' SHAHID ANWAR BAJWA, J. With consent of the learned counsel these constitutional petitions were finally heard at Katcha Peshi stage and are being decided accordingly.
2. Constitutional Petition No,D-2617 of 2011 (Sikandar Ali Mallah and others v. Province of Sindh and others) along with other petitions was decided by a Division Bench of this Court (of which one of us; Shahid Anwar Bajwa, J, was a member) on 15-12-2010. Question involved in that petition was that a 'meeting of Departmental Promotion Committee of Local Government Board was held which meeting decided to recommend quota for promotion to the post of BS-18 for those holding qualification of Degree in Engineering, Bachelor of Technology (honours) and Diploma holders: quota was recommended to fix 50 %, 35% and 15% respectively. Such decision by the Local Government Board were held to be beyond is competence and ultimately it was observed in the judgment as under:--- "In the present case, the key question is whether there was any quota or not; whether there was any provision in the rules for promotion to BS-18 or not; whether there was any approval for any quota or not and whether if there is a provision in the rules and there is no approval for quota laying down of any quota merely on the basis of recommendations and action taken on the basis of such recommendations would be sustainable in law or nor. The answer to all these question is that there is a specific provision for promotion to BS-18 which does not prescribe a quota and no quota has been approved so far and rules have not been amended for such purpose.
Consequently we set aside the notifications dated 17-12-2009 and 31-10-2009 by which notifications on the basis of quota (albeit with transfer of posts from one to the other) promotions were granted to B.Tech. (Hons) and Graduate Engineers respectively and direct the departmental authorities to consider cases of promotion strictly in accordance with the rules and contained in Rules of 1982. In view of these findings we do not think it would be necessary to decide other grounds raised by Mr. M.M. Aqil Awan."
3. It may be pointed that after deciding quota D.P.C. Had recommended promotion of 7 Graduate Engineers and 8 Bachelor Tech. (Hons) Degree holders. After decision was made in that petition Provincial Government published in Gazette suggested amendments in the relevant rules and thereafter vide Gazette Notification dated February 24, 2011 rules were amended. Before amendment in the rules rule for promotion from BS-17 to BS-18 was as under:- "The members of the service shall be liable to transfer from one council to another council in the following manner:- ' In the case of members of the service in Basic Scale 19 and above by the Chief Secretary.
(b) In the case of members of the service in Basic Scale 17 and 18 by the Secretary to Government of Sindh, Housing, Town Planning, Local Government and Rural Development Department, subject to the condition that transfer of a member of the service in [Basic Scale] 18 before completion of two years of his existing posting shall be made with the approval of the Chief Secretary.
(c) In the case of members of the service in Basic Scale 16 by the Additional Secretary (Local Government), Housing, Town Planning, Local Government and Rural Development Department; and
(d) In the case of members of the service below [Basic Scale] 16 by the Secretary, Sindh Local Government Board."
4. This rule was amended vide Notification dated 19-2-2011 printed in the Gazette of Sindh on 24-2- 2011 and it now provides as under:--- "(i) Fifty percent by promotion from amongst the members of the service in BS-17 of the Engineering Branch with at at least 5 years experience and possessing of B.E. Or B.Sc in Civil, Electrical or Mechanical or an equivalent degree from a recognized University or Institution and registered with Pakistan Engineering Council;
(ii) Thirty five percent by promotion from amongst the members of the service in BS-1 7 of the Engineering Branch with at least 5 years experience and possessing degree of B. Tech (Hons) in Civil, Electrical or Mechanical from a recognized University or Institute;
(iii) Fifteen percent by promotion from amongst the members of the service in BS-17 of Engineering Branch possessing Three years Diploma in Civil, Electrical or Mechanical with at least five years service."
5. It may not be out of place to mention here that for promotion to BS-17 rules provides as under:- "Minimum Qualification: Degree in engineering or B. SC (Engineering) of an equivalent qualification in Civil or Mechanical and Electrical Engineering from a recognized University.
(i) 50% by initial appointment.
(ii) 20% by promotion from amongst the Sub-Engineers having qualification, of BE/ B..Sc. In Civil, Electrical or Mechanical with at least five years service as such.
