Hayat Ullah VS Chief Secretry

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

PESHAWAR.

JUDICIAL DEPARTMENT

Writ Petition No. 2403-P of 2013.

JUDGMENT

Date of hearing. 08.09.2015.

Petitioner(s) by Mr. Hayatullah Khan, advocate.

Respondent(s) by Mr. Waqar Ahmad Khan, AAG.

WAQAR AHMAD SETH, J: - Hayatullah Khan, petitioner has approached to this court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, with the following prayers:- “It is therefore, humbly prayed that on acceptance of instant writ petition, the acts of the respondents by recalling the selection / appointment of the petitioner and re-advertisement of the post may kindly be declared illegal, void, without lawful authority and based on malafide and be directed for immediately issuing appointment notification of the petitioner”.

2.Facts, in brief relevant for the disposal of this writ petition are that, respondents through

advertisement published in daily “Mashriq” invited application for the post legal consultant, wherein petitioner being eligible candidate also applied.

Petitioner was called for interview alongwith other candidates in which he appeared. It is averred in the petition that petitioner was again called for interview before Selection Committee and after some time he received telephonic call from official namely Ayub and informed to appear before respondent No.5 (herein). It is further averred that respondent No.5 told him that minutes have already been approved and soon notification would be issued. That the petitioner gets the knowledge that respondent No.3 is not pleased from the said appointment and wants to appoint another with allegedly less marks than the petitioner due to which the advertisement was recalled and the posts were re- advertised. Feeling aggrieved and having no other adequate remedy petitioner preferred the instant writ petition, which was decided by this court on 17.12.2013 in the following manner:-

“During the course of hearing, it came to surface that the respondents without completing the entire process of selection and without taking it to a logical end, re-advertised the posts of legal

consultant, and the learned Additional Advocate General alongwith representative present in court was also unable to show any valid reasons in black and white in this regard. The learned AAG submitted that no suitable candidate was available, so the post was re-advertised but it appears that the one for whom the post was created did not qualify the merits, so it was re-advertised because the record available on the file would reveals that all the candidate were interviewed by the selection committee and there was no such recommendation by the said committee. Therefore, we without touching the merits of the case, lest it may prejudice the case of either party, set aside the re- advertisement and direct the respondents to first complete the entire process of selection in accordance with law / rules from advertisement, earlier made, and thereafter appoint suitable candidate there from by observing all the codal formalities. The entire process should be transparent and be completed as early as possible, but not later than one month”.

3.Respondents not satisfied from the judgment ibid, went to August Supreme Court, and filed civil

appeal No.1127 of 2014 which was allowed in the following manner:-

“We find that the impugned judgment of the learned High Court is sketchy and reflects non application of proper judicial mind to the facts and circumstances of the case and the points of law involved. The learned High Court has not even considered whether a vested right was created in favour of the respondent which was enforceable in terms of Articles 199 of the Constitution of Islamic Republic of Pakistan, 1973, particularly in the situation when only the interview etc. had been held, yet neither the merits list was published nor any letter of appointment had been issued to the respondent.

In light of the above, this appeal is allowed, the impugned judgment is set aside and the matter is remanded to the learned high Court for decision afresh”.

4.Arguments heard and available record perused.

5.Petitioner has called in question the fresh call letter, which has been issued under the new advertisement, an amended one. In the fresh advertisement in addition to experience mentioned in earlier advertisement, experience of Supreme Court practice has also been included and as petitioner has not having the same experience, therefore, he has challenged the fresh advertisement.

6.In the previous advertisement under which petitioner was interviewed and claiming his right, is minutely perused, there also the employment/job description column (i) requires “Representing, filing and defending all cases such as service appeals, civil cases, writ petition, Suo moto cases etc file before the Supreme Court of Pakistan” has been specified.

Whereas, in the column of experience fifteen years service as judge or fifteen year bar experience with at least seven year practice at High Court was required. If the consultant, so appointed is not having the experience or license of Supreme Court, he would not be able to present the department before the Supreme Court as per job description, therefore, it is held that the earlier advertisement was defective or deficient.

