' ANWAR ZAHEER JAMALI, J. --- These three identical civil petitions for leave to appeal arise out of common judgment dated 22.10.2010 in C.Ps. No. D-368/2007, D-184/2009 & D-823/2009, passed by a learned Division Bench of the High Court of Sindh at Karachi, whereby these petitions were disposed of with the following observations, contained in penultimate paragraph of the impugned judgment.
"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-18), 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."
2. Succinctly, relevant facts of the case are that by above cited three Constitutional petitions, respectively instituted on 7.3.2007, 20.1.2009 and 9.5.2009, twelve petitioners serving in the Works and Services Department, Government of Sindh in different positions, had agitated their grievance against the official respondents regarding their purposed policy of appointment/promotion against the post of Executive Engineer (BPS-18) in works and services department, in CP No. D- 368/2007 seeking publication of vetted notification by the law department in respect of amendment in recruitment rules, for the post of Executive Engineer (BPS-18) with further prayer of promotion against the same posts on the basis of unamended old recruitment rules, and CPs No. D-184/2009 & D-823/2009 challenging the legality of notification dated 4.6.2008, issued by the Government of Sindh, determining their inter se appointment quota through promotion against the vacancies of Executive Engineer (BPS-18) as under:-- S.No. Name of Post Method of Appointment Executive Engineer (BPS-18) Works & Services Department.60% by promotion from amongst the Assistant Engineers B.E. in Civil, Electrical or Mechanical Engineering or equivalent with at least five years service in BPS-17.
30% by promotion from amongst the Assistant Engineers having B- Tech (Hons.) degree in Civil, Electrical or Mechanical Engineering with at least five service in BPS-17.
10% by promotion from amongst the Assistant Engineers having'
Diploma in Civil, Electrical or Mechanical Engineering from a recognized Institute with at least five years service in BPS-17.
Executive Engineer (BPS-18) Education Works Department.60% by promotion from amongst the Assistant Engineers B.E. in Civil or equivalent with at least five years service in BPS-17.
30% by promotion from a m o n g st the Assistant Engineers having B-
3. It needs to be clarified here that it was during the pendency of first petition before the High Court of Sindh since the year 2007, agitating above grievance, that Government of Sindh had issued the impugned notification, revising promotion quota of different categories of civil servants working in BPS-17 as Assistant Engineers, holding B.E. degree. B.Tech degree or diploma qualification.
4. After due contest between the parties regarding this controversy, the learned Division Bench in its consolidated impugned judgment in these connected petition came to the conclusion that looking at the ground realities about the number of Assistant Engineers holding B.E. degree B.Tech.
(Hons.) degree or diploma qualification, such notification defining their inter se quota for appointment through promotions was, inter alias violative of Articles 3 and 25 of the Constitution as well as against the spirit of earlier notification dated 14.1,1987 to the same effect, which remained in vogue for a long time as departmental practice without any grievance of ineligibility or discrimination.
5 Mr. Muhammad Kassim Mirjat, learned ASC for the petitioners from the office of Advocate General Sindh argued this case and contended that the petitioners have sole prerogative for taking policy decisions regarding the appointment/promotion quota of Government servant from time to time, therefore, interference in such discretionary powers of the government by a judicial forum through its impugned order who unjustified, uncalled for, being encroachment over the executive authority of the Government and thus liable to be set aside. Learned ASC when confronted with the factual aspects of the case about the number of Assistant Engineers (BPS-17) who hold B.E. degree, those who hold B.Tech (Hons.) degree and those holding diploma, did not controvert such aspect of the matter, so also the fact that the earlier notification to this effect dated 14.1.1987 remained operative uptill 3.6.2008, for a period of over two decades without any cause of grievance from any corner,
6. Keeping in view the short submission of learned ASC for the petitioners, as noted above, we have carefully perused the material placed on record with these petitions, more particularly the common judgment impugned therein, which reveals that learned Division Bench in the High Court of Sindh, while deciding the three connected petitions, had taken detailed note of various contentions raised by the learned counsel for the parties before it with reference to the peculiar facts of the case and thereafter recorded its reasons for passing the impugned order, inter alia, as under:--- "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.
' 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 that 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 09 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 06 Assistant Engineers will remain. Such 209.6=09.3, on the face of it, seems to be irrational, illogical, treasonable and discriminatory. In this way, the Assistant Engineers holding B,Tech (Hcns,) 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 arid 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 an 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 rules/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 been 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."
7. Indeed, Article 25 of our Constitution mandates for equality of all citizens, but subject to the doctrine of reasonable classification, which is an exception to it and can be pressed into service by the Government or the concerned authority while enacting laws or taking policy decisions. The doctrine of reasonable classification, for its enforcement, has again well-defined parameters that it should be made on the basis of intelligible differentia looking to the ground realities and the object of providing such purported reasonable classification should not be arbitrary or with some ulterior motive or to oblige certain individuals or groups in a mala fide manner, otherwise, this Court as well as the High Courts have ample powers to strike down such illegal actions transgressing the fundamental principle of equality of ali citizens, enshrined under Article 25 (ibid). If any case-law is needed to highlight the scope of Article 25 of the Constitution qua the concept of reasonable classification, a reference to the following judgments will be useful:
(i) Dr. Mobashir Hassain v. Federation of Pakistan (PLD 2010 SC 265).
(ii)Nazar Hussain v. State (PLD 2010 SC 1021).
(iii)NWFP Public Service Commission v. Muhammad Arif (2011 SCM R 848).
8. Based on the foregoing discussion, and looking at the factual aspect of the case recorded in the impugned judgment, which remained, uncontroverted, we have reached to an irresistible conclusion that the impugned notification dated 4.6.2008, was discriminatory in nature, aimed to accommodate certain individuals, violative of fundamental rights relating to equality of all citizens qua reasonable classification, as well as against the principle of justice, equity and fair play, thus, rightly set aside by the High Court. Such view of the matter is thus unexceptionable,
9. Leave to appeal is accordingly refused and these petitions are dismissed