1. S. NASIM HAIDER (SENIOR MEMBER).--The facts of this appeal according to the counsel for the appellant are:--
(i) The appellant, who possesses the degree of B.E. (Electronics) from N.E.D. University joined the post of Assistant Executive Engineer (B-17) in K.E.S.C. in 1986.
(ii) On his services being requisitioned by the Government of Sindh, placement thereof at its disposal by Federal Government on deputation for a period of one year, S&GAD Government of Sindh in turn, placed his services at the disposal of Irrigation and Power Department Sindh for posting as Electric Inspector (B-18) in his own pay and grade viz. I3SP-17 vide Notification, dated 13- 1-1994 and he was consequently posted by Irrigation and Power Department as Electric Inspector (B-18) Karachi in his own pay and grade on 15-1-1994 and joined as such.
2. (iii)Irrigation and Power Department advertised the posts of Electric Inspector, which was published in Daily Jang on 6-9-1994. Appellant applied for the same, through proper channels.
(iv) The post of Electric Inspector (B-18) was taken out of the purview of the Sindh Public Service Commission by the then Chief Minister, Sindh under Rule 5 of the Sindh Public Service Commission (Functions) Rules, 1990 vide Notification dated 4-10-1994.
(v) The appellant was interviewed and selected by a Selections Board, which interviewed more than 12 applicants for the job advertised and appellant was consequently appointed on regular basis with the approval of Competent Authority to the post of Electric Inspector (B-18) in Irrigation and Power Department Government of Sindh vide Notification dated 24-10-1994.
(vi) On 13-1-1997, the appellant was directed to report to Irrigation and Power Department.
(vii) On 25-1-1997, the appointment order of the appellant as Electric Inspector (B-18) dated 24-10- 1994 on regular basis was cancelled and appellant was ordered to be repatriated to K.E.S.C.
(viii) Appellant, preferred Departmental Appeal/review against the impugned order bearing No,A- 1/2-6/94 (52), dated 25-1-1997 to the Chief Minister Sindh and after waiting for statutory period of 90 days, filed this appeal before Sindh Service Tribunal on 26-5-1997.
3. According to the counsel for the appellant, the reason given for cancellation of his appointments as Electric Inspector (B-18), on regular basis, dated 24-10-1994 in the impugned order is that the appellant was B.E. (Electronics) whereas the prescribed qualification for the same is B.E. (Electrical).
4. According to Letter No,PEC/Q.E.C/5, dated 24-5-1989, of the Pakistan Engineering Council, addressed to Engineer Manzoor Ahmad Shaikh, Member, Federal Public Service Commission, Karachi both have been considered at par with each other by the said council and as such the impugned order is misconceived and based on wrong interpretation of prescribed qualification.
5. Both the degrees are being treated at par with each other after decision of P.E.C., in several departments of Government of Sindh including C&W Department as evident from Notification No,SCEII (C&W) 11-7/88/1014, dated 8-7-1991. It was also contended that the case of appellant was similar to that of one Karim Bakhsh Shaikh, Electric Inspector (B-18) Irrigation and Power Department who possesses the same qualification viz B.E. (Electronics), was similarly ordered to be repatriated to his parent department--but such orders were later withdrawn and the said Karim Baksh Shaikh, still continues to work as Electric Inspector (B-18), Hyderabad. In fact the said Karim Bakhsh Shaikh had filed Constitutional Petition No,D-169 of 1994, in the High Court of Sindh and on hearing of Miscellaneous Application No,423 of 1994, on 3-2-1994, after notice to the respondents, on which date . Notification dated 2-2-1994 regarding withdrawal of repatriation order was submitted and the C.P. was disposed of accordingly.
6. The counsel for appellant, therefore, argued that the impugned order was discriminatory and offends the provisions of Articles 4, 25 and 27 of the Constitution of Pakistan, 1973.
7. Beside the said Karim Bux Shaikh, Electric Inspector (B-18) Hyderabad, who is B.E. (Electronics), Mr. Saeed Ahmad Sehar, D.S. (Power) is also B.E. (Electronics) against whom no action has been taken by the respondents, which speaks of their basis against the appellant.
