1. ' HAIDER ALI PIRZADA, J.--The petitioners through this petition have prayed for the following reliefs:-
(a) declare that all the promotions made by respondent No. 1 from Grade III to the post of Senior Vice. President effective from 1-7-1978 are mala fide, unjust, without lawful authority and quash the same.
(b) direct the respondent No. 1 to reconsider the promotions of Officers from Grade III to Senior Vice-President afresh strictly in accordance with the rules 20 and 21 of the National Bank of Pakistan Staff Service Rules as well as promotions policy framed by the Government.
(c) allow any other relief considered proper and just in the interest of justice; and
(b) grant costs of the Petition.
2. ' The brief facts leading to the filing of the above petition are that petitioner No. 1 is serving as Officer in the respondent No. 1 for last 18 years and is posted as Senior Officer/ Assistant Vice- President for the last 41 years the petitioners Nos. 2, 3 and 4 are working as Officer Grade I for the last 3, 3 and 3 years respectively. Petitioners 5, 6, 7, 8 and 9 are working as Officers Grade II for the last 4, 3, 4, 3 and 3 years respectively. Petitioner No. 10 was appointed as Officer Grade III and he is working in the same category.
3. ' Since last 4 1/2 years the respondents' 2 to 8 were working as Senior Officers/Assistant Vice- Presidents Junior to petitioner No. 1 and respondents No. 2 to 18 were working as Officers Grade I Junior to petitioners Nos. 2, 3 and 4. Respondents Nos. 19 to 42 were working as Officers Grade II.
4. Juniors to petitioners 5, 6, 7 and 9 and respondents Nos. 43 to 59 were working as Officers Grade III Junior to petitioner No.
10. It is the case of the petitioners that the petitioners and hundreds of other Officers Grande II to Vice-Presidet, having better qualifications and record and senior to respondents have been arbitrarily superseded by respondents silently and secretly in October and November 1978 although their promotions are effective from 1-7-1978. It is averred in the petition that most of promotions do not fulfil the conditions relating to tenure of service, qualifications and suitability as laid down in rules 20 and 21 of the National Bank of Pakistan Staff Service Rules (hereinafter called the said Rules) as well as with promotion of policy for clerical staff/officers of the Nationalised Commercial Banks framed by the Ministry of Finance, Government of Pakistan communicated to all the banks through Pakistan Banking Council under Memo No. MAF-37/178/78, dated 15th April, 1978.
5. On coming to know of these promotions 196 officers including the petitioners immediately made representation to respondent No. 1, Chairman, Pakistan Banking Council, Ministry of Finance and the President of Pakistan. The affected Officers formed a legal aid committee and also sent a representation, dated 21-11-1978, and he separately requested respondent No. 1 to supply an up-to- date seniority list of the promotions under his letter, dated 21-11-1978 and 26-11-1978 but no reply has been given as yet. It is submitted by the petitioners that respondent No, 1 being a Government controlled bank is duly bound to act impartially, fairly and justly but the respondent No. 1 has in utter disregard of the said service Rules and Promotion policy which has force of law, unilateraly, illegally and unjustly promoted the respondents 2 to 59 and other officers to next higher grades and its action is in violation of service Rules as well as Article 4 of the Constitution.
6. ' The petitioners sought to challenge the legality of the promotion of respondents 2 to 59 and other officers to next higher grades.
7. ' The respondent No. 1 in its parawise comments and counter-affidavit stated that the posts of above officer Grade I are essentially selection posts and promotions to such grades are not made by virtue of seniority alone. Moreover, all promotions, according to the Rules are made on the merits of each case and no one has claim to be promoted to any particular post or grade on the basis of seniority alone. The respondents Nos. 2 to 6 were designated as Assistant Vice-President earlier than petitioner No. 1 and senior to petitioner No.
1. The respondents 2 to 6 stood as serial Nos. 2, 13, 3, 6 and 11 in order of seniority in the list of Assistant Vice-President as against petitioner No. 1 who stood at serial No.
