Full Judgment Text & Judicial Ruling

2016 P L C (C.S.) 34

[Balochistan High Court]

Before Muhammad Kamran Khan Mulakhail and Muhammad Hashim Khan Kakar, JJ

MUHAMMAD GUL

Versus

GOVERNMENT OF BALOCHISTAN through Secretary Technical and Higher Education, Quetta and 2 others

C.P.No.192 of 2014, decided on 24th March, 2015.

(a) Civil service---

----Terms and conditions of service---Bar of jurisdiction contained in Art.212 of the Constitution---Scope---Relief prayed for by the petitioner was with regard to terms and conditions of his service---Petitioner did not have requisite qualification---Said relief could not be granted under constitutional jurisdiction of High Court in view of the bar contained in Art.212 of the Constitution---Constitutional petition was dismissed in circumstances.

(b) Civil service---

----When suitable candidates were not available within the organization/department then Government/Employer after amending the rules could advertise the post---Government/Employer was empowered to stipulate the qualification for any vacant post keeping in view the urgency and exigency of the matter with suitable reason for choosing the best among the contestants through fresh recruitment.

Manzoor Ahmed Rehmani for Petitioner.

Tariq Ali Tahir, Additional Advocate-General, Aslam Pervaiz, Assistant Director Education Department and Irfan-ud-Din, Senior Staff Trainer Directorate of Labour and Manpower Department for Respondents Nos.1 and 2.

Abdul Zahir Kakar for Respondent No.3.

Date of hearing: 11th December, 2014.

JUDGMENT

MUHAMMAD KAMRAN KHAN MULAKHAIL, J.--- The petitioner has sought directions to the official respondents for his promotion from the post of Mess Supervisor (BPS-14) to the post of Messing officer (BPS-16). He also sought declaration against the direct appointment of Messing Officer (BPS-16) being violative to the Balochistan Residential Colleges (BPS-16 and above) Service Regulation, 2007, with the additional prayer that the advertisement dated 26-3-2014 published in daily 'Jung' Quetta issued by the Principal, Balochistan Residential College, Loralai ("the BRC") to the extent of appointment of the Messing Officer (BPS-16) is to be declared illegal, unlawful and of no legal effect.

2. Mr. Manzoor Ahmed Rehmani, learned counsel for the petitioner contended that the petitioner was appointed as Laboratory Assistant in grade B-7, in pursuance of Order No.14-BRC (A&S)-96/69, dated 30th May, 1996, in the BRC Loralai. He stated that on 31st October, 2008 the post of Messing Officer (B-16) was vacated, whereby the Secretary Education, Government of Balochistan had sent a requisition for the Annual Confidential Reports (ACRs) and other relevant documents of the employees working in the BRC Loralai. He asserted that the petitioner was already having the requisite qualification and experience for the post of messing officer and he was recommended for promotion being at S.No.1 of the seniority list. Thereafter, his promotion case was submitted to the Secretary Education for onward transmission to the Board of Governors on 30th November, 2009, the board recommended the petitioner and other employees of the BRC for promotion, however, the same could not be implemented to the extent of the petitioner, besides the other employees were promoted. Whereafter, the petitioner time and again made submission for his promotion, but his request was always treated with deaf ears.

The learned counsel further contended that despite approval by the Board of Governors of the BRC the petitioner was not promoted to next position of Messing Officer and posts were advertised by the official respondents for fresh recruitments. He maintained that under the BRC, Services Regulations the post of Messing Officer is to be filled by promotion from amongst the Mess Supervisors and Mess Assistants having ten years experience of the messing affairs of the Residential Colleges. He added that the official respondents in order to deprive the petitioner, are violating the Service Regulations. He finally sought directions to the official respondents to promote the petitioner to the post of Messing Officer and to refrain from making direct appointments in view of Service Regulations of the BRC.

