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Constitutional Petition No. D‑528 of 1986, decided on 20th October, 1986.

‑‑‑S. 4‑‑Constitution of Pakistan (1973), Art. 199‑‑Constitutional petition, competency of‑‑Petition involving terms and condition of service of petitioner for which an appeal is competent before Service Tribunal‑ Constitution jurisdiction relating to terms and conditions of civil servant being not competent was dismissed in circumstances.

S . Ansar Hussain for Petitioners.

S.M. Shahoodul Haq for Respondents.

‑‑ The petitioners are serving as Assistant Professors (Grade‑18) in various Clinical Departments of Jinnah Post‑Graduate Medical Centre Karachi. In 1981 the respondents framed recruitment rules for appointment and promotion of the persons having the qualifications of M.C.P.S. Under these rules the posts of Lecturers (Grade‑17) are to be filled by direct recruitment; (2) 50 posts of Assistant Professors (Grade‑18) are to be filled in by Promotion and remaining 50 by direct recruitment; (3) 80 posts of Associate Professors (Grade‑19) and Professors (Grade‑20) are to be filed in by promotion and remaining 20 by direct recruitment. The respondents have substituted the Rules of 1981with the rules of 1986. On these facts the petitioners have made the following prayers:

(a) to declare that the rules of 1986 framed by respondent No.1 are ultra vires and are liable to be struck down as such;

(b) be further pleased to hold that the rules of 1981 are still operative and the petitioners are entitled to ask to be governed under the said rules;

(c) be further pleased to restrain the respondents from enforcing the rules of 1986."

2. According to the petitioners in 1981 Rules were framed for appointment and promotion of the persons having the qualification of M.C.P.S. These rules were framed with the intention to regulate the service matters of the holders of these qualification. Now these rules have been framed in 1986, the petitioners have, therefore, prayed that the rules framed in 1986 by the respondent No.l are ultra vires and are liable to be struck down and it to declared that the rules of 1981 are still operative. It is not denied by the learned counsel for the petitioners that the Government has the power to amend the rules and the rules have been accordingly framed in 1986 by the competent authority. The petition relates to the terms and conditions of the petitioners in which the Service Tribunal is the appropriate forum, as there is constitutional bar under Article 212 of the Constitution. The learned counsel has reforred to Petition No.C.P.D‑839 of 1985 which has been admitted. The facts are distinguishable and in that case relince has been placed on P L D 1980 S C 153 and operative part of the judgment reads as under:

"This is a common grievance in the other two petitions and they would also be hit by the same bar. We may here point out that a distinction has to be drawn between a case where the eligibility of an officer as to his fitness to hold a particular post or to be promoted to a higher grade under the Rules applicable to him and the Rules which by themselves alter the method of recruitment and promotion. In the former case, proviso (b) to section 4 of the Service Tribunals Act, 1973, will be applicable and no appeal will lie to the Service Tribunal. However, this will not be so in the latter case as the rules per force alter the method of recruitment and promotion in supersession of the existing Rules which provide a cause of action for the grievance qua the alteration of terms and conditions of service and hence an appeal will lie to the Service Tribunal."

3. In view of the clear observations of the Supreme Court the present potition involves the terms and conditions of service and the same in not competent. The petition is dismissed.

M.Y.H./M‑5/Lb/S

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