IN THE SUPREME COURT OF PAKISTAN 
(APPELLATE JURISDICTION)  
 
 
PRESENT: 
MR. JUSTICE TASSADUQ HUSSAIN JILLANI  
MR. JUSTICE MIAN SAQIB NISAR 
MR. JUSTICE SARMAD JALAL OSMANY 
 
CIVIL APPEAL NOs. 269 TO 275, 1047 & 1048 OF 2011  
AND CIVIL PETITION NO. 657 OF 2012 
(On appeal from the consolidated judgment of the Peshawar High 
Court dated 28.10.2010 passed in WP Nos. 327, 328 & 525 of 2008 & 
2745/2010 and consolidated judgment dated 29.6.2011 passed in WP 
No. 569 of 2011 and WP No. 3975 of 2010 and order dated 28.2.2012 
passed in WP No. 184/2010). 
 
 
Zarai Taraqiati Bank Limited etc 
 
 
(In all cases) 
… Appellants/Petitioner 
VERSUS 
Said Rehman & others  
 
 
 
(In CA 269/2011) 
Ali Haider etc 
 
 
 
 
 
(In CA 270/2011) 
Fazli Subhan and others 
 
 
 
(In CA 271/2011) 
Ali Muhammad and others 
 
 
 
(In CA 272/2011) 
Muhammad Afsar Khan and others  
 
(In CA 273/2011) 
Muhammad Tariq Hussain etc  
 
 
(In CA 274/2011) 
Hidayat ur Rehman etc  
 
 
 
(In CA 275/2011) 
Hanifullah Khan etc 
 
 
 
 
(In CA 1047/2011) 
Muhammad Saleem Khan etc  
 
 
(In CA 1048/2011) 
Syed Muhammad Zahir Shah and others  
(In CP 657/2012) 
… Respondents 
 
For the Appellants: 
 
Mian Gul Hassan Aurangzeb, ASC 
 
 
 
 
 
Mian Muhammad Hanif, ASC 
 
 
 
 
 
Mr. Muhammad Munir Peracha, ASc 
 
 
 
 
 
Mr. M. S. Khattak, AOR 
 
 
 
 
 
Mr. Hamid Ahmed, Advocate  
 
 
 
 
 
Mr. Rashid Sultan, Advocate 
 
 
 
 
 
(In all cases) 
 
For the Respondents 
Mr. Abdur Rahim Bhatti, ASC 
 
(In CAs 269 to 275/2011)  
 
For the Respondents: 
Mr. Shakeel Ahmed, ASC 
 
(In CP 657/2012) 
 
 
 
 
Dates of Hearing:  
 
5/6/7/13/19/21/22.11.2012 
 
Date of Announcement:  
15.2.2013 
 
 
 
 
Civil Appeals No. 269 to 275 of 2011 etc 
2 
JUDGMENT 
 
 
TASSADUQ HUSSAIN JILLANI, J.-  Facts giving 
rise to these appeals briefly stated are that respondents were at the 
relevant time serving as Vice Presidents (C.A. No. 275 of 2011) and 
Assistant Vice Presidents in the appellant Bank (in all the 
remaining appeals and Civil Petition No. 657 of 2012). They were 
aggrieved of the recommendations made by the Departmental 
Promotion Committee in its meeting held in October 2007 vide 
which they were not recommended for promotion to the next grade. 
Those orders were challenged in Constitution petitions on the 
ground that the respondents had secured the requisite qualifying 
marks for their promotion from Vice President to Senior Vice 
President/Directors; that they had illustrious careers; that no 
cogent reason had been given by the said Departmental Promotion 
Committee for ignoring them; that the procedure adopted by the 
Departmental Promotion Committee had no sanction in law or the 
rules inasmuch as there was no provision of interview and for 
allocation of 25% marks for the interview. The Constitutional 
petitions have been allowed by the learned Division Bench of the 
Peshawar High Court vide the impugned judgment on the ground 
that the procedure provided in the Zarai Taraqiati Bank Limited 
Staff Regulations, 2005 (hereinafter referred to as the Staff 
Regulations, 2005) could not have been adopted to consider the 
respondents’ promotion; that in view of Section 6 of the 
Agricultural Development Bank of Pakistan (Reorganization and 
Conversion) Ordinance, 2002 (hereinafter referred to as the 
Ordinance, 2002), the respondents are to be governed by the same 
Civil Appeals No. 269 to 275 of 2011 etc 
3 
Rules and Regulations which were applicable to them prior to the 
promulgation of the afore-referred Ordinance. The appellant Bank 
was directed to send their cases of next step promotion back to the 
Departmental Promotion Committee for consideration afresh in the 
light of the observations made in the impugned judgment.  
2. 
Leave was granted by this Court in terms of order 
dated 30.3.2011 which reads as follows:- 
“In the petitions the points which have been 
raised for consideration of this Court are, (i) that 
the petitioner bank is a limited company and 
against which the writ cannot be issued, and (ii) 
that after the reorganization of Zarai Taraqiati 
Bank 
Limited 
it 
is 
not 
certain 
that 
the 
respondents would be governed by the old rules 
and regulations on the strength of Section 6 of 
Agricultural Development Bank of Pakistan (Re-
organization and Conversion) Ordinance, 2002, 
or by the rules and policy so framed by the 
petitioner/bank. 
 
Learned 
counsel 
for 
the 
respondents 
has 
controverted the aforesaid points. However, in 
order to consider, inter alia, the aforesaid points, 
leave to appeal is granted. CMAs are allowed 
and the operation of the impugned judgment is 
suspended.”  
 
