This writ petition has been filed in the background that the petitioner is graduate in Civil Engineering and had joined Communication and Works Department as Assistant Engineer in 1974, but later on his services were terminated as he had been appointed on ad hoc basis. He then joined the said Department as Sub-Engineer out of sheer necessity 12th March, 1979, as by then he was over-age for initial recruitment as Assistant Engineer.
2. The rules of the Department which are called as Communication and Works Department (Recruitment and Appointment Rules) which came into force on 30th January, 1980 prescribed the following method of recruitment to the post of Assistant Engineer:-- 12 3 4 5 6 4.Assistant EngineerDegree in Civil Electrical or Mechanical Engineering from recognised University as may be specified by the Government of respective post.Degree or Diploma in Engineering from a recognised University or Institution as specified in columns.21years 30 years(a) Seventy per cent. by initial recruitment.
(b) Ten percent by selection on merit with due regard to seniority from amongst Sub- Engineers of the Department who hold a degree: and
(c) Twenty per cent. by selection on merit with due regard to seniority from amongst Senior Scale Sub-- Engineers of the Department who hold a Diploma and have passed Depart-mental Professional Examination.
These rules were subsequently amended in 1986 and the entry against column 'b' was changed as under:--
(b) 10% by promotion, on the basis of seniority-cum-fitness, from amongst the Sub-Engineers holding a degree in Engineering. Seniority to be determined from the date of acquiring degree or initial appointment whichever is later.
It is thus clear that these rules prescribe the same criteria of promotion for the post of Assistant Engineer for those who were holding the Engineering degree at the the of induction in service and for those who obtain the same qualifications during service. This amendment of 1980 was challenged by those who were aggrieved of it before the N.-W.F.P. Service Tribunal but the Tribunal dismissed the appeal mainly on the ground that it has no power to annul the rules. In the meantime some posts of Assistant Engineers fell vacant and as the petitioner was eligible for the post therefore, he showed interest to be promoted. He was, however, informed about the following entry in Schedule I in column 7 at clause (b) against serial No.4:-
(1) 5% by promotion on seniority-cum-fitness from amongst the Sub-- Engineers who have acquired degree in Engineering during service.
(2) 5 % by promotion on seniority-cum-fitness from amongst the Sub-- Engineers who have joined service as such, as Engineering Graduate.
This amendment thus brought the distinction between the graduates who joined service as such and those who obtained Engineering Degree during service and the quota of 10% allotted jointly to these to categories was divided and 5% was given to each branch separately. The petitioner's seniority was affected in the separate/bifurcated seniority list as in the combined list the petitioner was placed at Serial No.4 whereas the Sub-Engineers who got the degrees during service appeared at Serial Nos. 10 and 23 but in the bifurcated list those at Serial Nos. 10 and 23 were brought to Serial Nos. l and 2. This obviously resulted in great disadvantage and set-back in promotion of the petitioner. It is also alleged that the amendment was inserted mala fidley after the verdict of the Service Tribunal so as to benefit this way those who had failed to achieve their object in the Tribunal. In the comments by the respondents the jurisdiction of this Court and the competence of the writ petition was challenged on the ground that the matter relates to terms and conditions of service and, therefore, within the exclusive ambit of the Service Tribunal. The amendment was described as legal, bona fide and because of the demand of the Sub-Engineer Welfare Association, N.-W. F. P.
3. The learned counsel for the petitioner argued that the impugned amendment was not made by the Governor who is the competent Authority and there is no Notification to the effect that authority which made this amendment was- authorised by the Governor in terms of section 26 of N.-W.F.P.
Civil Servants Act.
The learned Advocate-General representing the respondents pointed out that the impugned Notification dated 12th April, 1992 has been issued by the Secretary to Government of N.-W.F.P.
Communication and Works Department in consultation with the Services and General Administration Department and the Finance Department in exercise of the powers conferred on him by sub-rule (2) of rule 3 of the N.-W.F.P. Civil Servants (Appointment, Promotion and Transfer)
Rules, 1989 and are, therefore, validly made.
The petitioner's counsel did not pursue the objection further and was apparently satisfied with the answer. Even otherwise the submission of the learned Advocate-General in view of the provisions of law referred to by him is correct.
4. The learned Advocate-General instead challenged the jurisdiction of this Court as according to him the dispute falls within the exclusive jurisdiction of the Service Tribunal as it relates to terms and conditions of a Government servant. This objection has no merit firstly, because the validity of the impugned Notification has been challenged and it is prayed to strike down the Notification being without lawful authority and mala fide which is not within the jurisdiction of Service Tribunal.
