e (PLP)

MUHAMMAD HALEEM, J.-This order will govern Civil Petitions for Special Leave to Appeal Nos. 49-R, K-76 and K-77 of 1979 which arise out of Constitutional Petitions Nos. D-953 of 1977, D-120 of 1979 and D-146 of 1978, which were disposed of by a common judgment of the High Court of Sind dated 17th of February, 1979, and each of them was held to be incompetent. The petitioners in each of these petitions, seek special leave to appeal from this judgment. ' In Civil Petition No. 49-R of 1979, the petitioner was recruited in 1956 for the post of an Engineering Supervisor and on completion of his training he was appointed as such in 1958. He then qualified in the examination for promotion to the post of an Assistant Engineer and in 1969 he was promoted to that post. However, the Rules relating to the appointment of Assistant Engineers were amended by Notification No. S-24=37/70-VOIII(E) dated 30th of September, 1976, which inter alia provided that "75 % of the posts shall be filled by promotion provided that 15 % out of 75 per cent. posts will be filled by promotion of persons possessing Diploma in Engineering (henceforth called as Sub-Engineers) as per para. 3 below" and "15 % of the posts shall be filled by direct recruitment." By another Notification dated 14th of October, 1976, the Rules relating to the appointment of Assistant Divisional Engineers were also amended which provided that "40 % of the posts of the Assistant Divisional Engineers shall be filled by promotion provided at least 20 % posts shall be filled by promotion of persons possessing Diploma in Engineering and 5 Y. shall be filled by promotion of departmental employees possessing the Degree in Engineering or Associated Membership of a recognised Institute of Engineering" and "60 of the posts shall be filled by direct recruitment." As a result of the revision of the Rules, respondents 4 to 8, who were Diploma holders but junior to the petitioner, were treated on a higher footing for promotion to Grade 17 and, therefore, the grievance of the petitioner was that the aforementioned Rules had varied the terms and conditions of service inasmuch as the amended Rules reserved for promotion certain percentage for Diploma-holders. Accordingly, this reservation was assailed to be without lawful authority. In Civil Petition No. K-76 of 1979, petitioner No. I is an Assistant Engineer while petitioners 2 to 4 are Engineering Supervisors. It is their case that prior to the partition of the country, promotion to the Grade of Assistant Engineers was made solely by promotion from amongst, the Engineering Supervisors on the basis of the criterion of seniority-cum-fitness. This method of promotion was revised in 1957 by Resolution No. S-31/52 of the Government of Pakistan which introduced direct recruitment to this post to. the extent of 25 % but the resolution was not acted upon. Thereafter, by another Notification dated 30th of September, 1976, issued by the Chief Engineer, S. & E., Telephone Department, Government of Pakistan, the Rues of recruitment were again revised and the quota of direct recruits to the post in Grade 16 was reserved to the extent of 25 % and the remaining 75 % by promotion from amongst the Engineering Supervisors. Out of this quota of departmental promotees, 25 % was reserved for Diplomla Holders on the basis of the criterion of sonority-cum-fitness. Further, the 50 % posts left thereafter in Grade 16 were made available to the Diploma Holders in the Telegraph and Thelephone Department to the- exclusion of those possessing Pre-Engineering qualification that is

1. Sc. As a result of the promulgation of Notification, respondents 8 to 144 who are H. Sc.'s and Diploma Holders but lacking experience have been selected for appointment as Assistant Engineers in Grade

16. The grievance of the petitioners is that the revision of Rules has altered their terms and conditions of service vis-a-vis promotion with the result that their future prospects are marred. They have assailed the vires of the Notification dated 30th of September, 1976, and have also challenged the appointments of these respondents on that basis. In Civil Petition No. K-77 of 1979, the petitioner was selected for appointment to the post of Engineering Supervisor through an open competition held in 1955 where after he passed the qualifying examination for promotion to the post of an Assistant Engineer on 26th of January, 1965. Respondents 4 to 8 were appointed as Engineering Supervisors on 1st of December, 1965, and were promoted to the post of Assistant Engineers/ S. D. Os. on 18th of Octorber, 1976. However, on the promulgation of Notification dated 14th of October, 1976, they were promoted to the post of Assistant Divisional Engineers in accordance with para. 1(b) of the said Notification though they were junior to the petitioner. Accordingly, the petitioner has assailed the vires of the Notification dated 14th of October, 1976, and also the order promoting respondents 4 to 8 to the post of Assistant Divisional Engineers. Before the High Court respondents 1 to 3 in Civil Petition No. 49-R of 1979 and respondents 1 to 3 in Civil Petition No. K-77 of 1979 objected to the maintainability of the petitions on the strength of Article 212 of the 1973 Constitution read with section 4 of the Service Tribunals Act, 1973. As Constitutional Petitions No. D-120 out of which Civil Petition No. K-76 of 1979 has arisen, was not admitted to regular