2005 PLP (C (PLC(CS))

The petitioners succeeded in Appeal No.807-1995, decided by the learned Punjab Service Tribunal on 13-12-1997 as a result of which they were entitled to be considered in accordance with the rules, for ante-dating of their promotion to BS-18 and 19 under the four tiers formula of the Govt. of the Punjab. The said judgment was not being implemented on which the petitioners approached this Court in W.P. No.19265-2000, which was disposed of vide judgment dated 22-1-2002 and the respondents were directed to implement the judgment of the learned Punjab Service Tribunal. The aforesaid direction was not complied with on which Crl. Org. No.452/W-2002, was filed by the P petitioners which was disposed of on 27-3-2003 on the basis of the undertaking of Mr. Hassan Nawaz Tarar, Special Secretary (Schools), Education Department, to the effect that the judgment of the learned Punjab Service Tribunal shall be implemented within a period of one month. Unfortunately the said undertaking was not complied with on which the instant contempt petition was filed.

2. As far as the petitioners Nos. 1 to 7 are concerned, notification for antedating of their promotion to BS-18 has already been issued while notification for their pro forma promotion to BS-19 is likely to be issued in near future.

3. The outstanding grievance in this petition is that the judgment of the learned Punjab Service Tribunal to the extent of petitioners Nos.8 to 10 for antedating of their promotion to BS-18 and 19 is not being implemented. The position taken for the first time by the departmental authorities, on the basis of the advice of the Regulation Wing of S&GAD, is that in accordance with the applicable rules, petitioners Nos.8 to 10 were not eligible even for promotion as Headmasters because they did not possess the M.A./M.Sc. degree which is the requirement of the rules and, therefore, their promotion to BS-18 could not be ante-dated.

4. The learned counsel for the petitioner submits that neither before the learned Punjab Service Tribunal nor before this Court in the earlier Constitutional petition or the contempt petition, this objection was taken. He maintains that even on merits the objection is wholly unsustainable because petitioners Nos.8 and 9 were promoted as Headmasters in 1983 while petitioner No.10 was promoted as Headmaster in 1984 in accordance with the rules then in-force. He maintains that the said petitioners were promoted to BS-18 on 19-3-1992 and the present dispute was only regarding their promotion from the due date i.e. 12-12-1990. He further submits that petitioners Nos.8 to 10 have retired and, therefore, there is no possibility of any dispute about seniority. He also produced copies of tentative seniority lists of officers of BS-18 issued with the notification dated 7-5-1992 and another list of BS-18 officers issued with memo. dated 13-2-1993. The first list (male section) includes 63 officers who were promoted to BS-18 without M.A./M.Sc. degree in the second seniority list (female section) 244 officers were promoted to BS-18 without M.A. degree Extracts from another seniority list of grade 18 and 19 officers issued on 16-7-1995 were produced, which list, according to the learned counsel for the petitioners, contains 71 officers promoted to BS-18 and 19 who did not have the M.A./M.Sc. degree. The grievance is that petitioners are being penalized for agitating the matter before the learned Punjab Service Tribunal as well as before this Court, the rules are being misinterpreted and the judgment of the learned Punjab Service Tribunal and directions of this Court are not being deliberately complied with.

5. Mr. Aamir Rehman, Addl. A.-G. however, submits that in accordance with the judgment of the learned Punjab Service Tribunal, petitioners Nos.8 to 10 were entitled to be considered for antedating to their promotion to BS-18 in accordance with the rules. They have duly been considered, since they were not even eligible for promotion to BS-18, their request for pro forma promotion to BS-18 has rightly been declined and the judgment of the learned Tribunal has been complied with.

6. The submissions made by the learned counsel for the parties have been considered. The fate of this petition depends on the answer to the question whether the Regulation Wing of the S&GAD and the. Education Department are correctly interpreting the Punjab Education Department (Schools Education) Recruitment Rules, 1987, as amended vide notification dated 5-4-1989.

7. The following posts, are in BS-18, according to serial No.3 of the Schedule to the said Rules:-- "Deputy Director/District Education Officer/Principals, Subject Specialists of Elementary Teachers Training Colleges/Principals of Pre-Service, in Service Teachers Training Colleges/Principals Higher Secondary Schools/Senior Headmaster of High Schools (BS-18) (Men's) (institution) or other equivalent posts as may be declared by the Govt. from time to time." Column No.5 against item No.3 prescribes the minimum qualification for direct appointment to the said posts. It is M.A./M.Sc. 2nd Division with M.Ed. or equivalent qualifications for appointment by promotion to the said posts. The following entry appears in the said column:-- "Only for Principal Higher Secondary Schools/Elementary Colleges/In service, Pre-Service Teachers Training Colleges M.A./M.Sc (2nd Division) with B.Ed. or equivalent qualifications." Item No.5 of the schedule provides for the post of "Headmaster/Headmistress, High Schools with enrolment less than 1500". The required qualification for direct appointment, inter alia, is M.A./M.Sc. 2nd division. As far as promotion to the post of Headmaster is concerned, the required qualification is M.A./M.Sc. 2nd division. However, in column No.7 (method of recruitment), the following note appears:-- "Note

