1. ' ABDUL HAYEE KURESHI, C.J.-The case of the petitioners who admittedly are civil servants employed in connection with the affairs of the Province is that they are posted as Sub-Engineers. They claim that by virtue of their appointment they are entitled to promotion as Assistant Executive Engineers in Grade-17. It seems and that appears to be the case of the petitioners also as the case of the respondent that time and again rules have been made to provide for promotion of Sub-Engineers as Assistant Engineers. Such rules had to be made under section 9 of the Sind Civil Servants Act, 1973 which reads as follows :-
(1) A civil servant possessing such minimum qualifications as may be prescribed shall be eligible for promotion to a post for the time being reserved under the rules for departmental promotion in the higher grade of the service or cadre to which he belongs."
2. ' Whether the post of Assistant Engineer is filled by direct recruitment or by promotion it will be an appointment within the meaning of section 5 of the said Act and section 5 again reads as follows : - "Appointments to a civil service of the Province or a civil post in connection with the affairs of the Province shall be made in the prescribed manner by Government or by a person authorised by it in that behalf."
3. ' A reference to section 9 or section 5 would clearly indicate that rules have to be framed to regulate such promotion or appointment as the case may be. Even section 5 speaks of appointment being made in a prescribed manner which will come to indicate that the manner has to be prescribed by rules. In fact section 26 of the same Act also states that the Government or any person authorised by the Government in such behalf may make such rules as appear to be necessary or expedient for carrying out requirements of the Act. It would thus appear that there is no escape from the conclusion that matters relating to initial appointment or promotions have to be regulated and prescribed by statutory rules.
4. ' The grievance of the petitioners is that on 6th August, 1983 the Government of Sind in the Irrigation and Power Department issued a notification in pursuance of sub-rule (2) of rule 3 of the Sind Civil Servants (Appointment, Promotion and Transfer) Rules of 1974 a cyclostyle copy of the Rules is placed on record which states that the Rules have been framed with the approval of Services and General Administration Department and after obtaining concurrence of Sind Public Service Commission. These rules are titled as a notification and bear the signature of the Secretary to Government of Sind in the Irrigation and Power Department. Mr. Aftab Shaikh has invited our attention to item 19 of these rules. This item is in column 3 which deals with the method of appointment and states that 70% of the recruitment to the post of Assistant Engineer has to be through combined competitive examination, 10% by promotion of Sub-Engineers and the remaining by promotion from among such Sub-Engineers who hold a diploma for at least 3 years.
5. The learned Advocate contends that earlier to the issuance of this notification the ratio of appointments by promotion was higher than the 10% which is now being fixed by this notification.
6. He states that by this notification the terms and conditions for service of the petitioners had been adversely affected.
7. ' We have called for comments from the Provincial Government and paragraph 11 of the said comments is very pertinent. This paragraph states that the notification had been issued with the approval of the Recruitment Rules Committee. The Sind Public Service Commission and the Services and General Administration Department, the Chief Secretary after compliance with all the requirements of the Sind Civil Servants (Appointment and Promotion) Rules, 1974. It is categorically stated that :- "Thus, it was not an act of individual discretion but the notification was issued after proper processing through various forums in accordance with the provisions of law."
8. ' The next point that the comments clearly state is that the ratio mentioned by the petitioners in the memo. Of the petition was wrong. It is stated that before the issue of notification on 6th August, 1983 the ratio as between direct recruits and promotees used to be 80% and 20% but after the issuance of the notification which is challenged before us the ratio of direct recruits has been reduced to 70% and that of promotees increased to 30%. It would thus appear that by the notification which is sought to be challenged the ratio of promotees had been raised from 20% to 30%. All the same the petitioners make a grievance which appears to be a product of misconception of fact. As stated earlier nothing has been placed before us to show that at any time the ratio of promotees was in excess of 30% what to speak as Mr. Aftab Shaikh would have us believe that all the posts of Assistant Engineers used to be filled up by promotion.
9. The next point that has been raised by Mr. Aftab Shaikh is that the rules have not been made by the Governor of the Province but the Secretary of the Department. This argument is also misconceived.
10. The comments state that all the formalities underlying the law and rules have been complied with.
11. It has not been specifically pleaded in the petition that the case was not laid before the Governor or the Martial Law Administrator. In fact Mr. Aftab Shaikh has only raised the general point that the impugned notification was mala fide and was violative of the basic rights of the petitioners beside being beyond the scope of authority of the respondent/Secretary. It is also complained that the notification suffers from excessive delegation. To that extent the answer in the comments appears to be convincing. The mere fact that notification bears the signature of Secretary does not advance the case of the petitioners for the expressions of the Government are always made through Secretary. Mr. Aftab Shaikh has also invited our attention to paragraph 7 of the Sind Government Rules of Business, 1973 which lays down that cases incorporated in Schedule IV Part-A have to be submitted for approval to the Chief Minister. In absence of Chief Minister such authority vests in the Martial Law Administrator. Item 23 of Schedule 4 deals with the framing or amendment or relaxation of the statutory rules. It seems to be the case of Mr. Aftab Shaikh that the case of the framing of the rules was not submitted to the Martial Law Administrator. Such point has not been specifically pleaded in the petition and on the other hand the comments state that all legal formalities have been complied with. We have, therefore not been impressed even by these arguments.
12. There is a further point which has persuaded us not to extend relief in this case. Although a cloak has been provided that what is being challenged before us is the legality of the rules but in effect the grievance of the petitioners is that they have been deprived of their chance of promotion. In such context their case is that by the initial rules they had better prospects of promotion which have been reduced by the notification that has now been issued. Whether they had a better chance of promotion before the issuance of notifications is basically a matter relating to terms and conditions of service of the petitioners who admittedly are civil servants in connection with the affairs of the Province. Article 212 of the Constitution provides a complete bar to the grant of relief.
13. We see no substance in this petition which we dismiss in limine.