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writ Petition No.2012 of 1987, decided on 21st June, 1987.

‑‑‑S.9(2)(a)(b)‑‑Promotion to post of higher grade‑‑Eligibility‑ Provisions of S.9(2)(a) of Civil Servants Act, 1973 caters for promotion on basis of selection on merit while S.9(2)(b) pertains to non‑selection posts, where criteria for promotion is seniority‑cum‑fitness‑‑Where a civil servant's case did not entail selection on merit, S.9(2)(a) of Civil Servants Act, Held, was not attracted but provisions of S.9(2)(b) thereof, would be applicable whereunder rubric for promotion was "seniority‑cum‑fitness"‑‑Fitness of civil servant has to be determined by competent authority.

‑‑‑S.25‑‑Civil Servants (Appointment, Promotion and Transfer) Rules, 1973. Rr.3, 4, 6, 7 & 8‑‑Modes of appointment/ promotion of civil servants.

Rule 3(1), Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, provides two modes of. appointment, viz. 3(1)(a) by promotion and 3(1)(b) with initial appointments; and Rule 3(2) enshrines method of appointment and qualifications and other conditions applicable to a post, which are to be laid down by the Minis‑try Division concerned. Rule 4(1) envisages a departmental promotion committee in each of the Ministry, Division, Department or office; Rule 6 stipulates the appointing authority; Rule 7 incorporates procedure for promotion; which, to put it, succinctly, is made on the recommendations of the appropriate departmental promotion committee and the central selection board. Rule 8 in unambiguous and imperative terms prescribes that only persons possessed of the qualifications and the conditions laid down for the purpose of promotion, inter alia, shall be considered by the departmental promotion committee or the central selection board as the case may be.

‑‑‑S.9‑‑Constitution of Pakistan (1973), Art.199‑‑Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, R.3(2)‑ Appointment/promotion of civil servant‑‑Authority competent to prescribe qualifications‑‑Secretary of concerned Ministry being competent authority would be justified, on advice of a statutory body constituted under the Act to regulate engineering profession in the country, to lay down policy to the effect that promotions to the post of professional engineers in B . P . S .18 and above were to be made of those persons who were possessed of requisite qualifications recognized by such statutory body‑‑Competent authority viz. Ministry/ Divisions would be competent to prescribe qualifications in terms of S.9 of Civil Servants Act, 1973 for purposes of determining fitness for promotion‑-Competent authority having prescribed qualifications for a person to be "fit" to be promoted to higher responsibility being a policy matter, Held, would be immune from interference by High Court in constitutional jurisdiction.

‑‑S.25‑‑Civil Servants (Appointment‑Promotion and Transfer) Rules, 1973, Rr.3, 4 & 6‑‑Prescription of qualifications for promotion‑‑Object of‑‑Rules 3 & 4 of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, Held, envisage provisions for qualification mannerism, mode and mechanics for granting promotion, while R.6, only prescribes the competent authority who is to confer, grant, make or bestow promotion to, or upon a person eligible and found fit for such promotion‑‑Prescription of qualifications for promotion was domain of Ministry or division/ department concerned while appointment to such post was function of competent authority‑‑Appointing authority could not be interpreted to mean that such authority was to specify qualifications and conditions for promotion.

‑‑‑S.9(2)‑‑Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, R.3 (2)‑‑Promotion of civil servants‑‑framing of policy for promotion‑‑Right of hearing before framing of policy of promotion whether available to civil servants‑‑Petitioner civil servant's claim to be heard before framing of policy for promotion of such civil servants, Held, would amount to stretching rule of hearing far beyond its known parameter‑‑Policies were framed by designated authorities and upon promulgation thereof, when such policies were implemented or enforced, only then question of right of hearing of affected persons would become relevant and prior to that same would be a premature notion.

‑‑‑Arts.18 & 25‑‑Promotion of civil servants to Grade 18 and above‑ Policy for promotion of civil' servant wherein qualifications for such promotion had been prescribed by competent authority, Held, was not violative of provisions of Arts.18 & 25 of the Constitution (1973)

Hamid khan for Petitioners.

