1988 PLP (C (PLC(CS))

IHSANUL HAQ CHAUDHRY (CHAIRMAN).--This is an appeal by Muhammad Ashraf Mirza, Acting Labour Officer, Directorate of Labour Welfare, Punjab, Lahore, at present posted at Gujrat as Labour Officer since 16-2-1986 (on current charge basis). The brief relevant facts for discussion of this appeal are that the appellant was promoted as Labour Inspector in Rawalpindi Region against 25$ promotion quota as prescribed under the West Pakistan Labour Welfare (Subordinate Service) Rules, 1969. It is submitted that after disintegration of One Unit, the Directorate of Labour Welfare was divided into zones/regions for the purposes of recruitment and promotion. There were two zones for the province of Punjab and there were 8 regions as given here under:- (1) Lahore Region. (2) Gujranwala Region. (3) Rawalpindi Region. (4) Faisalabad Region. (5) Sargodha Region. (6) Multan Region. (7) Bahawalpur Region. (8) Dera Ghazi Khan Region. It is claimed that the recruitment was to be made on the basis of domicile in the region. The grievance of the appellant is that in the year 1984 there occurred a vacancy of Assistant Labour Officer in Rawalpindi Region and the appellant being senior most Labour Inspector was eligible and qualified under the Rules 1969 to be appointed as such but he was neither considered for promotion nor pro-noted. Thereafter the seniority list was circulated on 30-9-1984 on the regional basis and the name of the appellant appeared at serial No.2. The appellant goes on complaining that in the year 1985 some posts of Labour Officers fell vacant and a meeting of Departmental Promotion Committee was held on 14-3-1985 for filling these vacancies but the matter was illegally deferred on the pretext that there was some conflict between the provisions of West Pakistan Labour Welfare (Class-II) Rules, 1968 with Rule 14 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. It is pleaded that promotions under the 1968 Rules were to be made as under:- (i) From Assistant Labour Officers in the Region; (ii) With at least ten years' service; (iii) If Assistant Labour Officer was not available, then from Labour Inspectors with at least 10 years' service.

2. There was a reference to the SGA&I Department and ultimate outcome of this reference was that the promotions were to be made on the basis of new seniority list prepared on the provincial basis and not on the regional basis. This opinion was given by the Law Department and it was further opined that Punjab Labour Welfare Directorate was one functional unit and the regions were not functional units. It was in this background, it is claimed, that Punjab Labour Department Service Rules, 1987, were promulgated on 16-4-1987 and the following rules were repealed:- (a) The West Pakistan Labour Welfare Service (Class I) Rules, 1969; (b) The West Pakistan Labour Welfare Service (Class-II) Rules, 1968; (c) The West Pakistan Labour Welfare Subordinate Service Rules, 1969; (d) The West Pakistan Labour Welfare Department, Ministerial Service (Headquarters) Rules, 1965, (e) The West Pakistan Labour Welfare Department, Ministerial Service (Regional) Rules, 1962, (f) The Punjab Labour Department (Weights and Measures) Service Rules, 1978.

3. It is submitted that according to the provisional seniority list prepared on provincial basis in the light of the opinion of the Law Department and deliberations of the SGA&I Department, the name of the appellant appeared at serial No.29. Now the grievance of the appellant is that his terms and conditions have been changed to his detriment. The appeal was filed on 23-9-1987. It was admitted to regular hearing on 28-9-1987 and since the interim order was issued, therefore, the appeal was given preference over other matters. The respondents have contested the same.

