1. ' SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal has been directed against the judgment of the Service Tribunal dated 28-11-1999 whereby the appeal filed by the appellant, herein, was dismissed.
2. The brief facts of the case are that the appellant, who is a Diploma holder in Engineering, was promoted as Assistant Engineer in Grade BPS-17 on 17-9-1975. Thereafter, he was promoted on temporary basis as Executive Engineer in Local Government Department on officiating basis on 22- 8-1980. Subsequently, the Government amended the Azad Jammu and Kashmir Local Government and Rural Development Department Service Rules, 1983 on 9-5-1994 whereby only an Assistant Engineer who was a Graduate and had some other qualification could be considered for promotion as Executive Engineer in Local Government 'Department and not a Diploma holder. The appellant, herein, who is a Diploma holder in Engineering, filed a review petition against the amendment dated 9-5-1994 which was accepted vide notification dated 4-1-1995 and the relevant rules were amended in terms that if a Graduate Engineer is not available for promotion as Executive Engineer, a Diploma holder in Engineering can be considered for promotion on officiating basis. The said amendment dated 4-1-1995 was assailed by respondent No,2, herein, by filing a review petition which was accepted and an amendment made vide notification dated 4-1-1995 was cancelled. The appellant, herein, challenged the aforesaid amendment before the Service Tribunal contending that as the amendment in the rules, which was made vide notification dated 9-5-1994, was made on the review petition filed by appellant, herein, the same could not be cancelled vide order dated 4-1-1995 without hearing the appellant. According to the appellant, the order dated 4-1-1995 was passed on the review petition filed by respondent No,2 but he (appellant) was not impleaded as party in the review petition and, thus, the said order was passed without hearing the appellant. It was further the case of the appellant that no second appeal or review petition was competent against the order which was passed on the review petition filed by him.
2. The Service Tribunal, after taking necessary proceedings, dismissed the appeal filed by the appellant, herein, on the ground that it appears that the amendment in the rules vide notification dated 4-1-1995 was not made on the review petition filed by respondent No,2, herein, but the same was made by the Government in exercise of its powers as the same offended against the Pakistan Engineering Council Act, 1976, according to which only a Graduate in Engineering can be considered for promotion as Executive Engineer. Thus, the Service Tribunal observed that there was no question of hearing the appellant or impleading him as a party in any review petition filed by the respondent. It has been further held by the Service Tribunal that irrespective of the review petition filed by the respondent, the Government was competent to amend the relevant rules, especially so when the same were not in consonance with the Pakistan Engineering Council Act, 1976 which had been adapted in the State of Azad Jammu and Kashmir.
3. Mr. M. Tabassum Aftab Alvi, Advocate, the learned counsel for the appellant, has argued that the Service Tribunal has committed an error in holding that the amendment, whereby the Diploma holders could be considered for promotion, was not made on the review petition filed by respondent No,2, herein; he has also contended that subsequently, vide notification dated 4-1-1995, the earlier amendment made was withdrawn without hearing the appellant; it his been further argued that the appellant was in fact not made party in the alleged review petition filed by respondent No,2. The learned counsel has also contended that the notification dated 4-1-1995 takes away the vested right of the appellant and that it was necessary for the authority concerned to hear him before issuing the notification dated 4-1-1995. The learned counsel has further argued that even otherwise, respondent No,2. Was not an aggrieved person because the Diploma holders are to be considered only when the Graduates Engineers are not available. Thus, according to the learned counsel, he had no locus standi to move the Government for making amendment in the relevant rules depriving the Diploma holders of their right of consideration for promotion as Executive Engineers in Local Government Department. The learned counsel has also submitted that identical amendment was made in the relevant rules governing the employees of Engineering Department and the said rules still hold the field but the rules regarding the service of the appellant, herein, were amended in violation of fundamental right of 'equality before law.' He has also argued that it is admitted by the respondent himself that he had filed the review petition against the notification dated 9-5-1994 but despite that the Service Tribunal has held that the notification dated 4-1-1995 was issued by the Government in exercise of its powers and not on the review petition filed by respondent No,2. He has further submitted that the Service Tribunal was also not correct in holding that the amendment made in the rules whereby the Diploma holders were to be considered for promotion as Executive Engineers offends against the Pakistan Engineering Council Act, 1976, especially so when the said Act relates to the professional Engineers and not the engineers who are Government employees. The learned counsel for the appellant has further argued that earlier view that Pakistan Engineering Council Act would also apply to the engineers who are in Government service has been overruled in case reported as Fida Hussain v. The Secretary Kashmir Affairs and Northern Affairs Division, Islamabad (1996 PLC (C.S.) 44). He has further submitted that the vires of service rules can only be considered by the Service Tribunal and not by any other forum He has cited following authorities in support of his contentions: ' In a case reported as Nan Ahmed Khurram v. Government of Pakistan (PLD 1980 SC 153), the Writ Petitions challenging the vires of rules relating to the terms and conditions of service were dismissed observing that Article 212 of the Constitution, was a bar to challenge the vires of the rules by filing writ petitions; only the Service Tribunal was competent to go into the vires of the rules when terms and conditions of service of civil servants are violated.
