P L D 1988 Supreme Court 155 (PLP)

SHAFIUR RAHMAN, J.‑‑Leave to appeal was granted separately to the Government of Punjab and to the contesting respondents under Article 212(3) of the Constitution, to examine whether the Punjab Service Tribunal by its decision dated 21‑5‑1985, correctly held that the rules for promotion conferred a vested right and they could not be altered to the disadvantage of the civil servant awaiting promotion. The facts of the case are that the five contesting respondents before us who had filed an appeal before the Punjab Service Tribunal were recruited either as Forester or as Deputy Ranger from 1949 to 1953 in the Punjab Forest Department and were at the relevant time governed by the Punjab Forest Service Class II Rule 1941 (hereinafter referred to as the Rules of 1941) and Punjab Forest Subordinate Service (Executive Section Rules 1944) (hereinafter referred to as the Rules of 1944). The service to which these respondents belonged, comprised the posts of Forest Ranger, Deputy Ranger, Forester, Forest Guard (Appendix 'A' Rules of 1944). The Rules of 1941 governed the higher posts of Divisional Forest Officers, Extra‑Assistant Conservator of Forests and other comparable posts (vide Annex: B Rules of 1941). Under Rules 8 and 9 of the Rules of 1944, 9 months' training was prescribed for lower subordinates (Deputy Rangers, Foresters and Forest Guards etc. (Appendix D Rules of 1944). In the year 1962, were enforced the West Pakistan Forest Service (Class II) Rules of 1962 (hereinafter referred to as 1962 Rules). The service to which these rules were made applicable comprised posts of extra‑Conservator of Forests, Sub‑Divisional Forest Officers and such other posts in the Forest Department as may be determined by Government from time to time. In the matter of direct recruitment to this service, the minimum qualification prescribed was a degree in Forestry from a recognised University or Diploma or an equivalent qualification with not less than three years' experience as a Forest Ranger. On the 16th of April, 1976, the Governor of the Punjab in exercise of the powers conferred by section 23 of the Punjab Civil Servants Act, 1974 prescribed the minimum qualification the method of recruitment and the age limit for the posts specified in the schedule. In respect of Forestry and Wild Life Department of the Punjab for the post of Sub‑Divisional Forest Officer, the minimum qualification prescribed was a degree in Physical and Natural Sciences for initial recruitment and for promotion, a degree or a Diploma from a recognised Unviersity or Institute and 12 years experience as Forest Rangers/ Senior Range Forest Officer. As to the division of the posts between direct recruits and promotees, it was provided that 75$ shall be by initial recruitment and 25$ by promotion from among Forest Rangers/ Senior Range Forest Officers who have passed the examination prescribed for the purpose. Earlier to this Notification by the Governor of the Punjab the certificate holders, as the contesting respondents were called, were qualified for promotion to the post of Sub‑Divisional Forest Officer. They ceased to be so after this amendment as their qualification happened to be short of the minimum prescribed for promotion. The respondents filed an appeal under section 4 of the Punjab Service Tribunal Act, 1974. The substance of the claim of these respondents before the Tribunal was, as expressed in Para 8 of their memo of appeal, that the impugned Notification of the Governor dated 10th of April, 1976 "did not substitute repeal or supersede the earlier existing 1962 Rules". About themselves, they stated as follows:‑ "In so far as Appellants are concerned since they joined service under the aforesaid 1962 Service Rules these continue to be applicable to the Appellants. In fact the very purpose of not providing a repeal clause in 1976. Notification was to protect the existing terms and conditions of appellants service as contained in 1962 Rules." The relief that they claimed before the Tribunal was that on the basis of the impugned notification those promotions which were made on the 22nd of March, 1984 (promoting the appellants as Sub‑Divisional Forest Officers) be set aside and the Government be directed to consider these respondents also in accordance with 1962 Rules for promotion to the post of Sub‑Divisional Forest Officers and they should also be declared senior to these appellants as Sub‑Divisional Forest Officers. The Government of the Punjab as well as the appellants contested the claim of the respondents. It appears that a thorough inquiry was undertaken by the Tribunal and the correspondence between the departments, the opinion expressed by the officers and the Law Department, were all taken into consideration in finalising the judgment that was given. The conclusions at which the Service Tribunal arrived are as hereunder reproduced in the words of the Tribunal itself‑‑ "(i)???? With regard to the first issue as to the applicability of Rules of 