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Writ Petition No. 2538 of 1980, heard on 31st October, 1982.

‑‑ R. 8‑Upgradation of teachers‑‑Writ‑Education Secretary approv ing mere upgradation of posts and not incumbents but Section Officer adding on his own that upgraded posts be given to senior most P. T. Cs.‑Memo. issued by Section Officer‑Unauthorised‑‑Impugned orders of Administrator and Controlling Authority upgrading certain P. T. Cs. in compliance of memo., held, without lawful authority Upgradation also not being based on r. 8 of Municipal Committee Service Rules, 1969 nor being attended to in impugned orders, such orders, held further, unauthorised for such reason as well‑Municipal Committee directed to decide matter afresh in accordance with law‑ Constitution of Pakistan (1973), Art. 199.

Muhammad Hashim v. Postmaster General and another P L D 1969 Dacca 254 and Sahibzada Fariduddin Ahmad v. The Province of Punjab and another P L D 1976 Lah. 1310 ref.

M. A. Ghani for Petitioner.

S. M. Zubair, A. A: G. for Respondents. Nos. 1 and 2.

Muhammad Anwar Sipra for Respondents Nos. 3 and 4.

Dates of hearing : 3rd July and 31st October, 1982.

There was a Middle School run by the Municipal Committee Sargodha. Respondents No. 3 and 4, who were initially Matriculates and held Primary Teacher's Certificate, were teaching from 2‑9‑1963 and 1‑12‑1963 respectively in the said School. They were in National Pay Scales Nos. 6 and 8. The School was raised to High School standard. The petitioner who had passed his B. A. in 1970 and B. Ed. in 1972, joined the School on 5‑12‑1973. He was given National Pay Scale No. 6. He was required to teach higher classes which he did. The duties pertained to N. P. S. No. 14. The School was recognized by the Board of Intermediate and Secondary Education Sargodha. One of the conditions of recognition was that "Teachers with high qualification working junior grades be adjusted in the proper grades after obtaining sanction of the posts from the competent authority." Nothing of the kind was done.

2. Respondent No. 3 passed his B. Ed. in 1975 and respondent No. 4 in 1977. Petitioner who had passed his B. Ed. in 1972, passed his M. A. (History) in 1978 and has passed M. Ed. this year.

3. Secretary to the Government of the Punjab sanctioned the upgrada tion of four posts of P. T. C. from N. P. S. No. 6 to the posts of Senior English Teachers in National Pay Scale No. 14 in the aforesaid School. A memo. to that effect was issued on 28‑2‑1979 by the Section Officer (LG)(VI) (Annexure G/1) which carries this sentence as well that "The most senior P. T. C. Teachers possessing B. A., B. Ed. qualification should be given National Pay Scale No. 14 with effect from the date of upgradation." Relying on this, the Administrator of the Committee has given the upgraded posts to the respondents.

4. The contention of the learned counsel for the petitioner who has filed this Constitutional petition after unsuccessful attempt to get redress of his grievance, is that the Government through the Secretary had sanctioned up‑gradation of four posts and the Section Officer on' being prevailed upon by the respondents has added on his own that the upgraded posts be given to the Senior most P. T. Cs. Whether that is so or the Section Officer had added the sentence or qualification as that seemed to him usual routine, that besides the point. Original file has been produced by the Departmental representatives. The noting shows that the Secretary approved the up‑gradation. He did not prescribe who is to get the upgraded posts. Posts have been upgraded and not the incumbents. After the up gradation of the post four persons had to be appointed to those posts. The method is provided in rule 8 of the West Pakistan Municipal Committees Service Rules, 1969 which reads as follows :‑

"Methods of recruitment.‑(1) Vacancies in the different classes and grades of a Service shall be filled by‑

(a) initial recruitment ; or

(b) transfer of a person in the service of Government, are subject to the provisions of Article 44(5) of the Basic Democracies Order, 1959 ‑of a Local Council or any other Municipal Committee ; or

(c) by promotion on the basis of seniority subject to fitness from among the members of the Service in the next below grade or class ; or

(d) selection on merit from among members of the Service in the next below grade or class, seniority being considered only in the case of officials of practically the same standard of merit.

(2) The Municipal Committee shall determine by which of the methods specified in sub‑rule (1) the vacancies in various posts shall be filled.

(3) Vacancies to be filled by initial recruitment shall be reserved for bona fide residents of the Municipality."

5. Learned counsel for the petitioner had also contended that since the petitioner has been performing duties appertaining to N. P. S. No. 14, he is entitled to the benefits and privileges thereof. He placed reliance on Muhammad Hashim v. Postmaster General and another (P L D 1969 Dacca 254).

6. Learned counsel for the respondents No. 3 and 4 submitted that the respondents were senior most P. T. C. teachers in N. P. S. No. 6. Therefore, when it was decided that four posts of P. T. C. teachers should be up‑graded, they were rightly promoted to N. P. S. No. 14. It is also submitted that the petitioner has no right to be promoted to N. P. S. No. 14. He has placed reliance on Sahibzada Fariduddin Ahmad v. The Province of Punjab and another ( P L D 1976 Lah. 1310). Learned counsel has also. submitted that the seniority is to be calculated with reference to the length of service. He has placed reliance on Civil Appeals No. 1 to 15 of 1981 decided on 10‑11‑1981.

7. In reply, the learned counsel for the petitioner submitted that the case relied upon by the learned counsel for the respondent (P L D 1976 Lah. 1310), no doubt says that promotion is no right but it also lays down that the case of the person concerned shall be considered. But in the case in hand, the petitioner was not considered because of the unauthorized addition of the Section Officer.

8. What has just been said is quite true. Therefore, the impugned orders of the Administrator and Controlling Authority dealing with the matter are liable to be declared without lawful authority because those proceed on the basis of unauthorized addition, in the memo. to the decision of the Government. Also for the reason that the relevant rule applicable to the employees of the Committee above‑quoted have not been alluded to much less applied. Hence, the petition is accepted and the respondent No. 1 is directed to decide the matter afresh in accordance with law. In the circumstances of the case since the contesting respondents are teachers, there will be no order as to costs.

S. A. H. Petition accepted.

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