Wiqar Ahmad, J. Petitioners have invoked constitutional jurisdiction of this Court, by filing the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as 'Constitution' ).
2. Petitioners have introduced themselves as residents of District Dir Lower . Petitioner No. 1 is having qualified M.Sc - course in Health and Physical Education as well as M.Phil in the same subject. Petitioner No. 2 is also having Master degree in Health and Physical Education. They have contended in their writ. petition that respondent No. 3 i.e. District Education Officer (Male), Dir Lower invited applications for filling the posts of Physical Education Teacher in BPS-15 (hereinafter referred to as 'PET' ), via publishing an advertisement in daily newspaper , whereafter test was conducted by the authorities of National Testing Service and merit list was accordingly drawn among the competing & successful candidates. Private respondents No. 6 to 37 were appointed on the posts, while petitioners have been ignored. The basic grievance of petitioners arises out of amendments in the relevant criteria, whereby the concerned department has done away with the requirement of qualifications of a course in Health and Physical Education, for appointment on the post of PET. The impugned amendments were effected vide Notification dated 30.01.2018, which have been impugned by petitioners along with appointments of private respondents, by filing the instant constitutional petition with the following prayer; "It is therefore very humbly prayed that, on acceptance of this writ petition; i. the amended rules, to the extent of amendment against serial No. 18 in column No. 3 & 4 for the specialized post of Physical Education Teacher (PET) BPS-15 may kindly be declared null and void (being ultra vires & Ultra constitutional) upon the rights of the petitioners; ii. the petitioners may kindly be considered for the posts of PET on the strength of their specialized qualification, be appointed as P.E.T. as candidates for the posts of AT, TT & Science subjects have been considered in accordance with their specialized qualification; iii. impugned order Endst No. 15563/ PET/Appointment/Ad hoc/NTS/ 2017-18 dated 28.12.2018 may kindly be set aside, being based on amended rules; Any other relied not specifically prayed but this august Court deems proper may also be granted."
3. Comments were called from respondents, which have accordingly been filed by them. They have defended their act of amending the criteria, where the requirement of possessing a qualification in the area of Health and Physical Education had been done away with. They had also explained that the relevant amendments had been made according to prescribed procedure and there had been no procedural impropriety or lack of lawful authority therein.
4. Learned counsel for petitioners has attacked vires of the amended criteria by contending that petitioners had been under an impression that by acquiring qualification in the field of Health and Physical Education, they would be appointed on the post of PET and other similar posts but after getting the qualification, they found that respondents have amended criteria for appointment by doing away with the requirement of essential qualification in the relevant field, whereafter all the aspirants had applied for the post, pushing the petitioners downward in merit list. Learned counsel stated that once this impression had been created by respondents, by enacting rules to said effect earlier , same could not be changed to their disadvantage subsequently . Learned counsel also added that the impugned amendment in service rules, even if found valid, could not be given retrospective effect so as to curtail vested rights of petitioners. He also placed reliance on the judgments reported as 2019 SCMR 1132 and PLD 2017 Lahore 1 , in order to bolster his case.
5. Learned Addl:A.G submitted in rebuttal that Government was fully compe tent to change the criteria for appointment and that petitioners had been having no vested right, whereupon same may be struck down.
6. We have heard arguments of learned counsel for petitioners as well as learned Addl:A.G appearing on behalf of official respondents and perused the record.
7. Earlier criteria for appointment on the post of PET was provided vide Notification No. SO(PE)4- 5/SSRC/MeetinW2012/ Teaching Cadre dated 13.11.2012 of the Secretary to Government of Khyber Pakhtunkhwa Elementary and Secondary Education Department. The criteria required a basic qualification of one year diploma in Physical Education or an equivalent course from Army or other equivalent qualification. Relevant part of the criteria is reproduced hereunder for ready reference; Appendix S.No. Nomenclature of the PostMinimum qualification and experience for initial appointment or by transfer .Age limit Method of recruitment.
18 Physical Education Teacher (BPS-15)Bachelor's Degree from a recognized University with one year junior Diploma in Physical Education course or Army equivalency or other equivalent qualification,18 to 35 years a) Eighty percent by initial recruitment, and b) Twenty percent by promotion on the basis of seniority-cum-fitness, from amongst the primary School Head Teachers with at least five years service and having qualification prescribed for initial recruitment of Physical Education Teacher . Provided that if no suitable candidate is available for promotion then on the basis of seniority-cum-fitness, from amongst Senior Primary School Teachers with at least five years service and having qualification prescribed for initial recruitment of Physical Education Teacher .
