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Petitioner: AKHTAR KHAN KHATTAK VS Respondent: PROVINCE OF SINDH through Chief SecretaryHonorable Justice Shahid Anwar BajwaMalik Naeem Iqbal,Muhammad Sarwar Khan
2013 P L C (C.S.) 440
[Sindh High Court]
Before Shahid Anwar Bajwa and Aftab Ahmed Gorar, JJ
AKHTAR KHAN KHATTAK and 3 others
Versus
PROVINCE OF SINDH through Chief Secretary and others
Constitutional Petitions Nos.D-252, D-323, D-511 and D-2567 of 2011, decided on 5th September, 2012.
(a) Civil service---
----Promotion, consideration for---Change in rules---Effect---Rules in force at time of making decision would be applicable---Principles.
No one has right to be considered in accordance with the rules applicable at the time the rules are brought into existence, but are amended subsequently. Material time will be the time at which decision is being made.
No doubt change in the rules or notification is always prospective, but it is prospective qua the time of consideration and not qua the time regarding employee, who was earlier inducted.
(b) Civil service---
----Promotion policy, change in---Qualification based quota for consideration of promotion prescribed subsequently---Validity---Departmental authority and rules making body had jurisdiction to prescribe such quota for employees coming out of different streams of qualifications---Government could always change promotion policy and prescribe qualification for particular post through amendment in relevant rules---Classification of such qualification would not be arbitrary or discriminatory---Principles.
C.P. No.D-368 of 2007; Abdul Farid v. N.E.D. University of Engineering and Technology, Karachi and another 2001 CLC 347; Muhammad Shabbir Ahmed Nasir v. Secretary, Finance Division, Islamabad and another 1997 SCMR 1026; Mujeeb Ahmed and others v. Province of Sindh and others 2011 PLC (C.S.) 1193; Muhammad Ishaque and others v. Government of Punjab through Chief Secretary and others 2005 SCMR 980; Zafar Iqbal and another v. Director, Secondary Education, Multan Division and 3 others 2006 SCMR 1427; Imtiaz Ahmed and others v. Punjab Public Service Commission through Secretary, Lahore and others PLD 2006 SC 472; Muhammad Younus Aarin v. Province of Sindh through Chief Secretary, Sindh, Karachi and 10 others 2007 SCMR 134; Eijaz Ahmed Shah v. Federation of Pakistan through Federal Establishment Secretary, Cabinet Secretariat Establishment Division, Government of Pakistan, Islamabad and 6 others PLD 2010 Kar. 309; State of Jammu and Kashir v. Shri Trilok Nath Khosa and others [1974] ICC 19; Syed Wajid Ali and 4 others v. Globe Automobiles Ltd. and another 1993 SCMR 819; Mehr Zulfikar Ali Babu PLD 1997 SC 11; Ardeshir Cowasjee and others v. Province of Sindh and others 2004 CLC 1353 and Ashfaq Ahmed v. The State 2007 SCMR 641 ref.
(c) Civil service---
----Promotion---Factors essential to be considered by competent authority/Promotion Committee/Selection Board---Scope---Competent authority/Committee/Board would be required not only to look at the past conduct or performance of an employee, but also assess his competence in respect of his ability to shoulder next higher responsibilities in case of his promotion---Mere looking at such past conduct would amount to driving a car blindfolded being guided by a person looking out of back window.
Malik Naeem Iqbal for Petitioners (in Constitutional Petition No.D-252 of 2011).
A.D. Shah for Respondent No.4 (in Constitutional Petition No.D-252 of 2011).
Muhammad Sarwar Khan, Addl. A.-G. Sindh for Official Respondents (in Constitutional Petition No.D-252 of 2011).
Khalid Javed Khan for petitioners (in Constitutional Petition D-323 of 2011).
Muhammad Sarwar Khan, Addl. A.-G., Sindh (in Constitutional Petition D-323 of 2011)
Gul Zameer Solangi for Petitioner (in Constitutional Petition D-511 of 2011).
Muhammad Sarwar Khan, Addl. A.-G., Sindh (in Constitutional Petition D-511 of 2011),
A.D. Shah for Petitioner (in Constitutional Petition D-2567 of 2011).
Muhammad Sarwar Khan, Addl. A.-G., Sindh for Respondents (in Constitutional Petition D-2567 of 2011).
Date of hearing: 10th August, 2012.
JUDGMENT
SHAHID ANWAR BAJWA, J.--- With consent of the learned counsel these constitutional petitions were finally heard at Katcha Peshi stage and are being decided accordingly.
