' TABASSUM AFTAB ALVI, J.--- The captioned writ petitions have been addressed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974.
2. As common questions of facts and law are involved in both the instant writ petitions, therefore, I propose to decide the same through this single judgment.
3. Precise facts giving rise to Writ Petition No,1123 of 2011 are that petitioners are Subject Specialists B.17 of Education Department rendering their services at various institutions. It is claimed that according to the Azad Jammu and Kashmir School Cadre Service Rules, 1989 substituted vide notification dated 18-5-1994 the cadre of Subject Specialists, Head Masters, Head Mistresses and Deputy District Education Officers B.17 was same. It is alleged that prior to Departmental Statutory Rules, 1989 the cadre of Subject Specialists and. Head Masters was also common in Education Department of Province of Punjab. The promotion of Subject Specialists and Head Masters has been claimed to be made in the light of Departmental Statutory Rules, 1994. However, Finance Department-respondent issued concurrence, whereby, cadre of Subject Specialists has been proposed to be separated from the cadre of Head Masters through the impugned script dated 25- 6-2011. It is alleged that due to proposed concurrence of amendment in the Departmental Statutory Rules, the terms and conditions of service of petitioners will be badly affected. It is further stated that proposed concurrence regarding amendment has been framed to extend benefit to Senior Teachers, which is otherwise discriminatory; hence, petitioners are constrained to file the instant constitutional petition.
4. The writ petition has been contested by respondents through written statement dated 10-10-2011, wherein, it is stated that the matter pertains to terms and conditions of service of civil servants, hence, proper forum of dispute is Service Tribunal. It is further stated that after concurrence of Finance Department dated 25-6-2011 the Departmental Statutory Rules are liable to be amended for the purpose of separation of teaching cadre and admin cadre, for the better administration of Department. It is also averred that due to proposed amendment, petitioners will not be degraded; however, separation of cadre is prerogative of the Government. It is further stated that due to amendment in the Statutory Rules no terms and conditions of petitioners shall be affected.
5. Precise facts forming background of Writ Petition No,1130 of 2011 are that petitioners are Subject Specialists B.17 serving in Education Department at various institutions. It is stated that Government-respondent amended the Azad Jammu and Kashmir School Cadre Service Rules, 1989 vide notification dated 185-1984, whereby, post of Subject Specialist was inserted at serial No,5 thereof. It is claimed that Secretary Education-respondent moved summary before Secretary Finance-respondent for financial concurrence and later agreed with the summary vide letter dated 26-6-2011. The petitioners while considering themselves aggrieved from the above script are constrained to file the instant petition.
6. The writ petition has been resisted by respondents through written statement dated 10-10-2011, whereby, it is stated that matter pertains to terms and conditions of service of civil servants, which is liable to be resolved by the Service Tribunal. It is further stated that amendment in Statutory Rules is prerogative of the Government, hence, the writ petition is bad in law. It is averred that concurrence of Finance Department cannot be challenged through writ jurisdiction. It is also stated that rules will be framed on the basis of recommendations of Rules Committee and prayed for dismissal of writ petition.
7. Syed Nazir Hussain Shah Kazmi, the learned counsel for petitioners, Khalid Mehmood and others while reiterating the grounds of writ petition submitted that as rules regarding Subject Specialists, Head Masters and Deputy District Education Officers B.17 have already been framed as the Azad Jammu and Kashmir School Cadre Service Rules, 1989 which has been substituted vide notification dated 18-5-1994, therefore, no amendment can be made by the respondents in presence of earlier framed supra rules. The learned counsel pressed into service that the impugned concurrence regarding amendment in rules was framed to deprive the petitioners from promotion for mala fide reasons. He further submitted that cadre of Subject Specialists and Head Masters cannot be separated by the respondents. The learned counsel also submitted that proposed amendment was framed to extend benefit to School Teachers, which is otherwise discriminatory. The learned counsel in support of his contentions referred to and relied upon following case-law:--- i. Azad Jammu and Kashmir Government and others v. Muhammad Younas Tahir and others (1994 CLC 2339) and ii. Syed Ali Asghar Shah v. Azad Jammu and Kashmir Public Service Commission and 5 others (2008 SCR 133).
' In case of Azad Jammu and Kashmir Government and others, supra while interpreting Fundamental Rights Nos. 15 and 17 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 it was held by the apex Court that Right No,15 guarantees that all State Subjects are equal before law and are entitled to equal protection of law, whereas Right No,17 provides safeguard against discrimination in services. It was further held that Azad Jammu and Kashmir Civil Servants (Regularization of Ad-hoc Appointment) Act, 1992 was violative of Fundamental Rights ibid as enshrined in the constitution, therefore, the same was rightly struck down by the High Court, hence, appeals were dismissed.
