PLJ 2013
AJ&K 37
Present: Ghulam Mustafa Mughal, C.J.
FAZAL-E-RABBI
KHAN, ASSISTANT ENGINEER/SUB-DIVISIONAL OFFICER (OFFICIATING) ELECTRICITY
SUB-DIVISION BAGH--Petitioner
versus
AZAD GOVERNMENT
through its Chief Secretary, Muzaffarabad & 4
others--Respondents
W.P. No. 1831 of
2011, decided on 29.5.2012.
AJ&K Interim
Constitution Act, 1974 (VIII of 1974)--
----S.
44--Appointment as sub-engineer in electricity department--Recommendations of
selection committee--No right can be claimed on basis of rules which were no
more in existence until same were challenged--Rules which were no more in
existence cannot be ordered to be implemented--Validity--Government was
competent to enhance, alter or amend prescribed qualification to maintain
efficiency in service and a vested right cannot be claimed in that respect--There
was no cavil with proposition that Government was competent to enhance, alter
or amend prescribed qualification for particular post which cannot be objected
to as qualification for particular post cannot be kept unchanged for decades to
safeguard the interest of incumbent and day to day changes in every walk of
life--Petitioner had not challenged rules and quota reserved for petitioner's
category had been deceased, therefore, without challenging legality and
propriety of rules relief sought cannot be granted--Rules which were no more in
existence cannot be ordered to be implemented. [Pp.
41 & 42] A, B & C
Mr. Abdul Rasheed Abbasi, Advocate for
Petitioner.
Mr. Noorullah Qureshi, Advocate for
Respondents.
Date of hearing:
29.5.2012.
Order
Through this
petition filed under Section 44 of the Azad Jammu & Kashmir Interim
Constitution Act, 1974 following relief is claimed:--
"It is most
humbly prayed that by accepting the writ petition, appropriate writs may kindly
be issued:--
(1) Directing Respondents No. 1 to 4 to act
upon, carry into effect, implement and apply the Rules of 1993 as amended in
2007 to the posts existing in the year 2007;
(2) Directing the said respondents to
calculate and apply the quota of 15% for B.Sc./B.Tech
(Honours) degree holder Sub-Engineers to the 55 posts
existing in 2007 and forward the case of the petitioner and other eligible
degree holder Sub-Engineers to the Selection Board for consideration for
promotion;
(3) Directing the said respondents to make
promotion of the petitioner and other eligible degree holder Sub-Engineers
according to the aforesaid quota;
(4) Restraining the said respondents from
applying the rules of 2010 retrospectively and making direct recruitment
against the posts by applying the said rules."
Facts forming
the background of the instant petition are that petitioner, herein, was
inducted as Sub-Engineer in Electricity Department on 26.12.2002. Subsequently,
he was appointed on the recommendations of respective Selection Committee
against a development scheme vide order dated 31.03.2005. It is alleged that
his appointment was regularized after due process of law vide order dated
08.05.2006. It is further alleged that petitioner has acquired B.Tech (Honours) degree and has
been placed at Item No. 10 of the final seniority list of B.Tech
(Honours) degree holder Sub-engineers. It is claimed
that service of the Azad Jammu & Kashmir Electricity Department was
initially regularized by the rules known as the Electricity Department Service
Rules, 1993 which were amended on 24.09.2007. In these rules 15% quota was
reserved for promotion of Sub-Engineers on the basis of seniority-cum-fitness
as Assistant Engineers possessing B.Sc Electricity
Engineering/B.Tech (Honours)
degree provided that they have 3 years and 5 years service retrospectively in
their credit. It is submitted that petitioner was given additional charge of
the post of Assistant Engineer/Sub-Divisional Officer Thorar
vide notification dated 17.8.2010 and later on vide notification dated
6.12.2010 was promoted on current charge basis as such. It is further submitted
that on the recommendations of the Chairman of Selection Board he was promoted
as Assistant Engineer on officiating basis vide notification dated 30.12.2010.
