IN THE SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
 
PRESENT: Mr. Justice Mian Saqib Nisar 
 
 
 
Mr. Justice Amir Hani Muslim 
 
 
 
Mr. Justice Iqbal Hameedur Rahman 
 
Civil Appeals No. 1213 & 1214/2015. 
(On appeal against the judgment dated 28.05.2014 
passed by the Peshawar High Court, Peshawar, 
in W. Ps. No. 3857 & 4423/2010) 
 
Govt. of KPK through Chief Secretary, 
Peshawar, etc. 
 
 
 
 
(in both cases) 
Appellant(s) 
 
Versus 
 
Hayat Hussain, etc.  
 
 
 
(in C. A. 1213/2015) 
 
Abdul Basir, etc. 
 
 
 
 
(in C. A. 1214/2015) 
Respondent(s) 
 
For the Appellant(s) 
(in both cases):  
 
 
Mr. Waqar Ahmed Khan, Addl. AG. 
 
For the Respondent(s): 
 
In-person. 
 
Date of Hearing: 
 
 
25.02.2016. 
 
JUDGMENT 
 
 
Iqbal Hameedur Rahman, J: - Through this single judgment, we 
intend to decide the listed appeals. The instant appeals are directed against 
the judgment dated 28.05.2014 passed by the Peshawar High Court, 
Peshawar, in W. Ps. No. 3857 & 4423/2010 whereby the said petitions filed 
by the respondents have been accepted. 
2. 
Through the above mentioned writ petitions, the respondents had 
sought a declaration that orders dated 18.08.2010, 09.09.2010 & 
04.10.2010 be declared as illegal, unconstitutional, without lawful 
authority, ultra vires to their rights and based on malafides and also sought 
that a direction be given to the appellants to proceed with the process as per 
the advertisement dated 20.07.2010. The precise facts are that the 
appellants requisitioned 53 posts in BPS-17 in the Provincial Management 
C. As. No. 1213 & 1214/2015. 
2
Service (PMS). The said requisition was forwarded to the Khyber 
Pakhtunkhwa Public Service Commission (hereinafter to be referred as “the 
Commission”), who thereafter advertised the said posts on 20.07.2010. 
Pursuant to the advertisement, the respondents, Hayat Hussain, 
Superintendent, KPK Public Service Commission, Peshawar, and Abdul 
Basir, Office Assistant, Board of Revenue, KPK Peshawar, applied under 
10% reserved quota for ministerial staff as per the Provincial Management 
Service Rules. Later on vide order dated 18.08.2010 it was conveyed by the 
KPK Establishment Department to the Secretary of the Commission that 
the matter with regard to 10% reserved quota in PMS (BPS-17) had been 
examined by the KPK Establishment Department and it is clarified that the 
same is meant only for ministerial staff serving in the Administrative 
Departments of KPK Civil Secretariat excluding the employees of attached 
departments/subordinate offices. The said letter was followed by another 
letter dated 09.09.2010 wherein it was intimated to the Commission that 
requisition of 53 posts of PMS officers (under 10th in-service quota) is 
withdrawn by issuing notification dated 04.10.2010 through which Khyber 
Pakhtunkhwa Provincial Management Service Rules, 2007 (hereinafter to 
be referred as “the Rules”) have been amended and 10% reserved quota had 
been restricted to persons holding substantive posts of Superintendents, 
Private 
Secretaries, 
Personal 
Assistants, 
Assistant 
Senior 
Scale 
Stenographers, Stenographers, Data Entry Operators, Computer Operator, 
Senior and Junior Clerks borne on the cadres strength of Secretariat who 
possess post graduate qualification from a recognized University with at-
least five years service as such. The said orders and notification gave rise to 
a grievance to the respondents, who being employees of attached 
departments and who have been excluded from 10% reserved quota as 
previsouly provided in the Rules as such they had challenged the said 
C. As. No. 1213 & 1214/2015. 
3
orders and notification before the High Court by filing writ petitions 
contending therein that discriminatory treatment is being given to the them 
in violation of Article 25 of the Constitution of Islamic Republic of 
Pakistan, 1973, as they were performing the same functions as that of 
Secretariat employees as such they cannot be excluded because they 
fulfilled the qualification and experience. The High Court took their 
contentions into consideration and vide impugned judgment held that they 
being similarly placed persons have been treated differently as such it 
constituted a sheer discrimination and further held that it was not a case 
where rules have been challenged by a person in service rather it was a case 
where blessings have been given to a class of employees by depriving 
others through special amendment introduced in the Rules in the garb of 
interpretation and misinterpretation of rules, which smacks of malafide on 
the part of the appellants and accordingly struck down the notification 
dated 04.10.2010 and restored earlier rules framed in the original form as 
per rule-3 of Schedule-I of the Rules, which entitled the respondent to 
compete on 10% reserved quota on the basis of competitive examination to 
be conducted by the Commission from amongst the persons holding 
substantive posts of Superintendents, Private Secretaries, Personal 
Assistants, Assistant Senior Scale Stenographers, Stenographers, Data 
Entry Operators, Computer Operator, Senior and Junior Clerks who possess 
post graduate qualification from a recognized University with at least five 
years service under the Government. Being aggrieved, the appellants 
approached this Court by filing Civil Petitions No. 442-P & 443-P/2014 
wherein leave was granted vide order dated 20.11.2015, the relevant portion 
therefrom is reproduced herein below: - 
“ 
The learned Additional Advocate General appearing on behalf of 
the petitioners contended that it is well beyond the domain of jurisdiction 
C. As. No. 1213 & 1214/2015. 
4
of the High Court under Article 199 of the Constitution of Islamic 
Republic of Pakistan to sit in judgment over the vires of the rules or 
notifications in view of the judgment rendered in the case titled I. A. 
Sharwani vs. Government of Pakistan (1991 SCMR 1041) and that the 
High Court could not impute mala fides to the legislature when there was 
absolutely nothing on the record as could even remotely suggest that the 
rules were amended to benefit one and impair the rights of the other.” 
 
