2012 P L C (C.S.) 1166

 

[Lahore High Court]

 

Before Ch. Muhammad Tariq, J

 

Raja MUHAMMAD JAVAID

 

Versus

 

GOVERNMENT OF PUNJAB and others

 

Writ Petition No.2674 of 2010, heard on 10th March, 2011.

 

Punjab Forestary and Wildlife (Executive Service) Rules, 1978—

 

—-Punjab Civil Servants Act (VIII of 1974), Ss.8 & 21—Constitution of  Pakistan,  Arts.199  &  212—Constitutional  petition—Maintainability—Promotion—Amendment in notification—Petitioner had been serving as Deputy Game Warden/Deputy Director Wildlife (BPS-18) since 1983 and during his service, he also got Postgraduate Diploma in Wildlife Management from abroad in the year 1990—Criteria for promotion to the post of Director Wildlife and Parks Punjab in BS-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” under Punjab Forestry and Wildlife (Executive Service Rules) 1978—Petitioner was fully qualified for promotion, but on account of non-availability of post, he could not be promoted—Later on in the year 2007, amendments were made in the said Rules, whereby criteria for promotion to the post of Director Wildlife (BS-19) had 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”—Petitioner had challenged said notification—Petitioner had not asked for his promotion among other employees but petitioner had  challenged  the  vires  of  amended  notification/Rules  issued  in 2007—Objection raised by with regard to maintainability of Constitutional petition was misconceived—Petitioner had about 28 years service/experience on his credit and impugned amendment in the Rules would adversely affect the rights of the petitioner and his other colleagues whose promotion would be denied in the light of newly amended Rules just to favour less experienced persons, there was no substitution of experience—Newly amended Rules prescribing qualification of M.Sc. Zoology or equivalent qualification would create sense of insecurity among those who had dedicated their lives in the department—Impugned amended notification/Rules was violative of fundamental rights guaranteed by Constitution— Amended notification/Rules, was struck down and earlier notification, was restored and matter of promotion of the petitioner and other employees would be considered and decided in the light of earlier notification/Rules.

 

Sh. Muhammad Suleman for Petitioner.

 

Rashid Hafeez, Asstt. A.-G., Punjab for Respondent.

 

Date of hearing: 10th March, 2011.

 

JUDGMENT

           

  1. MUHAMMAD TARIQ, J.—Through the instant writ petition, the petitioner has impugned amended notification/rules dated 18-3-2007 issued by the Government of the Punjab.

 

  1. 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 16-2-1983. 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 25-3-2003, the Governor of the Punjab pleased to make amendments in the Punjab Forestry and Wildlife (Wildlife) Executive Service Rules), 1978, whereby criteria for promotion to the post of Director Wildlife and Parks Punjab in BS-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 18-3-2007, the Governor of the Punjab made amendments in Punjab Forestry and Wildlife (Wildlife Executive Service Rules), 1978, whereby criteria for promotion to the post of Director Wildlife (BS-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.

 

  1. Learned counsel for the petitioner inter alia contends that the petitioner and his colleagues have been discriminated by the impugned amended notification/rules dated 18-3-2007 issued by Governor Punjab which is against the spirit of Constitution, therefore, the amended notification/rules dated 18-3-2007 be declared without lawful authority, of no legal effect and be set aside.

 

  1. 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 conditons of service of civil servants, therefore, the writ petition is liable to be dismissed.

 

  1. 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.

 

  1. 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 18-3-2007, therefore, the contention raised by learned Law Officer to the extent of maintainability of the writ petition is misconceived,

 

  1. According to the notification dated 25-3-2003, criteria provided for the post of Director Wildlife and Parks Punjab (BS-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 and Conservation; Or M.Sc. Wildlife or Zoology (1st Class) and 10 years administrative , 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.

 

  1. The impugned amended notification/rules dated 18-3-2007 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 and Conservation; Or M.Sc. Wildlife or Zoology (1st Division) and 10 years administrative, 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 BS-19 from S&GAD. A period of three years will be provided to all those Deputy Directors to acquire post-graduate qualification.

 

  1. Perusal  of  record  highlights  that  the  petitioner  was appointed  on  16-2-1983  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.

 

  1. In a nutshell, the impugned amended notification/rules dated  18-3-2007 is violative of fundamental rights guaranteed by the Constitution to the citizens of Pakistan. As such, the impugned amended notification/rules dated 18-3-2007 is not sustainable in the eye of law. Accordingly, I accept the writ petition in hand, strike down the amended notification/rules dated 18-3-2007 and restore earlier notification/rules dated 25-3-2003. Accordingly, the matter of promotion of the petitioner and other employees will be considered and decided in the light of notification/rules dated 25-3-2003.

 

H.B.T./M-139/L                                                                                  Petition accepted.