3. ' In a case reported as I.A. Sharwani v. Government of Pakistan (1991 SCMR 1041), it was observed that the jurisdiction of the Courts is excluded only in respect of the cases which the Tribunal under section. 4(1) of the Service Tribunal Act, 1973, has the jurisdiction to decide. If the Service Tribunal does not have the jurisdiction to adjudicate upon a particular type of grievance, the jurisdiction of the Supreme Court vested in it by virtue of section 184(3) of the Constitution of Pakistan would remain intact. -Consequently, the writ petitions regarding the dispute of payment of pension from certain dates were entertained by the Supreme Court and were decided in exercise of writ jurisdiction.
4. ' In a case reported as Raja Atta Ullah v. Shabbir Ahmad Chughtai (1998 SCMR 259), while dealing with a petition for leave to appeal against the judgment of the Service Tribunal, the Supreme Court observed that it was the domain of the Government to decide whether the condition of qualification for promotion to next higher grade was fulfilled by the concerned civil servant; it was further observed that it was domain of Pakistan Engineering Council to decide as to whether a particular academic qualification could be equated with another academic qualification but it had no power to say that a civil servant having a particular qualification could not be promoted from a particular grade to next higher grade. Consequently, the petition for leave to appeal against the judgment of the Service Tribunal was refused.
5. ' In a case reported as Ghiasul Haq v. Azad Government of the State of Jammu & Kashmir (PLD 1980 SC (AJ&K) 5), it was held that the question as to whether the Fundamental Rule 6 of the Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977 was ultra vires of the Constitution Act or not is to be determined by the Service Tribunal in appropriate proceedings in view of the ouster of jurisdiction of the High Court under section 47(2) of the Azad Jammu and Kashmir Interim Constitution Act, 1974. It was further observed that as the relevant law provided an adequate alternate remedy, the writ was not competent under section 44(c) of the Azad Jammu and Kashmir Interim Constitution Act, 1974.
6. ' In a case reported as Fida Hussain v. The Secretary, Kashmir Affairs and Northern Affairs Division, Islamabad (1996 PLC (C.S.) 44), it was held that Pakistan Engineering Council is vested with the functions to regulate persons qualified to practice as professional engineers and consulting engineers and not the persons who are employed in Government or semi-Government organisations. Thus, it was observed that the question as to what should be qualification for promotion to next higher grade in case of engineers who are employees of the Government would not be governed by the provisions of Pakistan Engineering Council Act, 1976. Consequently, the Supreme Court recalled its judgment in Civil Appeal No,216 of 1991 in exercise of suo motu review.
7. ' In a case reported as Muhammad Azim Jamali v. Government of Pakistan (1992 PLC (C.S.) 637), a difference of opinion arose between Mr. Justice Ajmal Mian, C.J., and Mr. Justice Qaiser Ahmad Hamidi: Mr. Justice Ajmal Mian was of the opinion that the provisions of Pakistan Engineering Council Act were applicable only to the engineers who were practicing as professional engineers or consulting engineers; the same were not applicable to the engineers who are employees of the Government whereas Mr. Justice Qaiser Ahmad Hamidi was of the opinion that the provisions of Pakistan Engineering Council Act are all embracing and the equally applicable to the Government employees and autonomous bodies. Consequently, the matter was referred to Mr. Justice Saeeduzzaman Siddiqui who agreed with Mr. Justice Ajmal Mian and expressed the view that the provisions of Pakistan Engineering Council were not applicable to the Government Servants.
