IN  THE SUPREME  COURT  OF  PAKISTAN  
(APPELLATE JURISDICTION) 
PRESENT: 
MR. JUSTICE GULZAR AHMED, HCJ 
MR. JUSTICE IJAZ UL AHSAN 
W:42 
CIVIL APPEAL NO.597 OF 2020  
(Against the judgment dated 06.11.2019 passed 
by the Peshawar High Court, Peshawar in Writ 
Petition No.1806-P of 2017). 
Controller General of Accounts 
....A./vet:tar/I(s) 
Versus 
Fazli Ahmad, DA0 EC (C&W Division Hangu) 
and others. 
..,Respondent(s) 
For the Appellant(s): 
For the Respondent(s): 
Moulvi Ejaz ul Haq, DAG. 
M. 14Iushtaq Khan, Account Officer. 
1VIa.qbool Ali, ACGA, 
Mr. Sabit Ullah. Khan, ASC 
Syed Rafaqat H. Shah, AOR 
(Nos.1-3, 8-11, 17, 18, 22, 25, 27, 28, 30) 
Mr. Abdul Lateef Afridi, ASC. 
(Nos.4-7, 12-16, 19-21, 24, 26, 29, 31-32) 
Date of Hearing: �
10.02.2021.. 
JUDGMENT  
IJAZ UL AHSAN, J-. This appeal by leave of 
the Court arises out of a judgment of the Peshawar High 
Court, Peshawar dated 06. 1 1 . 0 19. Through the 
impugned judgment, a constitutional petition 
(W.P.No.1806-P of 2017) filed by the • Respondents was 
allowed to the extent of prayers "A" and "C" while prayer 
"B" made by them was not granted. 
2. �Briefly stated the facts necessary for decision. 
of this Appeal are that the Respondents were working as 
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CIVIL APPEAL A10.597 OF 2020 �
2 
Divisional Accounts Officers in the Office of the Appellant 
in Khyber Pakhtunkhwa. In order to become entitled to 
promotion they participated and qualified the 
departmental examination Part-I in. December, 2012 in. 
accordance with the Rules and Regulations prevalent at 
that time, They had also completed their practical 
training for six. months, As such, they had an. expectation 
of being promoted subject to passing Part-ff of the 
examination which was scheduled to be conducted in the 
year 2013. Such examination did not take place. While 
the Respondents were awaiting holding of the 
examination, vide notification dated 09.03.2017 the 
method of examination was changed. Previously, the 
examinations were conducted by the department itself 
but through the aforesaid notification the Federal Public 
Service Commission ("FPSC") was assigned the job of 
conducting promotion examination for appointment of 
Divisional Accounts Officers (BS-17). 
3. �Pursuant to the notification in question which 
was issued by the Office of Controller General of 
Accounts, Resolution No.881 was circulated by the said 
Office intimating that promotion examination will 
henceforth be conducted by the FPSC. The Respondents 
were aggrieved of the said notification as well as the 
Resolution and challenged the same before the High 
CIVIL APPEAL. NO.597 OF 2020 
Court by way of a constitutional. petition which was 
allowed vide impugned judgment dated 06.11.2019 in. the 
above noted terms. 
4. �The Appellant was aggrieved of the impugned 
judgment and approached this Court through. a Civil 
Petition bearing No.29 of 2020 in which leave to appeal 
was granted vide order dated 25.06.2020 in. the following 
terms: 
"The learned Additional Attorney General for 
Pakistan has placed before us a photocopy cf 
notification No. S. R. 0. 162(1)/ 2017 dated 15.03 . 2017 
duly published in the Gazette of Pakistan and 
contended that this very notification was validly issued 
under sub-rule 20 of Rule 3 of the Civil Servants 
(Appointment, Promotion and Transfer) Rules, 1972 
read with Section 7(1)(c) of the Federal Public Service 
Commission Ordinance, 1977. He contends that the 
learned High Court has altogether misled itself in 
deciding the question by relying upon the provisions of 
Section 12 of Controller General of Accounts 
(Appointment, Functions and Powers) Ordinance, 2001. 
