SYED MEMBER-1, J. -- Mahmood Khan s/o Ch. Bashir Ahmad, Horticulturist, Ayub Agriculture Research Institute, Faisalabad has filed this appeal under Section 4 of the Punjab Service Tribunals Act, 1974, challenging the vires of the Service Rules, notified by the Government of the Punjab, Agriculture Department, vide Notification, dated 13.4.1996.
2. The brief facts of the case are that both the petitioner and respondent No. 4 were serving on posts which fell within the Functional Unit of Horticulture Wing of the Agriculture Department.
According to the seniority list maintained for Horticulture Unit of Agriculture Department, the appellant is at Sr. No. 1 and the respondent is at Sr. No. 5.
3. On 3.2.1992, a proposal for bracketing the post of Director, Horticulture Research Institute for Floriculture and Land Scaping with that of Director Horticulture and Research Institute was considered by the Service Rules Committee and approved.
4. On 18.3.1993, a Horticulture Research Institute for Floriculture and Land Scaping was sanctioned.
Subsequently, on 12.6.1993, the two Institutions were integrated into the Directorate of Floriculture (Training & Research). Afterwards, new Service Rules were framed titled as "Directorate of Floriculture (Training & Research), Punjab, Lahore" Service Rules, 1996. According to the schedule annexed to these Rules, a new Directorate of Floriculture was established. It will be appropriate to reproduce the relevant portion of the rules relating to the post of Director of Floriculture (Training & Research):- Name of Post Appointing AuthorityQualification By PromotionMethod of Recruitment Director of Floriculture(Training Research)Chief Minister M.Sc. In Horticulture/ Floriculture& Botany/Land Scaping.By promotion on seniority-cum- fitness Basis from amongst the officers of BS-18 of Floriculture Wing.
Experience: 5 years service as DDA (Green Belt) with two years experience Floriculture (Training).
OR 5 years service as Horticulture with 2 years experience in Floriculture and Land Scaping (Research).
5. It is contended by the learned counsel that the appellant also applied to join the new cadre and the Senior Minister, Punjab also passes orders to the effect that options from the senior Horticulturists may be taken and if they are willing to join Floriculture, but these orders have not been implemented by the respondent Department. It is further contended that the new rules have been framed to benefit respondent No. 4 alone and that the rules have not been progressive and open in nature, in as much as options were not obtained from the parent Institution namely Horticulture Wing of the Agriculture Research Wing. It was accordingly prayed that these rules may be declared as nul and void.
6. The respondent Department in their written objections reported that new rules were framed in order to develop the Floriculture in the province and that the appellant has no locus stand! To challenge the rules as he belongs to a separate functional unit namely Horticulture and has no concern with the new functional units of Floriculture established under the new rules.
7. Similar objections were taken by the respondent No. 4 in his reply. It was further reported that he has noting to do with the framing of the new Service Rules of Floriculture Wing.
8. We have heard the learned counsel for the appellant, District Attorney and counsel for the respondent No. 4 at length and also examined the record of the case.
9. It was argued by the learned counsel for the appellant that in the first instance service rules titled as the Directorate of Floriculture (Training & Research) Punjab, Lahore Service Rules, 1996 have been framed without any conscious decision of the competent authority to establish -a new Directorate of Floriculture (Training & Research) Punjab. It was, however, contended that the service rules framed and notified under the notification dated 13.4.1996 are mala ,fide and framed to benefit respondent No. 4, as the qualifications prescribed for the post of Director of Floriculture (Research & Training) are so tailor made so as to suit the qualification of respondent No. 4 alone. It was further contended that the appellant holds. The degree of M.Sc. Horticulture from Agriculture University. Faisalabad, a Postgraduate Certificate in Techniques- of Horticulture and Flora Tissue Culture for propagation WYE College. Of London, participated in the educational and research programmes of the Department of Horticulture at the University of Arkansas from October, 1996 to January, 1997 on Tissue Culture and has many publications in various agricultural journal publications of an international standard and is highly qualified in the field of Floriculture in the Province. It was, however, pointed out that respondent No. 4 simply holds M.Sc. Degree in Horticulture with no publication or foreign degree. It was contended that the appellant is more qualified to hold the post of Director of Floriculture in comparison to respondent No. 4 but has been denied the right to join the new cadre of Floriculture established under the impugned service rules.