 
3. 
Learned counsel for the appellants submitted that the 
learned High Court has fell in error in not appreciating that in 
terms of Ordinance 2002, the appellant-bank had become a public 
limited company; that the employees of this company are governed 
by non-statutory regulations so far as the issues of promotion are 
concerned; that the relationship of the appellant with the 
respondents is governed by the principle of master and servant 
and in view of the law laid down by this Court in Muhammad 
Mubeen-us-Salam v. Federation of Pakistan (PLD 2006 SC 602) 
Civil Appeals No. 269 to 275 of 2011 etc 
4 
and Muhammad Idrees v. Agricultural Development Bank of 
Pakistan (PLD 2007 SC 681), the learned High Court had no 
jurisdiction to entertain the petitions. He added that after the 
promulgation of the afore-referred Ordinance, the respondents are 
to be governed by Staff Regulations 2005 which is in accord with 
Section 9 of the Ordinance 2002 and sections 6 and 10 of the said 
Ordinance could not override the former provision; that they were 
disentitled to any discretionary relief on account of their conduct 
as having availed the benefits of Staff Regulations 2005 and having 
appeared in the interview they could not have taken a somersault 
claim to be reconsidered under the old Staff Regulations of 1961. 
4. 
Tracing the history of the development of law relating 
to Agricultural Development Bank (which now is Zarai Tarqiati 
Bank) from the Agricultural Development Bank Ordinance 1961 to 
the current law i.e. the Agricultural Development Bank of Pakistan 
(Reorganization and Conversion) Ordinance, 2002, learned counsel 
submitted that prior to the former Ordinance, two institutions 
existed 
to 
provide 
financial 
and 
credit 
facilities 
to 
the 
agriculturalists: (i) Agricultural Development Finance Corporation 
(established through the Agricultural Development Finance 
Corporation Act 1952 Act XVII of 1952) and (ii) Agricultural Bank 
of Pakistan (established under Act XXIII of 1956). Section 43 of Act 
XV of 1952 provided that the Board of the Corporation, with 
previous sanction of the Central Government, may make 
regulations not inconsistent with the Act to provide for all matters 
necessary or expedient for the purpose of giving effect to the 
provisions of the Act. Section 39 of Act XXIII carried a similar 
Civil Appeals No. 269 to 275 of 2011 etc 
5 
provision of the power of the Board to make regulations not 
inconsistent with the Act with prior approval of the Central 
Government. Both these Acts were repealed with the promulgation 
of Agricultural Development Bank Ordinance 1961 (Ordinance IV 
of 1961) in terms of its Section 41. Section 39 of this Ordinance 
pertained to the power of the Board to make regulations not 
inconsistent with the Ordinance for the purpose of giving effect to 
the provisions of this Ordinance and spelt out matters inter alia on 
which the regulations could be framed. The provision of prior 
approval of the Central/Federal Government contained in Act XVII 
of 1952 and Act XXIII of 1956 was done away with. The said 
provision reads as under:- 
“39. Regulations. ----(1) The Board may make 
regulations not inconsistent with this Ordinance 
or the rules to provide for all matters for which 
provision is necessary or expedient for the 
purpose of giving effect to the provisions of this 
Ordinance and the efficient conduct of the affairs 
of the Bank. 
 
(2) 
….. 
(a) 
…… 
(b) 
…… 
(c) 
…… 
(d) 
…… 
(e) 
the recruitment of the employees of the 
Bank, the terms and conditions of their 
service, the constitution and management 
of Provident Funds for the employees of the 
Bank and all other matters connected with 
any of these things; 
 
(f) 
the duties and conduct of employees and 
agents; 
(g) 
…… 
Civil Appeals No. 269 to 275 of 2011 etc 
6 
(h) 
……” 
 
5. 
Agricultural Development Bank Ordinance, 1961 was 
gazetted on 11.2.1961 and the Regulations were drafted 
immediately thereafter when the Board had yet to be constituted. 
Those Regulations in absence of the Board were sent to the 
Government for approval and after Government's approval those 
were brought into force. It was on 3/4 May, 1961 that those were 
placed before the Board of Directors and approved. The approval 
by the Government did not make it statutory as requirement of 
approval by the Government stood dispensed with in terms of 
Section 39 of the Ordinance, 1961; that the Agricultural 
Development Bank Ordinance 1961 (IV of 1961) was, however, 
amended through Act XII of 1973 and thereby eight Sections of the 
said Ordinance including Section 39 were amended (relatable to 
regulations). A proviso was added to Section 39(2) and the 
requirement of prior approval of the Federal Government for 
making regulations was reinserted. The said proviso reads as 
follows:- 
“Provided that no regulation made with respect to 
the matters mentioned in clauses (e) and (f) shall 
take effect until it has been approved by the 
Federal Government”. 
 
 
6. 
The 
effect 
of 
the 
afore-mentioned 
amendment, 
according to learned counsel, would be prospective and all 
regulations framed after 1973 would be statutory as requirement of 
approval by the Federal Government was made a condition 
precedent. In support of this submission, he relied on a judgment 
Civil Appeals No. 269 to 275 of 2011 etc 
7 
of this Court in Anwar Hussain v. Agricultural Development Bank 
of Pakistan (1992 SCMR 1112). 
7. 
Elaborating his submission, learned counsel added 
that the Agricultural Development Bank of Pakistan Officers 
Service (Efficiency & Discipline) Regulation, 1975 were statutory as 
those were duly approved by the Federal Government.  
 
 
But in the appeals in hand, he maintained, the issues 
raised are relatable to promotions whereas the Officers Service 
(Efficiency & Discipline) Staff Regulations 1975 which are 
statutory, cater to disciplinary matters. The regulations governing 
issues of promotion or the Agricultural Development Bank Staff 
Regulations, 1961 were neither approved by the Federal 
Government nor it was so required prior to the amendment by Act 
XII of 1973.  
8. 
The Agricultural Development Bank Ordinance, 1961 
was however repealed with the promulgation of the Agricultural 
Development Bank of Pakistan (Reorganization and Conversion) 
Ordinance, 2002. The Bank was converted into a corporation, all 
the employees were transferred and became the employees of the 
company and it was provided under the Ordinance that these 
employees shall be governed and subject to same rules and 
regulations as were applicable to them before the effective date.  
9. 
A close reading of Section 6 of the Ordinance, 2002, 
according to learned counsel, would indicate that the legislative 
intent was that the employees of the Bank who stood transferred to 
the newly created / converted company were to be governed by the 
Civil Appeals No. 269 to 275 of 2011 etc 
8 
same rules as existed prior to promulgation of new Ordinance and 
that would mean that so far as the matters pertaining to efficiency 
and discipline are concerned, the employees would be governed by 
the Agricultural Development Bank Staff Regulations of 1975 
which are statutory. However, the subject of promotions (contained 
in paragraph 17 of the Staff Regulations, 1961) has not been 
approved by the Federal Government after the Regulations, 1961 
were made by the Board. Therefore, the subject of promotions 
continues to be non-statutory in nature. He added that after 
promulgation of the Agriculture Development Bank of Pakistan 
(Amendment) Act, 1973, no Regulations on the subject of 
promotions have been made except the Promotion Policy, 1999, 
which has never been approved by the Federal Government and, 
therefore, non-statutory.     
10. 
He contended that though Promotion Policy is 
admittedly non-statutory but assuming without admitting or 
conceding that regulations pertaining to promotions were statutory 
in 
nature, 
the 
writ 
petitions 
would 
nonetheless 
be 
not 
maintainable on account of the fact that the writ petitioners had 
voluntarily and consciously applied for and adopted the ZTBL Staff 
Regulations, 2005, which have been framed by the Board and not 
approved by the Federal Government. Paragraph 14(h) of the ZTBL 
Staff Regulations, as notified vide circular dated 27-06-2007 
provided as follows:- 
“Promotion for VP and above shall be based on merit and 
open competition, interviews and selection by a promotion 
committee to be constituted by the President. Vacancies for 
VP and above as such shall be advertised internally and 
externally.” 
 
