FALAK SHER KHAN and anothers vs MUKHTAR AHMAD and others

1. ' NASIM HASAN SHAH, J.--This appeal is directed against the judgment of the Service Tribunal Punjab. Lahore in Case No, 359/1123 of 1981.

2. ' The relevant facts have been summed up in the order granting leave to appeal which may usefully be reproduced hereunder:- "The facts which form the background are that the Pakistan Engineering Council Act, 1976 (Act V of 1976) was enacted on 14-1-1976. In section 2(j) a "professional engineer" was defined to mean "a person who holds a recognized engineering qualification and is registered as a professional engineer". Accordingly, the registration of recognized engineering qualification was provided for in the Act and a roll was to be maintained by the Engineering Council for this purpose. The Engineering Council under the provisions of this Act also took a decision that only B.Sc. Agriculture Engineers from Agriculture University, Faisalabad would he recognised as professional Engineers.

3. The implication of this decision was that a person holding a diploma in Agriculture Engineering could not be enrolled as a "professional engineer". Respondents Nos. 1 to 6, who were already in service as Assistant Agriculture Engineers but were diploma-holders only in Agriculture Engineering thus became debarred from being enrolled as "professional engineers".

4. ' Under the West Pakistan Agriculture Service (Class I)

5. 1965, which, inter alia, made provision for promotion of members in the service, promotion to Agriculture Engineers (Grade-18) from the post of Assistant Agriculture Engineering (Grade-17) was possible on the basis of seniority-cum-fitness and the respondents Nos. 1 to 6 could, therefore, under the said rules be- promoted as Agriculture Engineers in due course. However, after the enactment of Act V of 1976, the Punjab Agricultural Department decided in order to make the Service Rules consistent with the new law, to issue a notification on .28-7-1978 amending the Rules of 1965 so as to provide that promotion to the rank of Agriculture Engineers from among the Assistant Agriculture Engineers would be confined only to those who held the qualification of B.Sc.

6. In Agricultural Engineering from a recognised University ' Dismayed by this notification, respondents Nos. 1 to 6 made representations seeking exemption from the rigour of this amendment and their cause was also supported by the Punjab Government.

7. The Engineering ,Council constituted a Sub-Committee called the "Qualification Equivalence Committee", which very reasonably recommended that the Officers, such as the respondents, may be exempted from the operation of the amended rule for three years, within which time the erstwhile unqualified Engineers could improve their qualifications. Unfortunately, the Executive Committee of the Engineering Council did not accept this recommendation, which appears to have been a fair solution in the situation created by the enactment of the new Act in 1976 and the amendment made of the Rules of 1965 in July, 1978. Efforts were made for securing modification of the above decision of the Executive Committee, but it finally decided to stick to its earlier deciSion in its meeting held on 29/30-5-1981: ' The respondents Nos. 1 to 6, having thus become debarred from being considered for promotion to the posts of Agriculture Engineers, therefore, filed an appeal before the Punjab Service Tribunal, where they challenged the notification dated 28-7-1978, by which the West Pakistan Agriculture Service (Class I) Rules, 1965, were amended and they were made ineligible for the posts of the Agriculture Engineers.

8. ' The Punjab Service Tribunal has, in its impugned judgment, decried the unreasonableness of the Engineering Council in refusing to allow time to the respondents to improve their qualifications and the injustice done to them in changing the terms and conditions of their service in the course of their service career and proceeded to accept the appeal, set aside the amendment made in the Rules on 28-7-1978 and directed that the case of the respondents be considered for promotion on the basis of seniority-cum-fitness as laid down in the West Pakistan Agriculture Service (Class I)

9. Rules, 1965.

10. ' According to the petitioners herein they have been directly affected by the judgment of the Punjab Service Tribunal because under the Rules, as amended, they were entitled to promotion.

11. Hence, even though not made a party to the appeal before the Punjab Service Tribunal, they are entitled to challenge it. Hence, this petition for leave to appeal.

12. ' Leave was granted in this case to consider several contentions raised by the learned counsel for the appellants but only one contention has now been pressed before us namely that the right of promotion not being a vested right any amendment made in the West Pakistan A Agriculture Service (Class 1) Rules, 1965, by issuance of the notification dated 28-7-1978 which provided that promotion to the rank of Agriculture.Engineers from the rank of Assistant Agriculture Engineers would be confined only to those holding qualifications of B.Sc. In Agricultural Engineering could not be challenged.

13. ' Mr. Muhammad Saleem Ch., learned counsel for the respondents, on the other hand, has submitted that the amendment made in the Rules of 1965 by issuance of the notification dated 28- 7-1978 was ultra vires in the sense that this amendment was made under the misconseption n that the Pakistan Engineering Council Act, 1976 (Act 5 of 1976) was applicable to the respondents. It was under this misconception that the amendment was made in the West Pakistan Agriculture Service (Class I) Rules, 1965, in their application to the Province of the Punjab. In other words, the amendment made by virtue of the power conferred under section 23 of the Punjab Civil Servants Act, 1979 in the Governor to make such rules as appear to him to be necessary or expedient for carrying out the purposes of the said Act was not attracted.

14. ' We cannot accept this submission. The amendment in the rules has been properly made under powers vesting in the Governor to amend any rule which, in his opinion, appears to be necessary or expedient. This amendment was made in the Rules to give more importance to academic qualifications rather than experience in the field. This was a legitimate exercise of power. It has not been shown how and in what manner the amendment that was made in the Rules of 1965 is ultra vires the powers conferred upon the Governor to amend the existing.

15. ' On the contrary, there is force in the submission made by the learned counsel for the appellants.

16. This Court has held in several cases that the Governor is entitled to make rules in the interest of efficiency of service and that rules of promotion can be changed for this purpose and such a change in the rules cannot be made a ground cf grievance by any person expecting to be promoted to a higher rank on the basis of the, existing rules. In fact, under the law, no vested right can be claimed by the civil servants who have not yet been promoted in any rules determining eligibility for promotion under the said rules of promotion. Accordingly, any change made in those rules before they are actually promoted cannot furnish a cause for complaint to them. This is for the simple reason that prospects of promotion are not justiciable and do not confer any vested right. See Government of West Pakistan v. Fida Muhammad Khan PLD 1960 SC 45, Central Board of Revenue, Government of Pakistan v. Asad Ahmad Khan PLD 1960 SC 81, Province of West Pakistan v. Muhammad Akhtar PLD 1962 SC 428, Manzur Ahmad v. Muhammad Ishaq PLD 1964 SC 17, Muhammad Umar Malik v. Federal Service Tribunal and others PLD 1987 SC 172, Ch. Muhammad Insha Ullah and others v. Chief Conservator of Forests (P&E) Punjab and others PLD 1988 SC 155.

17. ' The result is that this appeal is allowed. The order of the Service Tribunal dated 13-6-1982 is set aside. The parties, however, are left to bear their own costs.