Moazzam Hayat, Member.--With this judgment we shall decide the above titled appeals. All the appellants have prayed that the Recruitment Rules, 2008 and Recruitment Rules, 2011 framed by Federal Public Service Commission (FPSC) and approved by the Secretary, Establishment Division be declared as illegal being violative of the provisions of the Civil Servants Act, 1973, Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, principles of legitimate expectancy and also contrary to Articles 4, 25 and 27 of the Constitution of Islamic Republic of Pakistan.
2. The judgment is being recorded in appeal filed by Mian Muhammad, Deputy Assistant Director. It shall apply mutatis mutandis to all other appellants.
3. Appellant Mian Muhammad was appointed in the FPSC on 03.04.1979. He was promoted as Deputy Assistant Director on 10.07.2006. The Commission promulgated. Service Rules as required by 3 (2) of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 under Section 25 of the Civil Servants Act, 1973. For the sake of convenience Rule 3(2) is reproduced verbatim:-- "3. (1) Appointment to posts shall be made by any of the following methods, namely:--
(a) xxx xxx XXX
(b) xxx xxx xxx
(2) The method of appointment and the qualifications and other conditions applicable to a post shall be as laid down by the Ministry or Division concerned in connection with the Establishment Division.
4. The rules were framed vide notification dated 08.04.1990 and were published in the gazette of Pakistan dated 08.04.1990, They were known as 1990 Service Rules. The claim of the appellant is that he is still governed by these rules. It transpires from the record that the rules were mended vide S.R,O. No, 273 (I)/2008 dated 21.02.2008, published in the gazette of Pakistan on 11.03.2008. A further amendment was made in the rules which was notified vide S.R.O. No, 63(1)/2011 dated 25.01.2011. By this amendment the earlier S.R.O. of 21.02.2008 was repealed. The rules amended by S.R.O. dated 25.10.2011 were generally known as 2011 Service Rules. The grievance of the appellant is that drastic changes were made in the 1990 Service Rules to his disadvantage by 2011 Rules. It was explained that under the 1990 Rule the feeding cadre for promotion to the post of Assistant Director.
(BS-17) was Deputy Assistant Director/Superintendents (BS-16) having three years experience and in case no suitable Deputy Assistant Director/ Superintendent was available, from amongst Assistant Incharge/ Assistants, having eight years service, Further grievance of the appellant is that the promotion quota was also reduced from 80% to 50%. With the amendments made in 2011 all the officials in BS 1 to 16, having eight years service in the Commission, were declared eligible for promotion to the post of Assistant Director subject to qualifying written examination of 300 marks.
To be precise the grievance of the appellant is that whereas only Deputy Assistant Directors/Superintendents or Assistants were eligible for promotion as Assistant Directors, with the introduction of 2011 Rules the employees in BS 1 to 16 have also been made eligible. As mentioned above, their second grievance , is that the quota for promotion has also been reduced to their detriment. The appellants had earlier filed Appeals No, 1495 to 1514(R)CS/2010, appeal No, 1521(R)CS/2010 and Appeals No, 1560 to 1562(R)CS/2010 which were disposed of on 25.02.2011 by a Bench comprising M/s. Moazzam Hayat and Farrakh Qayyum, Members. A direction was issued that the matter be placed before the worthy Chairman, FPSC alongwith copy of judgment dated 02.10.2009 passed in Appeals No, 331(R)CS/2007, 332(R)CS/2007 and 2173(R)CS/2007 by a Bench of the Federal Service Tribunal comprising Syed Bilal Ahmed and Mr. Ismail Hassan Niazi, Members.
The matter was accordingly placed before the Hon'ble Chairman of the FPSC. He dismissed the claim of the appellants vide his detailed order dated 10.05.2011, Hence the present appeals.
5. The main contention of the appellants is that 1990 Service Rules could not be amended retrospectively to their disadvantage.
6. The appeal is resisted by the respondents. It is stated that the 1990 Service Rules have been amended in the larger interest of all the employees of the Commission in BS 1 to 16. It is further submitted that a large number of employees shall benefit from such amendments.
7. We have heard the learned counsel for the respective parties and have also perused the record.
8. The amendments made in 2008 have been repealed by amendments made in 2011. This fact is apparent from the detailed order passed by the Hon'ble Chairman FPSC, mentioned above. We shall, therefore, restrict to the amendments of 2011. In Fecto Belarus Tractor Limited vs. Government of Pakistan through Finance Economic Affairs and other (PLD 2005 SC 605) it was held that a statute could not be read in such a way as to change accrued rights, the title of which consisted in transactions past and closed or any facts or events that have already occurred, Thus, according to the Supreme Court the existing laws could not be disturbed by 4 general law governing future rights and liabilities unless the law so intended. The Bench of Supreme Court comprised of Hon'ble Mr.Justice Iftikhar Muhammad Chaudhry, as My Lord then was, Hon'ble Mr. Justice Rana Baghwandas and Hon'ble Mr. Justice Mian Shakirullah Jan. It was also held that the legislature had the authority and full plenary powers within its sphere of operation to legislate retrospectively or retroactively. The vested rights could be taken away by such a legislation by express words or necessary intendment. In the present case there were no express words conveying the necessity of amending the existing Rules of 1990 to the disadvantage of the employees, to whom they applied.
