' MRS. SYEDA TAHIRA SAFDAR (MEMBER-II).---The above mentioned three Appeals bearing No,76 of 1997, 1 of 1998 and 12 of 1998 are intend to be disposed off through this common judgment, as in all the three appeals the matter in issue is the same. Therefore, it will be better to decide the cases jointly in order to avoid any contradictory decision.
2. In Second Appeal No, 76 of 1997, it is case of the appellant (Ahsan Hidayat Khan) that he joined services as Assistant Engineer (Civil) (B-17) on 3-4-1984 and continued as such. While after completion of five years services he became eligible for promotion to the post of Executive Engineer (B-18), but there was no clear vacancy available, therefore, he was posted on a project post on acting charge basis since 1990.
3. It is further his case that as per Appendix attached to Balochistan Irrigation and Power Department Engineers (Civil, Electrical and Mechanical) (Grade-16 and Above) Service Rules, 1981, diploma holders Sub-Divisional Officers are not eligible for the post of Executive Engineer (B-18). But now an amendment is made in said Service Rules of 1981, whereby the quota of promotion to said post is revised, while 80% is fixed for graduate members of service holding post of Assistant Engineers. While 20% by promotion amongst the members of service holding Diploma of Associate Engineer or B-Tech. (Hons.)
4. According to appellant (Ahsan Hidayat) the impugned amendment adversely affected terms and conditions of his services, whereupon he preferred departmental appeal but to no avail. He has prayed for setting aside of impugned notification on the grounds that the impugned amendment is contrary to provisions of Pakistan Engineering Council Act, 1976, and also in conflict with promotion policy as adopted by the Provincial Government. Further, the amendment is made with retrospective effect which is in violation of law as laid down by superior Courts. Furthermore, the impugned amendment is made with mala fide intention only in order to grant undue benefit to diploma holders.
5. Respondents Nos.1 and 2 in their joint reply have raised contention that it is within the domain of Government to decide and prescribe particular qualifications for purpose of promotion and appointment to all posts. Further, the Government has the power to change the policy from time to time. It is further their contention that in order to remove discriminatory provisions and also keeping in view the judgment of Honourable Supreme Court of Pakistan the impugned amendments have been made. As per previous service rules only degree holders have the opportunity to get promotion to i'318 and above posts. While the diploma holders Assistant Engineers were not allowed to get promotion beyond the level of Assistant Engineers (B-17). Further, there was also controversy in respect of equivalency of degree of B-Tech. (Honrs) with that of B.E/B.Sc. (Engg:). Thus, keeping in view both these issues the amendment was carried out in relevant Rules. Moreover, the amendments in Service Rules are to take effect from the date of issuance and not from retrospective effect. The replying respondents have prayed for rejection of appeal being baseless and without merits.
6. In reply respondent No,3 has admitted the contention of the appellant that the impugned amendment has adversely affected the terms and conditions of service of the appellant and other members of service to the extent of promotion as laid down by relevant Rules of 1979. Further, the Department has opposed the impugned amendment in the relevant Rules.
7. In Second Appeal bearing No,1 of 1998 it is case of the appellant (Javed Ahmed) that he was appointed as Assistant Engineer on 1-6-1986 in Irrigation and Power Department on recommendation of Public Service Commission, while he is presently working with respondent No,2.
It is further his case that Government of Balochistan has made amendment in Appendix of Balochistan Public Health Engineering Department Engineers (Civil, Electrical and Mechanical)
(Grade-16 and above) Service Rules 1989, through notification dated 23-8-1997 whereby fixed 20% quota of promotion from amongst the members of the service in relevant field holding the post of Assistant Engineers holding Diploma of Associate Engineer or B-Tech (Hons). While 80% of quota remains for the Professional Engineers.
8. It is contention of the appellant (laved Ahmed) that the said amendment has affected the terms and conditions of his services. Feeling aggrieved of the same he preferred representation, which was rejected by the Authorities/respondent No,2 through order dated 6-12-1997. The appellant has prayed for setting aside of impugned amendment being contrary to law and facts, further contrary to provisions of Pakistan Engineering Council Act 1976. The impugned amendment is further in violation of judgment made by Honourable Supreme Court of Pakistan. Moreover, the post of Executive Engineer comes within the perview of Professional Engineer as defined in the Act, while the work of the same is also of technical in nature, thus falls within the ambit of Professional Engineering Works. Thus, in view of the same as the Associate Engineers being no professional Engineers, also not registered with Pakistan Engineering Council, therefore, they cannot be promoted as Executive Engineers as per relevant Law, as such the impugned amendment is of no legal effect. Furthermore, the Government is not competent to issue any notification from hack date.
