issuance of desired writ, on various legal and factual objections.
4. Arguments heard and record perused.
5. Admittedly , the petitioner was occupying the post of Drawing Master (BPS-15) and during pendency of the instant lis, he was promoted to the post of Senior Drawing Master in (BPS-16). Main grievance of the petitioner is regarding the non-observance of the quota reserved for the cadre of Drawing Master for promotion to the post of SET/SST , and he being presently , on top of the seniority list within his cadre, is entitled to be considered for promotion as such.
6. The respondents alongwith their comments submitted a Notification dated 24.07.2014 issued by the Section Officer (Primary) on behalf of the Government of Khyber Pakhtunkhwa, Elementary & Secondary Education Department mentioning therein "In pursuance of the provisions contained in sub rule (2) of rule 3 of the Khyber Pakhtunkhwa Civil Servants (Appointmen t, Promotion and Transfer) Rules. 1989. the Elementary and Secondary Education Department in consultation with the Establishment Department and the Finance Department hereby directs that in this Department's Notifications No.S0(G)S&LD/1-28/2003/V ol-11 dated 09.04.2004. Notification No.S0(G)S&L/1-69/06/V ol-1/DPE/LIB dated 13.11.2007, and Notification No.SO(PE)4- 5/SSRC/Meeting/2012/T eaching Cadre, dated 13.11.2012, the following further amendments shall be made, namely: and at item No.1B, in qualification for SST (BPS-16) in column No.5 of the ibid notification, a quota of 4 % has been reserved for Senior Drawing Master in (BPS-16) with at least five years service as Senior Drawing Master and Drawing Master having qualification of second class Bachelor's Degree in one of the groups specified therein.
07. The respondents, on a second thought or due to fresh developments, submitted additional documents through application/CM No.389-P/2021 consisting of City District Government Peshawar Municipal Schools, Inter and Degree Colleges (terms and conditions of service) Rules. 2016 wherein, qualification for SET/SST (BPS-16) has been mentioned to be reserved at the rate of 50% by initial recruitment while rest of the 50% by promotion on the basis of seniority-cum-fitness having equivalent qualification.
8. Learned counsel for the respondents , vehemently argued before the Court that in the advent of new rules passed by the City District Government, petitioner is no more entitled for promotion from his cadre to the post of SET/SST . We are not, however , in consonance with the arguments of the learned counsel for the respondents because the rules so framed by the City District Government are in furtherance of the rules already framed by the Provincial Government and certainly not in derogation thereof. By holding this opinion, we are fortified by Rule 60 of the said rules, which is reproduced as under: - "60. Saving: - In all other matters not expressly provided for in these rules, employees shall be governed by such rules as have been or may hereafter be provided by Government and made applicable to the employees with such modifications and changes as the circumstances in their application to the employees may require"
9. Perusal of the above would suggest that 50% quota so reserved by the rules made by the City District Government by promotion on the basis of seniority-cum fitness does not provide further sub-distribution amongst various other cadres in the department and by any stretch of imagination, it cannot be held that 4% quota reserved for Senior Drawing Master has been done away with.
10. More-so, perusal of Rule 60 clearly does not oust the rules already made by the government, therefore, drawing inference from the same, it can be safely held that the reserved 4% quota from amongst the Senior Drawing Master is still intact and the respondents are bound to observe the same.
11. In view of the above, this writ petition is allowed, advertisement dated 08.01.2014 is set aside to the extent of the post of petitioner and the respondents are directed to consider the case of the petitioner for his promotion, if otherwise found fit and eligible qua other qualifications.