8. It is contended before us that the appellant after his appointment as Eleatic Inspector (B-18) worked for 2-1/4 years, was never adversely reported, vested rights were created in his favour and actually enjoyed by him, thus doctrine of "locus penitential" is applicable in this appeal as laid down by the Honorable Supreme Court of Pakistan in PLD 1969 SC 407 and PLD 1971 SC 846. Before issuance of the impugned order the appellant was not issued show-cause notice, nor heard in person and was condemned unheard which is against the principles of natural justice fair play and equity, Reliance was placed on PLD 1984 SC 304 as well as PLD 1987 SC 304 and 1994 SCMR page 2232. The counsel, therefore, prayed that the impugned order may be set aside.
9. Mr. Zaidi, A.A.-G. stated that as per advertisement, for the post of Electric Inspector (B-18), published in Daily Jang on 6-9-1994, applications were invited only from persons (male) holding the degree of B.E. (Electrical). As such, the appellant was not qualified for that job. The Senior Member, Sindh Service Tribunal observed that as per said advertisement only male candidates could apply for the job whereas the Constitution provided that there shall be no discrimination on account of sex and as such the advertisement was not ' correct' being in consistent with the Constitutional provisions.
10. The Chairman observed that even if it is accepted for the sake of argument that only persons possessing B.E. (Electrical) were eligible to apply for the job of Electrical Inspector (B-18) the big questions are:--
(i) Why the respondents entertained the application of the appellant?
(ii) Why he was interviewed by the respondents?
(iii) Why he was selected/appointed on that job?
11. He enquired from the departmental representative, who was present during the hearing (Mr. Abdul Aziz Shaikh, Section Officer Irrigation and Power Department) as to who were the members of the Selection Board? He replied off handedly '3 Chief Engineers Committee'. When asked to name them, he corrected the earlier statement after checking the record and stated that the three (3) members of the Selection Board were:--
(1) Mr Abdul Qadir Abro, Chief Engineer, I & P Department.
(2) Mr. Muhammad Suleman, Superintending Engineer, I & P Department.
(3) Mr. Mushtaq Ahmad Qureshi, Deputy Secretary (I&P Department).
12. A.A.-G., however, asserted that the appointment order of the appellant was cancelled rightly because he did not possess the desired/prescribed qualification for the job of Electric Inspector (B- 18) viz B.E. (Electrical) and appeal is liable to be dismissed on that count alone.
13. Mr. Shabbir Ahmad Awan, counsel for the Intervener, argued at length. He contended that as per published advertisement for the job of Electrical Inspector (B-18) in Irrigation and Power Department Government of Sindh as well as the recruitment rules, that required and prescribed job qualification was B.E. (Electrical) and not B.E. (Electronics). He read out from the Sindh Government Gazette, May 3, 1984 and presented a copy thereof which lays down the following qualifications/experience for the job: Electrical Inspector (B-18). Column No,3:
(i) By initial recruitment; or
(ii) By promotion from Assistant Electrical Inspectors possessing degree in Electrical Engineering or Mechanical and Electrical Engineering having 5 years' experience as such; or (iii)By transfer on tenure basis from WAPDA or any Government Department of persons, possessing prescribed qualifications for initial recruitment.
14. Column No,4:
(i) Only male holding Degree in Electrical Engineering having six years' experience as Electrical Engineer in a Government Department Autonomous Body or firm repute.
(ii) Registration as Professional Engineer with Pakistan Engineering Council.