' In case of Syed Ali Asghar Shah, ibid it was held that rules are always initiated by department concerned and then submitted to committee constituted by Government. It was further held that all legislations and amendments are to be routed and made in consultation with Law, Justice, Human Rights and Parliamentary Affairs Department and then after approval of committee, the rules are submitted to the Government through Services and General Administration Department for obtaining sanctions of Government.
8. Mr. Sadaqat Hussain Raja, Advocate, for petitioners of Writ Petition No,1130 of 2011 has filed written arguments, wherein, it is submitted that in Azad Jammu and Kashmir a scheme was introduced for High Schools in the year 1990, whereby all the above Schools were upgraded as Higher Secondary Schools and teaching staff of intermediate classes was designated as Subject Specialists B-17 with qualification for their recruitment as M.A, M.Sc. + B.Ed. And quota was also fixed for promotion amongst Senior Teachers. It is further submitted that according to Substituted Service Rules, 1994 the posts of Head Masters and Subject Specialists are of equal grade and inter transferable, hence, amendment is bad in law. It is also submitted that proposed amendment is against the scheme of law and discriminatory, whereby Subject Specialists are liable to be degraded. He further emphasized that in the impugned proposal, length of service in grade B.20 for Subject Specialists has been mentioned as 30 years, which is more than required service from retirement, hence, prayed for issuance of solicited writ.
9. Ch. Shaukat Aziz, the learned Additional Advocate-General while controverting arguments of the learned counsel for petitioners submitted that under Section 23 of the Azad Jammu and Kashmir Civil Servants Act, 1976 framing of rules is prerogative of the Government, therefore, both the writ petitions are bad in law. He further submitted that writ petitions have been filed without any lawful justification and for mala fide reasons, therefore, the same merit dismissal. The learned Additional Advocate-General pressed into service that petitioners have challenged the concurrence of Finance Department and even basic proposed rules have not been challenged, hence, craved for dismissal of writ petitions. The learned counsel in support of his contentions referred to and relied upon the following case-law:---
(i) Syed Saleem Hussain Kazmi v. Azad Government and 4 others (2005 SCR 259); ii. Rizwan Muzaffar v. Azad Government and 8 others (2010 SCR 156).
(iii) Ch. Muhammad Inshaullah and others v. Chief Conservator of Forests (P&E) Punjab and others (PLD 1988 SC 155).
' In case of Syed Saleeni Hussain Kazmi, supra it was held by the Hon'ble Supreme Court that the Government or any other authorised person can make rules as are necessary and expedient for carrying out the purposes of the Azad Jammu and Kashmir Civil Servants Act, 1976.
' In Rizwan Muzaffar's case, ibid it was held by the apex Court that rules making powers vest in the Government under section 23 of the Azad Jammu and Kashmir Civil Servants Act, 1976. It was also held that Government is competent to enhance alter or amend the prescribed qualification for a particular post. It was further held that a person cannot claim a vested right for promotion to a particular post with the claim that the rules be framed in such a manner so that he may be promoted.
' In case of Ch. Muhammad Inshaullah and others, supra it was held by the apex Court of Pakistan that Government is entitled to make and change rules in the interest of efficiency of civil service.
10. After hearing the learned counsel for parties at length, I have perused the contents of writ petitions and examined the appended record and have given my earnest thought to the points agitated by the learned counsel for parties.
11. A contemplate perusal of record reveals that grievance of petitioners in both the writ petitions is against script of Finance Department addressed to Secretary Education (Colleges) dated 25-6- 2011. Through the above script, the Finance Department agreed with summary forwarded by Secretafy Education (Colleges) No,SE/S/810/2011. The petitioners looked dissatisfied from proposed amendment of Education Department, which has not been assailed in both the writ petitions. No any law was cited which might have been violated by the Finance Department through the impugned script dated 25-6-2011 by granting its concurrence with regard to proposed amendment in Azad Jammu and Kashmir School Cadre Service Rules, 1989 substituted in 1994. It appears from record that proposed amendment was yet not submitted even before Rules Committee for its consideration and recommendations when petitioners filed the instant writ petitions, hence, proposed amendment could not be finalized. It is settled principle of law that 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 power to amend, enhance or alter the qualification and 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, however, consideration for promotion that too in accordance with proscribed rules is right of a civil servant.
12. According to subsection (1) of section 23 of the Azad Jammu and Kashmir Civil Servants Act, 1976 Government or any person authorized in this behalf may make such rules as appear to him to be necessary or expedient for carrying out the purposes of the Act. A Civil Servant cannot claim promotion to a particular post with assertion that the rules be framed in such a manner so that he may be promoted. The rules cannot be made on sweet will of a Civil Servant which is sole prerogative of Government. The point came under consideration before the apex Court in case titled Syed Saleem Hussain Kazmi v. Azad Government and 4 others (2005 SCR 259). At page 262 of the report, it was held as under:--- "We have considered the respective arguments of the learned counsel for the parties and gone through the record of the case. From the record it is clear that the appellant before us is M.A.
