JUDGMENT: Raza Ali Khan, J. The captioned appeals by leave of the Court, arise out of the judgment dated 20.8.2020, passed by the learned High Court, in writ petition No. 681 of 2020, as well the judgment dated 19.12.20219, passed by the learned Service Tribunal, in service appeals No. 703 of 2017, 334 and & 519 of 2018. As the controversy involved in both the appeals as well as the writ petition is same, hence, were heard together and are being decided as such.
2. The brief facts forming the background of appeal No. 214 of 2020 are that the appellant, herein, filed appeal No. 334/2018, before the learned Service Tribunal, on 8.5.2018, stating therein, that he is inducted in service as Social Welfare Officer, BPS-17, and was promoted as the Deputy Director, BPS-18, on officiating basis vide Notification dated 28.3.2017. It was averred that the Department submitted working paper of the appellant and private respondent (Nusrat Shaheen) for promotion against the post of the Deputy Director BPS-18, meanwhile the rules were changed vide notification dated 22.3.2017. It was further averred that the appellant was eligible to be promoted in accordance with the previous Rules, 1993, as well as in the light of the amended rules dated 15.1.2018, as the Deputy Director but the department has not considered the case of promotion of the appellant and the amended rules dated 15.1.2018, were, later on, withdrawn without any legal reason and justification with mala-fide intention vide notification dated 19.3.2018, therefore, the notification dated 19.3.2018 may be set aside. The learned Service Tribunal admitted the appeal for regular hearing on 8.5.2018 and while maintaining status quo summoned objections from the respondents and finally vide impugned judgment dated 19.12.2019, has dismissed the appeal.
3. Mr. Asghar Ali Malik, the learned Advocate appearing for the appellants argued that the impugned judgment of the learned Service Tribunal is based on misreading and non-reading of the record as well as beyond the pleadings of the parties, hence, the same is not maintainable in the eye of law. He submitted that admittedly, the appellant was working in the Women Development Directorate Wing as the Assistant Director from 2002, as postulates from the notification dated 18.1.2016, Circular dated 26.1.2016 and different letters attached with the appeal and was eligible for promotion as Deputy Director in the same wing but the learned Service Tribunal while handing down the impugned judgment contrary to the record observed that the appellant is an employee of the Social Welfare Directorate and is eligible to be promoted against the post of Deputy Director in his own directorate. He argued that the learned Service Tribunal has not even adhered to the working paper prepared by the department for his promotion as the Deputy Director in the Women Development Directorate. He added that two written statements were filed by the official respondents before the Service Tribunal on 29.5.2018 and 30.5.2018, however, on 16.7.2018, the Secretary Social Welfare and Women Development Department filed an application to the Service Tribunal through its Registrar that the written statement filed on 29.5.2018, shall be considered and the written statement filed on 30.5.2018 shall be ignored, but despite that the learned Service Tribunal delivered the judgment while considering the written statement filed by the official respondents on 30.5.2018 and ignored the written statement owned by the official respondents, therefore, on this ground too, the impugned judgment is a nullity in the eye of law. He prayed that while accepting the appeal, the impugned judgment passed by the learned Service Tribunal may be set aside.
4. Conversely, Mir Abdul Latif, Raja Gul Majeed Khan, Advocates and Raja Mazhar Waheed Khan, the learned Additional Advocate General forcefully opposed the arguments addressed on behalf of the appellant. They submitted that the documents referred to by the learned counsel for the appellant were not part of the record before the Service Tribunal. They further argued that the appellant has not moved any application for production of new documents, hence, the same cannot be considered at this stage. They further argued that the learned Service Tribunal has resolved the controversy involved in the matter after thorough deliberation as well as due application of judicial mind. The learned Advocates further argued that the appellant has failed to point out any illegality in the impugned judgment, hence, the same warrants no interference by this Court.
