1. It is proposed to decide the Writ Petitions Nos. 3197 of 1994 and 4344 of 1995 together as the same are interconnected and basic facts are the same.
2. 2.The relevant facts are that the respondents through advertisement dated 11-9-1990 invited applications for appointment of Lecturers in Biology but the case was not processed. Then another advertisement was issued on 5-3-1993 for appointment of 16 Lecturers in Biology. The petitioner, who has done her M. Phill. In Plant Physiology after doing M.Sc. In Biology from Quaid-e-Azam University, applied for the same but she was not called for interview. Therefore, she tiled Writ Petition No.3197 of 1994 wherein she prayed for a direction to the Public Service Commission to consider her case on merits after excluding the holders of M.Sc. Degree in Botany and Zoology from consideration. The writ petition came up for hearing for 26-3-1994. The respondent Commission was directed to submit report and parawise comments. The order was complied with. It was admitted in para.5(f) of comments that the candidates holding Master's Degree in subjects of Botany and Zoology were rendered ineligible. It is alleged that somebody keenly interested in some candidates manoeuvered issuance of notification bated 25-9-1994 whereby a note to the original qualification to the effect that for the post of Lecturer in Biology, candidates having done M.Sc.
3. Botany or Zoology would be eligible. The petitioner then filed Writ Petition No. 4344 of 1995 challenging the vires of this notification.
4. 3.The petitions were admitted to hearing and notices were issued to the respondents, who have appeared and contested the petitions.
5. 4.The learned counsel for the petitioner argued that it is clear from the rules and advertisement that there was no scope for the persons holding degree of M.Sc. In any other subject than Biology to apply for these posts. It is added that not only the written test taken but the interviews were also concluded before the issuance of the impugned notification, therefore, the same was not applicable to the candidates, who have already applied for these posts. It is added that the matter being in Court with the filing of the first writ petition on 15-4-1994 it was the duty of the Government to wait for the judgment of the Court and issuance of notification to defeat the right of the petitioner is an illegal and mala fide at which needs to be condemned in strongest possible words.
6. The learned counsel in this behalf has referred to Zain Noorani v. Secretary of the National Assembly of Pakistan (PLD 1957 (W.P.) Karachi 1) and Aitzaz Ahsan and others v. Chief Election Commissioner and others (PLD 1989 Lahore l), It is added that this is violative of Article 25. In this behalf, learned counsel has referred to Shahzad Munawar Butt v. Vice-Chancellor, University of the Punjab and 2 others (1990 CLC 316). It is added that it is the duty of the Government to have a complete set of rules for all matters and not to refer to provisions of section 23 of the Punjab Civil Servants Act, 1974. In this behalf, learned counsel has referred to Ch. Yar Muhammad Durraiana v.
7. Government of the Punjab and another (1992 PLC (C.S.) 95).
8. 5.On the other hand, the learned Additional Advocate-General argued that even earlier the candidates holding M.Sc. Botany and Zoology were not only eligible but were appointed as Lecturers in Biology. It is added that the Biology covers both Botany and Zoology. It is argued that there is no difference between the to qualifications as the Lecturers of one subject have been posted for teaching other subject. It is added that the petitioner has already been appointed as Lecturer as she was selected subsequently.
9. 6.It was an important question, therefore, Ch. Ijaz Ahmad, Advocate was asked to assist this Court as amicus curiae. The learned Advocate argued that Articles 240 and 242 are relevant. The learned Advocate added that Article 240 of the Constitution of Islamic Republic of Pakistan, 1973 is the first relevant provision because Punjab Civil Servants Act, 1974 (VII of 1974) (hereinafter to be referred as Act of 1974) was enacted in pursuance of this Article. The learned counsel thereafter referred to different definitions as contained in section 2 of the Act of 1974. Thereafter, Ch. Ijaz Ahmad, learned Advocate referred to Article 242 of 1973 Constitution, according to which, Public Service Commission vas established under the Punjab Public Service Commission Ordinance, 1978.
