TASSADUQ HUSSAIN JILANI, J.- Through this Constitutional petition, the petitioner has challenged the Government of the Punjab, Education Department's letter No. SO(S-IV/2/103/98, dated lst October 1998 vide which the Government of the Punjab decided to fill more than 3000 posts of PTC/EST/DRAWING/ARBIC/JUNIOR CLERKS/LAB ASSTTs/SECURITY GUARDS/NAIB QASIDS on contract basis for a period of three years. The precise contention of the petitioner is that in the presence of the Civil Servants Act 1974 and the Punjab Education Department (School Education) Recruitment Rules 1974 which provide a definite procedure for recruitment, the impugned letter is violative of the law.
2. Mr. Ghulam Haider Al-Ghazali, the learned Additional Advocate General Punjab defended the impugned letter and submitted that the Government has issued a Recruitment Policy as it was felt that the teachers who were appointed on permanent basis remained absent from their duties; that they did not go to the far-flung villages/schools and that for several months the schools remained without the teachers. He referred to Rule 22(2) of the Punjab Civil Servants(Appointment and Conditions of Service) Rules, 1974 to contend that there is a provision for ad hoc appointment of a Government servant tor one year and the only change brought by the Government vide the impugned Policy is that the period of contract has been extended to three years.
3. On a Court query the learned Law Officer submitted that he has no objection if this case is admitted to regular hearing and decided as such.
4. Heard.
5. The petition raises certain fundamental questions which are likely to affect the recruitment of teachers and other staff, promotion of the in-service teachers and the working of schools in the entire Province. The questions mooted broadly are as under:-
(i) whether the Secretary Education(Schools) had the authority under the law to issue the impugned letter and make recruitment against the substantive vacancies notwithstanding the Punjab Education Department(School Education) Recruitment Rules, 1974?
(ii) whether the Recruitment Policy which is impugned herein is likely to affect promotion prospects of the in service teachers? And
(iii) whether this Court, sitting in the Constitutional jurisdiction, can set-aside a letter issued by the Government relatable to a policy matter?
6. To better appreciate the controversy in hand, it is necessary to refer to some of the Rules which have an important bearing. The Punjab Civil Servants Act, 1974 and the Punjab Education Department(School Education) Recruitment Rules 1974 were framed wherein the qualifications and procedure for recruitment has been specified. Vide Notification No. SOR-III-1-13/85 dated 27.7.1991 certain amendments were made. With regard to the Appointing Authority and the method of recruitment, the amended Rules are as under:- "In the Schedule, tor the existing entries against Serial Nos. 7 and 8 the following shall be substituted, namely:- #tbs Qualification by initial Method of #the Nameof Appointing for appointment Age Limit for The Post Authority recruitment or initial recruitment By transfer by promotion recruitment Min. Yrs. Max. Yrs.
3 4 5 6 7 8 9 10
7. Second Director BA/B.Sc. &. By initial 18 35 ary of Edu. B.Ed./BT From a recruitment- School concern recognized provided that 50% Teacher ed university or posts shall be filed equivalent qual or from amongst in higher Qual in service teachers discipline Or possessing 1 Education prescribed qual for initial Hafiz Ghulam Mohayuddin V. Govt, of the Punjab L&S.C. 143 (Tassadaq Hussain Jilani, J)___________________________________ .
Name of Appointing Qualification for appointment Age Limit for The Post Authority by initial recruitment or initial recruitment By transfer by promotion Method of recruitment Min. Yrs. Max. Yrs. 3 4 56 7 89 10 \ recruitment for the post of Secondary School Teacher. Note: Only those Candidates will be \ eligible for recruitment who are bona fide residents of the District where the vacancies exist.
8. Primary Assistan Matric with By initial 18 50 School t Primary Teacher Recruitment.
Reacher Educati Certificate from a Note: Only those on recognized candidates will be Officer institution. Eligible for of recruitment who Markaz are bona fide concern residents of the ed Markaz concerned. {{Table}} BY ORDER OF THE GOVERNOR OF THE PUNJAB JIWAN KHAN ADDITIONAL CHIEF SECRETARY"
7. In the impugned letter, qualifications basically remain the same but Recruitment Committees have been constituted at the District level which consist of the following:-
(i) Chairman: District Educational Authority (which according to the learned Addl.A.G. Is an MNA of the District to be nominated by the Chief Minister);
(ii) Secretary: District Education Officer (Elementary Education) concerned;
(iii) Members:
(a) MPA who is nominated as Member of the District Educational Authority;
(b) Deputy District Education Officer of the Tehsil concerned; and
(c) District Education Officer shall nominate a Senior Headmaster with prior permission of the District Educational Authority.
The conditions of contract have been specified as under.-
(i) the contract shall be for a period of three years from the assumption of charge;
(ii) with mutual agreement the period of contract can be extended;
(iii) the appointments shall be made on contract basis for specific schools and those shall be non- transferable;
(iv) on unsatisfactory performance, absence or misconduct an appointment would be liable to termination;
(v) the appointee under the contract shall be entitled to IS days leave in one academic year;
(vi) the appointee shall not be entitled to any seniority or pension; and
(vii) the appointee shall produce medical certificate with regard to his fitness before assumption of charge.
8. The impugned letter has been signed by a Section Officer but the leamed Additional Advocate General submits that the letter has been issued under the Authority of the Secretary Education(Schools), Government of the Punjab. On behalf of the Secretary Education(Schools) it has been averred that the Department has framed elaborated Rules for recruitment on contract basis; that SSTs shall be appointed on the basis of academic qualification of a candidate as also the written tests which have already been conducted and that the apprehension that the MNAs and MPAs would influence the recruitment process is misconceived.
