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Petitioner: MUHAMMAD AZIM JAMALI VS Respondent: GOVERNMENT OF PAKISTAN
1991 P L C (C
1991 P L C (C.S.) 983
[Karachi High Court]
Before Ajmal Mian, J
MUHAMMAD AZIM JAMALI and others
versus
GOVERNMENT OF PAKISTAN and others
Constitutional Petition No. D-483 of 1984, decided on 22nd June, 1989.
(a) Constitution of Pakistan (1973)----
----Arts. 199 & 212---Constitution petition---Maintainability--Constitution petition under Art. 199 was barred by Art. 212 if controversy in petition related to terms and conditions of service of persons who were or had been in service of Pakistan, or, if it related to disciplinary matters of such persons but in case the controversy or dispute did not touch upon terms and conditions of service or disciplinary matters, of present or past civil servant, a writ petition might be competent---Matter or dispute in relation to a civil servant which was covered by Art. 212 (1) (a) could be agitated before Service Tribunal which was more appropriate forum for examining various Service Rules and Official Memorandums etc. than a High Court in exercise of Constitutional jurisdiction.
M. Yamin Qureshi v. Islamic Republic of Pakistan and another PLD 1980 SC 22; Abdul Bari v. Government of Pakistan and 2 others PLD 1981 Kar. 290; Dr.Abdus Sattar Babar v. Pakistan, through Secretary Establishment Division, and another 1984 SCMR 1173; Muhammad Sadiq Khokhar v. Engineer ing-Chief Pakistan Army, G.H.Q. and another 1085 SCMR 63. Muhammad Ali Khan v Pakistan and another PLD 1986 SC 349; Muhammad Aslam Khan v. Secretary, Ministry of Defence and others 1986 SCMR 283; Ch. Nazar Muhammad and another v. Government of Punjab and 38 others 1986 SCMR 68; Muhammad Umar Malik and others v. Federal Service Tribunal and others PLD 1987 SC 172; Ch. Muhammad Insha Ullah and others v. Chief Conservator of Forests (PXE) Punjab and others PLD 1988 SC 155 ref.
(b) Pakistan Engineering Council Act (V of 1976)---
----Preamble---Constitution of Pakistan (1973) Art. 212---Pakistan Engineering Council Act---Applicability---Provisions of Act were not applicable to persons employed in Government Departments as the Act was enacted to regulate working of professional engineers---Provisions of Act were applicable only to Professional Engineers and Consulting Engineers who were in practice.
(c) Pakistan Engineering Council Act (V of 1976)
----S.2(j)---Words and phrases---Expressions "Professional Engineers", "Professional Consultants" and "in practice"---Use, and meaning of expressions discussed.
Aswini Kumar Ghose v Arabinda Bose 1952 SC 369; State of Madhya Pradesh v Lohra Maghe Urson 1975 Jab. L.J. 687 at P. 687 and Way v. Bishop (1928) Ch. 647 at p.660 ref.
(d) Pakistan Engineering Council Act (V of 1976)
----Ss. 2, 12 & 16---Act V of 1976---Effect---Effect of Act V of 1976 was that no one could practise as a professional engineer or as a professional consultant without getting himself registered with the Council or without having a temporary licence in terms of S. 12 of the Act and that no one, including the departments and organizations mentioned in Cl (1) of S. 2 of the Act, could employ any person as a professional engineer or professional consultant unless his name was borne on register of Council maintained under S. 16.
(e) Pakistan Engineering Council Act (V of 1976)---
----S. 2---Legal Practitioners and Bar Councils Act (XXXV of 1973), S. 13-- "Professional Engineers" and "Professional Consultants"--Position---Position of engineers who are not practising as professional engineers and professional consultants was similar to that of law graduates, who were not in practice.
(f) Pakistan Engineering Council Act (V of 1976)--
----S. 2---Preamble---Qualification---For holding a particular post in a Government department or in any other organization was a matter to be regulated by relevant recruitment or promotion Rules and not by the provisions of Act V of 1976.
Khalid Anwar for Petitioners Ch.Fazal-i-Hussain and Nasim Farooqi for Respondents.
Date of hearing. 7th June, 1989.