3. Mr. Abdul Zahir Kakar, learned counsel for respondent No.3 strongly opposed the contentions and submitted copies of letters addressed to respondent No.3, issued by the Director-III of the Provincial Ombudsman Balochistan, he stated that this petition was filed on 29-3-2014, whereas at the same time a complaint was also filed by the petitioner before the Provincial Ombudsman. He added that the petitioner has not approached this court with clean hands and has not disclosed the fact that he has also filed a complaint before the Provincial Ombudsman, but he cannot avail two distinct remedies simultaneously. He propounded that the petitioner is a government servant and the prayer made in this petition relates to the terms and conditions of his service, therefore, this petition is not maintainable. He maintained that the office record shows that the promotion of the petitioner from Lab Assistant to the post of Assistant and again his promotion to the post of Mess Supervisor was altogether illegal, as all the official positions held by the petitioner relate to separate cadres and cannot be merged in general cadre. He finally urged that the Diplomas produced by the petitioner in 'Catering' and 'Hotel Management' were dubious and the Government of Balochistan does not recognize the Skill Development Council ("SDC"), while for appointment as Messing Officer the Diploma in Catering Management was a mandatory requirement, therefore, the petitioner was not promoted. He urged with vehemence that petition being not maintainable deserves dismissal.

4. Mr. Tariq Ali Tahir, learned A.A.-G. supported the arguments advanced by the counsel for respondent No.3 and also showed serious reservations and concerns regarding the 'Diploma of Catering' obtained by the petitioner. He suggested that the Department may be allowed to make fresh recruitments in order to appoint the best among the contestants. He urged that the petitioner can also apply for the post and if he holds any sort of diploma in Catering, he can appear in the written tests subject to verification of his diploma by the concerned quarters.

5. This petition was admitted to regular hearing on 9-4-2014 when a query was posed to the learned counsel for the petitioner that whether the petitioner holds any Diploma in Catering or else. The petitioner was present in person, who relied upon two documents i.e. 'Diploma in Catering' and 'Diploma in Hotel Management' respectively issued by the SDC Lahore and Peshawar. On which he was asked that did he attend the Modern Institute of Informatics and Management ("MIIM") mentioned in both the said documents, in reply whereof he stated that he did not attend the institute and both the courses were completed by distance learning. In response to another question that whether he participated in tests and examinations in respect of either course, he responded that since he was having the Master's Degree, therefore, was exempted from any sort of test or examination. Both the referred to documents contradicted the petitioner's stance, because the documents shows that the petitioner attended the MIIM at Islamabad and the Diplomas, were issued after the completion of the relevant courses.

This raises serious doubts about the SDC and the manner in which it is conducting its affairs; therefore, notices were issued to SDC on its addresses at Islamabad and Lahore. Notices were also issued to MIIM on its addresses at Islamabad. In response to court's notices, the MIIM sent its reply through the Additional Registrar of this Court. The reply shows that MIIM is working in collaboration with SDC as Private partners. It was further mentioned that SDC was established under the National Training Ordinance, 1980 (as Amended vide Ordinance No. II of 2002).

6. In this case since the questions of distance learning and vocational/technical training had emerged, therefore, the representatives of Education Department Government of Balochistan and the representative of Directorate of Manpower and Technical Training Department Government of Balochistan were also summoned to address the queries. Both the representatives made their submissions and filed the relevant documents.

Mr. Irfan-ud-Din, the representative of the Labour Department drew our attention towards certain advertisements and web reports, which show that a few institutes are offering vocational and technical training courses on basis of distance learning, whereas the advertisement published by the said private institutes shows that they are offering professional diplomas of two years on basis of four months duration and pretending that the Diplomas issued by them are duly recognized in the country and abroad, on basis of its/their affiliation with the SDC. Therefore, it was felt necessary to attend the question of sanctity of certificates issued by private institutes in the garb of affiliation and recognition under the umbrella of the SDC. In this case the diplomas in Catering and Hotel Management were produced by the petitioner on basis whereof he claimed that being the senior most among the other contestants, since he had a diploma in catering issued by MIIM (private institute), therefore he had preferential right for appointment. It has also been noted that the intended candidates are bringing the diplomas issued by the private institutes but competent appointing authorities seem to be in a dilemma, therefore, they are unable to take the appropriate decision as to whether the said diplomas are acceptable or otherwise. On the other hand the candidates are initiating the litigations on the strength that when they are having the experience certificates of extra qualification in the relevant disciplines issued by the duly recognized institutes, they must be preferred to appointments. Therefore, the question of vocational/ technical training, the distance learning, the regulatory authority for conducting vocational/technical trainings and the correct import of National Training Ordinance, 1980 have been considered necessary to be addressed for guidance in future. (underlining has been supplied for emphasis)

