' AHMAD ALI M. SHAIKH, J.--- By this common order we propose to dispose of above-noted Constitutional Petitions as the impugned notification and the law points involved in all the petitions are the same.
2. The facts giving rise to C.P. No, D-368 of 2007 are that the petitioners were inducted into government service as Sub-Engineers in BPS-11 with the qualification of Diploma Associate Engineers. Petitioner Nos. 1 and 2 were directly promoted from the post of Sub-Engineer to Assistant Engineer (BPS-17) in the year 1991 on regular basis whereas Petitioner No,3 was first promoted as Sub-Divisional Officer (BPS-16) in the year 1994 and thereafter he was promoted as Assistant Engineer BPS-17 in the year 1997 on regular basis. It is the case of the petitioners that during their service all the three petitioners improved their qualification and obtained B. Tech.(Hon.) Degree from recognized Universities. From the pleadings it appears that University Grants Commission of Pakistan declared the B. Tech (Hon.) degree-holders to be treated at par with B.E.I BSc.
(Engineering) degree-holders as far as grades of pay etc., are concerned and on the basis of such decision of the University Grants Commission and other departments of the Government of Pakistan as well as Government of Sindh, petitioner No,1 made representation to respondent No,4 with the prayer to make amendment in the Recruitment Rules thereby fixing quota for B. Tech (Hon.) degree-holders, Assistant Engineers, for their promotion to the post of Executive Engineer (BPS-18). Respondent No,4 formulated proposed amendment in the existing Recruitment Rules for the promotion of Assistant Engineers BPS-17 to the post of Executive Engineer BPS-18 of the Works and Service Department and the matter was placed before the Recruitment Rules Committee No,1 of the Sindh Public Service Commission. The Sindh Public Service Commission thereafter, on the recommendation of the Rules Committee, approved the proposed amendment. After approval of the proposed amendment in the Recruitment Rules the Secretary Services and General Administration Department, Government of Sindh required the Secretary of the Administrative Department to send draft notification of the Recruitment Ru!Es for getting the same vetted from the Law Department. The Administrative Department of the petitioners sent draft notification of the recruitment rules to the S&GAD so that the same may be vetted by the Law Department.
3. The grievance of the petitioners is that for extraneous reasons the Administrative Department delayed the publication so that the available posts of Executive Engineers may be filled up on the basis of old rules where B. Tech (Hon.) degree-holders have no quota. The petitioners further asserted that though the process of amending the recruitment rules for promotion to the post of Executive Engineers (BPS-18) was initiated on 21-12-2005 and that after completion of necessary formalities for the amendment the Administrative Department was bound to publish the notification but the department is deliberately adopting delaying tactics.
4. During the pendency of the petition on 27-4-2007 this Court passed an interim order operative part whereof reads as under:--- "In the circumstances, we would pass an interim order to the effect that even if the DPC is held and deliberates over the matter, final promotion should not be effected till next date. To come up on 25-5-2007. Counter - affidavit must be filed at least one week before the next date of hearing."
5. Later on through C.M.A. No,7550 of 2007 the Intervenors were allowed to be impleaded as respondents and ultimately they were joined as respondents Nos.5 to 12. On 6-8-2008 learned counsel for the parties stated that the requisite rules have been published and according to the learned counsel for respondents Nos.5 to 11, the prayer clause (a) of the petition has become infructuous. On 20-3-2009, Mr. Muhammad. Nawaz Shaikh, learned counsel for the Intervenors/respondents stated that another Petition being C.P. No, D-184 of 2009 has been preferred by some of the respondents, which also involves controversy which is the subject-matter of this petition. In view of this position, further hearing of C,P. No, 368 of 2007 was adjourned to 27-3- 2009 with direction that file of C.P. No,D-184 of 2009 may also be put up along with this petition.
6. Meanwhile. C.P. No, D-823 of 2009 was also filed whereby the petitioners in that petition also challenged the impugned notification dated 4-6-2008.
7. The main grievance of the petitioners in C.P. No, D-184 of 2009 and C.P. No, D-823 of 2009 is that they are graduates and do possess the degree of B.E. From the recognited Universities of Pakistan.