Petitioners are diploma engineers by profession, are employed with the Pakistan Railways and are civil servants within the meanings of the Civil Servants Act, 1973; their terms and conditions of service are regulated under the afore-referred Act and the rules made pursuance thereto. They have hatched a grievance against a policy framed by the Ministry of Railway, Government of Pakistan, on the advice of the Pakistan Engineering Council, enshrined in the Ministry's letter No.6/1/83‑A‑II, dated 2‑3‑1987 (Annex.D), captioned as "Appointment against professional engineering posts in B.S.18 and above", stipulating that no promotion is to be made in the post of B. S.18 and above, which conflicts with the provisions of the Pakistan Engineering Council's Act, 1976; and that no one should be promoted to Professional Engineering Post in B.S.18 and above who does not have a qualification recognised by the Pakistan Engineering Council, which entitles one to be a member of the Engineering Council and authorities to man a professional assignment in B.S.18.

2. The learned counsel for the petitioner has assailed the impugned policy by contending that the functions of the Pakistan Engineering Council as set out in section 8 of the Pakistan Engineering Council Act, 1976 (hereinafter referred to as the Act) does not contemplate rendering of such an advice; consequently Ministry of Railways, Government of Pakistan, cannot seek advice affecting terms and conditions of service, which is beyond the scope of the Act, that under rule 6 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, competent authority for the purposes of promotion from Grade‑20 and above is the President; and for Grade‑17 to 20, it is the Secretary Establishment; whereas in the present case, action has been taken by the Secretary Ministry of Railways, who is also Chairman of the Railway Board, thus it is a case of coram non judice and without lawful authority. Multiplying the contentions, it is also submitted that before this policy was framed, petitioners were not heard; it is discriminatory in nature, thus is violative of Article 25 of the 1973 Constitution; and finally that Article 18 of the 1973 Constitution has been violated whereunder their future prospects of promotion have been adversely affected.

3. I have considered the arguments advanced by the learned counsel for the petitioners, but I am afraid the same are misconceived.

4. Petitioners are admittedly civil servants within the meanings of Civil Servants Act, 1973; section 3 whereof prescribes the terms and conditions of service of a civil servant and Section 9 of the Act deals with promotion, which reads as under:

"9. Promotion.‑(1) A civil servant possessing such minimum qualifications as ma be prescribed shall be eligible for promotion to a post or the time being reserved under the rules or departmental promotion in the higher grade of the service or cadre to which he belongs.

(2) A post referred to in subsection (1) may either be a selection post or a non‑selection post to which promotion shall be made as may be prescribed.

(a) in the case of a selection post, on the basis of selection on merit; and

(b) in the case of a non‑selection post, on the basis of seniority‑cum‑fitness.

A bare perusal of section 9 reveals that a civil servant possessing prescribed qualification shall be eligible for promotion to a post to a higher grade. Section 9(2)(a) caters for promotion on the basis of selection on merit; whereas section 9(2)(b) pertains to non‑selection posts; where the criteria is seniority‑cum‑fitness.

Since the petitioner's case does not entail selection on merit; therefore, section 9(2)(a) ibid, is not attracted, and the ambit of the present controversy is circumscribed by the provisions of Section 9(2)(b) supra; whereunder the rubric for promotion is seniority‑cum fitness". Since seniority is not in issue; therefore, the factor on the basis of which the whole controversy turns around is "fitness" which has to be determined by the competent authority.

5. The competent authority in this behalf in exercise of the rule 0, making power, as postulated by section 25 of the Civil Servants Act, 1973, has framed the rules for dealing with matters of appointment and promotion styled as, "Civil Servants (Appointment, Promotion and Transfer) Rules, 1973;" hereinafter referred to as the Rules. The Rules relevant for the purposes of present discussion, are Rules 3, 4, 6, 7 and 8; text of which is reproduced below:

"3. (1) Appointments to posts shall be made by any of the following methods, namely:‑,

(a) by promotion or transfer in accordance with Part II of these rules; and

(b) by initial appointment in accordance with Part III of these rules.

(2) The method of appointment and the qualifications and other conditions applicable to a post shall be laid down by the Ministry or Division concerned in consultation wit the Establishment Division."

"4. (1) In each Ministry, Division, Department or Office of the Federal Government, there shall be one or more Departmental Promotion Committees, and Departmental Selection Committees, the composition of which shall be determined by the Ministry or Division concerned in consultation with the Establishment Division.