9. In reply respondent No,2 while denying the contention of the appellant has asserted that the Government is competent to issue any notification. Thus, necessary amendments are made in the Rules, whereby respective shares are fixed. Furthermore, Diploma-holder Engineers are also eligible for promotion to the post of Executive Engineers. He has prayed for dismissal of appeal being without merits.
10. Respondent No,3 (Pakistan Engineering Council) in reply has admitted the contention of the appellant. Further, raised contention that they have opposed the impugned amendment, as the same is in violation of the Engineering Council Act, 1976. They have prayed for passing of appropriate order to stop the violation of provisions of said Act.
11. The Third Appeal bearing No,12 of 1998 is filed by one Qurban Ali. According to him he joined services as Sub-Engineer Civil (B-11) in Irrigation and Power Department on regular basis on 3-10- 1991, whereafter he acquired higher degree from Engineering University Khuzdar in 1996. While at the time of joining of services Service Rules of 1981 were in force but now amendment has been made in said Rules through notification dated 23-8-1997, which adversely affected his rights due to reduction in reserved quota of promotion from 10% to 5%. The appellant feeling aggrieved of the same submitted representation/appeal which was rejected through order dated 27-12-1997.
12. The appellant has prayed for setting aside of impugned notification on grounds that the impugned notification is contrary to law and facts. Further, the reduction in quota of promotion for Sub-Engineers, who acquired decree during services, is in a disadvantage of them and also is affects their rights. Further, no Service Rules can be framed with retrospective effect. Due to this amendment the terms and conditions of his services are effected. Further, there are no B-Tech.
Engineers in Irrigation and Power Department, while there is no clarification that how the said reserved quota of 3% shall be utilized. Further, the impugned amendment is in conflict with provisions of Promotion Policy.
13. Respondents Nos.1 and 2 in their joint reply have raised contention that in order to overcome the discrimination and anomalies in Service Rules of various Engineering Departments the impugned amendment has been made. The impugned notification is issued in accordance with law and also in accordance with decision of Honourable Supreme Court of Pakistan, made in Suo Motu Writ Petition No,52 of 1993. Further, the amendments/substitution made in Service Rules are to take effect from the date of issuance and not from retrospective effect. They have prayed for dismissal of appeal being without merits.
14. In reply it is contention of respondent No,3 that there were certain discriminations in Service Rules and also controversy existed on question of equivalency of degree of B-Tech. (Hons.) with that of B.E./B.Sc. (Engg:), therefore, in order to resolve these issues and remove the discrimination amendment in question was made. Further, this amendment was also carried out in accordance with observation made by Honourable Supreme Court of Pakistan in same respect. They have strongly denied the contention of the appellant and prayed for dismissal of appeal.
15. It is to be noted that in Appeals Nos.76 of 1997 and 12 of 1998 same notification is impugned which has been issued on 23-8-1997 whereby amendment has been made an Appendix of Balochistan Irrigation and Power Department Engineers, (Civil, Electrical and Mechanical) (Grade- 16 and above) Service Rules, 1981 is substituted, while in Appeal No,1 of 1998 the notification issued on 23-8-1997 is impugned, whereby the Appendix of Balochistan Public Health Engineering Department (Civil, Electrical, and Mechanical) (B-16 and Above) Service Rules, 1989 has been substituted, are challenged by the appellants. Though the notifications are different, further the notification challenged through Appeals Nos.12 of 1998 and 76 of 1997 is the same but different clauses are challenged, despite the same, as same law point is involved, therefore, through this common judgment the issue can be resolved avoiding any contradictory view.
16. The perusal of the impugned notification reveals that the grievance of the appellants are in respect of items Nos.3 and 4 of Appendix of both the said Rules, whereby the ratio of quota of promotion and recruitment has been refixed. As per item No,3, which is in respect of post of Executive Engineer (B-18), whereby 80% has been fixed for promotion on basis of seniority cum fitness, 5 years service in B-17, from amongst the graduate members of the service in relevant field, holding the post of Assistant Engineers. While remaining 20% is fixed for promotion on basis of seniority cum fitness, with 5 years service in B-17 from amongst the members of the service in relevant field holding the post of Assistant Engineers holding diploma of Associate Engineer or B- Tech. (Hons.) While before amendment the post of Executive Engineer was 100% by selection from Assistant Engineers who are engineering graduates in relevant fields with six years service. While item No,4 is in respect of post of Assistant Engineer B-17 whereby 70% is fixed to be filled by initial recruitment, while 5% by promotion amongst holder of post of Sub-Engineers holding the degree of Engineering prior to induction of service. Further, 5% by promotion from amongst the holder of post of sub-Engineers acquiring the degree during service. While remaining 17% by promotion on seniority-cum-fitness basis, with 10 years service as such, from members of service holding of the post of Sub-Engineer having three years Diploma in Associate Engineers. While 3% by promotion on seniority-cum-fitness basis having 10 years service as such from amongst the members of the service holding the post of Sub-Engineer having degree of B-Tech. (Hons). Previously 70% was fixed for initial recruitment, while 10% from amongst Sub-Engineering who hold degree in relevant fields, while remaining 20% by selection on merit amongst Sub-Engineers holding Diploma with 10 years service and such.