3. 
It would be pertinent to reproduce here the relevant portions of the 
Rules prior to amendmnet as provided in Schedule-I: - 
S. 
No. 
Nomencl
ature of 
posts 
Minimum 
qualificatio
n for 
appointmen
t by initial 
recruitment 
Age 
limi
t for 
initi
al 
recr
uitm
ent 
Method of recruitment 
1 
2 
3 
4 
5 
1 
PMS 
(BS-17) 
as per 
detail at 
Schedule
-II 
2nd Division 
Bachelor 
Degree 
from a 
recognized 
University. 
21-
30 
year 
1) 
Fifty per cent by initial recruitment on the 
 
recommendations of the Commission based on the 
 
result of competitive examination to be conducted by it 
 
in accordance with the provisions contained in 
 
3Schecule-VII. 
 
2) 
Subject to rule7, by promotion in the  following 
 
manner: 
 
 
(a) 
twenty percent from amongst 
 
 
 
Tehsildars, who are graduates, on 
 
 
 
the basis of seniority-cum-fitness, 
 
 
 
having five years service as  
 
 
 
Tehsildar and have passed the 
 
 
 
prescribed Departmental  
 
 
 
Examination; and 
 
 
 
(b) 
twenty percent from amongst the 
 
 
 
Superintendents/Private Secretaries 
 
 
 
on seniority-cum-fitness basis, who 
 
 
 
are graduate and have undergone a 
 
 
 
training course of 9-weeks at the 
 
 
 
Provincial Management  
 
 
 
Academy/Provincial Staff Training 
 
 
 
Institute. A joint seniority list of 
 
 
 
the Superintendents and Private 
 
 
 
Secretaries shall be maintained for 
 
 
 
the purpose of promotion on the 
 
 
 
basis of their continuous regular 
 
 
 
appointment 
to 
the 
respective 
 
 
 
posts. 
 
3) 
Ten percent by selection on merit, on the basis of 
 
competitive examination, to be conducted by the 
 
Commission in accordance with the provisions 
 
contained in 4Schedule-VII, from amongst persons 
 
holding substantive posts of Superintendents, Private 
 
Secretaries, Personal Assistants, Assistant Senior Scale 
 
Stenographers, Stenographers, Data Entry Operators, 
 
Computer Operator, Senior and Junior Clerks who 
 
possess post graduate qualification from a recognized 
 
University with at least five years service under the 
 
Government. 
 