7.Sensing the situation, probably the competent authority issued amended advertisement, requiring therein by way of enhancing the experience to that of Supreme Court which seems to be legal, justified and appropriate. It is an admitted fact that earlier short listing was made and petitioner was called for interview but no result was declared, nor petitioner recommended, hence, no right, whatsoever, could be claimed.

8.The question to be determined is that whether the departmental authority / competent authority of the department can change and amend the appointment / promotion policy or not. We have given our anxious considerations while considering the nature of job of the legal consultant (fulltime), according to which he is supposed to conduct the cases before the apex court of the country and while having no license or experience, he would be incapable of doing so, then the basic purpose of appointment of legal consultant by the department would be a futile exercise, rather a burden on the institution. The apparent mistake, flaw in the advertisement has been rectified by amending the subsequent advertisement and requirement of Supreme Court license and practice has been introduced by the competent authority in accordance with the job description. Even otherwise, it is the right and prerogative of the Government / department to enhance, include or change the recruitment rules, as per their need and requirement. No one could claim vested right against the same. In this respect reliance is placed on 2006 SCMR 1427, wherein it was held that:- “---S. 8---Notification S.O.R.III-I-13/85, dated 30.07.1992---Promotion--- Eligibility---Teaching experience a substitution of qualification---Change in

promotion policy---Grievance of civil servants was that before amendment in rules, they were processing required qualification and experience for promotion but process of promotion was delayed and rules were amended---Plea raised by civil servants was that they could be deemed to be qualified for promotion on the basis of their teaching experience---Validity---Government was always empowered to change promotion policy and domain of Government to prescribe qualification for a particular post through amendment in relevant rules was not challengeable---Notwithstanding fulfillment of required qualification and other conditions contained in rules, promotion could not be claimed as a vested right---Teaching experience in the relevant filed without basic qualification, would not be sufficient to declare the civil servants eligible to hold the post in question under the rules---Without fulfillment of the requirement of the qualification prescribed under rules for the post in question civil servants could not claim promotion on the basis of their experience as of right---Unless qualification held by civil servants was declared equivalent qualification for promotion, the civil servants could not, merely on the basis of their experience in the relevant subjects, claim promotion--- appeal was dismissed.

Likewise, in the case of Muhammad Siddique Vs Ministry of Education and others, reported in PLD 1996 SC 197, it has been held that:- ---Art.212(3)---Selection Grade---Civil servants entitlement to be placed in

Selection Grade (B-15)---Finance Division O.M. No.F1/(2)/R.1/91-762 dated l18-7- 1991,whereby one third of total strength of Physical Training Instructors who were holding qualification of B.A/BSc 2nd Division plus prescribed professional qualification were entitled to be placed in Selection Grade-(B-15)---Civil servant who lacked said educational qualification of B.A/BSc 2nd division was not covered by office Memorandum of Finance Division---Service Tribunal found that appeal of civil servant for entitlement of selection grade was incompetent and not maintainable---Validity---Finance Division or any Department or Division of Government was not debarred from prescribing and/or revising educational or professional qualification for enhancement of efficiency in service of cadre---Government has the right to enhance qualification and standards for recruitment and promotion in order to maintain efficiency in service---Nobody could claim any vested right in such policy of Government---Civil servant was not found eligible to selection grade--- Leave to appeal was refused in circumstances.

Similarly, in the case of Government of NWFP, Health & Social Welfare Department Vs Dr. Sheikh Muzaffar Iqbal & others, reported in 1990 SCMR 1321, it was held that:-

(f)”---Promotion---Vested right---No one can claim a vested right in promotion or in the terms and conditions for promotion to a higher post---Government has the right to enhance the qualification and the

standards for recruitment and promotion in order to maintain efficiency in service-- -Except for the post which a civil servant happens to hold, he cannot claim vested right in other higher tiers in the hierarchy”.

9.Since it’s the right and prerogative of the employer to chance / enhance the qualifications and standards for recruitment or promotion in order to maintain efficiency in service, therefore, petitioner has no locus standi, to call in question the requirement of Supreme Court license and experience for the post of legal consultant / advisor in the respondent’s establishment.

10.In view of what has been discussed above, this writ petition being devoid of any merits is hereby dismissed.

Announced.

JUDGE

JUDGE