2013 PLP (C (PLC(CS))

MUHAMMAD FARRUKH IRFAN KHAN, J.

Grievance of the petitioner is that the respondents while preparing merit list for the posts of SSE (English) has not awarded her ten additional marks under Rule 17-A of the Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974.

2. Learned counsel for the petitioner submits that the Education Department invited applications for recruitment of 1569 Educators on Contract Basis; submits that being eligible the petitioner also applied for the post of Secondary School Educator (English); pleads that the father of the petitioner was Senior Secondary School Teacher in the Education Department, who died during service on 16-1-1993; contends that according to Rule 17-A of the Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974 the petitioner is entitled to award of ten additional marks but the respondents have not awarded these marks to the petitioner which is illegal and unlawful.

3. Conversely, learned Law Officer submits that in the Recruitment Policy for the year 2011 merit criteria was laid down on the basis of educational qualification and no criteria is provided for additional marks under Rule 17-A of the above said rules; that the matter purely relates to the policy of the government and the Constitutional jurisdiction cannot be invoked to strike down the same.

4. Arguments heard. Record perused.

5. The case of the petitioner hinges upon the sole point whether she is entitled to obtain 10 additional marks on the basis of Rule 17-A of the Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974. In order to resolve the controversy it is appropriate to reproduce Rule 17-A of the Rules ibid, which provides as follows:

"17-A. Notwithstanding anything contained in any rule to the contrary, whenever a civil servant dies while in service or is declared invalidated / incapacitated for further, service, one of his unemployed children may be employee by the Appointing Authority against a post to be filled under rules 16 and 17 for which he/she possesses the prescribed qualification and experience and such child may be given 10 additional marks in the Public Service Commission or by the appropriate Selection Board or Committee provided he/she otherwise qualifies in the test/examination and/or interview for posts in BS-6 and above: Provided further that one child or widow/wife of the Government servant who dies while in service or declared invalidated/incapacitated for further service shall be provided a job against posts in BS-1 to 5 in the department in which the deceased Government servant was working, without observance of formalities prescribed under the Rules/procedure. Provided such child is otherwise eligible for the post."

6. Bare perusal of the rule reproduced supra identifies that basic objective behind the said rule is to accommodate one unemployed son/daughter of a public servant who dies while in service or is declared invalid for further service. Learned counsel for the petitioner has also placed on record copy of Notification No.SOR-III (S&GAD) 2-10/2006 dated 26-1-2008 issued by the Government of the Punjab which inter-alia provides as under:

"It is also brought to the notice of all the concerned that the Government has generally shifted from regular to contract mode of recruitment in view of the changing management practices and to achieve the goals of good governance in public sector departments/organizations. It is also clarified that the provisions of Rule 17-A of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 were made applicable in respect of recruitment to be made under the Contract Appointment Policy. Attention is invited to amendment made in the Contract Appointment Policy vide circular letter No.DS (O&M)5-3/2004/Contract (MF) dated 5-8-2006 which inter alias provides as under:

(ii) The provisions of rule 17-A of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 and the relevant instructions/guidelines issued in this behalf from time to time shall be applicable mutatis mutandis for employment of one of the unemployed children; wife/widow of a civil servant who dies while in service or is declared invalidated/incapacitated under the policy. Explanation.

The nature of employment so provided shall be dependent on the mode of recruitment viz contract or regular, as may be decided by the government in respect of a particular post."

7. In the present case, the petitioner applied for the post of Secondary School Educator (English) (BPS-16) and it is not disputed that the father of the petitioner was an employee in the Education Department, who expired during service, therefore, in light of Rule 17-A of the Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974 and in the light of notification referred supra the petitioner is entitled to get 10 additional marks.

8. It is noted with great concern that while framing the Recruitment Policy for the year 2011 the Secretary Education remained oblivious about Rule 17-A of the Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974 and the Notification No.SOR-III (S&GAD) 2-10/2006 dated 26-1-2008 was also apparently not in the knowledge of anyone in the Education department, otherwise, it should have been produced by them before the Court, otherwise, it can be inferred that they tried to conceal it from the Court. While formulating the Recruitment Policy, 2011 general well being of the employees of the Education Department should also have been kept in mind. A proper policy should be based on overall appreciation of the prevalent circumstances, social moral and financial implications as such it is essential to prepare such polices in consonance with the existing service rules. On the whims of one particular regime of politicians or a group of executives at the helm of affairs at the time of framing of the policies such benefits cannot be taken away or reduced from the minimum threshold level. Rule 17-A of the Rules ibid is aimed to provide a stop gap arrangement for the sustainability of a deceased government employee's family on compassionate grounds and its non-adherence in the Recruitment Policy for the year 2011 will be detrimental to the vested rights of the dependants of deceased/incapacitated civil servants bestowed upon them by the Rule ibid.

9. So far as the contention of the learned Law Officer that this Court cannot interfere in the policy matters is concerned, suffice it to say that recruitment policy is meant for the purpose of providing guidelines for making appointments and cannot attain the status of statutory rules or a law promulgated by an Assembly or Parliament Statutory Rules could not be modified or superseded by executive instructions. Reliance is placed on case reported as Dr. Najam Iqbal Ahmad v. Province of Punjab and others (2010 PLC (C.S.) 1477) wherein it has been laid down as under:

"The Recruitment Policy, in fact, has been constituted for a purpose to provide guidelines for making appointment under the Contract Policy. Recruitment Policy can neither achieve the status of statutory Rules nor the law promulgated by the Provincial Assembly or Parliament. As to when the instructions issued by the Department can qualify the statutory rules? In order to qualify the statutory rules capable of conferring right and obligation enforceable at law, the departmental instructions must have been issued by the same Authority, who has power in law to make Rules or draw the Policy Instructions referable to the specific statutory provisions of law having power to issue the statutory rules."

10. Rule 17-A of the Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974 is a statutory rule and cannot be abrogated, modified, repealed or ignored by an executive instruction while formulating the Recruitment Policy. Clause-10 of the Recruitment Policy for the year 2011 is in contravention of Rule 17-A of the Rules ibid as such this Court has ample jurisdiction to pass direction to the concerned authorities to bring it in conformity with statutory rules. Reliance is placed on case reported as Secretary, Revenue Division and others v. Muhammad Saleem (2008 SCMR 948) wherein it has been held as under:

"The jurisdiction vested with the apex and Superior Courts are general, wider in scope and extent while the constraints/ prohibitions are narrower in their applications and dimensions. Jurisdiction of Superior Courts are to be stretched to take into its fold all the disputes to be resolved while limitation of jurisdiction and powers are to be squeezed and kept to the minimum extent and length. This is what we can call the rule of interpretation of jurisdiction, scope and limitation of Superior Courts in Pakistan."

11. Keeping in view the dictum laid down above and the powers vested in this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the instant writ petition is accepted as a result whereof respondent No.3/Secretary Education is directed to amend Clause-10 of the Recruitment Policy for the year 2011 in the light of Rule 17-A of the Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974 and Notification No.SOR-III (S&GAD) 2-10/2006 dated 26-1-2008 expeditiously but not later then 45 days from the date of receipt of certified copy of this order as the recruitment process is going on and due to this transgression of the Education Department, the candidates who are eligible to obtain 10 additional marks on the basis of Rule 17-A of the Rules ibid are being deprived from getting this benefit. Respondents are further directed to award 10 additional marks to the petitioner under Rule 17-A of the Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974 and then if she falls on merit issue her appointment order for the post of Secondary School Educator (English) forthwith. MH/S-64/L Order accordingly.