1. SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal has been directed against the judgment of the High Court, dated 21-2-1998 whereby two separate writ petitions filed by the respondents were accepted through a consolidated judgment.
2. The brief facts of the case are that twenty-three vacancies of Lecturers in English .fell vacant and consequently on the requisition made by the Government, the Public Service Commission invited applications through Proclamation No,3 of 1994 for filling in the same; afterwards, the Proclamation No,5 of 1994 was published whereby the number of the vacancies was increased to twenty-seven; yet another Notification No,1 of 1997 was published wherein number of the vacancies was shown thirty. All these Proclamations were published according to the Azad Jammu and Kashmir Departmental Collegiate Rules, dated 9-1-1990, (hereinafter shall be called the Rules of 1990). The Government issued a notification on 2-7-1997 whereby the requisition or for that matter the advertisements got published by the Public Service Commission as Nos. 3 of 1994, 5 of 1994 and 1 of 1997 were cancelled. However, the notification, dated 2-7-1997 was also withdrawn by the Government vide its notification, dated 13-9-1997 from the date of its issuance and, thus, the position which existed before the issuance of notification, dated 2-7-1997 stood restored. According to the Rules of 1990, a third divisionary M.A. English could be considered for the appointment as a Lecturer only when a second divisionary candidate eligible for the appointment was not available.
2. However, the rules were amended by the Government vide notification, dated 4-6-1997 and the condition for the appointment as Lecturer in case of third divisions was relaxed and they also became eligible to contest along with second diviners subject to conditions envisaged in the amended rules. The Public Service Commission, after the Government notification, dated 13-9-1997, fixed the dates for. interviews falling between 18-10-1997 to 22-10-1997. However, as a consequence of notification, dated 13-9-1997, whereby the notification, dated 2-7-1997 was cancelled, the call letters for interviews were not issued to the respondents who were third divisions. Consequently, they filed two separate writ petitions assailing the legality of notification dated 13-9-1997 as being mala fide and violate of law and also sought a writ of mandamus to the Public Service Commission and others directing them to take interviews etc. of the respondents under law; meanwhile, they also got the interim relief from the High Court in terms that they should also be included in the competition and be interviewed. Consequently, they were also interviewed along with the candidates who were second divisions and a joint select list was prepared on the basis of which the appointments were made.
3. The appellants, herein, who are second divisions, applied in the High Court to be impleaded as party but according to them their application was not decided and the High Court passed the impugned judgment without hearing them. It is further the case of the appellants that they came to know from their they own sources that also qualified the tests/interviews held by the Public Service Commission but instead of appointing them against the available vacancies, some of the third divisions were appointed, despite the fact that in view of the Rules of 1990, they could only be considered if the second divisions eligible candidates were not available. It was further contended that the amendment brought in the said rules on 4-6-1997 would not apply to the case of the respondents who are third divisioners because the vacancies were advertised before the said amendment.
