ABDUL SHAKURUL SALAM, J.-This judgment will dispose of I. C. A. No. 662 of 1980 and Writ Petition No. 5446 of 1981 as these arise in similar circumstances.
2. Punjab Secretariat Clerks Association, and, Punjab Secretariat Personal Assistants and Stenographers' Association, represented that direct recruitment to the cadres of Assistants and Senior Scale Stenographers should be discontinued. The matter was discussed with the representatives of the Associations in series of meetings with the Secretary, S & GAD/Additional Chief Secretary/Chief Secretary and it was finally agreed that direct recruit--ment at Assistant/Senior Scale Stenographers level shall be discontinued and instead direct recruitment quota shall be filled in from amongst junior/senior clerks, and, from Junior Scale Stenographers Grade-1 who qualify in the examination which may be held once a year. . The aforementioned decision was mentioned in U. O. No. E&A (S&GAD) 13 (16)/71, dated 29-3-1972 (Annexure 'C' page 45 of the file) in case of promotion to Assistants, and in Memo. No. SOP-IV-3 (211/72, dated 23-2-1973 in the case of promotion to Senior Scale Stenographers. It was stated in the memos that the decisions envisage modification of the relevant provisions in rule 5 (b) of the West Pakistan Secretariat Ministerial Rules, 1963, for which Regulation Wing was requested to take immediate steps for modifying the service rules in question accordingly. 1t is the case of the appellants/petitioners that action was taken on the basis of the agreements aforementioned for a number of years and no direct recruitment was made until recently when advertisement have been issued for direct recruitment.
3. The contention of the learned counsel appearing on their behalf is that the Government having made commitment through its Chief Secretary and others and having carried out the agreements for a number of years, is precluded to act contrarily now, especially when the appellants/petitioners cannot compete for direct recruitment having become overage. It is submitted that if the Government had not agreed to make direct recruitment or sought to make direct recruitment at the relevant time, the gentlemen concerned would have competed for direct recruitment and might have been successful. But their chances for the higher post having been nullified by the acts of the Government, the latter is not entitled to resile from its previous commitment.
4. Mr. Tanveer Ahmad Khan, learned Assistant Advocate-General has submitted that the very agreements relied upon by the appellants/petitioners provided and it was known to them at that time that the agreement would be carried out by modifying the relevant rules. The amendment was sought to be made but the Public Service Commission did not agree and the Rules have not been amended by the competent authority, the Governor. In the absence of the amendment in the Rules, the appellants/petitioners cannot claim that they have any legal right or there has been any violation of law or rules enforcible through constitutional jurisdiction of this Court. He has also submitted that the agreements relied upon did not debar the Government from its inherent right of taking executive action according to the circum--stances of the case and for this proposition he has referred to Sultan Mahmood v. Government of West Pakistan PLD 1964 SC 302and read out from the report at page 308 that :-- "The Government had been asked whether a scheme had been settled for fixing the seniority of these officers and what action had been taken. The Minister gave the reply that Mr. Dent had formulated one scheme and Mr. Zuberi had put forward another and that the Government had decided that inter se seniority would be based upon the marks obtained in the departmental examinations. It is questionable what degree of validity such an answer given by a Minister before the Legislative Assembly has, as a definitive order to bind the Government. It must, in my view, be accepted, on its face, as a declaration of the Government's intention in a certain way following the making of a decision at the appropriate level. But, at the same time it must be accepted as being subject to the inherent power of Government to act, in its executive capacity, according to the circumstances in existence, when action is invoked, and irrespective-of anything said, or any intention, whether declared or otherwise, formed at any earlier time."
5. From the submissions made by the learned counsel for the parties, it is quite clear that on the Associations' representation, the Government agreed that promotion to the higher posts will be from amongst and the categories of the appellants/petitioners and no direct recruitment shall be made. But both parties were aware that to give effect to the agreements, there will be the necessity of amending the existing rules. The rules have not been amended by the rule-making authority.
The executive authority who made the agreements and the legislative authority who had the power to make orl amend the rules, are two distinct entities. Even if one person or body were to be vested with both functions, still its capacities as executive and legislative, would not be merged and the two spheres would remain separate and distinct. Therefore, as long as the agreements of the executive which required legislative action for its enforcibility was not given effect to by amendment of the existing law, no right enforceable in law was created in favour of the appellants/petitioners. Moreover, the agreement by the executive Govern--ment with its employees at a given time does not enure for all times to come.' Circumstances may change.
'Successive government may have need o different policies. Executive per force of moving times has inherent authority to keep pace. Otherwise, it is left behind and replaced by a more active executive which can deal with the situation as it exists at a given time.
6. From the above, it would be quite clear that since the so-called agreements were not given effect to by modification or amendment of the relevant rule, these created no right in favour of the appellants/petitioner enforceable through Courts of law and no direction can be issued to the Government under the Constitution to act in any manner other than as provided by law. In this view of the matter, we agree with the learned Single Judge that the respondent authorities cannot be compelled to act contrary to the existing rules. Therefore, the appeal fails and so also the petition.
Both are dismissed but in the circumstances the parties shall bear their own costs.