' M. SOHAIL IQBAL BHATTI, J.--- Through this single order, I propose to dispose of the instant writ petition as well as Writ Petition No,2549 of 2012 (Muhammad Arshad v. Federation of Pakistan etc.) as common question of law and facts is involved therein.
2. Brief facts of the case are that the petitioners are employees of Military Engineering Services. The respondents through publication made in the newspaper announced 28 posts of Assistant Executive Engineers (B&R/E&M). The minimum, qualification prescribed for this post was bachelor degree in Civil, Electrical, Mechanical, Architecture, Town Planning Engineering from a recognized University.
3. The petitioners being employees applied to their department and their applications were forwarded to respondent No,1 which also contained no objection certificate by the department. The candidature of the petitioners was rejected by respondent No,2 on the ground that the petitioners were holding B-Tech. (Hons) degree. The petitioners filed the representation to Chairman, Federal Public Service Commission which was rejected by respondent No,2.
4. Aggrieved by this rejection, the petitioners have invoked the extra ordinary constitutional jurisdiction of this Court seeking a direction to respondent No,2 to process the recruitment of the petitioners on merit against two vacant posts.
5. Learned counsel for the petitioners while advancing his arguments relied upon PLD 1995 Supreme Court 701 (Fida Hussain v. The Secretary, Kashmir Affairs and Northern Affairs Division, Islamabad and another). It was submitted that the Government of Pakistan in order to encourage the diploma holders to improve their academic qualifications, resolved to prescribe course, namely B.Tech. pass and B.Tech. (Hons). In this behalf the then Minister of Education and Provincial Co-ordination addressed a letter dated 26-10-1973 to the Governors of the four Provinces. It was provided in the said letter that B.Tech (Hons) shall be treated at par with B.Sc. (Engineering)/B.E. degree. Pursuant to this policy the courses of B.Tech pass and B.Tech (Hons) were initiated. It was further contended that the act of the respondent is discriminatory and tainted with legal malice as initially respondent-department had made appointments to the post of Assistant Executive Engineer (B&R/E&M), Ministry of Defence, M.E.S; my attention has been drawn to Notification dated 26-11- 2009 which is a revised merit list of the candidates nominated by respondent No,2 and the individuals at Serial Nos.1 to 17 and 20 were holding B.Tech (Hons) degree. It has been further contended that equality of status is a guaranteed fundamental right and the petitioners cannot be deprived of their right to be appointed.
6. On the other hand, the learned Standing Counsel has objected to the maintainability of the writ petitions. It has been further submitted that B.Tech. (Hons) has not been recognized by Pakistan Engineering Council, therefore, it cannot be treated as an equivalent degree to B.Sc., and the order of rejection of candidature of the petitioners has been rightly passed. Learned Standing Counsel has further argued that the rules of recruitment in Military Engineering Services had been changed in the year 2010. Initially the appointments were made against the posts of Assistant Executive Engineers of the candidates holding B. Tech. (Hons) degree but under the new rules the candidates holding B. Tech. degree are not eligible to be appointed as Assistant Executive Engineers but he has failed to produce those rules despite opportunities granted by this Court.
7. I have considered the arguments advanced by the learned counsel for the parties and have also perused the record minutely.
8. I would first decide the question of maintainability of this writ petition. When High Court does not entertain a constitutional petition when other appropriate remedy was available; is not a rule of law barring jurisdiction, but a rule by which the Court regulates its IA jurisdiction.
9. Where a statutory functionary acts, malafidely or in a partial, unjustified and oppressive manner, the High Court in exercise of its writ jurisdiction has power to grant relief to the aggrieved party. The Full Bench of this Court in a judgment reported as Messrs Chenab Cement Product (Pvt.) Ltd. and others v. Banking Tribunal, Lahore and others (PLD 1996 Lahore 672) has held that the constitutional jurisdiction of High Court for reviewing acts, actions or proceedings which suffer from defect of jurisdiction or are coram non judice or mala fide (be malice in fact or under law) remains available; and the constitutional jurisdiction vesting in High Court under Article 199 of the Constitution cannot be taken away or abridged or curtailed by subordinate legislation. The Hon'ble Full Bench further observed that the provisions providing remedy of appeal in a statute/subordinate legislation cannot be considered to have taken away the jurisdiction of the Superior Courts. I am further fortified in my view by the judgment of the Hon'ble Supreme Court reported as Commissioner of Income Tax v. Messrs Eli Lilly Pakistan (Pvt.) Ltd. (2009 SCM R 1279. In this view of the matter, I hold that the present writ petitions are maintainable.
9. I do not find myself in agreement with the stance taken by the respondent-department that since the petitioners are holding B. Tech (Hons) degree which is not equivalent to B.Sc (Engineering), therefore, the petitioners cannot be appointed against the post of Assistant Executive Engineer. This position taken by the department is belied by its own documents and the statement made by the representative of respondent No,2 who conceded that through Notification dated 26-11-2009 appointments were made against the posts of Assistant Executive Engineer and four persons mentioned in the said Notification were holding B.Tech. (Hons) degree in Civil Engineering. Similarly, even if it is believed that the recruitment rules have been changed in the year 2010, it cannot affect the rights of the petitioners, as they applied C against the posts of Assistant Executive Engineer in the year 2009 and any subsequent change in rules cannot have a retrospective effect. I cannot hold myself back from observing that the service of the petitioners is not governed by Pakistan Engineering Council Act. The provision of Act are applicable only to the professional Engineers and Consulting Engineers who are in practice and not to the persons working in Government departments. I would refer to the Office Memorandum dated 17-4-1996 issued by the Government of Pakistan, Ministry of Education which was forwarded to all the Ministries, Divisions concerned, Chief Secretaries Punjab, Sindh, N.-W.F.P., Balochistan and AJ&K as well as Secretaries Education of all the Provinces and Chairman, Pakistan B.Tech Engineering Council which is re-produced as under:--- "The undersigned is directed to state that in pursuance of the judgment of the Supreme Court dated 5th June, 1995 in Suo Motu Review Petition No,52 of 1993 and in line with the Policy . decision contained in this Ministry's letter No,F.15-29/73- Tech., dated 26-10-1973 for introduction of B. Tech Programme, it is reiterated that B. Tech (Hons.) degree shall be treated at par with B.Sc. Engineering/B. E. degree."
10. In view of my above discussion, it seems that the petitioners have been dealt with in a discriminatory manner. The respondents have failed to explain the rationale behind refusal to entertain the applications of the petitioners whereas it is established that the previous applications of the candidates holding B.Tech (Hons) degree have been entertained and appointments have been made against the posts of Assistant Executive Engineers which fact has not been denied by the Assistant Director (legal) appearing on behalf of Federal Public Service Commission. As far as the subsequent change of appointment rules is concerned. I am of the view that rules cannot have a retrospective effect and the petitioners who applied for the post against Assistant Executive Engineer would not come within the mischief of these rules.
11. For what has been discussed above, both the writ petitions are accepted. The letters dated 29- 12-2010 issued by the respondent No,2 to the petitioners in both the writ petitions are set aside. The decisions made upon the review petition filed by the petitioners are also set at naught. Both the writ petitions are remitted back to respondent No,1 to make a fresh decision in the light of the observations made by this Court.