Civil Appeals No. 269 to 275 of 2011 etc 
9 
11. 
According to learned counsel the writ petitioners (1) 
after voluntarily and consciously adopting the Regulations 2005; 
(2) after taking all the monetary benefits on account of adopting 
the Regulations 2005 i.e. 100% commutation of pension, which 
otherwise was not permissible under the ADBP Employees 
(Pension and Gratuity) Regulations 1981; (3) after sitting or 
participating in the competitive process for promotion as 
contemplated by Paragraph 14(h) of the Regulations 2005; and (4) 
after not scoring the above threshold required for promotion, 
cannot turn around and claim promotion on the basis of seniority 
– cum fitness under the Promotion Policy of 1999. Therefore, the 
writ petitioners were estopped by their own conduct from claiming 
protection under the Promotion Policy of 1999 or the non-statutory 
Regulations of 1961 on the subject of promotion.   
12. 
Learned counsel for the respondents-writ petitioners 
defended 
the 
impugned 
judgment 
by 
making 
following 
submissions: 
1. 
that after the conversion of Agricultural Development 
Bank into a corporation by virtue of the Ordinance 
2002, the employees became employees of the 
company. By virtue of Section 6 of the said Ordinance, 
service terms and conditions which were in field prior 
to its promulgation were made applicable to the 
respondent 
employees. 
The 
question 
of 
their 
promotion 
which 
was 
subject 
matter 
of 
the 
constitutional petitions had to be governed under the 
Civil Appeals No. 269 to 275 of 2011 etc 
10 
Staff Regulations 1961 and the Promotion Policy 
1999; 
 
2. 
that the Staff Regulations 1961 and the Promotion 
Policy, 1999 are statutory as those have been adopted 
by legislative reference. Section 6 of the Ordinance 
2002 specifically provides that employees of the 
company “shall be subject to the same rules and 
regulations as were applicable to them before the 
effective date”. In support of this contention, learned 
counsel relied on a judgment of this Court in Masood 
Ahmad Bhatti Vs. Federation of Pakistan (2012 SCMR 
152); 
 
3. 
that the ADBP Staff Service Regulations, 1961, prior to 
promulgation of ADBP (Amendment) Act, 1973 were 
approved by the Federal Government and the same 
were 
subsequently 
approved 
by 
the 
Board 
of 
Directors. The legal status of the said Service 
Regulations came under scrutiny before this Court in 
the case reported as 1992 SCMR 1112 and the Court 
authoritatively decided it. A reasonable interpretation 
of the provisions of this Act, particularly the proviso 
appended to subsection (2) of Section 39, would 
therefore, be that the said provision would be 
applicable prospectively to any regulations made 
which fall under clauses (e) and (f) in future. In other 
words, if any regulation on these subjects is framed 
Civil Appeals No. 269 to 275 of 2011 etc 
11 
after the date of the coming into force of the 
Amendment Act, prior approval of the Federal 
Government would be essential for bringing such 
regulations in effect. But, it will be difficult to construe 
that it would destroy the regulations which had 
already come into force prior to the amendment, as 
obviously that would amount to giving retrospective 
operation to the provisions of the Amendment Act. It 
therefore, follows that the remaining Regulations of 
1961, other than the substituted Regulations 1995, 
having come into force prior to the 1973 amendment, 
when no prior approval of the Federal Government 
was necessary, shall continue to remain in force and 
operative 
notwithstanding 
the 
amendment 
of 
subsection (2) of section 39;  
 
4. 
that the 1961 Staff Regulations were framed under 
Section 39 of 1961 Ordinance (un-amended) by the 
Board so those were statutory and this Court has 
already held so in an unreported judgment of this 
Court (in C.P. 495 of 2010) wherein it has been 
candidly held as follows:- 
“We have no doubt in our minds that the National 
University 
of 
Sciences 
and 
Technology 
(Enforcement of Academic, Service, and Financial 
Matters) Statutes, 2005, are statutory in nature as 
they were framed in accordance with the 
procedure prescribed in the statute. Since this 
was the only ground on which leave was granted, 
the appeal is dismissed.” 
 
 
Civil Appeals No. 269 to 275 of 2011 etc 
12 
5. 
that the treatment meted out to respondents in 
matters of promotion is discriminatory and violative of 
Article 25 of the Constitution inasmuch as while the 
regulations pertaining to efficiency and discipline are 
statutory and they can invoke the remedy of filing a 
petition under Article 199 of the Constitution, but 
with regard to promotion they have no remedy and 
they are hit by the principle of master and servant;  
 
6. 
that if this Court comes to the conclusion that the 
1961 Staff Regulations or Promotion Policy of the year 
1999 are non-statutory, it would not be in accord with 
the canons of equity and justice as the said 
conclusion may render them without any remedy or 
forum to agitate their grievance. In this context, 
learned counsel relied on a judgment of this Court in 
Muhammad Amin Vs. President Zara Taraqiati Bank 
Ltd (2010 PLC (CS) 710) wherein the Court itself 
provided a remedy in terms of para 7 of the Esta Code 
to grant the relief which was prayed by the aggrieved; 
 
7. 
that in C.P. 427 of 2010, counsel appearing for Zarai 
Taraqiati Bank had contended that the Service 
Tribunal had no jurisdiction to entertain the appeal 
and the Court had repelled the contention holding as 
follows:- 
“From the above narration, we have no doubt left 
in our mind that the respondent’s services are to 
be governed by the Rules and Regulations 
Civil Appeals No. 269 to 275 of 2011 etc 
13 
framed under the 1961 Ordinance as in force at 
the repeal of Ordinance.” 
 
 
13. 
In his rebuttal, learned counsel for the appellant 
submitted as follows: 
1) 
that it is incorrect to state that any counsel appearing 
on behalf of the Zarai Taraqiati Bank had conceded to 
the proposition that the 1961 Staff Regulations were 
statutory except in one case (C.P. Nos. 434 and 435 of 
2009). In those cases, the matter was remanded and a 
case decided on concession is not the law declared. He 
gave a list of other cases wherein concession was made 
by counsel for the appellant and in all those cases the 
Regulations/Rules were statutory. The list of those 
cases is as under:- 
(i) 
C.A. 1394 of 1999 etc and C.P. 1208 of 2000 
(ii) 
Crl. Org No. 44 of 2010 in CA Nos. 749 to 761 of 
2009. 
(iii) C.P. No. 2726 of 2004 
(iv) C.P. No. 1135 of 2010 
(v) 
C.P. No. 427 of 2010 
(vi) C.P. No. 1410 of 2009 & CMA No. 2513 of 2009. 
 
2) 
Suggesting a way out he submitted that since there is 
no provision of regulations in the 2002 Ordinance and 
Section 9 of the same provides for making rules, a 
direction can be issued to the Federal Government to 
amend the said Ordinance and thereafter the Federal 
Civil Appeals No. 269 to 275 of 2011 etc 
14 
Government may accord the requisite approval in 
terms of section 39(2) of the 1961 Ordinance. 
 
