FARRUKH MIRZA Versus SECRETARY, ESTABLISHMENT DIVISION, ISLAMABAD
ABDUL RAZZAQ A. THAHIM (CHAIRMAN): ‑‑These four Appeals Nos. 169 (K)/88; 220(R)/88 (New No. 109 (K)/91); 84 (R)/89 (New No. 110(K) and 91(K)/91 have been filed by the appellants Dr. Farrukh Mirza (Appeal No. 169 (K)/88); while the remaining three appeals by Syed Afzal Ahmed Hydari appellant, in which they have challenged the amendment in the recruitment rules for the posts in BPS‑17 and above in Defence Science and Technology Organisation (hereinafter referred to as DESTO), notified vide SRO 17 (KE)/88 in the Gazette of Pakistan, Extraordinary, Part II, dated 22‑2 1988. The Notification is dated 28th January, 1988. The appellants have prayed that these amendments be declared illegal and there may be promoted on the basis of overall seniority of Senior Research Officer/Research Officers (as the case may be), irrespective of consideration of related discipline.
2. In all the four appeals, common questions of law and facts are involved and, therefore, we want to dispose of these appeals by this one single judgment.
3: The facts of Appeal No. 169 (K)/88 are that the appellant Dr. Farrukh Mirza is working as Senior Research Officer in BPS‑18 in DESTO since 31‑8‑1974. He is holding M.Sc. (Hons.) Botany. The recruitment rules for the organisation were framed in 1976 and some juniors of the appellant were promoted on the basis of related discipline. Being aggrieved by promotions of other Research Officers, three Constitutional Petitions Nos.507/77; 15/78 and 693 of 1978 were filed by Mrs. Qaiser Jehan, Dr. Mrs. Raana Masood Naqvi and Syed Afzal Ahmed Hydari in the Sindh High Court, where some consent order was passed by the High Court and it was agreed that irrespective of the consideration of related disciplines the petition be considered by the organization. The promotions were considered on the basis of judgment of the Sindh High Court but the seniority was not given. Therefore, Appeals Nos. 109(K)/82, 110(K)/82, 111 (K)/82, 112 (K)82, 113 (K)/82 and 20 (K)/85 were filed before this Tribunal and they were given relief with regard to their seniority. In the meanwhile, the rules were amended in the year 1988. The appellant has prayed as under:‑
(a) The amendment in Recruitment Rules of Defence Science and Technology Organisation, Defence Production Division dated 16‑4‑1976 as notified vide the Gazette of Pakistan, Extraordinary, Part 11 dated 22‑2‑1988 are illegal and be set aside.
(b) That the amendment of rules (impugned order) is against the injunction of Islam as such be set aside.
(c) Direct respondents to consider the appellant for promotion on the basis of overall seniority of Senior Research Officers, irrespective of consideration of related discipline/group.
4. Appellant Dr. Farrukh Mirza, at very outset, submitted that he would adopt the arguments advanced by his colleague Syed Afzal Ahmed Hydari, appellant in the other three appeals.
5. Mr. Syed Afzal Ahmed Hydari the appellant in the other three appeals, is working as Research Officer (B‑17) in DESTO. He joined Government service on 7‑1‑1966 as Research Assistant Grade‑I and was promoted as Experimental Officer (B‑16) w.e.f. 1‑1‑1967 and as Research Officer with effect from 26th May, 1977. He is holding Degree in M.Sc. At the time of his appointment, there were no specific rules with regard to the terms and conditions of service but later on in the year 1976 the rules were framed in pursuance of sub‑rule (2) of Rule 3 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973. In the year 1977, some officers in the grade of Experimental Officers were promoted as Research Officers which, according to the appellant, were not only junior but also less qualified. His case was not considered and his representation was rejected by the Secretary, Ministry of Defence. He filed Constitutional Petition No. 693/78 in the High Court of Sindh, where consent order was passed and the appellant was promoted but he was not given seniority. The appellant and his colleagues filed appeals before the Tribunal which were allowed by giving them seniority with all consequential benefits. In the year 1988, the rules were amended by SRO 17 (KE)/88, dated 22‑2‑1988 and the appellant has challenged these amendments on the ground that he was appointed on certain terms and. conditions and by amendment of these rules, his terms and conditions, of service have been changed. He has, therefore, prayed that these amendments may be declared as illegal, against injunction of Islam and be set aside, and his case be considered for promotion on the basis of overall seniority irrespective of consideration of related discipline/group.
6. We have heard the appellant at length. It is argued that the Government has no authority to amend the rules as the appellants herein are governed by the rules framed in the year 1976 and amendments are with mala fide intention and not binding on them. He also argued that he may be considered for promotion in the light of the earlier decisions of the High Court of Sindh and the Tribunal. He relied on 1983 PLC (CS) 767; 1990 PLC (CS) 497 and PLD 1988 SC 155.
7. Col. (Retd.) M. Sajjad Younus, representing the DESTO submitted that amendments in the Rules were considered necessary to equate all the disciplines so that there should be no anomaly in the organisation but he has categorically submitted that the cases of the appellants are not affected by the amendments as their technology comes under the discipline and they are not debarred from promotion on account of these amendments. It is argued by Mr. Niaz Ahmad Khan, the learned Standing Counsel for the Government that the Government is competent to amend the rules. He also relied on PLD 1983 SC ‑155 and Civil Appeals Nos. 1282 and 1283 of 1990, decided on 27‑4‑1992 in support of his contention that the Government has got the powers to amend the rules whenever considered necessary. It was also stated that the cases of the appellants were considered by the Departmental Promotion Committee. B Dr. Farrukh Mirza has been promoted to BPS‑19, while the case of the appellant Syed Afzal Ahmed Hydari has been submitted to the DPC and is under process.