(iii) 15% by promotion from amongst the Sub-Engineers having qualification of B. Tech (lions) with at least five years service as such.
(iv) 15% by promotion from amongst the diploma holders Sub-Engineers on the basis of seniority- cum-fitness with at least five years service as such.
' Note: Seniority of Sub-Engineers would be maintained separately qualification wise i,e, B.E., B.Tech (Hons.) and diploma holders. "
6. The petitioners in C.P. No,D-252 of 2011 are Diploma Holders who are aggrieved by amendment in rules. Petitioner in C.P. No,D-2567 of 2011 is a Bachelor Technology degree holder and he was promoted before change in the rules and his grievance is that his promotion made earlier may be treated as ad hoc promotion and should be regularized with effect from that date rules were amended. Petitioners in C.Ps.Nos. D-323 and 511 of 2011 are either Bachelors in Engineering or Bachelors in Technology degree holders who are otherwise in the same boat as is. Petitioner in C.P.No,D-2567 of 2011.
7. Malik Naeem Iqbal learned counsel for petitioners in C.P. No,D-252 of 2011 made following submissions:---
(i) That the amendment in rules is mala fide, arbitrary, hasty and unreasonable. There is a large number of diploma holders and that in view of the amendment laid down in rules their prospects for promotions have been drastically reduced. Competent authority while framing the rules should have considered relevant strength of persons in various categories. He relied upon unreported judgment of Division Bench in C.P. No,D-368 of 2007 passed on 22-10-2010. -Learned counsel submitted that all those in BS-17 irrespective from which stream they came to BS-17 i,e, directly appointed as graduate engineers or promoted from' below who are being Diploma Holder or Bachelor of Technology degree-holders essentially performed same function. They are equally in all respect and, therefore, their classifications in different categories is, ex facie, discriminatory and cannot be sustained.
(ii) Learned counsel submitted that since there is no quota for different classifications of diploma holders for promotion from BS-18 to 19 there is no earthly reason that quota should be prescribed for promotion from BS-17 to 18.
(iii) He submitted that consequence of judgment of this Court in Sikandar Ali Mallah's case (supra) is decision of D.P,C. Was set aside and, therefore, if at all there should be fresh consideration by a fresh Departmental Promotion Committee.
8. Mr. A.D. Shah learned counsel for petitioner in C.P. No,D-2567 of 2011 firstly submitted that notification is void because it requires publication in the Gazette and it has .Not been so published.
However, when confronted that notification has been published on 24-2-2011 learned counsel did not press this ground. Learned counsel referred to Section 2(d) of the Sindh Civil Servants Act, 1973 and submitted that promotion granted to petitioner be treated as ad hoc promotion and since they have already been cleared by D.P.C. Promotion be notified as regular promotion with effect from the date of Gazette notification.
9. Mr. Khalid Javed Khan learned counsel for petitioners in C.P.No,D-323 of 2011 made the following submissions:---
(i) Nobody has right to insist for consideration in accordance with earlier rules which arc PO longer in existence. He relied upon Abdul Farid v. N.E.D. University of Engineering and Technology, Karachi and another (2001 CLC 347).
(ii) Classification permitted if it is reasonable and rational. Classification on the basis of different educational qualifications has been accepted as valid by Courts. He relied upon Muhammad Shabbir Ahmed Nasir v. Secretary, Finance Division, Islamabad and another (1997 SCMR 1026), Mujeeb Ahmed and others v. Province of Sindh and others 2011 PLC (C .S.) 1193, Muhammad Ishaque and others v. Government of Punjab through Chief Secretary and others (2005 SCMR 980), Zafar Iqbal and another v. Director, Secondary Education, Multan Division and 3 others (2006 SCMR 1427) and Imtiaz Ahmed and others v. Punjab Public Service Commission through Secretary, Lahore and others (PLD 2006 SC 472). Regarding difference between Graduate (Eng) and Bachelor (Tech) degree holder learned counsel relied upon Muhammad Younus Aarin v. Province of Sindh through Chief Secretary, Sindh, Karachi and 10 others (2007 SCMR 134) and Eijaz Ahmed Shah v. Federation of Pakistan through Federal Establishment Secretary, Cabinet Secretariat Establishment Division, Government of Pakistan, Islamabad and 6 others (PLD 2010 Karachi 309).
