JUSTICE (RTD), MUNAWARALI KHAN (CHAIRMAN).- This appeal arose from the facts and circumstances briefly described as follows. In October 1976, the Sindh Public Service Commission advertised, inter alia 53 posts of Lecturers of English subject. According to the advertisement the candidates with MA. In 2nd division were eligible for the said posts but the applications from third divisioners were also invited on the condition that in consequence of their selection, if they were appointed to the posts of lecturers they had to acquire the prescribed qualification within three years of their appointment. The appellant Abdul Razzak, was amongst the third divisioner candidates who appeared in the afore-mentioned selection. He alongwith several other third divisioners were recommended by the Public Service Commission for the appointment. On acceptance of the recommendations of the Commission the Education Department issued notification dated 28th January, 1979 whereby 20 recommendees including the appellant were appointed as lecturers in English, subject of course to the condition of improvement of academic qualification to the extent of M.A. 2nd division, within three years of their appointment.
Subsequently when hue and cry was raised against the imposition of the said condition, the Education Department with the approval of the Chief Minister waived the said condition in case of six lecturers vide its notification dated 30th January 1991. Four of the lecturers to whom the concession of the waiver was allowed were junior to the appellant according to the order of merit in which the Public Service Commission had sent its recommendations and the fifth one was a lady lecturer, Mrs. Munawar Fahim who was appointed on 4-5-1983, i.e. More- then four years after the appellants' appointment and hence also junior to him. The appellant was however discriminated against and was refused the concession of waiver, vide the Education Department's communication dated 31-10-1991 received by him on 13-11-1991. Aggrieved by the said communication the appellant filed departmental appeal on 15-11-1991. As the said appeal remained un-decided until after expiry of statutory period of 90 days, he filed the present appeal before this Tribunal on 11-3-1992.
2. We heard the arguments of the learned counsel for both the parties and also minutely examined the documents relevant for disposal of the appeal.
The Education Department's communication No. S.O. (E.VII) A-3/79 dated 31st October 1991 which has been impugned in this appeal reads as under: - "Subject: Regularization as lecturer in English Reference four application dated nil addressed to the Chief Minister. Sindh on the subject noted above.
It is to inform you that your request for waiving the condition of 3rd Division has been considered again and rejected."
The above order came under the severe attack of the appellant's learned counsel who contended that the Government had arbitrarily imposed the condition upon the appellant's appointment as lecturer, that he like the other third divisioners would improve his academic qualification by acquiring M.A. In 2nd Division within three years of his appointment. According to him the said condition was against the spirit of the advertisement. He further submitted that once the Public Service Commission selected the appellant, his appointment in consequence of such selection was considered as regular appointment and no further regularization of the same was necessary.
The learned counsel next submitted that there was no justification in making discrimination in case of appellant in as such as that the concession of waiver of the condition of improving the academic qualification within three years of the appointment granted to six lecturers, five of whom including a lady lecturer were junior to him was arbitrarily refused to the appellant.
3. It was not disputed that prescribed qualification for Lecturer in English was M.A., 2nd Division. It was also admitted that the appellant did not possess the said qualification at the time of his appearance before the Public Service Commission and his selection for the above post. Perhaps the appellant's learned counsel had not gone through the advertisement of the Public Service Commission carefully. He was not correct in saying that the condition of improvement of qualifications imposed upon third divisioners of M.A. Degree was in conflict with the advertisement.
We have minutely examined the advertisement which under the caption "Qualifications" reads as under: "At least Master's Degree in second division in the relevant subject from recognized University. In the case of English subject only, the candidates with post graduate Degree of M.A. In English (3rd Division) can also be considered and when selected be provisionally appointed as lecturer in English on the specific condition that they would acquire the requisite qualifications within three years of their appointment. Failure to acquire the requisite qualifications within the aforesaid period of three years will lead to termination of their service.
Thus all the candidates including the appellant were informed about the aforesaid condition through the advertisement.
4. However the grievance of discrimination highlighted by the leaned counsel in course of his arguments could not be lightly dismissed. According to him although the condition of improvement of qualifications was waived in respect of six lecturer-appointees, yet the same concession was arbitrarily refused to the appellant. In this connection we were shown the Education Department's notification dated 30th January, 1991 which is reproduced as under: "No. S.O. (E.VII) H-11/76:- The Chief Minister Sindh in relaxation of rules, is pleased to order the waiving of the condition of holding at least 2nd Division Master Degree in the relevant subject to the following Six (6) Lecturers holding Master Degree in relevant subject in 3rd Division appointed as such in the Collegiate Branch so as to ' entitle them time-scale of pay* subject to the condition that this will not be made a precedent.
Date of appointment.
1. Mr. Abdul Basit Govt. National College, Karachi. 8-2-1979.
2. Mr. S. Hakim Ali Shah S.M. Govt. Arts/Commerce College, Karachi. 8-1-1979.
3. Mr. Muhammad Anwar Arain. Extrajudicial Govt. College, Karachi. 8-2-1979.
4. Mr. Muhammad Aslam Shaikh. Bb Govt. S.M. College Tando Allahyar. 1-11-1977.
S. No. NAME Place of Pasting #tbs
6. Mrs. Munawar Fahim #the #tbs
5. Mr. Umed Ali Jumani #the Govt. Pakistan College 28-1-1979.
Khairpur.
