2017 P L C (C.S.) 1273
[Balochistan High Court]
Before Muhammad Noor Meskanzai, C.J. and Abdullah Baloch, J
RAB NAWAZ and 4 others
Versus
GOVERNMENT OF BALOCHISTAN through Chief Secretary and 3 others
C.P. No.152 of 2014, decided on 13th March, 2017.
Constitution of Pakistan ---
--Arts. 199 & 212 ---Constitutional petition ---Maintainability ---Alternate remedy ---Civil service -
--Terms and conditions of service ---Bar of jurisdiction contained in Art.212 of the Constitution--
-Scope ---Policy decision of Gover nment could not be challenged in constitutional jurisdiction on
the plea of hardship--- Employees had been provided employment on certain terms and
conditions which pertained to their service ---Constitutional jurisdiction could not be exercised in
view of bar contained in Art.212 of the Constitution---Employees had alternate remedy for
redressal of their grievance---Constitutional petition was dismissed in circumstances.
Syed Hassan Askar v. Province of Punjab PLC 2016 (C.S.) 459 and Government of
Pakistan v. Jamshed Hussain Cheema 2016 SCMR 442 rel.
Kamran Murtaza for Petitioners.
Zahoor Ahmed Baloch, Asst. A.G. for Respondents.
Date of hearing: 9th December, 2016.
JUDGMENT
ABDULLAH BALOCH, J. --- This petition has been filed by the 199 petitioners, who
were serving as Assistant Lecturers in different Colleges of the province, wherein they sought
the following relief:
"It is, therefore, respectfully, prayed that this Hon'ble Court may be pleased to declare the
notification dated 16 -01-2014 passed by respondent No.4 to the extent of stepping down
the petitioners from the post of "Assistant Lecturer" to "SST" and giving effect to their
regularization is illegal, made in excess of authority by the respondents as such, the same
may be set -aside, besides directing the respondents to accommodate the petitioners in
colleges branch as "Lecturers B -17" as committed at the time of their induction into
services w.e.f. 31 -12-2012 with any other relief and cost of the proceedings, in the
interest of justice, equity and fairplay."
2. It is the case of petitioners that they are Local of this province, having Master degrees,
but were jobless and the then regime considering the problems of the people of this province as
well as to eliminate the sense of deprivation amongst the people, a joint sitting of parliament was
held on 24th November, 2009, wherein a package containing several initiatives was introduced.
Besides recommending for other initiatives, the Cabinet in order to overcome the problem of
unemployment in the province recommended for providing about 5000 additional jobs at the
earliest. To meet with the situation, a package was advertised in different daily newspapers
including the Daily Jang Quetta dated 1st December, 2009 for providing jobs to 5000
unemployed gra duates from Balochistan and for such purpose a special cell was established to
collect the data of unemployed graduates. The petitioners also provided their data and were
appointed as Assistant Lecturers in B -16. After their appointments the petitioners st arted
performing their duties in different Colleges of the province and they have also undergone
relevant training. Though the salaries of the employees of Federal Government were increased,
but despites approaches the petitioners were deprived of increase in their salaries, hence the
matter was taken -up in the Senate of Pakistan on 13th December 2011 as well as a meeting on
the subject was convened by the respondents and also a similar meeting was held on 2nd
November 2011 in compliance of Cabinet decision on Aghaz -e-Haqooq- e-Balochistan ("AHB")
at Secretariat/Establishment Division Islamabad. The Former Prime Minister of Pakistan visited
Quetta and desired for regularization of the contract basis employees and it was decided that the
Federal Government would also regularize services of contract employees from Balochistan so
employed in the Federal Government, while the Government of Balochistan may regularize the
services of the teachers appointed under AHB, hence request was made for taking necessary
steps vide letter dated 23rd January, 2012. That pursuant to the summary initiated by the
Education Department a meeting of certain provincial Secretaries was held on 4th July, 2012,
