' IHSAN-UL-HAQ CHAUDHRY, J.---The appellant as well as respondent No,3 were appointed as Assistant Director in the Engineering Wing of the M.D.A. On 25-6-1981. The appellant has done his B.
Tech. (Hons.) while respondent No,3 has to his credit B.Sc. (Engineering) Degree. The trouble started in 1988 when they were considered for promotion. It is alleged by the appellant that he was asked to have his Annual Confidential Report expedited which was required for deciding the case of his promotion. It is added that it was at this juncture that he came to know that respondent No,3 had been illegally made senior to him. It is maintained that the report was immediately supplied but thereafter strangely his case was referred to Pakistan Engineering Council (hereinafter to be referred as Council) for seeking advice as to whether B. Tech. (Hons.) is equivalent to B.Sc.
(Engineering) Degree or not? The Council vide its advice dated 9-5-1988 informed the M.D.A. That it does not recognize B.Tech. (Hons.) equivalent to B.Sc. (Engineering). The result was that the appellant was not promoted. The appellant challenged this action of the M.D.A. Through Constitutional petition, wherein it was prayed that the advice of Council dated 9-5-1988 is without lawful authority and of no legal effect and it was prayed that the appellant was eligible for promotion to next grade and onward. The respondents contested the petition. The learned Single Judge-in-Chamber, after hearing the parties at length, dismissed the Constitutional petition vide judgment dated 9-12-1991. Hence present appeal, which was admitted to regular hearing and notices were issued to the respondents, who have entered appearance and contested the appeal.
2. The learned counsel for the appellant in support of the appeal argued that the Federal Government vide its letter dated 26-10-1973 advised the Provincial Governments to treat the B.
Tech. (Honours) course as a degree and accordingly Governments of the Punjab issued the Notification dated 1-2-1981 to this effect. It is added that in view of this notification the qualification was treated at par with the B.Sc. (Engineering) and he was appointed as S.D.O. Assistant Director. It is submitted that the qualification for promotion as Deputy Director is prescribed in item No, 18 of the Schedule under Regulation No, 6, therefore, M.D.A. Could not seek advice of the Council. It is argued that the learned Single Judge-in-Chamber based the decision on section 26 of the Pakistan Engineering Council Act, 1976 but failed to take into consideration text of section 28 and particularly subsection (b) and this changed the whole complexion. The next submission is that the promotion was to be granted on the basis of fitness-cum-seniority, therefore, the appellant was entitled to promotion as Deputy Director. It is added that although promotion is not a vested right yet to be considered for promotion is an inalienable right of an employee. It is added that the education is on concurrent list in accordance with Schedule IV, therefore, the instructions issued by the Federal Government are to be followed by the Provincial Government. In this behalf, it is added that withdrawal of Notification dated 1-2-1981 through Notification dated 15-3-1985 is of no effect.
The arguments are summed up with the submission that the Notification dated 15-3-1985 cannot be given retrospective effect. Once the appellant was held to possess a degree equivalent to B.Sc.
(Engingering) that status cannot be withdrawn.
3. On the other hand, the learned counsel for respondent No, 1 argued that recognition of equivalent qualification is exclusively in domain of the Council in view of section 10 of the Pakistan Engineering Council Act, 1976. It is added that the appellant has himself admitted that his terms and conditions of service are governed by Multan Development Service Regulations, 1980, according to which, one must possess B.Sc. (Engineering) Degree for appointment as Assistant Director. It is added that since the recognition of equivalence was statutory function of the Council, therefore, the advice was rightly sought. It is submitted that the seniority in service remained the same as fixed by the Selection Board. In this behalf, it is added that respondent No, 3 was shown as senior by the Selection Board, therefore, he was rightly treated as senior to the appellant. The next submission is that the right of promotion is not a vested right. The qualifications are not to be seen retrospectively but at the time of the promotion. In this behalf, the learned counsel has referred to MA. Rafique v. Managing Director (Power), WAPDA and 7 others (1990 SCMR 927) and Falak Sher Khan v. Mukhtar Ahmad (PLD 1989 SC 262). The learned counsel raised a preliminary objection to the effect that the I.C.A. Is not competent as the appellant has a right of representation under Regulation No, 23(b) of Regulations of 1980.