JUDGMENT
The petitioners, who are 12 in number, are holding posts of Assistant Executive Engineers (Grade-17) in Pakistan Railways (hereinafter referred to as the Railways), respondents Nos.4 to 10 are holding positions as Executive/Divisional Engineers (Grade-18) in the Railways, whereas respondents Nos. 11 to 34 are holding posts of Assistant Executive Engineers (Grade-17) in the Railways and are also claiming promotion to the posts of Executive/Divisional Engineers (Grade-18).
2. It is the case of the petitioners that the above respondents Nos. 4 to 34 hold diplomas from various institutions, and therefore, are not professional Engineers in terms of clause (j) of section 2 of the Pakistan Engineering Council Act, 1975 (Act V of 1976), (hereinafter referred to as the Act), and hence they are not entitled to undertake any professional engineering work as defined in clause (k) of section 2 of the Act. It is also the case of the petitioners that the matter has been taken up by the petitioners with respondent No.1 i.e. the Government of Pakistan, through the Secretary/Chairman, Ministry of Railways. Islamabad, respondent No.2, the General Manager, Pakistan Railways, Lahore and respondent No.3, the Pakistan Engineering Council, which has been constituted under the Act, but in spite of the petitioners' efforts and directive of respondent No. l the above respondent Nos.4 to 34 continued to hold the posts of professional engineers in violation of the provisions of the Act. The petitioners, on the basis of the above averments, have prayed for the following reliefs:--
"(a) Declare that professional engineering work can only be carried out by professional engineers within the meaning of the said terms as used in the Pakistan Engineering Council Act, 1975.
(b) Declare that respondent Nos. 4 to 34 are not entitled to undertake any professional engineering work.
(c) Declare that the respondents Nos. 1 to 3 are not entitled to appoint the respondents 4 to 34 to any post involving the discharge of professional engineering work including, in particular, to the appointment of posts as Executive and/or Assistant Executive Engineers.
(d) Direct the respondents 1 to 2 not to appoint any other person apart from a professional engineer to any post involving the execution of professional engineering work viz. Assistant or Executive Engineer and restrain the respondents Nos.4 to 34 from carrying on or discharging any professional engineering works.
(e) Such other relief as may be deemed appropriate by this Honourable Court.
(f) Costs of the petition.
3. Respondents Nos.1 and 2 have filed parawise comments duly verified on oath, wherein they have raised certain preliminary objections as to the maintainability of the above petition. It has been pointed out that respondents Nos. 4, 5, 6. 9, 13, 15 and 34 have retired. It has also been pointed out that respondents Nos.7, 8 and lei have been regularly promoted against the B.S. 18 posts on the, basis of their seniority and whereas respondents Nos.11, 12, 14 and 17 have not been promoted, but leave been posted to look after the work of higher posts in their own pay scales. It has further been pointed out that petitioner No. l has left Pakistan Railways. Reference has also been made to the various circulars in reply to the contents of the petition, whereby from time to time the instructions were issued by respondent No. l as to the ratio of promotion of diploma-holders in B.S. 17 etc.
4. Most of the private respondents were represented by M/s. Aitezaz Hassan and associates, but they have not filed any counter affidavit or written comments, nor on their behalf any one was present on the dates when the above case was argued.
5. In support of the above petition Mr. Khalid Anwar, learned counsel for the petitioners, has vehemently contended that in view of the various provisions contained in the Act, the private respondents cannot be assigned by the Railways professional engineering work as defined in clause (k) of section 2 of the Act.
6. Mr. Naseem Farooqui, who has appeared for respondent No.3, also supported the submission of the learned counsel for the petitioners and submitted in reply to the objection of Mr. Fazal-e-Hussain, learned counsel for respondents Nos. l and 2, that the petition was not maintainable in view of Article 212 of the Constitution, that under Article 199 (1)(b)(ii) of the Constitution the above petition is competent for the relief of writ of quo-warranto.
7. On the other hand Mr. Fazal-e-Hussain, learned counsel for respondents. Nos. l and 2, has raised following preliminary objections.
(i) That since the petitioners and the private respondents are civil servants, the dispute inter se between them cannot be subject matter of a constitutional petition, as it is barred by Article 212 of the Constitution.
