S. ABDUL JABBAR KHAN (CHAIRMAN).--Messrs Syed Afzaal Hussain Shah, Sub-Engineer, Western Bar Division, Thingi, District Vehari. Rao Amrao Bahadur Khan, Sub-Engineer, Khanqah Dogran, Drainage Section District Sheikhupura, Muhammad Yaqoob Raza, Sub-Engineer, Q. B. Link Division.
Farooqabad, Sheikhupura and Zahid Hussain Zanjani, Sub-Engineer (Mech), T/Well Operation Division (N), Sheikhupura, have filed these appeals under section 4 of the Punjab Service Tribunals Act, 1974, in which they have impleaded the Secretary to Government of the Punjab, Irrigation and Power Department, Lahore and the Additional Secretary (Reg.) to Government of the Punjab, S&GA Department, Civil Secretariat, Lahore, as respondents.
2. By virture of these appeals, the appellants have prayed that the impugned order, dated 6-5- 1985, be set aside and their appeals be accepted and respondent be directed to consider the appellants for promotion to the post of Assistant Executive Engineer/Sub--Divisional Officer in the Irrigation and Power Department w.e.f. -2-1984, 5-2-1984, 1-1-1985 and 19-5-1984 respectively.
3. As the law point as well as facts involved in all these four appeals are identical in nature, therefore, we will dispose of these appeals with our this single judgment.
4. Brief facts of the case are as under:-- The appellants qualified the Diploma of Associate Engineer in Civil Engineering/ Mechanical Engineering from the Government Polytechnique Institute, Rasul, and Government College of Technology, Lahore, indicated below:-- Syed Afzaal Hussain Shah;Diploma of Associate Engineer from Govt. Polytechnique Institute, Rasul in 1966.
Rao Amrao Bahadur Khan:Overseers Certificate in Civil Engineering from Government School of Engineering, Rasul in 1959.
Muhammad Yaqub Raza:Diploma of Associate Engineer in Civil Engineering from the Government College of Technology, Rasul in 1969.
Zahid Hussain Zanjani:Diploma of Associate Engineer in Mechanical Engineering from the Government College of Technology, Lahore in 1974.
The appellants Syed Afzaal Hussain Shah joined the Irrigation Department as Sub-Engineer in December, 1966, Rao Amrao Bahadur Khan, as Overseer on 13-12-1959, Muhammad Yaqub Raza, as Sub-Engineer on 1-1-1985 on transfer from Public Health Engineering Department Punjab were he joined on 30-7-1973, and Zahid Hussain Zanjani, as Sub-Engineer on 6-4-1978, respectively. As there had been a constant demand of the various Polytechnic Institutes of the Punjab as well as other Provinces that civil servants of appellants class be provided opportunities of higher education and avenues of further promotion be opened for them, a decision was taken to this effect and a Degree programme for the Polytechnic Institutes by affiliating the same with the University of Engineering and Technology, Lahore was taken in hand. The above decision was implemented in the new education policy of the Central Government and duly communicated to the Government of four Provinces under D.O. Letter No.15-29/73-Tech., dated 26-10-1973. According to the scheme two Degree courses were introduced for Diploma Holders, viz.--
(1) B. Tech. (Pass).
(2) B. Tech. (lions.).
The B. Tech. (lions.) was equated with B.Sc. (Engg.). The Government of Punjab issued Notification No.SO(EE) 1-12/77 (P.II), dated 8-2-1981, wherein the Governor of the Punjab was pleased to declare B.Tech. (lions.) Degree equivalent to corresponding B.Sc. (Engg) Degree for job purposes. The appellants joined the course of B. Tech. (lions.) and obtained the degree from the University of Engineering and Technology, Lahore, in 1984 as per notifications, dated 5-2-1984, 28-5-1984, and 19-5-1984, respectively. This course consumed four years with considerable expenses and the appellants became eligible for promotion and appointment to the post for which B.Sc. (Engg.) or equivalent qualification has been prescribed by the Government. The case of the appellants for further promotion as S. D.O. /Assistant Executive Engineers was duly recommended to Respondent No.1, which is still under consideration. The said policy directive of the Central Government, dated 26-10-1973 and notification, dated 8-2-1981, were also duly implemented and acted upon by the Punjab Government inasmuch as the S&GA Department in consultation with the Administrative Secretaries of all the Engineering Departments and Representatives of Law, Finance and Public Service Commission and with the approval of Rule-making Authority-Governor of the Punjab amended the Service/ Recruitment Rules of all the Engineering Departments namely, Communication and Works Department, Irrigation and Power Department and Housing and Physical Planning Department. Public Health Engineering Department, whereby provision was made for the promotion of Sub-Engineers to the higher post as follows:-- "5% by promotion on the basis of seniority-cum-fitness from amongst Sub-Engineers who possess qualifications prescribed for initial recruitment. If no such person is available then by initial recruitment."
The appellants submitted representations on August, 1985, in which they quoted all the above referred statutory provisions of Rules, assurance of the Government as well as precedents in which those provisions/assurances have been implemented. Their representations were forwarded to the respondents, but to no effect. The reasons for rejection of the same have been given holding the appellants ineligible for promotion on the basis of B.Tech. (lions.) qualification. Hence, these appeals.
5. We have heard the learned counsel for the appellants as well as learned District Attorney and have perused the comments of the Department so submitted by them in this respect.
