1. ' The brief facts out of which this writ petition arises are that the petitioner secured a Diploma in Civil Engineering from the Government Poly Technique Institute, Rasul. The petitioner was appointed as an Overseer in BS-11 by the respondent on 18-11-1970 on the basis of the aforesaid qualification. During his service the petitioner secured the B.Tech. (Hons.) degree in 1st Division in the year 1984. The respondent advertised a public notice on 6-8-1987 for the direct recruitment of Engineer in BS-17 and 18. The qualification prescribed in the advertisement qua the aforesaid posts as prescribed in the Punjab Local Council Service (Appointment and Conditions of Service) Rules, 1983 is as follows:-- "Degree in Engineering from a recognized University or equivalent qualification with 5 years field experience."
2. ' The petitioner submitted an application for the BS-17. Consequently, the petitioner was appointed by the respondent vide order dated 29-3-1988. Subsequently, service of the petitioner was confirmed in BS.17. The respondent issued the final seniority list of Engineers of BS-17 vide Circular dated 31-7-1999 and the name of the petitioner figured at serial No,24. Some posts of Engineers under the control of the respondent for BS-18 have become available in promotion quota. The qualification prescribed by the respondent under the rules for promotion from BS-17 to BS-18 is as follows:-- "Degree in Engineering from a recognized University or equivalent qualification with 5 years experience in Grade-17."
3. ' The case of the petitioner was considered by the Selection Board on 16-12-1999 alongwith others.
4. The Selection Board deferred the case of the petitioner till the establishment of equivalent of B.Tech.(Hons.) with a Degree of Engineering from recognized University. The petitioner being aggrieved filed a representation before the respondent and thereafter filed an appeal before the Punjab Service Tribunal which was rejected by the Service Tribunal vide order dated 26-12-2000. It was again decided vide order dated 26-6-2001 by the Board to make a reference to Pakistan Engineering Council with the following remarks:-- "After consulting the Pakistan Engineering Council as to whether B.Tech. Is presently equivalent to B.Sc. Engineering Degree or not. His case should be placed PLGB in its next meeting."
5. ' The petitioner being aggrieved filed this writ petition.
3. The learned counsel of the petitioner submits that action of the respondent is without lawful authority and is hit by Article 25 of the Constitution as the Board in its meeting on 24-6-2000 has promoted Zia Ullah Tarar, Sub-Engineer and Zafar Abbas, Sub-Engineer by treating B.Tech. (Hons.) to be equivalent to the Degree in Engineering as is evident from Annexure-O attached with the writ petition. He further submits that matter has been finally adjudicated by this Court in unreported judgment in Writ Petition No,1688 of 1982 Muhammad Munir Laved v. The Secretary Local Government Rural Department in which it was held that B.Tech. (Hons.) is equivalent to the Degree in Engineering. He further submits that judgment of this Court was implemented by the respondent and relevant rules were amended. He further submits that Full Bench of Service Tribunal followed the aforesaid unreported judgment of this Court in Case No,143 of 1964 of 1985 Habib Ullah Nasir v.
6. Secretary to the Government of the Punjab alongwith the connected appeals vide judgment dated 16-11-1985. He further submits that impugned decision of the respondent is result of malice. The learned counsel of the respondent submits that petitioner is a Civil Servant by virtue of section 44 of the Punjab Local Government Ordinance, 1979, therefore, writ petition is not maintainable by virtue of Article 212 read with section 4 of the Service Tribunal Act. He further submits that petitioner has alternative remedy before the higher authorities by virtue of rule 20 of the Punjab Local Councils (Appointment and Conditions of Service) Rules, 1983. He further urges that petitioner had filed an appeal before the Service Tribunal which was dismissed, therefore, writ petition is liable to be dismissed as the petitioner has to file petition before the Honourable Supreme Court under Article 212(3) of the Constitution. He further submits that no final order has been passed against the petitioner by the Board, therefore, writ petition is not maintainable. He further urges that action of the respondent is not hit by Article 25 of the Constitution on the ground that M/s. Zaffarullah Tarar, Sub-Engineer and Zafar Abbas have been promoted as Engineers in BS-17, the case of the petitioner does not fall in the same category as the petitioner's promotion is to be considered as Engineer from BS-17 to BS-18.
4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself.
5. It is admitted fact that the case of the petitioner was considered in the meeting held by the Selection Board on 16-12-1999 and the case of the petitioner was deferred by the Board in the said meeting in the following terms:-- "Mr. Zafar lqbal, Assistant Municipal Engineer, Municipal Committee Sheikhupura deferred till the establishment of equivalence of B.Tech. (Hons.) with a Degree of Engineering from recognized University."
