2021 PLP (C (PLC(CS)N)

MALIK HAQ NAWAZ, J.

The petitioners who are 5 in number have filed the instant writ petition under Article 71(2) of Gilgit-Baltistan Empowerment and Self Governance Order, 2009, against the respondents Nos. 1 to 6, among whom respondents Nos. 5 and 6, have been arrayed as the contesting respondents as per the claim of the petitioners, the respondents are among the teaching staff of Education Department. Later on by a Notification No. SO(S)-1-(35)/2016 dated 16.06.2017 the respondents Nos. 5 and 6 were promoted in BPS-18 and posted as Deputy Inspector of Schools/Deputy Director Education (BPS-18), which is not only illegal, unwarranted void ab-initio but also a classical example of nepotism and favoritism.

2. It would be more appropriate to reproduce the prayer clause of the instant writ petition which is as under:- "In the light of the above mentioned facts it is therefore humbly prayed that to meet the ends of justice this honorable court may kindly accept the writ petition by granting the following reliefs:- A. The impugned Notification No. SO(S)-1(35)/2016 dated 16.06.2017 may kindly be set aside declaring it to be illegal, discriminatory, void ab-initio, against the provisions of law and equity and also against the fundamental rights of petitioners. B. The respondents Nos. 1 to 4 may kindly be directed to maintain the seniority list of teaching cadre of BPS-17 according to law and proceed with promotion of incumbents according to the departmental rules contained in S.R.O. 538(I)/2014 dated 6th June, 2014. C. Or any other remedy which this Honorable Court deems proper may be granted to meet the ends of justice."

3. The learned counsel submitted that vide Notification No.SO(S)-1-1(60)/2015 dated 21.09.2015 the posts of male teachers (BPS-16) were upgraded to (BPS-17) w.e.f. 25.08.2015, wherein the petitioner No.1 was shown at Serial No. 37 of the up-gradation list, while the name of respondent No. 5 was shown at serial No. 241 of the list. The Education Directorate issued a seniority list on 29.08.2014, wherein the name of respondent No. 5 is appearing at serial No. 241 and likewise respondent No. 6 is placed at serial No. 688 of the above consolidated seniority list of (BPS-16) male teacher's list. The names of petitioners are appearing at serial Nos. 37, 445, 446, 486, 645 and 650 of the said seniority list. Per learned counsel the office of Deputy Director Education Diamer vide letter No. DDE-(D)(28)Estt/2011-21-26 dated 05.01.2011 requested Director Education Academics to separate the seniority of teaching and administrative staff, in response to the office order the said the respondents and the petitioners also opted, their conversion from teaching to administrative staff. A consolidated seniority list of TGTs (BPS-16) male of District Diamer was prepared on 25.03.2008, wherein name of petitioner No. 1 is appearing at serial No. 4 of the seniority list, while respondents Nos. 5 and 6 have been shown at Serial Nos. 26 and 45 respectively. The learned counsel further submitted that the initial appointment of the petitioner was illegal as he was appointed on 19.11.1984, when his age was only 14 years. Per learned counsel the claim of respondent No. 5 that he was from administrative cadre since 2002/2003 is falsified from the pay slips of the respondents Nos.5 and 6 as respondent No. 5 has been drawing teaching allowance till December, 2016, and in the year 2017, and in the similar way the respondent No. 6 has also been continuously drawing teaching allowance, which is not admissible to administrative staff. The learned counsel submitted that the respondents Nos. 5 and 6 after filing of the writ petition relinquished teaching allowance, which is more than sufficient to substantiate the claim of the petitioners. NTS data placed at page 55 of the additional documents does not show any post of legal advisor as claimed by the respondents Nos. 5 and

6. The learned counsel lastly submitted that the Notification dated 16.06.2017 be declared illegal, unwarranted and without lawful authority and the respondents Nos. 1 to 4 be directed to maintain the seniority list of the teaching cadre BPS-17 according to law and proceed with the promotion of the petitioners and others in the light of departmental rules dated 06.06.2014 to meet the ends of justice. The learned counsel relied on 2011 SCMR 408, PLD 2011 SC 516, in support of his contentions.