It was also pointed out that Horticulture is the basic subject whereas Floriculture is a branch thereof. In case, the Government feels the necessity to establish a new Directorate of Floriculture, it should have given options to all the officers working in the parent functional units of Horticulture to make it more viable progressive and successful. The respondent Department by incorporating the condition of two years experience of Floriculture has actually closed the door on the senior officers of the Horticulture Wing. It was contended that it has been intentionally done to provide undue benefit to respondent No. 4 who had served against the post of Director, Horticulture Research Institute.
10. On the other hand, the District Attorney and the learned counsel for respondent No. 4 pointed out that the promulgation of new service rules is the prerogative of the Government and the appellant is not competent to challenge the vires of the rules: Besides, the argument that there was no conscious decision of the competent authority for the promulgation of service rules is baseless.
It was argued that the service rules were notified by the Governor after clearance from the Service Rules Committee of the Government.
11. Learned counsel for the respondent No. 4 also refuted the charge that the service rules have been framed with his collusion.
12. We have considered the arguments of the parties and found that the qualification/experience prescribed for the post of Director, Floriculture (Training & Research) under the Directorate of Floriculture is not progressive, transparent, just and equitable. The Directorate of Floriculture (Training & Research) Institute was a new functional unit detached from the main unit of Horticulture. It was, therefore, necessary that equitable and just opportunity should have been provided to the existing incumbents of the Horticulture Wing possessing requisite qualifications and experience to join the new functional unit. The condition now prescribed in the rules obviously suits the individual to the exclusion of all the officers of the Horticulture Unit. It is also ironical to note that only one officer of the Horticulture Wing has been considered/qualified for the post of Director of Floriculture and Land Scaping (Training & Research) which is contrary to the spirit of equity, fair play, justice and transparent to provide equal opportunities to all the employees possessing equal qualifications and experience.
13. We, therefore, find that the impugned service rules are contrary to the spirit of the natural justice, equity fair play of equal rights as guaranteed under Article No. 25 of the Constitution of Islamic Republic of Pakistan. We, therefore, accept the appeal and direct the respondent Department to re-draft the service rules by giving equal opportunities to all the incumbents of the Horticulture Wing having requisite qualifications and experience and ensure that these rules are broad based and transparent.
MR. JUSTICE (R) ABDUL HAFEEZ CHEEMA, CHAIRMAN - I am in full agreement with the judgment prepared by my learned brother (Syed Aal-e-Ahmad), learned Member-I, but since the question involved in this case appears to he of some importance, I would add a few words of my own .
14. In this case that ex facie appears to have happened is that some particular person was kept in view and the rules were tailored for his adjustment. The law, on the other hand, requires that a prescribed standard may be set for tilling up the particular post and then suitable persons found out to man the post.
15. The main subject which deals with Floriculture and other such branches is Horticulture. This has been defined as part of the Agriculture which deals with the development, production and use of fruits, vegetables, flowers, ornamentals and nuts. It has been sometimes, defined as special part of General Field of Botany connected with orchard and garden plants. The general subject of the Horticulture is described by OUENTIN BLISS ZIELINSK in his famous treatise 'Modern Systematic, Pomology', as made up of four, more or less, coordinated branches, namely, pomology, olericulture, floriculture and landscape gardening. As indicated by my learned brother, the appellant clearly was more qualified than respondent No. 4. Closing doors of his entry in the field of Floriculture would obviously be unjust and unfair. May be that persons more qualified than the appellant in the field are available if an open competition is allowed to work in such selections.
16. A society where merit is not recognized and devices are adopted to prevent the advancement of talented persons, frustration increases which ultimately proves detrimental to the growth of sound polity. This is a fact that the people will have regard for rules, laws and regulations which ensure justice and fair play and are not made to suit particular persons or group of persons. It is such a law which enjoys respect and reverence of all concerned. It is indeed one of the prime functions of the Government to make rules for governance with a view to foster justice and equity.
17. With these words, I express my entire agreement with the view expressed by my learned brother.
We, therefore, accept the appeal with the direction to the Department to re-draft the service rules by giving equal opportunities to all incumbents of Horticulture Wing having requisite qualifications.