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Petitioner: EIJAZ AHMED SHAH VS Respondent: FEDERATION OF PAKISTAN through Federal JUDGMENT
Court Name: Sindh High Court Judge(s): Gulzar Ahmed, Shahid Anwar Bajwa Title:EIJAZ AHMED SHAH vs FEDERATION OF PAKISTAN through Federal
JUDGMENT
Reported As: PLD 2010 Karachi 309 Result: Petition dismissed Judgment JUDGMENT ' SHAHID ANWAR BAJWA, J.---Facts leading to this petition are that petitioner was inducted in BS-11 as Sub Engineer in Sindh Councils Unified Grades (hereinafter referred to as SCUG) Service with effect from 28-12-2005. Educational qualification of the petitioner was that he acquired Degree of B.Tech (Hons) from NED University of Engineering & Technology, Karachi in 2004. It is contended in a petition that B. Tech (Hons) is at par with B.E/B.Sc. (Engineering) in terms of Policy laid down by letter dated 17-3-1973 issued by the Federal Government. Vide Notification dated April 4, published in Sindh Government Gazette on April 21, 2005, Sindh Councils Unified Grades Rules 1982 (Engineering Branch) were amended. In respect of employment in Basic Scale 17 it was provided as under:-- "Basic Scale 17: Minimum Qualification:---Degree in Engineering or B.Sc (Engineering); or an equivalent qualification in civil or Mechanical and Electrical Engineering from a recognized University and registered with Pakistan Engineering Council. (i) Fifty per cent by initial appointment (ii) Twenty per cent by promotion from amongst the Sub-Engineers having qualification of BE/BSc in Civil Electrical or Mechanical with at least five years service. (iii) Fifteen per cent by promotion from amongst the Sub-Engineers having qualification of B.Tech (Hons) with at least five years of service as such; (iv). Fifteen per cent by promotion from amongst the diploma holders sub-engineers on the basis of seniority cum fitness with at least five years of service as such;
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' Note.--Seniority of the Sub-Engineers would be maintained separately qualification wise i.e, BE, B.Tech (Hons) and diploma holders, 2. This constitutional petition was filed with the following prayers:-- A. Declare that the PEC Act, 1976, directs only for regulation of practice of the profession of engineering and consultancy in private sector and it never governs the public sector engineering works and the public service engineers of Government/Semi Government Departments who are not registrable with the respondent No,7 under the PEC Act. B. Declare that the public engineering works of the Government/ semi-Government Institutions are not professional engineering works and the engineers employed by the respondents Nos.1 to 6 for execution of such public engineering works, are not doing practice of engineering profession, but doing public engineering service which cannot be treated as practice of the professional of engineering and consultancy in Government/semi-Government Institutions. C. Declare that the respondent No,7 possesses no authority and no jurisdiction of issuing directions to and requiring the respondents Nos.1 to 6 for including requirement of "Professional Engineering" in their recruitment rules, for not recognizing the Government prescribed and the recognized Engineering University's conferred engineering degree of B.Tech (Hons), and for getting engineers of the Government/semi-Government Departments registered with the respondent No,7. D. Declare that the acts of the respondent No,7 restraining the respondents from implementing the Federal Government Laws prescribed by the respondents Nos.1 and 2 for non-registration of the Government/semi-Government Engineers with the respondent No,7 and of the Engineering Degree of B.Tech (Hons), through its (respondent No,7) letter No,PEC/Reg/ 017/1-A/96, dated 13-4-1996 and No, PEC/Reg/067/96, dated 16-5-1996, are coram non judice, without jurisdiction, mala fide and void. E. Declare that the act of respondent No,7 directing the respondent No,3 for not deleting the requirement of "Professional Engineering" from the recruitment rules and stressing that it (respondent No,7) does not recognize B.Tech (Hons) as engineering degree, through its (respondent No,7) letter No,PEC/063/99, dated 2073-1999, is coram non judice, without jurisdiction, mala fide and void. F. Declare that the respondent No,7 is liable for actior under section 30 of the PEC Act, 1976, for its default and for 'mproper working of interfering in the working of the respondents Nos. 1 to 6 incompatible to the PEC Act perpetrated through their Letters No, PEC/Reg/017/1-A/96, dated 13-4-1996, No, PEC/Reg/067/96, dated 16-5-1996 and No, PEC/63/99, dated 20-3-1999. G. Declare that the respondents