which has been acknowledged by the Chief Secretary (respondent No.1), vide let ter dated 9th
July, 2012; that on 10th and 12th December, 2012 the matter was taken- up in the National
Assembly, wherein certain commitments were made. However, in the meanwhile Assemblies
were dissolved and caretaker Government was set -up and another summ ary was moved to the
Hon'ble Governor Balochistan on 15th January, 2013. A sub- Committee was formed on the
subject by the Cabinet Secretariat, Establishment Division, Government of Pakistan and on 13th
December, 2012 it was held that all the 5000 contract employees including the petitioners
immediately be regularized. Hence on 23rd May, 2013 respondent No.4 regularized 5000
teachers in BPS -14 and BPS -16 on certain terms and conditions. On 31st May, 2013 the meeting
of Director of Colleges and Higher Educati on Balochistan and others was held on the issue of
up-gradation of High Schools to the level of Higher Secondary School and adjustment of
Assistant Lecturers serving in Colleges side. However, later on a summary was moved to the
Chief Minister Balochistan proposing that the decision to upgrade High Schools, a Higher
Secondary Schools may be reviewed and the existing system of Colleges providing education
from grade -11 to grade -14 may be allowed to continue, simultaneously it was proposed that the
Assistant Lecturers i.e. petitioners may be regularized as SST with the same nomenclature i.e.
Assistant Lecturer, whereafter an order was passed on 10th December, 2013 by the respondent
No.4 whereby 4808 posts out of 5000 posts of AHB package have been regularized, under such
circumstances the services of the petitioners were also regularized vide notification dated 16th
January, 2014 as SST instead of Assistant Lecturer that too w.e.f. 23rd May, 2013 instead of 31st
December, 2012 and in School Section by stepping down without any reason and despite having
vacancies. Hence, instant petition has been filed.
3. Pursuant to issuance of pre -admission notices; the respondents Nos.1 and 2 filed joint
parawise comments, while the respondents Nos.3 and 4 filed their separat e parawise comments.
The respondents Nos.1 and 2 questioned the jurisdiction of this Court in view of bar contained
under Article 212 of the Constitution of Islamic Republic of Pakistan and further added that
initially under the directions of Federal Gover nment, the petitioners were appointed on contract
basis for a period of one year and such period was extendable for another successive period with
the condition of satisfactory performance. That the petitioners have joined the services on their
own choice and free will, hence they are not entitled for any relief and the instant petition has
become infructuous after their appointment as SST on regular basis; that the existing rules do not
provide for appointment of Assistant Lecturers, whereas the petitioner s have been regularized on
the same grades, on which their initial appointment on contract basis was made.
4. The respondent No.3 i.e. Secretary Colleges Higher and Technical Education Balochistan
filed parawise comments by stating therein that the Government has regularized the services of
contract appointees including the Assistant Lecturers as SST (B -16) as the Selection of Lecturers
is required to be made through Balochistan Public Service Commission, while the vacant posts
of Lecturers were advertised by the Balochistan Public Service Commission, but the petitioners
have failed to qualify/contest the exams.
5. The respondent No.4 i.e. the Secretary, Secondary Education Department has filed
parawise comments by stating therein that no post of Assistant L ecturers was sanctioned in the
budget and thus the same is out of nomenclature of colleges position; that the petitioners were
appointed as Assistant Lecturer in BPS -16 and also were regularized on the said basic pay i.e. B -
16; that the post of SST has bee n up- graded as B -17 subject to professional qualification i.e.
B.Ed.; that the petition has been filed without having any locus standi by the petitioners, as they
have been regularized on the same basic pay as serving prior to their regularization; that th e
Government of Balochistan has relaxed the rules for their regularization and thus the
Government is competent to adjust them in accordance with requirement.
