IN THE HIGH COURT OF SINDH AT KARACHI

Constitutional Petition No. D- 1942 of 2009

 

 Present:

Mr. Justice Gulzar Ahmed &

Mr. Justice Irfan Saadat Khan.

 

J U D G M E N T

 

Dates of hearing                 :        06.11.2009 & 04.12.2009.

Petitioners through             :        Mr.M.M.Aqil Awan, Advocate.

Respondents through           :        Mr. Abdul Fateh Malik, A.A.G.Sindh.

Interveners through                :           Mr. Haji Soukat Ali Rahimoon, Advocate.

 

>>>>>>> <<<<<<<

 

 

GULZAR AHMED, J.:- By this petition, petitioners have impugned the notification dated 01.9.2009 issued by the Secretary, Government of Sindh Agriculture Department keeping in abeyance the promotions of petitioners to the post of Assistant Director/Assistant Agriculture Engineer (BS-17) in the Water Management Wing of Agriculture Department.

 

Mr. M.M.Aqil Awan, learned counsel for the petitioners has contended that the petitioners have regularly been promoted by the competent authority and such promotions have been acted upon and cannot be undone through the impugned notification which is not issued by the competent authority. He has further contended that no review can be made of the earlier order by which the show cause notices issued to the petitioners were vacated. He further contended that the petitioners have acquired vested right in their promotions and that they cannot be vexed twice on the same allegation from which they earlier stood exonerated. In support of his submissions, learned counsel has relied upon the cases of RAJA MUHAMMAD NAWAZ V/S GOVERNMENT OF PUNJAB (1981 SCMR 523), CHAIRMAN SELECTION COMMITTEE KING EDWARD MEDICAL COLLEGE V/S WASIF ZAMIR (1997 SCMR 15), IGP PUNJAB V/S MUHAMMAD AMEER ABDULLAH KHAN (1990 SCMR 1414), ZOHRA V/S GOVERNMENT OF SINDH (PLD 1996 Karachi 1), RANA MUHAMMAD SARWAR V/S GOVERNMENT OF PUNJAB (1990 SCMR 999), QADIR BUX V/S GOVERNMENT OF BALOUCHISTAN (NLR 1978 Service 206) and MUHAMMAD AFZAL KHAN V/S K.D.A. (PLD 1984 Karachi 114).

 

Mr. Abdul Fateh Malik, learned A.A.G.Sindh, on the other hand, has contended that competent authority is the Minister and the impugned notification has been issued with his approval. He has further contended that letter of Pakistan Engineering Council dated 10.9.2002 specifically states that the degree of B.Sc. Mechanical Engineering from Manuel L. Quezon University, Philippines was deficient under the Pakistan Engineering Council Act, 1976 and was not approved. He further contended that petitioners have produced fake certificate dated 20.3.1997 of equivalency from Mehran University of Engineering & Technology, Jamshoro which was confirmed through letter dated 12.12.2000 of the same university. He stated that pursuant to the impugned notification a further notification dated 20.3.2009 was issued to the petitioner for initiating departmental proceedings against them and that the petition is premature and respondents are entitled to conduct the enquiry and in support of his submissions has relied upon the case of MST. RAJ BIBI & OTHERS V/S PROVINCE OF PUNJAB & 5 OTHERS (2001 SCMR 1591) and MISS REETA V/S GOVERNMENT OF SINDH & OTHERS (2001 CLC 1825).

 

Mr. Shoukat Ali Rahimo, Advocate, who appeared for the interveners, adopted the arguments of learned A.A.G.Sindh and contended that interveners are qualified engineers and are seriously prejudiced by the promotions of petitioners who even do not qualify to be promoted in BS-17. He contended that the petitioners’ qualification is not recognized by the Pakistan Engineering Council and that petitioners have committed fraud.

 

We have considered the submission made by learned counsel and have gone through the record.