Nos.1 to 6 are under obligatory duty of performing functions and administering service matters of their Public Engineering Works Departments in accordance with the Government Works Laws/ Rules and the Civil Servants Act/ Rules enforced by the Government and not under the PEC Act, 1976, and not under the directions of the respondent No,7. H. Declare that the acts of the respondent No,3 and consequently of the respondents Nos.4 to 6 in accepting and implementing the void dictates of the respondent No,7 for not acting upon the Federal Law about the B.Tech (Hons) engineering degree, for not deleting from the recruitment rules the requirement of registration of Government/semi-Government engineers as Professional Engineer with the respondent No,7, and for not treating B.Tech (Hons) as engineering degree, are coram non judice, withotu jurisdiction, mala fide and void. I. Declare that the acts of the respondents Nos.3 to 6in violating the Federal Laws contained in the O.M.No,CDN-II-2/7/95-1, dated 14-3-1996 and O.M.No, F. 8-1/94-Polytechnic, dated 17-4-1996, are malfeasance, nonfeasance, misfeasance, coram non judice, without jurisdiction, mala fide and void. J. Declare that if the Engineers of the Public Engineering Works Departments of the Government /semi Government institutions are found involved in the practice of "Profession of Engineering and Consultancy" in private second over and above their Public Service duties, they would be accused of misconduct
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under the Government servants conduct rules as well as of the respondent No,7 under section 27 of the PEC Act, 1976. K. Declare that under law the B.Tech (Hons) is unexceptionably and mandatorily engineering degree at par with the B.E./B.Sc. (Engg) degrees and its non-recognition by the respondent No,7 has no effect on its academic degree status and on its prescription by the Government/ semi- Government departments for their service matters. L. Declare that the 33% departmental quota for promotion of B.E./B.Sc. (Engg)/B.Tech (Hons) Graduate Sub-Engineers to BS-17 prescribed for the Civil Servants under the Sindh Government Notification No,SOEII(C& W)1-8/31/92 (Pt.II), dated 30-9- 1994, being the matter not contained in the SCUG Service Rules, 1982, the same stood attracted and mandatorily operated to the SCUG Service (the petition) under Rule 14 ibid and under the apex Judgment as "2003 SCMR 813)". M. Declare that the Amendment Rules prescribing impossible and unlawful condition of registration of B.Tech(Hons) with the respondent No,7, providing discriminatory promotion quotas of 20% and 15% for the at par degrees of B.E./B.Sc. (Engg) and the B.Tech (Hons) respectively, and for keeping separate discriminatory seniority lists of the two at par graduates enforced by the respondents No,5 and 6 through their Notification No, SLGB/SCUG/Engg-II/4(595)3004/1014, dated 4-4-2005, are void under Clause (2) of Article 8 of the Constitution of the Islamic Republic of Pakistan, 1973. N. Declare that discrimination practiced by the respondents Nos.5 and 6 with the petitioner in application of Rule 14 of the SCUG Service Rules, 1982, and by not treating the petitioner alike to his counterparts, is void being repugnant to Article 25 of Constitution of Pakistan, 1973, and that the respondents are mandatorily required to equally cover the petitioner according to his existing promotion laws and treat him alike to the similarly benefited servants. 0. Declare that inaction of the respondents Nos.5 and 6 on the representation made on 3-9-2005, on the objections on void amendments files on 30-4-2005, and on the legal notices dated 24-3- 2005 and 14-5-2005 of the petitioner, is nonfeasance and malfeasance and also unlawful penalization of the petitioner by the respondents. J. Direct the respondents Nos.3 to 6 to act upon the apex, Federal and Sindh Education Department laws which have treated B.Tech(Hons) as Engineering Degree at par with the B.E./B.Sc. (Engg.) degrees and have withdrawn/ deleted the condition of registration with the Pakistan Engineering Council from the recruitment rules, and thereby perform the duty enjoined upon them recruitment rules, and thereby perform the duty enjoined upon them by law. Q. Direct the respondents Nos.3 to 6 to desist from acting upon the void directions from the Pakistan Engineering Council regarding non-recognition of B.Tech(Hons) Engineering Degree and for inclusion of the requirement of registration with the Pakistan Engineering Council in the recruitment rules and thereby perform the duty enjoined upon them by law. R. Direct the respondents Nos.3 to 6 to stop discriminatory application for the rules and to act upon the decide the promotion matter of the petitioner under Rule 14 of the SCUG Service Rules, 1982, read with the 33% Departmental quota for promotion of the Graduate Sub-Engineers to BS-17 prescribed under the Sindh Government Recruitment Rules No,SOEII(C&E)1-8/31/92/(Pt. II), dated ? 