4. We have heard the arguments and gone through the record. It has been argued by Mr. Ghulam Mustafa Mughal, Advocate, the learned counsel for the appellants, that the appellants were appointed as Lecturers in English on ad hoc basis in the year 1990. Subsequently, their services were regularized by virtue of an Act of the Assembly but the said Act was declared void as being violative of Interim Constitution Act. Thus, the cases of permanent appointment of the appellants remained pending for quite some time. At the long last, on the basis of the requisition made by the Government, 23, 27 and 30 vacancies respectively, were advertised through advertisements Nos. 3 of 1994, 5 of 1994 and 1 of 1997. However, the requisitions made or for that matter the advertisements were cancelled vide Government notification, dated 2-7-1997. Thereafter, an amendment in the Rules of 1990 was made vide notification dated 6-4-1997 and notification dated 2-7-1997 was also withdrawn so as to give undue advantage to the respondents against the appellants, herein, who were M.A. English in second division. The learned counsel has argued that in view of the Rules of 1990, the third division candidates could be considered only if second divisions found eligible after the interview etc. by the Public Service Commission would have not been available. He has argued that in the instant case thirty posts of Lecturers were advertised and sixty candidates who were second divisions submitted applications for their appointment. Thus, in view of the provisions contained in the unlamented Rules of 1990, the respondents were not entitled to be considered for the appointment as Lecturers. The learned counsel has further argued that the notification dated 13-9-1997 was rightly issued but on the writ petition filed by the respondents, herein, the High Court, issued stay order and directed the Public Service Commission to include the respondents in the interviews along with the second divisions. It has been contended that in view of the relevant rules, the interim orders of the High Court, whereby, the respondents were allowed to be associated in the interviews were not legally justified. The learned counsel has further maintained that the appellants filed an application in the High Court for being impleaded as party in the writ petitions but the High Court, without passing any order in that regard, decided the writ petitions vide impugned judgment. He has further contended that it is well-settled principle of rule of interpretation that law operates prospectively until and unless it is otherwise provided. He has argued that the amendment made in the Rules vide notification, dated 4-6-1997 is prospective in nature and .that would not be applicable to the candidates who had applied much before in response to the advertisements published in the newspapers. The learned counsel has argued that in the instant case, all the aforesaid three advertisements were published in May, 1997, whereas the amendment in the rules was effected in June, 1997. Thus, the learned counsel maintained that the High Court has committed error in Molding that the respondents were entitled to be considered for the recommendations along with the appellants after the said amendment. The learned counsel has submitted that even if it is assumed for the sake of arguments that simultaneous consideration of the merits of third divisions and second divisions for selection was not prohibited, in, that eventuality, too, third divisions could only be recommended for the appointments in question if there were no second divisions or they were not found fit for appointments after their interview. The learned counsel has cited following authorities in support of his contentions:-- In an unreported case entitled Farah Shahzadi v. Azad Jammu and Kashmir Government (Writ Petition No, 117 of 1993, decided on 3-5-1995), the writ petition was accepted holding that as the respondents Nos. 3 and 4 were third divisioners, they were not entitled to consideration and appointment as Lecturers under the relevant rules when the petitioners, who were second divisioners, were available and qualified for filling in the relevant vacancies.
3. In another unreported case of this Court entitled Hafeezullah Khan v. Azad Government of the State of Jammu and Kashmir (Civil Appeal No,59 of 1996 decided on 25-5-1997), it was observed that the mere fact that the appellants had appeared in written tests did not vest any right in them that they should have also been called for interview alongwith second divisioners; the case of the appointment of third divisions could only be considered if no second divisioners were available for the appointment.
4. In an unreported case entitled Farhat Shahnaz v. Farah Shahzadi Civil Appeal No, 65 of 1995, decided on 14-11-1995), the findings of the High Court in the writ petition entitled Farah Shalizadi v.
5. Azad Jammu and Kashmir Government (Writ Petition No, 117 of 1993, decided on 3-5-1995)', referred to above, were challenged, inter alias on the ground that as the writ petition filed by the petitioner- appellant was pending for adjudication in the High Court at Muzaffarabad, the said writ petition filed in Circuit Branch, Mirpur, should not have been decided earlier; both the writ petitions should have been heard and disposed of simultaneously so as to avoid the apprehensions of the appellant that the judgment of the High Court delivered at Mirpur would adversely affect her case.
6. The appeal was dismissed by this Court observing that as the writ petition filed by the petitioner- appellant was still sub judice in the High Court, the judgment given in the writ petition at Mirpur was not likely to adversely affect the case of the appellant, especially so when the appellant was not impleaded as party in the writ petition filed at Mirpur.