7. However, we deem it apt to discuss the merits of this case before attending the questions referred to hereinabove. In this case the petitioner has admitted before us that he neither appeared in any examination nor any test was conducted, even he never visited the institute either in Islamabad or Peshawar, while the record shows that during the period when according to his Diploma in Catering and Diploma in Hotel Management, he was supposed to be studying in said diplomas awarding private institutes, but he was on his duty as Mess Supervisor in the BRC Loralai. The BRC Service Regulations, 2007 provides the method of recruitment on the post of Messing Officer BPS-16 by promotion with ten years' experience of messing affairs. However, it needs no reiteration that when the suitable candidates are not available within the organization/department, then the Government/Employer after amending the relevant rules, can advertise the post. The Government/Employer is empowered to stipulate the qualification for any vacant post, keeping in view the urgency and exigency of the matter with suitable reasons for choosing the best among the contestants through fresh recruitment.

8. In view of above discussion and the reply filed by respondent No.3 it can safely be concluded that the relief prayed for by the petitioner relates to the terms and conditions of his service and the said relief cannot be granted under the Constitutional jurisdiction of this court in view of the bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. As far as the 'Catering Diploma' obtained by the petitioner on basis of distance learning from an institute, which is neither recognized nor affiliated with the Provincial Trade Testing Board ("TTB") is concerned, it can irresistibly be concluded that the petitioner does not have the requisite qualification i.e. 'Diploma in Catering', thus diplomas produced by him were fake and do not have any legal sanctity, because same were obtained/awarded through unfair means and cannot be accepted being illegal.

9. Now adverting to the proposition involved in this case, it would be apt to determine the questions emerged in this petition; therefore, in order to resolve the controversy the following questions have been formulated:

(i) What are the definitions of Vocational/Technical Training and Distance learning?

(ii) Whether the Vocational and Technical Training can be obtained/ provided through distance learning?

(iii) Whether any authority exists to regulate the examination/test for vocational and technical training? if so, whether any recognition of the said authority is required for the institutions providing such training?

(iv) Whether SDC being a legal entity can conduct the examination in vocational and technical education and whether any private institute affiliated with SDC can issue the certificate on basis of distance learning without attending the institute?

(v) Whether any certificate issued by the SDC or its affiliated institute situated anywhere around the country is recognized by the authority, which regulates the affairs of vocational and technical training.

The replies to the aforesaid questions are provided in seriatim in the following manner:

(i) What are the definition of Vocational/Technical Training and Distance learning.

The terms Vocational/Technical, Training/Education are homologous in nature, which are defined as under:--

"Vocational education/training is education within vocational schools that prepares people for a specific trade. It directly develops expertise in techniques related technology, skill and scientific technique to span all aspects of the trade. Vocational education is classified as using procedural knowledge."

Generally known as career, the technical education or technical and vocational education and training, it prepares people for specific trades, crafts and careers at various levels from a trade, a craft technician, or a high professional practitioner position in career's such as engineering, accountancy, nursing, medicine, architecture, law etc. Craft vocations are usually based on manual or practical activities and are traditionally non-academic but related to a specific trade and occupation. It is sometimes referred to as technical education as the trainee directly develops expertise in a particular group of techniques. Vocational education can be at the secondary, post-secondary level, further education, and higher education level and can interact with the apprenticeship system. Increasingly, vocational education can be recognized in terms of recognition of prior learning and partial academic credit towards tertiary education (e.g., at a university) as credit.

