' ABDUL RAZZAQUE (MEMBER)---Facts leading to this appeal briefly are that the appellant, a BS-19 officer of Income Tax Group, was posted vide Notification dated 16-1-2002 on the directing staff of the Directorate of Training and Research (Income Tax) Islamabad which is a Specialized Training A Institution. After two years of service in that capacity the appellant was entitled to exemption from NIPA training and become eligible for consideration for promotion to BS-20 as per Establishment Division's O.M dated 8-5-1991 reproduced as SI.No,160 at page 269 of ESTACODE 2000: "Exemption from NIPA and Staff College/NDC Course.--Reference Establishment Division's d.o. Letter No,10(10)/85- CP.I, dated 15th May, 1985, it is stated that apart from those who have crossed the age of 56 years, training requirement at NIPA/PASC/NDC can only be waived for the following categories of officers:--
(i) For promotion to BPS-20: Those who served on directing staff in BPS-19 for 2 years in NIPA, Staff College, NDC, Civil Services Academy and the specialized training institutions imparting training to officers in BPS-17 and above."
2. As it happened, the Government decided to prescribe an entrance examination for all BS-19 officers as a pre-requisite for nomination for NIPA Training vide Establishment Division's O.M. Dated 8-5-2001 and later withdrew the above mentioned exemption vide Establishment Division's O.M dated 17-5-2002, reproduced below:- GOVERNMENT OF PAKISTAN CABINET SECRETARIAT ESTABLISHMENT DIVISION ' No, 1/3/2001-CP.II Islamabad, the 17th May, 2002.
OFFICE MEMORANDUM ' Subject: WITHDRAWAL OF EXEMPTION FROM NIPA TRAINING COURSE.
' The undersigned is directed to refer to this Division's O.M. No,10(5)/91-CP.I, dated 8th May, 1991 regarding the Promotion Policy-Exemption from NIPA and Staff College/NDC Course and to say that in view of the introduction of Entrance Examination, the competent authority has been pleased to withdraw exemption from NIPA Training, except in the case of those officers who have already completed two years of posting in the training institutions by Appeal 15, 2002.
(Sd.)
(Muhammad Ashraf Awan), Section Officer (CP-II)."
3. Aggrieved, the appellant filed a representation dated 28-6-2002 requesting that either the O.M.
Dated 17-5-2002 be withdrawn or the officers like him who were already serving as Directing staff and willing to complete two years be exempted from NIPA Training. The representation duly supported by the Chairman, C.B.R., was forwarded to the Establishment Division. It was rejected vide letter dated 11-10-2002, which the appellant claims was not communicated to him. He wrote to Joint Secretary (Training), Establishment Division vide letter dated 23-11-2002 and was informed vide Establishment Division letter dated 28-11-2002 that a reply had already been given to C.B.R.
The appellant then filed the instant service appeal with the following prayer: "In view of facts and legal position explained above, it is respectfully submitted that this appeal may kindly be accepted and appellant be considered for promotion to BS-20 on his turn without clearing the NIPA Course or in alternative the respondents be directed to nominate the appellant for NIPA Course as he is the senior most left over officer of his batch of Income-tax Group in BPS-19 who had been allowed to attend and complete the NIPA Course without any Entry Examination which was introduced illegally and arbitrarily in utter violation of the service condition of the Civil Servants as compared with the members of the Armed Forces.
Any other relief which this Hon'ble Tribunal deems appropriate may also be granted."
4. In the light of the prayer in appeal, learned Counsel for the. Appellant chose to confine his arguments to the following points:
(a) Having been posted on the directing staff of a Specialised Training Institution, with effect from 16-1-2002, exemption from NIPA Training subject to two years of continuous service had become a part of terms and conditions of appellant's service and the same could not have been varied (by withdrawal) to his disadvantage in violation of the provisions of section 3(2) of the Civil Servants Act, 1973, which reads: "The terms and conditions of service of any person to wham this Act applies shall not be varied to his disadvantage."