15. He added that the appellant not only did not possess the required qualification of B.E. (Electrical) but also lacked 6 years' experience as Electrical Engineer. He invited our specific attention to the application of the appellant available as Annexure E for the job of Electrical Inspector (B-18), addressed to the Chief Administrative Officer, K.E.S.C., wherein below his signature and name Aijaz Ahmad Kazi his designation is shown as Assistant Executive Engineer Building Department I.M. Zone P.No,N-156-3. He also read out in details from section 8 (Functions) of the Pakistan Engineering Council Act, 1975, which do not include the powers to grant equivalence certificate of one degree vis-a-vis the other. He asserted that the appointment order of the appellant was cancelled because he did not possess prescribed qualification for the job of Electrical Inspector (B-18) and action against other unqualified Electric Inspectors (B-18) and Assistant Electric Inspectof (B-17) possessing the same B.E. (Electronics) is under way. In this connection he presented photo copy of U.O. No, SOR-II (S&GAD) 8-22/97 dated 6-12-1997 addressed to Secretary Services S&GAD which is based on the opinion of law Department. He lastly concluded that the Honourable Supreme Court of Pakistan in the case of Raja Attaullah v. Shabbir Ahmad Chughtai (1998 PLC (C.S.) 100) had held that Pakistan Engineering Council could decide as to whether particular academic qualifications could be equated with another academic qualification but it would have no power to say that civil servant holding particular academic qualification could not be promoted from one particular grade to higher grade. He, therefore, argued that on that analogy Pakistan Engineering Council could not prescribe the job qualifications for the job of Electric Inspector (B-18) which was within the sole discretion of the Provincial Government. He, therefore, prayed that the appeal may be dismissed.
16. We have gone, through the arguments of either side very carefully and also perused the record of this appeal. The points for determination are:-- What are the prescribed job qualification for the post of Electric Inspector (B-18)?
17. According to section 36 of the Electricity Act, 1910, section 36(2) Appointment of Electric Inspectors reads as under: "36. Appointment of Electric Inspectors.--(1) The Provincial Government may, by notification in the official Gazzette, appoint duly qualified persons to be Electric Inspectors within such areas as may be assigned to them respectively; and every Inspector so appointed shall exercise the powers and perform the functions of an Electric Inspector under this Act, subject to such restrictions as the Provincial Government may direct."
(2) The original subsection (1) as amended by A.O., 1937, has been omitted by A.O. 1964, Article 2 and Schedule.
(3) The words 'except in relation to mines, oilfields and railways' which were inserted by A.O., 1937, have been omitted by A.O. 1964, Article 2 and Schedule."
18. In this regard the notification of Government of Sindh, dated 3rd May, 1984 produced before us prescribes degree in Electrical Engineering, with 6 years experience as Electric Engineer in a Government Department Autonomous body or a firm (of reputed).
19. Without prejudice to the above, the Pakistan Engineering Council in its Letter No,PEC/QEC/4/5, dated 24th May, 1989 issued 5 years after the said notification, in para. I has acknowledged the fact that B.Sc. (Electronics) University, College of Engineering Mirpur, is an Engineering degree in the field of Electrical and Electronics Engineering. In para. (2) it is also stated: The Universities which are issuing degrees in Electrical Engineering do include the courses of Electronics Engineering. As such, students from these Universities may be considered at par with those who obtained Engineering degree in Electronics Engineering at B.Sc. Level."
20. This letter is addressed to Engineer Manzoor Ahmad Shaikh, Member, Federal Public Service Commission, Islamabad.
21. In view of above letter it is obvious that the Engineering degrees, in Electrical and Electronics are at par with each other--matter having been decided by the competent forum viz. Pakistan Engineering Council.
22. The objection of the counsel for the Intervener that section 8 (Functions) of Pakistan Engineering Council Act, 1975 does not authorise it to issue equivalence certificate is not valid, if sections 10 and 11 are read carefully, which provide for the Recognized engineering qualifications granted by institutions in Pakistan and Recognised foreign engineering qualifications, as provided in 1st and 2nd Schedules at the end of the Act. This view is strengthened by the wording of judgment of Honourable Supreme Court of Pakistan in 1998 PLC (C.S.) 100 Raja Attaullah v. Shabbir Ahmad Chughtai wherein it was held in last para. (page 102 continued on 103).
