' The petitioners are working as Laboratory Assistants (BS.6), in the Environmental Protection Department. Their grievance in this petition is that in the matter of advancement in the career, they have, unfairly been, discriminated against vis-a-vis the Laboratory Helpers (Field Assistants). The facts of the case are noted hereunder.
2. According to the Environmental Protection Agency, Punjab .Service Rules, 1989, the posts of Laboratory Helpers and Laboratory Assistants were in BS-5 in a joint cadre with a joint seniority. The method of recruitment to the aforesaid posts as well as the qualification were also the same and both were bracketed together for promotion as Lab Technician (BS-9). The aforesaid rules were replaced by Environmental Protection Department, Punjab Service Rules, 1997. The post of Laboratory Helper continued to be in BS.5 but was re-designated as Field Assistant. The post of Laboratory Assistant continued with the same designation but was placed in BS.6. The petitioners were accordingly, designated as Laboratory Assistant and placed in BS.6 According to 1997 Rules a Field Assistant is eligible for promotion as Inspector in BS.13, while a Laboratory Assistant was eligible for promotion to the post of Laboratory Technician (BS.9). The case of the petitioners is that for fresh recruitment under 1997 Rules different promotion prospects for the two categories of the, posts were justified because qualification for the two posts was different. However, as far as the petitioners and the Laboratory Helpers, who were in a joint cadre with combined seniority when 1997 Rules were enforced could not be differently treated in the matter of prospects of promotion.
3. The learned counsel for the petitioners invited my attention to the letter dated 16-11-2001 of the Deputy Director (Admn.) Environmental Protection Agency recommending to the Environmental Protection Department the following amendment in the rules: "Provided that the Lab Assistants already appointed and bracketed with Field. Assistants (Lab Helper) for further promotion' under EPA Service Rules, 1989 shall have the right to opt the channel of further promotion of their choice (either as Inspector or Lab. Technician) and they shall be considered for promotion accordingly on the basis of their original seniority. However, option once exercised shall be treated as final, and shall not be modified/changed subsequently."
4. He maintains that the aforesaid amendment was just and fair and would have removed the grievance of the petitioners. The proposal was initially oonsidered by the Addl. Secretary of the Department in the meeting held on 19-6-2002 and was declined. This happened during the pendency of this writ,petition. I-noticed that a serious issue was disposed of at the level of the Addl.
Secretary without the approval of the head of the Department i.e. The Secretary concerned. Today the learned Addl. Advocate-General, produced copy of the minutes of the meeting held on 6-4- 2004 in the chamber of the Secretary of the Department, accordingly to which the proposal of Deputy Director Administration in his letter dated 16-11-2001 was examined and declined.
5. Perusal of the aforesaid minutes affirm that although the Laboratory Assistants and Lab. Helpers were in BS.5, were bracketed together for the purpose of promotion to the higher post and their seniority was combined but the job description of both the cadres was different. It was noted that the Laboratory Assistants were upgraded from BS.5 to 6 and had immediate gain with less promotion prospects. It was also stated that the Govt. Was entitled to re-organization or restructure the department keeping in view the need of the time and this was done in the interest of the department: It was further noted that the petitioners had not approached the propele forum or this Court well in time.
6. The learned Addl. Advocate-General has opposed this petition. He submits that no civil servant could claim .a vested right in the rules for promotion which could always be changed. He pressed the decisions taken in the minutes of the meeting held on 6-4-2004 to contend that reorganization or re-structuring of a department is within the exclusive domain of the competent authority -and, therefore, no interference is called for in exercise of extraordinary jurisdiction of this Court have been considered. Before the respective contentions of the learned counsel for the parties are adverted to, another anomaly have noted in the 1997 Rules, .May also be referred to. For the post of Laboratory Assistant (BS-6) the requisite qualification is Matric Science from a recognized Board while for the post of Field Assistant (BS-5) it is Matric with Science, first division/F.Sc., second division from the recognized Board. The rules contemplate that a Lab. Assistant even with 3rd division Matric in Science can be appointed to a post in higher scale than a person with a better qualification.
8. The 1997 Rules, however, make a Field Assistant eligible for promotion as Inspector in BS-13 while a Laboratory Assistant is eligible for promotion as Laboratory Technician (BS.9). Thus, persons recruited with the same qualification in the same scale of pay with a consolidated seniority have been differently treated by 1997 Rules. The minutes of the meeting being relied upon do not indicate any reasonable basis to differently treat the petitioners in the matter of prospects of promotion. The apparent anomaly is that a Field Assistant, an official in BS-5 on promotion, moves in Scale No.13 and an official with the same qualification but in a higher scale (BS-6), moves to BS- 9 on promotion although both were recruited together. In fact, as suggested by the. Deputy Director in his letter dated 16-11-2001, the Lab. Assistants and Field Assistants should have been given an option as far as the channel of their further promotion is concerned. The persons equally placed have to he equally treated. Equal opportunity in public employment is an integral part of the equality clause of the Constitution i.e. Article 25 of the Constitution. Therefore, as far as the two sets of officials recruited under 1989 Rules are concerned, they were required to be treated equally in the matter of prospects of promotion and insofar as application of 1997 Rules to the petitioners is concerned they have been unfairly discriminated against without any reasonable basis.
9. It is no doubt true that no civil servant has a vested right as far as the rules, of promotion are concerned but the principle is not attracted in this case because the petitioners are not questioning the rules as far as future recruitment thereunder is concerned. They only want the same 'prospects of promotion which were made available to their counter parts recruited under 1989 Rules.
10. I have been mindful that the petitioners are civil servants but in this case terms and conditions of service are not involved because prospects of promotion have never been considered as part of terms and conditions of a civil servant. Reference may be made to Dr. Ehsan-ulHay v. The Province of Punjab and others (1980 SCM R 972). It may also be observed that as laid down by the Hon'ble Supreme Court I.A. Sharwani and others v. Government of Pakistan through Secretary in to the terms and conditions 01 the service of a civil servant and the complaint made in a Constitutional petition is only violation of a fundamental right.
11. For what has been stated above, this petition is allowed to the extent that in the matter of promotion, the petitioners are entitled to be treated, at par with those, who had been recruited as Lab Helpers under the 1989 Rules. The 1997 Rules shall, accordingly, be amended/ clarified. No order as to costs.