7. In case reported as Dr. Naeem Akhtar, Assistant Professor of Urology, Quaid-e-Azam Medical College, Bahawalpur v. Dr. Ahmad Salman (1998 PLC (C.S.) 341), the facts were that a post in Education Department which was to be filled in, required practical experience in some independent responsible paid position. However, the petitioner was selected on the basis of experience on a job which he had allegedly held on honorary basis. His appointment was assailed as being violative of rules through a writ petition. The writ petition was accepted by the Single Bench of the High Court holding that his appointment was not sustainable, inter alia, on the grounds that the Public Service Commission did not prepare the merit list on category basis and that according to the stand taken by the Public Service Commission, the name of the petitioner was omitted from the merit list due to oversight. The intra-Court appeal filed by the petitioner was dismissed holding that the judgment of the Single Judge did not suffer from any legal infirmity.
8. In case reported as Alam Din v. Chairman, Municipal Committee, Mirpur (1992 CLC 1854), while the writ petition of the appellant was pending in the High Court, an amendment application was made by the petitioner. The High Court dismissed the writ petition in limine without deciding the amendment application. The order of the High Court was set aside and the case was remanded with the direction that the merits of the case of the petitioner should be reconsidered after the decision on his amendment application, because the same was relevant to the question as to whether the petitioner was an aggrieved person or not.
9. In case reported as Pakistan International Airlines Corporation v. Maqbool Hussain, Reservation and Ticketing Officer, PIA, Lahore (1996 SCMR 622), the facts were that the service under the Pakistan International Airlines Corporation was declared to be the service of Pakistan under section 10(3) of Pakistan International Airlines Corporation Act, 1956 and all persons holding the posts under the Corporation, not being the persons who were on deputation to the Corporation, were declared to be civil servants for the purpose of Service. Tribunals Act, 1973. Thus, the employees of Pakistan International Airlines Corporation enjoyed the status of civil servants during the period falling between 15-11-1984 and 2-11-1989. Consequently, the appeals filed against the orders of the competent Authority during the said period to the Service Tribunal were held competent. The direction given by the Tribunal with regard to the promotion of the employees of the Corporation from 1982 was assailed on the ground that the.-Service Tribunal had no jurisdiction because the concerned employees enjoyed the status of civil servants from 15-11-1984 and not from 1982. The contention was repelled and it was held that the impugned orders passed by the Service. Tribunal did not suffer from any legal infirmity.
10. In case reported as Government of Pakistan v. Zamir Ahmed (1996 SCMR 630), the judgment passed by the Service Tribunal, Islamabad, was appealed against to the Supreme Court on the ground that when the Tribunal heard the appeal, section 23 of the Government Servants (Efficiency and Discipline) Rules, 1973 had already been amended whereby material changes were brought in the definition of expression 'authorized officer' but the amended definition was not taken into consideration by the Service Tribunal at the time of passing the impugned judgment. The Supreme Court accepted the appeal observing that a material change was brought in the definition of expression 'authorized officer' and, thus, the judgment of the Service Tribunal was set aside and the case was remanded to the Tribunal for reconsideration in light of the observations of the Supreme Court.
