1983 PLP 453 (SCMR)

The facts which form the background are that the Pakistan Engineering Council Act, 1976 (Act V of 1976) was enacted on 14‑1‑1976. In section 2 (i) a "professional engineer" was defined to mean "a person who holds a recognised engineering qualification and is registered as a professional engineer". Accordingly, the registration of a recognised engineer was provided for in the Act and a roll was to be maintained by the Engineering Council for this purpose. The Engineering Council under the provisions of this Act also took a decision that only B. Sc. Agriculture Engineers from Agriculture University, Faisalabad would be recognised as professional engineers. The implication of this decision was that a person holding diploma in Agriculture Engineering could not be enrolled as professional engineers. Respondents Nos. 1 to 6, who were already in service as Assistant Agriculture Engineers but were Diploma‑holders only in Agriculture Engineering thus become debarred from being enrolled as professional engineers. Under the West Pakistan Agriculture Service (Class I) Rules, 1965, which, inter alia made provision for promotion of members in the service, promotion to Agriculture Engineers (Grade‑18) from the post of Assistant Agriculture Engineers (Grade 17) was possible on the basis of seniority‑unfitness and the respondents 1 to 6 could, therefore, under the said Rules, be promoted as Agriculture Engineers in due course. However, after the enact ment of Act V of 1976, the Punjab Agricultural Department, in order to make the Service Rules consistent with the new law, issued a notification on 28‑7‑1978 amending the Rules of 1965 so as to provide that promotion to the rank of Agriculture Engineers from among the Assistant Agriculture Engineers would be confined only to those who held the qualifications of B. Sc. in Agricultural Engineering from a recongnised University. Dismayed by this notification, Respondents Nos. 1 to 6 made represen tations seeking exemption from the rigour of this amendment and their cause was also supported by the Punjab Government. The Engineering Council constituted a Sub‑Committee called the "Qualification Equivalence Com mittee", which very reasonably recommended that the officers, such as the respondents, may be exempted from the operation of the amended, rule for three years, within which time the erstwhile unqualified Engineers could improve their qualifications. Unfortunately, the Executive Committee of the Engineering Council did not accept this recommendation, which appears to have been a fair solution in the situation created by the enactment of the new Act in 1976 and the amendment made of the Rules of 1965 in July, 1978. Efforts were made for securing modification of the above decision of the Executive Committee, but it finally decided to stick to its earlier decision in its meeting held on 29/30‑5‑1981. The respondents Nos. 1 to 6, having thus become debarred from being considered for promotion to the posts of Agriculture Engineers, therefore, filed an appeal before the Punjab Service Tribunal. where they challenged the notification dated 28‑7‑1978, by which the West Pakistan Agriculture Service (Class I) Rules, 1965, was amended; and they were made ineligible for the posts of the Agriculture Engineers. The Punjab Service Tribunal has, in its impugned judgment decried the unreasonableness of the Engineering Council in refusing to allow time to the respondents to improve their qualifications and the injustice done to them in changing the terms and conditions of their service in the course of service career and proceeded to accept the appeal, set aside the amendment made in the Rules on 28‑7‑1977 and directed that the case of the respondents be considered for promotion on the basis of seniority‑cum‑fitness as laid down is the West Pakistan Agriculture Service (Class I) Rules, 1965. According to the petitioners herein they have been directly affected by the judgment of the Punjab Service Tribunal because under the Rules, as amended, they were entitled to promotion. Hence, even though not made a party to the appeal before the Punjab Service Tribunal, they are entitled to challenge it. Hence, this petition for leave to appeal. Since the petitioners have been adversely affected by the judgment of the Punjab Service Tribunal we consider that they are entitled to file this petition for leave to appeal, even though not impleaded as a party before the Service Tribunal. See Malik Feroze Khan Noon v. The State (P L D 1958 S C 333) and H. M. Saya & Co. Karachi v: Wazir Ali Industries Ltd., Karachi and another (P L D 1969 S C 65). The petition for leave to appeal filed on behalf of the aforesaid two petitioners is accordingly, entertained. A large number of contentions have been raised by the learned counsel for the petitioners, inter alia:‑ (i) That under section 4 of the Punjab Service Tribunal Act, only a final order made by the departmental authority in respect of terms and conditions of the service of a Government servant can be challenged in appeal before the Service Tribunal. In this case, there was no such order by a departmental authority and even the order impugned, namely the notification of 28‑7‑1978, whereby the Rules of 1965 were amended having been issued in 1978, could not be challenged in 1981 because the period of limitation for challenging, even an order of a departmental authority, is only 30 days ; (ii) That the Service Tribunal, in this case, has in effect set aside the decision of the Executive Committee. However, it is not competent to adjudicate upon and bypass a decision of the Executive Committee of the Pakistan Engineering Council; (iii) That moreover the decision of the Pakistan Engineering Council has been set aside without impleading it as a party, which was illegal. (iv) That the petitioners were also necessary parties. These contentions raise questions of law of general public importance. Leave is, accordingly, granted. The interim order passed on 28‑7‑1982 shall continue until final disposal of the appeal, which shall be made ready on the present record with liberty to the parties to add further documents and the appeal shall be put up for hearing within six months. S. Q. Appeal dismissed.