6. Learned counsel for the appellants has submitted that section 4 of the Punjab Civil Servants Act, 1974, makes it incumbent upon all the Department Authorities concerned that appointments to various posts shall be made in the prescribed manner. According to him in the instant case, the prescribed manner is the 5 % of the posts of Assistant Executive Engineer/S.D.O. Are to be filled from amongst the Sub-Engineers holding the qualifications prescribed for initial appointment, a grievance has been made that this has not been followed. It has been further submitted that the question whether the qualification held by the appellants viz. B.Tech. (Hons.) stood resolved finally by the High Powered Committee prescribed by the then Minister for Education, Government of Pakistan and attended to by the Chairman/ Directors of Technical Education in the Province, Principals of Polytechnic, Representatives of Engineering Universities/ Colleges and Representatives of various Associations of the Polytechnic Diploma Holders. According to the learned counsel for the appellants, the respondent being a subordinate authority to Government of Pakistan, they were duly bound to follow the said directives. He has further relied on the provisions of Article 70(6) of the Constitution of Pakistan and submitted that the decision of the Central Government had to be followed by the Provincial Government. For this learned counsel for the appellants has relied on the decision in Writ Petition No.2467 of 1981, and also in the judgment reported as Mukhtar Ahmad and others v. Government of West Pakistan PLD 1971 SC 846, wherein, it was held that any offer made and accepted by the Government employee and undergoing necessary training and improving the necessary qualification constitutes a valid contract between the parties even though it may be against the rules. Learned counsel for the appellants has further relied on the judgment of this Tribunal in Appeals No.143/64 of 1985, No.145/65 of 1985 and No.333/169 of 1985, delivered on 16-11- 1985, wherein according to the learned counsel for the appellants, this Tribunal has given relief to the aforesaid appellants and have accepted the view point which is identical with the appellants in these cases.
7. On the other hand, learned District Attorney has adopted the comments of the Department in extenso and has submitted that the present decision of the Government of Punjab is based on the advice of the Pakistan Engineering Council having statutory rights to determine the academic qualifications for recruitment of the Engineers in the field of Engineering service. According to him the Irrigation and Power Department has proceeded in the matter in the light of Government's notification of 15-3-1985, therefore, the appeals of the appellants are liable to be dismissed.
8. We have given our anxious thought to the arguments advanced by the parties and would refer to the detailed judgment given by this Tribunal on 16-11-1985, in cases of Messrs Habib Ullah Nasir etc. As mentioned in the earlier part of our judgment. The relevant portion of the same is reproduced below:-- "We agree with the learned counsel for the appellants that the above Notification, dated 15-3-1985 cannot be applied retrospectively in the cases of the appellants and the rights which they had already earned cannot be destroyed on the basis of the Notification, dated 15-3-1985. His Lordship Mr.Justice Fazal-i-Mahmood has also taken this view that the subsequent notification cannot have any retrospective and adverse effect upon the petitioner who was before his Lordship. The ratio of the judgment is that since the petitioner had obtained B.Tech. (lions.) Degree in the year 1980 and at that time the Federal Government decision of 26-10-73, held the field. The subsequent notification of the Provincial Government could not have retrospectively wiped out the right which accrued to the petitioner. All the present appellants after issue of the Notification by the Education Department, in the year 1981, obtained the Degree of B.Tech. (lions.) on the dates mentioned in para. 8 of this judgment. These dates are prior to the notification, dated 15-3-1984, through which the original notification, dated 1/8-2-1981, was withdrawn. These appellants' cases are at par with the cases of the petitioner. In Writ Petition No.1688 of 1982, decided on 20-2-1985, by Mr.Justice Fazl- i-Mahmood and as such respectively following the said decision and the advice given by the SGA & I Department, dated 9-5-1984, we hold that the appellants held the qualifications prescribed for initial recruitment and their cases fall within the 5$ prescribed quota provided in the Rules. We also cannot ignore the precedents of Communications and Works Department and Irrigation and Power Department, which on the basis of the very decisions of the Federal Government as well as the Punjab Government, promoted the Sub-Engineers who obtained B. Tech. (Hons.) qualification like the appellants. The Punjab Public Service Commission, also selected the candidates having B. Tech.
(Hons.) qualification as Assistant Engineers having equivalent qualification. "
The detailed arguments on which this conclusion has been taken by us need not be reproduced to burden this judgment and we are placing a photostat copy of the said judgment alongwith the present decision.
9. This being so, we proceed to accept these appeals, set aside the impugned order and direct the respondents, as we have directed earlier in our judgment, dated 16-11-1985, to consider tile appellants for promotion as Assistant Executive Engineers/SDOs against the vacancies occurring in their quota after their obtaining the B. Tech. (Hons.) qualification. There will be no order as to costs.
A.E. /114/ Sr. P Syed Afzaal Hussain Shah;Diploma of Associate Engineer from Govt. Polytechnique Institute, Rasul in 1966.
Rao Amrao Bahadur Khan:Overseers Certificate in Civil Engineering from Government School of Engineering, Rasul in 1959.
Muhammad Yaqub Raza:Diploma of Associate Engineer in Civil Engineering from the Government College of Technology, Rasul in 1969.
Zahid Hussain Zanjani:Diploma of Associate Engineer in Mechanical Engineering from the Government College of Technology, Lahore in 1974.