PLJ 2012 Lahore 24
[Rawalpindi Bench Rawalpindi]
Present: Ch. Muhammad Tariq, J.
RAJA MUHAMMAD JAVAID--Petitioner
versus
GOVT. OF PUNJAB etc.--Respondents
W.P. No. 2674 of 2010, heard on 10.3.2011.
Constitution of Pakistan, 1973--
----Art. 212--Constitutional petition--Promotion of civil servant--Maintainability--Barred of--Discrimination amended notification--No legal effect--Criteria for promotion--Challenged amended notification/rules--Newly promulgated amended rules--Benefit an aggrieved civil servant and not impair statutory rights of employees--Validity--All actions of public function must be supported by contemporaneous law and any order, instruction or rule without statutory backing would be without lawful authority as citizens except equality before law and rule of consistency would be followed in order to maintain balance and uphold doctrine of equality--Impugned amended notification/rules was violative of fundamental rights guaranteed by Constitution to citizens of Pakistan--Amended notification rules was not sustainable in eyes of law--Petition was accepted. [Pp. 27 & 28] A & B
Sh. Muhammad Suleman, Advocate for Petitioner.
Mr. Rashid Hafeez, Assistant A.G. Punjab for State.
Date of hearing: 10.3.2011.
Judgment
Through the instant writ petition, the petitioner has impugned amended notification/rules dated 18.03.2007 issued by the Government of the Punjab.
2. The cause of action as given in the instant writ petition is that the petitioner has been serving as Deputy Game Warden/Deputy Director Wildlife (BPS-18) since 16.02.1983. During the service, the petitioner also got Postgraduate Diploma in Wildlife Management from Tanzania in the year 1990. Vide Notification No. SOR-III/1-3/2003 dated 25.03.2003, the Governor of the Punjab pleased to make amendments in the Punjab Forestry & Wildlife (Wildlife Executive Service Rules) 1978, whereby criteria for promotion to the post of Director Wildlife & Parks Punjab in BPS-19 was set as "by selection on merits amongst the Deputy Directors, Wildlife with 12 years service in Grade 17 or seven years service in Grade-18". The petitioner fully qualified for promotion but due to non-availability of post, he could not be promoted. Later on, vide Notification No. SOR-III(S&GAD)/1-3/2003, dated 18.03.2007, the Governor of the Punjab made amendments in Punjab Forestry & Wildlife (Wildlife Executive Service Rules), 1978, whereby criteria for promotion to the post of Director Wildlife (BPS-19) has been prescribed as "by selection on merits amongst the Deputy Directors Wildlife with 12 years service in the department in Grade 17 or seven years service in Grade 18, having M.Sc Zoology or equivalent qualification." Hence this writ petition.
3. Learned counsel for the petitioner inter alia, contends that the petitioner and his colleagues have been discriminated by the impugned amended notification/rules dated 18.03.2007 issued by Governor Punjab which is against the spirit of Constitution, therefore, the amended notification/rules dated 18.03.2007 be declared without lawful authority, of no legal effect and be set aside.
4. On the contrary, learned Assistant Advocate General Punjab has vehemently opposed this writ petition on the ground that to grant or withhold promotion of any employee is an exclusive prerogative of the department/authority and no civil servant can claim his promotion as a matter of right. Similarly, Section 21 of Punjab Civil Servants Act, 1974 clarifies that no representation shall lie on matters relating to determination of fitness of persons to hold a particular post or to be promoted to a higher post. Further contends that writ petition is not maintainable on account of bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. Learned Law Officer avers that subject matter of writ petition relates to the terms and conditions of service of civil servants, therefore, the writ petition is liable to be dismissed.
5. I have heard the arguments advanced by learned counsel for the petitioner as well as learned Assistant Advocate General Punjab and have also perused the record to the extent available on file.
6. So far as the objection of learned Assistant Advocate General Punjab to the extent of maintainability of writ petition and bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 is concerned, this Court views that it is not a case where the petitioner has asked for his promotion amongst other employees. Rather, through this petition, the petitioner has challenged the vires of amended notification/rules dated 18.03.2007, therefore, the contention raised by learned Law Officer to the extent of maintainability of the writ petition is misconceived.
7. According to the notification dated 25.03.2003, criteria provided for the post of Director Wildlife & Parks Punjab (BPS-19) was as under:
Minimum qualification for appointment by initial recruitment
Method of Recruitment through promotion etc.
Ph.D in Wildlife or Zoology and 8 years administrative experience in Wildlife Development Research & Conservation;
Or
M.Sc. Wildlife or Zoology (1st Class) and 10 years adminis-trative experience.
By selection on merit from amongst the Deputy Directors Wildlife with 12 years service in the department in Grade-17 or 7 years service in Grade-18.
If no suitable person is available for promotion then by transfer from the cadre of Conservator of Forests possessing the degree of M.Sc. in Forestry and if no suitable person is available for appointment by transfer or by initial recruitment.
