PLJ 2017 Quetta 87 (DB)
Present : MUHAMMAD NOOR MESKANZAI , C.J. AND ABDULLAH BALOCH , J.
RAB NAWAZ and others --Petitioners
versus
GOVT. OF BALOCHISTAN through Chief Secretary and 3 others --Respondents
C.P. No. 152 of 2014, decided on 13.3.2017.
Constitution of Pakistan, 1973--
----Art. 199--Policy decisions --Challenge to --Jurisdiction of Court --Plea of hardship --Held --
Such decision cannot be challenged in writ jurisdiction of the purporting plea of har dship--
Petition dismissed.
[P. 93] A
PLC 2016 (C.S) 459, ref .
Mr. Kamran Murtaza, Advocate for Petitioners.
Mr. Zahoor Ahmed Baloch, Asstt. A.G for Respondents.
Date of hearing: 9.12.2016. J
UDGMENT
Abdullah Baloch, J. --This petition has been filed by t he 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 June of their induction into services w.e.f 31.12.2012 with any other relief and cost of the proceedings, in the interes t 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 sens e 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 graduates 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 appoint ments the
petitioners started 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 w ere 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 compli ance 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 th e 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 fo r 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 (Resp ondent No. 1), vide letter 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 se t-up and another summary 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 & Higher Education 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 Minis ter 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 tha t 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 b een 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 No. 1 and 2 filed joint
parawise comments, while the Respondent No. 3 and 4 filed their separate parawise
comments. The Respondents No. 1 & 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 Fe deral Government, 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 petitioners 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 & Technical Education Balochistan
filed parawise comments by stating therein that the 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 w ere 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 po st of Assistant Lecturers 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 been 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 regula rization; that the 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
Government 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 wi th 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 complet ion of their contractual 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 nomencla ture of their posts 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 petitioners 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 jurisdictio n 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 invoke 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 in the said contract order, which was accepted by the petitioners; that the Government of Balochi stan was pleased to regularize their services under
the same scale in the Education Department and such regularization of their posts were
accepted by the petitioners 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 th at the Federal Government while acknowledging the question of Provincial
Autonomy need to be revisited and to correct the wrong of history by conferring the political, economic and cultural rights of the provinces and to resolve long deprivations of the pe ople
of Baiochistan in the different walks of life, has realized to resolve the unemployment of postgraduate and graduates of Baiochistan, 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 effect will create 5000 additional jobs, the quota for the province as prescribed in the rules/l aws 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 Decem ber 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 tha n 2 ½ years, the Government of Baiochistan 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 document available on record to suggest that whether their contractual period was extended or otherw ise.
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 para -7 & 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 (Schools) 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 noti fication, the petitioners along with others accepted the terms
and conditions and joined their services.
10. To examine that whether the petitioners being Civil Servants could have invoked the writ
jurisdiction of this Court as regard their grievance, whi ch 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 s ubmissions 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 Baloc histan 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 vs. Province of Punjab, PLC 2016 (C.S.) 459, wherein it
was held that, “If an employee had been discriminated or any of his Fun damental Right had
been violated, he could file appeal/representation before the departmental hierarchy and then appeal before the Service Tribunal --If there was a question of violation of any of the
Fundamental Right even then bar of Art. 212 of the Const itution 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 case 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 College 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 BPSC 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, wit hout 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 petition is hereby dismissed for want of jurisdiction.
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