2021 PLP (C (PLC(CS))

QAISER RASHID KHAN, J.

Through the petition in hand, the petitioners have prayed as under:- "It is therefore, most humbly prayed that on acceptance of this writ petition, the Honourable Court may be pleased to: 1) Declare the advertisement dated 14.12.2017 as illegal unlawful, unconstitutional and violation of statutory Recruitment Rules dated 13.12.2012, therefore, liable to be set aside being ineffective upon the rights of the petitioner; 2) Direct the respondents to re-advertise the post with the qualifications as mentioned in the actual statutory Recruitment Rules, dated 13.11.2012. 3) Direct the respondents to also provide additional marks for rest of the teaching cadres for CT(BPS-15), D.M.(BPS-15), PET(BPS-15), TT (BPS-15), ATG(BPS-15), Qari-Qaria (BPS-12) and PST(BPS-12) as given to SST for having B.Ed and M.Ed to eliminate the discrimination in appointment of various cadres of teachers."

2. As per the averments made in the petition, the petitioners are trained, qualified and eligible for appointment against the posts of CT(BPS-15), D.M.(BPS-15), PET(BPS-15), TT (BPS-15), AT(BPS-15), Qari-Qaria (BPS-12), PST(BPS-12) and to regularize appointment against the said posts, the government of Khyber Pakhtunkhwa notified Civil Servants Appointment, Promotion and Transfer Rules, 1989 and under Rule-3(2) of the Rules, ibid, the Government of Khyber Pakhtunkhwa Elementary and Secondary Education Department further formulated Recruitment Rules, vide notification dated 13.11.2012 whereby apart from educational qualification, professional qualifications and training in the relevant subjects was essential, rather a sine qua non for appointment against the said posts; that the petitioners having the required professional and educational qualifications were sanguine of their eligibility qua appointment against the said posts, but all of a sudden, the government of Khyber Pakhtunkhwa floated an advertisement in the Daily Mashriq dated 14th December, 2017 wherein the condition of professional qualification against various posts of teaching cadre against which the petitioners were eligible was omitted which according to the petitioners, is violative of the notified Recruitment Rules dated 13.11.2012; that Section 4 of the Khyber Pakhtunkhwa (Appointment, Deputation, Posting and Transfer of Teachers, Lecturers, Instructors and Doctors) Regulatory Act, 2011, mentioned in the advertisement, is not applicable in the case of the advertized posts as the section ibid attracts the ad hoc appointment of such posts which comes within the domain of Public Service Commission while on the contrary, the advertised posts are out of the pale of Public Service Commission and that the qualifications mentioned in the impugned advertisement are totally alien to the recruitment rules and as such are liable to be struck down.

3. Comments, called from the respondents, have been furnished. According to the comments, in order to bring certain amendments in the recruitment process of the teaching cadre posts, a Standing Service Rules Committee was constituted and the committee in its first meeting held on 24.7.2017 discussed various amendments to be brought in the service recruitment rules of teaching cadre from BPS-12 to BPS-17 in the light of Notification dated 13.11.2012, on which the petitioners heavily rely, and thereafter, the committee in its second meeting held on 15th December, 2017, after elaborately discussing the agenda qua "Amendments in the Recruitment Rules of Teaching Cadre, Elementary and Secondary Education Department, Government of Khyber Pakhtunkhwa from BPS-12 to BPS-17" unanimously approved the impugned amendments in the recruitment rules for the posts borne on the Elementary and Secondary Education Department, Government of Khyber Pakhtunkhwa. According to these amended recruitment rules, the conditionality of professional qualification for appointment against the teaching cadre posts of BPS-12 to BPS-17 has been done away with and instead an in-service training programme has been introduced to be mandatory and compulsory for the new appointees/incumbents. The comments further state that amendments in the recruitment rules is the prerogative of the Government having been made in the best interest of the public at large.

4. Arguments heard and the available record perused.

5. The epitome of the present controversy is the impugned advertisement dated 14.12.2017 whereby the condition of professional qualifications qua appointment against teaching cadre posts has been done away which act on the part of respondents, according to the petitioners, amounts to steep departure from the erstwhile criteria of recruitment/appointment against such posts enunciated in the Notification dated 13.11.2012.