31. Respondents 7 and 8 being at serial No. 94 and 68 in order of seniority were, however, junior to petitioner No.
1. It may be stated that respondent No. 7 was designated as acting Vice-President being Zonal Chief of Sukkur Zone and was not promoted to Senior Grade II as Vice-President. Respondent No. 8 was also Zonal Chief Karachi Zone A. Both respondents No. 7 and 8 have been holding highly responsible positions as against respondent No. 1.
8. It is further averred in the parawise comments that seniority for the purpose of promotion of officers from Grade II to Grade I was taken into consideration on the basis of administrative units/groups like Karachi Circle, Lahore Circle, Peshawar Circle and Quetta Circle. Promotions from Grade II to Grade I in the past have been considered on almost similar basis. The promotions have been made in accordance with the criteria/policy approved by the Execution Board of the Bank.
9. The promotions though made effective from 1-7-1978 as decided by the Bank as a matter of policy were finalised after a series of discussions/ meetings of Executives held in this connection as is the usual practice and this is why it took 2 to 3 months from August, 1978 and onward in proceeding and finalising the promotions. It is incorrect to say that the petitioners and those senior to respondents were silently and secretly superseded arbitrarily.
10. ' We have heard the learned counsel for the parties on the maintain ability of the petition as well as on merits.
11. ' Mr. S.A. Sarwana, the learned counsel for the petitioner, in support of the petition, has contended as follows:- "(a) that an order for promotion in utter disregard of service Rules and promotion policy which has force of law, illegally promoted the respondents 2 to 59 to next higher grades and its action is in violation of service Rules."
12. ' On the other hand Mr. Khalid Anwar and Syed Nasiruddin, learned counsel for the respondents, have contended that the petitioners cannot challenge the order in Constitutional petition. The learned counsel has cited cases reported in 1984 PLC 41 and PLD 1981 SC 225.
13. ' The statute for consideration is the National Bank of Pakistan Ordinance, 1949 (hereinafter referred to as the 1959 Ordinance). The said Ordinance established the Bank as body corporate having perpetual succession and a common seal. The composition of the Bank consists of the Director namely (as Managing Director) appointed by the Federal Government under section 16; eight directors elected in local or special local meetings by the shareholders.
14. ' Under section 32 of the Ordinance the Bank may with the previous approval of the Federal Government, make bye-laws not inconsistent with this Ordinance to prove for all matters for which provision is necessary or convenient for the purpose of giving effect to the provisions of this Ordinance. Clause (xxviii) of subsection (2) of section 32 provides that the recruitment of officers and staff of the Bank including the terms and conditions of their service, and the constitution and management of staff and superannuation funds for the officers and servants of the Bank.
15. ' In pursuance of the powers conferred by section 32 of the Ordinance, the Central Board of the Bank has with the previous approval of the Federal Government made the bye-laws. Bye-law 18(a)
16. (iii)(iv) provides that the Bank shall have power to frame with the previous approval of the Federal Government, rules to which the officers and staff of the Bank shall be subject.
17. ' In pursuance of the powers conferred by bye-laws 18(a)(iii) and (iv) of the National Bank bye-law with the prior approval of the Federal Government framed Rules governing the service of employees of the National Bank of Pakistan. The service Rules provide inter alia for the terms and conditions of appointment and recruitment of service, record of service namely seniority, promotion, entitlement of pay, increment and withholding of increment. Rule 4 provides that the Central Board with the approval of the Federal Government reserves the right of amending, modifying, promoting all or any of the Rules herein laid down as may be found necessary from time to time.
18. ' The contention on behalf of the petitioners is that these rules are made under the bye-laws and the bye-laws are made under the statute. The original and source of the power to make bye-laws and rules is statutory. Rules are self-binding in character. Rules have the force of law inasmuch as the respondent No. 1 has no right to make any departure from the Rules.
19. 'Rules, Regulations and Bye-laws made under statutory powers are all comprised in delegated legislation. Subordinate Legislation is made by a person or body by virtue of the powers conferred by a statute. Bye-laws are made in the main by local authorities or by statutory authorities for regulating the conduct of persons within their areas or resorting to their undertakings. The rules are used in an Act or ordinance to limit the power of the statutory authority. The powers of statutory bodies are derived, controlled and restricted by the statutes which create them and rules framed under them. Any action of such bodies in excess of their power or in violation, of the restrictions placed on their powers is ultra vires. The reason is that it goes to the root of the power of such corporations and the declaration of nullity is the only relief that is granted to the aggrieved party.