23. "9. In this regard we may point out that it is the domain of the Government concerned to decide whether a particular academic qualification of a civil servant/employee is sufficient for promotion from one grade to another higher grade and whereas it is in the domain of Pakistan Engineering Council to decide as to whether a particular academic qualification can be equated with another academic qualification, it has no power to say that civil servants/employees holding particular academic qualification cannot be promoted from a particular grade to a higher grade. The, main object of the Act as pointed out by one of us (Ajmal Mian, J.) and Saiduzzaman Siddiqui, C.J. (as he then was) in the above High Court judgment is to regulate the working of professional engineers and consulting engineers and not to regulate the qualifications or the working of engineers in the Government or semi-Government Department'. It is obvious from a plain reading of the above that the P.E.C. has the right to equate different engineering qualification but it could not dictate the Government that only persons holding a particular qualifications should be promoted and other, holding different but equal qualifications should not be promoted, for the simple reasons that it would be against the principles of natural justice, fairplay and equity. This citation is not relevant for the purpose of recruitment of the appellant."
24. We have also considered the other aspects of this appeal carefully. The actions of the respondents are self-contradictory--which reflect adversely on the bona fides of their actions. In the first instance, they requisitioned the services of the appellant in 1994 from Federal Government as if there was no qualified person available in the Province, treating him as eligible for that post. In 1997 he was declared as 'not eligible' for appointment as Electric Inspector (B-18). Why the respondents overlooked this important aspect in the 1st instance and why do they emphasize it 3 years after? It is sufficient to show that they acted as 'their masters voice and their moto was "to hear is to obey".
25. Irrespective of the legality or illegality of the order. The respondents according to themselves were not only guilty of requisitioning the services of a non-qualified person allegedly but also showed undue favouritism to him by ordering his over (higher) posting against a post in BSP-18, while he was only an officer of BSP-17 a vice under public administration. Normally speaking, the posts in BSP-16 and above fall within the purview of Sindh Public Service Commission--but the then Chief Minister was too kind and withdrew the post of Electric Inspector (B-18) out of the purview of the Sindh Public Service Commission, constituted a Selection Board, which accordingly obliged the appellant out of 12 applicants allegedly selected the very same person and rejected all other (11 persons).
26. The respondents were within their inherent powers to reject the application of the appellant if he did not possess the desired qualifications as per their own advertisement dated 6-9-1994 but they preferred to remain 'mum'. None in the Selection Board took note of it while recommending him for that appointment, though the Selection Board comprised of one Chief Engineer (BSP-20) and one S.E. (BSP-19) of Irrigation and Power as well as a Deputy Secretary of that Department (BSP-18). The appointing authority, for a post in B-18 is, the Chief Secretary, who did nor notice it no anyone pointed it out to him. However the day, appellant's God father, whosoever he may be, was gone, his appointment order was cancelled--though other persons with the same qualifications of B.E.
27. (Electronics) are Still retained in service. Obviously, the real issue about the appellant was not his academic qualification--but other qualifications i,e, prima facie where his political loyalties are To wrong cannot make one right.
28. The respondents in the heart of their heart knew fully well that the competent forum of P.E.C. has equated B.E. (Electronics) with B.E. (Electrical) and C&W Department has already amended their recruitment rules accordingly. The question of equivalence of academic qualifications arises every day in admission to professional collegues, in recruitment to professional jobs, in Health, C&W, Agriculture and other technical departments. Once an academic qualification is equated at par with another qualification by the competent forum be it Pakistan Engineering Council, or Pakistan Medical and Dental Council, University Grants Commission, a University or an Intermediate, or Secondary Board of Education, a candidate cannot be rejected simply because he does not possess a particular qualification because it would amount to violation of his fundamental right i,e, to be treated at are with others possession equal qualification and it would also be against the principles of natural justice, fairplay and equity.
29. In view of the above we are unable to maintain the impugned order.
30. We also observe that the recruitment rules of Irrigation and Power Department for the post of Electric Inspector (B-18) framed in 1984, should have been reviewed updated in view of P.E.C. letter dated 1989, being old and at variance with that decision. The established principle of law is that no one should suffer for the fault of another. Without prejudice to the foregoing paras, we also observe that in the Notification dated May 3, 1984, there are 3 prescribed methods of recuiment to the post of Electric Inspector (B-18) each to the exclusion of others, in order of the laid down priority i,e,:
(i) By Initial Recruitment; or
(ii) By promotion for amongst Assistant Engineers, or
(iii) By Transfer on tenure basis from WAPDA or any Government Department.