A period of three years will be provided to all those Deputy Directors to acquire post graduate qualification.
8. The impugned amended notification/rules dated 18.03.2007 prescribes following criteria for the post of Director Wildlife & Parks (BPS-19):
Minimum Qualification for appointment by initial recruitment
Method of Recruitment through promotion etc.
Ph.D in Wildlife or Zoology and 8 years administrative experience in Wildlife Development Research & Conservation;
Or
M.Sc. Wildlife or Zoology (1st Division) and 10 years admin-istrative experience.
By selection on merit from amongst the Deputy Directors Wildlife with 12 years service in the department in Grade-17 or 7 years service in Grade-18 having M.Sc. Zoology or equivalent qualification;
Or
If none is available for promotion then by transfer of an officer of BPS-19 from S&GAD.
A period of three years will be provided to all those Deputy Directors to acquire post graduate qualification.
9. Perusal of record highlights that the petitioner was appointed on 16.02.1983 and at present, the petitioner has about 28 years service/experience on his credit but the present amendment in the rules will definitely adversely affect the rights of the petitioner and his other colleagues whose promotion will be denied in the light of newly amended rules just to favour less experienced persons. Definitely, there is no substitute of experience. So, newly promulgated amended rules, according to which a candidate for the post of Director will be selected on merit amongst the Deputy Directors having 12 years service in the department in grade 17 or 7 years in Grade 18 having M.Sc. Zoology or equivalent qualification, will create sense of insecurity amongst those who have dedicated their lives in the department. The residual powers conferred on the Governor of the Punjab extend only to passing a just and equitable order which may benefit an aggrieved civil servant and not impair the statutory rights of the employees. All actions of public functionaries must be supported by contemporaneous law and any order, instruction or rule without statutory backing would be without lawful authority as the citizens expect equality before the law and the rule of consistency shall be followed in order to maintain balance and uphold the doctrine of equality.
10. In a nutshell, the impugned amended notification/rules dated 18.03.2007 is violative of fundamental rights guaranteed by the Constitution to the citizens of Pakistan. As such, the impugned amended notification/rules dated 18.03.2007 is not sustainable in the eye of law. Accordingly, I accept the writ petition in hand, strike down the amended notification/rules dated 18.03.2007 and restore earlier notification/rules dated 25.03.2003. Accordingly, the matter of promotion of the petitioner and other employees will be considered and decided in the light of notification/rules dated 25.03.2003.
(R.A.) Petition allowed.
[Rawalpindi Bench Rawalpindi]
Present: Ch. Muhammad Tariq, J.
RAJA MUHAMMAD JAVAID--Petitioner
versus
GOVT. OF PUNJAB etc.--Respondents
W.P. No. 2674 of 2010, heard on 10.3.2011.
Constitution of Pakistan, 1973--
----Art. 212--Constitutional petition--Promotion of civil servant--Maintainability--Barred of--Discrimination amended notification--No legal effect--Criteria for promotion--Challenged amended notification/rules--Newly promulgated amended rules--Benefit an aggrieved civil servant and not impair statutory rights of employees--Validity--All actions of public function must be supported by contemporaneous law and any order, instruction or rule without statutory backing would be without lawful authority as citizens except equality before law and rule of consistency would be followed in order to maintain balance and uphold doctrine of equality--Impugned amended notification/rules was violative of fundamental rights guaranteed by Constitution to citizens of Pakistan--Amended notification rules was not sustainable in eyes of law--Petition was accepted. [Pp. 27 & 28] A & B
Sh. Muhammad Suleman, Advocate for Petitioner.
Mr. Rashid Hafeez, Assistant A.G. Punjab for State.
Date of hearing: 10.3.2011.
Judgment
Through the instant writ petition, the petitioner has impugned amended notification/rules dated 18.03.2007 issued by the Government of the Punjab.
2. The cause of action as given in the instant writ petition is that the petitioner has been serving as Deputy Game Warden/Deputy Director Wildlife (BPS-18) since 16.02.1983. During the service, the petitioner also got Postgraduate Diploma in Wildlife Management from Tanzania in the year 1990. Vide Notification No. SOR-III/1-3/2003 dated 25.03.2003, the Governor of the Punjab pleased to make amendments in the Punjab Forestry & Wildlife (Wildlife Executive Service Rules) 1978, whereby criteria for promotion to the post of Director Wildlife & Parks Punjab in BPS-19 was set as "by selection on merits amongst the Deputy Directors, Wildlife with 12 years service in Grade 17 or seven years service in Grade-18". The petitioner fully qualified for promotion but due to non-availability of post, he could not be promoted. Later on, vide Notification No. SOR-III(S&GAD)/1-3/2003, dated 18.03.2007, the Governor of the Punjab made amendments in Punjab Forestry & Wildlife (Wildlife Executive Service Rules), 1978, whereby criteria for promotion to the post of Director Wildlife (BPS-19) has been prescribed as "by selection on merits amongst the Deputy Directors Wildlife with 12 years service in the department in Grade 17 or seven years service in Grade 18, having M.Sc Zoology or equivalent qualification." Hence this writ petition.