10. Thereafter he referred to section 7, according to which, the Public Service Commission has to hold tests and examinations. The learned Advocate then argued that the promotion is not a vested right, therefore, rules could be changed any the before the grant of permission. In this behalf, reliance is placed on Iqan Ahmad Khurram v. Government of Pakistan etc. (PLD 1980 SC 153), Secretary, Government of Sind, Education Department v. Syed Riyazul Hassan Zaidi and another (1986 SCMR 64), Ch. Muhammad Insha Ullah and others v. Chief Conservator of Forests (P&E)
11. Punjab and others (PLD 1988 SC 155), Falak Sher Khan and another v. Mukhtar Ahmad and others (PLD 1989 SC 262) and Mian Irshadul Haque v. Government of Pakistan through Secretary, Housing and Works (1990 PLC (C.S.) 232). But as far initial recruitment was concerned the candidates, who have replied in response to advertisement have a vested right to be dealt in accordance with law as it stood on the last date of applications or at least on the date of interviews. The learned counsel in this behalf has referred to Muhammad Iqbal Khokhar and 3 others v. The Government of the Punjab (PLD 1991 SC 35), Capt. (Retd.) Abdul Qayyum, Executive Engineer v. Muhammad Iqbal Khokhar and 4 others (PLD 1992 SC 184), Ch. Yar Muhammad Durraiana v. Government of the Punjab and another (1992 PLC (C.S.) 95, Nasimul Haque Malik v. Chief Secretary to Government of Sind, Karachi and 4 others (1996 SCMR 1264 1996 PLC (C.S.) 921), Dr. Habibur Rehman v. The West Pakistan Public Service Commission, Lahore and 4 others (PLD 1973 SC 144), Federation of Pakistan v. Mirza Muhammad Irfan Baig and 4 others (1992 SCMR 2430), Government of N.-W.F.P. Health and Social Welfare Department v. Dr. Sheikh Muzaffar Iqbal and others (1990 SCMR 1321).
12. 7.The learned counsel for the petitioner while summing up the arguments submitted that in the earlier adds it was specifically mentioned that the candidates having M.Sc. Botany and Zoology could apply for the post of Lecturer in Biology but in the advertisement dated 5-3-1993 this was conspicuously missing. It is added that earlier the M.Sc. Biology was not taught in any of the Pakistani Universities but now it is a regular subject in Quaid-e-Azam University. It is argued that the respondents legally could not contest these petitions after giving concessional written statement based on the interpretation put by the Education Department. It is argued that an Additional Chief Secretary, Government of the Punjab, has no locus standi or authority to interpret these rules. This was clearly an effort to help individuals. In the end it is added that section 23 of the Act, 1974 provides rules to carry out the purpose of the Act but the present rule has been framed to help certain individuals and not to carry out the purpose of the Act, therefore, the rules are ultra vires. Moreover, this will not promote the cause of education but result in further deterioration of standard of education.
13. 8.I have given my anxious consideration to the arguments advanced on behalf of the parties, gone through the record, relevant provisions of Constitution, Punjab Civil Servants Act, 1974, rules framed thereunder and precedents relied on behalf of the parties. The qualifications of Lecturers are prescribed in the Schedule to the rules notified on 16-6-1990 as amended upto date.
14. The relevant entry of the Schedule reads as under:-- Deptt. Branch.Post. Authority.Qualifications for appointment by initial recruitment /transfer.
15. PromotionMethod of recruitmentAge of recruitment Min.Max Yrs. Yrs.ExamTrg.
16. And other condition for confirmaton 1 2 3 4 56 78 9 10 Education DepartmentCollegiate BranchLectrurerAdmn.Secy.Provided that candidates who are M.A.
