NAZIR-UL-HASAN and 2 otherss vs Syed ANWAR IQBAL and others

'SARMAD JALAL OSMANY, J. ---This Petition impugns the order of the learned High Court of Sindh at Karachi in Civil Petition No. D-2682 of 2012 filed by the respondent No.1 whereby same was allowed.

2. Briefly stated the facts of the matter are that the respondent No.1 was working as Assistant Director (BS-17) in respondent No.3 Authority since 7-9-2006. The petitioners were admittedly senior to him and were accordingly promoted to BS-18 in 2012. However educationally they were less qualified than the respondent No.1 who is a B. E. (Electrical) whereas the petitioners only hold diplomas in various disciplines. Respondent No. l's case before the learned High Court was that since the petitioners did not hold degrees therefore they could not have been promoted to BS-18.

The petitioners were preceded expert whereas per the comments filed by the Pakistan Engineering Council a diploma could not be equated to a degree and hence appointment of diploma-holders to the posts involving professional engineering works would be illegal. Consequently the Pakistan Engineering Council had been issuing letters/circulars to various engineering departments/organizations to ensure that professional engineering works are not assigned to diploma holders and B. Tech and other unqualified persons. Hence vide impugned order directions were issued to the authority that in case the petitioners did not hold valid Engineering Degree's then the posts they are holding shall be declared vacant and shall be filled in accordance with law.

3. Mr. Shahid Anwar Bajwa, learned Advocate Supreme Court appearing for the petitioners submitted that per the rules of the authority the post of Deputy Director would be filled in from amongst Assistant Directors of category one with at least 5 years' service as such in the institution for which all the petitioners were eminently qualified and hence their promotions to Deputy Directors could not be faulted on any score. Per learned Advocate Supreme Court there is no requirement in the rules made by the Pakistan Standards Institution that Deputy Directors must possess B.E. Degrees.

4. On the other hand Mr. Anwar Hussain, learned Advocate Supreme Court appearing for the private respondents has submitted that in the same rules where recruitment is by direct appointment then in the schedule thereto a Deputy Director must possess a Master's Degree in the specified field or a Bachelor's degree in Engineering in such field in which the vacancy exists from a recognized university with at least 5 years' experience in that field and for that of Assistant Director again the requirement is a Master's Degree in Science in the specified field or Bachelor's Degree in engineering in that field from a recognized university with at least 3 years' experience.

Consequently when such post i.e., Deputy Director is to be filled by in promotion then again such educational requirements must be fulfilled which the petitioners lack. La this regard in referred to Muhammad Younus Aarain v. Province of Sindh, Karachi and 10 others (2007 SCM R 134).

5. We have heard both the learned ASCs and also perused the record with their assistance.

6. Admittedly the petitioners were Assistant Directors in the respondent Authority with at least 5 years' service in the relevant field and hence in our opinion they fulfill the requirement. It would be seen that when the petitioners were considered for promotion in 2012 the rules in force were the Pakistan Standards Institution Recruitment Rules for class one posts wherein per rule 5 the post of Deputy Directors to be filled in by promotion could be done from amongst Assistant Directors category one with at least 5 years' service in the institution. Nowhere in the said rules was it provided that they would be professional engineers or for that matter even diploma holders. In fact such condition is prescribed in rule 6 which provides for direct appointments whereby per the schedule to the same an Assistant Director must hold a Master's Degree in Science or Bachelor's Degree in Engineering in the specified field from a recognized university with at least 3 years' experience in that field etc. Admittedly the petitioners were appointed by promotion and hence in our opinion no such condition can be placed upon them as in the case of direct appointees. Insofar as the case of Muhammad Younus Aarain (Supra) is concerned, the same is distinguishable on facts as therein it was found that under Sindh Council Unified Grades Services Rules the basic qualification for promotion to BS-20 was that the candidates should have B.Sc. Degree in Engineering. As observed above this is not the case in the present matter. It would further be seen that now per section 26 of the Pakistan Standards and Quality Control Authority Act 1996 rules have been framed which have been notified in the official gazette on 15th May, 2013. Under Rule 5 promotion to the post in BS-1 to 19 shall be made on the basis of seniority-cum-fitness etc. And he or she should also fulfill the conditions contained in schedule to the rules according to which for promotion to the post of Deputy Director Technical the eligible person would be an Assistant Director Technical and he should have 5 years' experience in BS-17 in technical matters. Nowhere has it been prescribed that he or she should be a qualified engineer.

7. In the circumstances, we find that the impugned order has unnecessarily been influenced by the comments of the Pakistan Engineering Council that no post carrying any Engineering responsibility could be entrusted to non-engineering graduates. In our opinion it is for the department/institution itself to determine as to whether the, persons in its service are fit to hold a particular position. In the present case it has been done by the authority and rules have been framed thereunder which have been followed by the promotees/petitioners. Consequently the impugned order is set aside and the promotion of the petitioners is upheld.