C. P. NO.D-4235/2012


                           MR. JUSTICE SALAHUDDIN PANHWAR



Petitioner          :      Mehar Ali Dayo,

                                through Mr. Yawar Farooqui advocate.


Respondents     :      The Province of Sindh and 4 others,

Mr. Muhammad Nawaz Shaikh advocate for respondents No.4 and 5.


                         :      Ms. Sadia Shaheen advocate, associate of

                                Mr. Masood A. Noorani, advocate for Intervenors.


                                Syed Shah Hussain, Deputy Secretary, Works & Services Department, Government of Sindh.



Date of hearing :      04.10.2013.






SALAHUDDIN PANHWAR, J. Succinctly, relevant facts are that petitioner was appointed as Sub-Engineer (Civil) BPS-11 in the M&R department, Education Works Department, Government of Sindh. Petitioner is a diploma holder in civil field; after required departmental examination he was promoted from BPS-11 to PBS-16; thereafter promoted as Assistant Engineer (Civil) in BPS-17, petitioner has worked as Assistant Engineer since 1997, but thereafter was not considered for promotion due to condition that he was diploma holder. Pursuance to the Sindh Local Government Ordinance 2001 the petitioner’s department i.e. Education Works Department was merged into Communication Works Department hence joint seniority list was prepared and issued by the Works and Services Department.

2.                     By notification dated 18.06.2001 issued by the Education Department, Electric Engineers holding diploma were accorded consideration for promotion on 20% quota reserved; in the year 2005 Irrigation and Power Department, Government of Sindh vide notification dated 25.02.2005, extended promotion to the Assistant Engineer (BPS-17) (diploma holder) on same quota in various departments and such policy is in existence and many Assistant Engineers possessing qualification of diploma were accorded promotion in Grade-18; the petitioner appeared in departmental promotion examination in the year 2012; for promotion from BPS-17 to BPS-18 and succeeded the same therefore he is entitled to be promoted according to the policy as 20% quota is allocated for such category. Thereafter departmental promotion committee held meeting on 21.11.2012 and considered seniority list whereby the petitioner was not promoted. Rest of the candidates falling within 80% quota were 36 candidates however in the category of 20% quota the petitioner was alone who was seeking promotion but he was declined such promotion. Petitioner submitted representation to the Chief Secretary/competent authority but still they have not passed any order thereon. Therefore he prayed that recommendation of the departmental promotion committee referred to above may be declared as ab-initio void and without lawful authority and further seeks direction to the respondents for considering him from BPS-17 TO BPS-18.

3.                     In contra, respondents No.1 and 2 in their comments have contended that existing recruitment Rules are related to the defunct Communication and Works Department and after regrouping with Works and Services Department, recruitment Rules were required to be updated. Respondent No.1 while deciding departmental appeal of the petitioner has directed respondent No.3 to consider the promotion of the petitioner for EXN (BPS-18) on seniority-cum-fitness basis against 20% quota fixed for diploma holders but after regrouping of Works and Services Department such policy has become redundant as such no amendment has so far been made in the recruitment Rules which are required to be amended at par with other Engineering Departments of the government.

4.                     Respondents No.4 and 5 (Engineers) in their counter affidavit have taken stance that petitioner is diploma holder and can not be given the status of professional engineer as defined under section 2-A of the Pakistan Engineering Council Act 1976 and it is settled law by apex Court that diploma holder can not be treated at par with Engineers having recognized degree registered with Pakistan Engineering Council.

5.                     Learned counsel for petitioner while reiterating the same contentions as contended in the petition and in support relied upon case of Abdul Sattar & others decided in C.P. No.D-2682/2012, C.P. No.D-184/2009 and (Abdul Sattar Shaikh & others vs. Province of Sindh and others).

6.                     Conversely, counsel for respondents while reiterating the contentions as appended in the comments, has relied upon PLD 1996 Supreme Court 182 (Muhammad Sadiq and others Vs. University of Sindh and another), 2007 SCMR 134 (Muhammad Younus Aarin Vs. Province of Sindh and 10 others), 1994 SCMR 1807 (Pakistan Diploma Engineers Federation Vs. Federation of Pakistan and 9 others), 2008 PLC (C.S.) 1219 (Muhammad Asghar Zardari and others Vs. C.D.A. and others), 1999 SCMR 1689 (Dr. Muhammad Tahir Achakzai and others Vs. Government of Balochistan and others) and 1999 SCMR 1696 (Mst. Ume Kalsoom Vs. Zahid Bashir through legal heirs and another).