4. We have heard the learned Advocate for the appellants as well as learned District Attorney and gone through the file as well as rules. The learned Counsel for the appellant in support of the appeal has raised the following points:- (i) Firstly, it is argued that previous rules were saved by Article 241 of the Constitution of Islamic Republic of Pakistan, 1973; (ii) Secondly, the legislature has intentionally given the Government powers to amend these rules and withhold the power to repeal the same; (iii) Thirdly, that the rules could be amended only by an act of legislature and not by the executive authority. (iv) Fourthly, it was argued that the protection to the reserved posts to safeguard the underdeveloped areas and the present rules promulgated are in direct clash with Article 22. (v) Fifthly, that the repeal of the old rules and promulgation of the new rules amounts to discrimination in terms of Article 25 of the Constitution as the other Departments have not touched these matters. It is argued that equal protection is available to all the civil servants. (vi) Sixthly, that the definition of functional unit as given in rule 2(b) pre-supposes regions, units and excludes interpretation that entire province is one functional unit, and (vii) Lastly, that the appellant was eligible for appointment as Assistant Labour Officer in the year 1986, therefore, the right could not be taken away by the introduction of new rules. The right to promotion had matured, before introduction of the new rules and it will remain intact. It is argued that the rules cannot be made applicable with retrospective effect. In this behalf reliance was placed on the cases reported as 1985 PLC 345 and 407 and 1987 P L C (C.S.)

531. Alternatively it is argued that as per section 4 of the General Clauses Act right of promotion which has accrued to the appellant cannot be taken away by the new rules.

5. On the other hand the learned District Attorney has argued that future promotion is not a vetted right, which can be enforced through this Tribunal as it is not a part of terms and conditions of service. It is submitted that future promotions are to be governed by the law and rules in force at the time of actual promotion and not by the repealed rules. In support of these propositions learned District Attorney has referred to proviso (b) to section 4(1) of the Punjab Service Tribunals Act, 1974 and case of Fazal Elahi Ejaz as P L D 1982 S C 82.

6. The learned counsel for the appellant in support of his above-noted points submitted that the executive had no authority to repeal the rules of 1969 in view of the clear provisions of Article 241, which reads as under:- "Until the appropriate Legislature makes a law under Article 240, all rules and orders in force immediately before the commencing day shall, so far as consistent with the provisions of the Constitution continue in force and may be amended from time to time by the Federal Government or, as the case may be, the Provincial Government." The Provincial Government, therefore, is vested with the powers only to amend the rules from time to time. In this behalf the learned counsel for the appellant referred to cases "Federation of Pakistani v. United Sugar Mills, Karachi", reported as PLD 1977 S C 397 and "Brig. (Retd.) F.B. Ali and another v. The State "reported as P L D 1975 S C 506".

7. It is argued that conversely the rules, which held the field on the eve of promulgation of Punjab Civil Servants Act, 1974 will be deemed to have been framed under section 23 of the Punjab Civil Servants Act, 1974. The argument was that since there is no provision for repeal, therefore, the old rules could not have been repealed and new rules enacted. The argument is too superficial and without any merit, as the power to enact includes power to repeal. We can safely refer to section 21 of General Clauses Act, 1897.

8. The second argument is that the rules cannot be applied retrospectively. The argument in nutshell is that since the vacancy had occurred before the promulgation of new rules and the appellant was qualified and as such entitled to be promoted as Labour Officer in the year 1985, therefore, his case should have been decided in accordance with the rules of 1969. The learned counsel in this behalf has placed reliance upon the following cases:- (i) Allah Rakhio v. Secretary to Government of Sind and 16 others, reported as 1985 P L C (C. S.) 345; (ii) Ikram-ud-Din Syed and three others v. Chief Secretary to Government of Sind and 29 others reported as 1985 P L C (C.S.) 407. (iii) M. Ramiz-ul-Haq v. Secretary, Establishment Division and two others reported as 1987 P L C (C.S.) 531 wherein it was held that: - "All Rules made under the Civil Servants Act or the Civil Servants Ordinance have to be construed with prospective and not with retrospective operation. All those Rules which affect the former officers of the CSP have to be applied for the situations existing after the enactment of the Civil Servants Ordinance, 1973, and the rules made thereunder. The seniority of the CSP Officers in APUG could not, therefore, be distorted. Any seniority to which a Member of the Cadre was entitled before the constitution of Secretariat Group, could not be affected by the provisions of section 8(4) of the Civil Servants Act, 1973. "