0-9-1994, mandatorily operative to the petitioner, and as per real resolution No,8 dated 10-4-2004, passed by the respondent No,6 (the DPC) within four weeks and thereby perform the duty enjoined upon them by law. S. Direct the respondents Nos.1 and 2 to institute action against respondent No,7 under section 30 of the PEC Act, 1976, for its default and for improper working of interfering in the working of the respondents Nos.1 to 6 not compatible to the PEC Act, 1976, through their letters No,PEC/Reg/017/1-A/96 dated 13-4-1996, No,PEC/Reg/067/1996 dated 16-5-1996 and No,PEC/063/99, dated 20-3-1999. 3. Learned counsel for petitioner first referred to Rule 14 of the Sindh Councils Unified Grades Service Rules 1982. The rule is in the following words:
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"In all matter not expressly provided for in these rules the members of the service shall be governed by general rules applicable to the civil servants as are prescribed by Government." 4. Learned counsel referred to a letter dated 26-10-1973 issued under the signatures of the then Minister for Education and Provincial Coordination written to Governors of the four provinces. In the letter the then Minister addressed them in the following words:-- "From: Mr. Abdul Hafeez Pirzada, Minister for Education and Provincial Coordination. ' My Dear Governor, ' As you may be aware the Polytechnic Diploma Holders had been agitating for a long time for provision of facilities for higher education. In order to resolve this issue in consultation with the Provincial Governments various Associations of the Polytechnic Diploma Holders, I convened a meeting on the 20th October, 1973 of the Chairman/Directors for Technical Education in the Provinces, Principals of Polytechnics, Representatives of Engineering Universities/Colleges and Representatives of various Associations of the polytechnic Diploma Holders. It was decided that steps should be taken to introduce the degree programmers for the polytechnic diploma holders without further delay. 2. As envisaged in the new Education Policy, the following programmer was adopted. There will be two degree courses for diploma holders (i) B.Tech. (Pass) and (ii) B.Tech (Honours). 3. Admission to the B.Tech (Pass) course shall be subject to the candidates fulfilling the following minimum requirements. (i) Three years diploma from a Polytechnic institute in first Division. (ii) Two years, industrial training/experience. Candidates without industrial experience shall be required to undergo one year's supervised/guided practical training in industry to be arranged by the institution concerned. (iii) Performance in the admission test. 4. B. Tech (Pass) course will consist of a year's program me of studies at the institution. The degree of B.Tech (Pass) shall be treated at par with a Bacholar's degrees in Science. 5. Candidates having successfully completed B. Tech (Pass) degree course shall be eligible for admission to a two years B.Tech (Honours) course. The first year of this course will comprise (Honours) course. The first year of this course will comprise supervised/guided industrial training during which the students shall be assigned specific projects relevant to their fields of study. The second year will consist of intensive study at the institution. B.Tech (Honours) shall be treated at par with B. Sc . (Engineering)/B. E . Degree. ' It was also decided that so long as necessary facilities do not exist in Balochistan and N.-W.F.P. And other backward areas, Federal Government will arrange placement of students from these areas in other Provinces. ' You are requested to kindly direct the relevant authorities of your Province to implement these decisions urgently. ' With regards. Yours sincerely (Sd). (Abdul Hafeez Pirzada). 5. Learned counsel further submitted that it is a case of discrimination for promotion and it violated Article 25 of the Constitution of the Islamic Republic of Pakistan. He submitted that the Pakistan Engineering Council (respondent No,7) was violating not only directive of the Government but also Article 25 of the Constitution because it does not treat degree of B.Tech (Hons) as equal to B.E./B.Sc. (Engineering). Learned counsel further submitted that Rules framed by the Provincial Government or prescribing quota of 20 per cent for B.E./B.Sc. (Engineering) and 15 per cent for B.Tech(Hons) graduates is also similarly violative of the constitution.