7.                     Learned APG assisted by Deputy Secretary, argued that matter is pending for amendment in policy. According to him it is suggested that petitioner and others falling in such category are entitled for promotion but summary is yet to be approved after that proper action will be taken.

8.                     Learned counsel for intervenor has pleaded that it is settled law that the diploma Engineer can not be treated at par with a professional Engineer recognized by Pakistan Engineering Council, hence petitioner is not entitled for promotion. In support of his contention he has relied upon PLD 1996 SC 182 (Muhammad Sadiq and others Vs. University of Sindh and another), 2007 SCMR 134 (Muhammad Younus Aarin Vs. Province of Sindh and 10 others), 2008 PLC(C.S) 1219 (Muhammad Asghar Zardari and others Vs. C.D.A. and others).

9.                     After careful consideration of contention raised by respective counsel and meticulous examination of available record and case law, we are of the view that the moot question involved in instant petition is that whether petitioner, being diploma holder is entitled for promotion, according to the policy laid down by the Government in other departments. Before responding this question, it would be conducive to examine the ratio settled by this court as well as apex court in almost similar circumstances.

10.                  In case of Abdul Sattar & others, and other two petitions (CPD 184/2009, 368/2007,823/2009, were decided by common order. In one petition, petitioners were claiming promotion on the basis of B.Tech (diploma), while  in another,  petitioners were claiming that they were possessing B.E degree, thus B.Tech is not equivalent hence they were not entitled for promotion as Engineer. This Court did not debar the petitioners, who were claiming promotion on B.Tech, but declared that ratio of fixed quota for promotion as arbitrary, and thus directed government to re-fix the ratio.

11.                  In case of Muhammad Sadiq and others Vs. University of Sindh and another, reported in  PLD 1996 SC 182; petitioners were B.Tech degree holders, claimed promotion, but same was refused by this court, hence they assailed the same before apex court, where leave was granted, but they did not pursue their case, however, Honourable Supreme Court while referring case of Fida Hussain, reported in PLD 1995 SC 701, held that  the Government had the exclusive domain to decide, whether any particular qualification would be considered sufficient for promotion from any particular grade to a higher grade and that government is vested with the power to change such policy from time to time, whereas Pakistan engineering counsel has exclusive domain to decide, as to whether a particular qualification could be equated with another academic qualification but it has no power to say that a civil servant/employee holding a particular academic qualification could not be promoted from a particular grade to a higher grade.

12.                  In case of Muhammad Younus Aarin Vs. Province of Sindh and 10 others, reported in 2007 SCMR 134(DB) petitioner was diploma holder, his services were governed by SUGR 1982, was claiming promotion in grade 20, for particular post, his petition was dismissed by this court with observation that “it is evident from para-wise comments filed that the post in question required performance of such function. The petitioner, therefore, could not be conceded [considered] eligible. Indeed this would not affect his eligibility for being considered for promotion under rules for any post not requiring such functions to be performed for the foregoing reasons, we find no merit in this petition and dismiss the same”.

                   This verdict was assailed, Honorable apex Court while dismissing petition held that:

          “The careful examination of Rules on the basis of which petitioner asserted the claim for promotion to BPS-20, against the post carrying responsibilities of a professional engineer, would show that his claim was without any substance and learned counsel for the petitioner has not been able to satisfy us that a diploma holder on the basis of his experience alone, would stand at par to a person registered as professional engineer with Pakistan Engineering Council.”


 Further held that

          “The Government having the domain to frame the policy of promotion and appointment can also by law , provide the qualification for appointment against such a post through promotion or otherwise, cannot be claimed without fulfillment of the criteria and the requisite qualification.”


13.              In case of Pakistan Diploma Engineers federation (Regd) Vs. Federation of Pakistan reported in 1994 SCMR 1807, held that:

“A graduate engineer can be appointed against a non- professional position but if the assignment involves professional engineering work, the appointment would be essentially subject to the fulfillment of the requirements  of Pakistan Engineering Council Act 1976.”


14.              Similarly in case of Muhammad Asghar Zardari, reported in 2008 PLC (C.S) 1219, Islamabad High Court and in case of Eijaz Ahmed Shah v. Federation of Pakistan and others reported in PLD 2010 K 309 it is held that:

          “Any appointment of non-qualified engineers into professional engineering work was a clear violation of law and violator could be punished under the same law”.