31. Since the appellant was appointed on 13-1-1994 as Electric Inspector (BSP-18) in his own pay and grade on transfer from Federal Government/tenure of one year that post was not vacant up to 12- 1-1995 and could not be filled up without 1st repatriating the appellant. The advertisement of the Irrigation and power Department published in Daily Jang of 6-9-1994 with the caption Post Vacant/Available was factually incorrect, as no recruitment can be made against an occupied post--Recruitment can only be made against a vacant post. Since post of Electric Inspector (B-18) held by the appellant was physically occupied/not vacant in Irrigation and Power Department on 4-10-1994 the Notification to take it out from the purview of the commission, was also technically incorrect. This could be done by the Chief Minister--only if that post was vacant. If no vacant post was available, it could not be advertised, nor could it be taken out of the purview of the Commission by the then Chief Minister and for the same reason, no Selection Board could be constituted to interview the candidates/recommend it selected for appointment against a nonexistent/non-vacant post. Actually the whole exercise amounted to putting the cart before the horse/putting the things in reverse order, against all logic, rational and legal provision on the subject. Legs have no feet to stand upon. The entire episode was a hoax, if we go a little deep in the matter. According to the advertisement dated 6-9-1994 applicants were called directly for 'interview' without usual preliminary recruiting of their eligibility. The date on which post of Electric Inspector (B-18) was advertised and the date on which Interviews were held in Irrigation and Power Department need to be noted carefully i,e, 6-9-1994 and 12-9-1994 respectively.
32. According to the copy of Summary for the Chief Minister, bearing No, UO No,A-1/3-11/81-III, floated by the Secretary Irrigation and Power, ten (10) candidates applied for the post and appeared for interview on 12-9-1994. The Departmental Selection Committee after conducting the interview found one Mr. Aijaz Ahmad Kazi suitable for the post of Electric Inspector (B-18) on regular basis.
33. Chief Minister was requested to approve the same, through Chief Secretary and he approved the same on 15-9-1994. Till the post of Electric Inspector (B-18) was actually taken out from the purview of the Sindh Public Service Commission i,e, 4-10-1994 (as per para.6 of the appeal) and vide Notification No,A-1/2-6/94(61), dated 4th October, 1994--this post fell within the purview of the Sindh Public Service Commission till 3rd October, 1994 and, therefore, Irrigation and Power Departmnet had no legal authority to call the applications for that post (in BSP-18) or hold interviews for that post prior to that. Hence the appointment of the appellant on regular basis approved by the then Chief Minister on 159-1994 was illegal. After taking out the post from the purview of the Sindh Public Service Commission on 4-10-1994 it was not advertised by Irrigation and Power Department nor there is any evidence that the candidates were interviewed by the prescribed Selection Board, after that date as no evidence to that effect has been presented to us.
34. The person selected in interview on 12-9-1994 naturally_ could not be the recommended of the Selection, Board--which was non-existent on that date. If the Selection Board was held after 4-10- 1994, its minutes, selection of the appellant and rejection of other 9 candidates through a proper merit list should have been produced before Sindh Service Tribunal. Non-production of the same, even when asked for only leads to one presumption that it did not prepare any minutes properly nor made out a proper merit list. In the absence of such documents, we are of the considered view that the selection/recommendation of the appellant, by that Board and appointment by the Competent Authority, on its recommendations, is nothing more than hearsay with no evidential value. therefore, the appointment order as approved by the Chief Minister on 15-4-1994 and notified on 24-10-1994 as Electric Inspector (B-18) on regular basis, has no foundation whatsoever.
35. Therefore, it is also null and void. In such an event, even though the impugned order is also null and void, the respondents are within their inherent rights to repatriate, the appellant a deputations, to his parent department, viz. K.E.C.S. if extension thereof is not desired for any reason, whatever it may be. Prima facie, the appellant still holds his lien in K.E.S.C. as no proof of its termination has been produced before Sindh Service Tribunal nor such is the case of the appellant. Appeal is rejected with no orders as to the cost.
36. Given under our hands and the seal of this Tribunal this 6th day of April, 1998 at Karachi.