Govt. Nuzreth College 4-5-1983".
Hyderabad. {{TABLE MISARRANGED}} The appellant's name was conspicuously missing from the above notification. On perusal of the Public Service Commission's letter No.PSC/R.11 (Edu)/78-32-R dated 3-1-1979 addressed to the Education Secretary, whereby the candidates were recommended in order of merit for appointment as lecturers, it would be noted that the appellant's name appeared at S. No. 6 whereas the names of Abdul Basit, Muhammad Anwar, Hakim Ali Shah and Umed Ali Jumani were mentioned respectively at S. Nos. 28,35 (or 9), 38 and 43 and as such they were junior to the appellant, Despite that it was not clarified in the notification reproduced above on what grounds their case was distinguished from the case of the appellant, so that the concession of the waiver of educational qualification given to them was refused to the appellant. We have also gone through the "summary for Chief Minister" dated 15-3-1989 which ultimately resulted in issuance of the above notification of waiver of the educational qualification. The summary too was silent in the above regard. The appellant's name has not been referred to even casually in the summary. Even Mrs. Munawar Fahim who was given the concession of waiver of educational qualification by the same summary and the notification issued in consequence thereof, was junior to the appellant as she was appointed on 4-5-1983 i.e. More than four years after the appointment of the appellant.
5. Since the appellant was not given the concession of waiver in educational qualification alongwith -his juniors as stated above, he seemed to have made representations separately for the said benefit. In this connection we were shown two "summaries for Chief Minister" floated by the then Secretary Education Department, one date 6-3-1991 and the other dated 22-10-1991. To the appellant's bad luck, both the summaries did not reach the Chief Minister for whose, orders they were prepared. In the first summary even the Education Secretary opposed the waiver erf educational qualifications for the appellant on two grounds, namely, first that the then Chief Minister while allowing waiver in respect of six lecturers mentioned above had expressly directed that the said waiver would not be used as precedent and second, that waiver if allowed to the appellant would be in violation of rule 12(1) 6f the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules 1974. Both the Education Minister and the Chief Secretary agreed with the Education Secretary and as such the appellant's request for the waiver was turned down at their level and the case did not go upto the Chief Minister.
The second summary was prepared in the light of the Chief Minister's order: "please regularize" on the- appellant's representation. This time though the Education Secretary suggested for obtaining the Chief Minister's orders on the appellant's representation and the Chief Ministers orders thereon, yet it was not allowed to go upto the Chief Minister, as the Education Minister wrote on the summary "No action File".
6. I was true that rule 12(1) referred to in the first summary prohibited the relaxation of educational qualifications, but then why the relaxation was allowed to sue lecturers by the notification dated 30th January, 1991 mentioned above. It would be noticed that the relaxation was given to them with the approval of the Chief Minister who being rule-making authority was competent to do so. As such no illegality was committed by relaxing the educational qualifications of the aforesaid six lecturers. Since the appellant's case was better than their case in that he was senior to at least five of them, it should have been submitted for the Chief Minister's orders. The Chief Minister's direction that the relaxation of educational qualification allowed in respect of abovesaid six lecturers would not be used as precedent should not have stood in the way of the appellant's case. According to Art.25 of the constitution all citizens were to be treated alike in accordance with law. In other words the said Art did not permit any discrimination between, the citizens while dealing with them in accordance with the law. Even otherwise differential treatment metedout to the persons placed in precisely the same situation would amount to outraging the principle of equity. It would be neither just nor proper to met out different treatment to the persons placed in the same situation. Such treatment would be against justice and morality. Therefore if precedent wus set up by Chief Minister's order, the persons subsequently placed in the similar situation could not be justifiable denied the benefit of the said precedent. Once the order was passed by any departmental authority, it had to be used as precedent in subsequent cases with similar parameters.
The summary dated 22-10-1991 was admittedly based on the Chief Minister's order: "Please regularize" noted on the appellant's representation. The Chief Minister's order was too apparent to need any clarification, particularly when there existed identical precedent of relaxation of educational qualification in respect of six lecturers. All that was needed was implementation of the Chief Minister's order. Since the appellant's representation involved relaxation of the rules relating to educational qualification, the orders of rule-making authority namely the Chief Minister were called for. As such it was not within the competence of-Education Minister to terminate -such case at his own level. Moreover the Chief Minister had passed orders on the appellant's representation and therefore the summary prepared for the Chief minister in view of his such order had to be submitted to him. Since the said summary did not reach the Chief Minister, the order dated 31st Oct. 1991 could not be held to be the order of the competent authority i.e. Chief Minister. It is therefore liable to be set-aside.
7. For the above reasons the appeal is allowed with no order as to costs and the impugned order is consequently set aside. However it would be open to the Department to float a fresh summary for the Chief Minister if so desired, mentioning (herein the entire background of the case and obtain confirmation or otherwise of the Chief Minister's order dated 14-12-1990 on the appellant's representation of the same date and his orders dated 6-8-1991 On the appellants's representation dated 24-7-1991.
Given under our hand and the seal of his Tribunal this 23rd day of November, 1992.