' SHAH JEHAN KHAN, J.---Petitioners herein were inducted in service as Tracers (BPS-5) in the Civil Service of Public Works Department (Irrigation Branch). Petitioners after qualifying _departmental examination with a five years' service experience on the basis of seniority-cum-fitness promoted to the post of draftsman on 22-6-1982, 10-74912 and 1-7-1982 respectively. Under the rules the direct recruited draftsmen are required to be a diploma holder. The minimum qualification for appointment as Draftsman is Matriculation plus three years diploma course in any branch of engineering from a recognized Institution. The directly recruited Draftsmen with the above qualification were to be appointed in BPS-11. However, in certain Organizations keeping in view the experience of certain Tracers were also granted promotions/appointment as Draftsman without having the required qualification of diploma in the concern branch of engineering. In these circumstances the Deputy Secretary, Government of Pakistan issued a letter dated 2-5-1976 conveying therein that existing incumbents of that category be treated as entitled to BPS-11.
However, it was advised that in future no one should be appointed as Draftsman without the required qualification of Diploma. Vide impugned Notification No, FDSR-I)20 (3)/77, dated 13-6-1977 the Provincial Government amended Column 4 of Schedule II of the Civil Services (National Scales of Pay Rules, 1972) to the following effect:--{{TABLE}} Col: 2 Col: 4 Draftsman I. 250--18--340/20--440/20--540 (No,10) after 19-8-1976.
H. 275--20--375/20--475/25--600 (No, 11) before 19-8-1976. {{TABLE}} ' Vide impugned Circular No, FD(SR-I)I-67/83, dated 24-8-1983 the Secretary to Government of N.- W.F.P. Finance Department circulated in all concerned the sanction granted by the Government of N.-W.F.P. To the scheme of Basic Pay Scales, Allowances and other Fringe Benefits, 1983 for the Provincial Civil Servants. The relevant portion is reproduced as under)-- "IRRIGATION/FORESTS/AGRICULTURE/ANIMAL HUSBANDRY/COOPERATIVES DEPARTMENTS {{TABLE}} Name of Post Existing Scale Field Assistant RNPS-5 Rs,290--10-350/ 12--470--14--540.
2. Stock Assistant/ -do- Poultry Supervisor/ Poultry Assistant/ Sheep Dev. Assistant/ Laboratory Assistant/ Cattle Dev. Assistant. Basic Scale B. 6 (Rs, 540--20--940) with 1/3rd of total posts as selection grade in B. 9 (Rs,620--29--1,200). -do-
3. Veterinary Compounder -do- B. 6 (Rs, 540--20--940) with 1/3rd of total posts as selection grade in B. 8 (Rs,590-26-1,110). . Draftsman RNPS-8 Rs,370--16-- 514/18-640-- 22--750. B-11 (Rs,700--35--1,400).
6. Zilledar -do- B. 14 (Rs,850--50-- 1850). {{TABLE}} ' Yet within a week time a corrigendum was issued directing the deletion of serial No, 4 (Draftsman) from the circular and serial Nos. 5 and 6 were renumbered as No, 4 and 5.
2. The petitioners through the instant writ petition filed on 4-12-1995 seek indulgence of this Court under its Constitutional jurisdiction to struck down the notification issued by the Government of N.- W.F.P. No,FD(SR-I)20(3)/77, dated 13-6-1977 effective from 30-4-1977 and Circular No, FD(SR-I)I- 67/83, dated 24-8-1983. It is further prayed that no recovery should be effected from them of the emoluments of BPS-11 paid to them in past and drawn by them in good faith.
3. The learned counsel for the petitioners contended that under the Government of N.-W.F.P. Public Works Department Code, it is prescribed under clause 83-C that those Tracers who qualify the departmental examination shall be eligible for appointment or promotion as Assistant Draftsman.
The subjects to be qualified at departmental examination includes (i) Engineering Drawing, (ii)
Estimates and analysis of rates (iii) Applied Mechanics and (iv) Building construction and Civil Engineering. The standard of examination is at par with the standard of examination for the ordinary certificate of Assistant Draftsman at the Government School of Engineering Rasul Further contended that the petitioners are being dealt with discriminatory, those who were promoted as Draftsman before 19-8-1976 were allowed BPS-11 while petitioners who were promoted after 19-8- 1976 are granted BPS-10. Equality before law is a Constitutional guaranteed right which is being refused to the petitioners.
