2010 PLP (C (PLC(CS))

UMAR ATA BANDIAL, J.

The petitioner is a Deputy Chief Inspector of Boilers presently serving as acting Chief Inspector of Boilers ("Chief Inspector") in the Directorate of Industries of the Provincial Government. He is aggrieved by two notifications issued by the Provincial Government on 1-3-2008 and 26-3-2009 ("notifications") whereby the prescribed qualification of the Chief Inspector of Boilers (BS-18) has in effect been confined to M.Sc. Mechanical Engineering or B.Tech. (Honors) (Mechanical). The petitioner holds a diploma in the said subject which would be .the prescribed qualification for the post of Chief Inspector, if the notifications are excluded from consideration.

2. The petition challenges the competence of the Provincial Government to issue the notifications after section 29 of the Boilers and Pressure Vessels Ordinance, 2002 a Federal Law, has vested rule making power in the Federal Boiler and Pressure Vessels Safety Board instead of the Provincial Government. By virtue of section 29(2)(a) of the Ordinance empowers the Board to frame rules prescribing inter alia, the qualification of a Chief Inspector. Consequently, the notifications issued by the Provincial Government that purport to alter the qualification of eligibility for the post of the Chief Inspector are allegedly incompetent for exceeding the qualifications laid down in Rule 3 of the Pakistan Boiler Rules, 2007 for the said post. Accordingly, these qualification prescribed by the Boiler Rules, 2007 are claimed to have overriding effect for the appointment of the Chief Inspector. In the said scenario the petitioner becomes eligible for consideration for promotion to the said post.

3. Learned Assistant Advocate-General and the learned counsel for the respondent No.6 have clarified that the post of Chief Inspector in the Provincial Government along with other designated officers of the Directorate of Industries in the Government of Punjab are filled by employees of the Provincial Government whose terms and conditions of service are governed by the Punjab Industries and Mineral Development Department Recruitment Rules, 1989 ("Recruitment Rules"). The notifications amend the Recruitment Rules and are, therefore, relevant and applicable to the determination of qualification and eligibility for appointment of a Chief Inspector. This is so as eligibility for appointment is a matter of the terms and conditions of service of the incumbent of that post. Thus, irrespective of the promulgation of the Ordinance and rules thereunder, the Recruitment Rules framed under the Punjab Civil Servants Act, 1974 continue to govern the terms and conditions of service of Provincial employees in the Directorate of Industries, including the petitioner.

4. The foregoing contentions by the learned counsel for the parties demonstrate that the dispute between the parties is about which rules are relevant and applicable to determining the qualification and eligibility for appointment of the Chief Inspector. Both the Provincial Recruitment Rules and the Federal Boiler Rules dealing with that subject are framed under special laws. A challenge to the Provincial Government's authority to prescribe the qualifications for appointment of the Chief Inspector in effect disputes the vires of the Recruitment Rules. The learned counsel for the respondent No.6 has relied upon the judgment of the Honourable Supreme Court in Iqan Ahmed Khurram v. Government of Pakistan and others PLD 1980 SC 153 at page 159 which rules on account of the bar contained in Article 212 of the Constitution that in a case where the terms and conditions of service of civil servants have been altered by the framing of rules and a question relating to the vires of such rules arises for determination, then the competent forum to consider such a challenge to the rules is the Service Tribunal.

5. The petitioner is a civil servant in the Provincial Government. His terms and conditions of service are regulated by the Recruitment Rules framed under the Punjab Civil Servants Act, 1974. By questioning the vires of the Provincial Recruitment Rules on the touchstone of the Federal Boiler Rules is a matter that concerns the eligibility of the petitioner for appointment to office of Chief Inspector and therefore, his terms and conditions of service. To determine that question the competent forum as enunciated by the Honourable Supreme Court in Iqan Ahmed Khurram's case is the Punjab Service Tribunal.

6. By the nature of the dispute the matter in hand is liable to be dealt with by the learned Tribunal. However, no view is expressed on the merits of the petitioner's challenge which shall be determined by the Tribunal in accordance with law and expeditiously.

7. Disposed of. H.B.T./M-793/L Order accordingly.