 

It seems that petitioners were appointed as Water Management Officers (BS-16) vide notification dated 06.2.1985 on the recommendations of Sindh Public Service Commission. It is alleged in the memo of petition that petitioners had qualified B.Tech.(Hons) in mechanical discipline from Mehran University of Engineering & Technology, Jamshoro in the year 1998 and in the same breath  it is alleged that petitioners had appeared in the said examination in the year 1988 but could not qualify the same as such they proceeded to Philippine from where they obtained degree of B.Sc. in Mechanical Engineering from Manuel L. Quezon University in 1991. It is further alleged that after coming to Pakistan the petitioners have appeared in all papers of final year of B.Tech (Hons) in the year 1998 and had qualified the same from Mehran University of Engineering & Technology, Jamshoro. It is alleged that the petitioners were appointed as Water Management Officers (BS-16) on the basis of diploma of three years in mechanical discipline from Government College of Technology, Hyderabad. It is further alleged that on the basis of degree from University in Philippines the petitioners were allowed the post of BS-17 through notification dated 02.4.1997. The show cause notices dated 10.4.2001 were issued to the petitioners on the allegations that the equivalency certificate obtained by them from Mehran University of Engineering & Technology, Jamshoro was fake and forged. The petitioners submitted their respective reply dated 23.4.2001 upon which through order dated 27.4.2004 the said show cause notices issued to petitioners were vacated. Through further notification dated 05.6.2008 petitioners were regularly promoted to the post of Assistant Director/Assistant Agriculture Engineer (BS-17) in Water Management Wing on the recommendations of Departmental Promotion Committee and with the approval of competent authority. By the impugned notification such notification of promotion of petitioners was put in abeyance.

 

          The respondent No.2 in its para-wise comments had taken the stand that petitioners were granted BS-17 on the basis of letter of Mehran University of Engineering & Technology stating that the degree of B.Sc. (Mechanical Engineering) issued by Manuel L.Quezon University, Philippine is equivalent to B.E. Mechanical degree of Mehran University. It is further alleged that petitioners have never took permission from the department for obtaining higher education nor were granted study leave and that subsequently the letter of Mehran University of Engineering & Technology was found to be fake pursuant to which show cause notices were issued to the petitioners. It is further averred that Pakistan Engineering Council never recognized the degree of University of Philippines and did not register the petitioners as engineers and that petitioners did not possess qualification for the post of Assistant Director/Assistant Agriculture Engineer (BS-17) as notified in the recruitment rules.

 

In the additional comments, the respondent No.2 has taken the stand that the sole purpose of issuing of impugned notification was to initiate fresh departmental enquiry for proceeding with the matter under Removal from Service (Special Powers) Sindh Ordinance, 2000 as the petitioners have produced fake letter of Mehran University for obtaining promotion. Abid Khan, Ameerul Hassan and Muhammad Ayub have also filed an application as interveners and filed objections to the petition reiterating the stand taken by respondent No.2 with the additional plea that they are adversely affected by the promotion of petitioners. The petitioners have filed counter affidavit to which rejoinder has been filed by the interveners.

 

          On perusal of record, it appears that the petitioners were appointed as Water Management Officers (BS-16) on the basis of diploma of three years in mechanical discipline and as admitted by the petitioners that they were allowed BS-17 vide notification dated 02.4.1997 was on the basis of possession of degree in Agricultural/Civil/Mechanical Engineering or M.Sc. (Agriculture) at least 2nd Division from a recognized university. The petitioners in their petition have alleged that they have qualified B.Tech.(Hons) in mechanical discipline from Mehran University of Engineering & Technology, Jamshoro in the year 1998. Such qualification though alleged is not substantiated by any document filed by the petitioners and respondent No.2 in its comments has made a categorical statement that it has no information of acquiring of B.Tech.(Hons) qualification by the petitioners. The petitioners have asserted that they have obtained degree of B.Sc. in Mechanical Engineering from Manuel L.Quezon University, Philippine in the year 1991 and on the basis of this degree were allowed BS-17 through notification dated 02.4.1997. The petitioners have not denied the fact that such degree was accepted on the basis of the certificate of equivalency dated 20.3.1997 of Mehran University of Engineering & Technology obtained and provided by them to the Department which certificate on verification was labeled to be fake and forged by Mehran University of Engineering & Technology letter dated 12.12.2000. On such basis show cause notices dated 10.4.2001 were issued to both the petitioners. The petitioners in their replies dated 23.4.2001 apparently have not specifically denied the fact that the certificate dated 20.3.1997 was fake and forged but have proceeded to justify their qualification as genuine. Sabhago Khan Jatoi, Secretary to Government of Sindh, Agriculture Department through order dated 27.4.2004 vacated the said two show cause notices relying upon the judgment of Fida Hussain V/S Secretary Kashmir Affairs (PLD 1995 SC 701) stating that it is within the domain of Government to decide whether a particular qualification will be considered sufficient for promotion from a particular grade to higher grade and that provisions of Pakistan Engineering Council Act are applicable to only professional engineers and not to person working in Government departments. The petitioners thereupon obtained regular promotion to the post of Assistant Director/Assistant Agriculture Engineer (BS-17). The department, however, reconsidered the matter of the petitioners and put their promotion in abeyance for the purpose of taking of departmental action against them as the question of petitioners obtaining and submitting fake and forged certificate dated 20.3.1997 from Mehran University of Engineering & Technology, Jamshoro was not resolved and further that the petitioners qualification for the post was not satisfied.

