S. ABDUL JABBAR KHAN (CHAIRMAN).-- Ch. Noor Mohammad, XEN, Project Director, Technical Cell Punjab Police, has filed this appeal under section 4 of the Punjab Service Tribunal Act, 1974, in which he has impleaded the Secretary to Government of the Punjab, Communication and Works Department, Lahore, as respondent.
2. By virtue of this appeal he has prayed that it may be declared that the appellant is eligible for promotion as Executive Engineer and respondent be directed to promote or to consider the appellant for promotion as Executive Engineer.
3. Brief facts of the case are that the appellant obtained Diploma in Civil Engineering with Hons, from the Government School of Engineering, Rasul in the year 1951. On the basis of that professional/ technical qualification, appellant was appointed as Overseer (now Sub-Engineer) in the former PWD (Buildings and Roads) of the Punjab Government on 10-3-1952. He was also confirmed as such. On the basis of his good work, conduct and excellent service record, he was promoted as S.D.O. w.e.f. 5-12-1959, by the former West Pakistan Government. Subsequently he was also promoted as permanent Assistant Engineer in PSE II with the approval of the Punjab Public Service Commission under the West Pakistan Service of Engineering Class II Rules, 1967, vide notification, dated 19-12-1973. Later on the appellant was promoted as Executive Engineer, on ad hoc basis w.e.f. 27-7-1976, vide notification, dated 27-7-1976. The tenure of the said promotion was continued to be extended upto 31-8-1978. Ultimately by virtue of appellant's promotion as Executive Engineer, his services were placed at the disposal of the I.-G. Police Punjab, for appointment as Executive Engineer, vide order, dated 11-12-1977, in connection with the construction of projects of that Department, as such he continues working as Executive Engineer till today in that Department.
The appellant made a representation on 15-7-1982 to his parent Department that he may also be promoted as XEN on regular basis in his own cadre and Department as according to his original terms and conditions of service he was fully qualified for such promotion. This representation had been rejected by letter, dated 24-8-1983, on the ground that according to the Service Rules of 1967 and Engineering Council Act, qualification for promotion to the rank of XEN has been enhanced as Engineering Graduate and since the appellant did not possess that qualification he was not eligible for the same. Hence this appeal.
4. We have heard the learned counsel for the appellant 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.
5. Learned counsel for the appellant has submitted that when the appellant originally joined service in the former PWD(B&R) promotions to Class I service were being regulated by 1942 Rules.
According to the learned counsel under these rules Members of Subordinate Engineering Service (Sub-Engineers) were fully eligible for promotion as Executive Engineer. It has been argued that a large number of Diploma-holders were promoted as Executive Engineers under the said Rules by virtue of their long and rich experience in the Engineering line and were acknowledged to be most successful Executive Engineers of the Department. It has been vehemently argued that these Rules have not been repealed or superseded by the Rules of 1967 and as such the bar of qualification as contained in 1967 Rules on the promotion of the appellant was, in no way, justified. While concluding his arguments, learned counsel for the appellant has submitted that assuming without conceding that Rules of 1967 are at all applicable in that case also, the relevant provision of 1967 Rules is Rule 11 which deals with the method of filling vacancies which became available after coming into force of 1967 Rules, and that rule does not contain any such bar or qualification.
Accordingly the appellant was eligible for promotion under that Rule as well. He has relied on the judgment of this Tribunal given in the case of Mukhtar Ahmad v. Government etc. Reported as 1983 PLC (CS) 767. He has also relied upon the Government's own decision made in 1980 on this specific points which was circulated by SGA&1D, Punjab amongst all the Departments, vide letter, dated 23- 11-1980, Annexure 'P/I'.
6. On the other hand learned District Attorney has submitted that the appellant would not be eligible for promotion on the rank of XEN in his cadre simply on the ground that the Engineering Council Act provides that only such Assistant Engineer would be eligible for promotion to Executive Engineer who possess Degree of Engineering. In this manner it has been submitted that the claim of the appellant on the strength of Diploma would not be valid in view of the bar so laid down in the Engineering Council Act.
7. We have given our anxious thought to the arguments advanced by the parties and would refer to our earlier decision on which the appellant's counsel has relied, which would be identical case of this nature. In the said judgment it was held as under:-
(1) "It is settled principle of law that employment is in the 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.
(2) 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.