11. In case entitled P. Mahendran v. State of Karnataka reported as Supreme Court Service Rulings, Vol. 2 page 4, the facts were that some vacancies of Motor Vehicle Inspectors were to be filled under rules known as Karnataka General Seri/ice (Motor Vehicles Branch) (Recruitment) Rules, 1962 (hereinafter shall be called as Rules). According to the said Rules, the recruitment to the said posts of Motor Vehicle Inspectors, minimum qualification of a candidate was to be holder of Diploma in Automobile Engineering or Mechanical Engineering. However, in 1978, Karnataka Public Service Commission proceeded with the selection and about two hundred posts of Motor Vehicle Inspectors were filled in from amongst the candidates holding Diploma in Automobile Engineering and Mechanical Engineering. On 28-9-1983, the Public Service Commission issued an advertisement which was published in the Gazette on 6-10-1983 inviting applications for 56 posts of Motor Vehicle Inspectors. The Advertisement specifically stated that the selection was to be made according to the Recruitment Rules, 1976 and it further stated that the candidates for the selection must be holder of Diploma in Automobile Engineering or Mechanical Engineering. The appellants/petitioners (in the writ petition) who were holding Diploma in Mechanical Engineering along with other applied for the selection to the posts of Motor Vehicle Inspectors. The Commission, after scrutiny of the application forms, issued letters for interview to the suitable candidates and the Commission commenced the holding of interviews in August, 1984. It appears that the Commission refused to interview some candidates for selection against the reserved posts for local candidates on the ground that they were not entitled to be treated as 'local candidates' as they did not actually work as local candidates on the posts of Motor Vehicle Inspectors and that they had secured low percentage of marks. The Commission also expressed the view that they were not entitled to be interviewed against the seats earmarked for the general pool as marks secured by them were less than the percentage obtained by the last candidate called for interview. The candidates claiming reserved seats as local candidates filed a number of writs before the High Court and obtained the stay orders as a result of which the selection could not be completed. Later on, the interim orders issued by the High Court were modified and the Commission was permitted to proceed with the selection of the reserved seats for the petitioners, subject to the condition that the recommendations of the selection would be subject to the decision of the High Court in writ petitions. Consequently, the Commission resumed the interviews and had completed the same by second June, 1987 and declared the results of the selection on 22-6-1987 which was published in Gazette on 23-7-1987. Meanwhile, the State Government of Karnataka amended the recruitment rules by a notification dated 4-5-1987 published in Government Gazette on 4-5-1987, whereby, the qualification of Diploma in Mechanical Engineering for the post of Motor Vehicle Inspector was omitted. Thus, in consequence of the amendment of the Rules, the holders of Diploma in Automobile Engineering became exclusively eligible for the appointment of Motor Vehicle Inspectors and the holders of Diploma in Mechanical Engineering ceased to be eligible for the selection and the appointment to the said posts. Thus, some of the candidates who were unsuccessful at the selection held by the Commission preferred applications before the Service Tribunal, Bangalore, for quashing the selection list prepared by the Commission and also for quashing the notification dated 28-9-1983, whereby the applications for the appointment to the posts of Motor Vehicle Inspectors were invited on the ground that after the amendment of the Rules in May 1987, the Commission was not competent to finalise the selection on the basis of previous unamended rules and, thus, it was prayed that fresh selection should be made in accordance with the amended rules. Consequently, the Tribunal allowed the applications and directed the State Government to invite the fresh applications on the basis of amended rules and make recommendations. The candidates who were selected by the Commission appealed against the judgment of the Tribunal to the Supreme Court; some of the selected candidates directly filed writ petitions seeking direction with regard to their appointments. The appeals and the writ petitions were disposed of by the Supreme Court through a consolidated judgment whereby the judgments of the Service Tribunal were set aside and the writ petitions were accepted. While dealing with the matter, the Supreme Court observed as under:-- "There is no dispute that under the Recruitment Rules as well as under the advertisement dated 6- 10-1983 issued by the Public Service Commission, holders of Diploma in Mechanical Engineering were eligible for appointment to the post of Motor Vehicle Inspectors alongwith holders of Diploma in Automobile Engineering. On receipt of the applications from the candidates the Commission commended the process of selection as it scrutinized the applications and issued letters for interview to the respective candidates. In fact the Commission commenced the interviews on August, 1984 and it had almost completed the process of selection but the selection could not be completed on account of interim orders issued by the High Court at the instance of candidates seeking reservation for local candidates. The Commission completed the interviews of all the candidates and it finalised the list of selected candidates by second June 1987 and the result was published in the State Gazette on 23rd July, 1987. In addition to that the selected candidates were intimated by the Commission by separate letters. In view of these facts the sole question for consideration is as to whether the amendment made in the Rules on 14th May, 1987 rendered the selection illegal. Admittedly the amending Rule does not contain any provision enforcing the amended Rule with retrospective effect. In the absence of any express provision contained in the amending Rule it must be held to be prospective in nature. The Rules which are prospective in nature cannot take away or impair the right of candidates holding Diploma in Mechanical Engineering as on the date of making appointment as well as on the date of scrutiny by the Commission they were qualified for selection and appointment. Iii fact the entire selection in the normal course would have been finalised much before the amendment of Rules, but of the interim orders for the High Court. If there had been no interim orders, the selected candidates would have been appointed much before the amendment of Rules. Since the process of selection had commenced and it could not be completed on account of the interim orders of the High Court, the appellants' right to selection and appointment could not be defeated by subsequent amendment of Rules."