hearing, no counter-affidavit was filed by these respondents in this petition to challenge its maintainability but as the question was identical, it was disposed of alongwith the other Constitutional Petitions. The arguments inter alia in support of the maintainability of the petitions were that the Service-Tribunal was not competent to decide the vires of the Rules revising the method of recruitment to the aforementioned posts; and that as the cases involved the determination of the fitness or otherwise of of a person to be appointed to hold a particular post or grade or to be promoted to a higher post or grade. no appeal to the Service Tribunal was competent in view of section 4(a) and (b) of the Service Tribunal Act, 1973. In resolving the first controversy, the High Court relied on the cases of Muhammad Hashim Khan and others v. Province of Baluchistan and others(1) and Fazal Elahi Ejaz and others v. Government of the Purtjab and others (2) and held that the vice Tribunal was competent to examine the vires of the Rules and determine its validity as by Article 212 of the 1973 Constitution and section 4 of the Service Tribunal Act, 1973, it has been given the exclusive jurisdiction to do so. In regard to the next argument the High Court held that the provision of "Matriculation" as basic qualification in the Rules did not involve the determination of a person's fitness to hold a post or to be promoted to a higher post or grade ; and this was obvious from the impugned Notifications dated 30th of September, 1976 and 14th of October, 1976, which describe the manner of appointment to the post of Assistant Engineer and Assistant Divisional Engineer respectively by direct recruitment and promotion without placing any embargo on the fitness of any person to hold the post of an Assistant Engineer or Assistant Divisional Engineer. Therefore, the High Court concluded that the sub-clauses (a) and (b) of section 4 of the Service Tribunal Act were not attracted. In the view of the High Court the basic question in challenging the vires of the Rules was that they had varied the terms and conditions of the service of the petitioners and on this footing the Rules could be equated with an order for the purpose of filing an appeal before the Service Tribunal. No contention was raised to challenge the the competency of the authority which issued the Notification dated 14th of October, 1976, and, therefore, theme is no discussion in regard to it in the judgment. Mr. Fazle Ghani Khan, on behalf of the petitioners, in Civil Petition No. K-76 of 1979, not only attacked the competency of the authority to issue the rules but also the vires of the Rules on the premise that they could not be framed as they affected the terms and conditions of service of the petitioners. In support of it he contented that under the Rules framed under section 240 (3) of the Government of India Act, 1935, there'was a provision of 100% promotion of Engineering Supervisors to the post of Assistant Engineers which criterion prevailed from 1940 to 1957 and despite the issuance of Resolution No. S-31,/52 in that year it was not acted upon in totality until the promulgation of the Rules by Notification dated 30th of September; 1976, which altered the criterion of promotion of the Engineering Supervisors. He cited section 23 of the Civil Servants Act, 1973, as a legal bar in this respect. .As to the incompetency of the petition, his argument was that the Service Tribunal was not competent to decide the vires of the Rules as Articles 212 of the 1973 Constitution confined itself to those matters to which the jurisdiction of the Service Tribunal extended that is, the grievance in respect of any of the "terms and conditions of service" which expression does not include within its concept the present controversy. (1) P L D 1976 Quetta 59 (2) P L D 1977 Lab. 549 Adverting now to the first contention, there is an affidavit of respondents I to 3, in which the factual position has been clarified in para. 3 which reads : "That I state from the record of the respondents that the Rules with regard to the method, qualifications and other conditions for appointment to the post in Grade 17 (Assistant Divisional Engineers) were made in accordance with the decision of the Government conveyed by the Ministry of Fuel, Power and Natural Resources vide their Office Memorandum No. WA/4 (25)/74, dated 16-11-1974 (Para. IV) and with the approval of the Establishment Division of the Cabinet Secretariat, in pursuance of sub-rule (2) of Rule 3 of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, (a copy of the said office memorandum is annexed and marked P. 1). These Rules were published in the Extraordinary Gazette of Pakistan dated 20-10-1976 at page 2039. The said Rules, as is evident from the Gazette itself, were issued by the Ministry of Communication under signature of the Director-General of Pakistan Telegraph and Telephone Department who is authorised to make and execute orders and other instruments in the name of President of Pakistan in respect of matters within his jurisdiction as per Schedule IV of rule 7(2) of Business, 1973, Cabinet Secretariate, a copy of which annexed hereto and marked P. II. The Director-General of Telegraph is and Telephone Department is also ex officio Joint Secretary of the Ministry of communication as published in the Gazette of Pakistan, Part P.1, dated 29-10-1976 of page 696, a copy of which is