2024 PLP (C (PLC(CS))

SHAMS MEHMOOD MIRZA, J.

This order shall decide the present writ petition as well as connected Writ Petition No.55205 of 2011 as both the petitions call into question the vires of Notification No.SOR-III(S&GAD)1-11/2020(A) dated 04.09.2021 (impugned notification).

2. For the purposes of this order only the facts of the present case shall be stated.

3. The petitioners are working as Sub-Divisional Officers in the respondent department having the qualification of professional/ registered Engineers obtained from accredited Universities/ Institutes of Pakistan. The petitioners expect to be promoted to the next higher post of Executive Engineer under their channel of promotion. The impugned notification made amendments in the Punjab Communication and Works Department (Engineering Posts Qualifications and Conditions Recruitment) Rules, 1985 (the Rules) such that 5% quota to the post of Executive Engineer was reserved for Assistant Engineers/Sub-Divisional Officers/Assistant Directors (BS-17) who, inter alia, hold B.Tech (Hons) or BS Engineering Technology from University recognized by the Higher Education Commission. The impugned notification thus had the effect of diluting the 100% seats reserved for the petitioners under the Rules. 3.(sic) Learned counsel submits that the impugned notification offends the law laid down in judgment reported as Moula Bux Shaikh and others v. Chief Minister Sindh and others 2018 SCMR 2098.

4. Report and parawise comments have been filed on behalf of respondent in which stances of the petitioners has been controverted. Learned Assistant Advocate General supports the impugned notification on the basis of the judgment rendered in the case of Moula Bux. It is stated that the post of Executive Engineer involves certain administrative functions which can be assigned to the employees holding B.Tech (Hons)/BS Engineering Technology in case of their promotion in terms of the impugned notification.

5. Learned counsel for Pakistan Engineering Council supported the stance of the petitioners.

6. The record reflects that a meeting of the Qualification Equivalence Determination Committee (QEDC) was held on 02.03.2016 under the Chairmanship of Special Secretary (C&W) Department regarding determination of the equivalence of the degree of B.Tech (Hons) to BS Engineering. The meeting was attended, amongst others, by the representatives of Pakistan Engineering Council and Punjab Public Service Commission. The minutes of the meeting disclosed that the representatives of Pakistan Engineering Council, Higher Education Commission and University of Engineering and Technology, Lahore took the position that the degree of B.Tech (Hons) is not similar to and cannot be equated with B.E./BSC Engineering degree as the courses and the contents of both the degrees are altogether different. The meeting unanimously held as follows:

10. At the end all the members agreed that B.Tech (Hons) degree holders are not engineers, they are technician. Furthermore an Executive Engineer in C&W Department is required to undertake professional engineering Work for which a qualified engineer is required. Since holders of B.Tech (Hons) are technicians therefore, cannot be entrusted professional engineering work. The Committee unanimously decided that the degree of B. Tech (Hons) is not equivalent to B.Sc. Engineering.

7. The Supreme Court in the case of Moula Bux made the following pertinent observations, which clinches the issue in favour of the petitioner:

21. The PEC Act as its preamble itself shows so also reading of the whole Act shows that it essentially deals with regulations of engineering profession in it, inter alia, it prescribes for qualification of professional engineers, maintenance of register of professional engineers and accrediting of engineering universities etc and not as a regulator of employment be that be of government service or in the private service. The reasons for it could be found that all sort of engineering work could not be and may not be a professional engineers are required. For example, technician, mechanic, draftsman, foreman, supervisor and overseer etc at best could be skilled Workman who may work independently or under the supervision of professional engineer and for such technician, mechanic, draftsman, foreman, supervisor and overseer/ the employer may not require holding of professional engineering degree. However, if the person is required to perform any of professional engineering work as defined under the PEC Act, the provisions of this Act will come into operation for ensuring as the work of professional engineer can and only be performed by professional engineer as recognized by PEC Act. The professional engineering work has been clearly defined under section 2(xxv) of the PEC Act which has already been reproduced above and lays down in sufficient details the works which are noted to be as professional engineering works and such works as mandatorily required by the PEC Act to be performed by a professional engineering possessing accredited engineering qualification for accredited engineering institutions in Pakistan and abroad with experience and passing of test of the Council and no other person is allowed to perform professional engineering works be that be a diploma holder or B. Tech. degree holder.

8. The learned Islamabad High Court in its judgment rendered on 29.09.2021 in Writ Petition No.1764 of 2021 titled Afnan Farid and others v. Federation of Pakistan and others while dealing with the similar issues held as follows:

13. The Federal Government is bound by provisions of the PEC Act to the extent of the terms and conditions of persons discharging professional engineering work as defined under section 2(xxv) of the PEC Act. What the Federal Government can certainly not do is declare that a post that involves discharging, performing or supervising professional engineering work is to be filled by someone who is not a professional engineer as defined under Section 2(xxiii) of the PEC Act subject to the condition that such non-engineer will not perform professional engineering work while serving against a post that requires performance of professional engineering work.

9. The above mentioned judgments and the meeting of the Qualification Equivalence Determination Committee clearly demonstrate that the post of Executive Engineer can only be filled up by persons who have a degree in Engineering in the requisite discipline from a recognized University and equivalent qualification and registered as a professional engineer with Pakistan Engineering Council. In the circumstances, the respondents have no authority to change the criteria for granting a right of promotion to persons who did not qualify the same in terms of the Pakistan Engineering Council Act, 1975.

10. The learned Assistant Advocate General referred to Paragraph No.20 of the judgment rendered in the case of Moula Bux to contend that the Government had the sole authority to determine the academic qualification of a civil servant for the purposes of his promotion to the higher grade. The observations made in paragraph No.20 of the judgment highlight the general principles whereas the ratio of the judgment is contained in paragraph No.21 of the judgment. In any event, in paragraph No.23 it was clearly stated that " ..the government shall not allow or permit any person to perform professional engineering work as defined in the PEC Act, who does not possess accredited engineering qualification from the accredited engineering institution and his name is not registered as a registered engineer or professional engineer under PEC Act." Learned Assistant Advocate General did not dispute that only a professional engineer having the requisite qualification could be promoted to the post of executive engineer. It was, however, his stance that the executive engineer also performs administrative function which can be undertaken by the employees having the qualification of B.Tech (Hons)/ BS Engineering Technology. The law laid down in the aforementioned judgments rendered by the Supreme Court and learned Islamabad High Court which held that the functions required to be performed by the Executive Engineer can only be discharged by the person who has the requisite qualification of the professional engineer and is licensed under the Pakistan Engineering Council Act, 1975 does not support the stance of the learned Assistant Advocate General. The objection regarding the jurisdiction of the Court to pass order on the subject matter agitated by the petitioner has adequately been answered by the learned Islamabad High Court in the aforementioned judgment and accordingly said objection is hereby repelled.

11. For what has been discussed above, this writ petition and the connected writ petition is allowed and impugned notification is set aside for being without lawful authority. MQ/A-6/L Petition allowed.