2021 P L C (C.S.) 272
[Balochistan High Court]
Before Muhammad Kamran Khan Mulakhail and Nazeer Ahmed Langove, JJ
ABDULLAH and 7 others
Versus
PROVINCE OF BALOCHISTAN through Secretary Education Civil Secretariat and
another
C.P. No.960 of 2019, decided on 29th November, 2019.
(a) Balochistan Education Department (Schools Branch) (Men's Section) (Basic Pay
Scale 1 to 15) Service Rules, 1984 ---
----Revised Teaching Staff (BPS -9 to 15) Recruitment Policy (2019) ---Notification No. S.O
(S-III)2 -22/2019 -Edu/52 70-5364 dated 03 -05-2019 ---Appointment against the post of
Physical Education Teacher (BPS -14)---Petitioners having Diploma in Physical Education ---
Stipulation of diploma in Physical Education contained in Balochistan Education Department
(Schools Branch) (Men's Section) (Basic Pay Scale 1 to 15) Service Rules, 1984 was
removed through Revised Teaching Staff (BPS -9 to 15) Recruitment Policy (2019) ---
Department invited applications for the post of Physical Education Teacher wherein
condition of holding diplo ma in Physical Education was not stipulated ---Petitioners being
qualified candidates having Master Degree and Diploma in Physical Education requested the
authorities to include the requirement of diploma in Physical Education for the post of
Physical Educa tion Teachers in Balochistan Education Department (Schools Branch) (Men's
Section) (Basic Pay Scale 1 to 15) Service Rules, 1984 but their request was declined ---
Validity ---Authorities had removed condition of diploma in Physical Education for the post
of Physical Education Teacher in Revised Teaching Staff (BPS -9 to 15) Recruitment Policy
(2019) without any reason ---Revised Teaching Staff (BPS -9 to 15) Recruitment Policy
(2019) in presence of Balochistan Education Department (Schools Branch) (Men's Section )
(Basic Pay Scale 1 to 15) Service Rules, 1984 did not have overriding effect over the said
Rules of 1984 ---Authorities, while devising Revised Teaching Staff (BPS -9 to 15)
Recruitment Policy (2019) neither amended Balochistan Education Department (School s
Branch) (Men's Section) (Basic Pay Scale 1 to 15) Service Rules, 1984 nor brought the said
Policy of 2019 in consonance with the Rules of 1984 ---Even Revised Teaching Staff (BPS -9
to 15) Recruitment Policy (2019) was silent with regard to removing the co ndition of holding
a diploma in Physical Education ---Rights of persons who were Physical Education Diploma
holders and were eligible for the post of Physical Education Teacher had been infringed due
to act of the authorities who had issued Revised Teaching Staff (BPS -9 to 15) Recruitment
Policy (2019) ---Authorities were directed by the High Court to insert the condition of
diploma in Physical Education with second division in Revised Teaching Staff (BPS -9 to 15)
Recruitment Policy (2019) and appoint the eli gible candidates against the post of Physical
Education Teacher in accordance with law ---Constitutional petition was allowed in
circumstances.
(b) Interpretation of statutes ---
----Rules and regulations were subordinate and delegated legislation deriving authority and
legal cover from the provisions of the parent statute ---Rules framed under a statute could not
override the provisions of the statute under which they were framed and on which their
existence was dependent ---Any policy framed could not overri de the rules which was
otherwise a subordinate legislation.
Suo Motu case No.13 of 2019 PLD 2011 SC 619 rel.
Shams -ud-Din Achakzai and Humera Munir for Petitioners.
Shahid Baloch, Additional Advocate -General for the State.
Date of hearing: 19th Novemb er, 2019.
JUDGMENT
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. ----Through this petition
following relief has been sought:
"It is therefore prayed that keeping in view the aforesaid submissions petition be
allowed, respondents be directed to add/include the condit ion of diploma in physical
education at least in 2nd division from recognized institution as required under
Balochistan Education Department (Schools Branch) [Men's Section] [Basic Pay
Scale 1 to 15] Service Rules, 1984 in the interest of justice."
2. The relevant facts of the case as stated are that in pursuance of an advertisement dated
28th December, 2016 published in Daily Jang, Quetta, the petitioners applied for posts of
Physical Education Teacher (B -14) mentioned at Serial No.5 of the advertisement; that the
service rules for the aforesaid post stipulates the requirement of a Diploma in Physical
Education; that the petitioners approached respondent No.2, by submitting an application on
a strength that they being duly qualified candidates, having the M aster Degree and Diploma
in Physical Education solicited to include the requirement of diploma in physical education
for the subject post, in order to give them a fair chance to contest the position being the
deserving candidates, but no heed was paid.
3. We have heard the learned counsel for the petitioners and learned Additional
Advocate General on behalf of the respondents.
It was contended by the learned counsel that due to the purported act of the education
department, their legal rights have been infringed and they being diploma holders are entitled
for the posts of Physical Education Teacher, but due to a Notification dated 03rd May 2019,
they have been deprived from their legitimate right. Further, contended that in presence of
the Rules, the rec ruitment policy will have no overriding effect.
Conversely, the learned Additional Advocate General stated that in majority areas of
the province, the facilities of physical education are not available, as such, in the best interest
of the people of the p rovince the policy has been devised vide Notification dated 03rd May
2019, but still the petitioner can apply for the post and in case of successfully qualifying the
test and interview, the qualified candidates would be appointed.
