2012 P L C (C.S.) 142
[Balochistan High Court]
Before Muhammad Hashim Khan Kakar and Muhammad Noor Meskanzai, JJ
MUHAMMAD ASGHAR
Versus
GOVERNMENT OF BALOCH ISTAN through Chief Secretary Balochistan and 6
others
Constitutional Petition No.178 of 2009, decided on 27th October, 2011.
(a) Constitution of Pakistan ---
----Art. 199 ---Vires of legislative measures ---Not open to scrutiny of superior courts on
sole ground of mala fides ---Reasons stated.
The vires of legislative measures is not open to scrutiny of the superior courts on
the sole ground of mala fides, because legislative measures are presumed to be bona fide.
It is true that High Court has the juri sdiction to examine whether or not a law is void by
reason of conflict with the statute, fundamental rights, Constitution or is otherwise ultra
vires, but it is equally true that the law should be saved rather than be destroyed and the
court must lean in f avour of upholding the constitutionality of legislation keeping in view
that the rule of constitutional interpretation is that there is a presumption in favour of the
constitutionality of the legislative enactments unless ex -facie it is violative of a
cons titutional provision.
(b) Constitution of Pakistan ---
----Art. 25 ---Equal protection of law, concept of ---Scope.
Equal protection of law does not envisage that every citizen is to be treated alike
in all circumstances, but it contemplates that perso ns similarly situated or similarly placed
are to be treated alike. Article 25 of the Constitution prohibits discrimination within the
class, but does not prohibit the classification, as such criterion for reasonable
classification is to see as to whether t he basis of differentia has any rational nexus with its
avowed policy and object and that the classification is rational and based on intelligible
differentia.
(c) Balochistan Service Tribunals Act (V of 1974) ---
----S. 4(1) ---Appeal challenging vire s of law, statutory service rules or notification
adversely affecting terms and conditions of civil servant ---Maintainability ---Scope ---Such
law/rules/notification could be termed as an order in terms of S.4(1) of Balochistan
Service Tribunal Act, 1974 and could be challenged in appeal before Service Tribunal ---
Principles.
Amendments made from time to time in the relevant rules pertaining to terms and
conditions of civil servant can only be challenged by any civil servant/aggrieved person
before the Baloch istan Service Tribunal under the provisions of Balochistan Service
Tribunals Act, 1974. The jurisdiction conferred upon Service Tribunal is not limited and
all service matters including vires of service rules can be challenged before it. If a
statutory rul es or a notification adversely affects the terms and conditions of a civil
servant, the same can be treated as an order in terms of subsection (1) of section 4 of the
Balochistan Service Tribunals Act, 1974 in order to file an appeal before the Tribunal.
The Tribunal is competent to examine whether or not a law relating to terms and
conditions of a civil servant is void by reason of its conflict with the fundamental rights
or is otherwise ultra vires.
I.A. Sharwani v. Government of Pakistan through Secre tary, Finance Division,
Islamabad 1991 SCMR 1041 and Muhammad Asif v. Secretary to the Government of
Punjab C&W Department 1990 PLC (C.S.) 257 rel.
(d) Constitution of Pakistan ---
----Art. 199(1)(a) ---Constitutional petition ---Maintainability ---Essen tial conditions stated.
Any person invoking constitutional jurisdiction has to establish firstly that he is an
aggrieved party as defined in clause (1)(a) of Article 199 of the Constitution, secondly
that relief sought by him is one, which he is legally e ntitled to seek under any provision
of law, rules or regulations and, thirdly for seeking relief prayed by him no other forum or
remedy is available to him.
It is sine qua non for invoking jurisdiction of High Court through constitutional
petition that pe titioner must be an aggrieved person and he must have a locus standi for
availing such jurisdiction.
(e) Constitution of Pakistan ---
----Art. 199 ---Constitutional petition ---Aggrieved person ---Scope.
A person or a party can be said to be aggrieved only when he is denied a legal
right by some one, who has a legal duty to perform relating to that right. The right, which
is the foundation of an application under Article 199 of the Constitution, is a personal and
individual right, which may be a statuto ry right or a right recognized by the law unless
whatever right, personal or otherwise, on which the application is based is established, no
order can be issued under Article 199 of the Constitution.