9. Taking up Question No. 1, a perusal of the Punjab Civil Servants Act 1974 and the Punjab Education Department (School Education) Recruitment Rules 1974 referred to in para 6 above would show that there is no provision for appointment of School Teachers of any category or of Physical Education Teachers, Junior Clerks, Naib Qasids or Security Guards on contract basis. Admittedly, the impugned letter has been issued by the Secretary Education and the learned Additional Advocate General conceded that no amendment has been made in the existing Rules to change the modes of appointments in terms of the letter which is impugned. The letter on the face of it, therefore, is ultra vires of the Rules and cannot have a binding effect.
10. Laws are enacted and Rules framed with a view to bring a certain discipline, a certain uniformity and certainty in an Institution. The existence o( these Rules and their strict compliance are the only guarantees ensuring merit in recruitment and providing security of service to the civil servants. The composition of the Recruitment Committees under the impugned letter is alien to these Recruitment Rules. When asked, the learned Additional Advocate General submitted that the Chairman of the Recruitment Committee would be the MNA of the District to be appointed by the Chief Minister. This would further erode the credibility of the District Recruitment Committees.
11. The Members of the National and Provincial Assemblies by virtue of their representative capacity enjoy an exalted position in society and are entitled to respect. However, under the Constitution and law of the land they have no power to interfere in the recruitment of teachers. Any attempt to vest them with such a power is not only violative of the mandate of their office but is also derogatory to the existing Recruitment Rules. It is likely to raise eyebrows with regard to the entire recruitment process as well. The Hon'ble Supreme Court has deprecated the interference of MNAs and MPAs in such matters. In Munawar Khan Vs. Niaz Muhammad and others (1993 SCM R 1287), at page 1294, it has been observed as under:- "The Ministers, the Members of National and Provincial Assemblies, all are under an Oath to discharge their duties in accordance with the Constitution and the Law. The service laws designate, in the case of all appointments, a departmental authority competent to make such appointments.
His judgment and discretion is to be exercised honestly and objectively in the public interest and cannot be influenced or subordinated to the judgment of any one else including his superior. In the circumstances, allocation of such quotas to the Ministers/MNAs/MPAs and appointments made thereunder are all illegal, ab initio and have to be held so by all Court, Tribunals and Authorities."
12. With regard to the second question i.e. Whether the Recruitment Policy which is impugned herein is likely to affect promotion prospects of in-service teachers, it is to be borne in mind that the Punjab Education Department(School Education) Recruitment Rules, 1974 have provided that 50% of the posts of the Secondary School Teachers shall be filled from amongst in service teachers possessing prescribed qualifications. By the impugned letter the total posts of SSTs are being filled from fresh candidates. This is likely to violate this provision of the Rules and therefore is not sustainable. The in-service teachers who have a legitimate expectancy of applying for SSTs against the reserved quota and are likely to be adversely affected by this provision. The quota having been fixed in the Rules, the Government cannot make recruitment arbitrary in disregard to such a quota.
13. Coming to the third question as to whether sitting in Constitutional jurisdiction, can this Court interfere in a matter which falls in the policy making domain of the Government I am of the view that there is no cavil to the proposition that this Court would not ordinarily interfere in such a domain. However, if by a Government Policy any provision of Constitution or law is violated a challenge can be thrown to such an Act/Order and an in-action on the part of the Court may tantamount to abdication of its functions as a Constitutional Court if it does not strike down the said act/order to the extent of its ultra vires. The Court would also interfere if it affects the vested right of an individual which is duly recognized by law. The letter which has been impugned in this, petition is not a policy letter simpliciter. As explained above it is violative of the existing Rules and is not consistent with canons of merit.
14. So far as the argument of the learned Law Officer that the Government has decided to make appointments on contract basis as it was felt that teachers once appointed do not attend to their duties, do not want to go to far-flung villages/schools and remain absent, is concerned, suffice it to say that the Government has ample powers to proceed against them under the Efficiency and Discipline Rules.
15. There is yet another aspect of the matter. Contractual appointments can be made against certain posts, provided the posts in question have been validly created and provision has been made in the Rules vesting an authority to make such recruitment on contract basis. But the Secretary Education has no authority in law to arbitrarily dispense with the Rules on the subject and convert substantive posts into contract posts. In a country where millions live below the subsistence level, where poverty and unemployment abound, where people suffer from social, economic, insecurity where people have lost their zest for life on account of the crippling inflation the conversion of substantive posts into contractual favours would amount to adding salt to injury.
It would further heighten the element of uncertainty and may add to patronage and the related ills.
Political morals as they are Recruitment Committees headed bv politicians would send disturbing signals in those who have lack influenced and political clout. An executive authority before passing an order which is likely to affect thousands, must examine the proposed action from all dimensions. Prima-facie, it seems, the authorities concerned, in their exuberance to fill up the vacancies with such persons who according to them would be willing workers on account of fear of "contract" did not weigh the merits and demerits of the policy and issued the same without even a proper legal cover. The impugned action is reflective of "ad hocism" and would not augur well for Institutional growth in the Province,
16. For afore-referred reasons this petitions is allowed and the impugned letter No SO(S-IV)2/103/98 dated lst October, 1998 is set-aside. There shall, however, be no order as to costs.