9. However, the position is totally different when the rules are involved, and not a law, framed under a statute. Whereas the legislature can legislate with retrospective effect the rules cannot be amended from a back date. This position of law has been made clear in 1987 SCM R 359. In this case rules were framed under the West Pakistan Water and Power Development Authority Act (XXXI of 1958). It was held that amendment in rules by gazette notification could not be given retrospective effect. This power was enjoyed by the legislature only as held above.
10. The learned Chairman of the FPSC has endeavored to distinguish between the facts of the ruling of the Hon'ble Supreme Court and the facts of the present case. In our considered view the distinction drawn by him is legally not correct. When a principle of law is enunciated by the apex Court, it has to be followed in letter and spirit by -all the Courts under Article 189 of the Constitution.
Under Article 190 all the authorities have to act in aid of the Supreme Court. Thus the cumulative effect of both the Articles is that the law given by the apex Court has to be followed by the Commission also, even If it's head has been a former judge, of the Supreme Court. The larger interest of the officials could never be a ground for not following the law laid down by the apex Court. The rules in question were framed under the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973. These rules of 1973 did not empower the competent authority to give retrospective effect to any amendment When the powers to amend retrospectively were not given in the parent rules, the same powers could not be given in the subordinate rules framed under the main rules. We are, therefore, of the view that the Commission had committed an illegality in giving retrospective effect to the rules framed in 2011. The appellant was already in service. His service was governed by 1990 Rules. He had been given a right to get promotion at a certain quota in BS-17. By the amendment made in 2011 he was equated with employees in BS 1 to 16. He had to appear alongwith other employees in the departmental promotion examination of 300 marks. In this manner the prospects of his promotion were adversely affected. The rules in 2011 had thus been framed to, his detriment, This could not be done. The rights of the appellant had to be regulated and governed by 1990 Rules only. His prospects for promotion could not be taken away or adversely affected by the amendment made in 2011.
11. A similar view was expressed by the Service Tribunal in its judgment dated 01.10.2009 given by a Bench' comprising Syed Bilal Ahmed and Mr. Ismail Hassan Niazi, Members. It was concluded in the judgment that the terms and conditions of service could not be altered to the disadvantage of an employee whether in Government service or an organization established by the Government. The judgment of the Tribunal is binding since it has attained finality. The learned Chairman of the Commission had not taken notice of this judgment in its judicial perspective. We have seen the order passed by him. It was an order passed in his executive capacity. The judicial norms were not adhered to. In our view, proper respect should have been given to judicial findings given by the Federal Service Tribunal in its aforementioned judgment dated 2.10.2009.
12. We have seen the Civil Servants Act, 1973. It was under Section 25 of the Act that the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 were framed. In this Act also power's to amend rules retrospectively, adversely affecting the prospects of promotion of civil servants, already in service, have not been given. Hence under the subordinate rules of 1973 or 1990 and thereafter 2 011 no powers were given to the Commission to legislate or alter the rules retrospectively.
13. By the amendment in 2011 the prospects of appellants' promotion were affected to a great extent. This could not be done. The rights given to him to get promotion under 1990 Rules could not be taken away or reduced unilaterally.
14. Some representatives of the subordinate service of the FPSC and Members of the Commission might have participated in the proceedings which had culminated into amendment made in 2011 but this did not mean that the present appellant had also agreed to that amendment. It is the question of his rights which is involved. The authority to act on his behalf could not be given to other employees. Be that as it may, there was no authority vested in the Commission or any of its employees to change the Service Rules of the appellant to his, disadvantage. We further hold that even the Members of the Commission and representative of the officials could not authorize change in the Service Rules, applicable to the appellant.
15. In view of the above, we hold that the amendments in the 1990 Rules, made in 2011, had no legal effect on the prospects of promotion so far as the present appellant was concerned. We, therefore, hold that these rules did not adversely affect the appellant. He shall not be equated with other employees in BS 1 to 16. The rules shall be applied to the employees who have joined the Commission after such amendment. The appeal stands decided in the above terms.
16. There shall be no order as to costs.
17. Parties shall be informed accordingly.