4. The learned counsel for the respondent No, 2 also raised a preliminary objection to the effect that the appellant is a statutory corporation, therefore, relation between the M.D.A. And appellant is that of master and servant so the appellant cannot maintain a Constitutional petition. In this behalf, he has referred to Dr. Iqtidar Hussain Zaidi v. University of the Punjab (PLD 1978 Lah. 298) and Anwar Hussain v. Agricultural Department, Bank of Pakistan and others (PLD 1984 SC 194). In support of the argument he referred to section 9 of the Punjab Development of Cities Act, 1976 (hereinafter to be referred as Cities Act, 1976). He submitted that the rules are to be framed under section 43 of this Act by the Government while regulations are to be made by the Authority without the intervention of the Government. The argument in nutshell is that if terms and conditions of service are subject to regulations, to be framed by the authority without reference to the Provincial Government, then the employee does not have vested right, therefore, he cannot have resort to the Constitutional jurisdiction of this Court. In this behalf, the learned counsel has referred to Chairman, WAPDA and 2 others v. Syed Jamil Ahmad (1993 SCMR 346). The arguments on the preliminary issue are concluded with the submission that neither regulation nor right under the regulation can be enforced through writ.
5. On merits, the learned counsel argued that reference to section 28(b) of Council Act, 1976, is irrelevant because it is a saving clause which deals only with particular work and such persons arc not entitled to be registered with the Council. It is added that the Council Act of 1976 is a Federal Statute, therefore, both Provincial and Federal Government are bound by the same. The recognition of degree according to section 10 of this Act is in exclusive domain of the Council, therefore, neither of the Governments can issue any notification in this behalf. It is added that the Council apprised the Provincial Government of this position. The latter proceeded to withdraw the notification dated 1-2-1981 through Notification dated 15-3-1985 as earlier exercise was in violation of the provisions of section 10 of the Pakistan Engineering Council Act of 1976. In this behalf, the learned counsel has referred to Muhammmad Siddique Nasim v. The Secretary, Government of the Punjab, Irrigation Power Department, Lahore and another (1987 SCMR 302), which was followed in a recent judgment reported as Pakistan Medical and Dental Council v. Dr. Muhammad Khan (1992 SCMR 1621). The learned counsel submitted that at the best the appellant is trying to make it a case of estoppel but there cannot be estoppel against statutes. In this behalf, the learned counsel referred to Messrs Army Welfare Sugar Mills Ltd. And others v. Federation of Pakistan and others (1992 SCMR 1652). The arguments are summed up with the submission that the appellant is not entitled to be registered with the Council, therefore, he cannot be employed as Engineer and is liable to be proceeded against under section 27 as held by the learned Single Judge-in-Chamber. In this behalf the learned counsel has referred to recent judgment reported as Pakistan Diploma Engineers Federation v. Federation of Pakistan and others (1994 SCMR 1807).
6. The learned counsel for the appellant while replying to the preliminary objections raised by the learned Legal Advisor of the respondent No,1 and learned counsel for the respondent No,2, submitted that the legal objections are misconceived and without any merit. It was added that the respondent No,1 has not passed any order, therefore, the question of availing the opportunity of filing representation did not arise. It is added that the appellant having been held to possess qualification equivalent to B.Sc. (Engineering) cannot be deprived of this status.
7. We have given our anxious considerations to the arguments of the learned counsel for the parties, gone through the record, provisions of statute, rule, regulations and precedent cases. We would first take up the preliminary objection raised by the learned counsel for the respondent No,2.
The preliminary objection as noted hereinbefore is that when the terms and conditions of service of an employee of statutory Corporation Authority are governed by regulations framed by the Corporation or the Authority itself without the intervention of the Government then the employee cannot maintain a Constitutional petition to enforce the regulation or right accrued thereunder as their relationship is that of master and servant. Mr. Bilal Hassan Minto, learned counsel for the respondent No,2 have very ably made the distinction clear with reference to judgments in the cases of Anwar Hussain and Chairman, WAPDA and 2 others (supra). The relevant portions of the latter judgment read as under:- "9. The legal position obtaining in respect of employees of the statutory corporations seems to be that where the Government while setting up a corporation does not reserve to itself the power to regulate the terms of service of the corporation's employees under the relevant Statute and does not prescribe any condition, but leaves it to the discretion of the corporation by empowering it to frame rules or regulations in respect thereof without the Government's intervention, then the corporation will be the sole arbiter in the matter of prescribing the terms and conditions of its employees and will be competent to deal with them in accordance with the terms and conditions prescribed by it. In such a case neither a suit nor a writ petition for the relief of re-instatement will be competent and the remedy of an employee, for wrongful dismissal from or of termination of service will be a suit for damages as the principle of master and servant will be applicable.
However, where the terms and conditions of service of an employee of a statutory corporation is regulated by a statute or statutory rules, any action prejudicially taken against him in derogation or in violation of the statute and/or the statutory rules will give him a cause of action to file a suit or a writ petition for the relief of re-instatement, as the power of corporation will be fettered with the statutory provisions and the principle of master and servant will not be applicable. For the purpose of deciding the factum, whether the rules or the regulations of corporation have the statutory force, the determining factor will not be their form or name, but the source under which they have been framed.