(ii) That the petition is bad for non-joinder of the Government of Pakistan's Establishment Division framed the Rules as to the promotion of the Railway's Employees.
(iii) That the petition has become defective because of the retirement of petitioner No. l and respondents Nos. 4, 5, 6, 9, 13, 15 and 34.
On merits his submission was that the Act is applicable to professional Engineers and not to the persons working in the various Departments of the Government.
8. We may take up first the question, whether the above petition is barred by Article 212 of the Constitution. In support of his above submission, Mr. Fazal e-Hussain has referred to the following un-reported orders passed by the learned Single Judges of the Lahore High Court:--
S.No.
Write Petition No. & parties.
Date of order.
Name of learned Judge
(1)
W.P.No.5409/84
3o-3-1985
A.S. Salam, J.
(2)
W.P.No.400/85
30-3-1985
A.S. Salam, J.
(3)
W.P.No.220/84
5-7-1984
Aklitar Hassan, J.
(4)
W.P.No.2012/87
21-6-1987
Falak Sher, J.
9. The above first petition was filed by the Diploma-holders in engineering on the ground that they were not considered for promotion alongwith Degree-holders in engineering. The above petition was dismissed in limine by A.S. Salam, J. (as his Lordship then was) and inter alia, it was observed that Article 212 of the Constitution barred the petition.. .
In the second petition the seniority list prepared in pursuance of an undertaking given by the Railways in earlier petition namely W.P. No.2881/1984 was impugned. The petition was dismissed in limine by A.S. Salam, J. inter alia, on the ground that if the petitioners had any grievance, they could file an appeal before the Service Tribunal.
The third petition related to the employees of C.DA. The petitioners were the Graduates in Engineering and their grievance was that the respondents, who were Diploma-holders in engineering were promoted to B.S: 18. The petition was dismissed in limine by Akhtar Hassan, J. on the ground that the remedy of such grievance might not be a writ outright, but other avenues had first to be exhausted.
The fourth petition was filed by the Diploma-holders in engineering working in the Railways. Their grievance was that the policy of promotion framed by the Ministry of Railways, Government of Pakistan contained in Ministry's letter dated 2-3-1987 stipulated that no promotion to be made in the posts of B.S.-18 of the Diploma-holders. The petition was dismissed in limine on merits by Falak Sher,J.
10. On the other hand M/s. Khalid Anwar and Naseem Farooqi have placed on record an unreported order dated 18-12-1988 passed by Irshad Hassan Khan, J. of Lahore High Court: in Writ Petition No.4951/1988. The above petition was filed by the petitioners working in the Railways, who were holding Engineering Degree against the Diploma-holders. The learned Single Judge, while disposing of application for stay, inter-alia, observed that the grievance of the petitioners is in the nature of quo warranto, which the Court can entertain notwithstanding the bar contained in Article 212 of the Constitution. An inter-locutory injunction was also granted restraining the official respondents from promoting any Diploma- holder against the posts involving the professional engineering work contrary to the provisions of the Act.
11. In my view, the question whether a Constitutional petition filed by a civil servant is barred by Article 212 of the Constitution, will depend on the facts of each case. If the controversy in the petition relates to the Terms and conditions of persons, who are or have been in the service of Pakistan or, if it relates to disciplinary matters of such persons, the petition would be barred by Article 212, but if the controversy/dispute does not touch upon the terms and conditions or disciplinary matters of present or past civil servant, a writ petition may be competent. If the petitioners case is founded on the ground that the private respondents have been assigned some work or their names are being considered for promotion in violation of the terms of their service, the petition would be barred, but if they solely rely on the provisions of the Act, their petition may not be barred.
