QAZI FAEZ ISA, J. --- These appeals arise out of a judgment dated 26th February, 2014 of the Hon'ble Khyber Pakhtunkhwa Service Tribunal ("Tribunal") whereby through a common judgment ten service appeals were disposed of in the following terms:--- "14. Having said that, there can possibly been cavil with the legal propositions that the Government has the authority to frame rules and also introduce amendments in the relevant rules to enhance qualification for a particular post; but the issue here is not that of amendments in the rules for enhancement of the qualification, rather dispute is with regard to unilaterally curtailing of quota of a particular class of employees to their detriment. One can also make no bones about the fact that jurisdiction of the Service Tribunal is barred in cases of promotion; bur, primarily the appeals have been lodged against amendments introduced in the service rules, which, according to the appellants, did not meet the ends of law and justice.
15. As a sequel to the foregoing discussion, on the partial acceptance of the appeals, the case of amendments in question is referred to the competent authority i.e. Secretary to Government of KPK, Irrigation Department (Respondent No. 2) for reconsideration of the impugned amendments in the light of above discussion and observations made in the judgment for a just decision and further necessary action, under intimation to the Registrar of the Tribunal, within reasonable time. In order to avoid further legal complications and frustration of the spirit of this judgment, promotions under the amended rules he put on hold in the meantime. There shall, however, be no order as to costs."
2. That in the appeals before the Tribunal it was contended that the appellants therein were working in the Irrigation Department as Sub-Engineers (BPS-11) and were appointed on the basis of having a diploma in Associate Engineering and enjoyed 20% reserved quota for promotion to the post of Assistant Engineer (BPS-17) as provided in the Khyber Pakhtunkhwa Irrigation and Public Health Engineering Department (Recruitment and Appointment) Rules, 1979 ("the Rules"), which were amended by reducing their stipulated quota as a new category was created for those Sub- Engineers who possessed a degree in B. Tech. (Hons) and who had passed Grade A and Grade B examinations with a minimum service of five years. It is stated that carving out of this new 'category' of decree-holders had reduced the promotion prospects of the appellants who were diploma holders.
3. That with regard to the post of Assistant Engineers, both in respect of initial recruitment and promotion, it would be appropriate to reproduce the applicable requirements mentioned in the Appendix of the Rules as it originally stood and as it was amended from time to time, as under:--- As originally stood vide Notification dated 30th April 1979: "(a) Seventy per cent by initial recruitment; and
(b) Ten per cent by selection on merit with due regard to seniority from. Amongst' Sub-Engineers of the Deptt. Concerned in which the vacancy occurs, who hold a degree; and
(c) Twenty per cent by selection on merit with due regard to seniority from amongst officiating Assistant Engineers of the vacancy occurs, who hold a diploma."
As amended vide Notification dated 27th February, 1999: "(a) Sixty five percent of the total posts by initial recruitment;
(b) Ten percent of the total posts by promotion, on the basis of seniority-cum-fitness from amongst the Sub-Engineers possessing Diploma at the time of their induction into service but acquired degree in Engineering during service;
(c) Ten percent of the total posts by Promotion, on the basis of seniority-cum-fitness, from amongst the Sub-Engineers who joined service as Degree holders in Engineering; and
(d) Fifteen percent of the total posts by selection on merit with due regard to seniority, from amongst the officiating Assistant Engineers/Senior Scale Sub-Engineers, the [sic] who hold a Diploma in Engineering and have passed Departmental Examination: Provided that where a candidate under clause (b) above is hot available, the vacancy shall be filled from amongst Diploma holders Sub-Engineer.
Provided further that where a candidate under clause (c) above is not available, the vacancy shall be filled by initial recruitment."
As further amended by Notification dated 17th February, 2011: "(a) Sixty five percent by initial recruitment.
(b) Ten percent by promotion, on the basis of seniority-cum-fitness, from amongst the Sub- Engineer's who has acquired during service degree in Civil or Mechanical Engineering from a recognized university.
(c) Five percent by promotion, on the basis of seniority-cum-fitness, from amongst the Sub- Engineer's who joined service as degree holders in Civil/Mechanical Engineering and
(d) Twenty percent by promotion, on the basis of seniority-cum-fitness from amongst the Sub- Engineer's, who hold a diploma of Civil, Mechanical, Electrical or Auto Technology and have passed Departmental Grade A examination with ten years service as such.
Note: Provided that where candidate under Clauses (b) & (c) above is not available for promotion, the vacancy shall be filled in by initial recruitment."
As finally amended by Notification dated 25th June, 2012: "(b) twenty percent by promotion; on the basis of seniority-cum-fitness, from amongst the Sub- Engineers, having degree in Civil Engineering or Mechanical Engineering from a recognized university and have passed departmental grade B&A examination with five years service of such.