2. Constitutional Petition No.D-2617 of 2011 (Sikandar Ali Mallah and others v. Province of Sindh and others) along with other petitions was decided by a Division Bench of this Court (of which one of us; Shahid Anwar Bajwa, J, was a member) on 15-12-2010. Question involved in that petition was that a meeting of Departmental Promotion Committee of Local Government Board was held which meeting decided to recommend quota for promotion to the post of BS-18 for those holding qualification of Degree in Engineering, Bachelor of Technology (honours) and Diploma holders: quota was recommended to fix 50 %, 35% and 15% respectively. Such decision by the Local Government Board were held to be beyond is competence and ultimately it was observed in the judgment as under:---
"In the present case, the key question is whether there was any quota or not; whether there was any provision in the rules for promotion to BS-18 or not; whether there was any approval for any quota or not and whether if there is a provision in the rules and there is no approval for quota laying down of any quota merely on the basis of recommendations and action taken on the basis of such recommendations would be sustainable in law or not. The answer to all these question is that there is a specific provision for promotion to BS-18 which does not prescribe a quota and no quota has been approved so far and rules have not been amended for such purpose. Consequently we set aside the notifications dated 17-12-2009 and 31-10-2009 by which notifications on the basis of quota (albeit with transfer of posts from one to the other) promotions were granted to B.Tech. (Hons) and Graduate Engineers respectively and direct the departmental authorities to consider cases of promotion strictly in accordance with the rules and contained in Rules of 1982. In view of these findings we do not think it would be necessary to decide other grounds raised by Mr. M.M. Aqil Awan."
3. It may be pointed that after deciding quota D.P.C. had recommended promotion of 7 Graduate Engineers and 8 Bachelor Tech. (Hons) Degree holders. After decision was made in that petition Provincial Government published in Gazette suggested amendments in the relevant rules and thereafter vide Gazette Notification dated February 24, 2011 rules were amended. Before amendment in the rules rule for promotion from BS-17 to BS-18 was as under:---
"The members of the service shall be liable to transfer from one council to another council in the following manner:-
(a) In the case of members of the service in Basic Scale 19 and above by the Chief Secretary.
(b) In the case of members of the service in Basic Scale 17 and 18 by the Secretary to Government of Sindh, Housing, Town Planning, Local Government and Rural Development Department, subject to the condition that transfer of a member of the service in [Basic Scale] 18 before completion of two years of his existing posting shall be made with the approval of the Chief Secretary.
(c) In the case of members of the service in Basic Scale 16 by the Additional Secretary (Local Government), Housing, Town Planning, Local Government and Rural Development Department; and
(d) In the case of members of the service below [Basic Scale] 16 by the Secretary, Sindh Local Government Board."
4. This rule was amended vide Notification dated 19-2-2011 printed in the Gazette of Sindh on 24-2-2011 and it now provides as under:---
"(i) Fifty percent by promotion from amongst the members of the service in BS-17 of the Engineering Branch with at atleast 5 years experience and possessing of B.E. or B.Sc in Civil, Electrical or Mechanical or an equivalent degree from a recognized University or Institution and registered with Pakistan Engineering Council;
(ii) Thirty five percent by promotion from amongst the members of the service in BS-17 of the Engineering Branch with at least 5 years experience and possessing degree of B. Tech (Hons) in Civil, Electrical or Mechanical from a recognized University or Institute;
(iii) Fifteen percent by promotion from amongst the members of the service in BS-17 of Engineering Branch possessing Three years Diploma in Civil, Electrical or Mechanical with at least five years service."
5. It may not be out of place to mention here that for promotion to BS-17 rules provides as under:---
"Minimum Qualification: Degree in engineering or B.SC (Engineering) of an equivalent qualification in Civil or Mechanical and Electrical Engineering from a recognized University.
(i) 50% by initial appointment.
(ii) 20% by promotion from amongst the Sub-Engineers having qualification of BE/ B.Sc. in Civil, Electrical or Mechanical with at least five years service as such.
(iii) 15% by promotion from amongst the Sub-Engineers having qualification of B.Tech (Hons) with at least five years service as such.
(iv) 15% by promotion from amongst the diploma holders Sub-Engineers on the basis of seniority-cum-fitness with atleast five years service as such.
Note: Seniority of Sub-Engineers would be maintained separately qtialification wise i.e. B.E., B.Tech (Hons.) and diploma holders."