It is sine qua non for invoking jurisdiction of High C ourt through constitutional
petition that petitioner must be an aggrieved person and he must have a locus standi for
availing such jurisdiction.
Asadullah Mangi v. Pakistan International Airlines Corporation 2005 SCMR 445
rel.
(f) Civil service ---
----Appointment or promotion ---Powers of Government to prescribe qualification ---
Scope.
It is exclusively within the domain of the Government to decide whether a
particular qualification will be considered sufficient for appointment or promotion from a
particular grade to a higher grade. The matters pertaining to framing of rules for
appointment against a particular post is the exclusive prerogative of the Government and
no body can claim any vested right in the policy.
Suo Motu Review Petition No.52 o f 1993 rel.
Muhammad Ilyas Mughal for Petitioner.
Amanullah Kanrani, A. -G. for the State.
Muhammad Javed, Assistant Engineer (Tech.) and Washoo Mal, A.D. for
Respondent No.4.
Dilawar Khan Kasi, A.D. Legal for Respondent No.6.
Nazeer Khajjak for Respo ndent No.7.
Date of hearing: 4th October, 2011.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J .--- This constitutional petition
under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter
referred to as the 'Constitution') has be en filed by the petitioner, with the following
prayers: ---
"(i) Direct respondent No. 7 to take legal actions against the offenders (employer and
employees both) as per section 27 of the Pakistan Engineering Council, Act 1976,
(ii) Struck down the discrimi nation up held with B.E. Mechanicals and holders of
B.Sc, (Hons.) Agriculture in Agriculture Engineering with respect to their initial
recruitment against the subordinate ranks of Assistant Agriculture Engineer store
officer and workshop Superintendent,
(iii) Exploitations of Agriculture engineering graduates by virtue of discordant
cadrization, disparate pay scale fixation & deprivation from direct promotion to B -
18 with reference to store officer/store verifier is not maintainable under the law,
(iv) Struck down the unlawful amendments made during the years 2006 and 2008 by
non professional and non technical members in a clandestine and awkward
manner,
(v) Any other relief which this Honourable Court deems, fit and proper may also be
granted,
(vi) Grant c onsequential relief with cost, in the interest of justice and fair play."
2. The relevant facts for disposal of the instant petition, in small compass, are that
the petitioner is a professional engineer as defined in clause (j) of section 2 of the
Pakistan Engineering Council Act, 1976 (hereinafter referred to as the 'Act of 1976') and
is registered with the Pakistan Engineering Council as Professional Engineer vide
Registration No.MECH/19674. It is the case of petitioner that the office of respondent
No.6 advertised 14 posts of Assistant Agricultural Engineer/Mechanical Cultivation
Officer, carrying BPS -17, for the persons, possessing the qualification of B.Sc.
Agricultural Engineering or B.E. Agriculture or equivalent qualification along with valid
registr ation in Pakistan Engineering Council. The petitioner, being qualified engineer,
applied for the referred posts, but respondent No.6 rejected petitioner's application, on the
ground that he does not fulfill the conditions of educational qualification. As p er
petitioner, the powers conferred under section 25 of the Balochistan Civil Servants Act,
1974 were exploited time and again, because each time non -professional and alien
representatives of respondents Nos.1 to 6 of instant petition, were made the member s of
sub-rules Committee of Services and General Administration Department to prescribe the
terms and conditions of recruitments for technical and professional ranks of Professional
Agriculture Engineering Department. An amalgam of self -contradictions, exp loitation and
discrimination has been notified, as service rules, which neither match with the service
rules prescribed by the sister province, nor erstwhile constitutional service Rules of 1963.
According to the petitioner, the qualification of (i) B.E. M echanical (ii) B.E. Metallurgy
(iii) B.Sc. (Hons) Agriculture with one year Agricultural Engineering Diploma (iv)
Diploma in Associate Engineering (with some departmental experience) and (v)
matriculation (with some departmental experience) are equivalent to Agricultural
Engineering degree, therefore, if erstwhile the recruitment of B.E. Mechanicals, B.E.
