S. ABDUL JABBAR KHAN (CHAIRMAN). -Messrs Mukhtar Ahmad, Mehar Ghulam Rasool, Muhammad Ibrahim, Muhammad Aslam Maugat, Ghulam Rasool son of Ch. Muhammad Boota and Abdul Hamid, have filed this appeal under section 4 of the Punjab Service Tribunal Act. 1974, in which they have impleaded Government of the Punjab through Chief Secretary, S&GAI Department and Secretary to Government of the Punjab, Agri--culture Department, Lahore, as respondents.
2. By virtue of this appeal it has been prayed that the notification dated 28-7-1978, by which the earlier Class I Rules, 1965, were amended, be declared without any legal effect, void and without lawful authority. 1t has been further prayed that the respondents be directed to consider the case of the appellants for promotion on the basis of seniority-cum-fitness.
3. Brief facts of the case are as under :-- All the appellants were appointed as Assistant Agriculture Engineers in November, 1968. The appellants have put in 12 to 13 years' service in Grade-17 and according to the seniority list dated 28-3-1978, the appellants are now among the 10 senior most Assistant Agriculture Engineers. All these six appellants were recruited through the Public Service Commission in accordance with the provisions of West Pakistan Agriculture Engineering (Class 11) Rules, 1963. At the time of their recruitment the appellants possessed the minimum qualification as prescribed by rule 7(l) of 1963 Rules, placed with the appeal as Annexure `B'.
Some controversy arose regarding the eligibility of the appellants under Rules 1963 and the matter went before the Supreme Court of Pakistan The Supreme Court of Pakistan vide their judgment dated 29-10-1971, in Civil Appeal No. 43 of 1970, Mukhtar Ahmad v. Government of West Pakistan (PLD 1971 SC 846) resolved this issue in favour of the appellants. The Department in their own wisdom did not confer the seniority as directed by the Supreme Court of Pakistan on the basis of continuous appointment since November, 1968 and once again this matter came before the Punjab Service Tribunal, who vide its judgment in case No. 184/547 of 1975, a copy of the same has been placed as Annexure `A', decided the case in favour of the appellants and that is how the appellants were ultimately placed' in their due seniority list so mentioned above. The appellants according to their terms of service, were entitled to promotion also to the posts which were that of Agriculture Engineers in Grade-18. At this juncture there came a Notification No. SOR III-1-3174 dated 28-7-1978, by which the West Pakistan Agriculture Service (Class 1) Rules, 1975, were amended and the appellants were verbally informed that as a conse--quence of this amendment they were no longer eligible for the promotion to the posts of Agriculture Engineers. The appellants represented against the aforementioned decision which was considered sympathetically by respondent No. 1 as he was convinced about the case of the appellants on merits as well as on equity. On this the respondents convened a high level meeting with the Pakistan Engineering Council on 22-11-1979 wherein it was agreed that the appellants would be allowed exemption in accordance with the provisions of Pakistan Engineering Council Act to enable them provisional promotions and during the period of 3 years the appellants would acquire Engineering Degree. In view of this understanding arrived at between the parties the respondents met on 30-5-1980 and agreed on further amendment in Rules 1965. In view of that a Notification No. SOR-1II-15/79 dated 20-1-1981, was published. Consequent to the said decision of the respondents, five out of six appellants went to the Agriculture University, Faisalabad, for acquiring Engineering Degree. However, this has not materialised, as the respondents decided to ignore the appellants and not to consider them for promotion to the four vacant posts of Agriculture Engineers on the ground that the appellants did not possess the requisite qualifications which now have been incorporated in the impugned order which will also affect not only prospective candidates but also the appellants who have been recruited under the old rules, as the Engineering Council has failed to ratify their earlier commitment in allowing them exemption in this respect. Hence this appeal.
