2023 PLP (C (PLC(CS)N)

This intra Court appeal filed under section 3 of the Law Reforms Ordinance, 1972 seeks to challenge order dated 20.01.2015 passed by the learned Single Judge in Chamber whereby the constitutional petition filed by the appellants was dismissed.

2. The appellants are holding B.Sc. (Science) degree graduates who were recruited as Elementary School Teachers by the Education Department in the Districts of Gujranwala/Wazirabad. The case for their promotion to the post of Secondary School Teacher was not put up before the Departmental Promotion Committee in view of Notification dated 24.12.2008 as they failed to meet the eligibility criteria mentioned therein. Other teachers similarly placed as the appellants who met the criteria were, however, granted promotion on 30.05.2011. According to the appellants, the criteria laid down in Punjab Education Department (School Education) Recruitment Rules, 1987 (the Rules) as amended on 24.07.1991 and 25.05.1993 allowed their promotion to the post of Secondary School Teacher. Through Notification dated 24.12.2008, the Rules were further amended and they were excluded from promotion in view of the eligibility criteria mentioned therein.

3. The amendment relating to the 50% posts to be filled up through promotion contained in Notification dated 24.12.2008 of which the appellants are aggrieved of reads as under: ii. 50% posts shall be filled in the promotion from amongst Elementary School Teacher (General, Technical, Agri, Vernacular Arabic, Oriental, Drawing, Physical Education, English) having prescribed qualification as mention in column No.6 on the basis of length of service from the date of regular appointment in the respect District, provided further that: (i) 75% of the posts shall be allocated for teachers in arts subject. (ii) 25% of the posts shall be allocated to the Science Graduates (having the B.Sc. qualification with three elective subjects out of (A), Mathematics (B) Physics, Chemistry, Botany and Zoology.

4. The appellants did not fulfill the requisite eligibility criteria as their B.Sc. qualification comprised only two of the elective subjects mentioned in Notification dated 24.12.2008 as highlighted above and challenged the same by filing the constitutional petition which was dismissed by the impugned order.

5. Learned counsel submits that Notification dated 24.12.2008 by laying out specific elective subjects carved out a class of teachers from amongst the general cadre entitled to promotion which discriminates the appellants and offends Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution).

6. Learned Assistant Advocate General has placed reliance on judgment reported as Abdul Salam another v. Chief Secretary Government of Punjab and others 2011 SCMR 1727 to contend that vires of Notification dated 24.12.2008 has been upheld by the Hon'ble Supreme Court.

7. The judgment relied upon by the learned Assistant Advocate General does not improve the case of the respondents as it did not deal with the issue of discrimination as alleged by the appellants.

8. In the celebrated case of Government of Balochistan and others v. Azizullah Memon and others PLD 1993 SC 341, the Hon'ble Supreme Court laid down the following principles with reference to the equality clause of the Constitution. (i) that equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike; (ii) that reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis; (iii) that no standard of universal application to test reasonableness of a classification can be laid down as to what may be reasonable classification in a particular set of circumstances, may be unreasonable in the other set of circumstances; (iv) that a law applying to one person or one class of persons may be constitutionally valid if there is sufficient basis or reason for it, but a classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25; (vi) that equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed; (vii) that in order to make a classification reasonable it should be based (a) on an intelligible differentia which distinguished persons or things that are grouped together from those who have been left out; (b) that the differentia must have rational nexus to the object sought to be achieved by such classification.

9. The tests laid down in Aziz Ullah Memon's case for reasonable classification are not satisfied by criteria under which a class of teachers are held to be entitled to promotion as mentioned in terms of Notification dated 24.12.2008. The respondent department failed to offer any valid reasons for creating this classification which discriminates the appellants from other similarly placed teachers i.e. B.Sc. graduates. In the absence of any valid objective sought to be achieved for creating this class of science graduate teachers for the purposes of promotion, the question of having any rational nexus thereto does not arise. In fact, the learned Assistant Advocate General states that further amendments were made in the year 2014 and the offending classification has been omitted from the Rules for promotion of Elementary School Teachers to the post of Secondary School Teachers. This fact per se validates the claim of the appellants that the amendment in question brought about by Notification dated 24.12.2008 was arbitrary and discriminatory in nature. This aspect of the matter was not at all adverted to by the learned Single Judge in Chambers while dismissing the constitutional petition of the appellants.

10. In the result, we allow this Intra Court Appeal and set aside order dated 20.01.2015 passed by the learned Single Judge in Chambers. The offending portion of Notification dated 24.12.2008 is held to be in violation of the fundamental right guaranteed to the appellants under Article 25 of the Constitution and is accordingly set aside. Resultantly, the cases of the petitioners shall be considered for promotion in the light of the Rules existing prior to issuance of Notification dated 24.12.2008 from 30.05.2011 when other teachers similarly placed as the appellants were granted promotion. SA/M-177/L Appeal allowed.