4. On the other hand the learned counsels for the respondents submitted that the instant writ petition is not maintainable before this Court as the petitioners filed a departmental appeal on 30.01.2019 during pendency of the writ petition. Another writ petition bearing No. 228/2018 has been filed against the respondents 5 and 6 and 6 others and the same was dismissed as withdrawn. The learned counsel W/P for the respondents further submitted that the petitioner Ghulam Murtaza is at serial No. 37 of the seniority list of the male teachers and other 36, who are senior to him have not approached this Court for redressal of their grievances. The remaining petitioners are much more junior and has no locus standi to file the writ petition. The law of res-judicata is fully attracted in the instant writ petition. Further that the petitioner Ghulam Murtaza and two others filed a civil suit against the respondents Nos. 5 and some others, wherein some similar contentions regarding fixation of seniority were raised. The plaint of the petitioners was rejected under Order VII, Rule 11 being pre-mature. The petitioner Ghulam Murtaza and 5 others again filed a civil suit against respondents Nos. 5 and 9 others, which suit was also rejected vide judgment/order dated 21.04.2010. Civil First Appeal No. 9/2010 against the judgment of Civil Judge Chilas was filed in the Court of District Judge Diamer on 26.05.2010, which was dismissed for non-prosecution vide judgment/order dated 29.09.2012 and no appeal was filed against the said judgment/orders. Per learned counsel for the respondent No. 5, that the respondent No. 5 was posted as legal advisor w.e.f. 09.06.2015 to pursue the cases of department in the courts of law, while respondent No. 6 was appointed as ADI accounts in the office of Deputy Director Education vide office order dated 15.04.2002, which orders were not challenged by the petitioners and these orders have gained finality. The cadre of the respondent No. 5 was changed vide office order No. Sec-Edu-5(2)/2016 dated 11.01.2017, which was done after approval by the competent authority. Likewise respondent No. 6 was adjusted in general administration cadre (Schools) vide office order dated 17.06.2016. Lastly that no apparent illegality has been committed by the respondents 1 to 4 and the writ petition is mis-conceived, which may be dismissed, as the same is not maintainable on the above mentioned grounds.

5. Heard at great length and the record of the entire case examined with due care and cautious, with the able assistance of the learned counsel for the parties.

6. The instant writ petition has been filed under Article 71(2) of Self Empowerment and Governance Order, 2009. To invoke the jurisdiction of Chief Court under the above article as held by a number of judgments of this Court is that, the jurisdiction of this Court could only be invoked by a person, who has suffered a legal wrong and if he has also established that any of his right guaranteed by the constitution has been violated. The record reveals that the petitioners and respondents are enlocked in litigations over years in the various Courts of law i.e. Civil Court, District Court as well as before this Court. As well as the promotion is concerned it is made clear here that promotion is not a fundamental right of an individual and it depends upon eligibility cum fitness. For example if a person is eligible for promotion but his superiors are of the view that he is not fit to share the responsibilities in higher ranks, he would not be promoted to next grade. The superior courts have held that the question of eligibility for promotion relates to the terms and conditions of services and the matter could be adjudicated upon by the Service Tribunal. In the case in hand, after perusal of the record and litigations in various courts of law, we entertained this petition as the similar contentions were thrashed by the Courts below. The contentions of the learned counsel for the petitioners that out of turn promotion of the respondents Nos. 5 and 6 was ordered by the concerned authorities, which is illegal is not tenable, as discussed supra that it is the prerogative of the persons sitting in the helm of affairs to make rules/regulations to regulate the policies of promotions to ensure a fair and transparent treatment to all of their employees but it will be pertinent to mention here that if among the lot, some persons are considered suitable for a particular job description, the left over lot cannot claim that they have been discriminated.

7. We have examined the seniority list issued by the Director of Education on 29.08.2014, wherein the petitioner No. 1 Ghulam Murtaza is at serial No. 38, petitioner No. 2 at serial No. 650, petitioner No. 3 at serial No. 488, petitioner No. 4 at serial No. 445 and petitioner No. 5 is also so junior, which denotes that by promotion or cadre change of respondents Nos. 5 and 6, they have not been affected and their case does not fall within the definition of "aggrieved persons".

8. The petitioners have also filed a departmental appeal on 30.01.2019, whereas the present writ petition was filed on 09.11.2017, which was admitted for regular hearing on 22.11.2017, thus filing of departmental appeal during pendency of writ petition was an act, which alone is sufficient to decline any discretionary relief to the petitioners.

9. Administrative job is different one as compared to teaching. Both these terms have been defined in Black Law Dictionary as under:- Administration.