(iii) Notification is curative and therefore retrospective in operation. A Lacuna was pointed in the judgment passed in Sikandar Ali Mallah's case and same has been filled: the judgment should stands nullified. Learned counsel relied upon State of Jammu and Kashir v. Shri Trilok Nath Khosa and others [1974] ICC 19). Regarding effect and validity of curative rules learned counsel relied upon Syed Wajid Ali and 4 others v. Globe Automobiles Ltd. And another (1993 SCMR 819) and Mehr Zultikar Ali Babu's case (PLD 1997 SC 11). Regarding effect of judgment being nullified learned counsel relied upon Ardeshir Cowasjee and others v. Province of Sindh and others 2004 CLC 1353 and Ashfaq Ahmed v. The State (2007 SCMR 641).
(iv) Learned counsel submitted that Courts always take into consideration change in the circumstances during pendency of a matter. He submitted that vide notification 23-12-2011 many persons have been promoted on quota basis and they included 17 engineers, 11 bachelor technology degree holder and 5 diploma holders and with notification of quota these promotions should stand regularized. Learned counsel read the following from the minutes of meeting of D.P.C.
Held on 6-10-2009:-- {{TABLE}} ITEM NO.1 RESOLUTION Separation of seniority of BS- 17 (Civil) officers of SCUG Service (Engineering Branch) qualification wise from the date of passing fixation of quota for promotion to BS- 18.The Board was apprised that in 2005, the quota was fixed for promotion from Sub- Engineer (BS-11) to AEE (BS-17) by Sindh Local Government Board in its meeting held on 14-4-2004 and notified vide amendment dated 8-10-2005 as under: Minimum Qualification: Degree in engineering or B. SC (Engineering) or an equivalent qualification in Civil or Mechanical and Electrical Engineering from a recognized University:--- (i) 50% by initial appointment. (ii) 20% by promotion from amongst the Sub-Engineers having qualification of BE/ B.Sc in Civil, Electrical or Mechanical with at atleast five years service as such. (iii) 15% by promotion from amongst the Sub-Engineers having qualification of B.Tech (Hons) with at least five years service as such. (iv) 15% by promotion from amongst the diploma holders Sub-Engineers on the basis of seniority-cum-fitness with atleast five years service as such. Note: Seniority of Sub-Engineers would be maintained separately qualification wise i.e. B.E. B.Tech (Hons) and diploma holders.Accordingly the seniority lists of Sub-Engineers (BS-11) were also maintained separately on basis of quotaIn view of the above, it was brought to the knowledge of the Board that while making this decision in the matter aspect was not addressed that what would happen for the promotion from BS-17 to BS-18 for qualification wise quota had already fixed in lower grade of AEE (BS-17); Under this situation Board is feeling now very difficulty in considering/ processing the promotions of AENs from BS-17toBS-18 and in the result the supervision of day-to- day engineering work is suffering in the CDGK and TMAs very badly.Accordingly the Board recommended that the qualification wise quota, which has already been approved by the Board and the Competent Authority viz Chief Minister Sindh vide amendment dated 8-10-2005 for promotion from BS-11 to BS-17, may also be considered and fixed for promotion from BS-17 to BS-18 as per procedure also laid down in sister departments i.e. Education and Works and Services Departments.
This way disparity among departments within Government of Sindh would be removed and on other hand SLGB would be enabled to consider the promotions from BS-17 to BS-18 presently are awaiting for resolution.The Board further recommended that the seniority list in BS-17 may also be maintained separately qualification wise i.e. BE/B.Sc and B.Tech (Hons) respectively as per advice of SGA&CD (Regulation Wing) bearing No. SO-III (S&GAD) 1014/08 dated 5-12-2008 to enable the administration to maintain quota strictly within any error during promotion from BS-17 to BS-18 (Civil).The Board recommended that the following quota may be fixed for promotion from BS-17 to BS-18 (Civil) of SCUG Service (Engineering Branch) keeping in view the quota fixed by Education and Works and Services Departments to maintain uniformity in the policy at Provincial level:" {{TABLE}} ' Thereafter Board recommended what has now been incorporated in the rules. Learned counsel submitted that this is the rationale for change in rules. He submitted that essential rationale is that the same provision exists for promotion to BS-17 as well as in existed for BS-18 in other departments.