They are also registered professional qualified engineers in terms of section 2(xxiii) of Pakistan Engineering Council Act, 1976 (hereinafter called as Act 1976) and they, in all, are 209 in number while the respondents who are only nine in number, possess only B. Tech (Hon.) which is not equated with B.E./B.Sc Engineering Degree.
8. Mr. Muhammad Nawaz Shaikh and Mr. Masud A. Noorani, learned counsel for the petitioners in C.P. Nos. D-184 of 2009 and D-823 of 2009 respectively, contended that the respondents do not possess the B.E./B.Sc Engineer Degree as they are holders of B. Tech (Hon.) which is not equivalent to the B.E./B.Sc. Engineering Degree, nor they are registered with the Pakistan Engineering Council in terms of section 2(xxiii) of the Act, 1976. Per learned counsel according to notification dated 14-1- 1987, the promotion to the post of Executive Engineers (BPS-18) used to be made in the following manner :--
(a) 80% by promotion from amongst Assistant Engineers bolding degrees of Civil/Mechanical and Electrical Engineers having at least 5 years service in BPS-17 of the branch to which the officer belongs.
(b ) 20% by promotion from Assistant Engineers holding Diploma or equivalent qualification in Civil, Mechanical or Electrical , Engineering entered service before 20-3-1967 service before 20-3-1967 and having at least 5 years experience in above branches to which the officer belongs.
9. Per learned counsel, the above policy of promotion remained in vogue till 4-6-2008 when the respondent mala fidely and with ulterior motives issued Notification dated 4-6-2008. Per learned counsel, through the impugned notification the entire infrastructure and complexion of Works and Service Department has been changed inasmuch as 80% promotion quota of B.E. Graduates who are 209 in number has been reduced to 60% whereas 30% quota for the promotion to the post of Executive Engineers (BPS-18) has been allocated to B. Tech (Hon.) degree-holders who are only 9 in number, whereas 10% quota has been reserved for Diploma-Holders, although both the latter categories are not recognized Professional Engineers under the Act, 1976. Per learned counsel, the impugned notification is contrary to Rules, Regulations and the Law, perverse, mala fide, arbitrary and reflective of nepotism and favourtism and issued only to accommodate their blue-eyed boys.
Per learned counsel, the notification has been issued without application of mind and in violation of section 24-A of the General Clauses Act and the same is liable to be struck down on this score alone. Learned counsel further went on to say that by the impugned notification the whole system of engineering works of the province including roads, buildings, bridges, drainage system and other small and mega projects have been jeopardized as the B. Tech (Hon.) degree-holders do not possess the requisite qualification, experience or command in Engineering discipline to undertake such Engineering Scheme or project. Learned counsel further contended that the petitioners have been discriminated for the simple reason that they possess better qualification and have requisite exercise and experience and are capable to handle any type of engineering works.
10. According to learned counsel, main grievance of the petitioners is that 209 B.E. Professional Assistant Engineers have been allocated only 60% seats for promotion whereas only nine B. Tech (Hon.) degree-holders have been granted a big chunk of 30% quota for promotion which is not equitable qua their respective numbers. Regarding seniority, learned counsel for the petitioners contended that the petitioners have been regularized in the service on 22-5-1989 and 17-11-1992 respectively as compared to the nine respondents who were regularized as Assistant Engineers on 23-2-1995, 20-8-1997 and 5-8-1998 respectively.
11. Mr. Masud A. Noorani further contended that through the impugned notification the respondents Nos.4 to 9 who possess a lower qualification and lesser skill and experience and short length of service have been given preference over the better qualified, recognized qualified Engineers having better experience, and regular length of service, thus the impugned notification is a flagrant, naked and cruel exhibition and show of arbitrariness and discrimination in violation of Article 25 of the Constitution. Mr. Noorani has emphasized that in case the impugned notification is acted upon, in that eventuality out of ten promotions to the posts of Executive Engineers, six would go B.E. Degree-holders who are 209 in number, three would go to B. Tech (Hon.) degree-holders who are nine in number and one would go to Diploma Holders. The ultimate ratio of first two categories would be 209.6 and 09.3 which is not equitable ratio.