annexed hereto and marked P. III. As such he can sign notifications of the Ministry of Communication pertaining to the Telegraph and Telephone Department." Further, in support of it, a photostat copy of the office Memorandum dated 16th of November, 1974, was also placed on record which clearly shows that the Rules were framed after the Prime Minister had approved the decision of the Committee to the proposals now incorporated in the Rules. It is true that it is the Chief Engineer, S. & E., who had signed the Notification but was authorised to do so in accordance with rule 7(2) read with Schedule IV of the Rules of Business, 1973, framed under Article 99 of the 1973 Constitution, as he was one of the designated officers that is, an ex ofcio Join Secretary, at the time when he signed the Notification. As such there is no violation of rule 25 of the Civil Servants Act, as contended by the learned, counsel, even though the Notification had been signed by the Chief Engineer, S. & E., in his capacity as such. The learned counsel for the petitioners is also not correct in stating that the Rules have not been issued with the concurrence of the Establishment Division as this fact is patent from rule itself. In regard to the other limb of the contention that there is a clog on the power of the Federal Government, placed by section 23 of the Civil Servants Act, 1973, to frame such Rules as would alter their chance of promotion which earlier stood guaranteed by the Rules framed under section 240(3) of the Government of India Act, is also misconcieved as section 25 of the Civil Servants Act gives an unrestricted power to the ,President or any person authorised by the President in this behalf to make such Rules as appear t him to be necessary or expedient for carrying out the purposes of this Act. Section 9 only deals with the eligibility for promotion to a post for the time being reserved under the Rules for departmental promotion in the higher grade or cadre to which an officer belongs but it does not guarantee the reservation of those Rules having regard to the implication of the words "for the time being" in this section which indicate their transitory nature. That the Rules are capable of change is also in no doubt considering the unconditional power given to the President or his delegatee to frame such Rules. In R. Venkata Kno v. Secretary of State for India in Council (1), the judicial Committee of the Privy Council also recognized this power to reside with the Government while construing rule 14 of the Civil Services Classification Rules, 1920, framed under section 96-B., subsection (2) of the Government of India Act. Therefore, if the Federal Government, by Rules, alters the method of recruitment and promotion then these Rules will supersed the existing Rules on the subject and will govern the eligibility for promotion and recruitment. The learned counsel, however, submits that proviso to section 23 would come in the way to frame such Rules but the reading of the section and the proviso, as a whole, makes it clear that it is a residuary provision and as held by this Court in Pakistan v. Abdul Hamid (2) it enables the Government to deal with the case of any person under the Rules according to justice and equity, so long as he is not treated less favourably than the Rules require and the Government can, within its plenary power make adjustments of a compensatory nature. It is not his case that he has not been treated fairly under the Rules and, therefore, the condition precedent for the application g of the proviso is not fulfilled. Accordingly, this residuary provision in no way controls the plenary power of the Government to frame Rules under section 25 of the Act. As to the ground concerning the non-maintainability of the petition, the High Court has held, and it is also the case of the petitioner, that the effect of the Rules is that it has altered the terms and conditions of service. This being so, the bar of Article 212 of the Constitution would be applicable with p full force as in that exercise the question of vires of the Rules vis-a-vis section 25 of the Act would necessarily be considered. In this behalf the High Court has relied on the statement of law enunciated in Muhammad Hashim Khan and others v. Province of Baluchistan and others (3) and Fazal Elahi Ejaz and others v. Government of the Punjab and others with which I agree. This is a common grievance in the other two petitions and they would also be hit by the same bar. We may here point out that a distinction has to be drawn between a case where the eligibility of an officer as to hi fitness to hold a particular post or to be promoted to a higher grade under the Rules applicable to him and the Rules which by themselves alter the method of recruitment and promotion. In the former case, proviso (b) to section 4 of the Service Tribunals Act, 1973, will be applicable and no appeal a will lie to the Service Tribunal. However, this will not be so in the latter case as the Rules per force alter the method of recruitment and promotion in supersession of the existing Rules which provide a cause of action for the grievance qua the alteration of terms and conditions of service and hence an appeal will lie to the Service Tribunal. For the foregoing reasons, we see no merit in these petitions which are hereby dismissed. DORAB PATEL, J.-I agree. ASLAM RIAZ HUSSAIN, J.-I agree. Petition dismissed; (1)641 A55 (2)PLD1961SC105