5. We have heard the learned counsel for the appellants as well as learned District Attorney assisted by the representative of the Department and have perused the record of this case carefully with their assistance. It has been argued by the learned counsel for the appellants that Article 4 of the 1973 Constitution was in force and has not been abrogated even by the Provisional Constitution Order, 1981. According to the learned counsel this Article grants to every citizen including the appellants protection from discrimination and the right to be treated in accordance with law. It has been further submitted that Article 240 of the same Constitution has also been salved by the P.C.O., 1981, and according to this Article terms and conditions of service of Provincial Government employees shall be regulated by Provincial Acts. It has been urged by the learned counsel that this being the case, Provisions of Pakistan Engineering Council Act, 1976, cannot in any way affect or alter the existing service conditions of the appellants so granted by the Punjab Civil Servants Act and Punjab Civil Servants (Terms and Conditions of Service) Rules, as such vested right accrued by virtue thereof.
6. With regard to, the merits of the case, it has been submitted that the minutes of the meeting dated 30-5-1980 respondent's own documents Annexure `G' and letter dated 8-1-1980 Annexure `I' of respondent No. 2, the Pakistan Engineering Council had agreed at the high level meeting on 22- 11-1979 to allow 3 years exemption to the appellants thus permitting their provisional promotion.
According to the learned counsel this agree--ment formed the basis both for amendment of 20-1- 1981 and for sending the appellants to the Agriculture University, Faisalabad to acquire Engineering Degree. It has been vehemently argued that this right cannot be taken away by the respondents on the pretext of alleged change of heart and mind on the part of Pakistan Engineering Council.
The learned counsel has further argued that the amendment dated 20-1-1981 Annexure `H' and the established fact of the appellant being sent to the Agriculture University for further qualifications constitutes valid agreement between the respondents and the appellants which has been acted upon and is enforceable under the law. Reliance has been placed in this behalf on the judgment of the Supreme Court of Pakistan referred earlier reported in PLD 1971 SC 846. Learned counsel has submitted that what the appellants want is not the promotion but their right to be con--sidered for promotion, as the impugned order can only be applied prospectively and not retrospectively.
Learned counsel has further pointed out that the appellants although do not possess the requisite Engineering Degree as laid down in the amended rules yet the qualification which they possess, would be in all manner equal .To the qualifications so desired.
7. On the other hand learned District Attorney has adopted the comments filed by the Department and has submitted that as far as respon--dents are concerned they do not stand in the way of the appellants and has also accepted the proceedings of the minutes of the high level meeting convened by the respondents with the Chairman of the Engineering Council, as correct. What the respondents have stated in the parawise comments is, that despite repeated requests by them the Pakistan Engineering Council has not so far ratifed the decision of its Equivalence Committee, In this manner the respondents have expressed their helplessness in the matter and have left it to the Tribunal to decide the issue on way or the other.
8. We have given our anxious thought to the arguments so raised before us by the parties and find that the appellants were inducted into service through Public Service Commission after due consideration of their qualifications and have continued to serve in the Department in N.P.S. 17 as Assistant Agriculture Engineers for a pretty long time spreading over a period of 14 years and have also been working in Grade-18 in their owe pay and scale. The appellants in this case are B.-Sc.
Agriculture and M. Sc. (Agriculture) and Diploma-Holders from Agriculture University Faisalabad.
We are also aware that the service rules were amended for the next higher post of Agriculture Engineering in order to bring the rules in line with the Pakistan Engineering Council Act which requires that professional Engineering work at the level of XEN should riot be performed by persons who did not possess degree in Engineer--ing. The appellants have claimed exemption from the said amendment mainly On the ground that at the time of joining service, they were eligible for promotion as Agriculture Engineers without acquiring degree of Agriculture Engineering.
