1989 PLP (C (PLC(CS))

This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, challenges the Punjab Labour Department Service Rules, 1987, in so far it relate to the promotion of the Senior Clerks (BS-7) to the post of Labour Inspector (BS-9).

2. Briefly, the facts are that the defunct Government of West Pakistan framed Rules, called the West Pakistan Labour Welfare Subordinate Service Rules, 1909 (hereinafter called the previous Rules), whereby the Senior Clerks were eligible for promotion as Labour Inspectors without any qualification, provided that they have at least five years experience as such and domicile in the region where the vacancy occurs. The minimum qualification for appointment by initial recruitment was F.A./F.Sc. or equivalent qualification from a recognized University or Board. The rules have been superseded by the Punjab Labour Department Service Rules, 1987 (hereinafter called the new Rules). According to item No. 17 of the Schedule to the new Rules, the qualification for the direct appointee for the post of Labour Inspector (BS-9) is F.A./F.Sc. (2nd Division) from a recognised Board/University. Seventy-five percent vacancies are to be filled in by initial recruitment and twenty-five per cent through promotion on the basis of seniority-cum-fitness from amongst Senior Clerks who are Intermediate in the functional unit with at least five years' experience as such.

3. The petitioner, who were Senior Clerks, were eligible for promotion as Labour Inspector irrespective of any educational qualification subject to their holding of at least five years experience under the previous Rules. However, as a result of the new Rules, a Senior Clerk must be Intermediate with five years experience to be eligible for promotion as Labour Inspector.

4. Learned counsel for the petitioners contends that the new Rules cannot be applied retroactively to those persons who were in service prior to the introduction of these Rules in respect of their vested rights for being considered for promotion under the repealed Rules. The petitioners had acquired a vested right for being considered for promotion after attaining five years experience as Senior Clerks under the previous Rules and that vested right cannot be taken away by way of the new Rules. Learned counsel argued that the principle of repeal would be applicable and the right and privilege acquired under the repealed Rules are not affected by the repealing Rules.

5. The contention has no force. The petitioners have no vested right to be promoted on the basis of the Rules which no longer hold the field. The Governor, in the exercise of rule making powers under section 23 of the Punjab Civil Servants Act, 1974, is competent to amend any rule which in his opinion appears to be necessary or expedient. In the instant case, the new Rules have been framed in super-session of the previous Rules to give more importance to academic qualification in the matter of promotion of Senior Clerks to Labour Inspectors than the experience and seniority-cum-fitness simpliciter. This was a legitimate exercise of power to which no exception can be taken.

6. Learned counsel for the petitioner next contended that the new Rules are unreasonable and discriminatory in so far as it relate to the promotion of Senior Clerks to the posts of Labour Inspectors, on the ground that the same academic qualification have been laid down for the promotees as well as the direct recruitees. Learned counsel further argued that in the matter of Assistant Directors, Labour Welfare Officers, Labour Officers, Superintendents and Assistant Head Clerks, no academic qualification is laid down for promotion in their respective cadres under the new Rules but a double standard has been applied to the case of the petitioners by attaching condition of academic qualification as well. The plea is untenable. The post of Labour Inspector is distinct and separate from the other posts mentioned above and, therefore, it is wholly immaterial for the purposes of determining the reasonableness or otherwise of the impugned qualification whether or not any weightage to academic qualification was given for the said jobs. Be that as it may, the controversy stands concluded by the judgment of the Supreme Court in Ch. Muhammad Insha Ullah v. The Chief Conservator of Forests P L D 1988 S C 155, wherein it was held that "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 weightage to academic qualification 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 of the job without such qualifications".

7. Learned counsel for the petitioners tried to distinguish the ratio laid down in Ch. Muhammad Insha Ullah's case (supra) by arguing that in the precedent case, the qualification laid down for the direct recruits was higher and different from that of the promotees and, therefore, the weightage was given to higher qualification against experience in service. In the present case, Mr. Hamid Khan argued that the qualification prescribed for both the direct recruits and the promotees is the same, except that the requirement for the direct recruits is that they should be FA./F.Sc. (2nd Division), whereas requirement for promotees is seniority-cum-fitness from amongst senior clerks, who are Intermediate (regardless of any division) in the functional unit with at least five years service as such.