9. It was further argued in this behalf that the rights, privileges, obligations or liabilities acquired, accrued or incurred under any enactment so repealed, shall remain intact. In this behalf reference gas made to case of Mian Rafi-v d-Din and 6 others v. Chief Settlement and Rehabilitation Commissioner and 2 others reported as P L D 1971 S C 252 and Jaleesa Begum v. Iqbal Ahmad reported as P L D 1982 S C 396 and M/s. Koh-i-Noor Mercantile Corporation v. Hazera Khatun and another reported as P L D 1963 Dacca

238. In all these cases it was held that the rights of the parties are to be decided in accordance with the law in force at the relevant time and not in accordance with the subsequently enactments. The developments in the law have to be ignored unless new statute clearly vary such rights. The other ruling reported as P L D 1983 Dacca 375 is not relevant to the issue.

10. The next argument of the learned Counsel for the appellant was that in order to secure adequate representation in the services, posts may be reserved for persons belonging to any class or area, it is argued that this guarantee was embodied in Article 27 of the Constitution of Islamic Republic of Pakistan 1973 and in pursuance of the same rule 20 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 was amended on 3-6-1986. The argument in nutshell was that since the Constitution and Appointment B Rules have preserved the regions/zones, therefore, any rules doing away with the regions/zones are ultra vires. The argument is misconceived and pre-supposes many things. The case of the appellant is not covered by any of the qualifying words used in Article 27 of the Constitution, which reads as under:- 27. (1) No citizen otherwise qualified for appointment in the service of Pakistan shall be discriminated against in respect of any such appointment on the ground only of race, religion, caste, sex, residence or place of birth: Provided that, for a period not exceeding twenty years from the commencing day, posts may be reserved for persons belonging to any class or area to secure their adequate representation in the service of Pakistan: Provided further, in the interest of the said service, specified posts or services may be reserved for members of either sex if such posts or services entail the performance of duties and functions which cannot be adequately performed by members of the other sex. (2) Nothing in clause (1) shall prevent any Provincial Government, or any local or other authority in a Province, from prescribing, in relation to any post or class of service under that Government or authority, conditions as to residence in the Province, for a period not exceeding three years, prior to appointment under that Government or authority."

11. It is clear from the text of the said article that posts can be reserved for persons belonging to any class or area. It is not the case of the appellant that the post was reserved in view of the provisions of Article 27 or Rule 20 of the Appointment Rules. The regions/zones were created by the Government for smooth administration and the Government can do away with the same, of course, subject to provisions of laws. The reservation of the seats will be for the candidates belonging to a particular area, profession, trade, class or community. The argument is clearly without any merit.

12. The argument is that to convert the Department into one functional unit is impracticable and since other Departments are preserving the regions, therefore, the new rules enacted by the respondents amount to discrimination in terms of Article 25 of the Constitution of Islamic Republic of Pakistan and are thus ultra vires. The learned Counsel for the appellant in this behalf has relied on case of Brig. (Retd.) F.B. Ali reported as P L D 1975 S C

506. The case is not relevant because the legislature never meant protection in the manner being interpreted by the learned Counsel for the appellant Moreover we have been informed that many Departments have changed over system from regions or zones. This contention has not been controverted, therefore, argument of the learned counsel is factually incorrect.

13. On the' other hand the learned D.A. has argued that the present rules have been enacted under section 23 of the Punjab Civil Servants Act. 1974. The same are valid and Article 241 of the Constitution does not come in the way. It is argued that this Tribunal has no jurisdiction to determine the vires of the rules.

14. We will first of all take up the objection as to the jurisdiction of the Tribunal. In this behalf learned Counsel for the appellant has referred to the following cases:- (i) Province of Punjab v. Syed Bashir Ahmad P L D 1982 S C 28. (ii) Iqan Ahmad Khurrum and others v. Government of Pakistan PLD 1979 Kar.

