2013 PLP (C (PLC(CS))

CH. MUHAMMAD YOUNIS, J.

This Intra-Court Appeal has been preferred against the judgment dated 10-3-2011 passed by the learned Single Judge in Chamber whereby the writ petition filed by the respondent was allowed.

2. Briefly stated the facts relevant for the disposal of the instant appeal are that the respondent filed Wit Petition No.2674 of 2010 alleging therein that he was appointed a Deputy Game Warden BS-18 after passing PCS examination and he joined the service on 16-2-1983. He possessed B.Sc. degree with Postgraduate Diploma in Wildlife Management from Tanzania. He was not promoted to BS-19 so he filed a representation before the Secretary Forestry, Wildlife and Fishery Department, Government of Punjab for promotion in BS-19 as per the Punjab Forestry and Wildlife (Wildlife Executive) Service Rules, 1978 as amended vide Notification dated 25-3-2003 but the same was rejected. Later on the amendment was made in the rules vide Notification dated 18-3-2007 which was challenged by the respondent through the writ petition which was accepted by the learned Single Judge vide impugned judgment dated 10-3-2011.

3. Feeling aggrieved of the impugned judgment this appeal has been preferred on the grounds that the learned Single Judge did not appreciate the facts and the case-law on the point; that the writ petition was not maintainable in view of the bar contained in Article 212 of the Constitution as the matter related to the terms and conditions of service; that under section 8(2) of the Punjab Civil Servants Act, 1974 the promotion cannot be claimed by any civil servant as of right and that as per proviso to section 21 of the said Act no representation or appeal lies in matters relating to the determination of fitness of a person to hold a particular post or to be promoted to a higher post.

4. The learned Law Officer argued that as per Schedule-II of the Punjab Government Rules of Business, 1974, the Regulations Wing, S&GAD has been assigned the task of framing/interpretation of service rules notified under the provisions of the Punjab Civil Servants Act, 1974. The Government of the Punjab has also constituted a Service Rules Committee (SRC) to formulate necessary recommendations on the proposals of Administrative Departments for framing/amendments in the service rules. The SRC considers only those proposals which are submitted by the Administrative Departments as per procedure laid down in letter No. SOR-III-1-2/76 dated 29-12-1981. The Rules were amended from time to time strictly following the prescribed procedure, therefore, the same cannot be challenged on any ground whatsoever. Further, the Government has the right to enhance the qualifications and the standards for recruitment in order to maintain efficiency in service. He maintained that the post of Director Wildlife and Parks Punjab (BS-19) is governed by the Punjab Forestry and Wildlife (Wildlife Executive) Service Rules, 1978 read with amendment dated 18-3-2007. Under the rules the following qualification and method for recruitment is prescribed for the said post of Director:

Name of the post with Grade Minimum Qualifica-tion for appointment by initial recruit-ment Method of Recruitment Director Wildlife and Parks Punjab (BS-19) Ph. D in Wildlife or Zoology and 8 years administrative experience in Wildlife Development Research and Conservation; or M.Sc. Wildlife or Zoology (1st Division) and 10 years administrative experience. By selection on merit from amongst the Deputy Director Wildlife with 12 years service in the department in Grade-17 or 7 years service in Grade-18 having M.Sc. Zoology or equivalent qualification; Or If none is available for promotion then by transfer of an officer of BS-19 from S&GAD. A period of three years will be provided to all those Deputy Directors to acquire postgraduate qualification.

5. The learned Law Officer contends that the rules were notified after consideration by the Service Rules Committee with the approval of the competent authority and the Government had vested right to enhance the qualification and standards for recruitment in order to maintain efficiency in service.

6. The learned Law Officer goes on to submit that the impugned judgment passed by the learned Single Judge in Chamber is based on misreading and non-reading of material available on record so the same is not sustainable in the eye of law. In support of his arguments the learned Law Officer referred to PLD 2003 SC 143 (Dr. Muhammad Hussain v. Principal, Ayub Medical College and another, 1990 SCMR 1321 (Government of N.-W.F.P. Health and Social Welfare Department through its Secretary v. Dr. Sheikh Muzaffar Iqbal and others, PLD 1988 SC 155 (Ch. Muhammad Insha Ullah and others v. Chief Conservator of Forests (P&B) Punjab and others PLD 1992 SC 184 (Capt. (Retd.) Abdul Qayyum, Executive Engineer v. Muhammad Iqbal Khokhar and 4 others, 2005 SCMR 695 (Tasleem Jan and others v. Muhammad Zaman and others) and 2009 SCMR 61 (Secretary to Government of the Punjab Health Department, Lahore and others v. Dr. Abida Iqbal and another).