It is stated that at the time of officiating promotion of the petitioner there
were 55 posts of the Assistant Engineers in Electricity Department out of which
9 posts were falling to the quota of petitioner's category and cadre. It is
further submitted that petitioner being qualified and eligible for promotion as
Assistant Engineer has a right to be considered against the said quota. It is
submitted that respondents have amended the rules of the Electricity Department
on 02.09.2010 enforced in 1993 and amended in 2007. According to new rules the
quota for promotion of B.Sc/ B.Tech
(Honours) degree holder Sub-Engineers has been
decreased from 50% to 5%. The case of the petitioner is that for the purpose of
promotion of the petitioner, respondents were bound to act upon the rules of
1993 amended in 2007 when the post fell vacant. The respondents have delayed
and procrastinated the promotion of the petitioner for
a period of 3 years with mala-fide intention in order to deprive the petitioner
and other eligible employees from their right of promotion. It is alleged that
respondents have amended the rules and thereafter sent the requisition to the
Public Service Commission and have also advertised the post for ad-hoc
appointment vide advertisement dated 23.11.2011 published in daily `Ausaf'. In nutshell the case of the petitioner is that he
was entitled to be considered under the rules of 1993 as amended in 2007
against the quota available and decrease of quota in the amended rules will not
apply to the petitioner because accrued right cannot be snatched
retrospectively.
Respondents were
asked to file comments, which have been filed by them accordingly. In the
comments it is stated by them that amendment in the rules is prerogative of the
Government and this power is not subject to any limitation and nor can be
circumcised according to the whims of any group of the employees. It is alleged
that quota has been rescheduled in order to provide an equal opportunity of
promotion to all the categories and cadres. It is further stated that rules
have been framed in line with the service rules of WAPDA. Moreover, it is
claimed by them that requisition has rightly been sent and no violation of
rules or law has been committed and implementation of the rules which were
enforced in 1993 and 2007 cannot be ordered because these rules have been
amended and petitioner has not challenged the amended rules.
Mr. Abdul Rasheed Abbasi, the learned
counsel for the petitioner argued that petitioner was promoted firstly on
current charge basis vide notification dated 06.12.2010 and thereafter, on the
recommendations of the Chairman of the respective Selection Board he was
promoted on officiating basis along with other notified Assistant Engineers.
The learned counsel further argued that a right stood accrued in favour of the petitioner for consideration and promotion
under the rules which were enforced in 1993 and 2007 at the time of officiating
promotion wherein 15% quota was fixed for promotion as Assistant-Engineers who
are acquiring the qualification of Sub-Engineering B.Sc./B.Tech
(Honours). Total strength of the posts, according to
the learned counsel, was 55 out of them 9 posts were falling in the quota of
petitioner's category, hence, respondents were duty bound to sent the case of
the petitioner for consideration and promotion against that quota. The
requisition of the total posts sent by the respondents on 26.10.2011 for
initial recruitment is mala-fide without lawful authority and has been sent in
order to deprive the petitioner from his valuable right. The learned counsel by
relying upon the judgment passed by this Court in Writ Petition No. 238/08
titled Muhammad Shafique Awan
and others vrs. AJ&K Govt. and others decided on
12.12.2011 and Civil PLA No. 30/2012 titled Azad Govt. and others vrs. Muhammad Shafique Awan and others decided on 16.03.2012 submitted that
accrued rights cannot be taken away by amending the rules rather the right
accrued under the un-amended rules will be allowed to be completed.