1. SSTs on strength of the Education Department immediately before the enforcement of these rules will be eligible for promotion as Headmaster/Headmistress/Deputy District Education Officer without having M.A./M.Sc. degree but shall not be eligible for posting as Subject Specialists or for promotion to the posts in BS-18 without possessing M.A./M.Sc./M.Ed. or M.A. (Education)."

8. The entries in column 6 against Sr. No.5 requiring M.A./M.Sc. for promotion to 'the post of Headmaster and Note(1) placing restriction on promotion of those who did not possess M.A./M.Sc. degree were vehemently relied upon by the learned Additional Advocate-General. Against entry at Sr. No.3 in Column No.6 the minimum required qualification for promotion to BS-18 has been prescribed only for the post of the Principal. As noted above, there are a number of posts in BS-18 and if the intention of the rule-maker was that for promotion to all posts in BS-18, a Master's degree was required, it could have been so expressed in the said column but the rule-maker specifically required M.A. degree for promotion to the post of Principal. Therefore, for promotion of the petitioners to BS-18, the said rule was not attracted.

9. As far as Serial No.5 relating to Headmaster/Headmistress is concerned, the requirement is M.A./M.Sc. 2nd division both in case of direct appointment as well as for promotion. But undisputedly, petitioners Nos.8 to 10 were promoted as Headmasters in 1983-84 when there was no such condition. Therefore, requirement of M.A. degree introduced in the rules could not be applied to the petitioners who already stood promoted as Headmasters long before promulgation of the said rules. What was required to be seen was whether there was any prohibition in the existing rules for promotion of petitioners Nos.8 to 10 to BS-18, but it is not there. As far as Note (1) is concerned, it says that as S.S.T. with M.A./M.Sc. degree will be eligible for promotion as Headmaster/Headmistress/DDEO but shall not be posted as Subject Specialist or promoted to a post in BS-18 without possessing the said degree. In this note the prospects of further advancement of and SST are involved and it does not even remotely apply to the case of promotion of a Headmaster to BS-18 because it expressly refers to the promotion of SSTs to BS-18 and requirement in their case is M.A./M.Sc. degree.

10. Although this contention was never raised in earlier litigation yet, I examined the rules to ensure that the petitioners do not get any unfair advantage in exercise of discretionary jurisdiction of this Court. Although to my mind, the rules do not admit of an ambiguity as far as the case of the petitioners Nos.8 to 10 for their promotion to BS-18 is concerned, yet doubt, if any, is to be resolved in favour of the said petitioners. In this approach I am fortified by the judgment of the Honourable Supreme Court of Pakistan in Postmaster General. Eastern Circle (E.P.) Dacca and another v. Muhammad Hashim (PLD 1978 SC 61).

11. Copies of seniority list issued on 7-5-1992, 13-2-1993 and extracts from the seniority list issued on 16-7-1995 show that a large number of officers of the Education Department were promoted to BS-18 and 19 without possessing M.A./M.Sc. degree. Petitioners Nos.8 to 10, were also promoted to BS-18 on 19-3-1992, after promulgation of the said Service Rules. My conclusion, therefore, is that pro forma promotion of the petitioner No. 8 to BS-18 was not restricted by the rules and they were entitled to antedating of their promotion in accordance with the judgment of the learned Punjab Service Tribunal. Thus, the relevant rules are being misinterpreted.

12. I am of the view that the departmental authorities not only failed to implement the judgment of the learned Punjab Service Tribunal but also defaulted to comply with the direction of this Court rendered in W.P. No.19265-2000 and the undertaking given by the Special Secretary (Schools), Education Department, in Crl. Org. No.452-W-2002 on the basis of an untenable alibi. However, I am inclined to grant benefit of doubt to them in mis-interpreting the Rules. I am; therefore, not inclined to proceed further in the contempt matter which is disposed of and the notice to the Special Secretary (Education) is discharged. The G departmental authorities are however, provided another opportunity to comply with the direction of this Court dated 22-1-2002 and the undertaking dated 27-3-2003 referred to above and to implement the judgment of the learned Punjab Service Tribunal. Accordingly, it is directed that the case of petitioners Nos.8 to 10, for antedating of their promotion to BS-18 and 19 shall be placed before the Departmental Promotion Committee and the Provincial Selection Board within a period of two months by the Special Secretary (Schools), Education Department of the Govt. of the Punjab. H.B.T./N-26/L Order accordingly.