8. The argument raised by the learned counsel turns on the meaning of the word "qualification". In Black's Law Dictionary, 5th Edition (1979), it is defined as follows:-- "The possession by an individual of the qualities, properties or circumstances, natural or adventitious, which are inherently or legally necessary to render him eligible to fill an office to perform a public duty or function." The word "qualification" given in Jowitt's Dictionary of English runs; "That which makes any person fit to do a certain act."

9. Keeping the above definitions in mind, it would appear that an applicant for initial appointment is eligible only if he is a second divisioner F.A./F.Sc. To put it differently, he is not fit to he considered unless he is second divisioner in F.A./F.Sc. whereas no such qualification of division has been laid down for the Senior Clerks to be considered for promotion. Viewed in this context, the academic qualification prescribed for the promotec is inferior to that prescribed for the direct recruit. For the purposes of the new Rules, to make oneself fit to be considered for promotion, he is to be a second divisioner in F.A./F.Sc. This is one of the qualifications precedent laid down for promotion to which no exception can be taken.

10. Reference may also be made to section 8 of the Punjab Civil Servants Act, 1974 (hereinafter called the Act), which provides that a civil servant shall be eligible for promotion in any higher grade of the service or the cadre to which he belongs if he possesses such minimum qualification as may be prescribed under the Rules. In the instant case, the new Rules prescribe the qualification for promotion to the post of Labour Inspector, which were considered necessary by the competent authority in public interest. The Act regulates the appointment to and the terms and conditions of service in respect of the services of the Province of Punjab. Under section 4 ibid, the appointments to civil posts and services are made on the condition that these will be governed by such rules as may be issued from time to time by the Governor or by a person authorised by him in that behalf. The new Rules are intra vires of the Act.

11. The petitioners were rightly not considered for promotion as Labour Inspectors as they did not fulfil the prescribed academic qualification. It may also be pointed out that out of the total strength of 125 Senior Clerks, thirty-six were F.A. while the remaining 89 were Matriculates. The Departmental Promotion Committee, after considering all the thirty-six eligible candidates filled in the vacancies in May 1988 and December 1988. The order of promotion made in their favour is not open to challenge without impleading them as respondents herein. The petitioners having failed to do so, the writ petition is liable to be dismissed on this score as well.

12. Learned counsel for the petitioners strongly relied on Miss Rifat Parveen v. Selection Committee P L D 1980 Quetta 10 and Jibendra Kishore Achharyya Chowdhury v. The Province of East Pakistan P L D 1957 S C (Pak) 9, to contend that the impugned educational qualification falls within the ambit of unreasonable classification and, therefore, fable to be set aside. There is no cavil with the proposition that the classification of persons or things is not repugnant to the equality doctrine provided the classification is not arbitrary or capricious, is natural and reasonable and bears a fair and substantial relation to the object of the legislation. It is, however, not for the Court to determine what qualifications should and should not be prescribed for promotion to the post of Labour Inspector. This is the function of the Governor in the exercise of his rule-making power, who is entitled to amend the rules in the interest of efficiency of service. In any event, the questions raised in the writ petition essentially relate to prospects of promotion of civil servants which are not justiciable and do not confer any vested right on the petitioner. See Government of West Pakistan v. Fida Muhammad Khan P L D 1960 S C 45, Central Board of Revenue, Government of Pakistan v. Asad Ahmad Khan P L D 1960 S C 81, Province of West Pakistan v. Muhammad Akhtar P L D 1962 S C 428, Manzar 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, Ch. Muhammad Insha Ullah and others v. Chief Conservator of Forests (P & E), Punjab and others P L D 1988 S C 155 and Falak Sher Khan v. Mukhtar Ahmad P L D 1989 S C 262.

13. Before parting with the judgment, it may be observed that the writ petition although relates to the terms and conditions of service, nevertheless, it was admitted to regular hearing because at the relevant time the Service Tribunal was not functioning due to lack of appointment of its Chairman. In view of the above, the writ petition fails and is hereby dismissed with costs. A.A./M-1505/L Petition dismissed.