5. We have heard the learned Advocates representing the parties and have gone through the record of the case made available along with the impugned judgment. The appellant, herein, in ground "D" of his appeal before the Service Tribunal claimed that he was appointed as Deputy Director BPS-18, on officiating basis vide notification dated 23.2.2017 and for filling up the post on regular basis working paper was submitted on 16.3.2018. We have perused the notification dated 23.2.2017, which reflects that through this notification, besides the appellant, herein, four other officers were promoted. At serial No.4 of the said notification one Rabia Gillani, Assistant Director BPS-17, appears to have been promoted as the Deputy Director, BPS-18, against the newly created post in the Directorate of Women Development, Mirpur Division and she was attached with ERRA on deputation basis. The appellant, herein, is at serial No. 5 of the same notification dated 23.2.2018, who was appointed on officiating basis against the same post (vacant due to lien) of Deputy Director, BPS-18, on which Rabia Gillani, Assistant Director, was already promoted as Deputy Director, BPS-18. The order dated 23.2.2017, was challenged by the appellant, herein, before the Service Tribunal by filing appeal No. 703 of 2017, which has been dismissed by the learned Service Tribunal through the impugned judgment. It would be expedient to reproduce here the relevant portion of the impugned judgment of the Service Tribunal, which is as under:- "18. The appellant (Muhammad Shakeel Khan) has filed the appeal No.703/2017 against the Notification dated 23.02.2017, through which the respondent (Rabia Gillani) has been promoted as Deputy Director B-18 in the Women Development Directorate. As stated herein above, the appellant is admittedly an employee of the Social Welfare Directorate and is eligible to be promoted against the post of Deputy Director in his own Directorate in accordance with the rules known as Azad Jammu and Kashmir Directorate of Social Welfare Service Rules, 2017 dated 21.03,2018 and not entitled to claim promotion against the post of Women Development Directorate. The relevant rule is reproduced as under: S.#Name of the DepartmentFunctional UnitName of Post with Grade.Appointing AuthorityMinimum qualification for appointment by Initial RecruitmentPromotionMethod of recruitment 12 3 4 5 6 7 8 2Usher & Zakat, Social Welfare Women DevelopmentDirectorate Social Welfare.Deputy Director BPS-18.Minister In Charge As per col.8,By promotion on the basis of seniority- cum-fitness from amongst the officers holding the posts of Social Welfare Officer BPS-17.
Superintendent Dara- ul-Falahah BS- 17 and Assistant Directors BS- 17of Social Welfare Directorate on the basis of joint seniority based on the order of merit assigned by the Public Service Commission with 5 years' service.
Admittedly, the private respondent No.4 has been promoted as Deputy Director B-18 on regular basis with the recommendations of concerned Selection Board after considering the seniority, suitability and eligibility of the appellant as well in accordance with the previous departmental Rules, 1993, by her turn of promotion on the basis of merit, deputed in the department of ERRA Islamabad and against her post, the appellant has been promoted on officiating basis as Deputy Director. The relevant rule on the basis of which the private respondent has been promoted is reproduced as under:- S.#Name of the DepartmentFunctional UnitName of Post with Grade.Appointing AuthorityMinimum qualification for appointment by Initial RecruitmentPromotionMethod of recruitment 12 3 4 5 6 7 8 2Social Welfare and women DevelopmentDirectorate of Social Welfare.Deputy Director/ Project Co- ordinator B-18Minister In ChargeMaster Degree 2nd Div. preferably in sociology/ Social work/ Social Science/equivalent DegreeAs per col.8,i) 50% by initial recruitment as perCol.6. ii) 50% by promotion on the basis of Seniority-cum- fitness from amongst Assistant Directors/ Superintendent Dar-ul-Flah and Social Welfar Officers in B-17 with S years' service as such. iii) By transfer from any Government Department already working in B-18.
Thus, the respondent has been promoted in accordance with the above referred rules, the suitability and fitness determined by the Selection Board cannot be reviewed by this Tribunal.
Reference may be placed on a case titled "Muhammad Azad Khan versus the Secretary AJ&K Counsel" decided on 22.04.1992 reported as 1993 SCR 387.
(d) Promotion. ...It is the competent authority which has to decide the suitability for promotion and not the Service Tribunal." (p. 396) D.
2014 SCR 883(c)
(c) Promotion. ...The matter of determination of fitness for promotion of a civil servant to a higher post is the job of the Authority Held: no Tribunal or Court can substitute its own view for the view of the competent authority. [p. 889]C Therefore, the appellant is not eligible to challenge her promotion Notification dated 23.02.2017. So, the appeal No.703/2017 is not sustainable and liable to be dismissed."
The appellant, herein, has not challenged appeal No. 703 of 2017, rather he has challenged only the portion of the impugned judgment of the learned Service Tribunal, whereby appeal No. 334 of 2018, filed by the appellant, herein, against the notification dated 19.3.2018, has been dismissed. As such the notification dated 23.2.2017, issued and maintained by the Service Tribunal regarding promotion of respondent No.4, therein, has attained finality and the appellant, herein, while not filing appeal has admitted the correctness and legality of the same.
