' AJMAL MIAN, C.J.---This is an appeal with leave of this Court against judgment dated 10-1-1996 passed by a learned Single Judge of the Lahore High Court in Writ Petition No,13152 of 1994 filed by the respondents challenging the reservation of 4% from the quota of promotion against the post of GISTEs allowing the same as follows:-- "(8) The writ petition is partly accepted. The decision of the respondents/department for creating 4 % quota for promotion to the post of GISTEs from HTIs is hereby declared to be without lawful authority and of no legal effect and the original 100% quota reserved for STEs as a consequence thereof stands restored. It is, however, directed that within two months from today the posts of HTIs shall be upgraded w.e.f, 9-12-1992 to make the said post equivalent to DISTE in terms of grade and others benefits and thereafter, the case of the petitioner for promotion to the post of GISTE to be vacated by respondents Nos.6 to 8 shall be filled by promotion in accordance with the original rules on the basis of 100% quota reserved for promotion from the post of STEs. The writ petition as regards shifting of administrative control of GISTEs, from the respective divisions to the Headquarter is disposed of as having become infructuous at present. The seniority list of GISTEs after the implementation of these directions, shall be amended after adjustment of the seniority of STE and GISTE accordingly. There will be no order as to costs."
2. The brief facts are that Head Ticket Collectors (hereinafter referred to as "HTC") are in RNSP-10 whereas Group Inspector of Special Ticket Examiners (hereinafter referred to as "GISTE") are in RNSP-12. It appears that prior to the above allocation of 4% quota for promotion from HTI the latter were not entitled to be promoted as GISTE or any other post. This was so on account of fact that HTIs were not in the channel of promotion to Ticket Collector Grade-I, Ticket Collector Grrade-II, Ticket Collector Grade-III were not in line of promotion. They were entitled to be promoted at the various ratio as GISTEs next promotion was Divisional Inspector STEs. It appears that in order to avoid hardship and to provide prospect of promotion, the General Manager, Pakistan Railways, by virtue of rule 157, read with rule 79, called out 4% quota for HTIs quota for promotion to the post of DISTEs. The above action of the General Manager was assailed through the above writ petition which was allowed in the abovequoted terms whereupon, the petitioner filed a petition for leave to appeal which was granted to consider whether the learned Judge in Chamber has overstepped his jurisdiction by passing order in terms of para. 8 quoted above.
3. In support of the above appeal Mirza Masood-ur-Rehman, learned Advocate Supreme Court appearing for the appellants, has firstly contended that the respondents' above writ petition before the High Court was not competent in view of the incorporation of section 2-A, in the Service Tribunal Act, and also by virtue of fact that even otherwise the respondents were civil servants within the ambit of section 2, as the same was decided before the incorporation of section 2-A, namely on 10-1-1996 whereas above section 2-A was indicated on 10-6-1997; and secondly, since the respondents were covered by the definition of worker given in the Workman Compensation Act they were excluded by virtue of section 2(1)(b) of the Civil Servants Act, 1973.
His further submission was that the General Manager had no power at the relevant time to pass the impugned order for reserving aforesaid 4% quota.
4. Adverting to above submission of Mirza Masood-ur-Rehman, it may be observed that since the writ petition was decided on 10-1-1996, whereas section 2-A, was incorporated in the Service Tribunal Act on 10-6-1997, the above section 2-A, was not attracted to. As regards the second limb of the above argument, it may be poionted out that clause (b) of subsection (1) of section 2 of the Service Tribunal Act itself includes the persons mentioned in paragraphs (i), (ii) and (iii) thereof.
According to Mr. Arif Saeed, Advocate High Court, appearing with special permission of this Court for respondent No,1, since the respondents are workers or workmen as defined in the Workmen Compensation Act, 1923, they have been excluded from the definition of Civil Servants. The above legal position seems to be correct
5. Referring to the above second submission of Mirza Masood-urRehman, learned Advocate Supreme Court, it will be advantageous to reproduce above rules 157 and 79 which read as follows:-- "(157) The General Managers of Pakistan Railways have full powers to make rules with regard to the non-gazetted railways servants under their control provided they are not inconsistent with any rules made by the Governor-General or the Railway Division."
"(79) Power to Relax or Modify Rules. ---(a) The General Manager may, in special circumstances and for reasons to be recorded, relax or modify the provisions of these rules. This power should be exercised by the General Manager personally, or when one of the Deputy General Managers deals with staff or personnel matters, by that Deputy General Manager; but it should not be otherwise redelegated.
(b) The General Manager may also make subsidiary rules to give effect to these rules."
6. Mr. Arif Saeed, Advocate, has submitted that the power contained in the above quoted rules in favour of the General Manager was no longer available in view of the Articles 240 and 241 of the Constitution of Islamic Republic of Pakistan, 1973. The above contention of Mr. Arif Saeed is not tenable unless and untill he would have shown that the appropriate Legislature or the Federal Government had amended the above rules 157 and 79: On the contrary Article 241 of the Constitution saves the existing rules. Only the proper legislature can make a law under Article 240 or any rules, or the Federal Government amend the same.
7. We enquired from Mr. Arif Saeed to point out any statutory provision whereby 100% promotion to the post of GISTE was resolved in favour of the respondents. His submission was that factually by Advance Chapter No,1 given in the Pakistan Railways Establishment Code the above reservation was made. However, he has not been able to produce the same. In the absence of production of the above Advance Chapter-I of the Pakistan Railways Establishment Code it cannot be constrained as to whether the above Advance Chapter-I has the statutory force.
8. Mr. Muhammad Ismail Qureshi, learned counsel appearing for respondents Nos. 2 and 4 supported the arguments of Mirza Masood-ur-Rehman and contended that the above reservation of 4% quota for promotion of HTCs against GISTEs is equitable and just as the HTCs had no prospect to be promoted beyond BPS.10.
9. We are inclined to hold that since under the above rule 159 read with 79 the General Manager had the power to make rule in respect of non-gazetted Railway Servants the impugned order of reserving 4% quota was within his competence, and thus, the learned Judge in Chamber was not justified to undo the same. Further, the High Court could not have directed the appellant to upgrade the post of HTCs in exercise of Constitutional jurisdiction in the absence of any statutory provision.
10. We would, therefore, allow the above appeal and set aside the impugned Judgment of the High Court. There would be no order as to costs.