JUDGMENT. EJAZ AFZAL KHAN, J. --- This appeal with the leave of the Court has arisen out of the judgment dated 10.04.2013 of the learned Service Tribunal whereby it allowed the appeal filed by respondent No 4 in the terms as under:--- "ln view of the facts narrated above and decisions of the superior Courts, we hold that the Rules framed in 2006 being contradictory, manipulated, and insertion of the educational qualification in the standard eligibility criteria for promotion is unlawful, against the natural iaw of justice, adversely affecting the terms and conditions of service and is not applicable to the present incumbent We, therefore, direct the respondents to place the case of the appellant before the CSB for consideration of his promotion of DDG (SE) (BS-20) with effect from the date when the post was available and the annual confidential reports of the appellant will be considered upto the said period. With this direction the appeal is disposed of with no order as to costs".
2. Points raised and noted at the time of grant of leave read as under:--- "Learned counsel for the petitioner states, that Rules 2006 for the first time were assailed by respondent No. 4, by filing a representation it the year, 2011; thereafter, a time-barred departmental appeal was, filed by him and it is a settled law, that where such an, appeal is barred by time, the service appeal shall be incompetent, in view of the law laid down by this Court in the case reported as Muhammad Aslam v. WAPDA and others (2007 SCMR 513). It is also submitted that successive representation could not confer fresh cause of action to the respondent or extend the period of limitation, which had already lapsed; besides, the Service Tribunal in the facts and circumstances of the case was not justified to hold "that the Rules framed in 2006 being contradictory, manipulated, and insertion of the educational qualification in the standard eligibility criteria for promotion, is unlawful against the natural law of justice, adversely affecting the terms and conditions of service and is not applicable to the present incumbent." Leave is granted to consider the above."
3. Learned ASC appearing for the appellant contended that in case no rules prescribing minimum qualification for promotion were enacted at the time of appointment of a civil servant, it doesn't mean that such state of things would continue till his retirement. He next contended that no civil servant can claim vested. right on account of absence or enactment of rules different from those existing at the time of his appointment. Such rules, the learned ASC added, cannot be declared ultra vires nor could any direction be given for considering any one for promotion against such rules. The impugned judgment, the learned ASC submitted, being against the dicta of this Court rendered in the cases of "Government of the Punjab and others v. Muhammad Jafar Bhatti and others" (2004 PLC (CS) 881) and "Iqan Ahmed Khurram v. Government of Pakistan and others" (1980 SC 153) is un-sustainable. It is all the more un-sustainable, submitted the learned ASC,, when it was rendered in an appeal filed 06 years after the enforcement of the said rules.
4. Learned ASC appearing on behalf of respondent No. 4 contended that when Master's degree in Natural or Physical Science was not a requirement for promotion at the time of appointment of the respondent, it could not be made a requirement for promotion at a subsequent stage just to debar him from promotion to the next higher sca!e. He next contended that where the department itself proposed amendment in rules so as to make way for promotion of the respondent to the next higher scale, no cudgels with defect or deficiency in the rules could be taken. The decision of the Service Tribunal, the learned ASC maintained, being free from any error or infirmity is un - exceptionable on all accounts.
5. We have gone through the entire record carefully and considered the submissiors of the learned ASCs for the parties.
6. It is not disputed at the bar by any of the parties that no rules governing appointment and promotion re enacted at the time, the appellant and respondent No. 4 were appointed. These rules were published on 18th July, 2006. They were called National Institute of Science and Technical Education Rules, 2006. Rule 3 of the aforesaid Rules provides for promotion to the next higher scale which is relevant for resolution of the controversy raised before us and thus reads under:-- 3. Conditions for promotion.---Promotion to the posts in column 2 below shall be made by selection from amongst the person who hold the posts specified in column 3 on a regular basis and fulfill the conditions of eligibility as prescribed in column 4. Sr. Designation & BS Persons Nos.. eligible 1. ' Deputy Director Associate (Technical Professor Education) (BS- (BS-19) 20) Conditions of eligibility 17 years service in BS-17 and above or 12 years service in BS-18 in case of initial recruit in BS- 18 or 5 years service in BS-19 in case of initial recruit in BS-19, in the relevant field with atleast Bachelor's degree in Engineering. 2. 3. 4. 5.