4. The respondent No.2 ha s invited the applications for the different posts including the
post of Physical Education Teacher, whereas the condition of holding diploma in Physical
Education for the post of Physical Education Teacher was not stipulated. The petitioners
have agitated their right being diploma holders in the physical education. It appears that vide
Notification No. S.O (R -II) (4)4/2015 -S&GAD3223/73 dated 24th November 2016, the
Government of Balochistan amended the Balochistan Education Department (Schools
Branch) (Men 's Section) (Basic Pay Scale 1 to 15) Service Rules, 1984 (Rules, 1984) the
following stipulation: -
"In the aforesaid rules, in the Appendix, -
(a) After Serial No.7 the following new entries shall be inserted.
"7-A Junior Elementary
Teacher (BPS -15) Associate Degree at least in
Second Division in Education
from the recognized University By initial
recruitment
7-B Physical Education
Teacher (BPS -14) (a) Bachelor's Degree at lease in
Second Division from a
recognized University; and (b)
Diploma in Physical Education at
least in Second Division from a
recognized Institution.
(b) …………………..
In view of afore -referred amendment for the post of Physical Education Teacher
(BPS -14), the candidates having diploma in Physical Education at least in Second Division
from a recognized Institution were eligible to apply, but, the respondent No.1 vide ano ther
Notification No.S.O. (S -III)2 -22/2019 -Edu/5270 -5364 dated 03rd May, 2019, issued a
Recruitment Policy, 2019, wherein, the stipulation of having a diploma of Physical Education
for the post of Physical Education Teacher was removed/lifted. However, the perusal of
Notification dated 03rd May 2019 shows that, no reasons were rendered for removing the
condition of the diploma in Physical Education; rather the posts are left open for all aspiring
candidates to apply for the same. The policy statedly was dev ised for employment of
efficient and eligible candidates, but astonishingly, the condition of holding a diploma in
physical education for the post of Physical Education Teacher has been removed, that too,
without assigning any explicit, rationale and justi fiable reason.
5. It is not out of place to observe here that the Rules, 1984, were framed and amended
by the Services and General Administration Department, Government of Balochistan, in
exercise of powers conferred by Section 25 of the Balochistan Civil Servants Act, 1974 (Act
No. IX of 1947), whereas the "Revised Teaching Staff (BPS -09 to 15) Recruitment Policy
(2019) Secondary Education" was notified by the Secondary Education Department,
Government of Balochistan and presently, both the Rules, 1984 and the Policy (2019) are in
filed. The question before us is, that whether a policy can override the existing rules. It is
well settled that rules and regulations are subordinate and delegated legislation deriving
authority and legal cover from the provisions of the parent st atute. As rules framed under a
statute cannot override the provisions of the statute, under which they were framed and on
which their very existence was dependent, similarly, any policy made/framed cannot override
the rules, which is even otherwise a subor dinate legislation. The Hon'ble Supreme Court, in
its judgment, passed in Suo Motu Case No.13 of 2009 (PLD 2011 SC 619), held as follows: -
"18. From an examination of the above case law it is clear that a rule making body
cannot frame rules in conflict wi th, or in derogation of, the substantive provisions of
the law or statute, under which the rules are framed. Rules cannot go beyond the
scope of the Act. Thus, we are inclined to hold that no rule can be made which is
inconsistent with the parent statute, whereas, no regulation can be made inconsistent
with the parent statute or the rules made thereunder and the provisions of these rules
or regulations, as the case may be, to the extent of their inconsistency with the parent
statute or the rules shall be in operative."
6. The policy namely, "Revised Teaching Staff (BPS -09 to 15) Recruitment Policy
(20019) Secondary Education" in presence of 'the Balochistan Education Department
(Schools Branch) (Men's Section) (Basic Pay Scale 1 to 15) Service Rules, 1984', w ill have
no overriding effect over the Rules. The official respondents while devising the policy,
neither amended the rules nor bothered to bring the policy in consonance with the rules,
rather the policy 2019, did not find mentioned about lifting/removing the condition of
holding a diploma of Physical Education for the post of Physical Education Teacher. The
purported act of the respondent by issuing the policy, clearly shows that the right(s) of the
person(s), who were/are Physical Education diploma holde r and are eligible for the posts of
physical education teacher, were infringed. The contention of the learned Additional
Advocate General that in some of the areas in the province, the facilities of physical
education are not available, therefore, in order to overcome the issue, the instant policy was
framed, does not stand to any explicit reasons, though the proposed policy did state so, that
due to not having the facility in any district or part of the province, but it was not specifically
mentioned to ju stify the removing of condition of holding diploma. As stated above, the
impugned policy was hopelessly silent on this aspect.
Though the entire policy has not been called in question before us, rather, the
direction only to the extent of insertion of con dition of diploma in physical education was
sought. However, we intentionally refrain ourselves to render any observation on the legality
or validity of the impugned Policy, 2019. Thus, we are leaving these questions opened for a
judicial scrutiny on an ap propriate juncture, whenever it may come before this court in any
other case.
In view of the afore -discussed reasons, the petition is allowed. Consequently, the
respondents are directed to insert the condition of a diploma of physical education, with at
least 2nd division, mandated by the Balochistan Education Department (Schools Branch)
(Men's Section) (Basic Pay Scale 1 to 15) Service Rules, 1984, and thereafter, appoint the
eligible candidate(s) against the post of Physical Education Teacher, strictly i n accordance
with law and the order of merit.
The petition is accepted in the above terms, but with no order as to costs.
ZC/34/Bal. Petition 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,
let us know.