Mechanical Engineering and had acquired a right of being considered for promotion as Agriculture Engineers The case of the appellants further is, that their academic qualifications are at par with the degree in the Agriculture Engineering as well as Mechanical Engineering on the face of it, this claim would not be maintainable if we strictly apply the standard laid down by the Engineering Council, but, if wt; liberally and in equity interpret and assess the duties which the appellants are called upon as Agriculture Engineers in the field to perform and which we reproduce below as a ready reference :- "Professional engineering work" means the giving of professional advice and opinions, the making of measurements and lay outs, the preparation of reports, computations, designs, drawings, plans and specifications and the construction, inspection and supervision of engineering works, in respect of----
(i) Railways, Aerodromes, bridges, tunnels and metalled roads ;
(ii) Dams, canals, harbours, light houses ; (i.e) Works of an electrical, mechanical, hydraulic, communication, aeronautical power engineering, geological of mining character ;
(iv) Water works, sewerage, filtration, purification and incinerator works ;
(v) residential and non-residential buildings, including foundations, framework and electrical and mechanical systems thereof ;
(vi) structures accessory to engineering works and intended to house them ; and
(vii) any other work which the Council may, by notification in the official Gazette, declare to be an engineering work for the purposes of this clause.
Job description of the post of Agriculture Engineer done by the Administrative Reforms Wing in consultation with the A.D. Is as under :-
(i) To supervise/control Bulldozers/Tractors/Agriculture Machinery and Workshops.
(ii) To render technical guidance to the farmers in the use/maintenance of Agricultural Machinery and Tubewell installations.
(i.e) Technical guidance and advisory service to farmers wanting to grow more wheat ; and
(iv) Training of young farmers in the operation of Tractors, Tubewells and Power sprayers. ,
(v) To purchase and oversee departmental stores.
We have no hesitation to hold that the above duties do not involve profes--sional Engineering work and, therefore, in no manner attract application of the Pakistan Engineering Council Act in their case as the impact of the said Act relates to the Professional Engineers. This matter also came under consideration before the respondents and we, after perusing the entire file of the case find that our above-mentioned observation is also fully supported by the respondents in their notes. We are also aware of the responsibilities of the respondents when they are called upon to adhere to certain formalities in consonance with the, Central Act but at, the same time we are constrained to observe that such like adherence should always be predicament keeping in view the pros and cons of the case as well as the case of the persons likely to be affected by such adherence. It is a matter of common know--ledge that a person with long experience of departmental working in the lower posts acquired professional skill as well as ability and mere require--ment of some higher academic qualifications would in no way better their performance and thus it would be a case of hardship as well as injustice to call upon them in the middle of their service or fag end of the same, either to acquire higher academic qualification or to lose their right of promotion in that line.
9. It is a settled principle of law that employment is in nature of, contract between employer and employee and service rules determine the conditions of the employees prospects for his career.
We have no dispute with the proposition that the Government can reserve the right of amending Rules but that must be done when there is sound reason to do so and not just to fill the routine. We in this regard observe after due consideration that as a general rule chance of promotion to the higher posts of general nature (wherever promotion is prescribed as method of recruitment) and where experience can adequately compensate for higher academic knowledge, the persons possessing the same should not be disqualified in that matter. The Supreme Court of Pakistan in PLD 1971 SC 846 held as under: "The offer of the Government and its acceptance by the appellants constituted a valid agreement and the Governor's order dated the 1st July, 1965 provided the authority for such an agreement. This agreement is capable of being enforced in law. The Government was both competent and obliged to implement that agreement. When the Governor's order, dated the 1st July, 1965, provided a special authority for recruitment to the 46 posts of Assistant Agricultural Engineers rule 7 of the Recruitment Rules was not applicable in this case. "
This observation came in the case of Mukhtar Ahmad and 37 others v. Government of West Pakistan through the Secretary, Food and Agriculture,, Civil Secretariat, Lahore wherein it was agitated that as the appellant and others did not possess the requisite qualifica--tions for Assistant Agriculture Engineers and were called upon to appear before the Public Service Commission for their recruitment their Lordships of the Supreme Court of Pakistan struck down demand of the Government in this respect and held that once a person is employed under a valid order., certain rights are created in his favour and the employer was bound to honour those rights and cannot be allowed to go back on it. In the present case the appellants were employed as mention--ed above as Assistant Agriculture Engineers under the rules framed by the Governor who was competent to frame such rules and have served the Department for 14 years' therefore, to debar them from further right of promotion (a right enshrined in the contract of their employment under the old rules simply on the ground that a Central Act has formulated certain qualifications without keeping into consideration the cases of those who stood and employed prior to that date; would be an act, devoid of equity, justice and good conscience.