He submits that although the earlier Regulation dated 
08.10.2012 did provide for departmental examination 
but by the notification impugned before the learned 
High Court the said examination was required to be 
conducted by the FPSC and the Respondents had no 
valid reason to approach the High Court nor was it 
justified to interfere with the decision of the Federal 
Government regarding conducting of examination more 
so when it is the sole prerogative of the Federal 
Government to take examination of its employees in the 
manner as it deems fit and in accordance with law. In 
support of his contentions, the learned Law Officer has 
relied upon a judgment of this Court reported as 
• 
CIVIL APPEAL 00.597 OF 2020 
4 
Government of Khyber Pakhtunkhwa u Muhammad 
Javed  (2015 SCM.1.? 269). 
2. �
The submissions made by the learned Additional 
Attorney General need consideration. Leave to appeal is 
therefore granted to consider inter alia the same. Appeal 
stage paper books be prepared on the available record. 
However, the parties are at liberty to file additional 
documents, if any within a period of one month. As the 
matter relates to service, the Office is directed to fix the 
same for hearing in Court expeditiously, preferably after 
three months. 
5. �The learned Deputy Attorney General 
appearing for the Appellant has argued that 
determination of th.e method of recruitment is the sole 
prerogative of the appointing authority in. terms of Rule 
3(2) of the Civil Servants (Appointment, Promotion. and 
Transfer) Rules, 1973 rRules, 1973"). The previous Rules 
were validly amended by the competent authority and the 
Respondents had no valid reason or grievance to 
challenge the same. He further maintains that decision of 
the Office of Controller General of Accounts, to conduct 
promotion examination through MSC was based on 
lawful authority exercised by the said Office under 
Section 5(j) of the CGA Ordinance read with Section 
'7(I)(c) of Federal Public Service Commission Ordinance, 
1977. He further maintains that decision to change the 
examination policy was taken in consultation with the 
Establishment Division as required by the Rules of 
Business, 1973. He finally submits that the syllabus and
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CIVIL APPEAL NO.597 OF 2020 �
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other terms of the examination were not changed and it 
was only for administrative reasons and to ensure 
transparency and efficiency that FPSC was assigned the 
job of conducting the final examination. 
6. 
The learned counsel for the Respondents on 
the other hand has defended the impugned judgment, 
7. 
We have heard the learned DAG as well as the 
learned ASC for the Respondents and have one through 
the record. Rule 3(2) of the Rules, 1973 being relevant in 
the case in hand provides as follows: 
"3(2) (2) The method of appointment and 
the 
qualifications and other conditions applicable to a post 
shall be as laid down by the Ministry or Division 
concerned in consultation with the Establishment 
Division." 
8. 
A perusal of notification dated 09.03.201? ex 
facie reveals that it has not been issued by the 
Government of Pakistan and only the concurrence of the 
Establishment and Finance Divisions has been solicited. 
While it is true that Rule 3(2) of the Rules, 19'73 
empowers the concerned Ministry/Division subject to 
consultation with the Establishment Division to lay down 
methods of appointment, the notification in question as 
well as the Resolution under challenge were neither 
issued by any Ministry or Division nor published in the 
official. Gazette. Further, according to the principle of law 
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CIVIL APPEAL, NO.597 OF 2020 
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laid down by this Court in the case of Mustafa Impex v.  
Government of Pakistan. (2016 PTD 2269) wherever a 
power is conferred on the Federal Government, it is 
construed as a power given to the Prime Minister and the 
Federal Ministers/Cabinet to be exercised in the name of 
the Federal Government, Nothing has been placed on the 
record that may indicate that the Federal Government 
had notified the impugned notification after following the 
legal and procedural requirements and in accordance 
with the provisions of Rule 3(2) of the Rules, 1973, 
9. �We also note that the Office of Auditor General 
of Pakistan/Controller General of Accounts has been 
established by the Federal Government through. 
