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Civil Appeals Nos. 125 and 124 of 1984, decided on 8th October, 1984.

(Against the judgments, dated 7‑11‑1983 and 9‑10‑1983 of the Federal Service Tribunal, Islamabad).

‑‑‑Art. 212(3)‑‑Service Tribunals act (LXX of 1973), S.4‑‑Leave to appeal granted to examine whether Federal Public Service Commission had taken a correct view of law in declaring rules of service to be ultra vires terms and conditions of service of respondents.

‑‑‑Ss. 17 & 18‑‑Service Tribunals Act (LXX of 1973), S.4‑‑Promotion‑ Rules prescribing Departmental Promotion Examination and prescribing graduation as qualification and a minimum of five years service for promotion /recruitment to grade‑18, held, were not illegal and by prescribing qualification of graduation For recruitment to grade‑18, no vested right of respondents, who were serving in grade‑17, violated so as to entitle them to a declaration that such a provision in Rules was ultra vires their terms and conditions of service.

Government of West Pakistan v. Fida Muhammad Khan P L D 1960 S C 45; Government of West Pakistan v. Fateh Ullah Khan P L D 1960 S C 105; Syed Abdul Qadir Shah v. Government of Punjab 1972 S CMR 323; Sh. Masud Ahmad v. Pakistan P L D 1976 S C 195; The Central Board of Revenue, Government of Pakistan P L D 1960 SC 81; Muhammad Suleman Khan v. Pakistan 1972 S C M R 127; Mukhtar Ahmad v. Government of West Pakistan P L D 1971 S C 846; Khushi Muhammad and 3 others v. General Manager, Pakistan Western Railways P L D 1970 S C 203; West Pakistan Government v. S. Abdul Khaliq, Accountant, Hazara Treasury P L D 1970 S C 247; Government of West Pakistan and another v. Nasir M. Khan and others P L D 1965 S C 106 and Shahzada Shahpur Jan v. Auditor‑General of Pakistan and another P L D 1984 S C 430 ref.

‑‑‑Rules‑‑Amendments‑‑Amendments are expressed to be amendments to rules‑‑Amendments expressed to have been ordered by Authority and communicated by Secretary through office memorandum‑‑Such a circulation by Secretary, held, could not alter character of amendments of Rules‑ Amendments are a part of Rules and must be treated as Rules.

Ch. Ghulam Hassan, Advocate Supreme Court instructed by Tanvir Ahmad, Advocate‑on‑Record (absent) for Appellants.

Syed Iftikhar Ahmad, D.A.‑G. Punjab instructed by Rana M.A. Qadri (absent) for Appellants.

Mahfoozul Haq, Advocate Supreme Court with M.A. Qureshi, Advocate‑on‑Record (absent) for Respondents (in both the Civil Appeals).

Date of hearing: 8th October, 1985.

Leave to appeal was granted under Article 212(3) of the Constitution to Water and Power Development Authority (hereinafter referred to as the Authority) in two matters to examine the same question of law arising in both, namely, whether the Federal Service Tribunal has taken a correct view of law in declaring the rules of service to be ultra vires the terms and conditions of service of the respondents.

Both the respondents held the post of Junior Officer (Administration) in grade‑16 when WAPDA Common Cadre Administrative Posts Service Rules of 1980 (hereinafter referred to as the rules) were enforced on 30th of January, 1980. Their posts were upgraded to grade‑17 as from 30th of August, 1972. In terms of rules 6 of the rules, they were asked to opt and they opted for the rules. Their posts after the enforcement of the rules were designated as that Assistant Director in grade‑17. For promotion to this post, it was provided that the departmental promotion examination must be passed by those claiming promotion on the post. For the next higher post of grade‑18 i.e. Deputy Director (Admn.) the channel of recruitment was by promotion out of serving officers in N.P.S. 17 with five years' service in grade‑17 on seniority‑cum‑fitness basis. These rules suffered amendments in June 1980 and April 1982. By these amendments even those officers who were already holding the post of Assistant Director (Admn.) were required "to qualify the departmental promotion examination within three years from the date of recruitment in or promotion to grade‑17 or the date of promulgation of this rule whichever is later failing which his further increments will be stopped and he will also not be considered for further promotion." The amendment made in recruitment rules of grade‑18 posts was that it was prescribed that recruitment shall be "by promotion on seniority‑cum‑fitness basis out of the holders of Assistant Directors' posts in the Common Cadre Administrative Service who are graduates with five years'‑service as Assistant Director/ Section Officer/Junior Officer (Admn.)". Both the respondents felt aggrieved by the clogs placed by these amendments on their continuance in grade‑17 and on their promotion to grade‑18. They objected to the prescription of a promotion ‑examination for the existing incumbents as well as for recruitment to grade‑18. They also challenged the stoppage of increment and the requirement of their having the qualification of graduation for promotion to grade‑18 and also a minimum of five years' service for that purpose.

The Federal Service Tribunal by the main judgment, dated 9th of October, 1983 held the rules to be intra vires so far as they prescribed a Departmental Promotion Examination but it was ordered that a lead period of about two years upto 31‑10‑1985 should be provided to be utilized preparatory to the examination and advanced warning and till then the existing system of promotion on seniority‑cum‑fitness shall prevail." The questions of stoppage of increments and the requirement of graduation for promotion were considered to be violative of terms and conditions guaranteed to the respondents and, therefore, were declared to be ultra vires and inapplicable to them.