Secondly, the petitioner asserts right of promotion and thirdly, the N.-W.F.P. Service Tribunal judgment dated 23-3-1991 in Appeal No. 26 of 1990 captioned as Fakhre Zaman Babur, etc. v. N.- W.F.P. (annexed with the writ petition) in respect of the amendment brought about by Notification No. SO (E) C & W/4-5/78, dated Peshawar, the October 18, 1986, whereby the combined quota of 10% for both the graduates as explained above was fixed, held that the Tribunal is not competent to go into validity of the legislation regarding terms and conditions of service of Government servants arid dismissed the appeal mainly on this ground which order appears to have not been challenged in Supreme Court and is still intact. Therefore, to approach the Tribunal once again for the same relief would be a futile exercise.
5. It was next contended by the petitioner's counsel that the impugned order cannot operate retrospectively so as to adversely affect the rights of the petitioner and that the amendment being absolutely without any sound reason and based on mala fides and motivated by the sinister design is liable to be redressed as illegal and without lawful authority. These submissions were refuted by the learned Advocate-General as according to him no one has a vested right to promotion or can be allowed choice to be governed by particular rules.
6. We considered and analysed the above submissions in the light of the rules laid in the following cases:--
(i) Muhammad Yousaf Kurd, etc. v. Secretary, Board of Revenue and others (1982 SCM R 644);
(ii) Water and Power Development Authority v. Irtiqa Rasool Hashmi and another (1987,SCM R 359); (i.e) Mukhtar Ahmad and 5 others v. Government of the Punjab, Lahore and another (1983 PLC (C.S.)
767).
It has been laid down in the first-referred authority (1982 SCM R 644): "The submission assumes that the new Rules support the claim of the petitioners and as I do not wish to make any observations unnecessary for the determination of this petition, I will assume for the sake of argument that the new Rules support the claim of the petitioners. On the footing that the Rules support the claim of the petitioners, the obvious objection to learned counsel's submission is that Rules framed in 1966 could not determine rights to seniority acquired long before the promulgation of these Rules. Learned counsel did not attempt to meet this difficulty, nor could he meet it, because the Rules expressly prescribed that they are prospective, and as they are not retrospective, they cannot help the Case of the petitioners."
It has also been observed in this judgment: "As the old Rules were law within the meaning of subsection (2) they remained in force until their repeal, and as the petitioners and the respondent were appointed Sub-Inspectors and passed the Departmental Examination long before the repeal of these Rules, their seniority inter se could only be determined on the basis of these Rules and not the new Rules."
In the judgment at Serial (ii) (1987 SCM R 359) it has been laid down:-- "Held: Executive orders cannot be given retrospective operation which powers can only be enjoyed by Legislature--Rule-making power which is by way of statutory grant, does not possess such quality unless conferred by statute, which is of rare occurrence--Provision of S. 18 of WAPDA Act does not grant such authority to WAPDA to alter or change Service Rules touching terms and conditions of employees with retrospective operation so as to rob them of vested rights --- already accrued in their favour. "
In the authority at Serial No. (i.e) (1983 PLC (C.S.).767 it has been ruled out "With regard to the issue whether the rules so amended would be prospective in nature or not, it would be sufficient to say that law on this point is settled that rules are always prospective in nature and can never be retrospective in their application unless and until it is specifically mentioned by the Rules making authority. In present case the rules cannot for their application be retrospective thus we are fortified in our views that these only apply in the case of those new entrants after the promulgation of said amended rules and not to those who have entered into service under the old rules and have worked accordingly."
Moreover, no sound basis or rational or judicious reasons have been shown for the amendment in question rather it appears that this was brought about and P recommended in a routine manner by certain officers of the various departments of the rank of Deputy Secretary and Section Officer and were then notified by the concerned Department just in a casual and routine manner without application of mind. The reason which prevailed for the amendment as stated in the comments was "the amendment is inserted as per demand of the Sub---Engineers Welfare Association, N.- W.F.P." If amendments are made in law or rules merely on the wishes of certain association and without keeping in view the interest of the Institution or of those to be affected by it then it would lose its sanctity and would be repeatedly changed the rules if the association. Of Assistant Engineers makes such a demand with the wishes of the Association. Would the Department again 'change the rules if the association of Assistant Engineers makes such a demand? The mala fide is patent on record that when Fakhre Zaman Babur etc. Sub-Engineers as referred to above failed before the Service Tribunal in achieving their objection then they prompted the Association to bring pressure over the Department for amendment of the rules and the Association ultimately succeeded to bring this collusive and unjustified change with the assistance of those responsible for such a change.
In view of the above reasons while accepting this writ petition we declare the impugned Notification No. SO (E) C & W/4-5-78 dated the 12th April, 1992 issued by Government as N.-W.F.P.
Communication and Works Department as mala fide, without lawful authority and, therefore, of no binding effect.