(2) Each such Committee shall consist of at least three members one of whom shall be appointed Chairman."

"6. The authorities competent to make appointment to the various posts shall be as follows:‑

Provided that the President may designate any officer holding a post in basic pay scale 18 or 19 and equivalent in a Ministry, Division, Department or Office to be the appointing authority for posts in basic pay scales 1 to 16 and equivalent in the Ministry, Division, Department or Office:

7. Promotions and transfers to posts in (basic pay scales 2 to 18 and equivalent) shall be made on the recommendation of the appropriate Departmental Promotion Committee and promotions and transfers to posts in (basic pay scales 19 to 21 and equivalent) shall be made on the recommendations of the Central Selection Board. "

"8. Only such persons as possess the qualifications and meet the conditions laid down or the purpose o promotion or transfer to a post shall be considered by the Departmental Promotion Committee or the Central Selection Board, as the case may be."

6. An examination of the above Rules manifests, that Rule 3(1) provides two modes of Appointment, viz. 3(1)(a) by promotion and 3(1)(b) with initial appointments; and Rule 3(2) enshrines method of appointment and qualifications and other conditions applicable to a post, which are to be laid down by the Ministry or Division concerned. Rule 4(1) envisages a departmental promotion committee in each of the Ministry, Division, Department or office; Rule 6 stipulates the appointing authority; Rule 7 incorporates procedure for promotion; which, to put it, succinctly, is made on the recommendations of the appropriate departmental promotion committee and the central selection board. Rule 8 in unambiguous and imperative terms prescribes that only persons possessed of the qualifications and the conditions laid down for the purpose of promotion, inter alia, shall be considered by the departmental promotion committee or the central selection board as the case may be.

7. In the present case, there is no denying the fact that the competent authority is the Secretary, Ministry of Railways, who is also the Chairman Railways Board. And the competent authority inter alia, upon advice/recommendations of the Pakistan Engineering Council, a statutory body, constituted under the Act, designed to regulate the engineering profession in the country, has laid down a policy 'embodied in the impugned order to the effect that promotions to the post of professional engineers in B.S.18 and above should be made of those persons who are possessed of the requisite qualifications recognised by the Pakistan Engineering Council. The Ministry Division under the Law viz. Rule 3(2) is competent to prescribe qualifications, as visualised by section 9 of the Civil Servants Act, 1973, for the purposes of determining fitness for promotion; and the competent authority has prescribed the requisite qualification, by virtue of the impugned order, for a person to be "fit" to be promoted to higher responsibility; which is a policy matter and is immune from inter ference. It is unexceptionable and one should not entertain any grudge against the same, specially when it is designed to raise the professional standard suitable to meet and cope with higher responsibilities. If the petitioners aspire to be promoted to higher rank, post or grade, objectively speaking they should make themselves eligible for the same by acquiring the requisite qualifications.

8. The learned counsel for the petitioners has canvassed at the Bar that the qualifications have not been prescribed by the Ministry, but have been laid down at the asking of the Pakistan Engineering Council, which has no business to render such an advice. To witness his submissions, he has referred to S.8 of the Act, which sets out the function of the council, and for the sake of convenience of reference is reproduced hereinafter:‑

"Rule 8. Functions of the Council.

The following shall be the functions of the Council, namely:‑

(a) maintenance of a Register of persons qualified to practise as professional engineers and consulting engineers;

(b) recognition of engineering qualifications for the purpose of registration of professional engineers and consulting engineers;

(c) removal of names from the Register and restoration to the Register of names which have been removed;

(d) laying down of standards of conduct for the members;

(e) safeguarding the interests of the members;

(f) promotion of reforms in the engineering profession;

(g) management of the funds and properties of the Council;

(h) promotion of engineering education and review of courses of studies in consultation with the Universities;

(i) levy and collection of fees from applicants for registration or temporary licences and members;

(j) exercise of such disciplinary powers over the members and servants of the Council as may be prescribed;

(k) formation of such committees as may be prescribed; and

(l) performance of all other functions connected with, or ancillary or incidental to, the aforesaid functions."