12. Mr. Fazal-e-Hussain, learned counsel for respondents Nos. l and 2 has referred to the following cases in order to support his above objection:-
(i) M. Yamin Qureshi v. Islamic Republic of Pakistan and another (P L D 1980 SC 22),
(ii) Abdul Bari v. Government of Pakistan and 2 others (P L D 1981 Kar.290),
(iii) Dr. Abdus Sattar, Babar v. Pakistan, through Secretary Establishment Division, and another (1984 S C M R 1173),
(iv) Muhammad Sadiq Khokhar v. Engineer-in-Chief Pakistan Army, G.H.Q and another (1985 S C M R 63),
(v) Muhammad Ali Khan v. Pakistan and another (P L D 1986 SC 349),
(vi) Muhammad Aslam Khan v. Secretary, Ministry of Defence and others (1986 S C M R 283)
(vii) Ch. Nazar Muhammad and another v. Government of Punjab and 38 others (1986 S C M R 68),
(viii) Muhammad Umar Malik and others v. Federal Service Tribunal and others (P L D 1987 SC 172),
(ix) Ch. Muhammad Insha Ullah and others v. Chief Conservator of Forests (P&E) Punjab and others (P L D 1988 SC 155)
13. It is not necessary to deal with the above cited cases in detail. It will suffice to observe, that the consistent view of the superior Courts has been that a matter or dispute in relation to a civil servant which is covered by Article 212 (1) (a), should be agitated before the Service Tribunal which is more appropriate forum for examining the various Service Rules and the official memorandums etc. than a High Court in exercise of constitutional jurisdiction.
14. In the instant case, in my view, it is not necessary to examine whether any of the above quoted reliefs prayed for by the petitioners is barred by Article 212, as 1 am inclined to hold that the provisions of the Act are not applicable to the persons employed to the Government departments as the Act was enacted to regulate the working of the professional engineers as is evident from the various provisions of the Act. At this juncture, it will be pertinent to refer to the various provisions of the Act. The preamble of the Act provides that it is expedient to make the provisions for regulation of the engineering profession and for that purpose to constitute an Engineering Council. It may be pointed out that section 1 of the Act provides the name of the Act and also provides that it will extend to whole of Pakistan and shall come into force at once.
15. It may further be pointed out that section 2 contains definitions of the various terms. Clause (c) of section 2 defines the term `consulting engineer' as means `an engineer or body of engineers registered as such;' whereas clause (d) gives the definition of word `Council' as means `the Pakistan Engineering Council constituted under section 3.' It may further be noticed that clause (e) defines `engineering institution' as means `an institution within or without Pakistan which grants degrees in engineering and is recognised as such by the Council.' It may further be pointed out that clause (f) gives the definition of words `engineering public organisation' as means `a Department of the Federal Government or a Provincial Government, a public Corporation, autonomous or semi-autonomous body, cantonment board, municipality, improvement trust or other local authority. It may also be noticed that clause (j) defines `professional engineer' as means `a person who holds a recognised engineering qualification and is registered as a professional engineer.' It may further be noticed that clause (k) of section 2 provides that `professional engineering work' means `the giving of professional advice and opinions, the making of measurements and layouts, the preparation of reports, computations, designs, drawings, plans and specifications and the construction, inspection and supervision of engineering works in respect of the items specified in sub-clauses (i) to (vii).
16. It may further be noticed that clause (1) defines `recognised engineering' qualification' as, cans `any of the qualifications included in the First Schedule or the Second Schedule'. It may also be noticed that clause (m) gives the definition of word `Register' as means `a register maintained under section 16.' It may also be pointed out that section 3 relates to `constitution and incorporation of Engineering Council'. It provides that `there shall be constituted in accordance with the provisions of this Act an Engineering Council to be known as the Pakistan Engineering Council,' which shall be a body corporate having perpetual succession and a common seal, with power to acquire and hold property, both movable and immovable and to contract and shall by the name by which it is known sue and be sued. It also provides the composition of the Council by providing that the Council shall be composed of all persons whose names may hereafter be entered in the Register so long as they continue to have their names borne on the Register. It also provides the appointment of a Chairman, ten members, being engineers, of whom two each shall have to be nominated by the Federal or Provincial Government, one member being an engineer to be nominated by each University.
