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Petitioner: AZIZ FATIMA VS Respondent: PROVINCE OF PUNJAB
2000 P L C (C
2000 P L C (C.S.) 597
[Lahore High Court]
Before Syed Jamshed Ali, J
Mst. AZIZ FATIMA
Versus
PROVINCE OF PUNJAB through its CHIEF SECRETARY and others.
Writ Petitions Nos.7450 of 1996 and 3948 of 1992 and 9320 of 1997 decided on 8th April, 1999.
Punjab Education Department (School Education) Rules, 1987‑‑‑
‑‑‑‑R.7‑‑‑Constitution of Pakistan (1973), Arts. 25, 27, 199 & 212(2)‑‑ Constitutional petition‑‑‑Civil service‑‑‑Appointment‑‑‑Civil servants were Elementary School Teachers and their services were governed by Punjab Education Department (School Education) Rules, 1987‑‑‑Grievance of civil servants, who were next to be promoted to posts of Secondary School Teachers, was that under the Rules, scheme for recruitment to posts of Secondary School Teachers was that 50% of posts were to be filled by initial recruitment while remaining 50% were reserved for in‑service school teachers, but contrary to said Rules, vacant posts of Secondary School Teachers, some times were being filled through method of appointment by transfer‑‑‑Authorities had undertaken to ensure that in future all vacancies of Secondary School Teachers would be filled in strictly in accordance with said Rules from elementary school teachers of the District in which vacancies would occur‑‑‑Civil servants being satisfied with the undertaking Constitutional petition was disposed of accordingly.
Khaliq‑uz‑Zaman Chaudhry, Civil Judge, 1st Class, Lahore and others v. Government of Punjab 1993 PLC (C.S:) 1322 and Federation of Pakistan through Secretary, Government of Pakistan, Establishment Division, Islamabad and 2 others v. Abdul Rashid 1995 SCMR 1053 ref.
Syed Ijaz Hussain Karbalai and Muhatftiad Amin Malik for Petitioner.
Tahir Haider Wasti, Asstt. A.‑G. for Respondents Nos. 1 to 6. Syed Murtaza Ali Zaidi for Respondents Nos. 7 to 10.
Date of hearing: 8th April, 1999.
JUDGMENT
This judgment will dispose of Writ Petitions Nos.3948 of 1992 and 9320 of 1997 as the grievance in all the petitions in common.
2. The petitioners are Elementary School Teachers and in the matter of their services are governed by the Punjab Education Department (School Education) Rules, 1987 amended from time to time. The next ladder from them is the post of Secondary School Teachers (SST). The method of recruitment to the post is 50 % by initial recruitment while 50 % are reserved for the in‑service school teachers. The primary grievance in these petitions is against the amendments made in these rules by way of the Notification, dated 27‑7‑1991 whereby under column 7 (Method of Recruitment) to the post of Secondary School Teachers (SST) the following note was added:‑
"Only these candidates will be eligible for recruitment who are bona fide residents of District where the vacancies exist. "
2. Another grievance of the petitioners is that contrary to the aforesaid rule, .the vacant posts of S.S.Ts. in district are some times filled in through the method of appointment by transfer instead of considering the in‑service ESTs for appointment as SSTs to the said vacant posts.
3. According to the learned counsel for the petitioners this note is ultra vires of Articles 25 and 27 of the Constitution. It is further contended that the cadre of ESTs was a divisional cadre and appointment to the post of SST (against the quota of ESTs) used to be made on divisional basis. It is complained that the effect of this note is that a person who may be far junior in District Khanewal may be appointed as SST earlier then.a senior EST in Multan District. Reliance is being placed on judgment, dated 21‑1‑1996 rendered by this Court in Writ Petition No.420 of 1994. It was observed in this judgment that there was no scope for filling in the vacancies of SSTs by appointment by transfer from other districts.
4. As far as the first relief claimed by the ‑petitioners is concerned, prima facie, bar of Article 212(2) is attracted and the learned counsel for the petitioners in all these cases state that in case they are allowed the other relief claimed, they will not be pressing for the primary relief claimed in these petitions.
5. The other grievance that the Rules do not permit appointment to the post of SST by transfer and the relief claimed is not hit by the bar of Article 212 of the Constitution. Reference may be made to Khaliq‑uz‑Zaman Chaudhry, Civil Judge, 1st Class, Lahore etc. v. Government of Punjab (1993 PLC (C.S.) 1322), wherein it was held that the departmental authorities could be compelled to make appointments in accordance with the rules and bar of Article 212 of the Constitution will not apply. Reference may also be made to Federation of Pakistan through Secretary, Government 8 of Pakistan Establishment Division, Islamabad and 2 others v. Abdul Rashid (1995 SCMR 1053). In this precedent case, the Hon'ble Supreme Court held that appointment by transfer cannot be made against a post which is 100% j promotion post.
6. The learned Assistant Advocate‑General concedes that in accordance with the method prescribed in Rules appointment by transfer to the post of SST should not be made. He undertakes to ensure that in future all vacancies of S.S.Ts. will be filled is strictly in accordance with the rules from the E.S.Ts. of the district in which the vacancies occur. This undertaking of the learned Assistant Advocate‑General satisfies the learned counsel for the petitioner;.
7. This writ petition is, accordingly, disposed of in the light of the undertaking of the learned Assistant Advocate‑General.
H.B.T./A‑28/L Order accordingly