7. The learned counsel for the respondent vehemently opposed the appeal and argued that the Governor was not competent to amend the rules as this amendment was person specific. It was based on mala fides and was made just to deprive the respondent of his legal right of promotion and to promote the junior most Deputy Director Wildlife Agha Ijaz Ibrahim who possessed the required qualification of M.Sc. Zoology. By this amendment all the five senior most Deputy Directors could not be promoted as they possessed only B.Sc. degree. The learned counsel for the respondent contended that there was absolutely no need to disturb the seniority of the respondent and others by amending the rules. The Governor could not amend the rules as the same were neither necessary nor expedient for carrying out the purpose of the Act as required under section 23 of the Punjab Civil Servants Act, 1974. No such amendment could be made to infringe, impair or curtail any statutory rights of the respondent. While referring to Article 240 of the Constitution of the Islamic Republic of Pakistan, 1973 the learned counsel contends that the rules could be amended only by the act of Parliament and the Governor who possessed limited powers under section 23 of the Civil Servants Act was not competent to make any amendment in the rules as the same was also violative of the provisions of the constitution. The learned counsel referred to 2001 SCMR 265 (Zubaida Khatoon v. Tehmina Shaikh), 2010 PLC (C.S.) 725 Lahore (Sameen Asghar v. Federation of Pakistan) 1989 PLC (C.S.) 42 Lahore (Manzoor Hussain v. Province of Punjab) 1980 SCMR 972 (Dr. Ehsan-ul-Haq v. Province of Punjab), 2011 PLC (C.S.) 1130 SC (Tariq Azi-ud-Din and others: In Re; Human Rights Case) 2003 PLC (C.S.) 503 Lahore (M. Zafeer Abbasi v. Government of Pakistan), 2006 PLC (C.S) 564 Karachi (DB) {Khan M. Mutiur Rehman v. Government of Pakistan) 2007 PLC (C.S.) 589 Service Tribunal Sindh (S. Khursheed Hassan Hashmi v. Chief Secretary, Government of Sindh), 1985 PLC (C.S.) 407 Service Tribunal Sindh (Ikramuddin Syed v. Chief Secretary to Government of Sindh), 1982 SCMR 888 (S. Abdul Ghafar Wasti v. The Collector of Central Excise and Land Customs and others), PLD 1997 SC 315 (Hashwani Hotels Limited v. Federation of Pakistan) and 1987 SCMR 1709 (Governor N.-W.F.P. v. Gul Naras Khan) in support of his arguments.

8. We have considered the arguments advanced by the learned Law Officer as well as the learned counsel for the respondent and perused the record.

9. We are of the view that the amendment in the rules was not person specific. A proper procedure was adopted as per Schedule- II of the Punjab Government Rules of Business, 1974. The Regulation Wing (S&GAD) Department was assigned the task of framing/interpretation of service rules. The Government of Punjab had also constituted a Service Rules Committee (SRC) to formulate necessary recommendations on the proposals of the concerned administration Departments for amendment in rules. So after adopting the lawful procedure the rules were amended by the competent authority. The Government has every right to improve and enhance the qualifications and standards for recruitment in order to maintain efficiency in service. It was observed in 2009 SCMR 61 by the apex Court of the country that 'there was no fundamental right of a civil servant with regard to the posting, transfer or promotion.' Similarly in PLD 1988 SC 155 it was observed that 'the Government was entitled to make rules in the interest of efficiency of service.' 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. The rules framed did not affect any vested right of the respondent. In absence of any vested right, it would be within exclusive competence of the Governor to determine the terms and conditions of service. It cannot be said that a rule which grants weightage 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 without such qualifications.

10. It would also be relevant to refer to yet another judgment of the august Supreme Court of Pakistan on the point involved in this case, i.e. PLD 2003 SC 143 wherein it was held that the Government was competent to enhance, alter or amend the prescribed qualification for a particular post. No one can claim a vested right in promotion or in the terms and conditions for the promotion to a higher post. Civil Servant cannot claim vested right in other higher tiers in the hierarchy except for the post which the civil servant holds. Since the respondent has no vested right to be promoted to a higher post he is not competent to challenge the amendment in the rules which was made to enhance the qualification and service for recruitment and promotion so that the efficiency in service is maintained. Admittedly no junior to the respondent had been promoted so there was no question of impairment of any vested right of the respondent. As per seniority list the then Director had to retire on 1-4-2011 whereas the rules were amended in 2007 and a period of three years was provided to all the five Deputy Directors including the respondent to improve their qualification but they failed to do so. The respondent could be promoted to the post of Director if he had improved his qualification so as to possess the degree of M.Sc. Zoology within the prescribed period of three years but instead of improving his qualification he wasted his energy in challenging the amendment in the rules. As regards the case-law referred to above by the learned counsel for the respondent it is not applicable to the present appeal on all fours as the facts and circumstances of the said case-law are quite distinguishable from those of the case in hand.

11. In the light of the above discussion and relying on the case-law referred to above by the learned Law Officer appearing for the appellant we have reached an irresistible conclusion that the impugned judgment appealed against is not sustainable in the eye of law as there was no occasion for the learned Single Judge in Chamber to strike down the amendment in the rules which had been made in accordance with law after fulfilling all the formalities and requirements thereof. So the appeal is accepted and the impugned judgment dated 10-3-2011 is set aside. MH/G-28/L Intra-Court appeal allowed.