6. Learned counsel for the petitioners, Mr. Kamran Murtaza, Advocate, contended that the
Governme nt of Balochistan announced 5000 posts in Education Department under AHB, invited
applications from post -graduates and graduates of Balochistan to resolve their unemployment
problem being faced for long time; that the petitioners along with others applied for the relevant
posts; that the petitioners were appointed as Assistant Lecturers B -16 and posted in different
Colleges of the province for a period of one year contract, which was extendable subject to their
performance; that on completion of their contr actual period, the services of the petitioners were
further extended from time to time; that on the recommendation of parliament, the services of the
petitioners have been regularized as SST B -16 instead of Assistant Lecturer and nomenclature of
their post s have been changed without any justification; that the petitioners under protest joined
their services as SST in School Section instead of College Branch; that the petitioners have been
deprived from their rights being qualified post -graduates; that the p etitioners approached the
respondents from time to time, but no one paid any heed to resolve their problems; that some of
the colleagues of the petitioners were accommodated in College Section at Kech District, while
the petitioners have been discriminated ; that the petitioners are entitled to be inducted in College
Section instead of School Section.
7. Conversely, Mr. Zahoor Ahmed Baloch, learned Assistant Advocate General vehemently
opposed the arguments so advanced by the learned counsel for the petitioners and mainly
contended that the petition is not maintainable as the constitutional jurisdiction is barred in view
of Article 212 of the Constitution of Islamic Republic of Pakistan; that the petitioners are civil
servants and having alternate remedy to i nvoke the jurisdiction of Balochistan Service Tribunal
for redressal of their any grievance, if available; that the petitioners were initially appointed as
Assistant Lecturer B -16 under AHB for a period of one year with the terms and conditions
contained i n the said contract order, which was accepted by the petitioners; that the Government
of Balochistan was pleased to regularize their services under the same scale in the Education
Department and such regularization of their posts were accepted by the petit ioners by joining
their duties, as such, they have no vested right to deviate from their commitment; that there is no
post of Assistant Lecturer B -16 provided in College Section. He further contended that the only
posts for College Section are Lecturers B -17, which could be filled in through Balochistan Public
Service Commission; that during pendency of instant petition the Government of Balochistan
advertised number of posts of Lecturers B -17 in College Section through Balochistan Public
Service Commission ("BPSC") and some of the petitioners participated in the competitive exams
and have been appointed Lecturers, while others have failed to do so; therefore, they have no
locus -standi to file instant petition, he requested for dismissal of the petition.
8. We have heard the learned counsel for the parties and perused the record. The record
reveals that the Federal Government while acknowledging the question of Provincial Autonomy
need to be revisited and to correct the wrong of history by conferring the poli tical economic and
cultural rights of the provinces and to resolve long deprivations of the people of Balochistan in
the different walks of life, has realized to resolve the unemployment of postgraduate and
graduates of Balochistan, announced a package of 5000 posts under AHB for recruitment of
postgraduates and graduates of the province through the provincial government. The record
further reveals that the package presented before the parliament, also contained that the Federal
Government with immediate ef fect will create 5000 additional jobs, the quota for the province as
prescribed in the rules/laws for employment in Government (especially Foreign Service) semi
Government, Autonomous/semi -Autonomous Corporations and Bodies must be strictly complied
with. Deficiency if any, needs to be met in a proactive manner. The Overseas Employment
Foundation needs to facilitate the recruitment of skilled and unskilled labour for employment
abroad. The local people living along the coast, who meet the criteria should be given jobs in the
Coast Guards, the monitoring of the aforesaid shall be the responsibility of the Senate Standing
Committee for Establishment. Though fortunately or unfortunately the said recommendations of
the parliament were not given due weight and only 5000- posts in Education Department were
announced by the Provincial Government on 1st December 2009, wherein applications were
invited in a non- speaking manner without showing the nomenclature of the posts, however, the
petitioners along with others submitted their application in the Special Cell constituted by the
S&GAD. After lapse of more than 2 -1/2 years, the Government of Balochistan issued a format of
contract employment for a period of one year as Assistant Lecturer B -16 to the 700 posts
graduates including the petitioners on 11th October, 2012. After going through the terms and
conditions contained in the said contract, the same were signed by the petitioners and they had
joined their services in different Colleges of the province. There is no doc ument available on
record to suggest that whether their contractual period was extended or otherwise. However,
record showing that they remained on their services till their regularization vide notification
dated 23rd May, 2013, wherein all the posts under the AHB from B -14 and 16 were adjusted in
School Section, wherein paras -7 and 8 of the notification it is clearly mentioned that:
"7. Consequent upon their regularization all the Package Teachers/Assistant Lecturers
will have to report to the Director (Sc hools) immediately for their rationalization/
reposting as per needs and requirements of the Schools of the area concerned.