8. ' In a case reported as Azad Jammu and Kashmir Government v. Muhammad Younas Tahir (1994 CLC 2339), the vires of Azad Jammu and Kashmir Civil Servants (Regularisation of ad hoc appointment) Act, 1992, were challenged as being violative of Fundamental Rights Nos.15 and 17.
9. The question as to whether the classification of the said Act was reasonable, was examined and it was found not so. Consequently, the aforesaid Act was held violative of the principle of equality before law.
10. ' In an unreported case entitled Muhammad Imtiaz Khan v. Azad Government of the State of Jammu and Kashmir (Civil Appeal No,18 of 1995 decided on 17-5-1995), while exercising appellate jurisdiction against the judgment of the Service Tribunal, it was held that the Service Tribunal committed an error in passing the impugned judgment because it does not attend to the challenge posed to the vires of certain rules dealing with the promotion of the appellant regarding fixation of quota. It did not appear from the judgment as to whether the vires of the rules were challenged independently or the same became subject of challenge as a result of some order passed by the competent Authority with regard to the terms and conditions of service of a civil servant. However, the matter was remanded to the Service Tribunal to decide the appeal afresh in view of the observations made by this Court, i,e,, to decide as to whether the relevant rules were violative of Constitutional provisions as being discriminatory.
11. ' In another unreported case entitled Azad Government of the State of Jammu and Kashmir v.
12. Muhammad Hameed Mughal (Civil Appeal No,56 of 1993 decided on 27-12-1993), the order admitting the writ for regular hearing and temporary injunction passed by the High Court in exercise of writ jurisdiction were set aside on the ground that the matter pertained to terms and conditions of service of civil servants and, thus, the High Court had no jurisdiction to decide as to whether the departmental rules providing for quota were violative of basic law under which the rules were framed and whether the quota system was not recognised by the Azad Jammu and Kashmir Interim Constitution Act, 1974. It was observed that the matter fell within the ambit of Service Tribunal and the High Court had no jurisdiction to deal with the aforesaid points in view of section 47 of the Azad Jammu and Kashmir Interim Constitution Act, 1974.
4. In reply, Mr. Ghulam Mustafa Mughal, Advocate, the learned counsel for the respondent, has controverted the arguments advanced on behalf of the appellant. He has argued that it is within the competence of the Government to frame service rules for smooth functioning of administration and a civil servant is not entitled to challenge the vires of rules; he has contended that the vires of such rules can only be challenged if on the basis of any such rules an order has been passed by the competent authority regarding the terms and conditions of service of a civil servant: He has submitted that in the instant case the appellant has challenged the vires of the rules before any order detrimental to his terms and conditions was passed by the departmental authority. The learned counsel has contended that independent challenge to the service rules when no order was passed on the basis of such rules regarding the terms and conditions of service of a civil servant has not been visualised either in Rule 4 of the Azad Jammu and Kashmir Civil Servants (Appeal)
13. Rules, 1991, or Section 4 of the Azad Jammu and Kashmir Service Tribunals Act, 1975. He has submitted that under Rule 4(b) of the Civil Servants (Appeal) Rules, 1991 if service rules are interpreted by an auhtority to the disadvantage of a civil servant whereby his conditions of service or pay allowances or pension are reduced, such rules can also be challenged in the appeal etc. Filed against such order. Thus, he has maintained that challenge to the departmental rules without there being any order based on the same, has not been visualised by any law on the status book of the State. The learned counsel has further contended that the contention of the learned counsel for the appellant that the Service Tribunal can go into the vires of service rules is subject to the conditions that the departmental authority must have passed an order on the basis of such rules regarding the disadvantage of the concerned civil servant. He has cited following authorities in support of his contentions:-- ' In a case reported as Muhammad Umar Malik v. Federal Service Tribunal (PLD 1987 SC. 172), it has been observed that the promotion is not a vested right of civil servants. The judgments of the Service Tribunal were set aside in exercise of appellate jurisdiction on the ground that it failed to consider the question regarding the creation of different cadres in light of the relevant material.
14. ' In a case reported as S. Sarwat Haider v. Central Board of Revenue (1987 SCMR. 899), it has been observed that the Service Tribunal has no jurisdiction to review its own order without impleadment of necessary parties who were likely to be adversely affected.