1941 and 1962, against the impact of Notification of 1976 we will refer to our own judgment issued in the case of Ch. Noor Muhammad v. Secretary to Government of the Punjab, Communication and Works Department, Lahore, Case No.475/416 of 1983, decided on 17‑6‑1984, in which identical issue came within the purview of this Tribunal, as to find whether the said Ch. Noor Muhammad would be governed by the old rules of 1942 for the purpose of eligibility to further promotion under which he was inducted in service or he would be hit by the embargo placed by Rules of 1967, issued by the Governor enhancing the qualifications for such further promotion in his case. This Tribunal after considering all pros and cons of this case came to a positive conclusion that the said appellant who was inducted into service in accordance with terms and conditions of such service contained in Rules of 1942, which permitted to go forward and earn promotion to higher post of XEN in accordance with the merits of good work, conduct performance and seniority, therefore, it would be an act of sheer injustice as well as great hardship if the terms and conditions of services as assured at the time of entry into service are suddenly changed to the detriment of a civil servant. (ii) It is settled principle of law that employment is in the nature of contract between employer and employee and service rules determine the conditions of the employees prospects for his career. We have no dispute with the proposition that the Government can reserve the right of amending Rules but that must be done when there is sound reason to do so and not just to fill the routine. (iii)?? This notification further supports the claim of the appellant that enhancement of qualifications by Notification of 1976 was unwarranted and militated against the terms and conditions of their service under which they were inducted regularly by Rules of 1941 and 1962. To elaborate this point further, it would be necessary to mention here that the earlier rules so mentioned above under which the appellants were inducted into service as Foresters and then promoted as Forest Rangers only require from them to possess a certificate in Forestry from Pakistan Forest School Ghoragali and Degree and Diploma which became a prerequisite for their promotion was an act of hardship absolutely unjustified in their case. The latest notification on the subject has removed the inequity which was the subject‑matter of appeal before this Tribunal at least to the extent that it has been recognised by the Government itself that the appellants qualification of having only a certificate from Pakistan Forest School, Ghoragali plus their vast experience would be equal to the Degree or Diploma from a recognised University/Institute/School. This decision of the Government goes a long way to support our earlier decision on the subject that if any condition of service is changed that is only prospective in nature and would not affect the persons already inducted in service under the earlier Rules." Relying on a number of its own decisions, the Service Tribunal accepted the appeal set aside the impugned orders in so far as it had failed to consider the respondents for promotion and it was ordered that their claim be considered alongwith that of the appellants for promotion as Sub‑Divisional Forest Officers. The appellants as well as the Government of Punjab have contended before us that the decision of the Tribunal has the effect of unsettling the law laid down by the Supreme Court in a number of cases, that the rights of a civil servant are limited to the grade or the post which he for the time being holds and does not extend to the higher post included in the service or to any other promotion post because in respect of such higher posts, the rights of the civil servant are only in the prospects and not with regard to the existing terms and conditions of the service. For this, reliance has been placed on the decisions of this Court in Government of West Pakistan v. Fida Muhammad P L D 1960 S C 45; Central Board of Revenue, Government of Pakistan v. Mr. Asad Ahmad Khan P L D 1960 S C 81; Province of West Pakistan v. Muhammad Akhtar P L D 1962 S C 428; Manzur Ahmad v. Muhammad Ishaq P L D 1964 S C 17; Muhammad Umar Malik v. Federal Service Tribunal and others P L D 1987 S C

172. The learned counsel for the respondents, on the other hand contended that from the recital of the facts, it is quite clear that the notification impugned before the service Tribunal was mala fide as it was directed towards conferring undeserved advantage on the appellants and that it was soon done away as every concerned functionary was opposed to such an inequitable treatment. Besides, it has been contended that the rule as framed was highly discriminatory and unjust and could not be allowed to stand. The learned counsel for the respondents has in this context relied on decisions in Mukhtar Ahmad v. Government of West Pakistan P L D 1971 S C 846 and Muhammad Aslam Chishti v. Chairman, WAPDA 1984 P L C (CS)