17. The appellants feeling aggrieved of the proportion. Fixed for these posts, as according to them the impugned amendment affected their legal rights. As per appellant (Qurban Ali) that basically quota of 10% was reserved for those graduate Sub-Engineers who will acquire a degree during the subsistence of service. But through this amendment this share is reduced to 5%, while 5% has been given to Sub-Engineers already holding degree. Thus, his rights have been effected. It must be noted here that in previous Appendix there was no clause or item in respect of Sub-Egnineers who improve their educational qualifications during service, nor any specific quota of promotion was fixed for them. While as per item. No,4(b) of unamended Appendix 10% was fixed for Sub-Engineers holding decree in relevant field, there is no distinction between Sub-Engineers holding degree prior to entering in service and Sub-Engineers acquired degree during subsistence of their services. The contention of appellant (Qurban Ali) has no force. He has further not shown that how his seniority and other rights are effected by impugned amendment and to which law the impugned amendment is in conflict with. The appellant (Qurban Ali) has completely failed to make out any case.
18. As far as remaining appellants Javed Ahmad and Ahsan Hidayat are concerned they are claiming their right for promotion to the post of Executive Engineer (B-18) being graduate Engineers which has been affected by the impugned amendments. According to them the post of Executive Engineer comes within the purview of "Professional Engineer" as defined in the Act i,e, Pakistan Engineering Council Act, 1976. While the work/duties entrusted to the Executive Engineer also comes within the ambit of "Professional Engineering Works" as defined by said Act. Thus, in view of the same it is contention of appellants (Ahsan Hidayat and Javed Ahmed) that only a person, who holds a recognised engineering qualifications and also registered as Professional Engineer with Pakistan Engineering Council, becomes entitled and eligible for promotion to the rank of Executive Engineer. As such the members of service holding Dioploma in relevant fields are legally not entitled or eligible for promotion to the rank of Executive Engineers. Thus, to this extent the impugned amendment is in conflict with the provisions of said Act. In addition to the same the appellants have further challenged the authority of the. Government in respect of carrying out any amendment/change in relevant Rules. In reply of the same official respondents i,e, Nos.1 and 2 strongly denied the contention of the appellants. While asserted that the Government is very much competent to carry out any change in Law and Rules and in its policy. While Pakistan Engineering Council, also being respondent, supported the contention of the appellants.
19. Before discussing the merits and facts of the cases the judgments relied by the parties are to be seen. The appellants have relied upon judgment of Honourable High Court of Balochistan made on 27-11-1996, in Civil Petition No,122 of 1996. The perusal of the same reveals that the Honourable Judges of Balochistan High Court have relied upon a decision/judgment made by Honourable Supreme Court of Pakistan in Suo Motu Review Petition No, 52 of 1993 on 5-6-1995 titled as Fida Hussain v. The Secretary Kashmir Affairs and another v. While respondents Nos.1 and 2. Have also relied on same judgment of Honourable Supreme Court of Pakistan. The perusal of both these judgments reveals that the matter in issue in both said petitions were nearly the same as presently in appeals before us. The matter in issue has been fully discussed and thereby decided by learned Judges of both the apex Courts. Wherein they have clearly and specifically held that it is domain of Government concerned to decide whether a particular academic qualification of a civil servant/employee is sufficient for promotion from a particular grade to a higher grade and it is further within the domain of the Government to change the policy time to time, as nobody can claim any vested right in the policy. It is further held by Honourable Judges of the Supreme Court that the functions of Pakistan Engineering Council are to regulate the persons qualified to practise as professional Engineers and Consulting Engineers and not to the persons who are employed in the Government or semi-Government organizations. In case the Government employs a professional engineer, as defined in the Act, fore performing professional Engineering Work, as defined by the Act, the provisions of the Act would be attracted and not otherwise.