610. This judgment was upheld by Honourable SC and the decision is reported as P L D 1980 S C 153. (iii) Dr. Raja Manzoor Elahi v. N.-W.F. Province P L D 1980 Pesh. 1981. (iv) Khalil-ur-Rehman and others v. Government of Pakistan and others P L D 1981 Kar. 750.

15. We have considered the arguments in the light of the cases relied and referred to by the learned counsel for the appellants and find that the objection is without any merit. In this behalf it is relevant to refer to section 4 of the Punjab Service Tribunals Act, 1974 as well as preamble of the Act and Article 212 of the Constitution, which read as under:- Preamble Whereas it is expedient to provide for the establishment of Service Tribunals to exercise exclusive jurisdiction regarding the matters relating to the terms and conditions of service in respect of the services of the Province of the Punjab and for matters connected therewith or ancilliary thereto:- Section

4. Appeals to Tribunals (1) 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 the communication o such order to him or within six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal Provided that ...... Article 212 (1) Notwithstanding anything hereinbefore contained, the appropriate Legislature may by Act (provide for the establishment of) one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of: (a) matters relating to the terms and conditions of persons (who are or have been) in the service of Pakistan, including disciplinary matters; . . . . . .

16. The grievance of the appellant in this appeal is that his terms and conditions have been altered to his disadvantage by the respondents. This Tribunal is the only Court to adjudicate the matter, therefore, we can go into the vires of the new rules. We are fortified in our view by the decision of Honourable Supreme Court in cases Province of Punjab v. Syed Bashir Ahmad Bukhari and Iqan Ahmad Khurrum and others reported as P L D 1979 Kar.

610. The relevant portion of the judgment reads as under:- "5. (a) Reverting to the third contention that as the instant petitions involve determination of the vires of the rules, the same are not competent as the Service Tribunal has no power to go into the vires of the statutory rules, it may be observed that in our view the Service Tribunal is competent to examine the vires of the rules or order while adjudicating upon the question as to whether an impugned order affecting the terms and conditions of an aggrieved civil servant is legal or not. Needless to mention that the Service Tribunals have been constituted with the object of providing a forum with the exclusive jurisdiction in the service matters relating to the terms and conditions of the civil servants, subject to an appeal to the Supreme Court. If we were to hold that the Service Tribunal has no jurisdiction to go into the vires of the service rules or orders, it will frustrate the object for which the Service Tribunals have been constituted, as in every case, it will be open to an aggrieved civil servant to challenge the vires of a rule, or departmental instructions with the object to frustrate the provisions of the Act. (b) The above question has been the subject of the judicial review. In this behalf, it may be pertinent to refer to the case of Muhammad Hashim Khan and others v. The Province of Baluchistan and others (1) and the aforesaid Lahore case of Fazal Elahi Ejaz and 22 others v. Government of Punjab and 13 others. In the former case one of us was a party to the judgment. It was also urged that the vires of a notification could not be gone into by the Service Tribunal but the learned Judges of the Division Bench (Fakhruddin and Lodhi, JJ), while repelling the above contention were pleased to observe as follows: - "In so far as the above decision is concerned it does not support the learned counsel's contention that the Tribunal has expressed its inability to examine a question of vires of a notification or law for the Tribunal refrained from examining certain departmental orders as being beyond the jurisdiction on the ground that they had been framed much earlier than 1st of July 1969 (1961 is a misprint), in view of clause (c) of subsection (1) of section 4 of the Service Tribunals Act LXY. of 1973. We are unable to see any such limitation in the powers of the Tribunal while hearing the appeals. On the other hand the Tribunal under section 5 of the said Act is deemed to be civil Court for the purpose of deciding any appeal before it with all the powers under the Code of Civil Procedure. As any other civil Court the Tribunal to our mind will have the jurisdiction to examine whether or not a law is void by reason of its conflict with the Departmental Rights or is ultra vires so that the order made is mala fide. We are further inclined to think that the conferment upon the Tribunal the exclusive jurisdiction to adjudicate upon these matters cannot be given any less effect even if it were to be assumed, though as aforesaid there is no warrant for such an assumption that one or the other ground of challenge may not be available to the petitioners before the Tribunal". (c) In the aforesaid second case Aftab Hussain, J. sitting with Sardar lqbal, C.J. also rejected the above contention and held that the vires of the rules can be gone into by a Service Tribunal while adjudicating upon the matter involving the terms and conditions of a civil servant .. It was finally concluded:- "We do not see any compelling reason to take a different view than what has been taken in the above two cases ." The argument of the learned D.A. that the new rules have been framed under section 23 of the Punjab Civil Servants Act, 1974 as is clear from the preamble of the rules. The Government definitely has power to enact rules but this power will be subject to any restriction, curb or qualification provided for in the Constitution. The Constitution being supreme and. fountainhead of all laws, therefore, must have overriding effect.