8. They shall not be entitled for benefits of the up- gradations of SSTs from BS -16 to
BS-17 rather fulfillment of their required qualifications, they shall be entitled for the up -
gradation of B -17."
9. In pursuance of aforesaid notification, the petitioners along with others accepted the
terms and conditions and joined their services.
10. To examine that whether the petitioners bein g Civil Servants could have invoked the writ
jurisdiction of this Court as regard their grievance, which according to the learned Assistant
Advocate General related to the terms and conditions of their service, when the learned counsel
for petitioners was confronted to the same, he stated that this is a case of hardship.
11. We have considered the above submissions and with the assistance of the learned
Counsel for parties perused the material placed on record, which reveals that a policy decision
has been taken by the Federal Government for accommodating the unemployed graduates and
postgraduates of Balochistan in different categories in a conscious manner, looking to the nature
of their qualifications etc. therefore, such decision cannot be challenged in a writ jurisdiction on
the purporting plea of hardship. In the present case, the petitioners have also been provided
employment in different schools on certain terms and conditions, which pertains to terms and
conditions of their services, therefore, we in view of clear bar contained in Article 212 of the
Constitution, have not been persuaded to exercise Constitutional jurisdiction on the plea of so-
called hardship. In this regard reliance is placed on the case of Syed Hassan Askar v. Province of
Punjab, PLC 2016 (C.S.) 459, wherein it was held that, "If an employee had been discriminated
or any of his Fundamental Right had been violated, he could file appeal/representation before the
departmental hierarchy and then appeal before the Service Tribunal ---If the re was a question of
violation of any of the Fundamental Right even then bar of Article 212 of the Constitution would
attract ---Forum for determination of such issue would be the Service Tribunal and not the High
Court". The Hon'ble Supreme Court in the ca se of Government of Pakistan v. Jamshed Hussain
Cheema, 2016 SCMR 442, held that, "Policy decision of 'Government regarding upgradation of
posts --- Such decision could not be challenged in constitutional jurisdiction of High Court on the
purported plea of discrimination --- Upgradation of post was not a vested right."
12. So far as discrimination is concerned, the thrust of argument was that some of the
employees belonging to Kech district appeared through the same process i.e. AHB and they were
sent to Coll ege Section, whereas the petitioners were sent to School Section. Of course, prima -
facie this argument was quite weighing and while admitting this petition, it was one of the main
convincing ground. However, later on, the Government of Balochistan withdrew the notification
of employees of AHB belonging to Kech district and all the employees were treated alike. So,
the ground of discrimination is not available. Moreover, some of the petitioners participated in
the competitive examination conducted by the BPS C for the post of Lecturer and remained
successful, as such, were appointed. Since, the post of Lecturer is to be filled in by the process of
competitive exams and we cannot direct for appointment of teaching staff otherwise then the
process sought to be observed by the BPSC through competitive exams.
13. For the reasons discussed hereinabove, without touching the merits of the case, the
petitioners having alternate remedy to invoke the such forum for redressal of their grievance, as
such, the instant petit ion is hereby dismissed for want of jurisdiction.
ZC/31/Bal. Petition dismissed.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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