21. Section 4 of the Punjab Service Tribunal Act, 1974 provides that any civil servant aggrieved by any final order whether original or appellate made by a departmental authority in respect of any of the terms and conditions of his service, may within thirty days of communication of such order to him or within six months of the establishment of the appropriate Tribunal whichever is later prefer an appeal to the Tribunal. In view of this provision, it is necessary that the appeal to the Tribunal must relate to the terms and conditions of the service. In this particular case, what the appealing respondents sought from the Tribunal was that in the matter of promotion to higher post, they continued to be governed by the rules of 1962 and that the new rules framed for promotion to the higher post under section 23 of the Civil Servants Act in 1976 were inapplicable to them. The Tribunal did not in fact determine that 1976 Rules were not inapplicable to the respondents. What it held was that those rules did not affect the vested right of the respondents. This was so held on the reasoning that "employment is in the nature of contract between employer and employee and service rules determine the conditions of the employee's prospects for his career". From this observation, it was concluded that on the date of entry, the rule applicable to him with regard to prospects of promotion, acquired fixity and finality qua him. It has not been indicated upto what level this finality enures. Could it be said that on their entry as Foresters or Deputy Rangers, they acquired a right in keeping the rules intact upto the promotion as Chief Conservator of Forests or was it limited to the next higher grade. In any case, the view taken by the Tribunal is against the law laid down by this Court with regard to the meaning and scope of terms and conditions of service. In the case of Central Board of Revenue, Govt. of Pakistan v. Asad Ahmad Khan, it was held that Government was entitled to make rules in the interest of efficiency of service, that the rule of promotion could be changed without in any manner' affecting the right of those yet to be promoted. The Service Tribunal' has referred to the decision of this Court in Government of Pakistan v. Fatehullah Khan P L D 1960 S C 105 but has somehow not followed the law laid down therein. In that case, the High Court's reasoning was reproduced in the following words:‑‑ "The learned Judges first found that the expression 'terms and conditions' includes 'prospects of promotion'. Holding that it was the duty of the Government to assure to Mr. Ataur Rehman by the action which they took at the integration, 'terms and conditions' which were in all material respects as favourable to him as were those that applied to him immediately before the integration, and finding upon the basis of the paper estimates referred to above that his date of possible promotion to the next grade, namely, that of Executive Engineer was calculated to suffer postponement but about a year as a result of the new orders, they came to the conclusion that the statutory assurance had been violated in Mr. Ataur Rehman's case by his allocation to the Irrigation Branch. They also expressed the opinion that such a decision as the allocation of Mr. Ataur Rehman to the Irrigation Branch involving a change in 'conditions of service' could only have been made by a rule under the Constitution and the orders in question 'can at best be regarded as a rule which, having not received the approval of the Governor, is illegal.' The view expressed by the learned Judges as reproduced above, was rejected in the following words:‑‑ "The expression is one which has the effect of strict limitation in relation to a given time, and appears to us to avoid anything in the nature of future potentiality in regard to the terms and conditions. The officers whose services were being placed at the disposal of the new Province came from a number of different Provinces and States where the terms and conditions of service varied very greatly. It is difficult to suppose that, for instance, a school teacher serving in the State of Khairpur could be provided in the new Province with precisely the same prospects of promotion as he was enjoying before the integration, in State service. But he could certainly be provided with an equivalent post, carrying equivalent salary, and subject to an equivalent age of superannuation. To provide for preservation of their original 'prospects of promotion' with respect to individual officers coming from so many different sources would in our opinion be an impossible tasks and, therefore, we consider that the expression 'terms and conditions admissible to them before the 10th day of August, 1955' must be understood in a narrow and limited sense to refer to concrete matters relating to the actual service of the person concerned on the specified date." , In the case of Muhammad Umar Malik v. Federal Service Tribunal, the argument was that the