12. The Supreme Court also dealt with some of its earlier authorities which shed light on the point as to when the process of selection by the Public Service Commission starts, i,e,, whether it starts from the date of advertisement published in the newspapers or thereafter; and what would be the effect of amendment of rules on selection. It would be expedient here to reproduce paragraphs 6 and 11 of the judgment as under:-- Paragraph 6: "In A.A. Calton v. Director of Education and another (1983(3) S 33) this Court considered the validity of appointment of Principal by the Director of Education made under section 16-F of the U.P.
13. Intermediate Education Act, 1921. The High Court quashed the selection of Principal on the ground that the appointment had been made by the Selection Committee and not by the Director of Education as required by section 16-F(4) of the Act. The High Court directed the Director of Education to make selection and appointment. Pursuant to the direction of the High Court, the Director made appointment to the post of Principal by his, dated March 8, 1977, but before that date, section 16-F(4) of the Act was amended on August 18, 1975 taking away the power of the Director to make appointment under section 16-F(4) of the Act. In view of the amendment of section 16-F(4) of the. Act, validity of the order of the Director of Education, dated March 8, 1977 making appointment to the post of Principal was again questioned. The High Court dismissed the writ petition thereupon the unsuccessful party preferred. This Court held as under:-- 'It is no doubt true that the Act was amended by U.P. Act 26 of 1975 which came into force on August 18, 1975 taking away the power of the Director to make an appointment under section 16- F(4) of the Act in the case of minority institutions. The Amending Act did not, however, provide proceedings under section 16-4 of the Act, Nor do we find any words in it which by necessary intendment would affect such pending proceedings. The process of selection under section 16-F, of the Act commencing from the stage of calling for applications for a post upto the date on which the Director becomes entitled to make a selection under section 16-F(4) as it stood then is an integrated one. At every stage in that process certain rights stood are treated in favour of one or the other of the candidates. Section 16-F of the Act cannot, therefore, be construed as merely a procedural provision. It is true that the Legislature may pass laws with retrospective effect subject to the recognised Constitutional limitations. But it is equally well-settled that no retrospective effect should be given to any statutory provision so as to impair or take away an existing right, unless the statute either expressly or by necessary implication directs that it should have such retros ective effect. In the instant case admittedl the proceedings for the selection had commenced in the year 1973 and after the Deputy Director had disapproved the recommendations made by the Selection Committee twice the Director acquired the jurisdiction to make an appointment from amongst the qualified candidates who had applied for the vacancy in question. At the instance of the appellant himself in the earlier writ petition filed by him the High Court had directed the Director to exercise that power. Although the Director in the present case exercised that power subsequent to August 18, 1975 on which date the amendment came into force, it cannot be said that the selection made by him was illegal since the amending law had no retrospective effect. It did not have any effect on the proceedings which had commenced prior to August 18, 1975. Such proceedings had to be continued in accordance with the law as it stood at the commencement of the said proceedings. We do not, therefore, find any substance in the contention of the learned counsel for the appellant that the law as amended by the U.P. Act (26 of 1975) should have been followed in the present case.' (Underlining is ours)
14. Paragraph 11: "We would now consider the view taken by this Court in I.J. Divakar v. Government of Andhra Pradesh (1982 (3) SCC 341) as the Tribunal has placed strong reliance on the observations made in that decision in setting aside the selection made by the Public Service Commission. It is necessary to ascertain the facts involved in Divakar's case (supra). The Andhra Pradesh Public Service Commission invited applications for filling posts of Junior Engineers. In response to the advertisement several candidates applied for the said post and appeared at the viva voce test.