6. The appellant through the service appeal No. 334 of 2018, has challenged the Notification dated 19.03.2018, whereby the amendment made in the AJ&K Directorate of Women Development Service Rules, 2017, through Notification dated 15.01.2018, was withdrawn. The appellant was appointed as the Social Welfare Officer, BPS-17, in the Social Welfare and Women Development Department. In 2012 and 2014, as stated, the Department was bifurcated into two directorates, as the Directorate of Social Welfare and the Directorate of Women Development. The appellant was serving as the Assistant Director Women Development, Mirpur. Through the Notification dated 23.02.2017, Ms. Rabia Gilani, who was on deputation in ERRA, Islamabad, was promoted as the Deputy Director, Women Development, and ordered to remain posted on deputation, and the appellant was promoted as Deputy Director, Women Development, BPS-18, on officiating basis against the lien post of the said Rabia Gilani. The appellant on basis of aforementioned amended Rules, 2018, since withdrawn, and working paper for his promotion against the post of Deputy Director, Women Development, BPS-18, is craving to set aside the withdrawn Notification. His stance is that after bifurcation of both the Directorates and the choices given by the Department vide Notification he opted to remain in Women Development Directorate and even otherwise he was serving in the said Directorate since 2008, therefore, he was eligible to be promoted against the post of Deputy Director, Women Development. The amendment withdrawn by the authorities was necessary to provide channel of promotion to the appellant. On the other hand, the official respondents in their written statement have refuted the claim of the appellant on the ground that the appellant is Assistant Director, Social Welfare Directorate and cannot claim any right of promotion in the Women Development Directorate. The officer on deputation has joined her post after being promoted as Deputy Director, Women Development. The official respondents have supported the impugned Notification whereby the earlier Notification dated 15.01.2018, providing amendment in the Directorate of Women Development Service, Rules, 2017, was withdrawn.
7. From perusal of the record and the averments made by the contesting parties, it transpires that the appellant seeks to avail promotion in the Women Development Directorate instead of Social Welfare Directorate and for that purpose he managed to get amended the Service Rules, 2017, and moved a working paper to the Selection Board No. 2, for his promotion on basis of the amended Rules, 2018, whereby only one amendment was made ostensibly to extend benefit to the appellant.
The amended Rules, 2018, were recalled from the date of issuance. It is settled principle of law that Rules cannot be framed or amended and altered on the sweet will of a civil servant, and framing, altering, recalling or amending the Rules is the prerogative of the Government, no civil servant may be allowed to have the Service Rules of his own choice. It is also settled that rules may be declared illegal only in case where same are made in derogation of Act, governing the impugned rules, or the Constitution or the principles of law enunciated by Superior Courts. Our view is supported by the case law reported as Ghulam Mustafa Kiyani & 6 others vs. Selection Board & 4 others (2021 SCR 232), wherein it has been held as under:- "It is settled principle of law that rules cannot be framed, amended or altered at the sweet will of any person or a party, it is the prerogative of the authority concerned to frame, amend or alter the rules keeping in view the mandate for doing the same; moreover, the rules cannot be declared illegal until and unless it is proved that the same are in conflict with the provisions of parent Act or the Constitution."
In another place of the same report, it was further held as below: "In the matter in hand, it is not case of the petitioners that qualification prescribed in the rules is ultra vires the Constitution; therefore, mere on the will and whims of the petitioners, the rules cannot be declared illegal."
In Sardar Muhammad Khalil & others v. Azad Govt. & others (2019 SCR 571) this Court has held as under: "...In the matter in hand to get the claimed relief from the Court the appellants had to prove that the amended rules are inconsistent with the provisions of the parent Act or the Constitution, but they have failed to do so, therefore, the same cannot be declared as illegal/ultra vires the Constitution."
It seems as that amendment, dated 19.03.2018, made in the service rules was maneuvered by the appellant solely to benefit him and to remain posted in the Women Development Directorate and avail promotion as the Deputy Director Women Development, instead of joining and working in the Social Welfare Directorate. Had other officers/employees of the department felt aggrieved by bifurcation of the Department and resultant effect, if any, on their terms and conditions of service or by subsequent withdrawal of amendment in rules, any other or more must have joined the appellant to challenge the withdrawal notification. After amendment in rules, early preparation and filing of working paper for appellant and another's promotion also make the whole case of the appellant suspicious and without judicious footings. It is a settled principle of law that rules cannot be framed to benefit a particular person. In this regard reliance may be had to the case reported as Rizwan Muzaffar vs. Azad Govt. & 8 others (2010 SCR 156), it has been observed that: "We have also examined the application moved by the father of respondent No. 4 to the Prime Minister. We agree with the contention of Kh.Muhammad Naseem that rules cannot be framed for the benefit of a particular person."
Further, the appellant's version is that he had opted to remain in the Women Development Directorate after bifurcation of the department, so he has got legal right to be considered as an employee of Women Development Directorate and avail promotion therein, whereas the view of the department is otherwise that he is an employee of the Social Welfare Directorate. It may be stated that only concerned authority is best to judge and determine the suitability of an employee in light of his qualification, past performance, trainings, skills, character, department's requirements etc., to effect that in which directorate he may be more efficient and better to perform responsibilities instead of leaving at sweet will of employees to opt any particular directorate or section. Moreover, it is the prerogative of the concerned authorities and not the civil servant to decide where he wants to work or what kind of work he wants to do. Even otherwise, as the name predicts, Women Development Directorate has been established for development and welfare of women in society. Keeping in view of societal, religious, moral and social norms and dictates, the authorities have to be more cautious and stringent while deputing male officers and staffs in the department established for welfare and education of women in the State considering professional work environment. In this context also, we are of unanimous view that appellant's case that he has right to remain posted in and get promotion in the Women Development Directorate as per his choice is not tenable as the department has totally refuted the appellant's plea and declared him the employee of the Social Welfare Directorate. The appellant has failed to demonstrate that he has legal right to remain posted in and have promotion against directorate of his own choice against the will and order of authority or his legal rights have been infringed.
8. The appellant has also pleaded before this Court that the learned Service Tribunal has failed to appreciate the record in its true perspective and in a judicious manner and relied upon the written statement dated 30.05.2018, of the official respondents, while dismissing his appeal, whereas there were another set of written statement dated 29.05.2018 filed by the official respondents. Further, an application was also filed with the Service Tribunal by the Secretary of Department to the effect that the written statement filed on 29.05.2018, should be considered as the version of the official respondents. We have perused both sets of written statements of the official respondents. The written statement dated 30.05.2018, totally refute the claims of the appellants, whereas in the comments filed a day earlier, the official respondents had different version and accepted the appellant's claims. The learned Service Tribunal has decided the appeal on basis of record and written statement filed later but has not made any observation on comments filed earlier. This is novel, weird and very astonishing fact, which has surfaced in this case that the department head, the concerned Secretary completely took a different version from his previous version. This is very unfortunate practice which cannot be expected from high officials of the government. To say the least, we have been constrained to show our strong displeasure on such conduct by a high office.
Be that as it may, even this is not of any help to the case of the appellant, rather it further establishes that the appellant being very influential and having connections with high-ups has maneuvered all proceedings at departmental levels and amendment in the rules and even managed to get comments filed in his favor with totally different version as opposed to the actual stance of the department at departmental level and before the Service Tribunal. Rather, this fact further has convinced this Court that the appellant has approached the judicial forums even this Apex Court of the State with unclean hands and without legal footings and grievances, just to remain posted in and avail promotion in the Women Development Directorate. The peculiar facts of the case and the conduct of the appellant as apparent on the surface of the record constraint us to direct the authorities that if the appellant is still working in the Women Development Directorate, he shall be forthwith transferred to Social Welfare Directorate to eliminate any false hope in the mind of the appellant. However, if he joins service in Social Welfare Directorate as directed he shall be considered for promotion whenever any vacancy is available, on merit in Social Welfare Directorate, strictly in accordance with law and no step shall be taken just to benefit the appellant while ignoring the essence of law and rules.
9. There is another aspect, which we have come across while perusing the impugned judgment of the Service Tribunal and is also in our judicial notice about reproducing of headnotes in judgments and formal documents, as published in law reports instead of quoting of actual extract from body of the judgments. It is universal principle recognized and practiced by authors of formal documents relating all disciplines and sciences and Courts also that either the exact extract from source document on which the author relies upon, is quoted and reproduced along with quotation marks and reference of source document is provided, or the source material is paraphrased and summarized in author's own words along with reference/citation. We have also observed another practice of wrong citing of sections and Acts in FIR's and challans prepared by the police i.e., 13/20/65, which is actually section 13 of Arms Ordinance, 1965, (Ordinance XX of 1965), same is the case with citing in abbreviated form, i.e., EHA, Enforcement of Hudood Acts, which are four different Acts relating to enforcement of Hudood laws, passed in year 1985, in Azad Jammu & Kashmir, and reproducing same verbatim in formal judicial orders judgments of subordinate Courts and other official documents. The practice of reproducing headnotes or wrong mentioning of Acts, is against the codes and practices defined for formal works of all disciplines and sciences. Rather there might be possibility that headnote would not have conveyed the true intent, content and wisdom of Court which is otherwise provided in the text of judgment Headnotes are not works of Courts, instead these are conceived and prepared by reporters and editors of law reports in summarized manner and keywords form and are only meant for convenience of legal professionals and readers of law reports. There are pitfalls in making reliance and reproducing extracts of headnotes in judgments, which may lead to misconstruing the actual intent and wisdom of Court, enunciated regarding any proposition or issue in body of particular judgment. Headnotes at times have been found misleading and otherwise contrary to ratio decidendi-underlying principle which forms only authoritative element of precedent, expounded in body of judgment. The Courts have shunned the practice of making reliance and reproducing extracts of headnotes. Reliance may be made to more than a century old case dated back 1906, of the Supreme Court of USA, in case titled "United States v. Detroit Timber & Lumber Company", found in an electronic source, namely .https://www.law.cornell.edu/supremecourt/text/2 00/321 (accessed on 04.08.2022)
"In the first place, the headnote is not the work of the court, nor does it state its decision,--though a different rule, it is true, is prescribed by statute in some states. It is simply the work of the reporter, gives his understanding of the decision, and is prepared for the convenience of the professionals in the examination of the reports."