6. The petitioners in C.P. No.D-252 of 2011 are Diploma Holders who are aggrieved by amendment in rules. Petitioner in C.P. No.D-2567 of 2011 is a Bachelor Technology degree holder and he was promoted before change in the rules and his grievance is that his promotion made earlier may be treated as ad hoc promotion and should be regularized with effect from that date rules were amended. Petitioners in C.Ps.Nos.D-323 and 511 of 2011 are either Bachelors in Engineering or Bachelors in Technology degree holders who are otherwise in the same boat as is petitioner in C.P.No.D-2567 of 2011.
7. Malik Naeem Iqbal learned counsel for petitioners in C.P. No.D-252 of 2011 made following submissions:---
(i) That the amendment in rules is mala fide, arbitrary, hasty and unreasonable. There is a large number of diploma holders and that in view of the amendment laid down in rules their prospects for promotions have been drastically reduced. Competent authority while framing the rules should have considered relevant strength of persons in various categories. He relied upon unreported judgment of Division Bench in C.P. No.D-368 of 2007 passed on 22-10-2010. Learned counsel submitted that all those in BS-17 irrespective from which stream they came to BS-17 i.e. directly appointed as graduate engineers or promoted from below who are being Diploma Holder or Bachelor of Technology degree-holders essentially performed same function. They are equally in all respect and, therefore, their classifications in different categories is, ex facie, discriminatory and cannot be sustained.
(ii) Learned counsel submitted that since there is no quota for different classifications of diploma holders for promotion from BS-18 to 19 there is no earthly reason that quota should be prescribed for promotion from BS-17 to 18.
(iii) He submitted that consequence of judgment of this Court in Sikandar Ali Mallah's case (supra) is decision of D.P.C. was set aside and, therefore, if at all there should be fresh consideration by a fresh Departmental Promotion Committee.
8. Mr. A.D. Shah learned counsel for petitioner in C.P. No.D-2567 of 2011 firstly submitted that notification is void because it requires publication in the Gazette and it has not been so published. However, when confronted that notification has been published on 24-2-2011 learned counsel did not press this ground. Learned counsel referred to Section 2(d) of the Sindh Civil Servants Act, 1973 and submitted that promotion granted to petitioner be treated as ad hoc promotion and since they have already been cleared by D.P.C. promotion be notified as regular promotion with effect from the date of Gazette notification.
9. Mr. Khalid Javed Khan learned counsel for petitioners in C.P.No.D-323 of 2011 made the following submissions:---
(i) Nobody has right to insist for consideration in accordance with earlier rules which are no longer in existence. He relied upon Abdul Farid v. N.E.D. University of Engineering and Technology, Karachi and another (2001 CLC 347).
(ii) Classification permitted if it is reasonable and rational. Classification on the basis of different educational qualifications has been accepted as valid by Courts. He relied upon Muhammad Shabbir Ahmed Nasir v. Secretary, Finance Division, Islamabad and another (1997 SCMR 1026), Mujeeb Ahmed and others v. Province of Sindh and others 2011 PLC (C.S.) 1193, Muhammad Ishaque and others v. Government of Punjab through Chief Secretary and others (2005 SCMR 980), Zafar Iqbal and another v. Director, Secondary Education, Multan Division and 3 others (2006 SCMR 1427) and Imtiaz Ahmed and others v. Punjab Public Service Commission through Secretary, Lahore and others (PLD 2006 SC 472). Regarding difference between Graduate (Eng) and Bachelor (Tech) degree holder learned counsel relied upon Muhammad Younus Aarin v. Province of Sindh through Chief Secretary, Sindh, Karachi and 10 others (2007 SCMR 134) and Eijaz Ahmed Shah v. Federation of Pakistan through Federal Establishment Secretary, Cabinet Secretariat Establishment Division, Government of Pakistan, Islamabad and 6 others (PLD 2010 Karachi 309).
(iii) Notification is curative and therefore retrospective in operation. A Lacuna was pointed in the judgment passed in Sikandar Ali Mallah's case and same has been filled: the judgment should stands nullified. Learned counsel relied upon State of Jammu and Kashir v. Shri Trilok Nath Khosa and others [1974] ICC 19). Regarding effect and validity of curative rules learned counsel relied upon Syed Wajid Ali and 4 others v. Globe Automobiles Ltd. and another (1993 SCMR 819) and Mehr Zulfikar Ali Babu's case (PLD 1997 SC 11). Regarding effect of judgment being nullified learned counsel relied upon Ardeshir Cowasjee and others v. Province of Sindh and others 2004 CLC 1353 and Ashfaq Ahmed v. The State (2007 SCMR 641).