3. Learned counsel for the petitioner inter alia, contends that the petitioner and his colleagues have been discriminated by the impugned amended notification/rules dated 18.03.2007 issued by Governor Punjab which is against the spirit of Constitution, therefore, the amended notification/rules dated 18.03.2007 be declared without lawful authority, of no legal effect and be set aside.
4. On the contrary, learned Assistant Advocate General Punjab has vehemently opposed this writ petition on the ground that to grant or withhold promotion of any employee is an exclusive prerogative of the department/authority and no civil servant can claim his promotion as a matter of right. Similarly, Section 21 of Punjab Civil Servants Act, 1974 clarifies that no representation shall lie on matters relating to determination of fitness of persons to hold a particular post or to be promoted to a higher post. Further contends that writ petition is not maintainable on account of bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. Learned Law Officer avers that subject matter of writ petition relates to the terms and conditions of service of civil servants, therefore, the writ petition is liable to be dismissed.
5. I have heard the arguments advanced by learned counsel for the petitioner as well as learned Assistant Advocate General Punjab and have also perused the record to the extent available on file.
6. So far as the objection of learned Assistant Advocate General Punjab to the extent of maintainability of writ petition and bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 is concerned, this Court views that it is not a case where the petitioner has asked for his promotion amongst other employees. Rather, through this petition, the petitioner has challenged the vires of amended notification/rules dated 18.03.2007, therefore, the contention raised by learned Law Officer to the extent of maintainability of the writ petition is misconceived.
7. According to the notification dated 25.03.2003, criteria provided for the post of Director Wildlife & Parks Punjab (BPS-19) was as under:
Minimum qualification for appointment by initial recruitment
Method of Recruitment through promotion etc.
Ph.D in Wildlife or Zoology and 8 years administrative experience in Wildlife Development Research & Conservation;
Or
M.Sc. Wildlife or Zoology (1st Class) and 10 years adminis-trative experience.
By selection on merit from amongst the Deputy Directors Wildlife with 12 years service in the department in Grade-17 or 7 years service in Grade-18.
If no suitable person is available for promotion then by transfer from the cadre of Conservator of Forests possessing the degree of M.Sc. in Forestry and if no suitable person is available for appointment by transfer or by initial recruitment.
A period of three years will be provided to all those Deputy Directors to acquire post graduate qualification.
8. The impugned amended notification/rules dated 18.03.2007 prescribes following criteria for the post of Director Wildlife & Parks (BPS-19):
Minimum Qualification for appointment by initial recruitment
Method of Recruitment through promotion etc.
Ph.D in Wildlife or Zoology and 8 years administrative experience in Wildlife Development Research & Conservation;
Or
M.Sc. Wildlife or Zoology (1st Division) and 10 years admin-istrative experience.
By selection on merit from amongst the Deputy Directors Wildlife with 12 years service in the department in Grade-17 or 7 years service in Grade-18 having M.Sc. Zoology or equivalent qualification;
Or
If none is available for promotion then by transfer of an officer of BPS-19 from S&GAD.
A period of three years will be provided to all those Deputy Directors to acquire post graduate qualification.
9. Perusal of record highlights that the petitioner was appointed on 16.02.1983 and at present, the petitioner has about 28 years service/experience on his credit but the present amendment in the rules will definitely adversely affect the rights of the petitioner and his other colleagues whose promotion will be denied in the light of newly amended rules just to favour less experienced persons. Definitely, there is no substitute of experience. So, newly promulgated amended rules, according to which a candidate for the post of Director will be selected on merit amongst the Deputy Directors having 12 years service in the department in grade 17 or 7 years in Grade 18 having M.Sc. Zoology or equivalent qualification, will create sense of insecurity amongst those who have dedicated their lives in the department. The residual powers conferred on the Governor of the Punjab extend only to passing a just and equitable order which may benefit an aggrieved civil servant and not impair the statutory rights of the employees. All actions of public functionaries must be supported by contemporaneous law and any order, instruction or rule without statutory backing would be without lawful authority as the citizens expect equality before the law and the rule of consistency shall be followed in order to maintain balance and uphold the doctrine of equality.
10. In a nutshell, the impugned amended notification/rules dated 18.03.2007 is violative of fundamental rights guaranteed by the Constitution to the citizens of Pakistan. As such, the impugned amended notification/rules dated 18.03.2007 is not sustainable in the eye of law. Accordingly, I accept the writ petition in hand, strike down the amended notification/rules dated 18.03.2007 and restore earlier notification/rules dated 25.03.2003. Accordingly, the matter of promotion of the petitioner and other employees will be considered and decided in the light of notification/rules dated 25.03.2003.
(R.A.) Petition allowed.
What is rule of consistency?
ReplyDelete