2001 PLP (C (PLC(CS))

EJAZ AFZAL KHAN, J.

The petitioner herein has sought to impugn the Notification dated 21-11-1998 whereby direct recruitment for the post of D.S.P. has been introduced by way of amendment in the West Pakistan Deputy Superintendents Police Service Rules, 1964.

2. The learned counsel for the petitioner contended that the appointment of D.S.P., through direct recruitment is not in the interest of public as well as Police Service of the Province firstly because the Inspectors who earnestly and efficiently work in order to earn promotion to the rank of D.S.P. shall get dejected and demoralised because promotion to the higher rank of. D. S. Is. provides them with incentive to work hard and do their job with much greater zeal and zest and secondly because the persons selected through direct recruitment lack experience, expertise arid acquaintance with the requirements of their job which in turn is apt to bring deterioration in the efficacy, efficiency and over all performance of their duties and functions.

3. We have seriously considered the submissions of the learned counsel for the petitioner and weighed their pros and cons and even the repercussion as far as the petitioner in general and police service is particular is concerned. The argument that the amendment in the rules will deprive the petitioner and his colleague in the same rank and adversely affect their right to be promoted has left us unmoved because it is more than settled proposition of law that promotion is not a vested right and the Government has the right to enhance the qualification and the standard for recruitment and promotion in order to maintain the- efficiency in service. In the case of Government of N.-W.F.P. Health and Social Welfare Department through its Secretary v. Dr. Sheikh Muzafar Iqbal and others 1990 SCMR 1321, it was held "that promotion is not a vested right and the Government has the right to enhance the qualification and standard for recruitment and promotion in order to enhance the efficiency in service". So, when the legislature in its wisdom has amended the rules for filling the posts of D.S.P. through direct recruitment, how could we while sitting in judgment on a Constitutional petition, in grand isolation without being apprised about the comparative statistical data as to the efficiency or over all performance of the direct recruits and that of the rankers, substitute our own view for that of the legislature particularly when it has not been convassed before us that the said amendment is mala fide and has been introduced with ulterior motive or is otherwise violative of any of the Constitutional provisions. Apart from this, the question in issue before us is the specific rule, making the petition eligible or ineligible for being considered for promotion or for excluding them from consideration for promotion. This question squarely falls within the exclusive jurisdiction of the Service Tribunal in the light of the dictum given by the Hon'ble Supreme Court in the case of Imam Bakhsh and 4 others v. Deputy Commissioner, Layyah and 16 others 1992 SCMR

365. Even in the case of I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division Islamabad and others 1991 SCMR 1041, his Lordship Mr. Justice Ajmal Mian, as he then was. after considering the entire case-law on the point was pleased to hold as under-- "

10. From the above cited cases, it is evident that it has been consistently held inter alia by this Court that a civil servant if is aggrieved by a final order, whether original or appellate, passed by a departmental authority in respect of his terms and conditions, his remedy if any, is by way of an appeal before the Service Tribunal even where the case involves vires of a particular service Rule or a notification or the question, whether an accused civil servant can claim the right to be represented by a counsel before the Enquiry Officer. We are inclined to hold that if a statutory rule or a notification adversely affects the terms and conditions of a civil servant, the same can be treated as an order in terms of subsection (1) of section 4 of the Act in order to file an appeal before the Service Tribunal."

5. From the above paragraph, it is quite clear that even the vires of law or rules effecting terms and conditions can be questioned before the Service Tribunal.

6. As a sequel to what has been discussed above, we find no force in this petition and thus, dismiss the same in limine. H.B.T./248/P Petition dismissed.