(b) Most of appellant's batchmates and some juniors as well had been nominated for NIPA Training prior to the introduction of entrance examination whereas the appellant was not nominated-for no fault of his. Asking him to go through entrance examination, would therefore, amount to discrimination in terms of the observation made by this Tribunal in its judgment dated 8-10-2002 in Appeal Nos. 233 to 235 and 248 to 252(R)CS/2002, filed by officers of the Police Group to the 10th Common Batch, to the following effect: "9. We are inclined to accept the arguments of the learned Counsel for the respondents that discrimination would have taken place against the appellants if some of the members of the PSP in the 10th Common Group had been nominated for NIPA Course upto July and August, 2001, when entrance test was not held. But this has not happened. This argument, therefore, fails."
5. Respondents have filed objections opposing the appeal as time-barred and misconceived stating that no legal cause of action had accrued to the appellant. Referring to section 9 of the Civil Servants Act, 1973 and rule 8(a) of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, learned Counsel for the respondents averred that the Government was competent to prescribe qualifications and examinations for promotion to higher posts and grades and no one had a vested right in a policy. He submitted that Government had prescribed an entrance examination to identify suitable officers for further grooming for higher management positions through NIPA Training and that after the introduction of the said examination there was no justification for continuing the exemptions and thus the same were withdrawn to end discrimination and provide a level playing ground for all officers in BS-19. The Counsel added that mere posting as directing staff would not confer any right on the appellant to presumptively claim exemption especially when the tenure was not guaranteed and the Government could post him out at any time. He denied that the stipulation of exemption at the time of appellant's posting amounted to immutable terms and conditions of his service. The learned Counsel cited the judgment of the Hon'ble Supreme Court in PLD 2003 S.C. 143, relevant para. Of which is reproduced as under: "4. We have carefully examined the contentions as agitated on behalf of petitioner in the light of relevant regulations and rules of PMDC concerning the appointment of Assistant Professor, Associate Professor and Professor in Ayub Medical College, Abbottabad. The judgment impugned has also been perused carefully. We are not persuaded to agree with the prime contention of Sheikh Mehmood Ahmed, learned Advocate, Supreme Court on behalf of petitioner that no amendment could be made in the relevant regulations/rules by the Competent Authority adversely affecting the rights of the petitioner for the reason that there is no cavil to the proposition that Government is competent to enhance, alter or amend the prescribed qualification for a particular post which cannot be objected as qualification for a particular post cannot be kept unchanged for decades to safeguard the interest of a particular incumbent and day to day changes in every walk of life, scientific developments and increasing technical know-how cannot be ignored. An identical proposition was examined by this Court in case Government of N.-W.F.P. v.
Muzaffar Iqbal (1990 SCMR 1321), operative portion whereof is reproduced hereinbeiow for ready reference:-- "The question of availability of a post of Professor in 1980 or its non-availability is irrelevant because even if the post existed, the person appointed cannot claim any right in the appointment from a date earlier to his taking over as such. The appellant denied the availability of such a vacancy and it being a factual controversy remaining unresolved so far, cannot be resolved at this stage. The remarks column categorically shows that the holders of basic qualification or minor diploma- holders equivalent to M.C.P.S. Are not eligible for promotion as Professors. After this ineligibility in the rules, unless relaxation takes place, there is no question of a person having this qualification being considered for appointment irrespective of the fact whether persons with higher qualifications are available or not.
' No one can claim a vested right in promotion or in the terms and conditions for the 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 post which the civil servant happens to hold he cannot claim vested right in other higher tiers in the hierarchy."
(Emphasis provided).
6. As for nomination of appellant's batchmates for NIPA Training earlier, the learned Counsel submitted that this had taken place before the introduction of entrance examination. He contended that the appellant had remained under suspension from 28-5-2000 to 20-5-2001. The suspension was withdrawn in pursuance of the order of the Sindh High Court and as directed by the Hon'ble Court disciplinary proceedings were initiated against the appellant vide charge-sheet dated 30-5-2001 but the same could not be completed within the time allowed by the Court.