17. The Tribunal is Court of exclusive jurisdiction in respect of matters relating to terms and conditions of Civil Servants. This has clearly been held by Honourable Supreme Court of Pakistan in case of Islamic Republic of Pakistan v. Dr. Safdar Mahmood reported as PLD 1983 S. C.

100. The relevant portion reads as under:- "In this connection it may also be noted that the Service Tribunal was to exercise exclusive jurisdiction in respect of matters relating to the terms and conditions of persons, who are or have been in the service of Pakistan (including disciplinary matters vide sub-Article (1) of Article 212 of the Constitution); and as soon as it .vas established no other Court could grant an injunction make any order or entertain any proceedings in respect of any matter, to which its jurisdiction extended and all proceedings in respect of any such matter, which was pending before any other Court even the High Court, immediately before the establishment of the Tribunal was to abate (vide sub-Article (2) of Article 212 ibid). Thus, under the new dispensation, the Service Tribunal was made the sole arbiter of all disputes relevant to the terms and conditions of civil servants; the jurisdiction of ordinary Courts was excluded altogether in these matters and even matters pending before them abated as soon as the Tribunal was established, the parties being left to prefer an appeal before the Service Tribunal in respect of such matters, within 90 days of the establishment of 'the appropriate Tribunal. The members of the Tribunal were to be appointed by the President and were expected to be experienced administrators, to be presided over by a Judge or a person qualified to be a judge of the High Court and the orders passed by it were to be final, binding both in the Civil Servants and the Departmental Authority. These provisions leave no doubt that disputes relating to the service rights of civil servants was henceforth being made the exclusive concern of the Service Tribunals. The only limitation to their otherwise complete power in all such matters was that a right to this court to grant leave to a eat in cases wherein it was satisfied tat a substantial question of law of public importance was involve was a lowed by sub-Article (3) of Article 212 of the Constitution."

18. We, therefore, conclude that this Tribunal is fully competent to go into the vires of rules affecting the terms and conditions of civil servants.

19. The points raised by the learned Counsel for the appellant for the sake of clarity, brevity and convenience can be summed up as under:- (i) Firstly, the meanings and scope of Article 241; and (ii) Secondly, the vires of Rules of 1987; nature and extent of right of promotion and the rules applicable in the present case.

20. Now we proceed to deal with the first point which will cover the points 1 to 3 raised by the learned Counsel for the appellant in support of this appeal.

21. We have given our anxious considerations to the arguments which, prima facie, sound very strong and formidable but after going through the Article 241 no doubt is left in our minds that these arguments are misconceived. It is relevant and necessary, before proceeding any further, to refer to the constitutional developments in the country in the field of civil service in order to properly and correctly appreciate the scope and background of the Articles 240 and 241.