10. Mr. Gul Zameer Solangi learned counsel for petitioner in C.P.No,D-511 of 2011 adopted arguments of Mr. Khalid Javed Khan and submitted that government can always classify and categories and he relied upon Dr. Muhammad Hussain v. Principal, Ayub Medical College and another (PLD 2003 SC 143) and Zafar Iqbal and another (supra).
11. Mr. Muhammad Sarwar Khan learned Additional Advocate General Sindh submitted that rules have been validly amended and they have been amended to avoid and to resolve controversy between different qualification holders. He submitted that same process is applicable in other department. He submitted that petitioners who have been promoted under the previous rules if they fall within reserved quota, there promotion be treated as ad hoc till rules came into existence and therefore, be regularized. He relied upon Province of West Pakistan v. Muhammad Akhtar Qureshi and others (PLD 1962 SC 428). He submitted that classification is reasonable and is, therefore, not discriminatory.
12. Exercising his right of reply Malik Naeem Iqbal submitted that rules cannot be given retrospective operation. He submitted that no diploma holder has been promoted after issuance of notification. It was denied by learned Addl. A.-G. Who stated that three such persons have been promoted in 2011.
13. We have considered submissions made by the learned counsel and have also gone through record as well as case-law cited at the bar.
14. First contention of Malik Naeem. Iqbal was that amendment in the rules is mala fide, arbitrary and unreasonable. He submitted that there is a large number of diploma holders and in view of amendment made in the rules, their prospects for promotions have been drastically reduced.
Learned counsel submitted that relevant strengths of persons in the three categories i,e, Engineering Degree Holders, Bachelor of Technology Degree Holders and Diploma Holders have not been considered while framing rules. Another leg of the same arguments of learned counsel was that while in BS-17 Engineering Degree Holder, Bachelor of Technology Degree Holder, Diploma Holder perform same job. Yet another limb of arguments of learned counsel was that there is no similar quota for promotion from BS-18 and BS-19. He relied upon order dated 22-10-2010 by a Division Bench of this Court passed in Mujeeb Ahmed's case (supra). In that case in the petition it was stated that petitioners were inducted into government service as Sub-Engineers BPS-11 with qualification of Diploma of Associate Engineering. They were promoted to BS-17 on regular posts.
Their contention was that though during their service they improved their qualifications to Bachelor of Technology, in the rules at that time no quota was fixed for Bachelor of Technology Degree Holders, though processes of amendment in rules had been initiated. Notification dated January 14, 1987 fixed 80% quota for Degree Holders and 20%. For Diploma Holders for promotion from BS-17 to BS-18. Notification dated June 4, 2008 changed quota for promotion from BS-17 to BS-18 to 60:30:10: A Division Bench of this Court considering longstanding grievance of Bachelor of Technology degree holders set aside notification dated June 4, 2008 and directed that quota be fixed by considering number of persons along with their requisite qualifications.
15. On the other hand, Mr. Khalid Javed Khan relied upon Abdul Farid's case (supra). Petitioner was a Bachelor of Technology. Thereafter he joined B-Tech (Hons) course which he passed in 1999.
Certain seats were reserved in University in 3rd years engineering classes, for those who had passed B-Tech (Hons). Petitioner applied, he was placed at Sr. No,2 of merit list with 1740 marks.
However, he was not given admission. A Division Bench of this Court observed as under:--- "
8. We have gone through the judgments cited by Mr. Farooqi and have no cavil with the proposition of law laid down therein.
