1989 PLP (C (PLC(CS))

The appeal was contested by respondents 1 to

3. They alleged that it is incompetent and beyond time, that in 1968 there was no Grade-17. However, he was recruited as a Research Assistant (Non-gazetted) on 15-6-1964. The earlier rules were superseded by the impugned rules and according to the new rules minimum qualifications prescribed for recruitment to the post of Botanist (B-18) now re-designated as Senior Research Officer (B-18) are as under: - I. Method of recruitment (i) Fifty per cent by initial recruitment, provided that if no suitable candidate is available then to extent of non-availability, by promotion, and (ii) the remaining vacancies shall be filled by promotion through selection on merit from amongst Research Officers. II. Minimum qualifications prescribed for promotion: (a) Master's degree in Agriculture, (b) 8 years experience on responsible research jobs, and (c) publication of at least 2 research papers on problems encountered in, or relevant to the conditions in N.-W.F.P. and of such a quality which have been used as reference by other research scientists of national and international repute. Although he is senior than respondents 3 and 4 yet he lacks the basic qualification of M.Sc. Agriculture for promotion to B-18 and he was accordingly not considered suitable for the said post by the Provincial Selection Board in its meeting held on 4-12-1986. His name was recommended by the Department to the said post but he was dropped later on by the Provincial Selection Board. Rules have got no retrospective effect. Appellant failed to improve his educational qualification and the Government is competent to amend the rules in order to improve the working of the Institution. Respondent No. 3 on the other hand stated that appellant was promoted in 1968. There was no Grade-17 post and his promotion as Assistant Botanist was on temporary basis, however, the Provincial Government upgraded all the posts of Research Assistants/Assistant Botanists/Assistant Agronomist/Assistant Entomologist etc. to Grade-17 with effect from 1-11-1972. Promotion on ad hoc basis does not in any way confer upon the appellant aright to claim the seniority. Respondent No. 3 was regularly promoted to Grade-17 while the appellant was working on ad hoc basis. Earlier rules are not applicable to the incumbents. He has not been superseded by the respondents 3 and 4 but also by other juniors namely Dilrosh Khan, Abdul Samad and Nazir Hussain Shah but he has not impleaded them as a party. Learned counsel for the appellant argued that terms and conditions of service of a Government employee at the time of his induction in service cannot be changed arbitrarily as it was done in the instant case. It has resulted in permanent loss to the appellant as the enhancement of educational qualifications and other conditions would be a bar in his way for further promotion and it will result in his supersession by the junior officers as it had already happened with him. Further he argued that the post on which he is working carries Grade-18 although he has not been awarded with the said grade. He was not considered for promotion alongwith his other colleagues. On the other hand learned Special Government Pleader and the private counsel for respondents argued that the present appeal is incompetent on the grounds of non-joinder of necessary parties and some other officers namely Dilrosh Khan, Abdul Samad and Nazir Hussain Shah who were otherwise junior than the appellant have been promoted before the present appeal but have not been impleaded as a party. There was no guarantee provided in the rules relied upon by the appellant that he will always be governed by these rules and the Government had got no power to change, vary or amend them. Further the said rules were implemented in the year, 1981 but the appellant kept silent and resorted to the present legal action in the year, 1987. Delay and laches destroy valuable rights of a party. No mala fides was exhibited by the Government in framing the new rules and Government has vast powers to rescind, change, alter, vary the rules in accordance with needs of time. We have given our patient hearing to the arguments advanced by the parties and have come to the conclusion that the appeal merits dismissal on the grounds of non-joinder of necessary party also, because some other officers mentioned above, allegedly junior than the appellant were promoted earlier superseding him, but they have not been impleaded as a party in the present case. The appellant cannot take the plea that he was not aware of their promotion as every official act is deemed to be within the knowledge of a Government servant; more properly when the appellant is also serving in the same department with them. Besides, it will create anomally if the powers of the Government/authority are curtailed/restricted for not changing/amending or framing the fresh rules, in comparison to the old rules under which a Government official/officer was recruited. No law/rules would permit such a position. It will in the long run affect the improvement of a department and discourage the highly qualified persons to join the service. Over and above this, the persons against whom the appellant sought the relief and those promoted but not impleaded as a party were all basically possessing the same qualifications as the appellant had while joining the present service. They with the passage of time obtained higher educational) qualifications and, therefore, were considered fit for promotion rather than the appellant. The new rules were framed in the year 1981 and the appellant was bound to challenge their vires at that time. He kept silent and waited till the promotion of his juniors to the higher rank and then filed the appeal. The element of laches also plays a vital role in such like circumstances. This being the position, the appeal fails and it is accordingly dismissed, leaving the parties to bear their own costs and the file be consigned to the record room. AA./106/Sr. N Appeal dismissed.