14. 
Having heard learned counsel for the parties, the 
issues which crop up for consideration are as follows:- 
1) 
whether the old Staff Regulations of 1961 framed by 
the Board are non-statutory and if so were the 
Constitution 
petitions 
filed 
by 
the 
respondent 
employees maintainable? 
 
2) 
whether the respondent employees were disentitled to 
any discretionary relief under Article 199 of the 
Constitution on account of their own conduct? 
 
15. 
Historically statutory rules and orders were the means 
by which delegated legislation used to be made in United Kingdom. 
"The Rules Publication Act 1893 in England defines "rule making 
authority" to include every authority authorized to make any 
statutory rules. Statutory rules are defined as rules, regulations or 
by-laws under any Act of Parliament, in England. Orders are 
excluded from the statutory definition of statutory rules as being 
administrative. In England regulation is the term most popularly 
understood and the one favoured by the Committee on Ministers' 
Powers, who suggested that regulations should be used for 
substantive law and rules for procedural law, while orders should 
be reserved to describe the exercise of executive power or the taking 
of a judicial or quasi judicial decision (See Craies on Statute Law, 7th 
Ed. At p. 303). The validity of statutory instruments is generally a 
Civil Appeals No. 269 to 275 of 2011 etc 
15 
question of vires, i.e., whether or not the enabling power has been 
exceeded or otherwise wrongfully exercised1."  
16. 
The "rules" and "regulations" framed under any Act are 
meant to regulate and limit the statutory authority. All statutory 
authorities or bodies derive their powers from statutes which 
create them and from the rules or regulations framed thereunder. 
Any order passed or action taken which is in derogation or in 
excess of their powers can be assailed as ultra vires. Rules and 
regulations being forms of subordinate legislation do not have 
substantial difference as power to frame them is rooted in the 
statute. Statutory bodies are invariably authorized under the Act to 
make or adopt rules and regulations not inconsistent with the Act, 
with respect to such matters which fall within their lawful domain 
to carry out the purposes of the Act. This rule making power of 
such bodies, called 'delegated legislation' has assumed importance 
in the contemporary age. "The justification for delegated legislation 
is threefold. First, there is pressure on parliamentary time. Second, 
the technicality of subject matter necessitates prior consultation and 
expert advice on interests concerned. Third, the need for flexibility is 
established because it is not possible to foresee every administrative 
difficulty that may arise to make adjustment that may be called for 
after the statute has begun to operate. Delegated legislation fills 
those needs2."  
17. 
Broadly the salient characteristics of statutory rules 
are threefold: 
                                                
1 Sukhdev Singh etc Vs. Bhagat Ram etc (AIR 1975 SC 1331) 
2 AIR 1975 SC 1331 
Civil Appeals No. 269 to 275 of 2011 etc 
16 
i) 
Rules or Regulations are framed by statutory or public 
body;  
ii) 
Those are framed under the authority or powers 
conferred in the statute;  
iii) 
Those have statutory Governmental approval or 
statutory sanction.  
 
18. 
The question as to which rules or regulations are 
statutory and how they affect the rights of the employees has been 
a subject of comment in several judgments. In Principal, Cadet 
College, Kohat Vs. Muhammad Shoab (PLD 1984 SC 170), this 
Court considered this issue with reference to Sections 17 & 18 of 
the West Pakistan Government Educational & Training Institutions 
Ordinance, 1960. Section 17(1) of the said Ordinance provided that 
the Government may make rules for carrying out the purposes of 
the said Ordinance and Section 18 provided that the Board of 
Governors may subject to the approval of the Government, frame 
regulations “not inconsistent with the provisions of this Ordinance 
and the rules made thereunder, to carry out the purposes of this 
Ordinance.” Since the “rules” framed by the Board of Governors, 
governing the appointment, promotion, retirement, termination of 
service and dismissal of staff employed by the Board had not been 
made by the Government, those ‘rules’, the Court held “could not 
be regarded as “rules” under section 17, nor having been approved 
by the Government, be treated as Regulations under section 18 
thereof. These “rules” therefore could only be regarded to be in the 
nature of mere instructions issued for the guidance of the Board of 
Civil Appeals No. 269 to 275 of 2011 etc 
17 
Governors and the Principal of the Cadet College, Kohat.” This view 
was reiterated in Zia Ghafoor Piracha Vs. Chairman, Board of 
Intermediate and Secondary Education (2004 SCMR 35) wherein in 
para 7, it was held as follows:- 
 
“7. 
The Service Regulations of the Employees of the Board 
were framed by the Board. However, as has been 
determined by the learned Single Judge of the Lahore High 
Court, the Government, as required by the Act, has not given 
its 
formal 
approval 
to 
these 
Regulations. 
In 
these 
circumstances, these Regulations may be termed as internal 
instructions or domestic rules having no status of statutory 
rules. Reference in this regard is made to the case of “The 
Principal Cadet College, Kohat and another V. Muhammad 
Shoab Qureshi (PLD 1984 SC 170). In that case, the 
Government 
under 
the 
West 
Pakistan 
Government 
Educational and Training Institution Ordinance, 1960 was 
empowered to make Rules for carrying out the purposes of 
the Ordinance under section 17 thereof. Similarly, under 
section 18, the Board was also empowered to make 
Regulations subject to approval of the Government. There 
was identical situation in the aforesaid case as is now 
prevailing in the present case because the Regulations 
though made by the Board but the approval of the 
Government had not been secured. Similarly, the Government 
too had not made any Rules as mandated by section 17 
ibid.” 
 
 
19. 
An identical issue was considered by this Court in 
Asad Bashir Vs. Chairman Board of Intermediate and Secondary 
Education, Lahore and others (2006 PLC (CS) 110) and relying on 
the afore-referred precedent case law, the Court upheld the 
judgment of the learned Lahore High Court and held that since the 
rules / regulations governing the service of the appellants were 
non-statutory, the Constitution petitions were not maintainable. 
Civil Appeals No. 269 to 275 of 2011 etc 
18 
20. 
In Muhammad Mubeen-us-Salam Vs. Federation of 
Pakistan (PLD 2006 SC 602), the question inter alia of the remedies 
available to employees who are governed by statutory rules was a 
moot point and this Court observed in para 50 as under:- 
"Prima facie, this provision of law, i.e. Section 2-A of the STA, 
1973 has not advanced the cause of employees of 
Corporations, etc. by providing them remedy before the 
Service 
Tribunal 
because 
initially 
in 
the 
case 
of 
a 
Corporation/body, etc. if it has statutory backing, and rules 
are framed thereunder, its employees other than the workers, 
used to invoke the jurisdiction of the High Court under Article 
199 of the Constitution i.e. a remedy which is always 
considered to be speedy, expeditious and inexpensive; 
whereas the employees governed by the relationship of 
master and servant rule used to approach the Civil Court for 
the redressal of their grievance while workers and the 
workmen were eligible to seek remedy before the local Labour 
Courts, functioning under the new dispensation of Industrial 
Relation Ordinance, 2002, at the Divisional level with a right 
of appeal before the respective High Courts and appeal under 
Article 185(2) or a petition for leave to appeal under Article 
185(3) of the Constitution before this Court, under which this 
Court enjoys vast jurisdiction, as compared to limited 
jurisdiction under Article 212(3) of the Constitution." 
 