12. Mr. Muhammad Aqil Awan, learned counsel for the petitioners in C.P. No,D-368 of 2007 and for private respondents in C.Ps. Nos.D-184 of 2009 and D-823 of 2009, contended that the provisions of Pakistan Engineering Council Act, 1976 have nothing to do with the service promotion etc. Of the petitioners/respondents as the service of the employees is governed by the relevant service rules and not by Pakistan Engineering Council Act or rules, therefore for all purposes the promotion etc. Of the employees is regulated by the rules of the Department. Mr. Awan further contended that functions of the Pakistan Engineering Council have been defined in section 8 of the Act, 1976 which, inter alia, include the recognition of engineering qualification for the purpose of registration of professional engineers and consultant engineers but not applicable to the Engineers who are in government service or autonomous bodies etc. Mr. Awan further contended in the case of Pakistan Diploma Engineer Federation (Registered) through its Chairman v. Federation of Pakistan through Secretary, Ministry of Water and Power, Government of Pakistan, Islamabad and 9 others (1994 SCMR 1807) the honourable Supreme Court of Pakistan has affirmed the majority view of the High Court of Sindh in the case of Muhammad Azeem Jamali and 11 others v. Government of Pakistan through Secretary/Chairman, Ministry of Railways and 33 others (1999 PLC (C.S.) 637). Per learned counsel, while interpreting the applicability of Pakistan Engineering Council Act, it was held that the provisions of the Act are applicable only to professional Engineers and consulting Engineers who are in practice and not to the persons working in the Government Departments, Autonomous Bodies, Local Authorities and private firms or companies. Mr. Awan defended the impugned notification by contending that the Government is empowered to make rules/regulations as it is its prerogative and in exercise of such power, the notification dated 4-6-2008 was issued and the same cannot be called in question before this court. He further contended that C.Ps. Nos.D-184 of 2009 and D-823 of 2009 are not maintainable as the matter relates to the terms and conditions of the employees and the petition is hit by Article 212 of the Constitution.
13. Mr. Muhammad Sarwar Khan, Additional Advocate-General assisted by Mr. Adnan A. Karim, Assistant Advocate-General defended the impugned notification on the ground that the respondent is empowered to make rules and same cannot be challenged through constitutional petition.
14. Heard learned counsel for the parties and perused the impugned notification and other material available on the record.
15. Upon a perusal of notification dated 14th January, 1987 issued by the Secretary, Communication and Works Department, Government of Sindh, it appears that for promotion to the post of Executive Engineers Civil/Mechanical and Electrical, 80% quota was reserved for the Assistant Engineers holding degree in Civil/Mechanical and Electrical Engineering having at least 5 years service in B-17 in the relevant field, whereas 20% quota was fixed by promotion from amongst the Assistant Engineers holding Diploma or equivalent qualification in the relevant field entered in service before 20-3-1967 and having at least 5 years service in BPS-17 in the relevant field. However, from the perusal of impugned notification dated 4th June, 2008, it appears that by virtue of the said notification, 60% posts of Executive Engineers BPS-18 shall be filled by promotion from- amongst the Assistant Engineers B.E. In the relevant field with at least five years service in BPS-17, 30% by promotion from amongst the Assistant Engineers having B. Tech (Hons.) degree in the relevant field with at least five years service in BPS-17 while 10% by promotion from amongst the Assistant Engineers having Diploma in the relevant field with at least five years service in BPS-17.
16. No doubt, no one has a vested right in the policy decisions of the Government and it is the prerogative of the Government to formulate the policies. These policies are determined jointly with reference to domestic needs, their priorities and multitude of other factors of which the Government is the sole arbitrator in exercise of its executive authorities. The decision taken falls within the realm of policy-making and these policy decisions are binding on the subordinate authorities as a matter of duty. However, being custodian of the law, the Courts have to examine such policy matters with regard to its application and its far-reaching effects vis-a-vis the rights of the citizens. It appears that since 1987 till 4th June, 2008 none from the department has challenged the notification dated 14th January, 1987 whereby 80% quota for the promotion to the post of Executive Engineers (BPS-18) was reserved for B.E. Degree-holders while 20% quota was reserved for diploma-holders.