Note: In case of non-availability of suitable candidate for promotion, then by initial recruitment.
A major policy shift was effected by Education Department of the Government of Khyber Pakhtunkhwa in the impugned notification, wherein requirement of professional qualification for appointment on the post of Certified Teacher (C.T) and Primary School Teach er (PST) as well as PETs have been done away with, making it open for all the desiring candidates to apply for the post so as to make the process of recruitment more competitive. The changes brought in respect of appointment of PET have been effected vide Notification No. SO(PE)4- 5/SSRC/Meeting/2012/ Teaching Cadre/2017 dated 30.01.2018. Relevant part of which is also reproduced hereunder for ready reference; Amendments In the appendix
(vii) against Serial No. 18, in columns No. 3 & 4, for the existing entries, the following shall be substituted, namely: 3 4
(i) Bachelor's Degree from a recognized University; and
(ii) Nine months in service mandatory professional training at Regional Institute for Teacher Education (RITE) or Provincial Institute for Teacher Education (PITS)19 to 35 years As a result of amendments, this post of PET has now been made open for all the candidates having a qualification of Bachelor degree: It has no doubt made the competition cut-throat and anxiety of petitioners is understandable here. But people raising out of such a cut-throat competition and selected for appo intment, would no doubt be the best human resource available to the department. This would also bring a substantial improvement in raising quality of education in government schools. The rules also provide that training and requisite course shall be imparted to the selected candidates after their appointments.
8. The criteria has competently been changed by the authority concerned under sub-rule 2 of Rule 3 of the Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989 (hereinafter referred to as 'APT Rules' ). The rules have been enacted under section 26 of the Khyber Pakhtunkhwa Civil Servants Act, 1973. There has not been any want of authority in the case in hand. The issue of change in the recruitment rules by adding to, or removing certain qualifications has come up before the Hon'ble Apex Court umpteenth times and stands well settled by now. In this respect, judgment in the case of Zafar Iqbal and another vs Director , Secondary Education, Multan Division and 3 others reported as 2006 SCMR 1427 may be referred with advantage, wherein the Hon'ble Apex Court had observed as follows; "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."
Similar view was also expressed by the Hon'ble Apex Court in the case of Dr. Alyas Oadeer Tahir vs Secretary M/O Education (Now M/O CAM), Islamabad and others reported as 2014 SCMR 997 in the following words; "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 individual 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 department having thus started would remain in wilderne ss. 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 specializatio n 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 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."
Further reliance in this respect may be placed on the judgments reported as PLD 1960 Supreme Court (Pak.) 81 and PLD 1988 Supreme Court 155 .
9. When relevant rules were found to have been made by the department in exercise of powers vested in them, this Court cannot sit in judgment over wisdom of the departmental authorities in that respect nor can judge the effectiveness or otherwise of the policy laid down by such regulation, as held by the Hon'ble Apex Court in its judgment in the case of Karachi Building Control Authority and 3 others vs Hashwani Sales And Services Limited and 3 others reported as PLD 1993 Supreme Court 210. Relevant part of the judgment is reproduced hereunder for ready reference; "While examining the question of vires of the statutory regulations or rules, the Court should make efforts to uphold them as valid. Liberal construction should be placed on such regulations/ rules and the paramount 'ideration should be public interest and public good etc. There cannot be any cavil to the above legal propositions nor there can be any controversy on the correctness of the weighty observations of the Indian Supreme Court quoted hereinabove from the case of Maharashtra State Board of Secondary and Higher Secondary Education and another v. Paritosh Bhupesh Kumarsheth, etc. (supra) . Once a Court finds that the regulations/rules framed under the statutory power are within the ambit of the relevant statute, it cannot sit in judgment over the wisdom and effectiveness or otherwise of the policy laid down by the regulations making body and it cannot declare regulations to be ultra vires merely because the Court considers that the impugned regulations will not serve the object and the purpose of the Act."