10. Since we have held that the Rules framed under section 18 of the Act do not have the statutory force, the violation of the same would not have entitled the respondent to claim the relief of reinstatement. The remedy, if any, was to claim damages for the breach of the contract as the relationship between the appellants and respondent was that of master and servant as under section 18 of the Act, it has been left to the sole arbiter in the matter of prescribing the procedure in respect of the matters referred to therein. Hence the ratio decidendi of the cases relied upon by Mr. Makhdoom Ali Khan particularly Anwar Hussain's case (supra), is applicable to the case in hand.
The cases referred to by Mr. Manzoor Ali Khan do not in fact advance the case of the respondent.
On the contrary, they are in line with the cases relied upon by Mr. Makhdoom Ali Khan as is evident from the above-quoted relevant portions of the judgments.
11. Reference may also be made to a recent judgment of this Court in the case of Mrs. M.N. Arshad and others v. Miss Naeema Khan and others (PLD 1990 SC 612), wherein the principle of law enunciated in the above-cited cases has been reiterated as follows:- "In this regard reference may be made to the case of (i) Messrs Malik and Haq and another v.
Muhammad Shamsul Islam Chaudhary and 2 others (PLD 1961 SC 531); (ii) Zainul Abidin v. Multan Central Cooperative Bank Limited. Multan (PLD 1966 SC 445); (iii) The Chairman, East Pakistan Industrial Development Corporation, Dacca and another v. Rustom Ali and another (PLD 1966 SC 848), (iv) Abdul Salam Mehta v. Chairman, Water and Power Development Authority and another (1970 SCMR 40), (v) Lt.-Col. Shujuddin Ahmad v. Oil and Gas Development Corporation. (1971 SCMR 566) and (vi) R.T.A. Janjua v. National Shipping Corporation (PLD 1974 SC 146). In the above cases, this Court has held that relationship between a corporation and its employees is that of a master and servant and that no writ petition would be competent against the order of wrongful termination of service or dismissal from the service. However, in the case of the Principal, Cadet College, Kohat and another v. Muhammad Shoaib Qureshi (PLD 1984 SC 170) and the case of Anwar Hussain v. Agricultural Development Bank of Pakistan and another (PLD 1984 SC 194), this Court has taken the view that even an employee of a corporation can maintain a writ petition if there has been a violation of any provision of law or of any statutory rules of service. But, we may observe that the above question is not germane to the point in issue."
8. Now coming to the appeal in hand. The Services Regulations of 1980 have been framed by the M.D.A. Under section 44 of the Punjab Development of Cities Act, 1976, therefore, the appellant cannot maintain a writ petition against his master i.e, M.D.A.
9. The matter can be looked from yet another angle. The appellant was wrongly and illegally inducted in the service by giving benefit of Notification, dated 1-2-1981 issued by the Provincial Government, who had no authority or jurisdiction in view of section 10 of the Council Act of 1976. We are fortified in our view by the judgments in the cases of Muhammad Siddique Nasim and Pakistan Medical and Dental Council (supra).
' The appellant got admission to the Rasool Engineering College in B.Tech. (Hons.) in the Sessions 1978 to 1980 and be was granted B.Tech. (Hons.) Certificate on 16-3-1981 much after the coming into force of Council Act of 1976. The Council pointed out to the Provincial Government that B.Tech.
(Hons.) cannot be treated equivalent to the B.Sc. (Engineering) because it is deficient in many respects and the Provincial Government accordingly proceeded to withdraw its Notification dated 1-2-1981. It was submitted on behalf of the appellant that he cannot be made to suffer for no fault of his own. This is not the position. When the appellant got admission in B.Tech. (Hons.) it was not considered equivalent to B.Sc. (Engineering), therefore, he cannot complain of untold miseries caused by the decision of the Council, which was taken in line with the provisions of section 10 of the Council Act, 1976. Now if a writ is issued it would amount to perpetuating an illegal act. This is not permissible. We are fortified in our view by the C judgments in the cases of Wali Muhammad and others v. Sakhi Muhammad and others (PLD 1974 SC 106), Mehr Dad v. Settlement and Rehabilitation Commissioner, Lahore Division, Lahore and another (PLD 1974 SC 193) and Nagina Cotton Mills Limited v. Pakistan through the Secretary, Ministry of Finance, Islamabad and 4 others (1990 CLC 1337).
10. The admitted legal position is that the promotion is not a vested right of an employee. The rule, regulations or policy of promotion can be changed, altered, amended in the interest of efficiency of service and such a change in the rules etc. Cannot be challenged by an employee expecting to be promoted to a higher position on the basis of existing rules etc. Because his right of promotion is to be determined with reference to the qualifications in force on the eve of promotion. Therefore, any change in the rules and regulations cannot furnish a grievance to an employee. We are fortified in our view by the judgments in the cases of M.A. Rafique and Falak Sher Khan (supra).
11. The upshot of the above discussion is that there is no merit in this appeal. The same is dismissed with no order as to costs.