4. The learned Additional Advocate-General at the very outset object to the maintainability of the writ petition on two grounds, firstly, that the petitioners have challenged the Notification of 1973 which is hit by laches. Secondly, that the petitioners are civil servants and issue involved relates to terms and condition of service, the jurisdiction of this Court is barred under Article 212 of the Constitution. Therefore, no relief could be granted to them in the instant writ petition.
5. The objection raised by the learned Additional Advocate-General with regard to the maintainability of the writ petition is based on facts. The petitioners have challenged the vires of Notification dated 13-6-1977 after more than 18 years. They were promoted as draftsman on 22-8- 1982, 10-7-1982 and 1-7-1982 respectively when the impugned notification was holding the field. All the petitioners were in service as Tracers when the impugned Notification dated 13-6-1977 was issued effective from 30-4-1977. On the date of their promotion as Draftsman, they have accepted the said terms and conditions of service. It has been held by the August Supreme Court of Pakistan in I.A. Sharwani and others v. Government of Pakistan and others (1991 SCM R 1041) in the following words, the relevant part of the judgment is reproduced below:-- "From the above cited cases, it is evident that it has been consistently held inter alia by this Court that a civil servant if is aggrieved by a final order, whether original or appellate, passed by a departmental authority in respect of his terms and conditions, his remedy, if any, is by way of an appeal before the Set-vice Tribunal even where the case involves vires of a particular Service Rule or a notification or the question, whether an accused civil servant can claim the right to be represented by a counsel before the Enquiry Officer. We are inclined to hold that if a statutory rule or a notification adversely affects the terms and conditions of a civil servant, the same can be treated as an order in terms of subsection (1) of section 4 of the Act in order to file an appeal before the Service Tribunal. However, in the present case, the petitioners' case is founded solely on the ground of discriminatory treatment in violation of Article 25 of the Constitution and not because of any breach of any provision of the Civil Servants Act or any service rule. Furthermore, the question involved is of public importance as it affects as the present and future pensioners and, therefore, falls within the compass of clause (3) of Article 184 of the Constitution. However, we may clarity that a civil servant cannot bye-pass the jurisdiction of the Service Tribunal by adding a ground of violation of Fundamental Rights. The Service Tribunal will have jurisdiction in a case which is founded on the terms and conditions of the service even if it involves the question of violation of the Fundamental Rights".
6. There is no question of discrimination or violation of Fundamental Rights of the petitioners involved. Petitioners are treated at par with all those draftsmen who were promoted as such after 1'9-8-1976. The petitioners and all other draftsmen who were not qualified Diploma holders as required the minimum qualification for appointment as draftsman, but promoted as such under the rules after notifying the amendment on 13-6-1977 have been granted BPS-10. The petitioners failed to establish a case of discrimination or violation of Constitutional Fundamental Rights.
7. The petitioners have challenged the notifications issued on 13-6-1977 and 13-8-1983 after a lapse of more than 18 years and 12 years respectively without any explanation of delay, which is hit by laches. The explanation put forward by the learned counsel at the time of arguments, that since the cause of action accrued to the petitioners is a continuous one and the writ petition could not hit by laches. This explanation is not acceptable in the circumstances of the case, as they did accept the terms and condition of B.P.S. Since their promotion as draftsman and failed to agitate their grievance at least for the last more than 12 years, they could not claim any relief through the instant Constitutional petition. In this regard the dictum laid down by the August Supreme Court of Pakistan in case, "Messrs Valika Properties Ltd. v. Government of Pakistan and others" (1988 CLC 1680) is as under:- "There is absolutely no explanation from the petitioner for presenting the petition after about four years of the decision in the above case and at least for two and a half years of the publication of that decision in the Law Journal. In addition to it, the learned counsel for the respondent rightly pointed out that the petitioner having themselves offered to pay the amount of assessment by their letter dated 11-1-1987 addressed to respondent No, 2 which was long after the decision of Supreme Court in the case of New Jubilee Insurance Company there was hardly any room for the argument that the petitioners were still entitled to challenge the order dated 15-7-1982".
8. For the reasons stated above, this writ petition is dismissed for want of jurisdiction and also being hit by laches.
' No order as to costs.