22. The Constitutional development in the services set up started with Government of India Act 1935, which was adopted on winning freedom on 14-8-1947. This was followed by the Constitutions of 1956, 1962 and 1973 respectively. The Government of India Act made following provisions with regard to Services set up in the Sub-Continent:- (A) (1) Section 240 provided that the civil servant was to hold office during his Majesty's pleasure; was not to be dismissed by an authority subordinate to him by which he was appointed and without being provided reasonable opportunity of showing cause against action proposed to be taken; (2) Section 243 provided that the conditions of service of the subordinate ranks of Police may be determined by special laws; (3) Section 254 provided that appointments and postings of District Judges were to be made by the Governor in consultation with High Court; (4) Section 255 provided that the Governor in consultation with Public Service Commission and High Court was to make rules for subordinate judiciary; and (5) Sections 264 to 266 provided for constitution and functions of Public Service Commission. (B) CONSTITUTION OF 1956 Important provisions are as under:- (1) Article 179 provided that only citizens of Pakistan were eligible to hold office.. However, President /Governor could authorise temporary appointments of foreigners. The appointments and conditions were to be regulated by Act framed by appropriate Legislatures; (2) Article 180 provided that the civil servants were to hold office during the pleasure of President/ Governor; (3) Article 181 provided that no one was to be dismissed, removed or, reduced in rank by an authority subordinate to the authority by which he was appointed and until he was given reasonable opportunity of showing cause against action proposed; (4) Article 182 provides that the appointments unless otherwise provided were to be made by the President/ Governor and conditions of service were to be regulated by rules to be framed by appropriate Government with the restriction that the conditions were not to be raised to the disadvantage of concerned civil servant and at least one appeal was to be provided for, against the order of punishment; (5) Article 183 provides that Parliament had the exclusive power to make laws in respect of all Pakistan Service and no Member was to be transferred to Province except by orders of President passed in consultation with the concerned Government; and (6) Articles 184 to 188 deal with constitution and functions of the Public Service Commission. (C) CONSTITUTION OF 1962 (i) Article 174 provided that the appointments, terms and conditions of civil service were to be regulated by law. (ii) Article 175 maintained the provision that only citizens of Pakistan were to hold office with the exception that foreigners already in service were allowed to continue. (iii) Article 176 provided that the office was to be held by the civil servant during the pleasure of President /Governor and terms and conditions were not to be varied to their disadvantage and there was at least right of one appeal against an order of punishment. (iv) Article 174 authorised President/ Governor to make rules and regulate temporary appointments. (v) Article 180-189 provides for constitution and functions of P. S. C. Federal and Provincial levels.

23. The Government was empowered in consultation with the P.S.C. to retire, in public interest, any civil servant below 55 years of age, who had completed 25 years of service qualifying for pension. This provision was introduced in the 4th Amendment Act 1965.

