The instant writ petition has been filed by the petitioners under Article 44 of the AJ&K Interim Constitution, 1974, being lower grade employees in the Secretariat and they have got their rights under the existing rules qua appointment as Section Clerks in BPS-14 under the allocated quota of 20% by rules. The grievance voiced by the petitioners is that the then Senior Minister wrote a letter advocating for the abolition of the 20% quota in the rules. The underlining reason qua abolition of 20% quota (allocated for the lower grade employees) by the official quarters, pursuant to the petitioners' pleadings is that because the 20% quota has been implemented in a manner that has exclusively benefited employees from Districts Muzaffarabad and Jhelum Valley, while failing to be utilized and judiciously implemented, to the detriment of those in other Districts, its elimination from the rules is justified.
2. The petitioners are employees and posted in lower grades and are reasonably accepting that in future, they will be considered against the 20% quota as per availability of the posts, felt themselves aggrieved from the letter listed with the writ petition as Annexure "PF" and prayed for issuance of an appropriate writ. The aforesaid writ petition was admitted for regular hearing and was contested by Respondents No. 1 to 6 by filing detailed parawise written statement.
3. At the outset, the official respondents categorically alleged in the preliminary objections raised in the written statement that 20% quota has been abolished from the rules on account that only the employees of 02 Districts/units are being benefited by the aforesaid quota and the employees of the other units, performing their duties in grade 1 to 5, have no numerical strength in the Secretariat, therefore, there is no need to retain the aforesaid 20% quota. It is pertinent to reproduce para "V" of the written statement, which is as under:
4. Today, the case was taken up for final arguments. I have heard the learned counsel for the petitioners, Mr. Shahid Ali Awan Advocate Supreme Court and Rubia Butt, Legal Advisor for the official respondents at some considerable length and perused the available record. Mr. Shahid Ali Awan, learned counsel for the petitioners vehemently contended that all the proceedings initiated by the official quarters in order to abolish 20% quota reserved for the employees of Secretariat carrying grade 1 to 5 which was reserved against the post of Section Clerks is mala-fide and outcome of malice on the part of the respondents. He further stated that the official respondents tried to abolish the said quota in the guise that numerical strength of other units is lacking in the Secretariat which practically means that only 02 District units are being benefited from the said quota, therefore, the same is liable to be abolished. He further contended that the proceedings qua abolishing 20% quota reserved for the employees of grade 1 to 5 against the post of Section Clerk is unjustified and amounts to rescind the legal rights which have already created reasonable expectations and rights in favour of the petitioners and other employees, therefore, the petitioners felt themselves aggrieved from the aforesaid letter and proceedings, have rightly approached the Court for reversal of the said proceedings/letter. Learned counsel for the petitioners emphatically requested for acceptance of the writ petition as already prayed for.
5. While controverting the arguments advanced on behalf of the petitioners, Rubia Butt Advocate/Legal Advisor for the official respondents, staunchly contended that the petitioners are not aggrieved party and have got no right to ask for making of rules on their own choice. She further contended that the authority which has got powers to pass an order is also equipped with the powers to undo the said rules and amend, alter and bring certain modifications in the rules. No employee of the Govt. can ask for making the rules on his own choice. She further contented that the administrative rule making is the sole prerogative of the competent authority and the matter is yet in pipeline and shall be dealt with the policy decision of the Govt. Finally, she prayed for dismissal of the writ petition.
6. Be that as it may, the official quarters are going to abolish the 20% quota already reserved in the existing rules for the lower grade employees of grade BS-1 to 5 on the ground that the aforesaid 20% quota allocated in the rules is only advantaging the employees of 02 District units and rest of the employees of the units of AJ&K could not take benefit of aforesaid 20% quota, thus, on this stick-yard, rescission of 20% quota is initiated. The impugned noting/proposal qua abolition of 20% quota listed with the writ petition as Annexure "PF" clearly speaks for intent and logic for the elimination of 20% quota from the rules. It is useful to reproduce the wording of Annexure "PF" which is as under:
7. While in juxtaposition, the stance taken by the respondents in their written statement is almost akin to the version incorporated in the impugned proposal/letter. It is useful to reproduce para "V" of the preliminary objections which as under:
8. Constitution establishes a trichotomy of powers, which can be visualized as a 'triangle of powers' representing the separation of powers (i.e. Trias Politica). While the main organs of the State i.e. Judiciary, Executive and Legislature (whether it is highest legislative fora or for that matter subordinate legislature by way of rules making) it is within the exclusive domain of the legislature/rules making authority and no one can claim rules making on his own choice or ask for certain rules as per his sweet will in a way to get framed his desired rules. But simultaneously, executive/sub ordinate legislative authority cannot bring any sort of amendment in the rules with mala-fide by snatching vested rights already created in favour of a set of employees that too in guise of classification of employees on the basis of regional numerical strength in services.
Doctrine of vested rights:- As defined in Black Law Dictionary (11th Edition) vested right is defined in infra wording: "Vested right; A right that so completely and finally belongs to a person that it cannot be impaired or taken away without the persons consent and a right that the holder can transmit by deed to others. The "doctrine of vested rights" is a legal principle that protects certain rights from being taken away or impaired by subsequent legislation or government action."[1] In fact vested right is peripheral right and springs from constitutionally guaranteed fundamental right No. 1.
20% quota for promotion was recognized for the entire set of employees in lower grade, no classification was made at all in the rules qua adherence of 20% quota provided for promotion, excessive numerical strength of a unit in the department is not against law. Meritorious appointments and open merit appointments and selections meet the requirement of equality clause of the Constitution.
9. The attempt made and reasons projected by the official quarters for abolishing 20% quota from statutory rules is at odds with the concept of better Government as well as speaks for mala-fide which will ultimately create unrest in the employees of Secretariat.
10. Abolishing 20% quota for promotion would take away a vested legal right of the employees of Secretariat posted in grade 1 to 5, such proposed draft cannot be allowed to defeat the already created rights in favour of the Secretariat's employees, impugned amendment in the rules is seemingly distractive and runs counter to the doctrine of administrative justice, fair play and Doctrine of reasonable expectations; proposal ibid is sans lawful authority and of no legal effect.
11. Crux of the above discussion is that the writ petition is hereby [accepted] and proceedings qua abolishing 20% quota reserved for the lower grade employees of grade BS-1 to BS-5 in the Secretariat is hereby declared as illegal, arbitrary and mala-fide; resultantly, the impugned letter Annexure "PF" is liable to be ignored/set at naught. The writ petition is [accepted] in the manner as indicated above.
1. The Vested Rights Doctrine: How a shield against Injustice became a sword for opportunistic developers: Ohio state law Journal, Steve P. CalandrIllo, University of Washington School of law.