Mr. Noorullah Qureshi, the learned
counsel for the respondents contended that petition is not maintainable because
no right can be claimed on the basis of the rules which are no more inexistence
until the same are challenged. The learned counsel further contended that
petition has been filed on 19.11.2011 and the case relied upon by the learned
counsel for the petitioner has no nexus with the instant case because the said
case was filed on 16.04.2008. The learned counsel submitted that Government has
prerogative power to frame rules and this right of the Government cannot be
curtailed at the whims of any person or group of employees. The learned counsel
further submitted that requisition has been sent to the Public Service
Commission in accordance with law and petition has been filed in order to
protect the temporary appointment, therefore, the petition merits dismissal on
this ground as well on the ground of leaches. The learned counsel relied upon
the following cases:--
(i) Nazakat Abbas and 20 others vrs. Punjab Public Service Commission through Secretary and another [2006 PLC
(C.S) 221].
(ii) Pakistan Institute of Human Rights
through Muhammad Iftikhar Hussain
Rajput vrs. The State
through Chairman, Chief Minister's Task Force and others, [2005 YLR 774];
(iii) Azad Govt. of the State of J&K &
others vrs. Haji Summandar Khan & others [1995 SCR 259];
In Muhammad Shafique Awan & others' case
this Court opined that rules which were enforced at the time when the
petitioners were qualified for promotion would be applicable and petitioners,
therein, had a right to be considered under those rules. Petition was filed on
16.04.2008 and the Government amended the rules during pendency of the
petition. In those circumstances Muhammad Shafique Awan's case was disposed of with the direction to the
respondents to send his case and other eligible petitioners to the concerned
selection Board. Petition for leave to appeal was filed by the Government
against the said judgment which was dismissed by the apex Court on 16.03.2012.
The first case
relied upon by Mr. Noorullah Qureshi,
advocate is Nazakat Abbas
and 20 others vrs. Punjab Public Service Commission
through Secretary and another [2006 PLC (C.S) 221] in which a Division Bench of
Lahore High Court observed that the rules applicable and conditions required to
be satisfied for the recruitment of a particular post, are the one which exist
on the date of recruitment and not what were the requirement at an early date.
The selection or appointment of the petitioners is to be governed according to
law and the rules which are prevalent on the day of recruitment. It was opined
that Government was competent to enhance, alter or amend the prescribed
qualification to maintain efficiency in service and a vested right cannot be
claimed in that respect. The contention of the learned Advocates for the
petitioner therein that no amendment could be made in the relevant
regulations/rules by the competent authority adversely affecting the rights of
the petitioner was repelled. It was opined that there is no cavil with the
proposition that Government is competent to enhance, alter or amend the
prescribed qualification for a particular post which cannot be objected to as
qualification for a particular post cannot be kept unchanged for decades to
safeguard the interest of a particular incumbent and day to day changes in
every walk of life.
In case titled
Pakistan Institute of Human Rights through Muhammad Iftikhar
Hussain Rajput vrs. The State through Chairman, Chief Minister's Task
Force and others [2005 YLR 774] the scope of public interest litigation was considered.
This case is not applicable. In caste titled Azad Govt. of the State of J&K & others vrs. Haji Summandar
Khan & others [1995 SCR 259] principle of leaches was considered and it was
opined by their lordships that a writ against a vested order
can be dismissed
on the point of leaches. It was
observed that writ petitions filed after 5, 8 months without any reasonable
explanation were likely to be dismissed on the ground of leaches.
In view of the
case law and having regard to the facts of the instant case, I am of the view
that this petition has no substance in it because the petitioner, herein, was
appointed on officiating basis vide order dated 30.12.2010 and he has not
invoked the jurisdiction of this Court for issuance of direction to the authority
for sending his case to the concerned Selection Board. Meanwhile rules have
been amended vide notification dated 02.09.2010. These rules are available as
annexure `M' at page 21 of the file. As the petitioner has not challenged the
rules and the quota reserved for petitioner's category has also been decreased,
therefore, without challenging the legality and propriety of the rules the
relief sought cannot be granted. The case of the petitioner has to be judged in
light of the rules enforced at the time. The rules which are no more in
existence cannot be ordered to be implemented.
In view of above
finding no force in this petition, it is hereby dismissed in limine.
(R.A.) Petition
dismissed
