Abdullah and another V. Province of Balochistan through Secretary Education and another,
Bench: Muhammad Kamran Khan Malakhail
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This case concerned a dispute over hiring rules for Physical Education Teachers in Balochistan's schools. Under the 1984 Service Rules, as amended in 2016, candidates for this post needed both a Bachelor's degree and a Diploma in Physical Education, with at least second division marks. The petitioners held such diplomas and degrees and had applied for these teaching posts.
However, in May 2019, the Education Department issued a new Recruitment Policy that dropped the diploma requirement altogether, opening the position to a wider pool of applicants without explanation. The petitioners, who had specifically qualified themselves with the diploma, argued this change unfairly stripped away their advantage and violated their rights, since the underlying 1984 Rules had never been formally amended to remove that requirement.
The Balochistan High Court agreed with the petitioners. It held that a recruitment policy, being a lower form of regulation, cannot override formally established service rules unless those rules are properly amended. Since the government had not amended the 1984 Rules or given any justification for dropping the diploma condition, the policy's silence on this point could not lawfully cancel out the rules' requirement.
The court allowed the petition and directed the authorities to reinsert the diploma requirement into the 2019 policy and to appoint teachers accordingly. The ruling reinforces the legal principle that policies and executive notifications must remain consistent with, and cannot override, statutory rules already in force.
یہ مقدمہ بلوچستان کے سکولوں میں فزیکل ایجوکیشن ٹیچرز کی بھرتی کے قواعد سے متعلق ایک تنازع پر مبنی تھا۔ 1984 کے سروس رولز کے تحت، جن میں 2016 میں ترمیم کی گئی تھی، اس عہدے کے امیدواروں کے لیے بیچلر ڈگری کے ساتھ ساتھ فزیکل ایجوکیشن میں ڈپلومہ کا ہونا بھی لازمی تھا، جس میں کم از کم سیکنڈ ڈویژن نمبر ہونے چاہییں تھے۔ درخواست گزاروں کے پاس یہ ڈپلومے اور ڈگریاں موجود تھیں اور انہوں نے ان تدریسی آسامیوں کے لیے درخواست دی تھی۔
تاہم مئی 2019 میں محکمہ تعلیم نے ایک نئی بھرتی پالیسی جاری کی جس میں ڈپلومہ کی شرط کو مکمل طور پر ختم کر دیا گیا، جس سے بغیر کسی وضاحت کے امیدواروں کا دائرہ وسیع ہو گیا۔ درخواست گزاروں، جنہوں نے خاص طور پر ڈپلومہ حاصل کر کے خود کو اہل بنایا تھا، نے استدلال کیا کہ اس تبدیلی نے ناانصافی کے ساتھ ان کا امتیازی مقام چھین لیا ہے اور ان کے حقوق کی خلاف ورزی کی ہے، کیونکہ بنیاد
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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.