Muhammad Hashim Khan Kakar, J.--This constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1.973 (hereinafter referred to as the 'Constitution') has been filed by the petitioner, with the following prayers:-- "(i) Direct Respondent No. 7 to take legal actions against the offenders (employer & employees both) as per Section 27 of the Pakistan Engineering Council Act, 1.976.
(ii) Struck down the discrimination up held, with B.E. Mechanicals & holders of B.Sc. (Hone)
Agriculture in Agriculture Engineering with respect to their initial recruitment, against the subordinate ranks of Assistant Agriculture Engineer, store officer & workshop Superintendent.
(iii)Exploitations of Agriculture engineering graduates by virtue of discordant carination, disparate pay scale fixation & deprivation from direct promotion to B-18 with reference to store officer/store verifier is not maintainable under the law.
(iv)Struck down the unlawful amendments made during the years 2006 & 2008 by non- professional and non-technical members in a clandestine & awkward manner.
(v)Any other relief which this Honourable Court deems fit and proper may also be granted.
(vi)Grant consequential relief with cost, in the interest of justice & fair play."
2. The relevant facts for disposal of the instant petition, in small compass, are that the petitioner is a professional engineer as defined in Clause (j) of Section 2 of the Pakistan Engineering Council Act, 1976 (hereinafter referred to as the 'Act of 1976') and is registered with the Pakistan Engineering Council as Professional Engineer vide Registration No.MECH/19674. It is the case of petitioner that the office of Respondent No. 6 advertised 14 posts of Assistant Agricultural Engineer/Mechanical Cultivation Officer, carrying BPS-17, for the persons, possessing the qualification of B.Sc. Agricultural Engineering or B.E. Agriculture or equivalent qualification along with valid registration in Pakistan Engineering Council. The petitioner, being qualified engineer, applied for the referred posts, but Respondent No. 6 rejected petitioner's application, on the ground that he does not fulfill the conditions of educational qualification. As per petitioner, the powers conferred under Section 25 of the Balochistan Civil Servants Act, 1974 were exploited time and again, because each time non- professional and alien representatives of respondents No. 1 to 6 of instant petition, were made the members of sub-rules Committee of Services & General Administration Department to prescribe the terms and conditions of recruitments for technical and professional ranks of Professional Agriculture Engineering Department. An amalgam of self-contradictions, exploitation and discrimination has been notified, as service rules, which neither match with the service rules prescribed by the sister province, nor erstwhile constitutional service Rules of 1963. According to the petitioner, the qualification of (i) B.E. Mechanical (ii) B.E. Metallurgy (iii) B.Sc. (Hone) Agriculture with one year Agricultural Engineering Diploma (iv) Diploma in Associate Engineering (with some departmental experience) and (v) matriculation (with some departmental experience) are equivalent to Agricultural Engineering degree, therefore, if erstwhile the recruitment of B.E.
Mechanicals, B.E. Metallurgy and B.Sc. (Hons) Agriculture with one year Agricultural Engineering Diploma were justified against the stated posts, then even today the non-professional members of the sub-rules Committee or Respondent No. 6 cannot term their initial recruitment as unjustified.
3. On the other hand, the respondents contested the petition on legal and factual grounds by filing their formal replies.
4. It is mainly contended by Mr. Ilyas, learned counsel for the petitioner, that the rejection of petitioner's application for the post of Assistant Agricultural Engineer by Respondent No. 6 is not only illegal, but also violative of Article 25 of the Constitution, as in the sister Province of Punjab, the possessors of B.E. Mechaticals are not only eligible for initial recruitments towards Assistant Agricultural Engineer, but are also eligible for Store Officers/Store verifier and Workshop Superintendent and all of the three stated ranks fall under one cadre, carrying BPS-17. It is next contended that under the Act of 1976, professional duties could not have been assigned to a non- professional person and the Pakistan Engineering Council is aware of flagrant violation of Act of 1976 and the rules made thereunder, but no action under Section 27 of the Act of 1976 has even been taken against any officer.