15. While the Commission was in process of finalising the select list, the Government of Andhra Pradesh issued a Government Order under the proviso to Article 320(3) of the Constitution excluding the posts of Junior Engineers from the purview of the Public Service Commission. The Government regularised the services of all those were appointed by direct appointment to the post of ad hoc Junior Engineer and were continuing in service on August 9, 1979 without subjecting them to any test written or oral. The candidates who had applied in response to the advertisement issued by the Commission challenged validity of the Government Order excluding the post of Junior Engineers from the purview of the Commission and also the validity of the decision by the Government to regularise the services of temporary employees. Before this Court the Government's power of framing regulations excluding any post from the purview of the Commission under the proviso to Article 320(3) was conceded. It was, however, urged that since the advertisement had been issued by the Commission inviting applications for the posts of Junior Engineers and as the Commission was in process of selecting candidates the power under the proviso the clause (3) of Article 320 of the Constitution could not be exercised. This Court rejected the contention with the following observations:-- 'The only contention urged was that at the time when the advertisement was issued the post of Junior Engineer was within the purview of the Commission and even if a later date the post was withdrawn from the purview of the Commission it could not have any retrospective effect. There is no merit in this contention and we are broadly in agreement with the view of the Tribunal that inviting the applications for a post does not by itself create any right to the post in the candidate who in response to the advertisement makes an application. He only offers himself to be considered for the post. His application only makes him eligible for being considered for the post. It does not create any right in the candidate to the post.'
16. After making the aforesaid observations the Court further held that the relevant service Rules conferred power on the Government to fill emergently the vacancies to the post borne in the cadre of service otherwise than in accordance with the rules and without the consultation of the Public Service Commission. Even after upholding the Government Order, the Court directed the Commission to consider the case of all those candidates who had applied for the post of Junior Engineers in response to the advertisement issued by the Commission and to finalise the select list on the basis of viva voce test and to forward the same to the Government. The Court further directed the Government to make appointments from the select list before any outsider was appointed to the post of Junior Engineers. Thus, the observations made by this court as quoted earlier were made in the special facts and circumstances of the case, which do not apply to the facts of the instant case. In Divakar's case (supra) since the jurisdiction of the Public Service Commission had been denuded by the Government in exercise of its Constitutional power the Commission had no jurisdiction to conduct selection or prepare select list. In this background the Court made observations that a candidate merely by making applications does not acquire any right to the post. It is true that a candidate does not get any right to the post by merely making an application for the same, but a right is created in his favour for being considered for the post in accordance with the terms and conditions of the advertisement and the existing recruitment rules.
17. If a candidate applies for a post in response to advertisement issued by Public Service Commission in accordance with the recruitment Rules he acquires right to be considered for selection in accordance with the then existing Rules. This right cannot be affected by amendment of any Rule unless the amending Rule is retrospective in nature. In the instant case the Commission had acted in accordance with the then existing rules and there is no dispute that the appellants were eligible for appointment, their selection was not in violation of the recruitment Rules. The Tribunal in our opinion was in error in setting aside the select list prepared by the Commission.' (Underlining is ours)
5. In reply, Mr. Abdur Rashid Abbasi, Advocate, the learned counsel for the respondents, has controverted the arguments advanced on behalf of the appellants. He has contended that the respondents who were third divisioners had been holding appointments as Lecturers on ad hoc basis for five to seven years; they were also adversely affected by the dictum of this Court whereby the Act regulating their ad hoc appointments was held violative of the Interim Constitution Act.