' Learned counsel is indeed correct to the extent that the competent Authority can always change Rules of Admission and the petitioner could not claim to have acquired a vested right to be admitted according to the old Admission Rules or Policy. We would also prefer not to go into the question whether he had acquired a legitimate expectancy of such nature that would render the new conditions for admission per se invalid. There can also be no dispute as to the question that Rules and Policies laying down prerequisite for admission to specialized course and for determining the equivalence of one degree with another ought to be left to the best judgment of the experts and Courts should be slow to interfere with their decisions. Nevertheless, we cannot persuade ourselves to subscribe to the contention that a decision taken by such experts is altogether sacrosanct and it must be emphasized that such experts can only act within the framework of the Constitution and the law."
16. However, petitioner was allowed because classification was based on acquisition of same degree from two different institutions without any rational explanation and it was held as violative of Article 25 of the Constitution. Mr. Khan next relied upon Muhammad Shabbir Ahmed Nasir's case (supra), where the following has been observed:--- "26. From the above cited cases the following principles of law are deducible:---
(i) that equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that person similarly situated or similarly placed are to be treated alike;
(ii) that reasonable classification is permisible but it must be founded on reasonable distinction or reasonable basis;
(iii) that different laws can validly be enacted for different sexes, persons in different age groups, persons having different financial standings, and persons accused of heinous crimes;
(iv) that no standard of universal application to test reasonableness of a classification can be laid down as what may be reasonable classification in a particular set of circumstances, may be unreasonable in the other set of circumstances;
(v) that a law applying to one person or one class of person may be Constitutionally valid if there is sufficient basis or reason for it, but a classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25;
(vi) that equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed;
(vii) that in order to make a classification reasonable, it should be. Based---
(a) on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out;
(b) that the differentia must have rational nexus to the object sought to be achieved by such classification."
17. Learned counsel also relied upon Mujeeb Ahmed's case (supra). Observations in this case have been reproduced above. Learned counsel next relied upon Muhammad Ishaque's case (supra).
Leave to appeal was granted to consider whether petitioners could legally claim to be governed by the rules which prevailed at the time of their induction in service or by rules as at the date of relevant decision and it was held that civil servant has no right to claim that his promotion be regularized according to the rules and law earlier prevailing. Learned counsel next relied upon Zafar lqbal's case (supra). Rules in question were Punjab Education Department (School Education)
Rules, 1987 which rules were amended in 1992. Prior to the amendment petitioners were entitled to promotion but after amendment they were not so entitled. Supreme Court held as under:--- "---The Government is always empowered to change the promotion policy and the domain of the Government to prescribe the qualification for a particular post through amendment in the relevant rules, is not challengeable."
18. Learned counsel next relied upon Imtiaz Ahmed's case (supra). Petitioners were graduates and had qualified LL.B examination during the period from 1999 to 2004. At that time there was no condition providing for 2 years experience as practicing advocate of appearing before Punjab Public Service Commission for competition examination for posts of civil Judge/Judicial Magistrate.
Condition of two years experience was brought in by amending the rules vide notification dated 30-4-2004. Supreme Court observed as under:- "There is no cavil to the proposition that a Notification in the exercise of executive power or in the shape of subordinate legislation is not, retrospective in operation, consistently held so by this Court in a number of judgment, even cited by the learned counsel for the parties i,e, (1) Sh. Fazal Ahmed v. Raja Ziaullah Khan and another PLD 1964 SC 494, (2) Islamic Republic of Pakistan through Secretary, Ministry of Commerce and Local Government (Commerce Division), Islamabad v. Mazhar-ul-Haq and 2 others 1977 SCMR 509 and (3) Trustees of Port of Karachi and another v.
Zafar Zaid Ahmed 1988 SCMR 810. The question of retrospective application of the impugned amended rules is not involved for the simple reason that at the time when the applications were invited through public notice from the candidates by the PPSC, the petitioners were not eligible for want of requisite experience of two years active practice as enrolled Advocates with the Provincial Bar Council and their case was to be seen in view of the conditions of eligibility to qualify them to appear in the competitive examination in the light of existing rule and not when they had appeared for the first time in the competitive examination as no such conditions was provided under the then existing rules. Similarly, an identical proposition came up for consideration before this Court in a number of cases in which it was held that conditions, qualifications and criteria prevailing at the time of appointment ought to have been taken into consideration and not what were in the past nor a candidate has a vested right to claim to be governed by any particular set of rules and where unless relating to the subject have been modified, changed or altered, then the latter rules would prevail and supersede the former. In the instant case, no vested rights accrued to the petitioners under the old existing rules or by operation of law in view of the amended rules introduced through the impugned Notification which superseded the earlier Rules on the subject.