5. On the contrary, Mr. Amanullah Kanrani, learned Advocate General, Balochistan, appeared on behalf of respondents, objected the maintainability of this petition and contended that the existing service rules i.e. Balochistan Agriculture Engineering Department Technical (Basic Pay Scale 16 and above) Service Rules, 1984 were amended in the best interest of the Government of Balochistan and the Agriculture Engineering Department with approval of the Governor, Balochistan, and nomenclature of Mechanical Engineer was extracted after a long process, as such, neither any question of discrimination arise, nor the petitioner can be termed as an aggrieved person. He further contended that the petitioner has challenged the vires of certain amendments, pertaining to the terms and conditions of service, which can only be challenged by an aggrieved civil servant under the provisions of the Balochistan Civil Servants Act, 1974 before the Service Tribunal, after availing the remedy of departmental representation and the petitioner has no locus standi to challenge the same.
6. We have carefully examined the respective contentions, as adduced on behalf of the petitioner and the respondents, in the light of relevant provisions of the Act and record made available.
Before dilating upon the contentions of the parties, it would be relevant to mention here that the vires of legislative measures is not open to the scrutiny of the superior Courts on the sole ground of mala fides, because legislative measures are presumed to be bona fide. It is true that this Court has the jurisdiction to examine whether or not a law is void by reason of the conflict with the Statute, fundamental rights, constitution or is otherwise ultra-vires, but it is equally true that the law should be saved rather than be destroyed and the Court must lean in favour of upholding the constitutionality of legislation, keeping in view that the rule of constitutional interpretation is that there is a presumption in favour of the constitutionality of the legislative enactments unless ex- facie it is violative of a constitutional provision.
7. The record reveals that initially the Mechanical Engineers were recruited in the Agriculture Engineering Department, because the Drilling Section was a part of the Agriculture Engineering Department, but now the Drilling Section is working under the supervision of the Irrigation and Power Department. The record is also indicative of the fact that in the sister Province of Punjab, the Mechanical Engineers are still recruited in the Agricultural Engineering Department, because the Drilling Section is still part and parcel of Agriculture Engineering Department.
8. The contention of learned counsel for the petitioner regarding violation of Section 25 of the Constitution, on the face of it, is devoid of force, for the one reason that equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike. Article 25 of the Constitution prohibits discrimination within the class, but does not prohibit the classification, as such, criterion for reasonable classification is to see as to whether the basis of differentia has any rational nexus with its avowed policy and object and that the classification is rational and based on intelligible differentia. Admittedly, through impugned amendment in the Balochistan Agriculture Engineering Department Technical (Basic Pay Scale 16 and above) Service Rules, 1984, the Mechanical Engineers were debarred to be appointed as Assistant Agricultural Engineers and the rational behind the said amendment seems to be the fact that the degree of Mechanical Engineering is not in line with the requirement of Agriculture Engineering Department in Balochistan due to the reason that the nature of subjects of Mechanical Engineering is entirely different from the Agriculture Engineering, which, basically, deals with the Agriculture Farm mechanization, irrigation and drainage, soil mechanics and basic knowledge about soil science. When we asked learned counsel for the petitioner as to whether the 'Mechanical Engineers have been declared equivalent to the Agricultural Engineers by the Pakistan Engineering Council or Higher Education Commission of Pakistan, he replied in negative, as such, in such circumstances, no question of discrimination arises at all.
9. Adverting to the next contention of learned counsel for the petitioner regarding Section 27 of the Act of 1976, it would be advantageous to reproduce the same, which speaks as under: "27. Penalties and procedure.--(1) After such date as the Federal Government may, after consultation with the Council, by notification in the official Gazette, appoint in this behalf whoever undertakes any professional engineering work shall, if his name is not for the time being borne on the Register, be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both, and, in the case of a continuing offence, with a further fine which may extend to two hundred rupees for every day after the first during which the offence continues."