20. ' In England subordinate legislation has, if validly made, the full force and effect of a statute, but it differs from a statute in that its validity whether as respects form or substance is normally open to challenge in the Courts.
21. 'The characteristic of law is the manner and procedure adopted in many forms of subordinate legislation. The authority making rules, regulations and bye-laws must specify the source of the rule, regulation and bye-law making authority. Rules, bye-laws and regulations are framed in exercise of the specific power conferred by the statute to make rules, regulations and bye-laws.
22. The essence of law is that it is made by the law-makers in exercise of specific authority. Another characteristic of law is its contents. Law is a rule of general conduct while administrative instruction relates to particular person.
23. ' The distinction between rules, regulations and bye-laws on the one hand and administrative instructions on the other is that rules, regulations and bye-laws can be made only after reciting the source of power whereas administrative instructions are not issued after reciting source of power.
24. The Hon'ble Supreme Court in the case of Principal, Cadet College, Kohat v. Muhammad Shoab PLD 1984 SC 170 held as follows: "It is common ground that neither any rules, as contemplated by section 17 of the Ordinance nor any Regulations under section 18 thereof were framed. The Board of Governors did frame some "rules" governing the appointement, promotion, retirement, termination of service and dismissal of staff employed by the Board of Governors of the College" in its meeting held on 29th September, 1964, but these not having been made by the Government, could not be regarded as "rules" under section 17, nor having been approved by the Government, be treated as Regulations under section 18 thereof. These "rules" therefore could only be regarded to be in the nature of mere instructions issued for the guidance of the Board of Governors and the Principal of the Cadet College, Kohat."
25. ' The character of administrative instruction has been decided by the Hon'ble Supreme Court in several decisions one of such decision consists of Muhammad Yousuf Shah v. P.I.A. Coropration PLD 1981 SC 224 wherein the Hon'ble Supreme Court observed that the case of an employee who was governed by statutory rules stood on a different pedestal from the case of an employer whose conditions of service were regulated merely by instructions issued by the employing organisation for its own internal use. In the above, case, the appellant Muhammad Yousuf Shah was a security guard in the Pakistan International Airlines Corporation and was dismissed from service for misconduct. The services of the employee were however, not shown to be governed by any statutory rule or regulation but by a service code published by the said Corporation.
26. ' In the cases of the Evacuee Trust Property Board and another v. Muhammad Nawaz 1983 SCMR 1275, case of Principal, Cadet College, Kohat. v. Muhammad Shoab PLD 1984 SC 170 and The Hon'ble Supreme Court held that the termination of services by the Trust Board and Cadet College without complying with the requirements of the regulations framed by the Trust Board and Cadet College under the statute governing conditions of the empoyees of them were bad. The reason is that the terminations contravened the provisions contained in the regulations.
27. 'There is no substantial difference between rule, regulation and bye-law inasmuch as these are subordinate by delegation under powers conferred by the statute. A rule framed under a statute applies uniform treatment to everyone or to all members of some group or class. The respondent No. 1 is required by the statute to frame bye-laws and rules inter alia for the purpose of the duties and conduct and conditions of service of officers and other employees. These rules and bye-laws impose obligation on the statutory authority. The statutory authority cannot deviate from the conditions of service. Any deviation will be enforced by legal sanction of declaration by Courts to invalidate action in violation of rules, regulations and bye-laws. The existence of rules, regulations and bye-laws under the statute is to ensure regular conduct with a distinctive attitude to that conduct of a standard. The statutory rules and bye-laws in this case under consideration give the employees a statutory status and impose restriction on the employer and the employee with no option to vary the conditions. An ordinary individual in a case of master and servant contractual relationship enforces breach of contractual terms. The remedy in such contractual relationship of master and servant is damages because personal service is not capable of enforcement. In cases of statutory bodies there is no personal element whatsoever because of the impersonal character of statutory bodies. In the case of statutory bodies it has been said that the element of public employment of service and the support of statute requires observance of rules, regulations and bye-laws. Failure to observe requirements by statutory bodies is enforced by Courts by declaring action in violation of rules and regulations to be without lawful authority and would be subject to the supervisory jurisdiction of this Court. The superior Courts have repeatedly observed that whenever a man's rights are affected by decision taken under statutory powers, the Courts would presume the existence of a duty to observe the rules of natural justice and compliance with rules, bye-laws and regulations imposed by statute.
