Wiqar Ahmad, J. Petitioners who are six (06) in number have invoked the constitutional jurisdiction of this Court by filing the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
2. Petitioners have contended in their writ petition that they had received Patwar training and passed the prescribed Patwar examination in the years 2010, 2011 and 2012 from Patwar School and their names were entered in Patwar Register of the concerned District maintained under Para 3.6 of Land Record Manual. They have further asserted that they were fully qualified and their names stood inserted in the seniority list of Patwar passed candidates, maintained for the purpose of appointmen t of Patwaries in District Buner , but appointments were not made from the said list according to the order of seniorit y by the concerned appointing authorities. They had also contended that applications were invited for filing the posts of Patwaries in BPS-9 by respondent No. 5, through publishing advertisement for the said purpose in daily newspapers dated 13.09.2019, wherein it had also been mentioned that appointments would be made as a result of test and interview , in pursuance to Notification dated 25.11.2016 of the Revenue & Estate Department, Government of Khyber Pakhtunkhwa published in the official gazette on 04.11.2019. Through the latter mentioned Notification, amendments have been effected to the relevant service rules, wherein it was provided that appointment to the post of Patwari shall be held on the basis of result of test and interview conducted among the candidates whose names exists on the list maintained for the purpose. Feeling aggrieved therefrom, petitioners have filed the instant writ petition with the following prayer; "It is therefore very humbly prayed that, by the acceptance of this writ petition, impugned notification dated 25.11.2016 and advertisement dated 13.09.2019 of respondent No. 5, may kindly be declared null and void upon the fundamental rights of the petitioners, be struck down and respondents may kindly be directed to appoint the petitioners in according with the provisions of Land Record Manual.
Any other relief not specifically prayed but this august Court deems proper may also be granted."
3. Respondents were summoned, who have filed their para-wise comments wherein they have stated that in order to acquire services of best human resource for the department, they had amended the relevant service rules which required that appointments should be made in accordance with result of test and interview conducted for the purpose. They have also contended that the advertisement had been issued, according to rules prevalent at the time and no illegality or irregularity existed therein.
4. Learned counsel for petitioners has relied upon a judgment of his Court given in the case of "Ameer Taimoor and 7 others v/s Government of Khyber Pakhtunkhwa and 3 others" reported as "2016 PLC (C.S.) 106" and contended that a Full Bench of this Court had already held that candidates must be appointed from the list of Patwar passed candidates maintained in every Districts, strictly in accordance with their seniority and that the process of conducting test and interview for the purpose had been declared to be illegal and ultra vires. The learned counsel also added that even if amendments brought to the service rules are to be considered valid and operative, same could not be given a retrospective ef fect so as to divest the petitioners of their vested right.
5. Learned Adll: A.G appearing on behalf of the provincial government has contended that rules have already been amended and it provided that appointme nts to the posts of Patwari should be made in pursuance to test and interview conducted among the Patwar passed candidates and therefore the department had done nothing wrong by advertising posts for filling the same according to law .
6. We have heard arguments of learned counsel for petitioners, learned Adll: A.G for official respondents and perused the record.
7. A Full Bench of this Court in its judgme nt given in the case of "Ameer Taimoor and 7 others v/s Gove rnment of Khyber Pakhtunkhwa and 3 others" reported as "2016 PLC (C.S.) 106" had, no doubt, held that appointments of Patwaries should be made from the list of Patwar passed candidates, maintained for the purpose, strictly according to the order of seniority . But it is important to be noted, that the judgment has been rendered on 4th of February , 2015. Rules have subsequently been changed vide Notification dated 25.11.2016 wherein amendments have been ef fected in the following manner; "Amendments In the Appendix, against serial No. 8, in column No. 7, for the existing entry , the following shall be substituted, namely'
" By initial recruitment from amongs t the patwar passed candidates entered in the patwar candidates register of District concerned on the basis of test and interview to be conducted after advertising the posts."
It is important to be noted that this Court in the above-referred judgment have state d that it had been striking down the acts of respondents because it was not covered by the existing service rules, which were prevalent at the relevant time. Writ in the said case had been issued with express words to the effect that unless and until, rules for appointment of Patwaries were amended, respondents were bound to make appointments in accordance with the prevalent rules, which according to ratio of the judgment provided for appointmen t from the list of Patwar passed candidates on the basis of seniority . Relevant part of the judgment is reproduced hereunder for ready reference; The rules and policy is the formal expression of the will of the legislative organ of the State. There is clear- cut procedure for appointment of Patw aris in the Land Records Manual as well as in the West Pakistan (Northern Zone) Patwar Subordinate Service Rules, 1963. The arguments of learned A.A.-G. that the object of advertisement and test and interview is to ensure the fair selection, minimize the chances of discretion and favoritism, therefore, test and interview from amongst the list of the candidates of patwar pass persons is the better course than that of the selection provided in the land Record Manual has no force because competent authority has the powers to bring changes in the relevant rules for appointment on a particular post by making amendment in order to maintain efficiency in the services. If conduct of test and interview for appointment of Patwari keeping in view the exigency of services is necessary , it is the prerogative of the Government to make amendment in this regard in the relevant rules. In this respect, reliance is placed on the case titled Zafar lqbal and another v. Director Secondary Education, Multan Division and 3 others ( 2006 SCMR 1427 ) wherein, the august Supreme Court has observed 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 fulfillment of the requirement qualification and other conditions contained in the rules, the promotion cannot be claimed as a vested right."