rules of promotion should not have been changed so as to affect adversely those already on the eligibility list, was rejected on the ground that no such vested right in promotion rules existed in the case of those not yet promoted. The two cases relied upon by the learned counsel for the contesting respondents are distinguishable. In the case of Abdul Ghaffar Wasti v. The Collector of Central Excise and Land Customs 1982 S C M R 888 the decision proceeded on the fact that there was no material change in the system of promotion, examination remaining intact throughout and the qualification acquired at an earlier examination for the purposes of promotion could not be altered or adversely affected simply because subjects of the examination were changed or the weightage to be given to the result thereof had been varied. Besides, in that case, the department had itself recognized and the claim preferred in the Court was that the department should not have recognized it. Even if, no vested right exists, if a principle of policy is given effect to and the principle of policy is such which D has not matured into a vested right, none can say that in the absence of the vested right, the principle of .policy should not be recognized or enforced. In the case of Mukhtar Ahmad and 37 others P L D 1971 S C 846, the Governor's right to frame the rules was recognized and given effect to notwithstanding that it was not formally done. The decision in that case is of little help to the respondents. The learned counsel for the respondents has tried to support the order of the Tribunal on the ground that the amendment in the rules made in 1976 to the prejudice of the respondents was manifestly so unreasonable that it should not have been allowed to continue and the departmental officers and everyone concerned with the administration of the service was 4.ranimous that it was unfair and unreasonable. The fact that it was unreasonable is further established as the rule was repealed or modified and the substituted rule granted the relief which the respondents were seeking. In view of the latest amendment in the rules, it is only the period from 1976 to 1985 which could be said to be governed by such oppressive and unreasonable rule. Finally, it was contended that it was a mala fide discriminatory‑ exercise of statutory power in the name of the Government with a view to confer undeserved advantage on the direct recruits who possessed the qualification of being graduate in Forestry thereby eliminating the certificate holders with longer experience in the department equally eligible for promotion. It is true that the departmental noting and the opinion of the Law Department on which the Service Tribunal heavily relied upon, go to sustain the contention of the learned counsel for the respondents. All the same, the opinion of the Government officers held and noted while examining the exercise of statutory power is neither relevant nor decisive of the question of validity of the exercise of statutory power. Nobody denies to the Governor the power under section 23 of the Civil Servants Act to frame Rules of Service. This power was expressly invoked for framing the rules. The rule framed did not,, as already shown, affect any vested right of the respondents. In the' absence of impairment of vested right, it would be within the exclusive competence of the Governor to determine the terms and conditions of the service. It cannot be said that a rule which grants weights. ge to academic qualifications against experience is unreasonable and harsh With the increasing emphasis on specialization and improved techniques and knowledge, .the academic qualifications may be granted greater weightage than the actual experience on the job without such', qualifications. There was, therefore, nothing unreasonable or manifestly oppressive. It cannot be said that the exercise of power was mala fide where the power was possessed and has been exercised reasonably and on relevant considerations. There is now perceptible greater emphasis visibly shown in the framing of rules to academic qualifications than to on‑the‑job experience without such specialized qualifications particularly where promotion to higher post is involved. In the circumstances, none of the grounds taken up by the respondents should have prevailed before the Service Tribunal for avoiding the amendment in the rules which were competently made. All the appeals are, therefore, allowed, the judgment of the Service Tribunal is set aside and the appeal by respondents 3 to 5 before the Service Tribunal is dismissed. We have not taken note of preliminary objection taken by the appellants to the competence of the appeal before the Service Tribunal on the ground that the representation required under the law was either not filed or filed very late because in any case we were going to examine the merits of the adjudication. No order is made as regards costs. M.B.A./M‑316/S????????????????????????????????????????????????????????????? Appeals allowed.