1. The management or performance of the executive duties of a government, institution, or business,

2. In public law, the practical management and direction of the executive department and its agencies. [Cases: Administrative Law and Procedure.],

3. A judicial action in which a court undertake the management and distribution of property. Examples include the administration of a trust, the liquidation of a company, and the realization and distribution of a bankrupt estate,

4. The management and settlement of the estate of an intestate person legally appointed and supervised by the court. Administration of an estate involves realizing the movable assets and paying out of them any debts and other claims against the estate. It also involves the division and distribution of what remains.

2. Teach: 1. (Of a patent specification) to instruct (a person of ordinary skill in the art how to make and use an invention), 2. (Of a prior-art reference) to anticipate (the invention's being examined) by discussing, describing, or analyzing the invention's essential elements or technology. In this sense, prior art that discourages an inventor from pursuing an invention "teaches away from" that invention. A teaching raises a statutory bar to an invention's patentability.

10. The above two definitions are simple and it could easily be inferred that these are different cadres. No one can claim, that a junior one has been selected/promoted to an administrative post.

11. Another aspect of the case, which cannot be lightly ignored and is a legal hurdle to exercise our discretion in favour of the petitioners, is a chequred back ground of the instant case. The petitioners filed a civil suit as discussed in preceding paras in the court of Civil Judge titled Ghulam Murtaza and 9 others on 10.08.2009, which was decided on 05.09.2009, again one Alamgir and other filed a civil suit on almost all on similar grounds, which was disposed on 21.04.2010. On 19.09.2012 the appeal filed by the petitioners was dismissed by the District Judge Diamer.

12. The petitioners have as stated supra are contesting the cases against the respondents in various court of law and have not filed any appeal against the judgments/orders passed by the learned District Judge on 19.09.2012, which has attained finality. The petitioners are estopped by the law of estopal and Resjudicata is fully attracted in the case in hand. Section 11 of C.P.C. defines Res-judicata, which is reproduced as under:-

11. Res-judicata. No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.

13. As discussed above the petitioners left their case half way, as they did not avail the remedy of appeal against the judgment/order passed by the District Judge on 29.09.2012, whereby the judgment/order passed by the learned Civil Judge was passed against the petitioners, perhaps with a view that procedure provided by C.P.C. was lengthy and writ was a short cut remedy, which we are of the view that writ was not competent before this Court. The wisdom is drawn from a case law reported in 2000 SCMR 1699 which is as under:- Constitution of Pakistan, (1973)

Art.199

Constitutional jurisdiction of High Court

Scope

Petitioners, after dismissal of their suit left the matter half way and instead of availing the legal remedies of appeal/revision as provided by the Civil Procedure Code, 1908, invoked the extraordinary jurisdiction of High Court under Art.199 of the Constitution of Pakistan on the plea that the procedure provided by C.P.C. was lengthy

Validity

Constitutional petition being incompetent and not maintainable was rightly dismissed by High Court

Principles.

14. The respondent No. 5 Mr. Faqirullah has also placed on record some appreciation certificates regarding his excellent performance, issued by Mr. Faridullah Khan Deputy Director Education District Diamer, cash award of Rs. 5,000/- on 19.12.2011 by Director Education Gilgit, commendation certificate dated 16.7.2014 by Mr. Sultan Sikandar Raja, Chief Secretary Gilgit-Baltistan, commendation certificate dated 21.04.2015 issued by Mr. Sanaullah, Secretary Education, appreciation certificate dated 30.05.2016 by Faizullah Khan Lone, Director Education(Academics), an appreciation certificate by the then Advocate General Gilgit-Baltistan on 11.08.2017, whereby it has been acknowledged that being legal advisor of Education Department, he defended the cases with due diligence. These certificates by the various high officials shows that the respondent No. 5 has an commendable track record and he has rightly been selected for the appointment, he is holding.

15. The change of cadre of the petitioners has been ordered by the competent authority after fulfillment of all the legal/codal formalities, which cannot be upset as the respondents 1 to 4 are the best judge to place the suitable persons at appropriate place. The petitioners have no cause of action and their writ is even otherwise devoid of any merit which is dismissed being meritless and not maintainable. Civil Miscellaneous No. 479/17 has become infractuous and is hereby disposed of accordingly.

16. Writ dismissed. ZC/80/GB Petition dismissed.