1. ' SHAFIUR RAHMAN, J.---Leave to appeal was granted under Article 185(3) of the Constitution to the Government of N.-W.F.P. To examine the following questions of law of public importance arising in the case:--
(1) Whether the question of respondent's eligibility to be promoted as Professor is governed by the 1969 P.M.D.C. Rules or the 1984 Notification issued by the Government;
(2) Whether vis-a-vis the respondent's case, the 1984 Notification would not be applicable on the assumption that it will not operate restrospectively?
(3) What is the effect of Regulations made by the Pakistan Medical and Dental Council on 15th of January, 1984, on the present case?
(4) Whether there was no post of Professor available on 7-10-1980 when the respondent claimed to have become eligible for promotion as Professor? Whatever the answer its effect on the respondent's claim?
(5) Whether the respondent's claim shall remain subject to the non-availability of persons with qualifications higher than his--if so, what will be the effect of availability of persons with higher qualifications by virtue of operation of the 1984 Notification? And
(6) Whether the respondent has any vested right to promotion as Professor or eligibility in that behalf?
2. ' Dr. Sheikh Muzaffar lqbal, who was the petitioner before the High Court, joined the Health Service of the Province on 8-9-1958 and was promoted to Senior Class I Scale as an Eye Specialist on 15-2- 1966. He was thereafter appointed Assistant Professor, Khyber Medical College on 7-10-1972 and was promoted as Associate Professor of Opthalmology in Khyber Medical College on 1-5-1977. The next post for promotion for him is that of Professor of Opthalmology. In 1972 and even in 1977, the rules of promotion required basic qualification of M.B.,B.S. Or equivalent medical qualification and in addition postgraduate qualification in the form of recognized post-graduate diploma in the subject with eight years experience as Assistant Professor in the speciality. In this manner, according to the rules then prevailing, the respondent became eligible for promotion to the post of Professor on 7-10-1980. The promotion could not take place for one reason or the other, not material to the decision of this appeal. On the 12th of January, 1984, the following notification amending the rules for the appointment of Professors was gazetted:--- "GOVERNMENT OF N.-W.F.P. HEALTH & SOCIAL WELFARE DEPARTMENT. "
3. ' Dated Peshawar, the 12th January, 1984. NOTIFICATION No, SO(H)I/6-22/83: In pursuance of the provisions contained in sub-rule (2) of Rule 3 of the North-West Frontier Province Civil Servants (Appointment, Promotion and Transfer) Rules, 1975, and in supersession of all previous rules on the subject in this behalf, the Health and Social Welfare Department, in consultation with the Services & General Administration Department, hereby lays down the method of recruitment, qualifications and other conditions specified in columns 3 to 7 of the Schedule appended to this Notification, which shall be applicable to posts borne on the Medical and Dental Teaching Institution of the Health Department specified in column 2 of the said Schedule."
4. ' The change which took place and which aggrieved the petitioner was expressed in the Remarks Column of the Schedule to the Notification dated 12th of January, 1984 and was in the following words:- "The holders of basic qualification or minor Diploma-holders equivalent to MCPS are not eligible for promotion as Professor."
5. ' The respondent who was till then eligible for promotion to the post of Professorship became ineligible on the enforcement of this Rule. He instituted a Constitutional Petition in the High Court praying that "the impugned notification dated 12-1-1984 may be declared as without lawful authority and of no legal effect qua the rights of the petitioner for promotion to the post of Professor". The Constitutional Petition was contested by the appellant.
6. ' The High Court after examining the rules and the nature of the right claimed by the respondent, held as follows:-- "The argument that the petitioner was to be promoted in accordance with the P.M.D.C. Rules of 1969 is also supported by the subsequent Regulations framed by the P.M.D.C. With effect from 15th of January, 1984, which provided that persons appointed before 15th January, 1984 shall be governed by the Regulations on the subject for appointment/ promotion applicable at the time of their appointment to teaching cadre. In view of these Rules and Regulations reliance placed by the respondent on a letter dated 27th of December, 1982 issued by the PMDC seems to be inapt since the letters issued by concerned authorities regarding the service matters cannot take the place of the Rules framed for the purpose. Similarly, the new Rules of the Provincial Government made on 12-1-1984, relied upon by the learned Advocate-General, could only be applied prospectively to person entering the service after the date of the said notification and not retrospectively to the prejudice of the petitioner. It is well established that the terms and conditions of service of an employee cannot be varied to his disadvantage by framing rules with retrospective effect.
7. ' The relief sought for was granted.
8. ' Mian Muhammad Ajmal, Assistant Advocate-General N.-W.F.P., the learned counsel for the appellant urged that a Constitutional Petition in the High Court was not at all competent because the prospects of promotion is not term and condition of service. What the respondent was claiming before the High Court was that his terms and conditions continued to be governed by the Service Rules with regard to recruitment and promotion as were in force prior to 12th of January, 1984 and that the amendment notified on 12th of January, 1984 was not a term and conditon of his service.
9. On this view of the matter, a Constitutional Petition was altogether barred under Article 212 of the Constitution and the only remedy open to the respondent was to have gone before the Service Tribunal. On merits it has been contended that the rules in which a vested right is claimed by the respondent, relate to a different service than the one to which he belongs, a higher one to the one which he occupies. The respondent, according to the learned Assistant Advocate-General could have a vested right in the service to which he belonged and the post which he was occupying but could claim none in the higher post to which he had yet to be appointed. The learned Assistant Advocate-General has relied upon a decision of this Court in Ch. Muhammad Insha Ullah and others v. Chief Conservator of Forests (P & E) Punjab and others PLD 1988 SC 155.