The learned counsel representing the WAPDA Syed Iftikhar Ahmad, Deputy Attorney‑General, contended before us that there was no statutory guarantees provided to the employees of the WAPDA with regard to terms and conditions of their service. The only condition to be found in the WAPDA Act was that their terms and conditions shall be as prescribed. Further, it is contended that the respondents had exercised their options for these rules and it was the provision of the rules competently framed which was sought to be enforced against them. Finally, it is contended that the Tribunal has taken an incorrect view of the terms and conditions of service so as to include even the prospect of promotion therein and examined the vires of the rules relating to higher grade by reference to the terms and conditions enjoyed by the respondents in the lower grade. This according to the learned counsel for the appellant is against a number of decisions of this Court. The learned counsel has also brought to our notice the subsequent amendments made in the rules in January, 1985 whereby the provisions with regard to the stoppage of increments on failure to pass the departmental examination and the period within which the departmental examination must be passed have been removed and now the respondents can have no grievance with regard to those two matters.

The learned counsel for the respondents Mr. Mahfoozul Haq on the other hand contended that these amendments in the rules had not been properly brought about for it was only an office memorandum signed by the Secretary of the Authority and not by the Authority itself. Further, it is contended met because the respondents were asked to exercise their options in terms of rule 6 and they exercised the options their option should be considered 'to bind the Authority as well in not altering to their prejudice the rules for which they opted. Finally, it was contended that the terms and conditions of the respondents had been materially altered to their prejudice by the amendments insofar as by prescribing the minimum qualification of graduation for promotion, the respondents who are matriculates stand eliminated altogether from eligibility group to which they earner belonged. According to the learned counsel, the rules could not have retrospective effect to hit at their eligibility and their right to be considered for promotion in terms of the rules existing immediately before the amendments made in 1982.

Section 17 of the WAPDA Act provides that "The Authority may from time to time employ such officers and servants or appoint such experts or consultants, as it may consider necessary for the performance of its functions, on such terms and conditions as it may deem fit". The provisos are not relevant for the purposes of this case.

Section 18 of the Act provides that "The Authority shall prescribe the procedure for appointment, and terms and conditions of service of its officers and servants, and shall be Competent to take disciplinary action against its officers and servants". In exercise of the powers so possessed the Wapda framed the 'rules, asked for the option and the respondents did opt. There is no other guarantee in the Act or elsewhere protecting the terms and conditions of the employees of WAPDA against the framing of the rules. The contention of the learned counsel for the respondents that the rules were not competently or properly amended and that what is claimed to be an amendment of the rules is merely an office memorandum issued by an incompetent authority is a misconception on his part. The amendments are expressed to be amendments to the rules. 'They are expressed to have been ordered by the Authority and it is the Secretary who communicated or transmitted them and such a circulation by the Secretary cannot alter the character of the amendments of the rules. The amendments are a part of the rules and must be treated as rules.

Even where statutory guarantees with regard to terms and conditions have been provided e.g. in the Constitution or in Establishment of West Pakistan Act, 1955 or in the Punjab Partition (Civil Servants) Order, 1947 the terms and conditions have been consistently interpreted as not to include the prospect of promotion or the terms and conditions of service relating to the higher grade. Reference in this context can be made to decisions of this Court in Government of West Pakistan v. Fida Muhammad Khan P L D 1960 S C 45, Government of West Pakistan v. Fateh Ullah Khan P L D 1960 S C 105, Syed Abdul Qadir Shah v. Government of Punjab 1972 SCMR 323 and Sh. Masud Ahmad v. Pakistan P L D 1976 S C 195. With regard to the qualification and conditions for promotion to the higher grade, that too has not been held to be controlled by the terms and conditions of civil servants seeking such promotion to the higher grade. For this decision of this Court relevant are The Central Board of Revenue, Government of Pakistan P L D 1960 S C 81 and Muhammad Suleman Khan v. Pakistan 1972 S C M R 127.

The learned counsel for the respondents has referred to the cases which have no direct relevance to the case in hand. For example in Mukhtar Ahmad v. Government of West Pakistan P L D 1971 S C 846 the authority competent to frame the rule i.e. the Governor had approved of a mode different from the rule for the purposes of recruiting Agriculture Engineers. It was held that such a departure from the rule though not formalized as a rule had the force and effect of rule itself because the authority competent to frame the rules had ordered it to be so. The case of Khushi Muhammad and 3 others v. General Manager, Pakistan Western Railways P L D 1970 S C 203 related to seniority which was held to be a vested right. In West Pakistan Government v. S. Abdul Khaliq, Accountant, Hazara Tresury P L D 1970 S C 247 the benefit of pay revision was given from a retrospective date on account of the post occupied by the respondent in that case having been included in the schedule. In the case of Government of West Pakistan and another v. Nasir M. Khan and others P L D 1965 SC 106 protection was given to the existing holders of the office. In the case of Shahzada Shahpur Jan v. Auditor‑General of Pakistan and another P L D 1984 S C 430, the rules were held to hold the field against the instructions emanating from the Auditor‑General. So, none of these cases relates to the terms and conditions of higher posts being tested by relating them to the terms and conditions enjoyed by the incumbents of the lower posts in the same hierarchy of promotion. It cannot, therefore, be said that by prescribing the qualification of graduation for recruitment to any of the vested rights of the respondents who are in grade‑17 has been violated which may entitle the respondents to the declaration that such a provision in the rules is ultra vires their terms and conditions of service.

Both the appeals are allowed. The order of the Tribunal is set aside and their service appeals stand dismissed with no order as to costs.

M. Y. H. Appeals allowed.

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