17. (English) 3rd Divn) may be Provisionally appointed Lecturer in English on specific condition that the shall continueBy initial recruitment on divisional basis fromamong persons Domicile d in the Division where the vacan--cies occur.2126 The applications were invited for appointment as Lecturer in Biology in accordance with the above qualifications. The candidates, who had applied, took test and thereafter in accordance with the rule 58 candidates from different zones were called for interview. The grievance of the petitioner in the first writ petition was that the Commission has also included the names of candidates, who have not done their M.Sc. In the Biology but they were M.Sc. Botany or Zoology, therefore, as per qualifications prescribed in the rules they could not apply for the post of Lecturer in Biology. The Commission when confronted with this legal flaw referred back the matter to the administrative department i.e. Education Department and was informed that legally the candidates holding Master Degree in subjects of Botany and Zoology were not eligible for the post of Lecturer in Biology. The relevant portions of the parawise comments submitted by the Commission read as under:-- "(f) As a result of this reply from the Education Department, the candidates holding Master's Degree in the subject of Botany or Zoology are rendered ineligible and accordingly their candidature has been cancelled for the post of Lecturer Biology.
6. As a result of this exercise and by excluding the candidates holding Master's Degree in Botany and Zoology, the position of the No. Of candidates who were cleared for interview has been reviewed by the P.P.S.C. And the petitioner would now be called for interview to adjudge her suitability or otherwise for recommending her name for appointment as Lecturer in Biology."
18. This report was submitted alongwith forwarding letter dated 7-7-1991. It seems that at least some of the candidates, who were found ineligible according to the above prevailed upon, got issued notification dated of 25-9-1994 according to which following note was added in column 5:-- "Note. For the post of Lecturer in Biology, candidates with Master's Degree (2nd Divn.) in Botany or Zoology (with B.Sc. In both) will be eligible. "
19. This way the petitioner was constrained to file second petition. This amendment is challenged mainly on the ground that it was not applicable to the candidates, who had applied in pursuance of advertisements dated 11-9-1990 and 15-3-1993. The learned counsel in this behalf relied on the case of Zain Noorani (supra) to argue that the appointments were to be made in accordance with the existing law and Government was ill-advised to introduce the amendment. The relevant portion reads as under:-- ---------Exactly same is the case there and I would therefore hold that Order XI of 1956 is ultra vires of the powers of the President under Article 234 of the Constitution. "
20. Thereafter the Court proceeded to examine the desirability of issuing such amendment. The relevant portion reads as under:- "I cannot refrain from observing that I was rather dismayed by the issue of this Order. Among the questions canvassed at the Bar of the Full Bench were (1) whether Article 223(2) covered casual vacancy in existence on the eve of the enforcement of the Constitution; and (2) what was the scope of the powers of the President under Article 234. The Judges of the Full Bench had not yet given reasons and were expected to do so by the 7th instant. An appeal to the Supreme Court had been permitted by the Full Bench and the matter was actually to come before the Supreme Court on the 8th of this month. The judiciary therefore was still seized of the questions. In such circumstances proper respect for the judiciary demands that the Executive should wait for the final interpretation of the law except the law as interpreted by it and then proceed to take steps to amend the law if it be considered desirable and possible. (Vide observations of Chatterjee, J. In paras. 89 to 95 at pages 19 and 20 of All India Reporter, Calcutta, 1949). A citizen comes for relief against the State on -the basis of the existing law and it does not behave a party to the proceedings to amends the disputed law during the pendency of the proceedings so as to serve its own purpose. Such a procedure obviously militates against the principles of fair play.
21. This is not all. The amendment is otherwise unreasonable and it not only multiplied expenditure but also would result in fall m standard of education. For example if five Lectures, who have done M.Sc.
22. In Biology, are required to teach subject but with this amendment to achieve the same object at least ten Lecturers, who have done M.Sc. Botany or Zoology, would be needed.
23. This is not all. Section 23 of the Act of 1974 permits Governor or any person authorized in this behalf to make rules as appear to him necessary or expedient for carrying out the purposes of this Act whereas the present notification has been issued for serving the individual purpose, therefore, this cannot be deemed as amendment in the rules as envisaged by section 23 of Act 1974. The Government should have introduced M.Sc Biology classes in other Universities also to cater its needs for Lecturers in Biology rather than adopting such short-sighted measures to overcome the difficulty of manpower in the subject.
24. 9.The upshot of the above discussion is that this petition is accepted with no order as to costs. The result is that the respondent-Commission is directed to call the petitioner and other eligible candidates for interview for the post of Lecturer in Biology, formulate its recommendations and forward the same to the Government within one month as this matter is pending since September, 1990.