"Distance education or distance learning is a mode of delivering education and instruction, often on an individual basis, to students who are not physically present in a traditional setting such as a classroom."

Distance learning provides "access to learning when the source of information and the learners are separated by time and distance, or both." Distance education courses that require a physical on-site presence for any reason (excluding taking examinations) have been referred to as hybrid or blended courses of study. Massive open online courses (MOOCs), aimed at large-scale interactive participation and open access via the web or other network technologies, are a recent development in distance education.

(ii) Whether the Vocational and Technical Training can be obtained/provided through distance learning?

Keeping in view the aforesaid encyclopedic meanings of referred to terms and on perusal of Amended Ordinance, it can safely be concluded that technical/vocational skill at the certificate level is imparted under the proposition of 80% skill based training imparted at the workshop/work place, and 20% in the form of theory in the related subjects i.e. Trade Theory, Technical Math and Technical Drawing (imparted in the class room/laboratories) with the help of teaching aids. Operational model, flip chart, transparencies and multimedia are basic modules of vocational/technical education. Moreover, the practical training in the workshop/work place is performed by three step method, which is as under:

(i) The Teacher/Instructor performs the job himself in front of all students/trainees.

(ii) The students/trainees demonstrate/repeat the assignment in the physical presence of teacher/Instructor under his supervision.

(iii) The students/trainees perform the job independently. However, he is provided continuous guidance/supervision by the Instructor/Teacher.

These facts narrate that distance learning/education is not at all applicable in the vocational/technical training as the gadgets, instruments, machines and tools recommended in the curricula can neither be made available while sitting at distance nor can be supervised by the instructor in such form of education.

(iii) Whether any authority exists to regulate the examination/test for vocational and technical training, if so, whether any recognition of the said authority is required for the institutions providing such training?

Before attending the question, it would be instructive to go through the back ground and history of vocational training in the country. Efforts for Vocational and Technical training activities in Balochistan were initiated in the year 1979 by establishing 'ARTISAN' training institutes in the Labour and Manpower Training Department Balochistan. The effort was at its evolutionary phase, when in the year 1980 the National Training Ordinance (Ordinance IX of 1980) ("NTO") was promulgated on 20th March 1980. In pursuance whereof, the National Training Bureau ("NTB") was established at the Federal level, to look after and harmonize the vocational training activities in the country. The National Training Bureau was assigned the task to harmonizing and standardizing the vocational training activities, developing the skill standards for preparation of curricula of different trades, provision of machinery, tools and equipments to the technical/vocational training centers, to train the instructional staff of vocational and technical training and to introduce the trade testing and certification system for technical/vocational trainings.

In order to achieve the objects of the Ordinance, 1980 and to initiate, strengthen and look after the vocational training activities the Provincial Training Boards naming as 'Trade Testing Board' ("TTB") were established in all the four provinces in order to implement the framing curricula and related activities as recommended by the NTB in order to enhance the capacity of trainers as well as trainees of vocational and technical education. The Provincial Trade Testing Board was established in Balochistan, subject to section 4 (XIII) of the NTO 1980, vide notification No.4-2/91-Labour/2605-11 dated 10th July, 1991, issued by the Secretary Government of Balochistan Labour and Manpower Department, for conducting the final trade test of the institutions under the aegis of Labour Department and any private institute, which is registered with the TTB for the purpose of certification thereto. Whereafter the Regulations for newly established Trade Testing Board were also framed. The main objects of TTB are as under:---

(i) To register vocational and technical training institutions in public and private sectors;

(ii) To ensure the uniform level of training;

(iii) To implement the skill standards and curriculum framed by the NTB;

(iv) To develop training and teaching material;

(v) To evaluate and monitor training activities;

(vi) To register trainees of all the vocational and technical training centers within the province;

(vii) To develop the questionnaire for each trade;

(viii) To conduct trade tests for short term and long term (one year certificate program) courses; and

(ix) To issue certificates for the pass-outs of short term or long term courses.