10. For our this view we draw support from Article 4 read with Article 240 of Constitution of 1973, as both these Articles have been saved by the P.C.O.. 1981. Under Article 4 it has been clearly laid down that every citizen of Pakistan will be entitled to its rights and no discrimination will be made in his case, whereas Article 240 has laid down that terms and conditions of service of Provincial Government employees shall be regulated by the Provincial Acts. There is no dispute about the views C that the appellants are employees of the Provincial Government and were employed by the Governor under the rules so framed by him and in consulta--tion with the Public Service Commission, therefore, we are of the considered opinion that the provisions of Pakistan Engineering Council Act, 1975 would not in any case affect the provisions of Punjab Civil Servants Act, 1974, and rules so framed thereunder.
11. We fully understand the wisdom of the respondents as they themselves realise that ipso facto application of the Pakistan Engineering Council Act was going to cause hardship as well as injustice to the case of the appellant, therefore, they convened a high level meeting in which the Pakistan Engineering Council participated. It was after due deliberations and keeping into consideration the special features of the appellants' case, it was decided and agreed that the Pakistan Engineering Council will relax rules and allow the appellants to acquire further qualifications so as to bring them at par with the requirements of the said Engineering Council It was only when this agreement was made that the respondents further amended the rules in 1981 and allowed 5 out of 6 appellants to proceed to join Agriculture University and to acquire the said qualifications. This being the state of affairs we .Do not see any reason that the Pakistan Engineering Council be allowed to go back from their commitment so given by them at the said high level meeting. What the respondents now feel is that despite their repeated requests Pakistan Engineering Council is not responding to their commitment so, earlier made and is thus creating impediment in the way of promotion of he appellants.
12. In this respect we have also perused the Pakistan Engineering Council Act, 1975 and find that this Act also has empowered the Council with power of exemption under section 29 of the said Act which shows that the framers of this act in their wisdom had kept in view such like eventualities and had empowered the Council to overcome the rigidity of said statute by virtue of section 29 of the said Act. In view of this we do not find any reason why the Council should go back from their commitment so made when there is enabling provision allowing them to fulfil same.
13. With regard to the arguments that the qualification of Diploma of Agriculture Engineering so possessed by the appellants could be equated with the degree of Agriculture Engineering as laid down as prerequisite qualifications by the amended rules, we feel that this argument is not without force and we have in the earlier part of our judgment enumerated the requirements of duties by the appellants and once again reiterate that the appellants who are Field Engineers need not be equipped with qualification which would be essential in regular Civil Engineers as duties of both these functionaries are basically different.
14. The appellants have produced documents before us which we have placed on the record that Sind Government as well as Frontier Government have not followed the directives laid down in the Pakistan Engineering Council Act rigidly and have allowed promotion to Assistant Agriculture Engineers working with them considering them fit for promotion, on the basis of their performance, experience and seniority. This would show that if we allow this amendment to remain in the field we will be perpetuating the act of discrimination in service in Pakistan which we consider not desirable, .In view of clear provision of Article 4 of the Constitution of 1973, read with Article 240 of the same Constitution.
15. With regard to the issue whether the rules so amended would be prospective in nature or not, it would be sufficient to say that law on this point is settled that rules are always prospective in nature and can never be retrospective in their application unless and until it is specifically mentioned by the Rules making authority. In the present case the rules cannot for their application be retrospective, thus we are fortified in our views that these only apply in the case of those new entrants after the promulgation of said amended rules and not to those who have entered into service under the old rules and have worked accordingly.
16. In view of the detailed analysis of all the issues before us, we proceed to accept the appeal, set aside the impugned order and direct that the case of the appellants be considered for promotion on the basis of seniority-cum-fitness as laid down under the rules i.e. West Pakistan Agriculture Service (Class 1), 1965. However, there will be no order as to costs: