2012 P L C (C.S.) 1211
[Balochistan Service Tribunal]
Before Muhammad Hashim Khan Kakar, Chairman, Muhammad Naeem Khan Ghalzai,
Membeer- I and Muhammad Anwar Khan, Member -II
ABDUL KHALIQ
Versus
GOVERNMENT OF BALOCHISTAN through Chief Secretary, Civil Secretariat and 3
others
S.A. No.141 of 2010, decided on 29th September, 2010.
(a) Balochistan Civil Servants Act (IX of 1974) ---
----S. 9---Balochistan Service Tribunals Act (V of 1974), Ss.4 & 5---Balochistan Education
Department ( School Branch) (Men's Section) (Grade -1 and above) Service Rules, 1981,
Appendix---Promotion--- Powers of Service Tribunal ---As per provisions of Departmental Rules,
post of SST, was to be filled on basis of 50% promotion and 50% by initial recruitment ---Cr iteria
for promotion from amongst the members of the subordinate service was, possessing, B.A. &
B.Ed. degree with five years experience in the relevant field and seniority- cum-fitness ---
Subsequently vide impugned notification, amendment was made in Depart mental Service Rules,
whereby those candidates would be eligible for promotion, who were serving in the District
where the vacancies existed, in accordance with seniority list ---Appellant who was B.A., B.Ed.
challenged said notification in his appeal befor e Service Tribunal ---Authorities by insertion of
impugned notification had opened a back door for blue eye -chaps to get rapid promotion inspite
of less experience and qualification ---Amendment in rule having implication of affecting terms
and conditions of civil servant, would affect interests of any civil servant; and the
constitutionality, legality and vires of such amendment could be competently adjudicated by
Service Tribunal ---Tribunal was competent to strike down such an amendment, which had
affected the fundamental rights of civil servant ---When legislature conferred power on
Government to frame rules, it was expected that such power would be used only bona fide, in a responsible sprit and in the interest of general public ---In the present case amend ment in Service
Rules seemed to be unreasonable, in bad faith and misconstruction of enabling Act ---Impugned
condition in the notification was not only unreasonable, but was also uncertain, repugnant to the enactment and was also violation of the object and reasons of the enactment ---Impugned
notification, was declared ultra vires and was deleted, in circumstances.
(b) Balochistan Service Tribunals Act (V of 1974) ---
----Ss. 4 & 5---Powers and jurisdiction of Service Tribunals ---Civil servant, if was aggrieved by
a final order, whether original or appellate, passed by Departmental Authority in respect of his
service terms and conditions his remedy, was by way of an appeal before the Service Tribunal,
even where the case involved vires of particular dep artmental Service Rule ---If statutory rule or a
notification, adversely affected the terms and conditions of a civil servant, same could be treated as an order in terms of S.4(1) of Balochistan Service Tribunals Act, 1974 for filing appeal before
Service T ribunal ---Constitutional issues, in such circumstances, could be taken and dealt with by
the Service Tribunal, in exercise of its exclusive jurisdiction ---Service Tribunal under S.5 of
Balochistan Service Tribunals Act, 1974, was deemed to be a civil court for the purpose of
deciding any appeal before it with all powers under Code of Civil Procedure ---Like any other
civil court the Tribunal had the jurisdiction to examine, whether or not a law was void by reason of the conflict with the statute, fundament rights, or otherwise was ultra vires or was mala fide.
(c) Interpretation of statutes ---
----If subordinate legislation was directly repugnant to the general purpose of the Act, which
authorized it, or was repugnant to any settled and well established principle of statute, it was
ultra vires.
Nassebullah Tareen for Appellant.
Naseer Ahmed Bangulzai, Addl. A.- G. for Respondents.
Date of hearing: 23rd September, 2010.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, (CHAIRMAN). --- This appeal under section 4 of
the Balochistan Service Tribunals Act, 1974 has been filed by the appellant with the following
prayer: ---
"It is, therefore, respectfully prayed that this Hon'ble Tribunal may graciously be pleased to set aside the impugned Notification No.SOR -II(4)21/S&GAD/347 -400 dated 20th March, 2010,
issued by the respondent No.2 to the extent of condition/note imposed to the appendix at S.No.13 SST (General) (B -16) of Balochistan Education Department (School Branch) (Men's Section)
(Grade -1 and above) Service Rules, 1981 as well as circular/letter No.50% promotion 6120- 5/EB
dated 3rd April, 2010, issued by the respondent No.4, being illegal, unlawful and unjust and to direct the respondents to consider the promotion of the appellant as SST (General) (B -16) on the
basis of seniority list prepared on Provincial basis w.e.f. the date of passing of B.ED examination, in the interest of justice, fairplay and equity."
2. The relevant facts in small compass are that the appellant was appointed as J.V. Teacher
in Government High School, Kotwal by the then District Education Officer Quetta, vide order
dated 23r d September 1987. Thereafter the appellant did his B.A and on the basis of permission
granted by the concerned authorities got admission in the Government Agro Technical Teacher's Training Centre and passed his B.Ed. examination conducted by the University of Balochistan in
the year 1997.
3. It is the case of appellant that as per provisions of the Balochistan Education Department
(School Branch) (Men/Women Section) (B -16 and above) Service Rules 1981) and appendix
thereto at S.No.13 hereinafter referred to as the said rules) the post of Secondary School Teacher
(General) (hereinafter referred to as SST General) was to be filled in on the basis of 50% by promotion and 50% by initial recruitment The 50% by promotion from amongst the members of
the subordina te service holding the post of JVT (B -7) and JET (B -9) possessing BA.BED Degree
with five years experience in the relevant field at the ratio of 2:3 respectively on seniority- cum--
fitness basis. As per appellant the respondents in order to accommodate the persons of their own
choice amended the said rules by means of Notification dated 20 March 2010 wherein at S.No.13 SST (General) following condition/note were imposed: ---
"Only those candidates will be eligible for promotions who are serving in the Distr ict where the
vacancies exist in accordance with the seniority list prepared on the basis of the length of service
in the respective District, provided that they have been in continuous service in that district for the last three years."
4. According to the appellant in compliance to the afore said amendment made in the Rules,
the respondent No.4 issued a circular dated 3- 4-2010 to all the Executive District Officers for
preparation of seniority list. The appellant being aggrieved made certain representat ions to the
respondents but all in vain, lastly while finding no other way out, approached this Tribunal by
filing the instant appeal.
5. On the other hand the respondents contested the appeal on legal and factual grounds by
filing their formal reply.
6. We have heard the learned counsel for the parties and also perused the record with their
valuable assistance.
7. At the very out set the learned Additional Advocate -General Mr. Naseer Bangulzai
contended with vehemence that this Tribunal has no jurisdiction to dealt with the vires of the
Rules as it involves constitutional issues, which are beyond the domain of Service Tribunal. The contention of the learned Advocate -General is devoid of force f or the reasons that it has been
consistently held inter alia that a civil servant if is aggrieved by a final order. Whether original or appellate, passed by a departmental authority in respect of his service terms and conditions, his remedy, if any, is by way of an appeal before this Tribunal even where the case involves vires of a particular Service Rule. We are of considered view that if a statutory rule or a notification adversely affects the term and conditions of a civil servant, the same can be treated as an order in terms of subsection (1) of section 4 of the Balochistan Service Tribunals Act, 1974 in order to file an appeal before Tribunal. In such circumstances even constitutional issues could be taken and dealt with by the Tribunal in exercise of i ts exclusive jurisdiction.
8. We are conscious of the fact that vires of legislative measures is not open to the scrutiny
of the superior Courts on the sole ground of mala fides because legislative measures are
presumed to be bona fide. On the other hand, the Tribunal under section 5 of the said Act is deemed to be a civil Court for the purpose of deciding any appeal before it with all powers under the code of civil procedure. As any other Civil Court the Tribunal have the jurisdiction to examine whether or not a law is void by reason of the conflict with the statute, fundamental rights constitution or is otherwise ultra vires or the order made is mala fide.
9. We are in agreement with the learned counsel for appellant that an amendment in any
rule having implication of affecting terms and conditions of civil servant definitely affect
interests of a civil servant and the constitutionality, legality and vires of such amendment can be
competently adjudicated by this Tribunal. This Tribunal is competent to s trike down such an
amendment, which affected the fundamental rights of a civil servant.
10. We are of considered view that when the Parliament makes a Sub Constitutional Law, it
does so in the exercise of its delegated legislative powers given by the constitution and in the
case of subordinate legislation, also the maker authorizes the delegated authority. In each case, there is a law higher in authority and the test to determine the vires is whether the subordinate law conflicts with the higher law. If it does, then it must be held as of no legal effect and validity,
to be valid a law or amendment must be intra vires, reasonable in itself, certain in its terms and must not be repugnant to the General Law or Constitution. It is settled principle of interpr etation
that if subordinate legislation is directly repugnant to the General purpose of the Act, which authorize it, or indeed is repugnant to any settled and well established principle of statute, it is ultra vires.
11. We are conscious of the fact that when legislature confers power on government to frame
rules it is expected that such power will be used only bona fide, in a responsible spirit and in true
interest of the General Public while in the instant case the amendment in the said rules seems to be unreasonable, bad faith, and misconstruction of enabling Act.
12. Admittedly the condition of the education in the Balochistan province is deteriorating day
by day. In such circumstances the respondents were expected to take concrete steps for
improvem ent of quality education but it seems that they have inserted the impugned condition
just to discourage the merit and deteriorate the already dilapidated condition of the education in Balochistan. It seems that by insertion of impugned Notification, the re spondents have opened
the back door for blue eye chaps to get rapid promotion in spite of less experience and
qualification. We are in agreement with the learned counsel for appellant that due to addition of
impugned condition the authority, in the first i nstance, post the person of their likings to one
district where a post of SST lying vacant and thereafter in exercise of condition imposed in the amendment dated 20th March 2010, promote him as SST (General) B -16 and on acquiring said
post again transfer/post him to the district of his choice. This condition cannot promote the
ultimate purpose of quality education, rather it will deteriorate the already dilapidated condition
of the education. It is a high time to discourage nepotism, regionalism and quota s ystem specially
in the field of education and promote merit. The impugned condition is not only unreasonable
but is also uncertain repugnant to the enactment and is also violation of the object and reasons of the enactment.
13 For the discussion made her einabove the appeal is allowed. The impugned Notification
SOR11(4)21/S&GAD/347- 400 dated 20th March, 2010 issued by respondent No.2 to the extent
of condition/note imposed to the appendix at S.No.13 SST (General) (B -16) of the Balochistan
Education Departm ent (School Branch) (Men's Section) Grade -1 and above) Service Rules 1981
as well as circular/letter dated 30 -4-2010 issued by the respondent No.4 are declared ultra vires
and deemed to be deleted from the said Rules. There is no order as to costs.
H.B.T ./3/BST Appeal allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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