15. ' In a case reported as Muhammad Siddique Nasim v. The Secretary, Government of the Punjab, Irrigation and Power Department, Lahore (1987 SCMR 302), it has been held that the Government has exclusive powers to lay down policy as to whether a particular degree should be recognised as equivalent to another degree and thus, the petitioner had no vested right to challenge the notification on the ground that the same was likely to affect his promotion adversely.
16. Consequently, the petition for leave to appeal against the judgment of the Service Tribunal was refused.
17. ' In a case reported as Falak Sher Khan v. Mukhtar Ahmad (PLD 1989 SC 262), it was observed that the Governor was competent to make rules in the interest of efficiency of the administration; it was further observed that the rules of promotion can be changed for this purpose and such rules cannot be challenged on the ground that the same would adversely affect the promotion of a Civil servant because a civil servant has no vested right to claim promotion or to challenge the rules that the same were not suited to him.
18. ' In a case reported as Mst. Rehana Aziz v, Mst. Shakeela Ashraf (1998 SCR 281), it was observed that appeal to Service Tribunal was not competent because the departmental remedy was not exhausted.
19. ' In a case reported as Dr. Muhammad Tahir Achakzai v. Government of Balochistan (1999 PLC (C.S.) 1360), it has been held that the Service Tribunal has the competence to go into the vires of the rules but it can do so only while examining the grievance relating to the terms and conditions of service of an aggrieved civil servant. However, it was held that Service Tribunal cannot independently examine the question regarding the vires of service rules if there is no controversy before n relating to the violation of the terms and conditions of service of an aggrieved civil servant.
20. ' In a case reported as Pakistan Diploma Engineers Federation (Regd.) v. Federation of Pakistan (1994 PLC (C.S.) 1105), it was held that the provision of Pakistan Engineering Council Act, 1976, were wide enough to include the cases whether they were employed in private service or Government service. It may be observed that contrary view was taken by the Supreme Court of Pakistan in Fida Hussain's case reported as (1996 PLC (C.S.) 44), relied upon by the learned counsel for the appellant.
5. We have given due consideration to the arguments raised at the Bar. It is evident from the case cited by the learned counsel for the parties that vires of departmental rules can be gone into by the Service Tribunal only if A the rules have been interpreted to the disadvantage of a civil servant adversely affecting the terms and conditions of his service. Except the unreported case of ' this Court titled Muhammad Imtiaz Khan v. Azad Government of the 'State of Jammu and Kashmir (Civil Appeal No,18 of 1995 decided on 17-5-1995), in all other cases relied upon by the learned counsel for the appellant, the rules were challenged before the Service Tribunal after the same were interpreted to the disadvantage of a civil servant. So far as Imtiaz Khan's case is concerned, the question as to whether the departmental rules can be independently challenged before the Service Tribunal or not was not subject-matter of controversy between the parties; the point was not raised and no finding was given on any such point by this Court. However, the case was remanded to the Service Tribunal with the direction that it should also consider the point relating to the vires of the departmental rules and decide the matter afresh according to law. Obviously, the aforesaid case cannot be interpreted to mean that this Court has held that departmental rules can be challenged independently even if the same were not interpreted to the disadvantage of a civil servant. It is clear from the provisions contained in Rule 4 of the Appeal Rules, 1991 and section 4 of the Service Tribunals Act that the appeal etc. Are competent to the concerned authority only if an order has been passed regarding the terms and conditions of service of a civil servant. There is no provision in the Rules or Service Tribunal Act to the effect that the departmental rules can be challenged even if the same were not interpreted to the disadvantage of a civil servant.
6. So far the question as to whether the provisions of Pakistan Engineering Council Act are applicable to the engineers who have joined the Government service or not is concerned, that has been finally clinched by the Supreme Court of Pakistan in Fida Hussain's case, referred to above, wherein it has been held that the provisions of the said Act are not applicable to the engineers who are Government employees and, thus, the Government is at liberty to make rules regarding the promotion of engineers in its service as it wishes. We are in respectful agreement with the view taken in the aforesaid case and observe that the Government, if so desires, may amend the rules governing the promotion of civil engineers in its service, irrespective of the provisions contained in Pakistan Engineering Council Act which stands adopted by the Azad Jammu and Kashmir Government.
21. ' With these observations, finding no force in this appeal, it is hereby dismissed with no order as to the costs.