2000 PLP (C (PLC(CS))

Teacher concerned university or equi‑ shall be filed from amongst valent qual. or higher in‑service teachers possessing Qual. in discipline prescribed qual for initial recruitment of education 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 Assistant Matric with Primary By initial Recruitment School Education Teacher Certificate Note: Only those candidates 18 50 Teacher Officer of from a recognized will be eligible for recru ment Markaz institute. who are bona fide resi dents of the Markaz concerned 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 M.N.A. of the District to be nominated by the Chief Minister); (ii) Secretary: District Education Officer (Elementary Education) concerned; (iv) Members: (a) M.P.A. who is nominated as Member of the District Education 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 school 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 15 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 learned 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; the S.S.Ts. 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 M.N.As. and M.P.As. 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 of these Rules and their strict compliance are the only guarantees ensuring merit to 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 M.N.A. 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 M.N.As and M.P.As in such matters. In Munawar Khan v. Niaz Muhammad and others (1993 SCMR 1287); at page 1294, it has been observed as under:‑‑ "The Ministers, the Members of National and Provincial Assemblies 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, M.N.As. M.P.As and appointments made thereunder are all illegal, ab initio and have to be held so by all Courts, 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 S.S.Ts. 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 S.S.Ts. 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 he proposition that this Court would not ordinarily interfere in such a, domain. However, if by a Government policy any provision of Constitution or law violated a challenge can be throw 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 violative of the existing Rules and is not consistent with canons of merits.

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 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 favors 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 by politicians would send disturbing signals in those who have lack of influence 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 petition is allowed and the impugned Letter No. SO(S‑IV)2/103/98, dated 1st October, 1998 is set aside. There shall, however, be no order as to costs. Q.M.H./M.A.K./G‑149/L Petition allowed.