Ordinance No.XXIV of 2001.. Section 12 of the Ordinance 
in question empowers the Controller General of Accounts 
to make regulations. For ease of reference, Section 12 of 
the Ordinance is reproduced below: 
12. Power to make regulations: - The Controller 
General may with the previous approval of the Federal 
Government by the notification in the official Gazette, 
make such regulations not inconsistent with the 
provisions of this Ordinance and the rules made 
hereunder as he may consider necessary or expedient 
for carrying out the purpose of this Ordinance." 
In exercise of the aforenoted powers, the 
Controller General of Accounts promulgated Regulations 
in respect of departmental examinations which provided 
„..11:2;319.N.E5HilffiEf.:71IPESEK2ELLENSAME;inftir:{.165,Z3.11E-.:.:-.'-: 
CNIL APPEAL NO.597 OF 2020 �
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that one examination will be conducted in the ist week. of 
October, 2012. Thereafter, two examination.s wiI be 
conducted in each successive year in the months of 
March and October, respectively. 
10. 
We have asked the learned LAG if the 
Controller General. of Accounts had obtained any 
previous approval of the Federal Government as required. 
under paragraph 14 of the Regulations to amend the 
mode of examination and whether such notification had 
been published in the official gazette. He has not been 
able to show us from the record that previous approval of 
the Federal Government had indeed been. obtained in 
accordance with law and the notification. in. question was 
published in the official gazette. 
11. 
It is a settled principle of law that a 
notification. which is duly published in. the official gazette 
takes effect from the date on which it is published except 
otherwise provided in the notification itself. In view of the 
fact that neither the notification had validly been issued 
on the basis of powers available to the Controller General. 
of Accounts and previous approval of the Federal 
Government nor does it appear to have been published in 
the official gazette. As such, the validity of the 
notification and its impact on the rights of the 
CAUL APPEAL NO.597 .7.F 2020 
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Respondents was correctly assessed and determined by 
the learned High Court through the impugned judgment. 
12. 
It is also apparent from the record and not 
denied by the Appellant that the Respondents had 
already successfully completed Part-I of th.e departmental 
examination and received the prescribed training in 
accordance with the Rules and Regulations prevailing at 
the relevant time. We are therefore not impressed by the 
argument of the learned DAG that the Appellant could 
have changed the mode of examination in 2017 keeping 
in view the fact that Part-H of the examination was due to 
be held in 2013 and was not held for the next four years 
without any fault on the part of the Respondents. 
Further, a right had already accrued in favour of the 
Respondents by reason of passing Part-1 of the 
departmental examination which could not have been 
taken away merely on the basis of a notification issued 
by the Office of Controller General of Accounts without 
following due process of law. 
13. 
Further, modification of the Regulations 
notwithstanding the fact that it did not fulfil the legal and 
procedural requirements could not have affected any 
right or privilege acquired under the previous Regulations 
in favour of the Respondents. We are therefore convinced 
that the learned High Court had valid reasons and lawful 
• ' � '74,',17,—.74Y•WIMIXII'!
5,7.--7 �
1."97 
CIVIG APPeAL �
C)),  2020 �
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justification which was duly recorded-  in •the impugned 
judgment in coming to the conclusion that the 
Respondents were entitled to undergo Divisional 
Accounts Officers' Examination Part-If to be conducted 
by the department itself as per the previous Regulations. 
The impugned judgment of the learned High Court 
records valid reasons for its conclusion and after hearing 
the learned. Law Officer and going through the record, we 
are not persuaded to reach a conclusion different from 
the one arrived at by the learned High Court. 
14. �
For reasons recorded above, we do not find any 
merit this appeal. It is accordingly dismissed. 
10.02,2021. 
‘No4, Approved Por Reporting' 
