1. ' The .Petitioner is an employee of the Government of Sindh having qualification of B.Tech (Hons), which he passed on 19-1-2002 Having put in five years' service after passing of the examination, he seeks that his qualification may be equated with that of other engineering graduates i.e. B.E. And B.Sc (Engg). He seeks the following relief:-- A. Declare that the Degree of B.Tech (Hons) is Engineering Degree at par with the Degree of B.E/BSC.
(Engg) under the laws and rule expressed under Para-14 supra. B. Declare that the expoundings of the Respondents Nos.7 to 10 about communications dated 5-7-1999 and 10-7-1999 of the Respondents Nos.3 and 4 that "the Degree of B.Tech (Hons) is not equal to the Degree of B.E." are misinterpretation and null and void. C. Declare that the acting of the Respondents Nos.7 to 10 upon the nullity dictum of the PEC about non-recognition of the Degree of B. Tech (Hons) is without authority, without jurisdiction and void. D. Declare that the Degree of B. Tech (Hons) being Engineering Degree at par with the Degree of B.E/B.Sc. (Engg), the 3% promotion quota for B.Tech
(Hons) Sub-Engineers appearing in the Civil Servants Rules of the Respondents Nos.1 to 6 is infructuous and its existence in the rules is void. E. Declare that the B.Tech (Hons) Sub-Engineers being Engineering Graduates, the allocation of 3% promotion quota for them vis-a-vis the 30% quota for Engineering Graduates other that B.Tech (Hons), is discriminatory having no value in the eye of law and stood merged in the 30% making the provision as 33% general for both the incumbents i.e. B.Tech (Hons) and other Engineering Graduate Sub-Engineers.
2. F. Declare that the acts of the Respondents enumerated under paras. 22 and 23 supra as acts of non-feasance, malfeasance, unlawful, without authority, without jurisdiction and void having no value in the eye of law. G. Direct the Respondents to act upon the laws and rules expressed at para. 22 supra and perform their duty enjoined upon them by law. H. Direct the Respondents to desist from their unlawful courses of actions enumerated under para. 23 supra and prrform their duty enjoined upon them by law.
3. I. Grant costs of agony and financial sufferings caused by the Respondents to the Petitioner.
4. J. Award costs of the Petition and rigours of litigation unnecessarily undergone by the Petitioner at the instances of the Respondents.
5. K. Gant such relief or pass such other orders as may be deemed fit and appropriate in the circumstances of the case."
6. ' Before approaching this Court, the Petitioner filed an appeal bearing No.16/01 before the Sindh Service Tribunal, Vide order dated 15-4-2004, the aforesaid appeal was dismissed on the ground that the case of the petitioner for promotion to grad 17 was under consideration and a decision had not been taken by that time. In view of this statement, the Petitioner did not press that appeal and withdrew the same. Thereafter, the petitioner preferred a Constitution petition before this Court bearing No.1716 of 2002 on the ground that the undertaking of the Respondent had not been adhered to and no order was passed in view of the statement made by the Respondent No. (sic) before the Tribunal. Respondents appeared before this. Court and requested for time to decide the matter finally. It appears that there was some delay and the petitioner moved a contempt application. However, after successive request for time, the Respondents finally decided the matter vide letter No.SLGB/SCUG/A.0(Engg-11)(222)/20004/712 dated 15-3-2004. It is a short order and is reproduced hereunder:- "Pursuant to the orders of the High Court, Sindh passed in C.P. No.1716 of 2002 on 25-11-2003, you are hereby informed that your request regarding promotion from the post of Sub-Engineers (B-11) to the post of Assistant Engineer (BS-17) on account of your qualification of B.Tech (Hons) was considered and found not covered under Sindh Council Unified Grade Services Rules, 1982 (Engineering Branch) and is therefore regretted. "
7. ' Petitioner being aggrieved by this order has approached this Court in Petition No.D-312 of 2004, which is also fixed today and is being disposed of by this order.