10. ' Mr. Abid Hassan Minto, Advocate, the learned counsel for the respondent has contended that in any case the matter has reached the Supreme Court and it has become inconsequential whether it should have been received in this Court from the Service Tribunal or from the Constitutional jurisdiction of the High Court. The learned counsel has referred to the original amendments introduced by the Pakistan Medical and Dental Council in the rules which were adopted by the Provincial Government by incorporating the same in the Service Rules. The governing condition of all the amendments in the qualifications is contained in the P.M.D.C. Notification and is reproduced hereunder:- "All degrees/diploma mentioned in Columns 2 & 3 of these Regulations are subject to the Recognition/Registration by the Council. All diplomas recognised/registered as equivalent to F.C.P.S., M.S., M.D. (Pak) are major diplomas/degrees and those recognised/registered as equivalent to M.C.P.S. Are minor diplomas. These Regulations shall be effective from 15th January, 1984 and shall not have retrospective effect. Persons appointed before 15th January, 1984 shall be governed by the Regulations on the subject for appointment/promotions applicable at the time of their appointment to teaching cadre. These Regulations are mandatory. The qualifications mentioned in these Regulations are in order of priority."
11. ' The learned counsel has also explained the application of the rules by reference to a letter dated 29th of June, 1985 in the following words:-- "The matter was taken up with the Pakistan Medical and Dental Council and Government of N.- W.F.P., Law Department for advice. A copy of Pakistan Medical and Dental Council letter No, PF-II-F- 1984/5584 dated 24-1-1985 is enclosed. The Law Department has, therefore, advised that the advice of Pakistan Medical and Dental Council is based on correct interpretation of the preamble of the Regulations for the appointment/promotion of Assistant Professor, Associate Professor, Professors etc. And all appointments made prior to 15-1-1984 shall be governed by Regulation applicable at the time of their appointment to teaching Cadre. These rules are mandatory."
12. ' In the case of Dr. Habibur Rahinan v. The West Pakistan Public Service Commission, Lahore and 4 others PLD 1973 SC 144 recruitment to the post of Professor of Surgery for Medical Colleges in West Pakistan was taking place through an interview by the Public Service Commission. After the advertisement and before the interview, the qualifications were changed. A vested right was claimed in the qualifications advertised and the conditions current at the time of interview were sought to be avoided. The matter was dealt with by this Court in the following words at page 156 of the report:-- "While considering the question whether relevant rules/instructions have been infringed in any manner in the matter of assessing the respective merit of the competing candidates, it has to be borne in mind that the reference must be to instructions current at the time the interviews are held by the Public Service Commission. An attempt was made during the course of arguments at the Bar to assert that the instructions applicable should be those which were in force at the time the posts were advertised. This position cannot be accepted, as it is difficult to hold that candidates applying for recruitment by interview have any vested right in the method of assessing their merit.
13. Accordingly, we intend to examine this aspect of the case with reference to the instructions which were in force at the time the two interviews were held."
14. 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 requirments at an earlier date.
15. ' The respondent was claiming a protection of the terms and conditions not of his service but that of the higher post. He could not have any vested right in respect of the terms and conditions of a post which was higher to the one which he was holding. The High Court was in error in considering that the terms and conditions of the appointment of the Professor were the terms and conditions of his appointment who was holding the next below post of Associate Professor. The rules read with Schedule will bear it out that the terms and conditions related to a higher post with which the respondent could have some connection only on being promoted or appointed and not prior to it.
16. This matter has been reiterated in Muhammad Insha Ullah's case and subsequently in Habib Bank Limited and 2 others v. National Industrial Relations Commission and others (Civil Appeal No,316 of 1987: PLD 1988 SC 362). The respondent could claim no vested right nor could a change in the recruitment rules of the higher post can be said to operate against him retrospectively.
17. ' The respondent being a civil servant, the terms and conditions of his service are not governed by the Regulations made by the Pakistan Medical and Dental Council but by the N.-W.F.P. Civil Servants Act and the N.-W.F.P. Civil Servants (Appointment, Promotion and Transfer) Rules, 1975. It is by incorporation of the qualifications in the rules that the Civil Servants like the respondent and other could claim to be governed by it and not independently of any such incorporation.
18. ' The question of availability of a post of Professor in 1980 or its non-availability is irrelevant because even if the post existed, the person appointed cannot claim any right in the appointment from a date earlier to his taking over as such. The appellant denied the availability of such a vacancy and it being a factual controversy remaining unresolved so far, cannot be resolved at this stage. The remarks column categorically shows that the holders of basic qualification or minor diploma-holders equivalent to M.C.P.S. Are not eligible for promotion as professors. After this ineligibility in the rules, unless relaxation takes place, there is no question of a person having this qualification, being considered for appointment irrespective of the fact whether persons with higher qualifications are available or not.
19. ' No one can claim a vested right in promotion or in the terms and conditions 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.
20. ' We find that the claim made by the respondent was without merit. The appeal is accepted, the judgment of the High Court is set aside and the writ is recalled. No order as to costs.