7. ' The petitioner being aggrieved tiled appeal before the Punjab Service Tribunal. The Punjab Service Tribunal dismissed the appeal of the petitioner vide order dated 26-12-2000 in the following terms:- - "A plain reading of proviso (b) makes it quite clear that the decision of a departmental authority cannot be challenged in appeal before Service Tribunal if such a decision relates to the determination of fitness or otherwise of a person's promotion to a higher grade. This is exactly what the impugned decision of 16-12-1999 does. It considers the promotion case of the appellant and defers it for certain reason. In this view of the matter, the impugned decision is fully covered by the proviso and cannot be questioned by way of appeal before the Service Tribunal."
8. It is settled principle of law that promotion is not a vested right but the right to be considered for promotion where a person is eligible for promotion is a vested right. This proposition of law was considered in the reported cases of Muttaqi Hussain (PLD 1978 Karachi 703) and Dr. Muhammad Rafi-Ud-Din Qureshi.
9. ' Relevant observation is as follows:-- "However, the right to be considered for promotion, where a person is eligible for promotion, is a vested right and if the eligible person is not considered for promotion, or a person not otherwise qualified under the rules is promoted illegally or against the rules in such cases the aggrieved person can enforce his right to be considered for promotion or object to the person not qualified for promotion being promoted, through a civil suit or by invoking the Constitutional jurisdiction of the superior Courts, since this matter is not within the purview of the Service Tribunal."
10. ' The aforesaid proposition of law is also supported by judgment of Dr. Muhammad Rati ud Din Qureshi (1989 PLC (CS) 785). Since the case of the petitioner was deferred by the Selection Board qua his promotion from BS-17 to BS-18, in violation of respondents Service Rules, therefore, bar of Article 212 of the Constitution is not attracted in the present case. According to the rules of the respondent the post of Engineer in BS-18 is to be filled in by promotion on the basis of Selection from amongst those senior most members of the functional unit. The qualification prescribed for this post is as follows:-- "Degree in Engineering from a recognized University or equivalent qualification with five years experience in Grade-17."
11. ' This fact was admitted by the respondent in reply to para.
7. It is admitted fact that petitioner's qualification in B.Sc. B.Tech. (Hons.) on the basis of which he was appointed in BS-17. The respondent has not modified or repealed the rules till date. This question was considered by this Court in unreported judgment in Writ Petition No,1688 of 1982 on 20-2-1985 and held that qualification as B.Tech. (Hons.) is equivalent to Degree of B.Sc. Engineering.
12. The Full Bench of Service Tribunal in Habib Ullah Nasir's case (supra) relying upon the judgment of this Court observed as under:-- "We, therefore, accept the appeals and direct the respondents to take B.Tech. (Hons.) Degree at par with the B.Sc. (Engg.) in case of the appellants which is prescribed as requisite qualification for initial recruitment as well as promotion against 5% quota reserved for promotion on the basis of seniority-cum-fitness from amongst Sub-Engineers in the functional unit who possess qualification mentioned above."
13. ' The aforesaid proposition of law was considered by the Honourable Supreme Court in Fida Hussain's case (1996 PLC (CS) 44) and laid down the following principle:-- "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 the 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 the civil servants/employees holding particular academic qualification cannot be promoted from a particular Grade to a higher Grade."
14. "A perusal of the above quoted section shows that the Pakistan Engineering Council is vested with the .Functions to regulate the persons qualified to practise as professional engineers and consulting engineers and not persons who are employed in the Government or semi-Government Organizations. If the Government employees a professional engineer as defined in the Act for performing professional engineering work as envisaged by the Act in above clause (k) of section 2, the provisions of the Act would be attracted and not otherwise."
15. "We may again observe that it is exclusively within the domain of the Government to decide whether a particular qualification will be considered sufficient for promotion from a particular Grade to a higher Grade and it is also within the domain of the Government to change the above policy from time to time as nobody can claim any vested right in the policy. However, it cannot abdicate its power to decide the above question in favour of a corporate body which is not in its control nor it can act in a manner which may be violative of Article 25 of the Constitution for future to provide that academic qualification of B.Tech. (Hons.) will not be considered sufficient for promotion from BPS-17 if the same does not violate the above principle."
16. It is settled principle of law that it is the function of the departmental authorities to determine the fitness of the candidate for promotion but the determination has to be in accordance with law and not in violation of law and the rules. Since the action of the respondent Board is not in accordance with the rules of the Department, therefore, impugned order is without lawful authority and this Court has ample jurisdiction to give direction to the public functionaries to act in accordance with law as per principle laid down by the Honourable Supreme Court in H.M. Rizvi's case (PLD 1981 SC 612).
17. ' In view of what has been discussed above, it is thus clearly a case of misreading of the service rules of the respondent by the Selection Board, resultantly, writ petition is accepted with no order as to costs and the impugned order is set aside. The respondent is directed to consider the case of the petitioner for promotion without referring the case to the Pakistan Engineering Council in accordance with law.