The law maker is fully competent to make rules, alter qualification or criteria for a particular posts and no one can make a grievance about the determination of the criteria of eligibility or about the conditions and qualifications provided by the competent authority or rule making authority for appointment and selection against the post, which are to be considered as it exit at the time of appointment or inviting applications from the candidates for such post, as the case may be, as well, as so held by this Court in a number of cases, out of which some of the relevant reported judgments can be conveniently referred i,e, (1) Government of N.-W.F.P., Health and Social Welfare Department through its Secretary v. Dr. Sheikh Muzaffar Iqbal and others 1990 SCMR 1321 = Government of N. -W.F.P. Health Department and Social Welfare Department v. Dr. Sheikh Muzaffar Iqbal 1990 SCMR 1524, (2) Federation of Pakistan through Secretary, Government of Pakistan Establishment Division, Islamabad v. Mirza Muhammad Irfan Baig and 4 others 1992 SCMR 2430,
(3) Dr. Mrs. Shahnaz Akhtar, Associate Profession v. Government of N.-W.F.P. Through Chief Secretary, Peshawar and others 1998 PLC (C.S.) 1112, (4) Mumtaz Ali Bohio v. Federation Public Service Commission through Chairman at Islamabad and another 2002 SCMR 772, and (5) Dr. Muhammad Hussain v. Principal, Ayub Medical College and another PLD 2003 SC 143. In view of the law laid down in the above mentioned judgments of this Court the petitioners cannot claim to be governed under the old rules, substituted subsequently by amending Rule 7 of the Rules through the impugned Notification."
19. Learned counsel relied upon Eijaz Ahmed Shah's case (supra) which is judgment by a Division Bench of this Court (of which Bench one of us, Shahid Anwar Bajwa, J was a member). Rules for appointment to BS-17 provided 50% through direct recruitment, 20%, 15% and 15% by promotion amongst three categories enumerated above. Petition was filed challenging such quota. Case of Muhammad Younus Arain (supra) was also referred and then it was observed as under:--- "21 The above discussion indicates the position to be very clear. Firstly; it is the domain, and exclusive domain of the Pakistan Engineering Council to recognize or not to recognize an engineering qualification. In fact, reading of Schedule II indicates that in certain cases Diplomas granted by foreign institutions e.g. Austria, Czechoslovaka, Hungry, Switzerland etc. Are recognized as engineering qualification and in certain other cases Master Degree in Engineering is recognized as Engineering Qualification. Therefore, it is exclusive domain of Pakistan Engineering Council to recognize or not to recognize a particular qualification. Secondly, Pakistan Engineering Council being apex body of engineering profession in Pakistan, just as Pakistan Bar Council is apex body of legal profession in Pakistan, Pakistan Medical and Dental Council is the apex body of medical profession in Pakistan has jurisdictions to recognize degrees issued by various educational institutions in Pakistan as well as abroad. Thirdly, and it should go without saying, for recognition of such degrees council must be considering standards of education of particular institution, contents of the courses, horizontal spread and vertical depth of the course, and whether standards and contents of curriculum of training tests contained for the two different degrees are similar or identical and other cognate factors before arriving at the conclusion whether a particular educational qualification should be or should not be recognized. Fourthly, this Court cannot substitute its finding for finding by a professional body which has been conferred jurisdiction to grant recognition or not to grant recognition to a particular educational qualification."
20. A perusal of above case-law indicates that the position in law in this regard is as under:---
(i) No one has right to be considered in accordance with rule, applicable at the time when rules are brought into existence but are amended subsequently. Material time will be the time at which decision is being made.
No doubt change in the rules or notification is always prospective but it is prospective qua the time of consideration and not qua the time regarding employee who was earlier inducted.
(iii) Classification based on different categories of qualification cannot be said to be arbitrary or unreasonable.