8. In all the four appeals, the amendments in the Rules have been challenged on the plea that they have been made with mala fide intention. In the case reported in 1983 PLC (CS) 767, it has been held that Government can reserve the right of amending Rules but that must be done when there is sound reason to do so and not just to fill the routine. It has also been held that the rules cannot for their application be retrospective. In the case of Ch. Muhammad Insha Ullah and others v. Chief Conservator of Forests (P&E), Punjab, reported in PLD 1988 SC 155, relied upon by both the parties, it has been held as under:‑ "that Government was entitled to make rules in the interest of efficiency of service, that the rule of promotion could be changed without in any manner affecting the right of those yet to be promoted."
Therefore, this case does not advance the appellants' case because the rules can be changed by the Government, and further the amendments in the rules will not affect their rights for promotions as is apparent from the fact that their cases were submitted to the DPC. The cases relied upon by the learned counsel for the respondents in Civil Appeal No. 1282 of 1990 (Maqsoodun Nabi Khan v. Secretary, Ministry of Education and CA. No. 1283 of 1990 (Federation of Pakistan through Secretary, Establishment Division v. Essa Khan Afghani and Maqsoodun Nabi Khan), have also laid down as under:
"3. It is difficult to support the order of the learned Tribunal. It has been held in a number of judgments of this Court that the prospect of promotion is not a vested right and it is always open to the Government to alter the relevant rules laying down new criterion for filling the higher posts, in the interest of greater efficiency. See Government of West Pakistan v. Fida Muhammad Khan (PLD 1960 SC (Pak.) 45), Central Board of Revenue v. Asad Ahmad Khan (PLD 1960 SC (Pak.) 81); Government of West Pakistan v. Fateh Ullah Khan (PLD 1960 SC (Pak.) 105); Muhammad Suleman Khan v. Pakistan (1972 SCMR 127); Sayed Abdul Qadir Shah v. Government of Punjab (1972 SCMR 323) and Muhammad Insha Ullah v. Chief Conservator of Forests (PLD 1988 SC 155). The learned Tribunal was therefore not right in holding that the competent authority was not empowered to the rule relating to the category of persons eligible for promotion to the post of Assistant Director (Administration) after the respondent had become eligible to be promoted. It is to be noticed that even after the amendment the respondent has not lost his eligibility. All that the amendment has done is that it has made another category of employees also eligible for the post. The right of the Government to specify the sources from which it may choose its employees cannot be restricted. In this case it appears from the judgment of the learned Tribunal that the amendment made by the Government in 1988 was on the advice of the Federal Public Service Commission. The Government, therefore, can hardly be accused of mala fide in making the amendment."
In this case, the appellants have failed to substantiate any mala fide on the part of the respondent department with regard to the amendments in the Rules. On the other hand, the respondents have placed on record copy of Office Memorandum No. 1/32/83‑R. 4, dated 24‑7‑1984, issued by the Establishment Division addressed to the Defence Production Division. It reads as under:‑‑
"Subject: DEPARTMENTAL PROMOTION‑‑REPRESENTATION AGAINST:
The undersigned is directed to refer to the Defence Production Division's O.M. No. 5/40/79‑D.7, dated 4th February, 1984 and the correspondence resting with the Establishment Division's O.M. No.l/32/83‑R.4, dated 12th March, 1984 on the above subject and to say that according to the DESTO's recruitment rules notified in April, 1976 the posts of Senior Research Officers are required to be filled by promotion. In clause 2 of the said rules, the Research Officer with 5 years service in Grade‑17 has been shown eligible for promotion to the post of Senior Research Officer. The recruitment rules, however, do not provide for any distinction among the Research Officers on account of qualification or discipline for the purpose of promotion. Contrary to the provisions of rules, 5 posts of Senior Research Officers were filled in 1976 which resulted into supersession of a number of Senior Research Officers. In this connection attention is invited particularly to the promotion of Mr. Nasim Raza Naqvi and Mr. Imamuddin who were at that time shown at Sl. Nos. 17 and 20 of the seniority list. The senior persons had the right for consideration at that time but due to a misconception of disciplines, they were not considered for promotion.
2. In view of the position explained by the representative of DESTO and dealing Section Officer in the Ministry of Defence, the disciplines seems to be a requirement in view of the practical position obtaining on the ground. However, the present recruitment rules do not provide for disciplines and it is, therefore, desirable that the said recruitment rules be suitably amended by the Defence Production Division so as to provide for disciplines. After the said rules are amended discipline- wise seniority list shall have to be maintained. The seniority list may please be shown to the Establishment Division before issue.
(Sd.)
Abdur Rehman,
Section Officer."
Morever, the departmental representative Col. (Retd.) M. Sajjad Younus has clearly stated that cases of the appellants have been considered for promotion, whereby one of the appellants, namely Dr. Farrukh Mirza has been promoted to Grade49, and these amendments have not affected his promotion, and this position has been confirmed by the appellant who is present in person, but he submits that he has not been given relief retrospectively, and that grievance is not before us now. It was also stated at the Bar that promotion of the appellant Syed Afzal Ahmed Hydari was considered from time to time but he was superseded due to indifferent record. It has further been stated that the case of Mr. Hydari is again before the DPC for consideration. Therefore, it is clear that the amendment in the Rules have not come in the way of the appellants for future promotion.
9. The upshot of the above discussions is that Government is competent to amend the rules and the amendments made in the Rules have not affected the appellants' right. As regards the claim for promotion, we cannot entertain this request under section 4(1)(b) of the Service Tribunals Act, 1973. All the four appeals are, therefore, dismissed with no order as to costs.
H.B.T./832/Sr.F Appeals dismissed.