Note:- For the purpose of Clause (b), a Joint seniority list of the Sub-Engineers having Degree in Civil Engineering or Mechanical Engineering shall be maintained and their seniority is to be reckoned from the date of their 1st appointment as Sub-Engineer.
(c) eight percent by promotion, on the basis of seniority-cum-fitness, from amongst the Sub- Engineers, having Degree in B. Tech. (Hons) and have passed departmental Grade B and A examination with five years service as such; and Note:- For the purpose of clause (c), a seniority list of Sub-Engineers having Degree in B. Tech
(Hons) shall be maintained and their seniority is to be reckoned from the date of their 1st appointment as Sub-Engineer.
(d) fifteen percent by promotion, on the basis of seniority-cum-fitness, from amongst the Sub- Engineers, who hold a Diploma of Associate Engineer in Civil, Mechanical, Electrical or Auto Technology and have passed departmental Grade B and A examination, within five years service as such.
Note:- For the purpose of clause (d), a seniority list of Sub-Engineers having Diploma of Associate Engineering in Civil Mechanical, Electrical or Auto Technology shall be maintained and their seniority is to be reckoned from the date of their Ist appointment as Sub-Engineer.
Note:- The quota of clauses (b), (c) and (d), above respectively shall be filled in by initial recruitment, if no, suitable Sub-Engineer is available for promotion;"
The grievance of the appellants before the Tribunal was that their promotion quota had been curtailed from 20% to 15% vide clause (d) of the Notification dated 25th June, 2012. They had further prayed that the Government be restrained from processing the promotion cases on the basis of such Notification and in particular of those who had obtained the B. Tech. (Hons) degree.
4. Mr. Arshad Jan, Additional Advocate General, Khyber Pakhtunkhwa, and Mr. Ghulam Mohy-ud- Din Malik, ASC (on behalf of private appellants who possessed B. Tech. (Hons) degree) have assailed the impugned judgment on the following grounds:---
(1) That the Hon'ble Tribunal had no jurisdiction as the Rules were amended by the Government and not by any departmental authority and in this regard reliance was placed upon Section 4 read with Section 7 of the Khyber Pakhtunkhwa Service Tribunals Act, 1974;
(2) That the amendment was made to ensure that the higher positions are held by those who were competent and possessed the requisite qualifications;
(3) That the diploma-holders could also obtain degree in B. Tech. (Hons) and then they too could also avail of the benefit of clause (c) as lastly amended;
(4) That the amendment made in the Rules was not person specific nor had any element of mala fide;
(5) That promotion or reserving a certain quota for promotion cannot be claimed as a vested right; and
(6) That the matter was within the domain of policy and beyond the jurisdiction of the Tribunal.
Reliance was also placed upon the following precedents:--- Dr. Alyas Qadeer Tahir v. Secretary Wo Education (2014 SCMR 997)
Executive District Officer (Revenue) v. Ijaz Hussain (2012 PLC (C.S.) 917)
Zafar lqbal v. Director, Secondary Education (2006 SCMR 1427)
Fida Hussain v. The Secretary, Kashmir Affairs and Northern Affairs Division (PLD 1995 SC 701)
5. That Mr. Ijaz Anwar, learned counsel appearing for the respondents (appellants before the Service Tribunal), urged that the Tribunal had jurisdiction to decide the matter as the amendment to the Rules had affected their terms and conditions of service and in this regard placed reliance upon the cases of Muhammad Mubeen-us-Salam v. Federation of Pakistan (PLD 2006 SC 602) and I.A. Sherwani v. Government of Pakistan (1991 SCMR 1041).
He further stated that, at the time when the appellants before the Tribunal joined service the Rules prescribed a certain quota for promotion to the next higher grade of Assistant Engineer and such quota could not be reduced as it would adversely affect their prospects of advancement. It was lastly contended that there were a large number of diploma-holder Sub-Engineers whereas only a few possessed B. Tech. (Hons) degree.
6. That the appeal against the judgment of the Tribunal lies to this Court if it involves a substantial question of law of public importance (sub-Article (3) of Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973) and if leave has been granted. In these cases leave was granted by this Court vide order dated 29th May, 2014, relevant portion whereof is reproduced hereunder:--- "Having heard the learned counsel for the petitioners in Civil Petitions No. 592 to 601 of 2014 and learned Advocate General, Khyber Pakhtunkhwa in Civil Petition No. 230-P of 2014, leave to appeal is granted in all these petitions inter alia to consider whether the rules .For promotion of Assistant Engineers (BS-17), Irrigation Department, could be subjected to judicial review before the Service Tribunal...."
The question whether the Tribunal can impinge upon the right of the Government to make rules stipulating the criteria for promotion, and having done so the Government cannot change the same, is undoubtedly a substantial question of law of public importance.