20. In view of above quoted judgments it is now an established position that the Government is fully competent to carry out any amendment or substitution in the Rules or Law, but it must not be in conflict with any other provision of Law. In present case the main grievance of the appellants is that impugned amendment is in conflict with the provisions of Pakistan Engineering Council Act, 1975, as it is provided therein that only a professional engineer registered with the council can undertake the Professional Engineering Work, whereas diploma holders, not covered with the term professional engineer, therefore, they are not entitled to be promoted to the next higher grade i,e, up to the post of Executive Engineer, which is a technical post and duties assigned to it falls within the ambit of "Professional Engineering Work". As per provisions of the Act the contention of the appellant is correct. But in view of abovequoted judgments of Honourable Supreme Court and High Courts it has been clearly held therein that though the professional engineering work cannot be assigned to anyone unless he has been registered with the council as provided under the Act. But this does not amount to giving unlimited powers to the Council. Rather it is further held therein that the Council has no power to determine that the employees/civil servants particulars academic qualification cannot be promoted from a particular grade to a higher grade. Nor the said Council has any power to dictate the Government in same respect, rather it is the Government alone, having exclusive power and authority to carry out any change in relevant Rules and further to determine any qualification suitable or required for any particular post and for purpose of promotion from one particular grade to other higher grade too. Though the Government has exclusive power in same respect but while exercising the same the Government must be careful and exercise it in legal and just manner. It is specifically held in said decision by Honourable Supreme Court 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, but it has no power to say that civil servants/employees holding particular academic qualifications cannot be promoted to a higher grade. The main object of the Act, as pointed out by one of us (Ajmal Mian, J.) and Saiduzzaman Sicdiqui, C.J. (as he than 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 the engineers in the Government and semi- Government Departments."
The extent of jurisdiction of Government and the Council is specified in the same and there is no ambiguity in it. Thus, in view of the same the Government is fully competent and have jurisdiction to make any amendment in relevant Rules and change its policy which has been done in present case.
21. Apart from the same, in case if there is any violation of the rule/law that the professional engineering work is assigned to any one not legally registered with the Council, as per said Act, than the Council is fully competent and has full authority to take legal action against the concerned person or authority as provided under said Act. Penal .Clause is included in powers of the Council, which can be exercised. In addition to the same if there is any violation of this principle that professional engineering work is not performed by a professional engineer, then the appellants or any other person in knowledge or affected by the same can approach the competent Authorities including this Tribunal for redress of his grievance.
22. Keeping in view the abovementioned facts and discussion the appellants have failed to establish their contention to the extent that the impugned amendment has been carried out without jurisdiction, thus of no legal effect. It is established in view of above decisions that the Government has the authority to do the same. Further, the appellants (Javed Ahmed and Ahsan Hidayat) have also not mentioned any instance whereby on basis of said impugned notification such civil servants/employees of the Departments, not being professional engineers, have been promoted to next higher grade and work assigned to them is of such a nature, which comes within the perview of professional engineering, work which has to be performed by a professional engineer. At present no cause of action to said extent has accrued to the appellants:
23. The next point raised by the appellants that as the impugned amendment has been given retrospective effect, while percentage has been fixed for promotion to next higher grade, due to the same their chances for further promotion have been restricted and decreased, as such due to the impugned amendment the terms and conditions of their services are affected. This contention is denied by respondents Nos.1 and 2, while admitted by remaining respondents. The bare perusal of impugned notification reveals that nothing of the sort is mentioned in the same, nor the term "retrospective effect" has been used in the same. Rather no time for implementation is mentioned therein. Thus, in absence of the same it shall be presumed that the notification is to be implemented with immediate effect, i,e, from the date of their issuance 23-8-1997. In case there was any other intention of the Government of giving it retrospective effect then the same had to be specifically mentioned in the same. Thus, in view of the same as the appellants, all the three, were inducted in service before issuance of impugned notifications, therefore, they are admittedly governed by the Rules in existence at relevant time. Further, this amendment cannot adversely affect their rights accrued to them. To this extent too, the appellants failed to establish their contention.
24. While concluding this must be pointed out that matter in issue has been tried and finally decided by Honourable Supreme Court of Pakistan followed by Honourable Balochistan High Court.
The Honourable Judges have provided guide lines in same respect for all concerned. Therefore, the concerned Authorities including the Council are bound to follow the same and perform their duties as provided by law. No further discussion, trial or thereafter decision is required therein in same respect.
25. Thus, in view of above discussion it is an established position that the Government has exclusive power and authority to amend any law or rule and can change its policy but not in contravention of any law. There is no legal bar on the Government in same respect unless and until the said vested power is used and exercised in unjust and illegal manner. But in present case the appellants have failed to establish any of the sort. Therefore, it is held that the impugned amendment/notification is not in conflict with the provisions of Pakistan Engineering Council Act, 1976, nor it is in conflict with any other provision of law, rule or policy, thus legal. Moreover, no further legal or factual defect is shown to be present in the same. The appellants (Javed Ahmed, Ahsan Hidayat and Qurban Ali) have completely failed to establish their cases. Therefore, no interference is required therein.
26. The appeals being without merits, therefore, liable to, be dismissed. The Appeals bearing Nos.76 of 1997, 1 of 1998 and 12 of 1998 are hereby dismissed.
27. No order as to costs. File after completion be consigned to record.