Abdul Sattar Vs Govt. of KP through CS etc

Judgment Sheet

PESHAWAR HIGH COURT, PESHAWAR

(Judicial Department)

WP 5104-P/2025

Abdul Sattar Versus Govt of KP, through the Chief Secretary and 4 others

JUDGMENT

Date of hearing 18.9.2025 Petitioners by M/s. Naveed Akhtar, Barrister Asif Saeed, ArifFirdous, Ehtesham-ud-Din, and Abdul Sattar,Advocates Respondents by Mr. Bilal Khan, AAG, alongwith M/s. Faheemullah Khan, Senior Law Officer, Hamid Saleem, Law Officer, and Shahid Iqbal, Superintendent (Litigation), KPPSC.

IJAZ ANWAR, J.-The instant and the connected WP5705-P/2025 “AftabAlam vs. Government of KP through Chief Secretary and 3 others”, WP 5548-P/2025 “Irfanullahand 5 others vs. KPPublic Service Commission through Chairman and 2 others” and WP 5169-P/2025 “Rida Rahman and 11 others vs. Govt of KP through Chief Secretary and 3 others”involve a common question of law & facts; therefore, we would like to decide all these writ petitions through this single judgment.

2.In all these writ petitions, the petitioners have prayed that the notification dated 02.7.2025 of the

respondent commission be declared illegal, unlawful, and ultra vires the Constitution; the amendment even if sustain be declared not applicable to them and other candidates competing under the advertisement dated 03.02.2025; declared them passed based on their marks obtained in the screening test as per the 40% threshold, which was prevalent at the time of advertisement, and to allow them to sit in the upcoming PM exams pursuant to the said advertisement.

3.Perusal of the record reveals that the respondent commission has advertised vacant positions of Provincial Management Service Officer (BPS-17) and Assistant Excise & Taxation Officer (BPS-17) through Advertisement No.02/2025 on 03.02.2025, wherein the last date for submission of online applications was mentioned as 20.02.2025.

4.It is the case of the petitioners that at the time when they submittedapplications for appearance in the competitive examination, the minimum threshold for screening test was 40% in terms of the Khyber Pakhtunkhwa Public Service Commission (Function) Rules,1983; however, the said criteria wasamended vide impugned notification dated 02.7.2025 and the passing

threshold was enhanced from 40% to 50%. In support of their contentions, learned counsel for the petitioners relied upon different judgments of the superior Courts and contended that the amendment shall be having no retrospective effect. Besides, it was also contended that after applying to the public service commission for appearance in the competitive examination, they have legitimate expectation to qualify and the applicability of the old rules, and as such, the subsequent change deprived themoftheir vested right. Reliance has been placed on the following judgments;

1.Water and Power Development Authority vs. IrtiqaRasool Hashmi and another [1987 SCMR

2.Imtiaz Ahmad and others vs. Punjab Public Service Commission through Secretary, Lahore and others [PLD 2006 SC 472],

3.UzmaManzoor and others vs. Vice Chancellor Khushal Khan Khattak University, Karak and others[2022 SCMR 694],

4.Fazal-e-Rabbi Khan vs. Azad Government of the State of Jammu and Kashmir through Chief Secretary and 4 others [2013 PLC (C.S) 357], 5. NADRA through Chairman, Islamabad and others vs. Jawad Khan and 2 others [2023 SCMR 1381], 6. Controller General of Accounts, Govt of Pakistan, Islamabad, and others vs. Abdul Waheed and others [2023 SCMR 111],

7.Dr. Syed Ansar Hussain Shah Naqvi vs. Khyber Pakhtunkhwa Public Service Commission through Secretary and 4 others [2014 PLC (C.S) 879], and 8. AdeelBaig vs. Govt of Khyber Pakhtunkhwa & others [WP 1134-A/2019]

5.Learned AAG, however, argued that well before appearance in the screening test, the rules had been amended and that the petitioners were bound under the law to be dealt with in accordance with the amended rules.

6.The question before this Court is as to whether the rules/criteria for the shortlisting of the candidates can be amended when once the vacant positions are advertised under the old criteria. Rule 6 of the KP Public Service Commission (Function) Rules, 1983 provides for the conduct of screening test. It being relevant is reproduced as under;

“6. Screening test.---(1) The Commission may decrease the number of candidates, on the basis of their academic record or by holding screening test in the relevant field or general knowledge, if it considers that calling all the eligible candidates for the viva voce would entail, on account of disproportionately excessive number of candidates as compared to the vacancies available or occurs an inordinate delay in concluding the process or would otherwise be counter-productive:

Provided that for short-listing of candidates for Provincial Management Service Competitive Examination, other than examination for Provincial Management Service (In-service), the Commission shall hold screening test, as

specified in the APPENDIX, appended to these rules:

Provided further that in case of syllabus based examination, other than Provincial Management Service Competitive Examination, the Commission may hold screening test, based on syllabus of compulsory subjects or papers of the post for decreasing the number of candidates for written examination.”