(iv) Therefore, it is within domain of departmental authority and rule D making authority to prescribe quota for person coming out of different streams of qualifications.
(v) Government can always change promotion policy ##T##.
(vi) It is within domain of government to prescribe qualification for particular post through amendment in the relevant rules. ##T##
(vii) Since three classifications are not recognized to be equal by the apex body for regularizing and recognizing qualifications for engineering discipline it cannot be said that qualification should not be form basis for laying down quota for consideration of promotion.
(viii) It is for the departmental authority to decide and rule making authority to lay down as to till what level qualification should be given what importance. Fact that qualification has been laid down for promotion to BS-17 would not mean that a quota must be laid down for promotion to BS-
18. Vice versa if no quota is laid down for promotion to BS-19 it cannot be said that laying down quota to BS-18 is violative of equality or is discriminatory. Mujeeb Ahmed's case (supra) is distinguishable because there was 20 years backlog where no promotion for Bachelor degree of Technology holders had taken place.
21. Next contention of Malik Naeem Iqbal that since all employees in BS-17 perform the same job, therefore, there should not be any classification for promotion to BS-18 is also without substance.
When a person is sought to be promoted the competent authority is required not only to look at past conduct of the employee or past performance of employee but also assess competence in respect of his ability to shoulder higher responsibility, if he is promoted. Merely looking at past conduct of an employee would amount to driving a car blindfolded being guided by a person who is looking out of back window. Even if two employees are doing the same job, and let us say with equal efficiency, it is for DPC/CSB/PSB to assess as to which one would be more suitable for next higher responsibilities. Similar would be the position in respect of qualifications: the rule making body may prescribe quotas based on qualifications.
22. Learned counsel relied upon Shri Trilok Nath Khosa's case (supra). In this case the following principles were laid down:---
(i) Operation of a service rule cannot be deemed to be retrospective for the reason that it applies to existing employees.
(ii) Government can unilaterally change rules and consent of employee cannot be a pre-condition for validity of such a change in the rules.
(iii) Academic or technical qualification as bases on matters of promotion are reasonable qualifications.
(iv) Legislature is competent to lay down such qualification.
23. Consequently, Constitutional Petition No,D-252 of 2011 is dismissed.
24. Mr. A.D. Shah, Mr. Khalid Jawed Khan and Mr. Gul Zamir Solangi submitted that in D.P.C. Meeting held on 6-10-2009 their clients were recommended for promotion on the basis of quota. At that time no quota had been prescribed by rule and, therefore, this Court in Constitutional Petition No,2617 of 2011 set aside the promotion orders. Now it is their contention that quota that was recommended at that time has now been incorporated in rules and notification in the gazette has been printed on 24-2-2011. They relied upon section 2(1)(d) of the Sindh Civil Servants Act which defines ad hoc appointment as one of a duly qualified person made otherwise that is in accordance with prescribed method of recruiting. Their contention was that when D.P.O. Approved their promotion it was improper only to the extent that quota had been fixed by the D.P.C. Which D.P.C. Could not have done.
25. Mr. Khalid Jawed Khan in this regard relied upon Syed Wajid Ali's case (supra), In this case Chief Settlement Commission by a Press Note announced a policy of auction of houses and shops in possession of locals or not transferable. List of such properties was prepared which included the shop in question. It was then put to auction: a PTO was issued, Respondent No,1 addressed letter to predecessor-in-interest of the appellant stating that they had been tenants and tendered rent.
Deputy Settlement Commissioner obtained permission from the Additional Settlement Commission to review order of transfer by auction and thereafter held that property was not auctioned in accordance with law. Appeal was filed which was accepted and revision was dismissed by Settlement Commissioner. Second revision was disposed of by the Chief Settlement Commissioner. Constitutional petition was allowed and matter reached the Supreme Court.
Meanwhile, Displaced Persons Law Amendment Ordinance, 1964 was passed. It was held that validation statutes are curative and remedial and they operate retrospectively and correct omissions and mistakes. It was further held that they have to give effect in pending proceedings. It was further held that judgment given by the Court until the time it attained finality was subject to the power of Legislature to enact curative legislation which had to be given effect to in pending proceedings.
