2003 PLP (C (PLC(CS))

Arts. 199 & 212

Service Tribunals Act (LXX of 1973), S.4-- Constitutional jurisdiction, exercise of

Due to bar contained under Art. 212 of Constitution of Pakistan (1973); matters relating to terms and conditions of service, could not be entertained in Constitutional jurisdiction of High Court even under the garb of issuance of illegal Notification

Orders even if passed without jurisdiction, with mala fide intention or on political basis, could only be challenged before Service Tribunal. Zahid Akhtar's case PLD 1995 SC 530 ref. Ch. Irshadullah Chatha for Petitioner Through this petition, the petitioner seeks declaring of the respondent No.2, formulating the Committee through Notification 28-10-1997, having issued the equivalence of the diploma of B-Tech to B.Sc. Engineering Degree and thus power of equivalising respondents, Nos.7 and 8 as Professional Engineers vide letter dated 12-8-1998 purported to have been vested with them through the said Notification to be without lawful authority and without jurisdiction being against the law laid down by the august Supreme Court of Pakistan and the existing law. Also prays for issuance of a direction in the nature of quo-warranto asking respondents No.7 and 8 as to under what authority of law they are holding the posts and they be restrained to act as such.

2. The brief facts of the case are that the petitioner is Electrical Engineer, which was registered with Pakistan Engineering Council on 4-11-1998. Respondent No. 1 had laid down criteria for promotion and recruitment of Assistant Divisional Engineers in BPS-17 out of different sets of employees of itself having different qualification, whereby 40% of the posts of Assistant Divisional Engineer shall be filled by promotion, 20% posts shall be filled by promotion of persons possessing Diploma in engineering and 5% shall be filled by promotion of departmental employees possessing Degree of Engineering or AMIE Degree, 60% of posts shall be filled by direct recruitment possessing Engineering Degree having registration with Pakistan Engineering council. Respondents Nos.7 and 8, according to the petitioner have not been considered as professional engineers by respondent No.6, as they were not registered with Pakistan Engineering Council. It is also stated that after the judgment of august Supreme Court of Pakistan dated 17-6-1997, notification was issued by respondent No.2 on 28-10-1997, by which he formulated a committee which on the degrees of respondents Nos.7 and 8 has decided that candidates holding qualification of B-Tech (Hons) are to be considered for promotion in the DPC and they were promoted vide Notification dated 12-5-1998 w.e.f. 1-8-1986 and 16-12-1987 respectively.

3. Learned counsel for the petitioner contends that respondents Nos. 1 to 5 have misinterpreted and misconstrued the judgments of Supreme Court of Pakistan and the procedure adopted by the respondents is in violation of law as only Pakistani Engineering Council can declare Diploma B-Tech as equivalent to B/Sc. Engineering Degree and the Committee which was formed for the purpose was not empowered to do so. As respondents Nos.7 and 8 were not registered with Pakistan Engineering Council, hence; they could not be appointed as they do not possess the basic qualification equivalent, to B.Sc. Engineering. It is also contended that respondent No.6 was not competent to register the professional engineers, hence, action of respondents is illegal and unlawful and is liable to be set aside Pakistan Engineering Council under Rule 8.10 of PCE Act can only declare that Diploma B-Tech is equivalent to B.Sc. Engineering Degree; and formation of the Committee be declared as illegal and the superstructure may also be declared so as the basic order is void and illegal. It is also contended that the petitioner has also suffered due to the appointment of respondents Nos.7 and 8 w.e.f. 1-8-1986 and 16-12-1987 as at the time of promotion to Divisional Engineers the promotion of the petitioner will affect because they have become seniors to the petitioner, hence, quo warranto be issued against them.

4. I have heard the learned counsel for the petitioner at length and also perused the documents attached with this petition. The august Supreme Court of Pakistan in Appeals filed by Javed Iqbal and Haq Dad Khan respondents Nos.7 and 8 arising out of the judgment of Federal Service Tribunal, Islamabad gave the following directions to respondents, which is reproduced as under: "We see no reason as to why the present appellants should be discriminated and their cases also deserve consideration as of the aforesaid appellant. We, therefore, allow the appeals and remand the same to the department to consider the appellants case alongwith other incumbents for promotion and to decide the same in accordance with law." After the receipt of the copy of this decision dated 17-6-1997 the department in order to implement the direction of the august Supreme Court of Pakistan issued Notification dated 28-10-1997 by which a Committee was constituted to consider equivalence of B-Tech (Hons) Degree with B.Sc., B.E. Degree in the light of the decision of Hon'ble Supreme Court of Pakistan. It is stated in the said Notification that the case of equivalence was discussed in detail by the Committee on 27-10-1997 and it was decided that candidates holding qualification of B-Tech (Hons) are to be considered for promotion in the DPC. Hence, particulars of the officials were directed to be arranged. In view of the order of Supreme Court and the recommendations of the Committee, respondents Nos.7 and 8 were promoted as ADE w.e.f. 1-8-1986 and 16-12-1987. This order was passed on 12th of May, 1998 and the order for formation of the Committee was passed on 28-10-1997 and nobody challenged the such order of formation of the committee and order of promotion of respondents Nos.7 and 8 in the year 1998. Learned counsel for the petitioner has failed to show any reason that why he had not challenged formation of Committee in the year 1997 when it was, decided that Degree of B.Tech (Hons) is equivalent to B.Sc. Engineering Degree and the gases were to be directed to be arranged for consideration by the DPC in its next meeting. Again the petitioner did not challenge the promotion of respondents Nos.7 and 8 which was made in the year 1998 This writ petitions was filed in the year, 2000 after about three years after formation of the committee and the promotion of respondents Nos.7 and

8. Writ petition is hit by laches. Even otherwise, the petitioner is aggrieved by the promotion of respondents Nos.7 and 8, which had affected the promotion, of the petitioner and the petitioner if had any grievance it was open to him to file representation against the promotion of respondents Nos.7 and 8 whereafter in case of dismissal of the same, he could approach the Federal Service Tribunal, as the employees of PTCL are civil servants after the induction of section 2-A and there is no doubt that its employees if aggrieved promotion of, a person, can approach to Federal Service Tribunal, official promoted was not qualified for promotion. Due to the bar contained under Article 212 of the Constitution of Islamic Republic of Pakistan, matters relating to terms and conditions of service cannot be entertained in writ jurisdiction even under the garb of issuance of illegal notification as the orders even if are passed without jurisdiction, coram non judice, with male fide intention or on political basis can only be challenged before Federal Service Tribunal as is laid down in Zahid Akhtar's case reported in (PLD 1995 SC 530). The writ of quo warranto cannot be issued as the petitioner himself is the party and writ petition of quo warranto is not maintainable if is filed by an interested person or who is affected himself by the order so impugned.

5. This writ petition due to the above reasons is not maintainable and is dismissed in limine. H.B.T./M-1455/L Petition dismissed.