I have considered this argument of the, learned counsel and have examined the aforequoted provisions of S.8 and as well as the preamble of the Act, and have come to the conclusion that this argument suffers from two inherent shortcomings and legal infirmity. The preamble of the Act reveals that the Act is designed to regulate the engineering profession in the country, and clause (f) of S.8 of the Act, contemplates promotion of reform in the engineering profession as one of the engineering council's objective; whereas clause (1) of S.8 ibid, includes within the permissible domain of the functions of the engineering, performance of all other functions connected with or ancillary or incidental to the aforesaid functions. A conjunctive reading of the preamble and clauses (f) and (1) supra, that the engineering council is statutorily obliged to undertake ventures tending to promote reform in the engineering promotion. One such reform could be to improve the standard of engineering profession and add to its prestige. Now visualizing the advice, recommendation and representation rendered or made by the engineering council forming the impetus of the impugned order, to my mind, seems to be a mode of improving the quality and standard of engineering profession by prescribing higher qualifications for higher promotion. Such a solicitation does not make it a case of ultra vires, or coram non judice.

Independent of the above, the competent authority is not precluded nor the learned counsel for petitioners on the specific asking of the Bench, could refer to any law which prevented the Ministry from having a recourse to the advice or to consider recommendation made by the Pakistan Engineering Council in this behalf. The impugned policy for all intents and purposes remains to be that of the Ministry /division who is competent under the law to prescribe qualifications for promotion. It is just like Pakistan Bar Council, or the Punjab Bar Council or for that matter any of the Bar Association or the Law Commission which may be consulted by the competent authority or even the legislatures at their initiative or on its own, for promotion of policies or legislation pertaining to the uplift of the profession of law and if such an advice is rendered or recommendation or representations are made, it does not debar the competent authority or the legislatures to take into consideration such an advice or recommendation or representation before making any policy decision. The law does not prevent the competent authority or the decision making body from gaining knowledge or wisdom or advice from bodies, institution or persons well versed in their respective field of speciality. Thus, I am of the view that if the advice seeking agency or the recommendation receiving authority, receives such an advice, recommendation or representation considers it and makes it own decision it is not striped off its competency even if it acts upon such an advices or recommendation. The decision for all intents and purposes shall be deemed to have emanated out of its own authority.

9. The other argument advanced by the learned counsel is that rule 6 stipulates the competent authority for making appointments, which in this case is Establishment Secretary and not the Secretary, Ministry of Railways. This submission is devoid of any legal force.

A juxtaposition perusal of Rules 3, 4 and 6 in unambiguous terms reveals that Rules 3 & 4 envisage provisions for qualification, mannerism, mode and mechanics for granting promotion; whereas Rule 6 only prescribes the competent authority who is to confer, grant, make, or bestow promotion to or upon a person eligible and found fit for promotion. Without any diffidence, I may say that prescription of qualifications for promotion is the domain of the Ministry or division or department or office concerned and appointment to such a post is the function of the competent authority. It cannot be interpreted to mean that the appointing authority is to specify the qualifications and conditions for promotion.

10. Adverting to the tail‑ending argument that petitioners have not been heard before the framing of the impugned policy, I am of the opinion that this would amount to stretching the rule of hearing far beyond its known parameters; because policies are to be framed by the designated authorities and upon the promulgations of those policies, when they are implemented or enforced, only then the question of right of hearing of the effected persons becomes relevant and prior to that it is a premature notion.

11. The last two contentions were both feeable and faint thus lacked the vigour as well. The first of these two submissions was that the impugned policy is violative of Article 25 of the 1973 Constitution, being discriminatory, it suffices to mention that petitioners have not been discriminated by any stretch of imaginations, for the reason that it has prescribed qualifications for promotion to higher post for all persons similarly placed without making any special provision adversely effecting the petitioners in particular.

The final contention was that the impugned policy has diminished petitioner's prospectus of future promotion; thus is ultra vire of Article 18 of the 1973 Constitution. This argument is repelled not only for the reason that it did not attract any seriousness of the learned counsel, but also on the ground that question of diminition of prospectus for promotion is abortive; because qualifications for promotion has been prescribed by the competent authority for eligible persons and if the petitioners have the ambition and the instinct for better future; then they should work for acquiring the requisite qualifications instead of mourning about it.

In this view of the matter, I am of the opinion that the petition has no merits and the same is accordingly dismissed in limine.

A . A . /M‑326/L

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