(iv) Learned counsel submitted that Courts always take into consideration change in the circumstances during pendency of a matter. He submitted that vide notification 23-12-2011 many persons have been promoted on quota basis and they included 17 engineers, 11 bachelor technology degree holder and 5 diploma holders and with notification of quota these promotions should stand regularized. Learned counsel read the following from the minutes of meeting of D.P.C. held on 6-10-2009:--
ITEM NO.1
RESOLUTION
Separation of seniority of BS-17 (Civil) officers of SCUG Service (Engineering Branch) qualification wise from the date of passing fixation of quota for promotion to BS- 18.
The Board was apprised that in 2005, the quota was fixed for promotion from Sub-Engineer (BS-11) to AEE (BS-17) by Sindh Local Government Board in its meeting held on 14-4-2004 and notified vide amendment dated 8-10-2005 as under: Minimum Qualification: Degree in engineering or B. SC (Engineering) or an equivalent qualification in Civil or Mechanical and Electrical Engineering from a recognized University:--- (i) 50% by initial appointment. (ii) 20% by promotion from amongst the Sub-Engineers having qualification of BE/ B.Sc in Civil, Electrical or Mechanical with at atleast five years service as such. (iii) 15% by promotion from amongst the Sub-Engineers having qualification of B.Tech (Hons) with at least five years service as such. (iv) 15% by promotion from amongst the diploma holders Sub-Engineers on the basis of seniority-cum-fitness with atleast five years service as such. Note: Seniority of Sub-Engineers would be maintained separately qualification wise i.e. B.E. B.Tech (Hons) and diploma holders. Accordingly the seniority lists of Sub-Engineers (BS-11) were also maintained separately on basis of quota In view of the above, it was brought to the knowledge of the Board that while making this decision in the matter aspect was not addressed that what would happen for the promotion from BS-17 to BS-18 for qualification wise quota had already fixed in lower grade of AEE (BS-17); Under this situation Board is feeling now very difficulty in considering/ processing the promotions of AENs from BS-17 to BS-18 and in the result the supervision of day-to-day engineering work is suffering in the CDGK and TMAs very badly. Accordingly the Board recommended that the qualification wise quota, which has already been approved by the Board and the Competent Authority viz Chief Minister Sindh vide amendment dated 8-10-2005 for promotion from BS-11 to BS-17, may also be considered and fixed for promotion from BS-17 to BS-18 as per procedure also laid down in sister departments i.e. Education and Works and Services Departments. This way disparity among departments within Government of Sindh would be removed and on other hand SLGB would be enabled to consider the promotions from BS-17 to BS-18 presently are awaiting for resolution. The Board further recommended that the seniority list in BS-17 may also be maintained separately qualification wise i.e. BE/B.Sc and B.Tech (Hons) respectively as per advice of SGA&CD (Regulation Wing) bearing No. SO-III (S&GAD) 1014/08 dated 5-12-2008 to enable the administration to maintain quota strictly within any error during promotion from BS-17 to BS-18 (Civil). The Board recommended that the following quota may be fixed for promotion from BS-17 to BS-18 (Civil) of SCUG Service (Engineering Branch) keeping in view the quota fixed by Education and Works and Services Departments to maintain uniformity in the policy at Provincial level:"
Thereafter Board recommended what has now been incorporated in the rules. Learned counsel submitted that this is the rationale for change in rules. He submitted that essential rationale is that the same provision exists for promotion to BS-17 as well as it existed for BS-18 in other departments.
10. Mr. Gul Zameer Solangi learned counsel for petitioner in C.P.No.D-511 of 2011 adopted arguments of Mr. Khalid Javed Khan and submitted that government can always classify and categories and he relied upon Dr. Muhammad Hussain v. Principal, Ayub Medical College and another (PLD 2003 SC 143) and Zafar Iqbal and another (supra).
11. Mr. Muhammad Sarwar Khan learned Additional Advocate General Sindh submitted that rules have been validly amended and they have been amended to avoid and to resolve controversy between different qualification holders. He submitted that same process is applicable in other department. He submitted that petitioners who have been promoted under the previous rules if they fall within reserved quota, there promotion be treated as ad hoc till rules came into existence and therefore, be regularized. He relied upon Province of West Pakistan v. Muhammad Akhtar Qureshi and others (PLD 1962 SC 428). He submitted that classification is reasonable and is, therefore, not discriminatory.