21. 
Similarly in Executive Council Allama Iqbal Open 
University Vs. Muhammad Tufail Hashmi (2010 SCMR 1484), this 
Court held as follows:- 
"9. The principle perceived from the above judgments is that 
the employees of those organizations, which are discharging 
functions in connection with the affairs of Federation, can 
approach the learned High Court under Article 199 of the 
Constitution but subject to the condition if their services are 
protected under the statutory rules." 
 
Civil Appeals No. 269 to 275 of 2011 etc 
19 
22. 
Statutory rules create certain rights for employees and 
impose obligations on the statutory authorities. The statutory 
authorities and functionaries cannot deviate or act in derogation to 
those rules or regulations. Any order passed or action taken by a 
public authority which is in conflict with those statutory rules can 
be challenged under Article 199 of the Constitution.  
23. 
As explained in para 4 above, the appellant Bank was 
successor to two institutions (Agricultural Development Finance 
Corporation and Agricultural Bank of Pakistan) wherein prior 
approval of the Central Government was required to make the 
regulations. This requirement was done away with in the 
Agricultural Development Bank Ordinance, 1961. Under Section 
39 of the said Ordinance, the Board of the Bank was empowered to 
make regulations and there was no requirement of prior approval 
of the Government. Section 38 provided for making of the rules by 
the Government and not by the Board. The appellant Bank was 
established in February, 1961 vide the 1961 Ordinance by 
amalgamating two institutions (Agricultural Development Finance 
Corporation and Agricultural Bank of Pakistan). Immediately after 
the promulgation of the Ordinance, 1961 as the Board had yet to 
be constituted, the draft regulations were sent to the Government 
for approval. After the Government’s approval they had been 
brought into force with effect from the date of establishment of 
Agricultural Development Bank of Pakistan and remained in field 
till 3rd / 4th May, 1961, when these were placed before the Board of 
Directors, ADBP in its first meeting as draft regulations and 
approved with certain amendments. The regulations thus made by 
Civil Appeals No. 269 to 275 of 2011 etc 
20 
the Board were known as “Agricultural Development Bank (Staff 
Service) Regulations, 1961 (Regulations, 1961). The approval of the 
regulations by the Government prior to the first meeting of the 
Board may be inconsequential at that stage as there was no 
statutory 
requirement 
for 
that 
but 
it 
indicated 
that 
notwithstanding the deletion of requirement of Governmental 
approval, the Government continued to exercise central power over 
the Bank. This was so because there were many enabling 
provisions in the Ordinance for the Government to do so including 
the rule making power in terms of Section 38, which reads as 
follows:- 
 
"38. 
Rules.--- (1) The Central Government may make rule 
for carrying out the purposes of this Ordinance and where 
the regulations framed under the succeeding section are 
inconsistent with the rules framed under this section, the 
rules shall prevail." 
 
24. 
Section 39 of the Ordinance, 1961 was however, 
amended by the Agricultural Development Bank (Amendment) Act, 
1973 and following proviso was added, which made prior approval 
of regulations by the Government mandatory:- 
“Provided that no regulation made with respect to the matters 
mentioned in clauses (e) and (f) shall take effect until it has 
been approved by the Federal Government.” 
25. 
The afore-mentioned amendment did not invalidate 
the regulations made prior to it when there was no requirement of 
approval by the Federal Government. The legal effect of the 
addition of the proviso to Section 39 (2) of Ordinance, 1961 was 
considered by this Court in the case Anwar Hussain Vs. 
Civil Appeals No. 269 to 275 of 2011 etc 
21 
Agricultural Development Bank of Pakistan (1992 SCMR 1112) and 
it was held as follows:- 
“A reference to subsection (2) of section 1 of the Agricultural 
Development Bank (Amendment) Act (XII of 1973), plainly 
shows that this Act came into force on the date of its 
promulgation 
and 
not 
retrospectively. 
A 
reasonable 
interpretation of the 6 provisions of this Act, particularly the 
proviso appended to subsection (2) of section 39, would 
therefore, 
be 
that 
the 
proviso 
would 
be 
applicable 
prospectively to any Regulations made which fall under 
clauses (e) and (f) in the future. In other words, if any 
Regulations on these subjects are framed after the date of the 
coming into force of the Amendment Act, prior approval of the 
Federal Government would be essential for brining such 
Regulations in effect. But, it will be difficult to construe the 
provisions of the proviso to destroy the Regulations which 
had already come into force prior to the amendment, as 
obviously that would amount to giving retrospective operation 
to the provisions of the Amendment Act. It therefore, follows 
that the remaining Regulations of 1961, other than the 
substituted Regulation 95, having come into force prior to the 
1973 amendment, when no prior approval of the Federal 
Government was necessary, shall continue to remain in force 
and operative notwithstanding the amendment of subsection 
(2) of section 39.” 
 
26. 
Thus as the amendment in Section 39(2) of the 
Ordinance, 1961 requiring Federal Government’s approval for 
making regulations was held to have prospective effect, the Staff 
Regulations, 1961 remained intact. Appellant Bank in 2002 was 
converted into a company with the promulgation of the 
Agricultural Development Bank of Pakistan (Reorganization and 
Conversion) Ordinance, 2002 and Agricultural Development Bank 
Ordinance 1961 was repealed. Section 6 of the Ordinance, 2002 
provided continuation in service to the employees and stipulated 
Civil Appeals No. 269 to 275 of 2011 etc 
22 
that they shall be subject to the same rules and regulations. It 
reads as follows: 
“6. Continuation in service of the company.—(1) The 
employees of ADBP who were in the service of ADBP before 
the effective date shall stand transferred to and become the 
employees of the Company as of the effective date on the 
same terms and conditions and shall be subject to the same 
rules and regulations as were applicable to them before the 
effective date.  
(2) Notwithstanding anything contained in law, contracts, 
agreement or the conditions of service no person transferred 
to the Company in pursuant to subsection (1) shall be 
entitled to any compensation by reason of such transfer.” 
 