10. Coming back to the grievance of petitioners raised in instant petition, we will now analyze the impugned amendments and shall see whether same were ultra-vires to the parent law i.e. Civil Servants Act, 1973 and the APT Rules or provisions of the Constitution. In this respect, learned counsel for petitioners has relied upon judgments reported as 2019 SCMR 1132, PLD 2017 Lahore 1 and contended that the rules were not only unreasonable but could not be given a retrospective effect. Judgment of the Hon'ble Apex Court in the case of Mohammad Imran and others vs Province of Sindh through Chief Secretary and others reported as 2019 SCMR 1132, and relied upon by learned counsel for petitioners had no doubt been based on the principle that where a rule had the effect of being an unreasonable restriction, it could be struck down, but no such restriction has been placed on petitioners. So far as judgment of the Hon'ble Lahore High Court reported as PLD 2017 Lahore 1, is concerned, same is also of no help to petitioners as the judgment had mainly been returned in a case of right of employment of disabled persons arising out of the Disabled Persons (Employmen t and Rehabilitation) Ordinance, 1981. Petitioners were not having such a vested right of employment under any law. In the former mentioned judgment, the Hon'ble Apex Court had held that un-reasonability or imposing of an unreasonable restriction may vitiate validity in the domain of subordinate legislation, but it is important to be noted that amendments brought in the criteria in the case in hand have not been placing any unreasonable restriction on petitioners or anyone else.
The department had infact opened its doors for all the people with a minimum qualification of Bachelor degree. No un-reasonability could be established by petitioners in the changed criteria given in the case in hand. It is not for this Court to judge the wisdom of respondents department, but it is equally discernable that for the most coveted post in the federal and provincial bureaucracy , which are filled on the advice of the Federal Public Service Commission or respective Provincial Public Service Commission, the minimum required qualification is a Bachelor degree. The minimum qualification as is required for the post now, is also a Bachelor degree. We therefore, found no unreasonableness in the impugned criteria of appointment.
11. The petitioners cannot even claim to be having a vested right in the matter , ousting their cases from operation of the instant rules by taking a plea against retroactive operation of the rules. Mere acquiring of certain qualifications does not make a person entitled to be appointed on a post in a Government Department. In the case of Secretary Finance and others vs Ghul am 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 enforceable in 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 Centralized System 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 vs 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 PLD 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. lnayat 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."
Petitioners in the case in hand cannot claim to have acquired vested right and therefore their plea against retrospective operation of the rules is misplaced. The Hon'ble Apex Court in the case of Government of N.-W .F.P., Health And Social Welfare Department through its Secretary vs Dr. Sheikh Muzaf far iqbal and others reported as 1990 SCMR 1321 has held that; "The law has since then been well established that the rules applicable and the conditions required to be satisfied on the date of appointment are to be taken into consideration and not what were the requirements at an earlier date."
In latter part of the said judgment, the Hon'ble Court held as follows; "No one can claim a vested right in promotion or in the terms and conditio ns for promotion to a higher post. The Government has the right to enhance the qualifications and the standards for recruitment and promotion in order to maintain efficiency in service. Except for the post which the Civil Servant happens to hold, he' cannot claim vested right in other higher tiers in the hierarchy ."
Said ratio has further been reiterated by the Hon'ble Apex Court in the case of Mumtaz Ali Bohio and 24 others vs Federal Public Service Commission through Chairman at Islamabad and another reported as 2002 SCMR 772, wherein the Hon'ble Court has laid down that; "Neither the competency of respondent No.1 to change the rules in public interest could be challenged nor any candidate has vested right to be governed by any particular set of Rules. It is within the domain of respondent No. 1 to make any alteration in the recruitment policy before finalization of the appointments. if the rules are altered/changed, the latter rules will supersede the former ."
12. So far as the plea of estoppel raised by learned counsel for petitioners in the case in hand, is concerned, it is important that respondents have never ever represented to the petitioners that they shall be appointed on the subject post, if they obtained certain qualifications. Plea of estoppel was not available to petitioners at all. Even otherwise, if a criteria for appointment is changed for all the candidates by maki ng amendments in the relevant rules of appointment, estoppel cannot be pleaded in such a case. "No estoppels could exist against a statute or rules" as held by the Hon'ble Apex Court in the case of Bahadur Khan and others vs Federation of Pakistan through Secretary M/o Finance, Islamabad and others reported as 2017 SCMR 2066 . The Hon'ble Apex Court in the case of Justice Muhammad Farrukh Irfan Khan , Judge, Lahore High Court, Lahore vs Federation of Pakistan through Secretary , Ministry of Law, Justice and Parliamentary Affairs Division Government of Pakistan, Islamabad and 4 others reported as PLD 2019 Supreme Court 509, has also held that "No estoppel could exist against law or the Constitution". Reliance may also be made in this respect on judgment in the case of Messrs New Shaheen Trading Company through Managing Director vs Government Of Pakistan through Secretary , Ministry of Commerce and 2 others reported as 2008 SCMR 17 .
13. In light of what has been discussed above, the petition in hand was found to be without any substance and same is accordingly dismissed.