1993 PLP (C (PLC(CS))

S.M. ISHAQ (MEMBER).‑‑‑The appellant is aggrieved by the Notification, dated January 29, 1989, whereby the method, qualifications and other conditions for promotion/appointment to the Horticulture posts in the Pak PWD under the Ministry of Housing and Works were laid down. 2. The Ministry of Housing and Works notified on 29‑1‑1989 the rules for appointment as well as promotion from Sub‑Engineer (Horticulture) (BPS‑11) to the post of Assistant Engineer (Horticulture) (BPS‑16). Under rule 3(3) of the said Rules the conditions for Promotion to the post of Assistant Engineer (Horticulture) were that Sub‑Engineer (Horticulture) (BPS‑11) must possess ten year service and must have passed the prescribed departmental examination while a Schedule to rule 4 of the Rules for Initial Appointment for the said post prescribes that a candidate must be matriculate with two years Diploma Course in Agriculture from any recognized institution with ten years experience in the relevant field. 3. The learned departmental representative at the very outset raised to preliminary objections. The first is that the appeal filed before this Tribunal is incompetent as the appellant through this appeal seeks promotion which is not permissible under rule 4(1)(b) of the Service Tribunals Rules, 1973 and the second is that the departmental appeal was time‑barred. 4. As far as the first objection that the present appeal is hit by proviso (b) to subsection (1) of section 4 of the Service Tribunals Act, 1973, is concerned we do not find any substance in it as the question of fitness of the appellant is not involved. The appellant has not challenged his promotion by way of the present appeal but what he claims before this Tribunal is that the rules framed by the Ministry of Housing and Works for promotion and ointment to the post of Assistant Engineer (Horticulture) are discriminatory. We, therefore, overrule this objection. 5. As regards the next objection we find that the rules, in question, were published in the Gazette of Pakistan on 29‑1‑1989 and the appellant filed the departmental appeal before the Secretary, Ministry of Housing and Works on 15‑5‑1989; although the index to the memo of appeal shows that the departmental appeal was filed on 16‑6‑1989. The other discrepancy noticed is that the signature affixed on the departmental appeal does not tally with the signatures made in the memo. of present appeal. However, under the law, the period provided for filing a departmental appeal is only 30 days. The appellant has neither filed an application for condonation of delay nor has he explained to our satisfaction the reasons for filing the departmental appeal beyond the period of limitation. The Supreme Court in the case of S.S. Qureshi and others v. Foreign Secretary 1985 SCMR 1953 has held that the departmental appeal in after the expiry of limitation to the departmental authority is not an appeal in the eye of law and the appeal tiled before the Tribunal is incompetent. Similar view was also taken by the Honourable Supreme Court in the case of Chairman, PIAC v. Nasim Malik and reported as PLD 1990 Supreme Court 951. This appeal is, therefore, liable to be dismissed on this score alone. 6. The learned counsel for the appellant also contended that the rules relating .to promotion and direct appointment for the post of Assistant Engineer (Horticulture) are discriminatory inasmuch as they lay down the condition of ten years' service and passing of the departmental examination for the departmental candidates while such conditions have not been imposed on the direct appointees. He maintained that there is no justification for laying down different criteria for promotees and the direct appointees and thus the action of the respondents is invalid and uncalled for. He further contended that the appellant who is matriculate with two years Diploma and has also put in ten years' service, is eligible for promotion to the post of Assistant Engineer (Horticulture) because in the past matriculates with five years' service as Sub Engineers without passing any departmental examination, had been promoted as Assistant Engineers and, therefore, the same principle should be applied in the case of the Appellant. 7. The Departmental Representative submitted that the conditions for promotion to the post of' Assistant Engineer (Horticulture) are ten years' service as Sub‑Engineer (Horticulture) and passing of the departmental examination whereas for direct appointment to the post of Assistant Engineer the prescribed qualification is matric with two years' Diploma course in agriculture from any recognized institution with ten years' experience in the relevant field. According to him, the condition of passing the departmental examination cannot be imposed on the direct appointees as they cannot be treated at par with the departmental candidates. He maintained that the Government has every right to enforce any rule to employ its servants and thus the action of the respondents is just and fair which cannot be challenged before this Tribunal. 8. We have heard both the parties. The Departmental Representative has placed reliance on the case of Government of N.‑W.F.P.., Health and Social Welfare Department v. Dr. Sheikh Muzaffar Iqbal and others..1.990 SCMR 1321 wherein their Lordships took the following view: "No one can claim a vested right in promotion or in the terms and conditions for promotion to a higher post. The Government has the right to enhance the qualifications and the standards for recruitment and promotion in order to maintain efficiency in service. Except for the host which the civil servant happens to hold., he cannot claim vested right in other higher tiers in the hierarchy." Again in the case of CA. No. 1282 of 1990 and C.A. No. 1283 of 1990, their Lordships of the Supreme Court had observed as follows:‑‑ ".... It has been held in a number of judgments of this Court that the prospect of promotion is not a vested right and it is always open to the Government to alter the relevant rules laying down new criterion for filling the higher posts, in the interest of greater efficiency. See Government of West Pakistan v, Fida Muhammad Khan (PLD 1960 SC (Pak.) 45); Central Board of Revenue v. Asad Ahmad Khan (PLD 1960 SC (Pak.) 81); Government of West Pakistan v. Fateh Ullah Khan (PLD 1960 SC (Pak.) 105); Muhammad Suleman Khan v. Pakistan (1972 SCMR 127); Sayed Abdul Qadir Shah v. Government of‑Punjab (1972 SCMR 323) and Muhammad Insha Ullah v. Chief Conservator of Forests (PLD 1988 SC 155). The learned Tribunal was therefore not right in holding that the competent authority was not empowered to amend the rule relating to the category of persons eligible for promotion to the post, of Assistant Director (Administration) after the respondent had become eligible to be promoted." 9. A plain reading of the above judgments shows that the right of the Government either to amend or change/alter the rules for choosing its employees cannot be abridged or restricted. The Government has every right to make rules to raise the efficiency of the service. The respondents were, therefore, fully justified in prescribing the requisite qualifications, length of service etc. for better selection amongst the candidates. 10. For the foregoing reasons 'we are firmly of the view that the appellant's contentions are devoid of any merits. Although the condition of ten years' service and passing of departmental examination has been prescribed for departmental candidates yet at the same time ten years' experience and two years' diploma course in the relevant field is a prerequisite condition for direct appointees. Moreover, the respondents have rightly submitted that since the departmental candidates and direct appointees cannot be treated at bar, therefore, one and the same criteria cannot be laid down for their appointment. The respondents have also admitted in the written objections that no bar has been imposed on the departmental candidates (Sub‑Engineers) (Horticulture) for applying/appearing against direct quota for the post of Assistant Engineers (Horticulture), if they possess all the requisite conditions. In our view, therefore, no injustice seems to have been done to the appellant and even the learned counsel has not been able to establish before us that any discriminatory treatment has been meted out to the appellant. 11. As regards the appellant's plea that previously matriculates Sub Engineers with five years' experience were promoted as Assistant Engineers, therefore, the appellant who possesses ten years' service, should also be promoted, we do not find any merit in it because the authority competent to make rules can also change the rules. This plea of the appellant is also repelled as the rules on the basis of which departmental candidates were previously promoted had been changed and no longer exists, 12 In the result the appeal fails and is hereby dismissed with no order as to costs. This judgment shall, mutatis mutandis apply to other Appeal No.16(R) /91. 13. Parties be informed. A.A./784/Sr.F Appeal dismissed.