Through this Constitutional petition, the petitioner has challenged the vires of the Punjab Health Department Dental Surgeons (General Cadre) Recruitment Rules, 1991, as amended vide Notification No. SOR-III-1-17/91 dated 2-2-1995. The precise relief being claimed through this petition is as follows: -- "It is most respectfully prayed that the Rules pertaining to experience as modified on 2-2-1995 be declared to be arbitrary, inconsistent and derogatory to the rights of the petitioner and contrary to the equality clause of Constitution of Pakistan particularly as regards experience."
2. Brief facts leading to the filing of the afore-referred writ petition are that vide the impugned notification, the Government amended the earlier Rules i.e. The Punjab Health Department Dental Surgeons (General Cadre) Recruitment Rules, 1991.
In terms of the impugned amended Rules, applications were invited by the Punjab Public Service Commission for the post of Chief Dental Surgeon and after the prescribed interview, respondent No.4 has been recommended by the Commission. The petitioner has challenged this recommendation as well. He did not implead respondent No.4 as party. However, since he was likely to be affected, he made an application for becoming a party which application was allowed end he has been impleaded as respondent No.4. '
For a better appreciation of the amended rules a comparative chart of the relevant provisions of the said rules, is given below: - Old Rules 7New Rules Age Chief Dental Ph. D or equivalent Ph D.Or MDS or40--50 Surgeon.8 years in BPS-18 ande quivalent above in Government recognized by service or in an PMDC and 17 equivalent position years practical registered and recog-or teaching nized by PMDC. Experience from a recognized insti-- tution/hospital in which 7 years should be after PhD./MDS.
Principal8 years Government PhD. Or MDS35--45 Dental service in BPS-17 or12 years minimum Surgeon5 years in Government5 years as MDS service or equivalentor Ph.D. recognized by PMDC MDS or equivalent recognized by PMDC.
3. In support of this petition, learned counsel for the petitioner, has made the following submissions: --
(i) that the amended rules are framed just to bring respondent No.4 inasmuch as in the original rules, the experience of 8 years was required whereas in the amended rules, it has been raised to 17 years;
(ii) that the experience of 17 years has given a further rider that out of these 17 years, he should have 7 years experience after obtaining Ph. D degree or the degree of MDS;
(iii) that the word "Government service" has been omitted in the new rules;
(iv) that in the old rules, it was imperative that a candidate should have worked in an institution which is registered and recognized by PMDC and in the new rules this provision has been dispensed with.
5. Learned counsel for respondent No.4 has defended the amended Rules by submitting that the petitioner has no locus standi to file this petition as he is neither an applicant for the post of Chief Dental Surgeon or Medical Superintendent or even under the amended Rules. He submitted that the petitioner in fact is an Assistant Professor in Basic Pay Scale No. 18 on current charge basis and has applied for the post of Assistant Professor in operative dentistry for which post he has to appear for interview on 19-12-1995. (The petitioner who was present in Court confirms this factual position). He further pointed out that the new amendment in the Rules was deemed imperative in view of a reference received from the Punjab Public Service Commission in the year 1991. A committee was constituted and the said Service Rules Committee in its meeting dated 5-4-1994 which was held under the Chairmanship of the Additional Chief Secretary approved the amendment in question. He placed on record a copy of the minutes of the said meeting to show that requirement of 17 years practical/teaching experience was deemed necessary to bring the qualification in line with the length of the service as given in the Promotion Rules, 1989.
6. The learned Additional Advocate-General who has entered appearance on Court's call has submitted that the Rules have been framed by the competent authority and that it is within the discretion of the Government/Employer to frame the Rules or amend them to ensure certain level of experience and expertise in the service. He has also referred to Government of N.-W.F.P. Health and Social Welfare Department through its Secretary v. Dr. Sheikh Muzaffar Iqbal and others 1990 SCMR 1321 to canvass the point that the Government has the right to enhance the qualification or standard of recruitment.
7. I have heard learned counsel for the parties and have also gone through the rules and the precedent case-law which has been mooted at the bar.