24. It will be seen from the above reference to different constitutional provisions that broad layout of the services in all these constitutional provisions remained same. It was Constitution of Islamic Republic of Pakistan, 1973 which for the first time brought change in the services set up. In the year 1969 the Government enacted West Pakistan Civil Servants (Appellate) Tribunal Ordinance with the jurisdiction to hear the seniority matters alone and after dissolution of ONE UNIT Punjab Government enacted Punjab Civil Servants (Appellate) Tribunal Ordinance, 1970. This experience was successful, therefore, the National Assembly while framing the Constitution of 1973 introduced the changes and revised set up in the form of Article 212 which provided that the appropriate legislature, by an Act shall establish Tribunals to have exclusive jurisdiction in respect of matters relating to terms and conditions of civil servants. This change in the services set up was taken note of by the Honourable Supreme Court in the case of Dr. Safdar Mahmood. The relevant portion reads as under:- "It will be recalled that certain important terms and conditions of service of employees in the civil services of the State were provided for and guaranteed in the Government of India Act, 1935 and in successive constitutional instruments following the Act of 1935 right upto the Interim Constitution of Pakistan of 1972. The civil servants took full advantage of this right and frequently moved the Courts, especially the High Courts in the country after the conferment of the writ jurisdiction on them in 1954 for the redress of any supposed infraction of this guarantee. The law reports are replete with decisions on this question and testify to the extensive use made of the writ jurisdiction of the High Courts. As, not infrequently the orders impugned before the High Courts were set aside, the executive embarrassed by this inroad into a domain which used to be exclusively their preserve, felt that the guarantee in respect of the rights of the civil servants given in the constitution itself should be withdrawn, that interference by the High Courts in the affairs of the services should be excluded and that disputes concerning their terms and conditions should dealt with by the Administrative or Service Tribunals much in the same manner as such matters are dealt with in France try the Administrative Courts in the Council State, where ordinary Courts of law do not have any jurisdiction to entertain matters decided by the executive authorities or the Administrative Departments. To achieve these objects two completely new provisions were enacted in the Constitution of 1973, the likes of which were not found in any previous constitutional instrument. The first of these was Article 212, which permitted the appropriate Legislature to establish Administrative Courts or Tribunals with exclusive jurisdiction in certain matters, while the second, namely, Article 240, whereby the terms and conditions of persons in the service of Pakistan were to be determined and the safeguards, if any, therefore were to be provided by or under an Act of Parliament instead of, as hithertofore, by the Constitution itself. Consequently, the Civil Servants Act of 1973 was enacted on 26-9-1973 to regulate the appointments to and provide for the terms and conditions of persons in the service of Pakistan. Contemporaneously, the Service Tribunals Act of 1973 to provide for the establishment of Service Tribunals to exercise jurisdiction in respect of matters relating to the terms and conditions of service of all civil servants was enacted on 29-9-1973."

25. There was no provision relating to the appointments, appointing authority, disciplinary proceedings and instead it was provided by Article 240 that the terms and conditions of the services were to be determined by the laws to be passed by the appropriate legislature. While Article 241, as we have already referred to, provides that the existing rules were to continue so far as the same were not inconsistent with the Constitution while Article 242 vested power with appropriate legislature to enact laws for setting up of Punjab Service Tribunal. The Articles 240 and 241 are relevant for our purposes and the same read as under:-

240. Subject to the Constitution, the appointments to and the conditions of service to persons in the service of Pakistan shall be determined: (a) in the case of the services of the Federation, posts in connection with the affairs of the Federation and All-Pakistan Services, by or under Act of (Majlis-e-Shoora (Parliament); and (b) in the case of the services of a Province and posts in connection with the affairs of a Province, by or under Act of the Provincial Assembly. Explanation: In this Article, "All-Pakistan Service" means a service common to the Federation and the Provinces, which was in existence immediately before the commencing day or which may be created by Act of (Majlis-e-Shoora) Parliament.

241. Until the appropriate Legislature makes a law under Article 240, all rules and orders in force immediately before the commencing day shall, so far as consistent with the provisions of the Constitution, continued in force. However, the same could have been amended from time to time by the Federal Government or the Provincial Government, as the case may be.

26. When we analyse the whole matter, then with this background it is clear that Article 241 was enacted to fill in the vacuum or bridge the gap between the promulgation of Constitution of Islamic Republic of Pakistan, 1973 and making of the necessary laws by proper legislature in respect of civil servants in terms of Article

240. The 1973 Constitution came into force on 12-4-1973 while the Punjab Civil Servants Act (VIII of 1974) was made applicable on 4-6-1974. The Article 241 meant to cover the transitory period and also to enable the Government to enact necessary Acts as required under Article 240 to deal with the Civil Services. The moment Punjab evil Servants Act 1974 was enacted, the purpose of Article 241 was over. It is clear from the opening words of the Article that the existing rules and orders in force immediately before the commencement date of Constitution were saved until the appropriate legislature made law under Article

240. The Act envisaged by the Articles 240 and 241 was Punjab Civil Servants Act and as far as we are concerned this Act makes a clear provision for making of rules. The relevant section is 23, which reads as 23. (1) The Governor, or any person authorised in 'his behalf may mane such rules as appear to him to be necessary or expedient for carrying out the purposes of this Act. (2) Any rules, orders or instructions in respect of an terms and conditions of service of civil servants duly made or issued by an authority competent to make them and in force immediately before the commencement of this Act shall, in so far as such rules, orders or instructions are not inconsistent with the provisions of this Act, be deemed to be rules made under this Act. , The new rules have been framed under this section. Therefore, legally the same are valid and binding. The future terms and conditions of the Civil Servants are to be governed by the rules framed under section 23 of the Punjab Civil Servants Act, 1974.