 

Though much has been said about the degrees of B.Sc. Mechanical Engineering obtained by the petitioners from Manuel L.Quezon University, Philippine in March 1991 but copy of such degrees have not been filed by the petitioners.

 

Section 11 of Pakistan Engineering Council Act, 1976 provides that the engineering qualification granted by Engineering Institution outside the Pakistan which are included in the 2nd Schedule shall be recognized engineering qualification for the purpose of this Act. By Section 16, the Council maintains register in which it enters the names and other particulars of persons possessing recognized engineering qualification whose applications for registration as professional engineers and consulting engineers are granted by the Council. Pakistan Engineering Council through its letter dated 10.9.2002 informed the department that it has refused to approve the case of petitioner No.2 Shahid Mehmood for enrolment as engineer as his qualifications were found to be deficient in respect of conditions prescribed in 2nd Schedule of the Act.

 

The required qualification for being allowed BS-17 as per notification dated 02.4.1997 was that of degree in Agricultural/Civil/Mechanical Engineering or M.Sc. (Agricultural) at least 2nd Division from recognized university and for regular promotion degree in Civil/Mechanical or Agricultural Engineering and registered with Pakistan Engineering Council with five years service. The degrees possessed by the petitioners are apparently not recognized by the Pakistan Engineering Council whose function is to give recognition to the foreign engineering qualification under the Pakistan Engineering Council Act, 1976. Further the question of petitioners procuring and providing to the department the certificate dated 20.3.1997 of Mehran University of Engineering & Technology, Jamshoro alleged to be fake and forged has yet not been determined. 

 

The petitioners are enjoying promoted post which apparently has been obtained by them not through transparent and legal means but rather through dubious means. Whether in the wake of such facts and circumstances, the petitioners will be entitled to discretionary relief.

 

In the case of SECRETARY TO THE GOVERNMENT OF THE PUNJAB, FOREST DEPARTMENT, PUNJAB, LAHORE V/S GHULAM NABI AND 3 OTHERS (PLD 2001 SC 415) the Hon’ble Supreme Court as a preposition has observed that Superior Courts have ample jurisdiction to refuse relief where granting it would tantamount to injustice and would perpetuate illegality or for retention of ill gotten gains and that High Court is not obliged to press into service its constitutional jurisdiction in every case in which illegal or void action or order is impugned.

 

In the case of  MAJOR ((RETD.) BARKAT ALI AND OTHERS V/S QAIM DIN AND OTHERS (2006 SCMR 562), the Hon’ble Supreme Court at page 575 has observed as follows:

 

“ It is by now a well settled principle governing the exercise of constitutional jurisdiction that the High Court may not interfere with an order notwithstanding its void or illegal dimension if it leads to greater injustice.” 

 

 

 

As the enquiry against the petitioners for their alleged illegal acts is underway, we are not inclined to exercise constitutional jurisdiction to grant relief to the petitioners even if the impugned action is presumed to be not sustainable in law for the reasons the legitimacy of the petitioners enjoying the post of Assistant Director/Assistant Agriculture Engineer (BS-17) is yet to be determined through holding of proper enquiry by the department.

 

For the foregoing reasons we find no merit in this petition. The same is therefore dismissed. Listed applications are also disposed off.

 

 

 

 

                                  J U D G E

 

 

 

 

J U D G E

Aamir/PS