(3) 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 in their application be retrospective. Thus we are fortified in our views that these only apply in the case of these 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.
It is a matter of common knowledge that a person with long experience on departmental working in the lower posts acquired professional skill as well as ability and more requirement 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."
We will further refer to the decision of the Government itself circulated, vide letter, dated 23-11-1980, which reads as under:- "I am directed to say that it has lately been observed that Administrative Department sponsor proposals for amendments in Service Rules seeking enhancement of academic qualification prescribed for promotion to higher posts even if the higher jobs do not require academic knowledge of a higher degree from persons with long experience of departmental working in the lower posts. Except where such amendments become necessary on account of statutory obligations or highly technical and professional nature of the higher posts, over specialisation in the matter of promotion militate against the principles of natural justice."
According to law as laid down by Supreme Court of Pakistan in a large number of judgments such general letters have the force of Rules. Two of such authorities are PLD 1960 SC 105 and PLD 1973 SC 144. Government is, therefore, bound by the said policy of 1980.
8. This issue also came before the Federal Service Tribunal in case reported as 1984 PLC (C . S .) 21 and it was held as under:- "14. The next issue we take up in that of the change in academic qualification. To except someone, who joined as matriculation and rose to be Assistant Director, that he should also pass his B.A.
Examination in addition to the promotion examination is to expect too much. The promotees, generally, reach these ranks towards the fag-end of their service. They have enough experience and professional excellence without being graduates. No doubt, the academic qualifications have their place but it would be unjust to deprive the promotees of further chances for want of academic qualifications alone. If their record is or an acceptable standard and they have passed the promotion examination, this should suffice."
We respectfully agree with the conclusion of the learned Tribunal.
9. We have also taken into consideration office Memo, dated 8-8-1977 issued by the Government of Pakistan, Ministry of Housing and Works (Works Division) produced during the course of arguments in which they have protected the rights of promotion of old Diploma-holder to higher posts. The relevant portion of the said memo., is reproduced below and the memo. Is placed on record as Annexure 'L':- "The position was also clarified that in accordance with the Prime Minister's directive as contained in the Ministry of Fuel, Power and Natural Resources OM No. WA/4(25)74, dated the 16th November, 1974, 20% of the posts in Grade-17 are reserved for promotion of Diploma-holder Engineers in Grade-16. Further, in accordance with, the Government decision as contained in the Establishment Division OM No.8/11/71-D.I, dated the 3rd May, 1975, 20$ posts are reserved for promotion of Diploma-holder Engineers (Grade-17) to the post of Executive Engineer in Grade-18. Once a Diploma-holder Engineer is promoted to Grade-18 and brought on the seniority list of Executive Engineers, he automatically becomes eligible, subject to suitability on the basis of record for promotion to the post of Superintending Engineer in Grade-19. The Chairman of the Pakistan Engineering Council, was, however, requested that legal hitch, if any, in the Pakistan Engineering Council Act may kindly be removed.
According to the law so laid down by the Supreme Court of Pakistan in the above-quoted two authorities this Memo has also the force of rules.
10. In view of the above we are of the considered opinion that the appellant when he was inducted into service, terms and conditions of service as contained in 1942 Rules permitted him to go forward and earn promotion to higher posts of Executive Engineer in accordance with merit on account of his good work, conduct performance and seniority. It would be an act of sheer injustice as well as great hardship of the terms and conditions of service as assured at the time of entry into service are suddenly changed to the detriment of a civil servant. There is also force in the appellant's contention that Rule 11 of 1967 Rules is applicable to the present case. We have also taken into consideration the views of the Works Division, Government of Pakistan contained in their letter, dated 10-5-1977, addressed to the Establishment Division which is reproduced below"- "In reply to Establishment Division No. 8/11/77/D(I), dated 27-4-1977.
This Division is of the view that if a Diploma-holder Engineer by virtue of his experience is considered competent to hold the charge of post of Assistant Executive Engineer Grade-17 and Executive Engineer Grade-18, he should also be eligible for promotion to the post of Superintending Engineer on the same ground.
Further this Division feels that educational and professional qualifications prescribed in the recruitment rules are meant for the direct recruitment and not for promotions."
11. The result is we accept the appeal, set aside the impugned order and direct that the appellant be considered for regular promotion to the post of Executive Engineer if he is otherwise found suitable on the basis of his service record and seniority. There will be no order as to costs.
A.E.
Appeal accepted