Kh. Muhammad Nasim, J. The captioned petition for leave to appeal has been filed against the judgment of the Service Tribunal dated 18.07.2023, whereby, the appeal filed by the petitioners, herein, has been dismissed.
2. The facts of the case briefly stated are that the Religious Affairs Department was established on January, 1989. The petitioners, herein, were appointed against the different cadre posts and now they fulfill the required qualification for the promotion of the higher scales, having more than 30 years' service in the department. The respondents instead of promoting the petitioners, amended the Rules dated 28.03.1990, vide impugned Rules dated 26.11.2020. The petitioners challenged the vires of the said Rules by filing an appeal before the Service Tribunal, challenging therein, that by making radical changes in the Rules, the right of promotion available to the petitioners has been snatched. The amended Rules are violative of the Constitutionally guaranteed rights and based on mala-fide. The learned Service Tribunal, after necessary proceedings, dismissed the appeal, vide impugned judgment dated 18.07.2023, hence, this petition for leave to appeal.
3. Sardar Karam Dad Khan, Advocate, the learned counsel for the petitioners argued that the impugned judgment is based on misconception of law and the facts of the case. He submitted that the petitioners challenged the vires of the Rules, 2020, on the ground that by making unjust changes in respect of the qualification and method of recruitment, the petitioners have been deprived of their right of promotion, but the learned Service Tribunal failed to attend and resolve the same in a legal manner. He further submitted that the right had already been accrued to the petitioners, herein, in the light of the previous Rules, but the learned Service Tribunal failed to adhere to the principle of law that the right that has already been accrued to a party cannot be taken away by amending any law/Rules. He contended that there is no cavil with the proposition that the Government is fully competent to amend or alter the prescribed qualification for promotion as well as enhance or curtail the quota, but it is also well settled principle of law that powers must be exercised in a judicious manner. As important legal questions are involved in this case, hence grant of leave is justified.
4. We have considered the arguments of the learned Advocate representing the petitioners and examined the record made available along with the impugned judgment. The Government through Rules dated 26.11.2020, enhanced the qualification for promotion and curtailed the quota reserved for promotion. The claim of the petitioners is that by the amendments introduced through Rules, 2020, the right of promotion of the petitioners has been snatched. According to the settled principle of law, the Government is empowered to enhance, alter, or amend the prescribed qualification for particular posts and to enhance or curtail the quota, however, the only objection of the learned counsel for the petitioners is that by making amendments, the right of promotion already accrued to them has been snatched. It may be stated here that this Court in a number of pronouncements has held that a civil servant cannot claim vested right for promotion to a particular post with the claim that Rules be framed in such a manner so that, they may be promoted. There is no cavil with the proposition that Rules can be declared illegal if they are enacted in violation of the parent Act or they offend any provision of the Constitution and not otherwise. The Government is authorized to regulate the terms and conditions of persons in the service of the Azad Jammu and Kashmir under Article 49 of the Azad Jammu and Kashmir Interim Constitution, 1974. For carrying out the purpose of the aforesaid provision, the Azad Jammu and Kashmir Civil Servant Act, 1976, has been enacted by the Legislative Assembly. Under Section 23 of the said Act, the Government is empowered to make the Government cannot be curtailed by another enactment. Reference may be made to a case reported as "Zaffar Iqbal Khan and 52 others vs. Azad Government and 5 others" [2018 SCR 1079] wherein, while dealing with the same proposition, this Court has held as under: From deep scrutiny of the policy Notification dated 15.05.2009 and newly framed Rules it postulates that the way of promotion of my employee of Health Department has not been blocked rather he Government in the Rules only altered the ratio of quota fixed for initial recruitment/promotion as well as the qualification prescribed in the policy notification for different posts, which is sell within the domain of the Government and the appellants failed to substantiate the element of mala-fide on the part of the Government in this regard. During the course of arguments, the learned counsel for the appellants was confronted that how the appellants are aggrieved as in the Rules, for promotion not only seniority rather the condition of seniority-cum-fitness has been provided and if the appellants have the better qualification etc., as has been claimed by them, then they have the broad chance of promotion, he failed to satisfy the Court and only reiterated the point that almost all the appellants have obtained degree of B.Sc./B.S. (4 years in the relevant field) Health Sciences, but their right of promotion have been curtailed in disregard of the original service structure and preference has been given to the unqualified diploma holders. After going through the record of the case it appears that the appellants are defending the policy notification mere on the ground that the criterion for promotion given in the policy notification dated 15.05.2009, is suitable for them; except this reason, nothing is available on record to show that what sort violation of the provision of Civil Servants Act or the Constitution has been made by the Government while framing the Rules.
It may be observed here that a civil servant cannot claim a vested right of promotion to a particular post with the claim that the Rules be framed in such a manner so that he may be promoted. As we have already observed hereinabove that it is settled principle of law the rules cannot be enacted, altered or amended on the sweet will any civil servant and to declare the same as illegal/ultra vires the Constitution, the aggrieved civil servant has to prove that the Rules are inconsistent with the provisions of the parent Act or the Constitution, whereas, no such eventuality is available in the case in hand; thus, keeping in view the circumstances of the case, law does not permit us to interfere with the powers legally exercised by the Government.
Similarly, in a case reported as "Syed Rasheed Hussain Shah vs. Azad Government and 6 others"
[2014 SCR 883] wherein, it has been observed in para 9 as under: "9. It may be observed that the departments of Fisheries and Wildlife were merged by amending Rules of Business by the Authority while exercising powers under Section 58 of the Interim Constitution. Act, 1974 and thereafter relevant Rules were amended accordingly. The vires of the Rules have not been challenged at the relevant time. Moreover, the Rules making Authority is fully competent to amend the same and the Act of the Authority cannot be declared illegal until the same is in conflict with the powers of parent Act or the Constitution. The learned counsel for the appellant failed to substantiate his claim that the amendment incorporated in the Rules is inconsistent with the provisions of the Act or Constitution, therefore, in absence of that the same cannot be declared ultra vires. Even otherwise, Rules cannot be framed/amended at the sweet will of a party and it is the sole prerogative of the Authority concerned to frame or amend the same, therefore, the argument of the learned counsel for the appellant in this regard has no substance, hence the same is hereby repelled.'
In another case reported as "Rizwan Muzaffar vs. Azad Government and 8 others" [2010 SCR 156] wherein, it has been held as under: "We may observe that rules making powers vest in the Govt. Under Section 23 of Civil Servants Act, 1976, the Govt. is competent to enhance, alter or amend the prescribed qualification for a particular post. In the present days the world is changing very fast, new inventions and technologies are being introduced. The Govt. has to cope with new emerging situation. New departments and the posts are being created which require new rules based on relevant qualification. Computer is one of the specific fields and the rules have to be framed in such a manner that all the requirements are fulfilled. The provision of specific qualification in the relevant field is necessity of the time. A person having qualification of MCS computer is eligible to be appointed as Revenue Officer. The same person can also be appointed as Software Engineer in the functional unit Computer/Technical. But the person having qualification of M.Sc., Physics M.A Stats, cannot be appointed as Software Engineer. The post of Deputy Director Computer has to be filled in on the basis of seniority-cum-fitness from amongst the persons having relevant qualification."
In view of the principle of law enunciated by this Court, the impugned judgment passed by the Service Tribunal does not suffer from any illegality or legal infirmity. The petitioners have failed to make out any valid ground for interference which is pre-requisite for grant of leave, therefore, finding no force, this petition for leave to appeal stands dismissed.