27. It has to be borne in mind in this behalf that now there is nothing in the Constitution of 1973 as constitutional guarantees to the civil servants. Their conditions of service are to be governed in accordance with the Punjab Civil Servants Act and rules framed therein because constitution has made it obligatory on the Provincial Government to enact laws for:- (i) making provisions for the terms and conditions of civil servants; (ii) to provide for establishment of Services Tribunals for adjudication of matters pertaining to terms and conditions of civil servants; and (iii) to provide for constitution and prescribe functions of Punjab Service Commission.

28. We have looked up the law journals on the point but could not get hold of any precedent. We may refer to case of Afzal Hussain Syed v. Punjab Government etc. reported as P L D 1980 Lah.

697. The relevant portion reads as under:- "On 14th June, 1974, the legislature enacted the Punjab Civil Servants Act 1974 under the above constitutional provisions-In view of Article 241, all the service rules give way to it and no guarantees except the terms and conditions as given in the above Act were available to a civil servant." This is what is provided in the present Constitution. The rationale behind switch over to new system may be that the legislature felt that in case of constitutional guarantees, efficiency and purity cannot be maintained in the services on the one hand and on the other hand civil servants have no specific forum for speedy, efficacious and positive remedy for redress of their grievances. The Punjab Service Tribunals Act 1974 was enacted to achieve this object.

29. The result is that we do not find any force in the arguments of the learned Counsel for the appellant and hold that the Punjab Labour Department Service Rules, 1987 are valid piece of legislation and the future terms and conditions of the personnel serving in the Labour Department are to be governed by these rules and not by the rules of 1969 which after having been repealed, are a dead letter and cannot be pressed into service.

30. The question arises whether the Government has infringed any provisions of Article 241 while framing the Rules 1987 or not? We have already held that the rules are validly framed and there is no infringement or violation of. any provision of Article 241.

31. The decision of the next question that the promotion of the appellant is governed by rules of 1969 and the same cannot be changed to his disadvantage and the reference to the decided cases that the laws cannot be made applicable with retrospective effect until so provided. The arguments of the learned counsel for the appellant are misconceived and devoid of any force. In view of the legal position that the right of promotion is not a vested right the Honourable Supreme Court has consistently held that right of promotion is not a vested right, therefore, to be governed by the latest law or rules in force at the time of actual promotion.

32. This Tribunal has already dealt with this question in case of Mst. Akhtar Begum v. The Government of the Punjab and the relevant portion reads as under:- "Now taking up the issue of rules whether the same are to be prospective or retrospective, it had been clearly held by the Hon'ble Supreme Court of Pakistan while referring the judgment of this Tribunal in the case of Abdul Wahid Khan and relied by the learned counsel for the appellant that the rules relevant, applicable and which will govern the promotion will be the latest rules. The relevant portion of the judgment of the Supreme Court reads as under:- "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 ensures. 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, Government of Pakistan v. Asad Ahmad Khan, it was held that the 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 other portion of the judgment of Supreme Court having direct bearing on the decision of the present appeal reads as under:- "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." Muhammad Insha Ullah and others v. Chief Conservator of Forests (P&E) Punjab and others P L D 1988 S C 155.

33. The result is that we find no merit in the appeal and dismiss the same. However, there is no order as to cost as difficult questions of law were involved. S. Q. /190/Sr.P Appeal dismissed.