Metallurgy and B.Sc. (Hons) Agriculture with one year Agricultural Engineering Diploma
were justified against the stated posts, then even today the non -professional members of
the sub -rules Committee or respondent No.6 cannot term their initial recruitment as
unjustified.
3. On the other hand, the respondents contested the petition on legal and factual
grounds by filing their formal replies.
4. It is mainly contended by Mr. Ilyas, learned counsel for the petitioner, that the
rejection of petitioner's application for the post of Assistant Agricultural Engineer by
respondent No.6 is not only illegal, but also violative of Article 25 of the Constitution, as
in the sister Province of Punjab, the possessors of B.E. Mechanicals are not only eligible
for initial recruitments towards Assistant Agricultural Engineer, but are also eligible for
Store Officers/Store verifier and Workshop Superintendent and all of the thr ee stated
ranks fall under one cadre, carrying BPS -17. It is next contended that under the Act of
1976, professional duties could not have been assigned to a non -professional person and
the Pakistan Engineering Council is aware of flagrant violation of Act of 1976 and the
rules made thereunder, but no action under section 27 of the Act of 1976 has even been
taken against any officer.
5. On the contrary, Mr. Amanullah Kanrani, learned Advocate -General, Balochistan
appeared on behalf of respondents, objected the maintainability of this petition and
contended that the existing service rules i.e. Balochistan Agriculture Engineering
Department Technical (Basic Pay Scale 16 and above) Service Rules, 1984 were amended
in the best interest of the Government of Baloc histan and the Agriculture Engineering
Department with approval of the Governor, Balochistan, and nomenclature of Mechanical
Engineer was extracted after a long process, as such, neither any question of
discrimination arise, nor the petitioner can be terme d as an aggrieved person. He further
contended that the petitioner has challenged the vires of certain amendments, pertaining
to the terms and conditions of service, which can only be challenged by an aggrieved civil
servant under the provisions of the Bal ochistan Civil Servants Act, 1974 before the
Service Tribunal, after availing the remedy of departmental representation and the
petitioner has no locus standi to challenge the same.
6. We have carefully examined the respective contentions, as adduced on be half of
the petitioner and the respondents, in the light of relevant provisions of the Act and record
made available. Before dilating upon the contentions of the parties, it would be relevant
to mention here that the vires of legislative measures is not op en to the scrutiny of the
superior Courts on the sole ground of mala fides, because legislative measures are
presumed to be bona fide. It is true that this Court has the jurisdiction to examine whether
or not a law is void by reason of the conflict with th e Statute, fundamental rights,
constitution or is otherwise ultra vires, but it is equally true that the law should be saved
rather than be destroyed and the Court must lean in favour of upholding the
constitutionality of legislation, keeping in view that the rule of constitutional
interpretation is that there is a presumption in favour of the constitutionality of the
legislative enactments unless ex facie it is violative of a constitutional provision.
7. The record reveals that initially the Mechanical Eng ineers were recruited in the
Agriculture Engineering Department, because the Drilling Section was a part of the
Agriculture Engineering Department, but now the Drilling Section is working under the
supervision of the Irrigation and Power Department. The re cord is also indicative of the
fact that in the sister Province of Punjab, the Mechanical Engineers are still recruited in
the Agricultural Engineering Department, because the Drilling Section is still part and
parcel of Agriculture Engineering Department.
8. The contention of learned counsel for the petitioner regarding violation of section
25 of the Constitution, on the face of it, is devoid of force, for the reason that equal
protection of law does not envisage that every citizen is to be treated alike i n all
circumstances, but it contemplates that persons similarly situated or similarly placed are
to be treated alike. Article 25 of the Constitution prohibits discrimination within the class,
but does not prohibit the classification, as such, criterion for reasonable classification is
to see as to whether the basis of differentia has any rational nexus with its avowed policy
and object and that the classification is rational and based on intelligible differentia.
