2000 PLP (C (PLC(CS))

S. No. Designation and Persons Condition of BPS of the post eligible (1) Principal BPS‑19. Vice‑Principal 12 years service in BPS‑17 and above in the College. (2) ‑‑‑‑‑‑‑

(3) ‑‑‑‑‑‑‑‑‑‑

9. A perusal of the rule 4 above, would clearly indicate that the appointment of Principal of the College has to be made by promotion. Such method of appointment has been made mandatory by the use of word "shall". We have no doubt over the interpretation of rule

4. Next is rule 6 which provides for the conditions for promotion. It lays down the qualifications of a person who can be promoted as Principal of the College. The person eligible for such promotion is mentioned in column 2 of rule 6 as the Vice Principal whose conditions of eligibility are that he must have served for twelve years in B.P.S.17 and above in the College. Two things have become more than clear that appointment of a Principal is bound to be made by promotion and the person who is to be so promoted, is the Vice‑Principal with twelve years of service in B. P.S.17 and above in the College. We need not repeat that the petitioner had been the Vice‑Principal for a long time and had completely fulfilled the conditions of eligibility. It is because of these qualifications that twice/thrice petitioner was recommended by the Board of Governors to be so appointed but the Chairman declined. We are quite certain in the circumstances that the petitioner has not at all been dealt with in accordance with law.

10. It was argued by the learned Assistant Advocate‑General before us that it is the Chairman (Governor) who is the sole appointing authority for the post of Principal and hence had the discretion to make or not to make the appointment. We are afraid the interpretation is not in accordance with rules. Rule 3 of Razmak Cadet College Employees (Service) Rules, 1992 defines an appointing authority which, in the case of post in Basic Pay Scales 17 to 19, shall be the Chairman but rule 3(a) specifically exn1ains that he shall make the appointment on the recommendations of the Selection Board. In case of the petitioner such Selection Board has made numerous recommendations which were bound .to be acceded to by the Chairman but his reasons for declining are not known at all.

11. The next point for determination is the fixation of age limit in the advertisement, as 45 years. This is important to be discussed because such age limit is neither prescribed in rule 4 nor in rule 6 of the rules. Khawaja Azhar Rashid learned Assistant Advocate‑General has contended before us that such condition is laid down in the appendix to the rules given in the gazette of Pakistan Extraordinary Part‑II, dated 19th March, 1992 which appendix is issued with reference to rule 2(d) of the Rules. It would again be must convenient to reproduce such appendix as below:‑

(See Rule 2(d) and (r) DETAIL OF ALL SANCTIONED POSTS CATEGORY‑WISE WITH QUALIFICATIONS/EXPERIENCE AND AGE ON INITIAL APPOINTMENT

S. No. Post BPS No. of Qualifications and experience Age of initial Posts appointment

OFFICERS (1) Principal 19 (i) M.S/M.Sc Ist or Maximum 2nd Class. (ii) Preferably M.Ed/ 45 years B.Ed/Foreign qualified. (iii) 15 years teaching experience in similar type of institution including at least 7 years as Vice Principal or Principal of the same type of institution. Brigadier from. Army Education Corps Or equivalent also eligble Must have knowledge of sports and co‑currircular activities.

12. A perusal of the appendix above, would indicate that, for the purposes of present discussion, it is issued with reference to rule 2(r), which simply defines a post and not the method of appointment for which there is an independent rule

4. Anyhow, even if such appendix is taken for granted p for the sake of argument, column 6 thereof, would clearly define that the maximum age of 45 years is relevant and pertains to the initial appointment. It has nothing to do with appointment of Principal by promotion. When, under rule 6 of Razmak Cadet College Employees (Service) Rules, 1992, a Vice‑Principal with a minimum period of twelve years of service in B. P.S.17 and above in the College, is available then under rule 4 thereof the post of Principal shall be filled in by promotion. In case there is no such availability, the post of Principal may be filled by initial appointment and in that case the maximum age shall be 45 years as per appendix reproduced above. This appendix is not at all relevant in case of appointment by promotion.

13. Learned Assistant Advocate‑General again drew our attention to the proviso to rule 4 claiming that the appointing authority under such proviso had the jurisdiction to resort to initial appointment. It appears that the learned Assistant Advocate‑General as well as the Appointing Authority has utterly misconstrued proviso to rule

4. It is reproduced below:‑‑ "Provided that failing promotion the post or posts reserved for shall be filled by initial appointment and failing that by transfer."

14. One cannot faulter in interpreting the above proviso which means that initial appointment can only be resorted to when the circumstances are such that appointment by promotion happens to fail. The words "failing promotion" do not mean that the appointing authority disagrees to the promotion but it refers to a failure of the availability of an incumbent fit to be promoted a Principal or not eligible to be promoted as such under the requirements of rule 6."

15. The proviso further lays down that if, in the circumstances, no suitable person is available for initial appointment then the appointment shall be made by transfer. Every subsequent act is allowed only and only when the conditions for the previous one happen to fail. Ordinary dictionary meaning of the word "fail" are "to fall short" or "be wanting"; "to prove deficient"; to miss achievement"; "not to be sufficient for" etc. The meanings of words "fail" would certainly lay down that the act of initial appointment can only be resorted to when the act of appointment by promotion has become wanting in, has fallen short, has missed the achievement and was not sufficient for. When once a Professor with almost 21 years of service, as compared to 12 years of service required under rule 6, was available in the College and had rendered such continuous and untiring service, it does not appeal to reason as to why Principal from outside be inducted and as to how at all can they be inducted under rule 4 of Razmak Cadet College Employees (Service) Rules 1992. We are constrained to observe that Muhammad Saleem petitioner was not at all dealt with in accordance with law.

16. Consequently, the writ petition is accepted, the advertisements for the post of Principal Razmak Cadet College South Waziristan Agency, are declared to be of no legal effect and the respondents are directed to fill the post of Principal Razmak Cadet College by promoting the petitioner Muhammad Saleem who had ail along been eligible for such promotion, not as a matter of bounty but as a matter of right under rules 4 and 6 of Razmak Cadet College Employees (Service) Rules, 1992. C.M.A./M.A.K./442/P Petition accepted.