8. The power of judicial review of a legislative action has not been specifically granted to this Court under the Constitution but the Courts have assumed this power through interpretation of various Constitutional provisions. However, this Court sitting in Constitutional jurisdiction cannot examine the wisdom of legislative authority. Fxuji Foundation and another v. Shamimur Rehman PLD 1983 SC 457 (546) it was observed as follows: --- "When a Court which is a creature of the Constitution itself, examines the vires of an Act, its powers are limited to examining the legislative competence or to such other limitations as are in the Constitution; and while declaring a legislative instrument as void, ' it is not because the judicial power is superior in degree or dignity to the legislative power' but because it enforces the Constitution as a paramount law either where a legislative instrument is in conflict with the Constitutional provision so as to give effect to it or where the Legislative fails to keep within its Constitutional limits. "
Dilating on the scope of judicial review it was held (at page 546) as under: --- "Purpose of judicial review is corrective or directory and extends to determining legality of administrative action and in relation thereto constitutionality of legislation---Judicial review does not extend to prying into affairs of Legislature---Courts to refrain from exerting inquiry into motives of legislation---Inquiry involving proof, being outside scope of judicial review, no presumption can thus be drawn as to fact such as malice---No adverse inference can be drawn on matter exclusively pertaining to legislative field for determination of which judicial power could not be exerted. "
An act of the Parliament or an order passed or a notification issued under the delegated legislation can be subjected to judicial review if the same is ultra vires of the Constitution, law or is otherwise unreasonable. There is nothing in the amended rules which could justify an inference that the amended E rules have been framed in derogation to any guaranteed fundamental rights or are in conflict with an Act or are unreasonable. Learned counsel for the petitioner tried to establish mala fides by submitting that only one candidate i.e. Respondent No.4 was recommended by the Public Service Commission and this would be ample proof that the rules were framed just to accommodate him. I am afraid, the contention of the learned counsel is not tenable as the equality clause of the Constitution is subject to reasonable classification which empowers the Government/employer to ensure certain level of experience and professional expertise for a particular post. In Government of N.-W.F.P. Health and Social Welfare Department through its Secretary v. Dr. Sheikh Muzaffar Iqbal and others 1990 SCMR 1321 it was held as under: --- "Civil Service--- ----Promotion---Vested right---No one can claim a vested right in promotion or in the terms and conditions for promotion to a higher post---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 a civil servant happens to hold, he cannot claim vested right in other higher tiers in the hierarchy."
So far as the question of mala fides is concerned, nothing has been shown in the petition or during, the arguments to warrant to finding that the requisition for amendment in rules was initiated at the behest of respondent No.4. The mala fide is to be alleged with a particularity and not through vague generalizations. It is to be noted that in the original writ petition, respondent No.4 was not even impleaded as a party and no allegations were levelled against' him. Respondent No.4 became a party after moving an application before this Court. If the thrust of the arguments or the grievance was that the entire exercise of amendment was made to accommodate respondent No.4 he ought to have impleaded him as a party or some allegations should have been levelled against him in the body of the original un-amended petition. In absence of that there is no material to justify such a conclusion.
In The Federation of Pakistan through its Secretary Establishment Division, Government of Pakistan, Rawalpindi v. Saeed Ahmad Khan and others PLD 1974 SC 151, the question of mala fide was deliberated at length and it was observed as under: --- "Mala fides--- ----Meaning---Burden to prove, lies on person alleging---Presumption of regularity attaches to all official acts---Presumption rebuttable.
Mala fides is one of the most difficult things to prove and the onus is entirely up to the person alleging mala fides to establish it, because, there is, to start with, a presumption of regularity with regard to all official acts, and until that presumption is rebutted, the action cannot be challenged merely upon a vague allegation of mala fides. Mala fides must be pleaded with particularity, and one one kind of mala fides is alleged, no one should be allowed to adduce proof of any other kind of mala fides nor should any enquiry be launched merely on the basis of vague and indefinite allegations, nor should the person alleging mala fides be allowed a roving enquiry into the files of the Government for the purposes of fishing out some kind of a case. "
Learned counsel also attempted to argue that respondent No.4 did not qualify for the post as he did not have the requisite experience of 17 years in a "recognized institution/hospital" and that respondent No.4 is admittedly working in Data Darbar Hospital under the Auqaf Department which is recognized by the PMDC only to the extent of eye department.
A careful examination of the amended Rules would indicate that the qualification for the Chief Dental Surgeon is Ph. D. Or MDS or equivalent in the field of dentistry/MDS recognized/registered with the PMDC and the requirement of seventeen years practical/teaching experience in the field or dentistry from a "recognized" institution/hospital in which seven years after Ph.D./MDS. The word "recognized" used in the later part of the foregoing provisions of the amended rules would show that this recognition is not that of the PMDC otherwise the word PMDC could have been used. In absence of this rider no word can be read into it and the expression "recognized institution" would therefore mean generally recognized by the public at large or the Government. So far as the requirement of 17 years' experience is concerned, no exception can be taken to this as it appears that this change has been brought about, to make the requisite experience in line with length of service required for a post of similar grade in the Promotion Rules, 1989.
On the question of locus standi, it is admitted that the petitioner has not even applied for the post for which respondent No.4 has been recommended by the Public Service Commission and further that the petitioner has already applied p and haste appear in the interview for the post of Assistant Professor in operative dentistry which is to be held on 19-12-1995 and this post is BS-18. The petitioner, therefore, would not directly be an aggrieved person. Learned counsel for the petitioner submitted that as chances of promotion to the next higher grade are likely to be delayed if respondent No.4 is appointed as Chief Dental Surgeon he is an aggrieved person. Reliance was placed on Burewala Bus Service Limited v. H.A. Majeed, Member, Board of Rdvenue, West Pakistan and others PLD 1959 Lah. 973 to bring home the point that a mandamus can be granted when an administrative body ~illegally refuses to exercise jurisdiction in a case where the interest of a person affected. When asked by this Court, the petitioner admitted that he, was fourteen and a half years service in the Government department. The post for which respondent No.4 stands recommended falls in the quota of direct recruitment. He shall have this chance by applying and competing for the post which falls vacant under the promotion quota and even for a direct recruitment after completing three years in service.
9. For what has been discussed above, there is no merit in this petition which is dismissed.