Economics as compared to respondent No,5 who besides M.A. Economics is also Masters in Health Management, Planning and Policy HMBP from U.K. The appellant has attributed mala fide to the Government for framing rules whereby educational qualification higher than M.A. Has been prescribed for the post of Assistant Director/Assistant Chief Planning but no details have been provided as to why the Government Authority was trying to extend benefit to contesting respondent over and above the service rights of the appellant. The mala fide cannot be attributed to the Government in vacuum without furnishing any supporting material in this regard. Under section 49 of the AJ&K Interim Constitution Act, 1974, the AJ&K Civil Servants Act, 1976 was enacted to regulate the terms and conditions of the employees in the service of AJ&K Government. The AJ&K Civil Servants Act, 1976, is therefore a mother Act. In exercise of powers conferred to Government or any other person under section 23 of the said Act, the Government or such person is authorized to make such rules as are necessary and expedient for carrying out the purposes of this Act. So it is for the Government or that authorized person to lay down the qualification or make rules in respect of civil servants under its/his command. The wisdom of the Government or such authorized person without any proof of mala fide in this regard cannot be challenged or substituted by the Courts of law".
' The above referred principle was reiterated in a case titled Rizwan Muzaffar v. Azad Government and 8 others (2010 SCR 156), wherein at page 169 it was held as under:- "We may observe that rules making powers vest in the Govt. Under section 23 of Civil Servants Act, 1976. The Government is competent to enhance, alter or amend the prescribed qualification for a particular post. In the present days the world is changing very fast, new inventions and technologies are being introduced. The Govt. Has to cope with new emerging situation. New departments and the posts are being created which require new rules based on relevant qualification. Computer is one of the specific field and the rules have to be framed in such a manner that all the requirements are fulfilled. The provision of specific qualification in the relevant field is necessity of the time. A person having qualification of MCS computer is eligible to be appointed as Revenue Officer. The same person can also be appointed as Software Engineer in the functional unit Computer/Technical. But the person having qualification of M.Sc. Physics MA Stat, cannot be appointed as Software Engineer. The post of Deputy Director Computer has to be filled in on the basis of seniority-cum-fitness from amongst the persons having relevant qualification".
13. A bare reading of section 23(1) of the Azad Jammu and Kashmir Civil Servants Act, 1976 and survey of case law, discussed herein above, make it crystal clear that Government is competent to make rules to carry out the purposes of the Act. The rules are always initiated by the department concerned and then submitted to a Committee constituted by the Government, known as Departmental Rules Committee constituted vide notification dated 15-10-1991. According to Rule 16(2) of the Azad Jammu and Kashmir Rules of Business, 1985 all legislations and amendments, therein, are also to be routed and made in consultation with the Law, Justice, Human Rights and Parliamentary Affairs Department of the Government of Azad Jammu and Kashmir and then after the approval of the Committee, the rules are submitted to the Government through Services and General Administration Department for obtaining sanction of it. However, in case, rules are violative of the Azad Jammu and Kashmir Interim Constitution Act, 1974 or its parent Act i,e, the Azad Jammu and Kashmir Civil Servants Act, 1976 the concerned aggrieved Civil Servant may invoke jurisdiction of Service Tribunal concerned for redressal of his/her grievance. The writ petitions, therefore, filed by the petitioners are bad in law accordingly.
14. The argument of the learned counsel for petitioners that the impugned proposed amendment is maliciously motivated to extend benefit to Senior Teachers and to deprive the petitioners from promotion is untenable for the reason that it applies to all the employees of the concerned cadre.
The petitioners failed to implead party to the Senior Teachers in writ petitions. The allegation is also baseless and without any substance. Even otherwise it is settled principle of law that malice cannot be attributed to the legislature neither any legislation can be struck down on the ground of malice.
The following cases are being referred in support of the proposition:---
(i) Ch. Muhammad Yousaf v. The 1130);
(ii) Raja Muhammad Niaz Khan v. (PLD 1988 SC (AJ&K) 53); iii. Fauji Foundation and another v. SC 457); and iv. Pir Sabir Shah v. Shad Muhammad Khan (PLD 1995 SC 66).
15. The contention of the learned counsel that petitioners shall be degraded through the proposed amendment is due to misreading of the impugned proposal. No such-like contents have been inserted in the proposal. Even respondents categorically stated in written statement that petitioners shall not be degraded; therefore, contention is baseless which is hereby repelled.
16. The crux of above discussion is that finding no substance in the instant writ petitions, both are hereby dismissed with no order as to costs.