Similarly, the Supreme Court of Pakistan in its recent judgment titled Province of Punjab and others vs. Hafiz Muhammad Ahmad (2021 SCMR 1492) also took notice of reproduction of headnotes and held as under:- We have, however, noted that the High Court has relied on a series of case law, referred to in the impugned order by reproducing the headnotes of the law reports. The headnotes preceding the judgment of a court are not a part of that judgment but are the notes prepared by the editors of the law-reports, highlighting the key law points discussed in the judgment and are supplied just to facilitate the reader with a summarized version of the salient features of the case which helps in quickly scanning through the law reports. It is a matter of common knowledge that the headnotes are at times misleading and contrary to the text of the judgment. Headnotes by the editors of the law-reports cannot be taken as verbatim extracts of the judgment and relied upon as conclusive guide to the text of the judgment reported, hence they should not be cited as such. Therefore, it is neither safe nor desirable to cite a dictum by reference to the headnotes. 1 We are sanguine that in future the High Courts and the District Courts while referring to a precedent or case law in their judgments and orders will cite the actual text of the judgment rather than place reliance on the headnotes thereof.
In another case reported as Mst. Farhat Nasreen vs. Muhammad Hussain and 2 others (PLD 1997 Karachi 204), it was held as under: It is pertinent to note that a lawyer's prime responsibility is to act fairly and assist Court in reaching a just and equitable conclusion as is in consonance with law. The word 'law' means not only the statutory and the delegated legislation but also the Judge-made law. The headnotes preceding a report are not a part of the judgment but are merely edited out of and on the basis of the judgment, by editors of the law-reports, to facilitate quick scanning. It is a matter of common knowledge that the headnotes at times are misleading and contrary to the text of the judgment.
Therefore, it is neither safe nor desirable to cite a dictum merely by reference to head-notes. Such view finds support in the judgment reported in PLD 1988 Supreme Court 221, where the headnote of a reported case was found to be incorrect."
In this regard we deem it proper to issue direction to the learned High Court to set guidelines for itself and all of its subordinate Courts and tribunals regarding referring, citing and reproducing the materials from the judgements, statutes, books, research articles, dictionaries as well as websites etc., to follow in their respective judgements. Likewise, the Service Tribunal, subordinate Courts, tribunals and the Government departments are also directed to do the needful while drafting and preparing judgments, F.I.Rs, challans, reports, inquiry reports and other formal documents etc. The copies of this judgment shall be sent to the learned Chief Justice of the High Court, the learned Chairman of the Service Tribunal, the Chief Secretary and the Inspector General Police, AJ&K. for issuing directions to the respective subordinates and making compliance.
10. So far as appeal No. 424 of 2020, filed by the appellant, herein, is concerned, the appellant, herein, by filing writ petition before the learned High Court sought direction to respondents to restrain them from repatriating the petitioner-appellant, herein, in Social Welfare Department. He also sought direction to the official respondents to conduct selection board for the post of Deputy Director Women Development. From the record it reveals that the appellant, herein, against the judgment of the learned Service Tribunal filed a petition for leave to appeal before this Court on 31.1.2020, which was granted vide order dated 30.6.2020 and when he filed writ petition before the High Court, he had already availed an alternate remedy before the proper forum, therefore, in our considered view, the learned High Court while dismissing the writ petition filed by the appellant, herein, has committed no illegality. The appellant has failed to point out any error or defect in the impugned order of the High Court, hence, the same warrants no interference by this Court.
The upshot of the above discussion is that finding no force in both the appeals, the same are hereby dismissed.