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6. Although petition contains 15 prayer clauses for declarations and 4 for directions, learned counsel contended that his grievance is primarily three fold; firstly degree of B.Tech (Hons) be treated as equivalent to the degree of B.E./B.Sc. (Engineering) both by the Provincial Government as well as by the Pakistan Engineering Councils; secondly, Pakistan Engineering Councils be directed to include holders of B.Tech (Hons) degree among Professional Engineers and thirdly reservation of separate quota for B.Tech (Hons) and separate quota for B.E./B.Sc. (Engineering), the two degrees being equal is violative of Article 25 of the Constitution. Learned counsel relied upon Fida Hussasin v. The Secretary, Kashmir Affairs and Northern Affairs Division Islamabad and another PLD 1995 SC 701 and Administrator, Municipa. Corporation v. Muhammad Arshad and others 2003 SCMR 813. In support of his contention that Pakistan Engineering Councils exercises public power learned counsel relied upon Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd. Tokht Bhai and 10 others PLD 1975 SC 244. 7. Mr. Adnan Karim learned A.A.-G. Has submitted that qualification of B.Tech (lions) and B.E./B.Sc. Are different and they are not equivalent or equal with each other. He relied upon Pakistan Diploma Engineers Federation (Registered) Through its Chairman v. Federation of Pakistan through Secretary, Ministry of Water and Power, Government of Pakistan, Islamabad and 9 others 1994 SCMR 1807, and Muhammad Azim Jamali and 11 others v. Government of Pakistan through Secretary/Chairman, Ministry of Railway and 33 others 1992 PLC (C.S.) 637. Learned A.A.-G. Has relied upon I.A. Sharwani and others v. Government of Pakistan Through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041. 8. We have considered submissions made by the learned counsel and have also gone through the record as well as case law cited at'bar. 9. A brief reference to the provisions of the Pakistan Engineering Councils Act, 1976 may be relevant at this stage. Pakistan Engineering Councils Act received assent of President of Pakistan on January 10, 1976. It defines "professional engineer" as under:-- ' Section 2(j).---"professional engineer" means a person who holds a recognized engineering qualification and is registered as a professional engineer. ' It also defines engineering public organization as under:-- ' Section 2(f).--"engineering public organization" means a Department of the Federal Government or a Provincial Government, a public Corporation, autonomous or semiautonomous body, cantonment board, municipality, improvement trust or other local authority; ' It defines "professional engineering works" and then it defines "recognized engineering qualification" as under:-- ' Section 2(1).--"recognized engineering qualification" means any of the qualifications included in the First Schedule or the Second Schedule; 10. Section 3 provides for Constitution and incorporation of Engineering Council. Sections 4 to 7 provide for various meetings of the Engineering Councils. Section 8 lays down functions of the Engineering Council and the functions relevant for the purpose of this petition are; (a) (b), (h). Same areas under:-- (a) maintenance of a Register of persons qualified to practice as professional engineers and consulting engineers; (b) recognition of engineering qualifications for the purpose of registration of professional engineers and consulting engineers; (h) promotion of engineering education and review of courses of studies in consultation with the Universities; 11. Section 9 provides for Executive Committee. Section 10 deals with recognition of domestic qualifications and section 11 does the same for foreign institutions. It is in the following words:--
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10. Recognition of engineering qualifications granted by institutions in Pakistan.---(1) The engineering qualifications granted by engineering institutions in Pakistan which are included in the First Schedule shall be the recognized engineering qualifications for the purposes of this Act. (2) Any engineering institution in Pakistan which grants an engineering qualification not included in the First Schedule may apply to the Council to have such qualification recognized, and the Council may, by notification in the official Gazette, amend the First Schedule so as to include such qualification therein. 12. Section 12 relates to grant of temporary licenses to a person domiciled outside Pakistan who does not hold any recognized engineering qualification. Section 13 confers power on Counsel to require information from engineering institution in Pakistan which grant recognized qualification as to courses of study undergone in order to obtain such qualifications. Section 14 confers power on the Council to appoint such number of inspectors to attend any or all examinations held by the institutions in Pakistan. Section 16 relates to maintenance of register of profession engineers and consulting engineers provides as under:-- 16.Maintenance of Register, etc.