27. 
The afore-referred statutory provision provided two 
fold security to the employees i.e. (i) the employees of the Bank 
stood transferred and became employees of the Company, and (ii) 
they shall be subject to the same rules and regulations as were 
applicable to them before the effective date. On account of the 
afore-referred statutory intervention, the regulations which were 
non-statutory, acquired a statutory status under the new 
dispensation and the employees acquired a legal right for their 
enforcement. 
The 
Constitutional 
petitions 
were, 
therefore, 
maintainable on that score. In none of the precedent cases i.e. 
Principal Cadet College Kohat supra, Zia Ghafoor Piracah supra 
and Asad Bashir supra referred to in paras 18 & 19 above, the 
effect of a statutory intervention on the rules which may have been 
non-statutory was a moot point. Those cases, therefore, are 
distinguishable from the case in hand. In Masood Ahmed Bhatti 
Vs. Federation of Pakistan (2012 SCMR 152), the effect of such an 
intervention (though under a different law) was considered. In the 
Civil Appeals No. 269 to 275 of 2011 etc 
23 
said case the Telephone and Telegraph Departments were 
converted 
into 
a 
Corporation 
through 
the 
Pakistan 
Telecommunication Corporation Act, 1991 (hereinafter to be called 
as PTC Act). Section 9 of the PTC Act stipulated that 
“notwithstanding anything contained in any law, contract or 
agreement, or in the conditions of service, all departmental 
employees shall, on the establishment of the Corporation, stand 
transferred to, and become employees of the Corporation, on the 
same terms and conditions to which they were entitled immediately 
before such transfer, provided that the Corporation shall be 
competent to take disciplinary action against any such employee.” 
The Court held that the afore-referred provision would have 
following effect:   
 
“9. 
It is clear from this legal provision, that the rules 
relating to the terms and conditions of employment of the 
appellants were given statutory status. This status was on a 
higher plane than the status of regulations framed by way of 
subordinate legislation under section 20 of the PTC Act. 
Consequently, whatever rules were in place governing the 
employment of the appellants in the T&T Department, were 
adopted by reference in the statute itself and were made 
applicable to and binding on the Corporation. There can be 
little doubt that by virtue of section 9 ibid such rules acquired 
statutory status having been sanctified by the PTC Act itself. 
We can, therefore, conclude without difficulty that the rules 
of employment which were applicable to the appellants 
during their service with the Corporation were statutory 
rules.”  
 
28. 
In Civil Appeal Nos. 1416 & 1417 of 2009 & Civil 
Petition No. 176-Q/2009 (Muhammad Tariq Badr etc Vs. National 
Bank of Pakistan), this Court considered the effect of a similar 
Civil Appeals No. 269 to 275 of 2011 etc 
24 
provision in the Bank Nationalization Act, 1974. Section 13 of the 
said Act inter alia stipulated that "all officers and other employees 
of a bank shall continue in their respective offices and employment 
on the same terms and conditions". This Court found that on 
account of this provision the employees shall continue to be 
governed under the rules in vogue prior to the amendment in law. 
The Court observed "it is an admitted and undisputed factual reality 
that before the commencing day of 1974 Act, 1973 Rules were 
validly in force and for all intents and purposes were serving as the 
conclusive terms and conditions of service of the employment for the 
N.B.P. officers etc. Thus, by virtue of the Section 13(1), such rules 
were specifically saved, guarded and shielded instead of having 
been displaced/replaced/rescinded or overridden. The language of 
the Section 13(1) without any shadow of doubt, spells out the clear 
intendment of the legislature to preserve the earlier terms and 
conditions of the nationalized bank, which in the present case 
undoubtedly were 1973 Rules, rather than being obliterated."  
29. 
The effect of Section 6 of the Ordinance, 2002 on the 
Staff Regulations, 1961 and the Promotion Policy, 1999 is similar 
to the effect of Section 9 of the PTC Act on the Telephone and 
Telegraph Department Rules or of Section 13 of the Bank 
Nationalization Act, 1974 i.e. on account of the statutory 
intervention those rules acquired a statutory status. In Civil 
Petition No. 2726/2004 (Muhammad Amin Vs. President Zarai 
Taraqiati Bank Ltd (2010 PLC (CS) 710), the moot point inter alia 
before this Court was whether the employee of the appellant Bank 
(Deputy Director of Agricultural Development Bank) was governed 
Civil Appeals No. 269 to 275 of 2011 etc 
25 
by statutory rules and a three Members Bench of this Court held 
that those were statutory. In Civil Petition No. 427/2010, Zarai 
Taraqiati Bank Limited was the petitioner and the questions before 
this Court inter alia were the effect of Section 6 of the Ordinance 
and whether the Rules and Regulations were statutory? The Court 
while dismissing the petition held as under:-  
 
"5. 
The plain reading of section 6 of the Ordinance, 2002, 
reproduced above, admits of no other interpretation but that 
the employees of the erstwhile A.D.B.P., who were transferred 
by operation of law to Z.T.B.L and had not opted to be 
governed by the Service Rules of the latter were to be 
governed by the terms of service embodied in 1961 Ordinance 
and Rules framed thereunder. The learned counsel for the 
petitioner also made no attempt to give a different 
construction to the said statutory provision.  
 
6. 
Thus the respondent, whose services were transferred 
from A.D.B.P to Z.T.B.L was to be governed by the Rules and 
Regulations framed under the 1961 Ordinance. Upon the 
repeal of the 1961 Ordinance, the Rules and Regulations 
framed thereunder are no longer subject to any amendment or 
change. This is also clarified by section 66 of the Ordinance, 
2002, which says "…….. and shall be subject to the same 
rules and regulations as were applicable to them before the 
effective date." "The effective date" is the date specified by the 
Federal Government under sub-section 1 of section 4 of the 
Ordinance 2002 for the transfer of assets, contracts and 
liabilities etc from the A.D.B.P to Z.T.B.L. The terms and 
conditions of service of the officers of Z.T.B.L, falling in the 
same category as the respondent, are to be regulated by the 
Rules and Regulations that were in force on the 'effective date' 
mentioned in Ordinance 2002. 
 
. 
 
. 
 
. 
 
. 
 
. 
Civil Appeals No. 269 to 275 of 2011 etc 
26 
 
. 
 
8. 
From the above narration, we have no doubt left in our 
mind that the respondent's services are to be governed by the 
Rules and Regulations framed under the 1961 Ordinance as 
in force at the repeal of the Ordinance." (Emphasis is 
supplied) 
 
30. 
Section 6 of the Ordinance, 2002, Section 13 of the 
Bank Nationalization Act, 1974 and Section 9 of the PTC Act 
discussed in the preceding paras are all instances of legislation by 
reference. Unlike legislation by incorporation, provisions of some 
other law are not specifically incorporated in the new Act but those 
would be read into the said Act. Corpus Juris Secundum explains 
this principle in terms as follow:- 
"…. Where the reference in an adopting statute is to the law 
generally which governs the particular subject, and not to any 
specific statute or part thereof … the reference will be held to 
include the law as it stands at the time it is sought to be 
applied, with all the changes from time to time, at least as per 
on the changes are consistent with the purpose of the 
adopting statute." 
 