However, the mandate of TTB was/is restricted to certificate level courses only.

Thereafter certain amendments were introduced in the Ordinance 1980 called the National Training (Amendment Ordinance, 2002) (hereinafter "NT" "Amended Ordinance"), which introduces the SDCs proposed to be established in all over the country under section 4 subsection (2) of the Amended Ordinance, Whereafter the SDCs were established in the Provincial Capitals, as well as, in the Federal Capital. The main object and function of SDCs were/are:

(a) To create liaison between employers and employees and training providers,

(b) To identify the training requirements of geographical areas;

(c) To arrange training as per training need assessment with the public and private institutes;

(d) To assure quality standards of training and motivate employers.

The aforesaid efforts initiated for imparting vocational and technical training at intermediate level, as well as, at pre-secondary school level, which was for the purpose of certification, which did not involve the graduation and post-graduation level trainings.

It has also come into our notice that initially the National Vocational and Technical Education Commission was established pursuant to the Cabinet Divisions Notification No.4-16/2005-Min-I, dated the 30th December, 2005 and subsequently the Ordinance (XXXIV) of 2006 was promulgated as National Vocational and Technical Education Commission Ordinance, 2006, and enforced on 8th November, 2006. Thereafter the Balochistan Technical Education and Vocational Training Authority (Ordinance No.1) of 2007 was promulgated on 16th January 2007. Finally, the Balochistan Technical Education and Vocational Training Authority Act, 2011(Act No.II of 2011) ("B-TEVTA Act, 2011") was enacted on 24th March 2011. Whereas under section 4 the Secretary Labour and Manpower Department is Ex-officio Secretary and Member of the Authority. The functions of the Authority, its Secretary and the Chairman of the Authority are prescribed in the B-TEVTA Act, 2011, which inter alia includes:

Functions of the Authority under section 5 (f) of the Act, 2011 are as under:--

"(f) strengthen and upgrade the existing Trade Testing Board functioning under the aegis of Labour and Manpower Department for issuing of trade proficiency Certificates and Diplomas."

"Functions of the Secretary B-TEVTA.6. (1)

(a) . .

(j) conduct trade tests and certify the skilled persons and trainers who have received vocational training through any source or acquired the skill through experience or informal system;

(k) (1) ..

(m) affiliate public and private institutes with TTB for final trade test and certification thereof.

(n) (o) (p) (q) . (r) .

(s) establish "Trade Advisory Committee" to update the existing training manuals in the light of prevailing labour market requirements"

Under section 7 of the Act, 2011 the functions of the Chairman are prescribed as under:--

"7. The Chairman of the Authority shall be the Chief Executive of the Authority and shall:--

(a) .. . (b) (c) ..

(d) set up such administrative and technical committees, working groups, skill development council, trade testing board or other such bodies and entrust them such functions as he may consider necessary;

(e) regulate quality control for implementation of skills standards, syllabus, trade testing and certification of technical and vocational training institutes;

(f) advise the Authority for grant of diplomas/certificates for the courses conducted by the private technical education and vocational training institutions affiliated with the Balochistan Technical Education and Vocational Training Authority (BTEVTA);

(g) determine equivalence and recognition of diplomas, certificates awarded by institutions within the country in consultation with the Commission (BTEVTA);"

However, we have been apprised that though the B-TEVTA Act, 2011 has been promulgated and besides others the Chief Minister Balochistan has been designated as the Ex-officio Chairman of the Authority, but the authority has not been assembled as yet. The Balochistan Trade Testing Board is still functioning according to the mandate conferred upon it under the National Training Ordinance, 1980 (as amended vide Ordinance-II of 2002).

Thus, in light of above discussion and in view of two enactments, it can safely be concluded that National Training Bureau at the Federal level and Trade Testing Boards at Provincial level are the only authorities, who have been mandated to regulate the examination/ test for vocational and technical training and only those institutes are authorized to offer the…

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