6. Deputy Director Director (BS- 17 years service in General Science 19) BS-17 and above. Education (BS- or 12 years service 20) in BS-18 in case of initial recruit in BS-18 or 05 years service in BS-19 in case of initial recruit in BS-19 in the relevant field with at least Master's degree In Natural/Physical Science.
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.. . 7 The grievance of the respondent before the Service Tribunal was that when there was no rule governing promotion to the next higher scale, no rules prescribing qualification could be enacted or enforced but this grievance, to say the least, is not legally and logically tenable. For enactment of rules or amendment therein is the !prerogative of the Government. It can enact and amend the rules according to the needs and exigencies of service. It is not intlividual but institutional interest or uplift which shapes its service structure. Alright at the time of appointment of the respondents, no such rules were enacted or enforced but it does not mean that the institution or the apartment having thus started would remain in wilderness. It may change with a change in attending circumstances and future prospects. Its right to improve and update its service structure to keep pace with modern age which is indisputably the age of specialization cannot be restrained or restricted on the ground that at the time of appointment of one or a few civil servants, such qualification was not a requirement for promotion. Higher qualification or a more specialized qualification for a post in a higher scale is a need of the hour which has to be taken care of. The vires or validity of Rules or amendments therein attending to such aspects, cannot. therefore, be looked askance at. The moreso when there is absolutely nothing in the Rules to show that they are either person specific or an off-shoot of mala fides. In the case of "The Central Board of Revenue, Government of Pakistan v. Mr. Asad Ahmed Khan" (PLD 1960 SC (Pak.) 81), this Court while dealing with an identical proposition of law held as under-- "In our opinion The High Court made the above order without taking into consideration all the factors relevant to the case, namely, in the first place the taking out of the.post of Deputy Superintendent of the category of class Ill, to which the petitioners belong, amounted to abolition of the post and its upgrading on a higher scale of pay to a creation of the new post, appointment to which required a stricter test of efficiency by a competitive examination. Besides, all the Inspectors were given the right to sit in the examination for any number of times to qualify themselves for promotion. At the same time the pay scale of those, who could not succeed, was raised to the limit of Rs. 350, namely, the same pay as that of a Deputy Superintendent when it was a class Ill post. In the circumstances it cannot be said that any rights of the petitioners were infringed, which they could enforce by a writ petition. The Government has every right to make rules to raise the efficiency of the services, and if no vested right is denied to a party, the High Court had no jurisdiction to interfere by means of a writ. The order of the High Court, which is not supported by sound reasons, is hereby set aside and the appeal is allowed". In the case of "Ch. Muhammad Inshal Ullah and others v. Chief Conservator of Forests (P&E), Punjab and others" (PLD 1988 SC 155), this Court after examining a string of judgments of this Court held as under:--- "it is true that the departmental noting and the opinion of the Law Department on which the Service Tribunal heavily relied upon, go to sustain the contention of the learned counsel for the respondents. All the same, the opinion of the government officers held and noted while examining the exercise of statutory power is neither relevant nor decisive of the question of validity of the exercise of statutory power. Nobody denies to the Governor the power under Section 23 of the Civil Servants Act to frame Rules of service. This power was expressly invoked for framing the rules. The rule framed did not, as already shown, affect any vested right of the respondents. In the absence of impairment of vested right, it would be within the exclusive competence of the Governor to determine the terms and conditions of the service. It cannot be said that a rule which grants weightage to academic qualifications against experience is unreasonable and harsh. With the increasing emphasis on specialization and improved techniques and knowledge, the academic qualification may be granted greater weightage than the actual experience on the job without such qualifications. There was, therefore, nothing unreasonable or manifestly oppressive. It cannot be said that the exercise of power was male fide where the power was possessed and has been exercised reasonably and on relevant considerations. There is now perceptible greater emphasis visibly shown in the framing of rules to, academic qualifications than to on-the-job experience without such specialized qualifications particularly where promotion to higher post is involved". The cases of "Government of the Punjab and others v. Muhammad Zafar Bhatti and others", "Igen Ahmed Khurram v. Government of Pakistan and others" (Supra) and "M.A. Rafique v. Managing Director (Power), WAPDA and 7 others" (1990 SCMR 927) may also be referred to in this behalf.
8. When considered against this background, the impugned judgment cannot be maintained. It cannot be maintained even on the score of limitation when appeal before the Service Tribunal was filed 06 years after the enforcement of the rules mentioned above.
9. For the reasons discussed above, this appeal is allowed and the impugned judgment is set aside.