That according to the original Rules, 10% of selection on merit on the basis 
of competitive examination was to be made from amongst the persons 
C. As. No. 1213 & 1214/2015. 
5
holding substantive posts of Superintendents, Private Secretaries, Personal 
Assistants, Assistant Senior Scale Stenographers, Stenographers, Data 
Entry Operators, Computer Operator, Senior and Junior Clerks who possess 
post graduate qualification from a recognized University with at least five 
years service under the Government. From the perusal of the same it is 
apparent that the same had not been restricted only to Secretariat 
employees. The Rules have been amended through notification dated 
04.10.2010, which reads as under: - 
 
 
“ 
 
GOVERNMENT OF KHYBER PAKHTUNKHWA 
 
 
 
 
ESTABLISHMENT DEPARTMENT 
 
 
 
 
 
 
Date Peshawar, the 04.10.2010 
 
 
 
NOTIFICATION 
 
No. SOE-II(ED) 2(14)/2009: 
In exercise of the powers conferred by 
Section 25 of the North-West Frontier Province Civil Servants Act, 1973, 
(NWFP Act No. XVIII OF 1973), the Chief Minister of the Khyber 
Pakhtunkhwa is pleased to direct that in the Khyber Pakhtunkhwa 
Provincial Management Service Rules 2007, the following further 
amendments shall be made, namely: 
 
 
 
 
 
 
AMENDMENT 
In Schedule I, against Serial No. 1 in Column No. 5 for Clause 
(3) the following shall be submitted, namely: 
 
(3) 
Ten per cent by Selection on merit, on the basis of competitive 
examination to be conducted by the Commission in accordance 
with the provisions contained in Schedule VII, from amongst the 
persons holding substantive posts of Superintendents, Private 
Secretaries, 
Personal 
Assistants, 
Assistant 
Senior 
Scale 
Stenographers, Stenographers, Data Entry Operators, Computer 
Operator, Senior and Junior Clerks who possess post graduate 
qualification from a recognized  University with at-least five 
years service as such. 
 
 
 
 
 
 
 
CHIEF SECRETARY 
 
 
 
 
 
 
 
KHYBER PAKHTUNKHWA” 
 
By virtue of the above mentioned amendment, the respondents being 
employees of attached departments have been excluded to be eligible for 
10% quota selection on the basis of competitive examination. 
5. 
The learned Additional Advocate General for the appellants argued 
that the said amendment had been made in order to clarify that 
appointments to the posts of PMS (BPS-17) in 10% quota was meant only 
for the ministerial staff of the Secretariat so as to encourage talented lower 
C. As. No. 1213 & 1214/2015. 
6
staff. Moreover, the respondents could still compete in open merit as such 
there was no discrimination. He further argued that the appellants were duly 
competent to amend the Rules and the Rules were amended strictly in 
accordance with law. 
6. 
On the other hand, the respondents appearing in-person submitted 
that through the amendment they were deprived of their right. They further 
submitted that the Secretariat employees are already covered under 
Schedule-I subsection 2)(b) for promotion as such the 10% quota actually 
meant for other attached departments. 
7. 
In the facts and circumstances of the case and in the light of the 
arguments advanced by the learned Additional Advocate General as well as 
the respondents in-person, it is to be considered whether amendment in the 
Rules could be effected by the Government regarding restricting the 
reservation of 10% quota only for ministerial staff of Civil Secretariat KPK 
and whether it is justifiable, secondly, whether amendment was malafidely 
made in order to exclude and deprive the respondents from future prospects 
of their promotion moreso when they are performing the same functions 
and duties as such whether it is a discrimination and do the respondents 
have a vested right to challenge the same. In the above perspective, whether 
the High Court has the jurisdiction in the matter to strike down rules 
relating to Civil Servants regarding their appointment and promotions and 
amendments made therein. The stance of the appellants is that amendment 
in the relevant provisions of the Rules was quite justified as the employees 
of attached departments get sufficient chances of promotion in their cadres 
against the quota reserved specifically for them under their respective 
service rules, whereas the employees of Civil Secretariat cannot appear in 
those examinations, for instance the Sub Accountants in the District 
Accounts Offices accorded promotion after qualifying SAS examination. 
C. As. No. 1213 & 1214/2015. 
7
Similarly, the Junior Instructors (BS-14) of Technical Education 
Department with diploma of Engineering i.e., equal to FA/F.Sc are 
promoted to BS-17 within 5 to 10 years period. Likewise, Sub-Engineers 
(BS-11) of C&W, PHE and Irrigation Department having B.A. degree are 
considered or accelerated promotion to the post of Assistant Engineer (BS-
17) after qualifying the departmental exam prescribed under their respective 
service rules, as such the respondents are entitled to get further promotion 
to the post of PMS BS-17 in their own service cadre. Further justification 
given by the appellants was that the ministerial staff of Civil Secretariat is 
transferable in different departments of Civil Secretariat which make them 
well acquainted with the nature of job of PMS Officers. Whereas, the 
employees of other departments/cadre are experts in their own field and 
their job profile is quite different from that of PMS Officers. Thus reserving 
10% quota for ministerial staff of Civil Secretariat is justified as these posts 
cannot be used as learning place for others. 
8. 
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 an 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 a 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 as held by this Court in the case of The Central Board of Revenue, 
Government of Pakistan vs. Asad Ahmad Khan (PLD 1960 SC 81), the 
relevant portion therefrom is reproduced herein below: - 
C. As. No. 1213 & 1214/2015. 
8
“ 
In our opinion the High Court made the above order without 
taking into consideration all the factors relevant to the case, namely, in 
the first place the taking out of the post of Deputy Superintendent of the 
category of class III, to which the petitioners belong amounted to 
abolition of the post and its upgrading on a higher scale of pay to a 
creation of the new post; appointment to which required a stricter test of 
efficiency by a competitive examination. Besides, all the Inspectors were 
given the right to sit in the examination for any number of times to 
qualify themselves for promotion. At the same time the pay scale of 
those, who could not succeed, was raised to the limit of Rs. 350, namely, 
the same pay as that of a Deputy Superintendent when it was a class III 
post. In the circumstances it cannot be said that any rights of the 
petitioners were infringed, which they could enforce by a 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.” (emphasis supplied) 
 