18. Thus, the learned counsel has submitted that the object to amend the Rules of 1990 was to accommodate the respondents and this was precisely also the objective behind the issuance of notification dated 2-7-1997. Thus, the learned counsel has argued that the cancellation of notification dated 2-7-1997 through notification, dated 13-9-1997 was mala fide and the High Court has rightly held that respondents were legally entitled to be interviewed by the Public Service Commission, especially so when the said rules had also been amended. The learned counsel has further argued that the process of selection of candidates by the Public Service Commission in the instant case or for that matter any other case is procedural matter and, thus, the amendment made in the Rules of 1990 would operate retrospectively, i,e,, from the date when the requisitions were made by the Government. Therefore, according to learned counsel, the impugned judgment of the High Court does not suffer from any legal infirmity. The learned counsel has cited following authorities in support of his contentions:--- In case reported as Muhammad Hafeez Khan v. Mst. Sabiha Khanam (PLD 1996 SC (AJ&K) 1), it has been held that 'repeal' under section 6 of the General Clauses Act, 1897 should not necessarily be made expressly; such repeal can take place by necessary implication, i,e,, by subsequent legislation on the same subject which tantamounts to supersede earlier legislation. Thus, it was held that where by implication earlier statute or provisions thereof were superseded or substituted, the case would that of repeal as envisaged under section 6 of the General Clauses Act, 1897 and, therefore, the right of appeal under repealed statute being substantive right could not be deemed to have been lost unless and until there was specific provision to that effect in the repealing law or the law which superseded previous legislation or same was manifest by necessary implications. It was further observed that in such cases repealed enactment would not affect pending cases whether suit or appeal unless such intention has been clearly expressed or was apparent by necessary implication. In case reported as Abrar Hussain Shah v. The State (1992 SCR 294), it has been observed,that it is settled principle of-law that procedural law always operates retrospectively unless a contrary intention is expressed.
19. In case reported as A le:3n Afzal v. Capt. Sher Afzal (PLD 1969 SC 187). it has been held that the procedural matters would operate retrospectively but if such procedural matter also touches the right in existence at the time of passing of legislation, the provision would be prospective until and unless a contrary intention has been expressed. It was observed that the matters relating to the remedy, mode of trial, the manner of taking evidence and form of actions are all matters relating to the procedure.
20. In case reported as Liaqat Ali v. The State (1992 SCMR 372), it has been observed that alterations in the form of procedure through legislation are always retrospective unless there is some good reason to hold otherwise. It was held that the procedure includes farm for initiating legal proceedings and nobody has vested right in the procedural; but if a new legislation affects a vested right of any person in absence of any express provision, the same cannot be made applicable retrospectively.
21. In case reported as Alifdin v. Shaukat Ali (PLD 1969 Pesh. 62), it has been observed that it is not always necessary that retrospective application is found in express words. In absence of express words whenever there is clear intendment to the effect that some provisions will be retrospectively in its application, the effect can be given to that intendment. Thus, it was observed that under section 1(4) and (5) and section 5 of West Pakistan Family Courts Act, 1964, the intendment that of other matters except suits and application under the Guardians and Wards Act pending at the time of enforcement of the said Act shall be disposed of any new forum created, would be read impliedly in subsections (4) and (5) of section 1.