31. 
In Wood's Estate case [1886] 31 Ch D 607, the Court 
while commenting upon this mode of legislation observed that "if a 
subsequent Act brings into itself by reference some or the clauses of 
a former Act, the legal effect of that, as has often been held, is to 
write those sections into the new Act just as if they had been 
actually written in it with the pen or printed in it and the moment 
you have those clauses in the later Act, you have no occasion to 
refer to the former Act at all." In Rajya Vs. Gopikabai (AIR 1979 SC 
79), the Indian Supreme Court, highlighted the broad categories of 
legislation by reference and opined as under: 
Civil Appeals No. 269 to 275 of 2011 etc 
27 
"Broadly speaking, legislation by referential incorporation falls 
into two categories: First where a statute by specific reference 
incorporates the provisions of another statue as of the time of 
adoption. Second, where a statute incorporates by general 
reference the law concerning a particular subject as a genus. 
In the case of the former, the subsequent amendment made in 
the referred statute cannot automatically be read into the 
adoption statute. In the case of latter category, it may be 
presumed that the legislative intent was to include all the 
subsequent amendments also made from time to time in the 
general law on the subject adopted by general reference. This 
principle of construction of a reference statute has been aptly 
summed up by Sutherland thus: 
 A statute which refers to law of a subject generally 
adopts the law on the subject as of the time the law 
is invoked. This will include all the amendments 
and modifications of the law subsequent to the time 
the reference / statute was enacted.  
 
32. 
Appellants' learned counsel could not dispute the fact 
that the expression used in Section 6 of the Ordinance, 2002 that 
the employees "shall be subject to the same rules and regulations as 
were applicable to them before the effective date" is legislation by 
reference but he maintained that it refers only to those rules which 
had been duly approved by the Central Government i.e. the Zarai 
Taraqiati Bank Limited Staff Regulations, 2005 and not the 
Agricultural Development Bank Staff Regulations, 1961 or the 
Promotion Policy of 1999 as those were non-statutory having not 
been approved by the Federal Government. This argument would 
not be tenable. First, because there is nothing in the language of 
Section 6 of the Ordinance, 2002 to warrant such an inference and 
second, in the precedent case law to which reference has been 
made in para 29 above, this Court has held otherwise and there is 
Civil Appeals No. 269 to 275 of 2011 etc 
28 
nothing on record to indicate that the said judgment (Civil Petition 
No. 427/2010) was ever challenged in review.  
33. 
In the light of what has been discussed in the 
preceding paras, the Staff Regulations, 1961 and the Promotion 
Policy, 1999 stand incorporated by way of legislative reference and 
thereby have acquired a statutory status for the respondent 
employees who stood transferred and became employees of the 
company in terms of Section 6 of the Ordinance, 2002. The writ 
petitions which sought enforcement of those regulations were 
maintainable.  
34. 
This brings us to the issue No. 2 i.e. whether the 
respondent employees were disentitled to any discretionary relief 
under Article 199 of the Constitution on account of their own 
conduct? 
35. 
To appreciate this issue, it would be pertinent to keep 
in mind the Regulations / Policy which was in vogue prior to the 
promulgation of Ordinance 2002 i.e. Regulation No. 17 of the 
Agricultural Development Bank Staff Service Regulations, 1961 & 
Promotion Policy, 1999 under which respondent employees wanted 
their cases of promotion to be considered. Regulation 14(h) of the 
Zarai Taraqiati Bank Limited Staff Regulations, 2005 (notified on 
27.6.2007) may also be kept in juxta position under which their 
promotion matters have been processed. This is necessary so as to 
appreciate whether the procedure laid therein in substance is the 
same as in Promotion Policy, 1999 and whether employees were 
likely to be prejudiced.    
Civil Appeals No. 269 to 275 of 2011 etc 
29 
 
Agricultural Development Bank 
Staff Service Regulations, 1961 
 
 
Zarai Taraqiati Bank Limited 
Staff Regulations, 2005 
 
 
 
“17. Promotion:- (a) Promotions 
to Class I and Class II shall be 
made on merit and no employee 
shall have a claim to be promoted 
to these posts by virtue of seniority 
alone. Promotions to class III and 
class IV posts shall be made on the 
basis 
of 
seniority-cum-fitness 
except in cases where a post is 
declared as a selection post by the 
Chairman in which case promotion 
shall be made on merit. Should an 
employee officiating in a higher 
post shows signs of deterioration 
while he is so officiating, he shall 
be 
liable 
to 
immediate 
and 
summary reversion to the lower 
post previously held by him. 
 
(b) 
For promotion to the posts 
for 
which 
special 
qualifying 
examinations or other conditions 
have been specifically laid down, 
only the employees who passes 
such examination and fulfills such 
other conditions shall be eligible 
and no relaxation shall be made in 
this behalf except, in special cases, 
by the competent authority.  
14(h) Promotion for VP and above 
shall be based on merit and open 
competition, 
interviews 
and 
selection by a promotion committee 
to be constituted by the President. 
Vacancies for VP and above as 
such shall be advertised internally 
and externally.” 
 
Promotion Policy 
"1. 
Promotions of the bank employees to the next higher 
grade will be made with immediate effect instead of 
retrospective effect.  
 
Civil Appeals No. 269 to 275 of 2011 etc 
30 
2. 
Promotions against 95% of vacancies shall be made on 
seniority-cum-fitness basis. 
 
3. 
Promotions against 5% vacancies may be made on 
accelerated basis with the approval of Board of 
Directors. 
 
"25% of the quota for accelerated promotion shall be for 
HO employees and 75% be reserved for field 
personnels. The criteria for accelerated promotion as 
laid down hereunder be strictly adhered to.  
 
 
Persons posted in the field offices should have atleast 
95% recovery rate for at least 03 years out of last 05 
years and must have scored 85 marks in aggregate in 
the cadre and have earned very good (A-I) ACRs during 
the last 03 years. As regards the officers and staff 
posted in the field but not directly related with the 
recovery operations, the criteria would be the same as 
applicable for the employees posted in Head Office.  
 
 
For employees posted in HO: they should have scored 
at least 85 marks in aggregate in the cadre and have 
earned very good (A-I) ACRs during the last 03 years." 
  
4. 
The 
employees 
on 
deputation 
to 
Government 
Departments or other organizations, will be considered 
for promotion, but their promotion shall take effect from 
the date they return to the Bank. However, the 
employees who have gone out of Bank and have kept 
their lien with the Bank, will only be considered for 
promotion after they join back and have earned atleast 
one Good ACR in the Bank.  
 
5. 
In case of an employee who has been superseded on 
account of minor penalty imposed in the present grade 
or for adverse ACR etc will be considered for promotion 
next year strictly on the basis of promotion criteria.  
 
6. 
While determining the total length of service of an 
employee in a particular cadre, the period of extra 
Civil Appeals No. 269 to 275 of 2011 etc 
31 
ordinary leave will be excluded from the total service of 
such employee in the cadre.  
 