6. Through a Notification dated 13.11.2012, the Secretary to the Government of the Khyber Pakhtunkhwa, Elementary and Secondary Education Peshawar, being the competent authority, brought about certain amendments in the method of recruitment, qualification and other conditions qua appointment against teaching cadre posts. According to these rules, professional qualification for appointment against such posts was mandatory. The petitioners too, got themselves equipped with professional qualification for their appointment against the posts of PST, DM, PET, CT etc. They were under the genuine hope/impression that in the event of any advertisement regarding appointment against the above teaching cadre posts, they would have an edge over those who have not obtained any such professional training etc. However, instead, the respondents published an advertisement in the Daily Mashriq on 14.12.2017 for appointment against district cadre based posts wherein for the posts of A.T, Qari/Qaria and PST, the pre-condition of professional qualification was omitted and instead an in-service training in the relevant subject was held to be mandatory for the incumbents. Last date for submission of the applications was fixed as 20th December, 2017 while the instant petition has been filed on 27th December, 2017 . The respondents, in response to notice, have filed their comments and have placed on record certain documents which show that in order to meet the challenges of the present time and public interest, the Government of Khyber Pakhtunkhwa had constituted a Standing Service Rules Committee (SSRC) headed by the Secretary, Elementary and Secondary Education Department to discuss service recruitment rules of teaching cadre from BPS-12 to BPS-17 in Appendix to the Notifications dated 13.11.2012 and 24.7.2014. First meeting of the committee was held on 14th July, 2017 wherein the basic amendments to be made in the recruitment rules were discussed which were given final shape in the subsequent meeting held on 15th December, 2017 and later on a formal Notification dated 30.1.2018 was issued. Both the Minutes of the meeting of the SSRC dated 15.12.2017 and Notification dated 30.1.2018 omit the eligibility criteria of professional qualifications for appointment against teaching cadre posts, as mentioned above. The terms and conditions given in the impugned advertisement qua eligibility for appointment against such posts, are in line with the amended rules or policy of recruitment given in the Notification dated 30.1.2018.

7. The petitioners, who have professional qualifications to their credit, are aggrieved of the amended policy/rules of recruitment as according to them, the same have been made to oust them from the process of competition qua appointment against the said posts. This court has to see as to whether it is within the competence of the respondents to frame or amend rules to meet the exigencies of the service in the best public interest. In an identical matter, the Honourable apex court in the case of Dossani Travels (Pvt.) Ltd. and 4 others v. Messrs Travels Shop (Pvt.) Ltd. and others (2013 SCMR 1749), has held as under :- "That the High Court can under Article 199 of the Constitution annul an order or a policy framed by the Executive, if it is violative of the constitution, law or is product of mala fides. However, nothing has been placed before this Court to indicate that the Hajj Policy challenged before this Court seriously suffered from any of these infirmities" The learned counsel for the petitioners has been unable to pin-point any element of mala fide or legal incompetence of the respondents in amending the recruitments rules on the basis of which the impugned advertisement was floated. In another case reported as Zafar Iqbal and another v. Director Secondary Education Multan Division and 3 others (2006 SCMR 1427), the Honourable Supreme Court while discussing legal competence of the executive authorities in amending the rules or framing policy has held as under:- "Government was always empowered to change promotion policy and domain of the Government to prescribe qualification for a particular post through amendment in relevant rules was not challengeable." A similar view has been expressed in the case of Dr. Alyas Qadeer Tahir v. Secretary Messrs Education (Now Ministry of Cadd) Islamabad and others (2014 SCMR 997) wherein the august apex Court has held as under :- "Enactment of rules or amendment therein is the prerogative of the Government. It can enact and amend the rules according to the needs and exigencies of service." It is settled that it is the prerogative of the Executive authorities to frame policy or amend rules in accordance with the exigencies of service to cope up with the ever changing requirements and the court cannot not substitute its views in the decision of the government with regard to the policy matters unless it runs counter to the mandate of the Constitution.

8. Earlier, there were instances when the candidates claiming certificates of D.M, P.S.T, C.T and even Madrassah certificates for the posts of Qari/Qaria, A.T. and T.T. were duly appointed on the basis of such certificates but then in several cases, such certificates turned out to be fake and bogus being not issued by proper institutes and duly recognized Madrassahs and the incumbents were then terminated from service even after putting up service for a couple of years and even more. The present system of giving in-service training to the fresh appointees through a properly organized and duly recognized training institutes of the Government, has in fact allayed the possibility of appointment of candidates on the basis of such bogus and fake certificates issued by the institutes having sprouted up like mushrooms in every nook and corner of the country. Through the impugned advertisement, in fact a degree of symmetry and discipline has been brought about so far as imparting in-service training to the selectees through the fresh process of appointment is concerned under the impugned notification.

9. Besides, during the course of arguments, it was disclosed that almost more than 3 lac candidates have appeared in the NTS against 17000 vacant posts of teaching cadres and the petitioners too, participated in the test but could not qualify the same. This act on their part amounts to estoppel as on one hand, they have challenged the impugned advertisement while on the other hand, they participated in the impugned process of selection which amounts to acquiescence on their part, debarring them to approach this court through the present petition. When considered in this background, we understand no case for the issuance of the writ asked for is made out.

10. For the reasons discussed above, this petition being without merits is dismissed along with applications. SA/363/P Petition dismissed.