17. Section 4 deals with the election of the Chairman and Vice-Chairman, whereas section 5 provides the holding of annual general meeting of the Council. Section 6 deals with extraordinary general meeting of the Council. It may also be pointed that section 7 deals with the procedure of the general and extraordinary meetings. It may also be noticed that section 8 deals with the functions of the Council, which inter-alia, includes maintenance of a Register of persons qualified to practise as professional engineers and consulting engineers, recognition of engineering qualifications- for the purpose of registration of professional engineers and consulting engineers, removal of names from the Register and restoration to the Register of names which have been removed, laying down of standards of conduct for the members safe-guarding the interest of the members, promotion of reform of engineering profession, management of funds and properties of the council, promotion of engineering education and review of courses of studies in consultation with the Universities, levy and collection of fees from applicants for registration or temporary licences and members, exercise of such disciplinary powers over the members and servants of the Council as may be prescribed, formation of such committees as may be prescribed and performance of all other functions connected with, or ancillary or incidental to the aforesaid functions.
18. It may be pointed out that section 9 deals with the constitution of an Executive Committee and its functions, whereas section 10 provides for recognition of engineering qualifications granted by institutions in Pakistan. Whereas section 11 deals with the recognition of foreign engineering qualifications. It may also be noticed that section 12 provides for grant of temporary licences, whereas section 13 empowers the Council to require information as to the courses of studies and examination from every engineering institution in Pakistan which grants a recognised engineering qualification. It may also be pointed out that section 14 empowers the council to appoint such number of inspectors as it may deem requisite to attend at any or all of the examinations held by the engineering institutions in Pakistan. Whereas Section 15 deals with the withdrawal of recognition. It may also be pointed out that section 16 provides the maintenance of Register in prescribed manner containing the names and other particulars of persons possessing recognised engineering qualifications, whose applications for registration as professional engineers and consulting engineers are from time to time granted by the Council.
19. It may further be noticed that section 17 deals with the registration and removal of names from the Register. Subsection (2) of it provides that the enrolment committee in its discretion may refuse to permit the registration of any person or direct the removal altogether or for a specified period from the Register of the name of any registered professional engineer or consulting engineer, who or which has been convicted of any such offence as implies in the opinion of the committee a defect of character or 'who or which, after an inquiry at which opportunity has been given to such person to be heard in person or through an Advocate, has been held by the committee as guilty of infamous conduct in any professional respect or who or which has shown himself or itself to be unfit to continue in practice on any ground including, in the case of a professional engineer, mental ill-health.
19-A. Section 8 provides right of appeal to the professional engineers or consulting engineers, whose names are removed under section 17. It may also be pointed out that section 19 provides the revision of Register from time to time for the reasons stated therein.
20. It may also be pertinent to refer to section 20 which provides lodging of a complaint against a professional engineer, whereas section 21 contemplates constitution of Tribunal for holding inquiry into the professional misconduct of professional engineers and consulting engineers. It may also be pointed out that section 22 lays down the procedure of inquiry.
21. It may be pertinent to refer to subsection (6) of section 22 which provides that "in any case in which it has recommended the imposition of any penalty on, or the prosecution of, the respondent, the Tribunal may also recommend that an amount not exceeding twice the amount of the fee received by the respondent from the complainant may be recovered from the respondent and paid to the complainant as compensation".
22. It may also be pointed out that section 23 vests in the Tribunal the power of Civil Court under the Code of Civil Procedure for the purposes mentioned therein and also provides that every inquiry shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228, P.P.C. and the Tribunal shall be deemed to be a Criminal Court for the purpose of sections 480 and 482 of the Code of Criminal Procedure, 1898. It also empowers the Tribunal to send to any Civil Court in the place where the Tribunal is sitting any summons or other process for service.
23. It may further be noticed that section 24 deals with the funds of the council, accounts and audit, whereas section 25 empowers the executive committee, with the previous sanction of the Federal Government to frame bye laws for carrying out the purposes of the Act.
24. It may be pertinent to reproduce section 27 of the Act which reads as follows:-
"27. Penalties and procedure.--(1) After such date as the Federal Government may, after consultation 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.
(2) After the date appointed as aforesaid, whoever employs for any professional engineering work any person whose name is not for the time being borne on the Register shall be punishable, on first conviction, with imprisonment for a term which may extend to six months, or with fine which may extend to five thousand rupees, or with both, and on a second or subsequent conviction, with imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both.
(3) whoever wilfully procures or attempts to procure himself or itself to be registered under this Act as a professional engineer or consulting engineer by making or producing or…
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