12. Exercising his right of reply Malik Naeem Iqbal submitted that rules cannot be given retrospective operation. He submitted that no diploma holder has been promoted after issuance of notification. It was denied by learned Addl. A.-G. who stated that three such persons have been promoted in 2011.
13. We have considered submissions made by the learned counsel and have also gone through record as well as case-law cited at the bar.
14. First contention of Malik Naeem Iqbal was that amendment in the rules is mala fide, arbitrary and unreasonable. He submitted that there is a large number of diploma holders and in view of amendment made in the rules, their prospects for promotions have been drastically reduced. Learned counsel submitted that relevant strengths of persons in the three categories i.e. Engineering Degree Holders, Bachelor of Technology Degree Holders and Diploma Holders have not been considered while framing rules. Another leg of the same arguments of learned counsel was that while in BS-17 Engineering Degree Holder, Bachelor of Technology Degree Holder, Diploma Holder perform same job. Yet another limb of arguments of learned counsel was that there is no similar quota for promotion from BS-18 and BS-19. He relied upon order dated 22-10-2010 by a Division Bench of this Court passed in Mujeeb Ahmed's case (supra). In that case in the petition it was stated that petitioners were inducted into government service as Sub-Engineers BPS-11 with qualification of Diploma of Associate Engineering. They were promoted to BS-17 on regular posts. Their contention was that though during their service they improved their qualifications to Bachelor of Technology, in the rules at that time no quota was fixed for Bachelor of Technology Degree Holders, though processes of amendment in rules had been initiated. Notification dated January 14, 1987 fixed 80% quota for Degree Holders and 20%. for Diploma Holders for promotion from BS-17 to BS-18. Notification dated June 4, 2008 changed quota for promotion from BS-17 to BS-18 to 60:30:10: A Division Bench of this Court considering longstanding grievance of Bachelor of Technology degree holders set aside notification dated June 4, 2008 and directed that quota be fixed by considering number of persons along with their requisite qualifications.
15. On the other hand, Mr. Khalid Javed Khan relied upon Abdul Farid's case (supra). Petitioner was a Bachelor of Technology. Thereafter he joined B-Tech (Hons) course which he passed in 1999. Certain seats were reserved in University in 3rd years engineering classes, for those who had passed B-Tech (Hons). Petitioner applied, he was placed at Sr. No.2 of merit list with 1740 marks. However, he was not given admission. A Division Bench of this Court observed as under:---
" 8. We have gone through the judgments cited by Mr. Farooqi and have no cavil with the proposition of law laid down therein. Learned counsel is indeed correct to the extent that the competent Authority can always change Rules of Admission and the petitioner could not claim to have acquired a vested right to be admitted according to the old Admission Rules or Policy. We would also prefer not to go into the question whether he had acquired a legitimate expectancy of such nature that would render the new conditions for admission per se invalid. There can also be no dispute as to the question that Rules and Policies laying down prerequisite for admission to specialized course and for determining the equivalence of one degree with another ought to be left to the best judgment of the experts and Courts should be slow to interfere with their decisions. Nevertheless, we cannot persuade ourselves to subscribe to the contention that a decision taken by such experts is altogether sacrosanct and it must be emphasized that such experts can only act within the framework of the Constitution and the law."
16. However, petitioner was allowed because classification was based on acquisition of same degree from two different institutions without any rational explanation and it was held as violative of Article 25 of the Constitution. Mr. Khan next relied upon Muhammad Shabbir Ahmed Nasir's case (supra), where the following has been observed:---
"26. From the above cited cases the following principles of law are deducible:---
(i) that equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that person similarly situated or similarly placed are to be treated alike;
(ii) that reasonable classification is permisible but it must be founded on reasonable distinction or reasonable basis;
(iii) that different laws can validly be enacted for different sexes, persons in different age groups, persons having different financial standings, and persons accused of heinous crimes;
(iv) that no standard of universal application to test reasonableness of a classification can be laid down as what may be reasonable classification in a particular set of circumstances, may be unreasonable in the other set of circumstances;
(v) that a law applying to one person or one class of person may be Constitutionally valid if there is sufficient basis or reason for it, but a classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25;
(vi) that equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed;
(vii) that in order to make a classification reasonable, it should be based---
(a) on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out;
(b) that the differentia must have rational nexus to the object sought to be achieved by such classification."
17. Learned counsel also relied upon Mujeeb Ahmed's case (supra).…
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