7. With the help of the learned counsel we have examined the Appendix to the Rules and we have not been able to detect that the amendment finally made thereto was with a view to accommodate specific individuals or for any other ulterior motive. We have also gone through the contents of the service appeals wherein no allegation of male fide was levelled. Therefore, the only questions for our consideration are, firstly, whether the Hon'ble Tribunal exceeded its jurisdiction and, secondly, whether the quota of any class of employees (diploma-holders herein) could not be reduced, and to create from amongst them a separate quota of degree holders who would also be eligible for promotion as Assistant Engineers.
8. The Tribunal appears to have been impressed that there were one hundred and thirty diploma- holders whereas there were only thirteen graduates having B. Tech. (Hons) degrees, therefore, in the opinion of the Hon'ble Tribunal it was necessary to preserve the quota of the diploma-holders.
The concern of the Tribunal effectively meant that if there are many less qualified persons they should have greater prospects for advancement and those who had higher qualifications or who had improved their qualifications should not have an advantage. The anxiety of the Tribunal in this regard was misplaced. In the reported case of Dr. Alyas Qadeer Tahir v. Secretary Wo Education (2014 SCMR 997), it was held:--- "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 of validity of Rules or amendments therein attending to such aspects, cannot, therefore, be looked askance at. The more so when there is absolutely nothing in the Rules to show that they are either person specific or an off shoot of mala fides."
9. That where talent, skill and capability is rewarded it provides opportunity to ambitious employees and if those amongst them who are better qualified receive a differential focus it benefits the department and the people of Pakistan, as all civil servants are there to serve the people. Similarly, if the bar to aspire to higher positions is raised it encourages and motivates employees to take ownership of their careers and personal development. Moreover, when higher educational qualification and talent is appreciated it makes for a more transparent system of advancement and may also help to retain talented individuals in an organization.
10. That it was not a case of the appellants before the Tribunal that they were prevented from improving their qualifications, therefore, ;f the government, as a policy matter, wants to restrict promotion to those having degrees, or create another category of such persons it is not ultra vires of any law (even though no law was cited in this regard) nor is it unreasonable. The matter fell within the exclusive domain of the Government, which, in the absence of demonstrable mala fides could, not be assailed as held in the case of Executive District Officer (Revenues) v. Ijaz Hussain and another (2012 PLC (C.S.) 917), as under:- "If the said power is exercised in a mala fide manner, it is the particular mala fide act which can be challenged and struck down."
"The framing of the recruitment policy and the rules thereunder, admittedly, fall in the executive domain. The Constitution of Islamic Republic of Pakistan is based on the well-known principle of trichotomy of powers where legislature is vested with the function of law making, the executive with its enforcement and judiciary of interpreting the law. The Court can neither assume the role of a policy maker or that of a law maker."
Similarly, in the case of Fida Hussain v. The Secretary, Kashmir Affairs and Northern Affairs Division (PLD 1995 SC 701), it was held, that:--- "It is exclusively within the domain of the government to decide whether a particular qualification will be considered sufficient for promotion from a particular Grade to a higher Grade and it is also within the domain of the Government to change the above policy from time to time as nobody can claim any vested right in the policy."
11. That neither promotion nor the criteria set out to aspire for promotion can be categorized as a 'right' that could be justiciable. In this regard reference may be made to Zafar lqbal v. Director, Secondary Education (2006 SCMR 1427), wherein we had held, that:--- "The Government is always empowered to change the promotion policy and the domain of the Government to prescribe the qualification for a particular post through amendment in the relevant rules, is not challengeable. This is also a settled law that notwithstanding fulfilment of the requirement qualification and other conditions contained in the rules, the promotion cannot be claimed as a vested right."
12. The Tribunal had directed the Government, "for reconsideration of the impugned amendments" and further directed that, "promotions under the amended rules be put on hold in the meantime."
The Hon'ble Tribunal had clearly exceeded its jurisdiction in issuing such directions.
13. In conclusion, since it was a policy matter the Government was empowered to reduce the said quota of diploma holder Sub-Engineers for promotion to the post of Assistant Engineers and also to create a separate quota of B. Tech.. (Hons) degree holders for promotion to the post of Assistant Engineers; the same was also not justiciable, and in directing the Government to reconsider the same and to hold in abeyance the promotions made in accordance with the Rules as finally amended the Tribunal exceeded its jurisdiction.
4. That we had allowed these appeals vide our short order dated 11th November, 2014 reproduced hereunder:--- "We have heard the arguments of the learned ASCs representing different parties in these connected appeals. For the reasons to be recorded separately, these appeals are allowed, the judgment dated 26.2.2014 is set aside and consequently the service appeals filed by the respondents before the Service Tribunal are dismissed."
The aforesaid are the reasons for doing so.