1992 PLP (C (PLC(CS))

C1. 26

Pakistan Engineering Council Act (V of 1976), Preamble

Difference of opinion of two Judges of High Court--Reference to third Judge

Referee Judge could only decide the point of difference referred to him and no other point

Difference of opinion among Judges of Division Bench had arisen on the point whether provisions of Pakistan Engineering Council Act, 1976, were applicable only to the "Professional Engineers" and "Consulting Engineers" or it would also apply to persons having engineering qualifications employed in Railways against a post which required engineering skill

Referee Judge apart from the question referred to him could not decide any other point which was either not raised before Judges of Division Bench or raised but not decided or a point on which difference of opinion did not exist between the Judges who decided the case.

Preamble

Applicability and scope

Main object of the Pakistan Engineering Council Act, 1976, would appear to be to keep control and regulate the working of persons who were either working as "Professional" or "Consulting Engineers" and to punish violations of the provisions of the Act in cases of employment on professional engineering works of such persons who were not registered as Professional Engineers with the Council

Pakistan Engineering Council Act, 1976 was designed to apply to Consulting Engineers, Professional Engineers and to the Professional Engineering Works.

Ss. 2(c) & 3

"Consulting Engineer", "Professional Engineer" and "Professional Engineering Works"

Connotation. A `Consulting Engineer' means an engineer or body of engineers registered as such. The `Professional Engineer' is defined as a person who holds an engineering qualification and is registered as a Professional Engineer. The `Professional Engineering Works' means the giving of professional advice and opinions, the making of measurements and lay outs, the preparation of reports, computations, designs, drawings, plans and specifications and the construction, inspection and supervision of engineering works, in respect of railways, aerodromes, bridges, tunnels and metalled roads, dams, canals, harbours, light houses, works of an electrical, mechanical, hydraulic, communication aeronautical power engineering, geological or mining character, water works, sewers, filtration, purification and incinerator works, residential and non-residential buildings, including foundations, framework and electrical and mechanical systems thereof, structures accessory to engineering works and intended to house them and any other work which the Council may, by notification in the official Gazette, declare to be an engineering work for the purposes of this clause. Before a person could practise as a `Professional Engineer' or as a `Consulting Engineer', he must be registered as such with the Engineering Council created under section 3 of the Pakistan Engineering Council Act, 1976. Expression "Professional Engineer" carries specific connotation in the Act, which means a person who is in the profession of engineering and practise as such for the purpose of tendering technical advice in respect of a work involving technical skill of engineering. A person who was not independently practising in the profession of engineering and was in the employment of the Government Department would not be covered by the definition of professional engineer so as to make him registrable under the provisions of the Act.

S. 27

Applicability and scope of S. 27 of Pakistan Engineering Council Act, 1976

Registration of "Professional Engineers" and "Consulting Engineers"

Persons serving as engineers with the respondent/Railways whether covered by the provision of S. 27, Pakistan Engineering Council Act, 1976

Penalties prescribed in provisions of S. 27, Pakistan Engineering Council Act, 1976, were attracted only against those persons who were not registered under provisions of the Act, but undertook any Professional Engineering Work as defined in the Act V of 1976

Employer who had employed any person who was not registered under the provisions of Pakistan Engineering Council Act 1976, on a professional engineering work was equally liable for punishment under the Act V of 1976

Provisions of Act V of 1976, regarding registration of Professional Engineer and Consulting Engineer would not be applicable to the persons serving as engineers with the Railways for in the course of their such employment they neither act as "professional engineers" nor as "Consulting Engineers"

Where such persons, however, undertook any professional engineering work as defined under Act V of 1976, then the provisions regarding registration under the Act would be attracted and they could also be punished in accordance with the provisions of S. 27, Pakistan Engineering Council Act 1976 for violating provisions of the Act. Petitioners who held B.E./B.Sc. (Civil Engineering) Degree from recognized institutions in Pakistan were "Professional Engineers". The respondents who were holding positions as Executive/Divisional/Assistant Executive Engineers in Pakistan Railways were only diploma-holders, and as such they were not Professional Engineers within the meanings of clause (j) of section 2 of the Act. According to Pakistan Engineering Council Act, 1976, only registered Professional and Consulting Engineers are authorised to undertake professional engineering works. The appointment of the diploma-holders against senior posts of Pakistan Railways in disregard of the provisions of the Act, was therefore, illegal on the face of it.

Arts. 199 & 212

Service Tribunals Act (LXX of 1973), S. 3

Civil Servants Act (LXXI of 1973), S. 3

Constitutional jurisdiction

Competency to invoke- Provision of S. 3, Civil Servants Act, 1973 postulate that terms and conditions of civil servants would be such as were provided in the Act and the rules made thereunder

Service Tribunal's jurisdiction was exclusive in such matters as per Art. 212 of the Constitution

Where, however, prayer made in the Constitutional petition showed that point in issue was beyond the scope of Authority of Service Tribunal constituted under S. 3, Service Tribunals Act. 1973, a declaration of the nature as prayed could only be granted in Constitutional jurisdiction.

S. 27

Constitution of Pakistan (1973), Art. 199

Petitioners being degree-?holder engineers and serving with department claimed that other respondents were not qualified engineers and being not Professional Engineers were not registered with Pakistan Engineering Council; and that entrustment of the work of professional engineering' to them or their promotion to higher grade was violative of the provisions of Pakistan Engineering Council Act, 1976. Provisions of the Pakistan Engineering Council Act, regarding registration of "Professional Engineer" and "Consulting Engineer" would not be applicable to the persons serving as engineers with the respondent department/Railways, for, in course of their such employment they neither acted as "Professional Engineer" nor as "Consulting Engineer"

Such persons, however, when undertook any professional engineering work as defined under Pakistan Engineering Council Act, 1976, then the provisions regarding registration under the Act would be attracted and they could also be punished in accordance with the provisions of S. 27, Pakistan Engineering Council Act, 1976, for violating the provisions of the Act

Petitioners' claim that the respondents were not entitled to hold specific grade posts founded on the provisions of the Act was misconceived

Petition was dismissed in circumstances. Respondent department was not competent to entrust to respondents the duties/responsibilities, which could only be discharged by Professional Engineers registered under the Pakistan Engineering Council Act, 1976.