' He stated that the C.B.R. Had also filed a C.P.L.A. In the Supreme Court of Pakistan but the same had not yet been fixed for hearing. The learned Counsel contended that in these circumstances the appellant could not have been nominated for NIPA Training along with his batchmates and the there was no discrimination on this account.
7. We have heard the arguments and perused the record. The respondent-Establishment Division have opposed the appeal inter alia as barred by limitation of time. We find that the O.M.
Withdrawing the exemption from NIPA Training was issued on 17-5-2002. The appellant filed his departmental representation on 28-6-2002 and although rejected vide Establishment Division's letter dated 11-10-2002, the appellant claims that it was not communicated to him till he received Establishment Division's letter dated 28-11-2002. The respondents have not been able to prove that the letter of rejection dated 11-10-2002 had been communicated to the appellant or that it was in his knowledge before Establishment Division's letter dated 28-11-2002. The appeal is therefore, not barred by time.
8. There is no dispute as to the power of the Government to alter, amend or rescind a Policy or order at any time nor can there be any cavil to the proposition that no one has a 'vested right' in matters relating to promotion. The fact however, remains that in this case having been posted on the directing staff of a Specialised Training Instituiion, before the issuance of O.M. Dated 17-5-2002 withdrawing the exemption from NIPA Training, the appellant had acquired a 'valuable right' and `legitimate expectancy' with regard to exemption which could not have been taken away by applying the said O.M. Of 17-5-2002 retrospectively. In this connection we rely on the Article published in Journal part of PLD 2000, the relevant portion at page 111 is reproduced below: "Provision of section 21 of General Clauses Act, 1897 postulates that an authority which passes an order is competent to vary, rescind or cancel the order passed by that authority but such power is not absolute as the same is subject to certain limitation. Where the order sought to be varied, rescinded or cancelled is communicated to other party and subsequent to that communication that party acts upon such order a very valuable right accrues to that party in such-like situation, the authority passing such order becomes functus officio to vary, rescind or cancel its earlier order as the law does not allow "volte face" to the authority in circumstances. This principle of law has been, time and again, recognized, accepted and enforced by the superior Courts. "The Full Bench judgment of the Supreme Court ruled that the power of rescinding till a decisive step is taken, is available to the Government or the relevant authorities subject to the exception that where the order has taken legal effect and in pursuance thereof certain rights have been created in favour of any individual, such an order cannot be withdrawn or rescinded to the detriment of those rights.
' Though, under the law, an authority may recall, rescind an order but this authority is neither unfettered, nor it can be used as weapon of offence against a person in whose favour a valuable right has already been secured and enjoyed."
9. Our view also gets' support from the Judgment in 2003 PLC (C.S.) 424, wherein the Hon'ble Supreme Court laid down the following principle: "When substantial rights by change of law have been effected then law which was previously enforced would apply to benefit of person to whom any such benefit had accrued at the time when that law was in existence."
10. As for not nominating the appellant for NIPA Training along with his batchmates, we are not impressed by the argument that there were proceedings pending against him. It seems that the proceedings initiated with charge-sheet dated 30-5-2001 had abated because of the expiry of time period allowed by Honourable Sindh High Court and after that there was no reason not to send the appellant for NIPA Training unless there was an order of the apex Court in the C.P.L.A.
11. In the light of the above discussion, we find that the case of the appellant has merit. The appeal is therefore, accepted in the following manner:
(a) Subject to completion of two years of continuous service on the directing staff, the appellant shall stand exempted from NIPA Training in terms of the O.M. Dated 8-5-1991 quoted herein-above in para-1.
(b) In case the appellant does not complete two years he will be nominated for NIPA Training without taking and qualifying the entrance examinations as was done in the case of his batch mates.
12. The appeal is disposed of in the above terms with no order as to costs. Parties be informed.