As far as the contention of the respondents that the rules could not be 
changed to affect them adversely is concerned, the said proposition has also 
been settled by this Court in the case of Muhammad Umar Malik and 
others vs. Federal Service Tribunal and others (PLD 1987 SC 172), 
wherein the proposition that the rules of promotion could not have been 
changed so as to affect adversely those already on the eligibility list i.e., 
combined list of U.D.Cs and S.G.Cs, was repelled by observing that, “No 
such vested right in promotion or rules determining eligibility for 
promotion exists”, and held as under: - 
“ 
Mr. Abid Hasan Minto, Advocate, when called upon to address 
arguments on merits, urged that the rules of promotion should not have 
been changed so as to affect adversely those already on the eligibilities 
list i. e. the combined list of the U.D.Cs. and S.G.Cs. In other words he 
was claiming a vested right in promotion for all the U.D.Cs. borne on the 
joint cadre on the date of its separation. The position of law on the 
subject is clear in view of numerous decisions of this Court, e.g. 
Government of West Pakistan v. Fida Muhammad Khan (1) Central 
Board of Revenue, Government of Pakistan v. Asad Ahmad Khan (2), 
Province of West Pakistan v. Muhammad Akhtar (3), Manzur Ahmad v. 
Muhammad Ishaq (4). No such vested right in promotion or rules 
determining eligibility for promotion exists.” 
C. As. No. 1213 & 1214/2015. 
9
 
9. 
In the facts and circumstances of the case and in the light of the case 
law cited above, it is quite apparent that the advertisement earlier made had 
subsequently been withdrawn and thereafter an amendment was made in 
the Rules and as yet the respondents have not appeared either in the 
examination or in any interview or selection, therefore, there appears to be 
no vested right created in their favour, and accordingly any change made in 
the Rules cannot furnish a cause to the respondents. Moreover, the 
amendment was made in the Rules in order to clarify certain anomalies, 
which had duly been taken care of, as such no malafide can be attributed to 
the Government and as per the settled principle the determination of 
eligibility of the respondents through amendment fully falls within the 
domain and policy decision of the Government which does not warrant 
interference by the Courts. Resultantly, these appeals are allowed and the 
impugned judgment of the High Court is set aside. 
 
 
Judge 
 
 
 
Judge 
 
 
 
Judge 
ISLAMABAD 
25.02.2016 
(Farrukh) 
Approved for Reporting. 
 