26. Learned counsel next relied upon Mehr Zulfikar Ali Babu's case (supra). It was observed by the Supreme Court as under:--- "16. This leads us to the submission of Mr. Iftikhar Hussain Gilani that since section 2 of the Repeal Act has not expressly provided for nullifying, the judgment dated 26-6-1996 of this Court, the same holds the field. No doubt that in above section 2 the words "notwithstanding the judgment of the Supreme Court or of any other Colin" have not been used, but the language employed therein clearly manifests the legislative intent to nullify the above judgment of this Court as to the reinstatement of the members of the local councils for the remaining period expiring on 9-2-1997 by providing in above-quoted subsection (2) of section 2 that the members of the local councils shall cease to hold office. In this view of the matter, the omission to employ non obstante clause in the above section is of no legal consequence. The above provision in fact and in law has nullified the effect of the above judgment of this Court."
27. Learned counsel also referred to case of Ashfaq Ahmed (supra). This case does not appear to have any relevance with point in issued in the present matter.
28. Learned counsel also relied upon Ardeshir Cowasjee's case -(supra) where besides observing that mala fide cannot be attributed to Legislature and Court cannot sit in judgment over wisdom of Legislature, it was held as under:--- "20. Having considered the respective contentions of learned counsel, we are unable to agree that judicial power stands eroded by enactment of the impugned provisions. In the first instance it needs to be kept in view that approval of a building plan is not the function of a Court but that of an authority possession required expertise and given such powers under the law. All that section 5 appears to have done is to extend such powers in enabling the respondent No,2 even to accord post facto approval to a building already constructed subject to certain conditions and limitations. Indeed even in the case of Molasses Trading (1993 SCMR 1905) their Lordships conceded that by giving retrospective effect to a law, the Legislature could neutralize the effect of an earlier decision of a Court. Moreover, Mr. Zuberi candidly conceded that any regularization effected in violation of the impugned Ordinance could always be subject to judicial review. We therefore, find ourselves unable to subscribe to the petitioners' viewpoint."
29. In Sikandar Ali Mallah's case (supra) this Court came to the conclusion that there was no rule laying down quota and laying down quota in absence of rule by D.P.C. Could not be done and, therefore, it set aside the impugned orders. Thereafter on 24-2-2011 the defect that was pointed out by this Court has been removed by amending rules and amendment provided for the quota exactly as proposed by D.P.C. As D.P.C. Did two things; firstly, it recommended change in rules and then applied it. Later part could not have been done. Secondly, D.P.C. Assessed performance of certain employee and declared them fit for promotion: that D.P.C. Certainly could have done.
Therefore, mere fact that D.P.C. After having assessed, recommended them for promotion according to quota and quota and laid down by D.P.C. Was held ultra vires, did not and should not mean that even assessm ent for fitness of persons was also washed away. Therefore, contention of all the three counsel, Messrs Khalid Jawed Khan, Gul Zamir Solangi and A.D. Shah duly supported by Mr. M. Sarwar Khan learned Additional Advocate General Singh that their promotion be treated as ad hoc till the date amendment of rules i,e, on 24-2-2011 and thereafter it be notified for regular promotion is not without force.
30. Here reference may be made to submission made by Malik Naeem Iqbal that no diploma holder has been promoted. Although, Learned Addl. A.-G. Stated that some diploma holders have been promoted. Considering this aspect we dispose of Constitutional Petitions Nos.D-323, 511 and 2567 of 2011 in the following terms:---
(i) Based on D.P.C. Already held if persons have been declared fit for promotion are according to quota laid down in the amended rule their promotions be declared as regular and notified accordingly with effect from 24-2-2011.
(ii) If requisite number of diploma holders have not been promoted, D.P.C. Is ordered to be held for promoting such number of diploma holder as meets the required number in accordance with rule now in force.
(iii) Departmental authority shall in future strictly follow laid down quota in the rules and shall maintain separate seniority lists.
31. Result of above discussion is that Constitutional Petition No,D-252 of 2011 is dismissed.
Constitutional Petitions Nos.D-323, 511 and 2567 of 2011 are disposed of in above terms.