Admittedly, through impugned amendment in th e Balochistan Agriculture Engineering
Department Technical (Basic Pay Scale 16 and above) Service Rules, 1984, the
Mechanical Engineers were debarred to be appointed as Assistant Agricultural Engineers
and the rational behind the said amendment seems to be the fact that the degree of
Mechanical Engineering is not in line with the requirement of Agriculture Engineering
Department in Balochistan due to the reason that the nature of subjects of Mechanical
Engineering is entirely different from the Agriculture Engineering, which, basically, deals
with the Agriculture Farm mechanization, irrigation and drainage, soil mechanics and
basic knowledge about soil science. When we asked learned counsel for the petitioner as
to whether the Mechanical Engineers have been declared equivalent to the Agricultural
Engineers by the Pakistan Engineering Council or Higher Education Commission of
Pakistan, he replied in negative, as such, in such circumstances, no question of
discrimination arises at all.
9. Adverting to the next contention of learned counsel for the petitioner regarding
section 27 of the Act of 1976, it would be advantageous to reproduce the same, which
speaks as under: ---
"27. Penalties and procedure .--- (1) After such date as the Federal Government may,
after co nsultation with the Council, by notification in the official Gazette, appoint
in this behalf whoever undertakes any professional engineering work shall, if his
name is not for the time being borne on the Register, be punishable with
imprisonment for a term which may extend to six months, or with fine which may
extend to ten thousand rupees, or with both, and, in the case of a continuing
offence, with a further fine which may extend to two hundred rupees for every day
after the first during which the offence continues."
It is an admitted feature of the case that the Assistant Agricultural Engineers, who had not
registered with the Pakistan Engineering Council, were recruited in the department, but it
was before the constitution of departmental services Rules of 1984 and the Act of 1976
and, presently, there is no discrimination in the enforcement of the Act of 1976. There is
no cavil to the proposition that no professional engineering work without having proper
registration with the Pakistan Engineering Counci l can be undertaken, but the question
arises as to whether after promulgation of the Act of 1976 and the Rules of 1984,
amended in the year 2006, any such work was assigned to any non -professional by the
department, if so, whether the petitioner can point out any such case or in this regard any
complaint was made to the Pakistan Engineering Council? Obviously, the answer is
no, because the petition has been filed in order to gain personal benefit for ulterior
motives and not in the larger interest of the engineering community.
10. The record is further indicative of the fact that all the amendments made from time
to time in the relevant rules pertain to terms and conditions of civil servants and can only
be challenged by any civil servant/aggrieved pe rson before the Balochistan Service
Tribunal under the provisions of the Balochistan Service Tribunals Act, 1974. The
jurisdiction as conferred upon Service Tribunal is not limited and all the service matters
including vires of service rules can be challen ged before it. We are of the considered view
that if a statutory rule or a notification adversely affects the terms and conditions of a
civil servant, the same can be treated as an order in terms of subsection (1) of Section 4 of
the Balochistan Service Tr ibunals Act, 1974 in order to file an appeal before the Tribunal.
It is well -settled by now that the Tribunal is competent to examine whether or not a law
relating to terms and conditions of a civil servant is void, by reason of its conflict with the
funda mental rights or is otherwise ultra vires. Reliance can be placed to the cases of " I.A.
Sharwani v. Government of Pakistan through Secretary, Finance Division, Islamabad "
reported in 1991 SCMR 1041 and " Muhammad Asif v. Secretary to the Government of
Punja b C&W Department " reported in 1990 PLC (C.S.) 257.
11. We are in agreement with learned Advocate -General that the instant petition is not
maintainable for variety of reasons. It is a settled by now that any person invoking
constitutional jurisdiction has to establish firstly that he is an aggrieved party as defined
in clause (1)(a) of Article 199 of the Constitution, secondly that relief sought by him is
one, which he is legally entitled to seek under any provisions of law, rules or regulations
and, thirdl y, for seeking relief prayed by him no other forum or remedy is available to
him.
12. It is a settled principle of law that a person or a party can be said to be aggrieved
only when he(?) is denied a legal right by some one, who has a legal duty to perform
relating to that right. The right, which is the foundation of an application under Article
199 of the Constitution is a personal and individual right, which may be a statutory right
or a right recognized by the law unless whateverThis judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.