28. ' For the foregoing reasons, we hold that rules framed by the respondent No. 1 have the force of law.
29. The employees of the Bank have a statutory status and they are entitled to declaration of being in employment when their dismissal or removal or action is taken in contravention of statutory provision and would be subject to the supervisory jurisdiction of this Court.
30. ' Adverting to the contention of the learned counsel for the petitioner that the order of promotions made by respondent No. 1 from Grade III from 1-7-1978 is without lawful authority. Rule 10 provides that the minimum educational qualification for recruitments in category I shall be Bachelor degree from a University recognized by the Federal Government. Clause (b) of sub-rule (2) of rule 10 provides a pass in the institute of Banks or an equivalent examination and at least 7 years' experience as an Officer in a first class scheduled bank. Clause (c) provides pass in the institute of bankers or on equivalent examination and at least 15 years' experience as an officer in a first class scheduled bank, clause (d) provides pass in the institute of bankers or an equivalent examination and at least 20 years experience or an officer including 10 years in a senior position in a first class scheduled Bank. Rule 10 provides that an employee will ordinarily rank for seniority in the grade on the basis of the date of his confirmation in the grade and in case of an employee not appointed on probation on the date of his appointment in the grade.
31. ' It is advantageous to reproduce rule 21 of the policy laid down by the Federal Government in regard to deterioration of promotion, rule 21 reads as under:- "21. Promotion:- (1) All promotions shall be made on the merits of each case and no employee shall have a claim to be promoted to any particular post or grade by virtue of seniority alone. Should an employee officiating in a higher post show sighs of deterioration while he is so officiating, he shall be liable to immediate and summary reversion to the grade of his previous appointment."
(2) For promotions to the posts in category 1, except Chief Cashiers and those employed on non- banking posts, same as prescribed in sub-rule (2) of rule 10: ' Provided that an Officer class II will be eligible for promotion in case he has completed 10 years' service as an officer in a scheduled bank.
(3) Only such employees, except Chief Cashiers and those employed on non-banking posts, will be eligible for promotion to the officers grade as have acquired the following experience in addition to the educational qualifications laid down in sub-rule (2):-
(a) For promotion to Category 1 (f):- ' At least 4 years' service in supervisory capacity a Scheduled Bank, with a minimum of 2 years in the Bank.
(b) For promotion to Category 1(e):- ' At least 5 years' experience as an Officer in a first class scheduled bank, with 2 years in the Bank: ' Provided that an employee in Category 1(f) will be eligible for promotion in case he has completed 8 years' service as an Officer in a first class scheduled bank, with 2 years in the Bank.
(c) For promotion to Category 1(d):- ' At least 12 years' service as an Officer in a first class scheduled bank, with 4 years in the bank.
32. ' Provided that an employee in Category 1(e) will be eligible for promotion in case he has completed 15 years' service in the Bank.
(d) For promotion to Category 1(e) and above: ' The posts of officers in Category 1(c) and above will be essentially selection posts. The requisite experience will be 15 to 20 years' experience as an officer in a first class scheduled bank, with at least 10 years in the Bank: ' Provided that the conditions prescribed in sub-rules (2) and (3) may be relaxed by the competent authority in special cases and for special reasons.
(4) Officers Class II already in the service of the bank, except those employed on non-banking posts, will be required to pass Part I of the Institute of Bankers or an equivalent examination before being allowed to cross the efficiency bar. This provision shall not be relaxed except in special cases by the competent authority.
(5) Promotion to other categories of staff shall be made in accordance with the conditions laid down from time to time by the Managing Director."