7. 
Recovery Division, in the month of July every year, 
shall 
fix 
recovery 
targets 
for 
each 
region 
for 
consideration at the time of promotion keeping in view 
the total recoverables and pattern of growth so that the 
area recovery parameters are available for guidance of 
the DPC for each financial years. The officer who fails 
to achieve these targets shall not be promoted. 
 
8. 
Those 
who 
have 
joined 
on 
reinstatement 
after 
termination of service or on punishment of down 
gradation will be considered for promotion if they have 
atleast served three years after reinstatement or down-
gradation provided they fulfill the promotion criteria. 
 
9. 
The employees getting promotion as Officers will be 
posted in the Province / Place of their domicile provided 
clear vacancies are available.  
Professional Qualification 
 
10. 
 In order to promote professionalism and encourage 
employees and officers to pass DAIBP Part-I & Part-II, a 
weightage of 5 marks for Part-I and 10 marks for both 
the parts has been kept in evaluation qualification 
effective for promotion upto the level of Directors due in 
year 2001. 
 
10(A) 
The officers of the following categories would be 
required to serve compulsorily in the field on promotion 
and promotion will only be effective subject to joining at 
the new place of posting:-  
 
For promotion from 
 
Minimum field service required 
i) 
EAD to AD 
 
 
2 years in the Cadre 
ii) 
AD to DD 
 
 
1 year in the Cadre 
iii) 
DD to JD 
 
 
1 year in the Cadre" 
 
36. 
Regulation No. 17 of the Agricultural Development 
Bank Staff Service Regulations, 1961 was superseded by 
Promotion Policy of the year 1999. A bare perusal of the said Policy 
Civil Appeals No. 269 to 275 of 2011 etc 
32 
would indicate that the promotion was to be based on seniority, 
qualification and competence. The objective being to ensure 
"advancement of employees in career on the basis of achievement 
and experience" and eligibility criterion was laid. Promotions to 
95% of vacancies were to be made on seniority-cum-fitness basis, 
against 5% vacancies accelerated promotion was envisaged on the 
basis of approval by the Board of Directors, the past performance 
of employees reflected in the recovery of loan, Annual Confidential 
Reports of the preceding three years and detailed guidelines were 
provided for various categories in terms of paras 4 to 10(A). Para 
14(h) of the Zarai Taraqiati Bank Limited Staff Regulations, 2005 
stipulate the following: 
i) 
promotion for VP and above shall be based on merit 
and open competition, interviews and selection by a 
promotion committee to be constituted by the 
President;  
ii) 
vacancies for VP and above as such shall be advertised 
internally and externally.  
 
37. 
Although the common element in both the above 
provisions is the same i.e. promotion on merit based on 
competition, the mode envisaged to gauge the merit is distinct. The 
distinguishing features of the mode of determining merit in terms 
of the afore-mentioned provision of the Zarai Taraqiati Bank 
Limited Staff Regulations, 2005 are open competition, interview 
and selection by a promotion committee to be constituted by the 
President and advertisement (both internal and external) for the 
Civil Appeals No. 269 to 275 of 2011 etc 
33 
post of Vice President. Neither under Regulation 17 of the Staff 
Regulations, 1961 nor under the Promotion Policy, 1999, there was 
any provision for a Selection Committee or 25 marks for the 
interview or for internal or external advertisements as given in the 
Regulation 14(h) of the Staff Regulations, 2005. The procedure laid 
down reflects evaluation of the employees for purposes of 
promotion on the basis of their performance in interviews and their 
performance during service seems not to have been given much 
weightage. The argument of appellant's learned counsel that the 
criterion laid down in Regulation 14(h) and Promotion Policy are 
substantially the same is not tenable. 
38. 
Section 6 of the Ordinance, 2002 inter alia mandated 
that the employees of the newly created Company "shall be subject 
to the same rules and regulations as were applicable to them before 
the effective date", the respondent employees acquired a statutory 
right to be considered for promotion in accord with the mode of 
promotion laid down in the Regulations which were in vogue prior 
to the promulgation of the Ordinance. Admittedly, their promotion 
cases were not considered in terms of the Promotion Policy, 1999, 
which had the approval of the Board of Directors of the 
Agricultural Development Bank. In Sajid Hussain Vs. Muhammad 
Latif (1992 SCMR 468), a Full Bench of the Supreme Court of Azad 
Jammu & Kashmir upheld the judgment of the Service Tribunal 
which had allowed the appeal of the aggrieved employee as his case 
of promotion had not been dealt with in accordance with the 
prescribed rules and held as follows:- 
Civil Appeals No. 269 to 275 of 2011 etc 
34 
"It is provided in section 4 of the Civil Servants Act that 
appointment to a civil service or a civil post shall be 
made in the prescribed manner by the Government, or 
by a person authorised by it in this behalf. The word 
`prescribed' is defined in section 2 of the Act to mean 
`prescribed by rules'. The scheme of Civil Servants Act 
shows that if a person is promoted to a post this is 
termed as an appointment by promotion. In the AJ&K 
Civil Servants (Appointment and Conditions of Service) 
Rules, 1977 (hereinafter to be. referred to as the Rules 
of 1977) rule 3(1) provides in specific terms that an 
appointment to a post shall be made by promotion, 
transfer or initial recruitment. . . . . . . . . . . . . . . . . . . . . 
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
. . . . . . . . . . . . . . . . . . . . . . . .  
 
 
 
These Rules eliminate to a great extent arbitrary 
exercise of powers by the concerned authority in the matter of 
appointment and promotion of civil servants. The wording in 
which the Rules referred to above have been couched show, 
in unmistakable words that these Rules are mandatory. 
Therefore, the conclusion is that the post of Secretary cannot 
be legally filled up whether by promotion or otherwise unless 
there exist rules conforming to the requirement of rule 10 
mentioned above. We, therefore, uphold the view of the 
Service Tribunal in this aspect." 
 
 
39. 
So far as the argument that respondents having 
derived all monetary benefits of Regulations 2005 and therefore, 
they could not have invoked discretionary jurisdiction is 
concerned, the same would not be tenable in the facts and 
circumstances of this case. First because there is no estoppel 
against law. Second, no document has been placed on record to 
indicate that the option exercised was voluntary. If it was a fait 
accompli, this would not prevent them to seek enforcement of the 
procedure laid down in Regulations for promotions which were in 
vogue prior to the promulgation of Ordinance, 2002. Third, they 
challenged the entire impugned process at the earliest before 
formal orders could take effect and fourth the monetary benefits 
Civil Appeals No. 269 to 275 of 2011 etc 
35 
received by the respondents could be adjusted by the Bank if so 
advised.  
40. 
For what has been discussed above, we do not find 
any merit in these appeals and in petition, which are dismissed. 
 