6. We have given due consideration to the matter. The contention of the learned counsel for the appellants that the High Court passed the impugned judgment without deciding the application filed by the appellants with regard to their impleadment, as such the impugned judgment of the High Court should be set at naught on this sole ground, is not sustainable for the simple reason that we have heard the parties in detail on all the legal points involved in the case. Thus, it would put the parties to further inconvenience if the case is remanded to the High Court {or deciding the matter afresh after impleading the appellants as party in the writ petitions. Similarly, the contention of the learned counsel for the respondents that the cancellation of the notification, dated 2-7-1997 was actuated by malice and, thus, the impugned judgment of the High Court does not suffer from any legal infirmity is not tenable, because the High Court did not hold that the cancellation of the said notification was mala fide, rather the impugned judgment of the High Court is based on the ground that after the amendment of the Rules, dated 4-6-1997, the respondents could not be deprived of their right to be interviewed by the Public Service Commission or for that matter for the selection on the posts if they were otherwise found fit. Thus, in our opinion, the moot point in this case is as to how the amendment in the Rules of 1990 would affect the case of the respondents. It is well-settled principle of law, as is evident from the authorities cited by the learned counsel for the parties, that an amendment in existing law would be prospective until and unless it is otherwise provided by the law-givers. In the instant case the amendment in the Rules of 1990 has not been made operative retrospectively. It is also not controverted that the advertisements inviting applications had already been published in May, 1997 when the unlamented' Rules of-1990 held the field. The contention of the learned counsel for the respondents that despite the fact that amendment in the said Rules was made after the publication of the advertisements, the same would govern the recommendations in question, is not sustainable because the amendment was not operative retrospectively. The process of the selection by the Public Service Commission commenced when the applications were invited through advertisement specifying the qualification etc. of the candidates. Thus, the candidates had the right to be considered according to the qualifications etc. laid down in the rules existing at the relevant time or for that matter which had been mentioned in the advertisements. In the instant case, according to unlamented Rules of 1990, third divisions candidates could be considered only if eligible second divisioners were not available, whereas after the amendment, the third divisions became eligible to be considered for the selection alongwith second divisioners. The amended and unlamented relevant rule is reproduced as under:--- Unamended rule: "Master's Degree (at least second division) in the relevant subject of equivalent qualifications, provided that candidates who are M.A. English third division may be appointed as Lecturer in English, if second class candidates are not available."
22. Amended rule: "Master's Degree (at least second division) in the relevant subject or equivalent qualifications.
23. Provided that candidates who are M.A. (English) (third Division) may be provisionally appointed as Lecturer in English, on specific conditions that they shall acquire the requisite qualifications within three years of their appointment or qualify the special diploma course in English arranged by the Allama Iqbal Open University, Islamabad in any of the two consecutive sessions of the course, starting immediately next to the date of their appointment. On their failure to acquire the requisite qualifications within the aforesaid period their service shall stand terminated automatically."
24. Thus, after the amendment, the merit of third divisioners and c second divisions for selection and appointment could be considered simultaneously, of course, subject to the conditions laid down in the amended Rules. Eventually, the amendment made in the Rules of 1990 is not procedural in nature rather it enlarges the sphere of the competition by placing third divisioners at par with second divisioners for the purpose of selection. Therefore, the contention of the learned counsel for the respondents that as the amendment is procedural in nature and would operate retrospectively is not tenable and is hereby repelled.
7. The next question which needs resolution is as to how the recommendations should be made in the circumstances indicated above. It may be pointed out that both, the third divisioners and second divisioners have been finally interviewed by the Public Service Commission and a joint merit list has also been prepared by it. Therefore, we are of the view that the proper course for the Public Service Commission to be adopted in the present case would be to prepare separate merit lists of the eligible candidates who are third divisioners and second divisioners. Thereafter, the eligible second divisioners should be recommended for the appointment and if any number of vacancies still remains to be filled in, the third divisioners eligible candidates should be recommended fro the appointment in order of their merit. After making the recommendations in the aforesaid manner, if there remain any more vacancies to be filled in, the Commission shall invite fresh applications under the relevant rules for doing the needful.
25. In the light of what has been stated above, we set aside the impugned judgment of the High Court, previous recommendations made by the Public Service Commission, and appointments, if any, made in pursuance of the said recommendations and direct the Public Service Commission to proceed with the matter as indicated above. In the circumstances of the case we make no order as to the costs.