--(1) The council shall maintain in the prescribed manner a Register in which shall be entered the names and other particulars of persons possessing recognized engineering qualification whose applications for registration as professional engineers and consulting engineers are from time to time granted by the counsel. (2) Every application for registration under this Act shall be made to the Council in the prescribed form and be accompanied by the prescribed fee. (3) Every professional engineer and consulting engineer registered under this Act shall be entitled to receive a certificate registration under the hand of the Registrar. (4) A certificate of registration issued under subsection (3), shall, subject to the provisions of this Act, remain in force until the thirty first day of December of the year in which it is issued and shall thereafter be renewable for any number of years not exceeding three at a time upon payment of the prescribed fee. 13. Section 17 relates to registration and removal of names from register and section 18 provides an appeal against such removal. Section 19 relates to revision of register and section 20 relates to complaints against professional engineers. Rest of sections provide various ancillary provisions and rules making power. 14. First Schedule give a list of Universities in Pakistan and other Institutions which grant degrees which are recognized by the Engineering Council. Second Schedule similarly refers to degrees, diplomas etc. Granted by Foreign Universities and Institutions which are recognized by the Pakistan Engineering Council. 15. Above survey indicates that in the First Schedule universities are named and various degrees issued by those universities are recognized engineering qualifications under section 2(1) are specified and professional engineer, as defined in section 2(j), is a person who holds a recognized engineering qualification and is registered as a professional engineer. Section 10 confers power on the Council, by notification in the official gazette, to amend the First Schedule so as to include in it such qualification which is not originally included in it. Thus Council has been conferred power under section 10 to grant recognition to various engineering qualifications and once it recognizes a qualification, law confers power, on Pakistan Engineering Council, of amending First Schedule accordingly. Section 16 of the Act provides that all professional engineers and consulting engineers are required to get themselves registered under the Act and it is provided in the Act that no professional engineering work shall be undertaken by a person whose name is not borne on the register maintained by the Pakistan Engineering Council. 16. Having looked at Pakistan Engineering Council Act, 1976 it may be relevant to refer to case law on the issues involved in this case. Leading case is of Fida Hussain v. The Secretary, Kashmir Affairs
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and Northern Affairs Division, Islamabad and Another PLD 1995 SC 701. In this case the Supreme Court first referred to letter issued by the Minister for Education and Province Coordination on 26- 10-1973. We have already reproduced that letter. The letter set out policy of government that qualification of B-Tech (Hons) shall be treated at par with B.Sc. (Engineering)/B.E. Degree. Certain employees who had cleared B-Tech (pass) and B-Tech (Hons) were promoted to BS-17 by the authority concerned. Petitioner Fida Hussain was not so promoted. Administrator Northern Areas, Gilgit was informed by the Chief Engineer that petitioner could not be promoted as Pakistan Engineering Council did not recognize B-Tech (Hons) as equivalent to B.Sc. (Engg). Thereupon, petitioner filed departmental appeal which was rejected. Appeal before the Federal Service Tribunal followed and that appeal was dismissed upholding that Pakistan Engineering Council was appropriate body to give opinion and Pakistan Engineering Council did not accept B.E. / B.Sc. (Engineering) degree of B-Tech (Hons) as equal to B.Sc. Degree. Civil Petition for Leave to Appeal was filed in the Supreme Court and leave to appeal was granted. However, appeal was dismissed and thereafter a review petition was filed. Moot question was noted by the Supreme Court in the following words:- "We are, therefore inclined to hold that factually the policy decision contained in the above quoted letter of Minister of Education and Provincial Coordination dated 26-10-1973 was implemented. Even if we were to hold that the Pakistan Engineering Council had not approved the above equivalisation of the above academic degrees, it would not make any difference as the basic question in the present case which escaped notice of the learned Judges of the Bench of this Court which rendered the judgment involved is, as to whether the Pakistan Engineering Council is competent to decide the question, whether a particular academic degree should be accepted as sufficient academic qualification for promotion of civil servants and employees of the semi- Government organizations from a particular lower grade to a particular higher grade or is it within the domain of the Government or the semi-Government organization concerned." 17. Thereafter Supreme Court referred to judgment of this Court in Muhammad Azim Jainali's case (supra). In this case which was heard by a Division Bench, there was difference of opinions between two Members of Bench and consequently matter was referred to third learned Judge who held as under:-- "From the above debates in the National Assembly, it would appear that the object of introducing the Engineering Council Bill of 1975 was to bring the engineering profession on the same line and make it subject to similar check and control as are applicable to the Medical and Legal Profession, by creating an Engineering Council in line with the Medical Council and the Bar Council. Ajmal Mian, C.J. (as he then…
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