                   Thus, what has been made clear in the above case laws and is no more disputed, could well be summarized as:


i)  Diploma holder on the basis of his experience alone, would not stand at par to a person registered as professional engineer with Pakistan Engineering Council;


ii)  B.Tech holder is not equivalent to that of BE degree holder recognized by Pakistan Engineering Council Act 1976;


15.              However, what was required to be worked at on part of the respondents or quarter concerned is that the policies regarding promotions are made in such a manner and fashion that the same shall not prejudice to the following:

i) A graduate engineer can not be appointed / promoted against a position/post, requiring professional engineering work unless he / she fulfills the requirements of Pakistan Engineering Council Act 1976 but this should not prejudice to the principle of civil service law that a civil servant / employee, holding a particular academic qualification, could be promoted from a particular grade to a higher grade;


ii) No appointment of non-qualified engineers into professional engineering can be made;



But it has been the undeniable tragedy of our system that procedure, policy, rules and laws are allowed to be violated on account of favoritism. Things are obtained and achieved through the backdoor which not only result in placement of incompetent persons to positions but also seriously result into a cause of frustration rather harassment to eligible. The Law and Court (s) have made it clear to all that what one cannot obtain / achieve directly he cannot legally obtain / achieve the same indirectly. We cannot deny that it is the merit alone which could justify an action or omission on part of an authority hence all actions, regardless of its nature and purpose, should base on merit and merit alone because it is the merit which gives a due to deserving while a sense of satisfaction to rival / opposite. We shall add that a system shall surely collapse where the due is not given and distinction is not made on basis of merit but things are weighed on basis of colour, cast, position and creed. The Judiciary is the ultimate guardian of the rights and obligations of individuals and can competently direct proper framing of the policies.

                   These have been the causes and reasons, which were considered by the Honourable Supreme Court of Pakistan in deciding the C.P.No.22 of 2013 “Re- Orya Maqbool Abbasi Vs Federation of Pakistan through Secretary Establishment & others” and held that:


(i)The Government shall also undertake exercise to outline the objective criteria for promotion to make the civil servant an honest officer and free from political pressure as has been noted hereinabove. 


16.              In view of above settled principles we would revert to the merits of the case in hand but before discussing the merits of the case, it is necessary to add here that promotion is not a right, but a civil servant who is fully qualified for promotion has a right to claim that his case must be considered for promotion strictly following the eligibility criteria laid down by the Government. It is not the case of the petitioner that he has not been considered for promotion but his grievance is that since he was alone falling within meaning of 20% quota, reserved for promotion fixed for diploma holders, therefore, he should have been promoted. Such contention of the petitioner cannot be accepted in view of the above settled principles, particularly in view of the submission of the Respondent No.1 that while deciding departmental appeal of the petitioner the respondent No.3 was directed to consider the promotion of the petitioner for EXN (BPS-18) on seniority-cum-fitness basis against 20% quota fixed for diploma holders but after regrouping of Works and Services Department such policy has become redundant as such no amendment has so far been made in the recruitment Rules which are required to be amended at par with other Engineering Departments of the government. (underlining is for emphasis).

17.              Since it is clear that after regrouping there exists no policy regarding promotion on account of 20% quota, reserved for promotion fixed for diploma holders as exists in other Engineering Department of the Government but same is pending process. In absence of such a policy the claim of the petitioner cannot be accepted because the right to claim on basis of policy shall only be available when such a policy (law) exists and not in absence thereof for simple reason that it would be the law (policy) only which will give a right to claim the promotion. To frame policy is the domain of the government but the government cannot keep such matter hanging for indefinite period particularly when such policy exists in other Engineering department. Thus we dispose of this petition while holding that:

(i)           The Government shall also undertake exercise to frame the policy in Works and Services Department keeping in view the fact of existence of certain percentage of quota, reserved for promotion in other Engineering department;

(ii)          The respondent / quarter concern shall ensure that no unqualified person holds a post / job which requires special skills of professional engineering, as provided by Pakistan Engineering Council;

(iii)        any person posted on such post will be deemed illegal and such persons shall be removed from such posts without further delay;

18.              The quarter concerned shall ensure compliance of these directions within a period of three (03) months and shall submit compliance report thereof.

19.              Hence, instant petition is dismissed in the above terms.

                                                                                             J U D G E

Imran/PA                                                      J U D G E