The appendix notified under Rule 6 provides for the syllabus of the subjects, which are included in the screening test, and also the ratio of questions and their marks.Admittedly, at the time of advertisement, the minimum passing threshold was mentioned as 40%, however, vide impugned notification dated 02.7.2025, the minimum threshold was enhanced to 50%. It is pertinent to mention here that the schedule for thescreening test was issued on 03.7.2025 immediately after the said amendment. Similarly, the date of screening test was mentioned as 16.7.2025; thus, it was sufficient notice tothe candidates to have prepared themselves for the test,because it was in their knowledge that theminimum threshold has now been enhanced to 50%. The petitioners have never questioned the competency of the Government to make amendments, nor have they questioned the vires of the amendment issued on 02.7.2025 on any legal footing except its timings and its applicability with

retrospective effect. Recently, the august Apex Court in the case of“Govt of KP through Chief Secretary, Peshawar and others vs. Zahoor Ahmad Khalil and another [2021 SCMR 816] held that;

“11. We have also gone through the judgment of this Court in the case of Government of Khyber Pakhtunkhwa (ibid) cited by the learned Additional Advocate General, Khyber Pakhtunkhwa and find that the same directly deals with the question of appointment/promotion against the posts of PMS. It has clearly and categorically been held by this Court in the said judgment that determination of eligibility criteria, etc. is essentially an administrative matter falling within the exclusive domain and policy decision making of the Government (as in this case) and interference with such matters by the Courts is not warranted. In this context, it has been held as follows:

"It is a settled proposition of law that the Government is entitled to make rules in the interest of expediency of service and to remove anomalies in Service Rules. It is the Service Rules Committee which has to determine the eligibility criteria of promotion and it is essentially are administrative matter falling within the exclusive domain and policy decision making of the Government and the interference with such matters by the Courts is not warranted and that no vested right of at Government employee

is involved in the matter of promotion or the rules determining their eligibility or fitness, and the High Court has no jurisdiction by means of writ to strike it down."

Further, in the case of Central Board of Revenue, Government of Pakistan v. Asad Ahmed Khan (PLD 1960 SC 81), it was held as follows:

"In the circumstances, it cannot be said that any rights of the petitioners were infringed, which they could enforce by it writ petition. The Government has every right to make rules to raise the efficiency of the services, and if no vested right is denied to a party, the High Court had no jurisdiction to interfere by means of a writ."

Reliance in the above judgment was placed by the august Apex Court on the case of “Govt of Khyber Pakhtunkhwa through Chief Secretary, Peshawar and others vs. Hayat Hussain and others [2016 SCMR 2021].

Similarly, in the case of “MumtazAhmad Bohio and 24 others vs. Federal Public Service Commission throughChairman at Islamabad and another [2002 SCMR 772], the august Apex Court held that;

Competency of Public Service Commission to change the Rules in public interest could not be challenged---Public Service Commission could make any alteration in the recruitment policy before finalization of the appointments---Where

rules were changed/altered, then the latter rules would supersede the former---Vested rights originate from contracts, statutes and by operation of law, but none of such condition was attracted to petitioners’case---Rules of 2000 could not be invoked for examination to be held in year 2001, when the rules of latter year were available.”

7.It is by now well settled and consistent view of the superior Courts that it is the exclusive domain of the competent authority/government to make rules for raising the efficiency of the employees in particular and in the service in general. Reference can be made to the case of “Federal Public Service Commission through Chairman, Islamabad and another vs. Shiraz Manzoor and others [2023 SCMR 2087], Dr. Zulfiqar Ahmed Malik vs.

Federation of Pakistan through Secretary Revenue Division, Chairman FBR Islamabad and others [2019 SCMR 1973]. The intention behind the amendment so introduced is for the betterment of service and is mainly aimedat having brilliant candidates shortlisted for their further appearance in the competitive examination. No malafide or ill-will can be attributed to the Government in the instant matter.

8.There is yet another aspect of the case, as stated, the petitioners were having prior notice about the amendment in the minimum threshold much before the

conduct of the written test, therefore, after their appearance and failure to get 50% passing marks in the test, their petition on such score alone amounts to waiver and acceptance on their part of the amended rules, as such, their such objection at this stage is hit by the principle of waiver.

9.For the reasons stated above, we find no merit in the instant and the connected writ petitions.

Accordingly, all these petitionsare dismissed.

Announced:

Senior Puisne Judge

Judge

*Nazir* (DB) Hon’ble Mr. JusticeIjaz Anwar, J Hon’ble Mr. Justice Wiqar Ahmad, J