11. For what has been discussed above, we are of the view that until and unless rules prescribed for appointment of Patwaris provided in the Land Record Manual as well as service rules with regard to method of recruitment of patwaris are not amended or struck down, the respondents are bound to make appointment in accordance with the existing rules and policy governing the subject matter as it is settled principle for administration of justice that when law requires a thing to be done in a particular manner then that thing be done in that particular manner and not otherwise.
When the rules have subsequently been amended, then judgment of this Court cannot be considered a bar in the way of respondent to fill seats of Patwari es from amongst the Patwar passed candidates on the basis of test and interview conducted for the purpose. It has also been stated by respondents in their comments that the subject amendments have been brought in rules, in pursuance to Full Bench judgment of this Court.
8. So far as the relevant provisions of Land Record Manual is concerned, it has not yet been amended, but there was no need for its amendment. The relevant Para i.e. 3.6 itself says that appointm ent of Patwaries shall be made strictly in accordance with service rules and recruitment policy as may be applicable at the relevant time. Said Para is also reproduced hereunder for ready reference; 3.6. List of Patwar pass persons. (1) For each Sub-Division a list of all Patwar pass persons shall be maintained by the Sub-Divisional Collector/Political Assistant in Form P-1 given in Appendix `G' with a view to have ready information about the availability of eligible persons in the Sub-Division to facilitate filling up the vacancies. However , the appointment of Patwaries shall be made strictly in accordance with Service Rules and the Recruitment Policy as may be applicable at the relevant time."
It is evident from the above Para that same does not provide an all-inclusive procedure for appointment of Patwaries, but only provides for maintenance of list of Patwar pass persons, qualification for Patwaries and the procedure for maintenance of the said list. Method of recruitment has been left therein to relevant service rules and recruitment policy . As stated earlier , the relevant service rules have already been amended and a new mechanism for filling seats of Patwaries has already been provided.
9. Learned counsel for petitioners has also argued that the amended rules could not be given retrospective effect so as to take away vested rights of the petitioners and same should be given a prospective effect rather . It is difficult for us to agree with the contention of learned counsel for petitioners beca use we do not find any vested rights to have been accrued to the petitioners with their entry into the list of Patwar passed candidates. The purpose of maintaining such a list was to keep the department up-dated about the availability of the eligible persons in the relevant Sub-Division so as to facilitate filling of the vacancies. This is clear from the very wordings of Sub Para (1) of Para 3.6 of the Land Record Manual, reproduced hereinabo ve. Mere entry of name of the petitioners in the list cannot be deemed to have clothed them with a vested right. In the case of "Secretary Finance and others v/s Ghulam Safdar" reported as 2005 SCMR 534, the Hon'ble Apex Court had held that mere selection in written examination and interview test would not by itself vest a candidate with a fundamental right for enforcement as such in the exercise of constitutional jurisdiction of the high Court. Relevant observation of the Hon'ble Apex Court is reproduced hereunder for ready reference; "Be that as it may, it is difficult to sustain the prayer of the respondents since mere selection in written examination and interview test would not, by itself vest candidates with a Fundamental Right for enforcement as such in the exercise of Constitutional jurisdiction of the High Court. Admittedly , the appellants had not issued any offer of appointment to the respondents and their appointment was subject to clearance by the Establishment Division under the Centralised Syste m of Recruitment till it was discontinued in November , 1996, which again coincided with the imposition of ban on fresh recruitments, which could not be safely ignored by the appellants. Thus, the High Court was not right in overlooking this aspect of the case and issuing a writ of mandamus of the nature prayed for ."
So much so that civil servants, whose names were entered in the seniority list for the purpose of appointment by promotion to a post have also been held by the Apex Court to be divested of claiming a vested right. In the case of "Muhammad Zakir Khan v/s Government of Sindh and others" reported as "2004 SCMR 497", the Hon'ble Court had recorded the following findings in said respect, on the basis of ratio decidendi laid down in a number of earlier cases; "9. Adverting to the issue of locus poenitentiae raised by the petitioner , suffice it to say, apart from section 21 of the General Clauses I Act 1897, power of rescission or recall of the earlier order is always available to the authority passing an earlier order . Admittedly , seniority is not a vested right of the civil servants under the Act 1973, thus placement of the petitioner in the provisional seniority list at serial No. 1 did not confer any vested right on him to invoke the doctrine' of locus poenitentiae within the purview of the rule laid down in Pakistan v. Muhammad Himayatullah PLD 1969 SC 407; Engineer-in-Chief Branch v. Jalaludd in PM) 1992 SC 207; Abdul Hague Indhar v. Province of Sindh 2000 SCMR 907; Pakistan International Airlines v. Nasir Jamal Malik 2001 SCMR 934; Director-General .v. Muhammad Abdul Latif 2003 SCMR 410 and Pakistan International Airlines Corpora tion v. Inayat Rasool 2003 SCMR 1128. It was quite unnecessary and uncalled for on the part of the Tribun al to observe that the petitioner had secured his appointment in Education Department by exerting political influence."
The petitioners in the case in hand cann ot claim to have acquired vested right and therefore their plea against retrospective operation of the rules is misplaced.
10. In light of what has been discussed above, case of the petitioners was found to have been lacking merits and same is accordingly dismissed.