17. In the case of Collector or Central Excise and Land Customs and 3 others v. Azizuddin Industries Ltd. Chittagong (PLD 1970 SC 439) honourable Supreme Court held as under:-- "It is settled rule that an executive authority cannot in exercise of the rule-making power or the power to amend, vary or, rescind an earlier order take away the rights vested in the citizens by law."
18. In another case reported as Messrs Radaka Corporation and others v. Collector of Customs and another (1989 SCMR 535) the honourable Supreme Court held as under:--- "Now it is settled laws that where the department has followed a particular course in the implementation of some rule, whether right or wrong, it will be extremely unfair to make a departure from it after a lapse of many years and thereby disturb rights that have been settled by a long and consistent course of practice."
19. Since the concerned department was following the notification dated 14th January, 1987 for more than two decades and by virtue of such notification certain rights were created in favour of the petitioners/B.E. Degree-holders, therefore the authorities by issuing the impugned notification was not justified to take away such rights unilaterally. We are also mindful of the settled principle of law that the departmental practice cannot negate/override the provisions of the law/statutory rules; however in the instant case the notification dated 14th January, 1987 was also issued in exercise of powers conferred under the statutory rules viz. Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, as such it was not merely a 'departmental practice' but the same was backed by the Notification issued pursuant to the statutory rules.
20. There is yet another aspect of the case viz. The proportionate ratio of the number of Assistant Engineers holding B.E. Degree and that of Assistant Engineers holding B. Tech Degree. It is an admitted position Mat the number of Assistant Engineers holding B.E. Degree is 209 whereas the number of Assistant Engineers holding B. Tech Degree is only (9). Now, for example, if the impugned notification is acted upon in respect of promotion to ten posts of Executive Engineers (BPS-18), in that eventuality six posts would be filled from amongst 209 Assistant Engineers holding, B.E Degree whereas three posts would be filled from amongst 9 Assistant Engineers holding B. Tech (Hons.)
Degree. Ultimately, out of 209 Assistant Engineers holding B.E. Degree, still there will remain 203 Assistant Engineers whereas out of 09 Assistant Engineers holding. B. Tech (Hons.) Degree, only 6 Assistant Engineers will remain. Such ratio viz. 209.6=09.3, on the face of it, seems to be irrational, illogical, unreasonable and discriminatory. In this way, the Assistant Engineers holding B. Tech (Hons.) Degree although joining the department at a later point of time vis-a-vis various Assistant Engineers holding B.E. Degree who would have joined the department much earlier to them, will come over and above their heads with the result panic, unrest and sense of deprivation will prevail amongst the senior employees which, of course, is contrary to the concept of 'good governance'. It is a settled principle of law that object of good governance cannot be achieved by exercising discretionary powers unreasonably or arbitrarily and without application of mind but objective can be achieved by following the rules of justness, fairness and openness in consonance with the command of the Constitution enshrined in different Articles including Articles 3 and 25 of the Constitution.
21. We are conscious of the fact, as stated above, that it is the prerogative of the government/authorities to issue any notification for making rule/regulations/policies with regard to promotions etc. But while doing so the concept of 'reasonable classification' is to be kept in mind.
Upon a perusal of the impugned notification it appears that same has beer, issued with the sole object to accommodate some particular persons while majority of the Assistant Engineers have been discriminated as their vested right with regard to consideration for promotion has been snatched away.
22. For the foregoing reasons and the dictum laid down by the honourable Supreme Court in the cases reported in PLD 1970 SC 439 and 1989 SCMR 535, referred above, we are of the considered view that the impugned notification dated 4th June, 2008 is disproportionate and against the justice equity, fairness and good governance. We accordingly, set aside the same with the direction to the official respondents to make rules with regard to the promotion to the post of Executive Engineer (B-I8), if necessary, but keeping in view the number of Assistant Engineers holding B.E. Degree and that of the Assistant Engineers holding B. Tech (Hons.) Degree.
23. All the three petitions stand disposed of in the above terms.