8. ' Mr. Shah replied that the question involved in this Petition is that of declaration i.e. To declare that the qualification of B.Tech (Hons) is equivalent to the degree of Engineering of B.E./B.Sc. (Engg) and does not fall within the jurisdiction of _the Tribunal. In support of his contention he has referred to the order passed by the Tribunal, wherein objection was raised as top the maintainability of the appeal before Tribunal. His second'contention. Is that after the mater has finally been decided by the Hon'ble Supreme Court in the case of Fida Hussain v. Secretary, AJK (PLD 1995 SC 701), wherein the degree of B.Tech (Hons) has been held to be equal to that of B.E./B.c. (Engg) for the purpose of promotion of B-17 and as such the same is not required to be agitated before any forum on the ground as it has attained finality and is operative as law of the land. He stated that the order of the Hon'ble Supreme Court has been implemented after the judgment of the Supreme Court of Pakistan and the Education Department of the Government of Sindh has also issued the requisite circular in line with the instructions issued by the Federal Government as well as the District Government. He stated that for this reason the Petitioner did not approach the Service Tribunal after receipt of order dated 15-3-2004, but challenged the same as being ultra vires the Constitution in the aforesaid C.P. No.D-311 of 2004.
9. ' Mr. Ahmed Pirzada, the learned A.A.-G. First raised the question. As to the maintainability of these petitions. He proceeded with his arguments. While opposing these petitions, he argued that the question decided by the Hon'ble Supreme Court in the case of Fida Hussain (supra) pertains to a specific batch of employees who, in pursuance of an assurance for promotion, had taken up the course, they obtained the degree of B.Tech (Hons). However, later, when they were discriminated against, they approached the then Education Minister who issued a letter in they year 1973. The grievances of those persons remained un-redressed, the matter was agitated before the Service Tribunal and finally it was decided by the Hon'ble Supreme Court in their favour. His next contention is that the case of the present petitioners does not fall within the ground convered by the decision in Fida Hussain's case (supra) as the petitioner is governed by subsequent policy framed with respect to terms and conditions of such incumbents in modification of Notification No.SOEE(C&W)
10. 11-7/88/1014 dated 8-7-1991, framed on 30-8-1994. This being a subsequent matter of policy is attracted to the facts of the present case. The question relates only to the terms and condition of the service of the Petitioner and falling squarely within the jurisdiction of the Service Tribunal. He also stated that under no stretch of the imagination the degree of B.Tech (Hons) can be treated at par with that B.E/B.Sc (Engg) and that the Education Department, Government of Sindh is not competent to decide, the matter.
11. ' We have heard the learned counsel and gone through the record. We specifically inquired from Mr.A.D. Shah, learned counsel for the Petitioner, as to the maintainability of this petition on this ground. In reply be reiterated his first and second contentions, as stated above, and argued that the Tribunal has no jurisdiction to entertain this under the circumstance. On being pointed out to him that it was a similar case of seeking promotion on the basis of the same educational qualification, coupled with requisite experience,that was considered by the Service Tribunal and finally decided in appeal that went before the Hon'ble Supreme Court in Fida Hussain's case (supra), the learned counsel could not give a satisfactory reply for purpose of promotion has already been agitated before the Hon'ble Supreme Court and decided finally. Therefore, it is only a question of implementation of that judgment as it also covers the case of the petitioner. We are afraid that we are not inclined to agree with this view of the learned counsel in the light of the fact that fresh policy has been framed after the decision of the Hon'ble Supreme Court and it has been held to be exclusive domain of the Government to do so in Fida Hussain's case wherein it has been held as under:-- "We may again observe' that it is exclusively within the domain of the Government to decide whether a particular qualification will be considered sufficient for prom lion from a particular Grade to a higher Grade and it is also within the domain of Government to change the above policy from time to time as nobody can claim any vested right in the policy. However, it cannot abdicate its power to deicide the above question in favour of a corporate body which is not in its control nor it can act in a manner which may be violative of Article 25 of the Constitution on account of being discriminatory. It is still open to the Government for future to provide that academic qualification of B.Tech (Honours) will not be considered sufficient for promotion from BPS-16 to BPS-17 if the same does not violate the above principle."
12. ' Learned counsel for the Petitioner could also not refer to any case of promotion of any Sindh Government employee during the relevant period having similar qualifications so as to make out a case on the ground of discrimination. Mere assertion of discrimination, not supported by any act of discrimination, would not by itself constitute a ground for entertaining the petitions.
13. ' In view of the aforesaid discussion, we are of the view that the matter pertains to the terms and conditions of service and is hit by provisions of Article 212 of the Constitution. However, in case the Petitioner approaches the appropriate forum, his case may be considered on merits with due regard to the fact that the matter was being agitated before this Court. With these observations, we dismiss this petition and C.P. No. D-312 of 2004, in limine, along with the pending applications.