It is an admitted feature of the case that the Assistant Agricultural Engineers, who had not registered with the Pakistan Engineering Council, were recruited in the department, but it was before the constitution of departmental services rules of 1984 and the Act of 1976 and, presently, there is no discrimination in the enforcement of the Act of 1976. There is no cavil to the proposition that no professional engineering work without having proper registration with the Pakistan Engineering Council can be undertaken, but the question arises as to whether after promulgation of the Act of 1976 and the Rules of 1984, amended in the year 2006, any such work was assigned to any non-professional by the department, if so, whether the petitioner can point out any such case or in this regard any complaint was made to the Pakistan Engineering Council? Obviously, the answer is no, because the petition has been filed in order to gain personal benefit for ulterior motives and not in the larger interest of the engineering community.
10. The record is further indicative of the fact that all the amendments made from time to time in the relevant rules pertain to terms and conditions of civil servants and can only be challenged by any civil servant/aggrieved person before the Balochistan Service Tribunal under the provisions of the Balochistan Civil Servants Act, 1974. The jurisdiction as conferred upon Service Tribunal is not limited and all the service matters including vires of service rules can be challenged before it. We are of the considered view that if a statutory rule or a notification adversely affects the terms and conditions of a civil servant, the same can be treated as an order in terms of sub-section (1) of Section 4 of the Balochistan Service Tribunals Act, 1974 in order to file an appeal before the Tribunal.
It is well settled by now that the Tribunal is competent to examine whether or not a law relating to terms and conditions of a civil servant is void, by reason of its conflict with the fundamental rights or is otherwise ultra wires. Reliance can be placed to the cases of "LA. Sharwani v. Government of Pakistan through Secretary. Finance Division, Islamabad" reported in 1991 SCM R 1041 and 'Muhammad Asif v. Secretary to the Government of Punjab C&W Departments" reported in 1990 PLC (C.S.) 257.
11.We are in agreement with learned Advocate General that the instant petition is not maintainable for variety of reasons. It is a settled by now that any person invoking constitutional jurisdiction has to establish firstly that he is an aggrieved party as defined in clauses (1)(a) of Article 199 of the Constitution, secondly that relief sought by him is one, which he is legally entitled to seek under any provisions of law, rules or regulations and, thirdly, for seeking relief prayed by him no other forum or remedy is available to him.
12. It is a settled principle of law that a person or a party can be said to be aggrieved only when is denied a legal right by someone, who has a legal duty to perform relating to that right. The right, which is the foundation of an application under Article 199 of the Constitution is a personal and individual right, which may be a statutory right or a right recognized by the law unless whatever right, personal or otherwise, on which the application is based is established, no order can be issued under Article 199 of the Constitution. Reliance can be placed to a case of 'Asadullah Mangi v.
Pakistan International Airlines Corporation" reported in 2005 SCM R 445.
13.It may be noted that it is exclusively within the domain of the Government to decide whether a particular qualification will be considered sufficient for appointment or promotion from a particular grade to a higher grade. The matters pertaining to framing of rules for appointment against a particular post is the exclusive prerogative of the Government and nobody can claim any vested right in the policy. By holding this view, we are fortified by the observations of Hon'ble Supreme Court in Suo-Moto Review Petition No. 52 of 1993, which are 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 promotion from a particular grade to a higher grade and it is also within the domain of the Government to change the above policy from time to time as no body can claim any vested right in the policy. However, it cannot abdicate its power to decide 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."
It is sine qua non for invoking jurisdiction of High Court through constitutional petition that petitioner must be an aggrieved person and he must have a locus standi for availing such jurisdiction. Thus, the petitioner, being not aggrieved and unconcerned, has no locus standi to challenge the vires of the rules in question. As such, for the aforesaid reasons, the petitioner has failed to establish any right and its infringement by the respondents. The petition, being meritless, is dismissed, accordingly.