33. ' Mr. Sarwana, appearing for the petitioners has contended that rules 20 and 21 which provide for determination of seniority and promotion are inextricably intertwined with rule 10 and are an integral part of the scheme of the Rules relating to recruitment. The respondent No. 1 has not followed the criteria laid down in these rules. On these premises, it is urged that a direction be issued to respondent No. 1 to treat this order of promotions, with effect from 1-7-1978 as void, and to determine the promotions of the petitioners and respondents Nos. 2 to 59 in accordance with rule 21.
34. ' As against this, Mr. Khalid Anwar, learned counsel for the respondent, has submitted that all promotions shall be made on the merits of each case and no employee shall have a claim to be promoted to any particular post or grade by virtue of seniority alone. He has further submitted that the petitioners had not acquired any vested right and could not ask for enforcement of such right.
35. ' The petitioners contention is that the respondents 2 to 59 did not fulfil the conditions relating to tenure of service, qualifications and suitatiblity as laid down in rules 10, 20 and 21 and the promotion policy laid down by the Ministry of Finance, Government of Pakistan. On the other hand the contention of the respondent No. 1 is that the criteria/policy guidelines laid down for promotions effected from 1-7-1978 are absolutely clear/comprehensive and it was formulated in the light of provisions contained in the policy introduced by the Government and the staff service rules.
36. ' It is argued that no person could claim promotion to a higher position as of right and that the decision of the promoting authority as the case may be refusing such promotion was merely as administrative decision and therefore not justifiable in a Court of Law.
37. ' The first endeavour is made to support the petitioners' case rested on the provisions of rules 10, 20 and 21 of the Staff Service Rules, which it is argued, enjoined the bank to afford equality not only in the matter of initial appointment but also in the matter of promotion or advancement at every stage in the course of the career of a bank employee after his appointment.
38. ' It is contended that the expressions "educational qualifications" for recruitment to post in category 1" occurring in rule 10 not only refer to the stage at which the Grade I Officer enters bank service but take within their ambit the entire career in bank service and that therefore the educational qualifications was not limited to the stage when a person enters bank service but should also be taken into consideration at the stages when promotion is made from one position to another.
39. ' According to the petitioners the promotion of respondents 2 to 59 and the non-promotion of the petitioners to that position was infraction of right guaranteed by these Rules, since the petitioners although they possessed the eligibility constituted by their having passed by the preferment to promotion of respondents 2 to 59 who did not themselves possess the prescribed qualifications.
40. 'According to rule 21 of the Staff Service Rules, promotion from one category to a higher category shall be for merit and no officer shall be entitled to claim such promotions on the ground of seniority alone.
41. ' The above rule 21 makes it clear that merit and not seniority should form the basis of promotions, far from supporting the petitioners' claim to a promotion as of right on the ground that they possess the qualification prescribed for the higher categories, constitute a complete answer to that contention.
42. ' Thus, the very manner of developing the argument contains in itself material which is destructive of the ultimate result sought to be achieved by the arguments. All promotions or selections, it must be remembered, are intended for the purpose of determining the suitability of the person promoted or selected to be promoted or appointed to the category in respect of which selection is made. It is without doubt that suitability for a superior category is quite different from suitability for an inferior category, and it is not always correct to say that mere length of service in an inferior category necessarily confers upon a person suitability for a superior category. That is why it is said that, in the absence of a statutory rule or an enforceable condition of service either of which may lay down objective tests of suitability on the fulfilment of which promotion may be claimed all other types of promotions are based on a multitude of considerations. Once the argument concedes the right of the respondent No. 1 to take into account consideration other than mere seniority and once it is clear that mere length of service in an inferior category cannot confer suitability in respect of a superior category it is impossible to assert that one consideration is of greater importance than another consideration. If so, there is no basis for the contention that seniority is the prime or most important consideration which must necessarily lead to promotion and that other considerations are negative ones in the nature of disqualification. The proper view to take is that all considerations are really in the nature of positive considerations, determining the suitability of a period for being promoted to a superior category.
43. ' On the material before us, it would not, we think, be right to hold that the allegations that promotions of respondents 2 to 59 was actuated by collateral consideration has been established.
44. ' This Constitutional petition fails and is dismissed without any costs.