1996 PLP (C (PLC(CS))

4. We invited the attention of the learned Deputy Attorney‑General to the above portion of the aforesaid letter. He, after obtaining instructions from Mr. Bashir Ahmed Sheikh, Registrar of the Pakistan Engineering Council, stated that the words The Council has approved B. Tech. (lions) as equivalent to B.Sc. Engineering" should be read as "The Government has approved B. Tech. (lions) as equivalent to B.Sc. Engineering". According to him, this was a typographical error and the word "Council" has been used in place of the word Government". We asked the Registrar of the Pakistan Engineering Council to produce any document to indicate that the above alleged typographical error was corrected. For that purpose, we adjourned the case till after tea break. The learned Deputy Attorney‑General produced Letter No. PEC/QEC/4‑P, dated 24‑4‑1984 of the Registrar, Pakistan Engineering Council addressed to the Director‑General (Investigation‑Ice, Wafaqi Mohtasib (Ombudsman)'s Secretariat, Islamabad, wherein the following averment has been made:‑‑ "We are extremely sorry to say that a small typographical error in writing the word `Council' in place of `Government' in the 5th para. of our letter dated 30‑4‑1981 has caused misunderstanding. It is confirmed that the course of B. Tech. (lions.) has never been approved by the Pakistan Engineering Council. It was originally approved by the Government in 1973."

5. However, we are not impressed by the above explanation. A perusal of the above quoted para. of the Pakistan Engineering Council's letter dated 30‑4‑1981 indicates that the words "The Council" which are used as the first two words of the aforesaid para. could not have been written on account of typographical error as in the fifth line of the above para, it has been stated that "The Council has also equated AMIL Examination equivalent to B.Sc. Engineering". The use of the word "also" in the above referred subsequent portion of the above quoted para. leads to the conclusion that the words "The Council" in the beginning of above para. could not have been used on account of typographical error. It is, therefore, evident that initially the Pakistan Engineering Council had approved to treat B. Tech. (Honours) equivalent to B.Sc. Engineering. However, subsequently it changed its stand. It appears that the University of Engineering and Technology, Lahore, through its Registrar's letter dated 15‑10‑1980 addressed to the Secretary Education, Government of Punjab, Lahore, intimated to the latter that the Equivalence Committee on the basis of the opinion contained in the working paper and after discussing the entire issue with the complete background, recommended that B. Tech. (Honours) Degree in particular specialisation may be equated with that of corresponding B.Sc. Engineering Degree with the above University for the job purposes as Field Engineers.

6. 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 equivalization 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 Organisations from a particular lower grade to a particular higher trade or is it within the domain of the Government or the semi‑Government Organisation concerned. At this juncture, it may be pertinent to refer to a judgment of the High Court of Sindh in the case of Muhammad Azim Jamali and 11 others v. Government of Pakistan, through Secretary/Chairman, Ministry of Railways and 33 others 1992 PLC (C.S.) 637, in which the facts were that the petitioners, who were 12 in number, were holding post of Assistant Executive Engineers (Grade‑17) in Pakistan Railways, hereinafter referred to as the Railways. Respondents Nos. 4 to 10 were holding posts as Executive/Divisional Engineers (Grade‑18), whereas respondents Nos. 11 to 34 were holding posts of Assistant Executive Engineers (Grade‑17) in the Railways and were claiming promotion to the posts of Executive/Divisional Engineers (Grade‑18). The petitioners filed a Constitution petition, in which they averred that respondents Nos. 4 to 34, who had diplomas from various institutions, were not professional Engineers in terms of clause (j) of section 2 of the Pakistan Engineering Council Act, 1975, hereinafter referred to as the Act, and, therefore, were not entitled to undertake any professional engineering work as defined in clause (k) of section 2 of the Act. It was further averred that in spite of the efforts on the part of the petitioners, the Government of Pakistan, the Chairman, Railways Board and the General Manager, Pakistan Railways, Lahore (who were arrayed as respondents Nos. 1, 2 and 3 respectively) and despite of the directive of respondent No. 1, respondents Nos.4 to 34 continued to hold the office of professional engineers in violation of the provisions of ‑the Act. On the basis of above averments, a number of declarations and directives were sought. The matter was heard by a Division Bench of the Sindh High Court. One of us, Ajmal Mian, J. (who was a member of the above Bench) after referring all the relevant provisions of the Act, came to the following conclusion:‑‑ "

30. Having referred to the various provisions of the Act, the question, which requires consideration is, as to whether the provisions of the Act are applicable only to professional Engineers and professional consultants, who are in practice or do they also apply to the persons working in the Government Departments, autonomous bodies, local authorities and private firms and companies or employed by the private persons as paid employees etc. I am inclined to hold that the provisions of the Act are applicable only to the professional Engineers and consulting Engineers, who are in practice. My reasons for holding so inter alia are as follows:‑‑ (i) That though preamble to an Act does not control the provisions of the Act, but reference can be made to it to ascertain the legislative intendment in case of any doubt/ambiguity. In the instant case the object of the Act given in the preamble is `to make provision for regulation of engineering profession'. (ii) That the definition of `professional Engineer' as given in clause (g) of section 2 of the Act provides two preconditions, namely, (a) the person should hold a recognised engineering qualification, and (b) he should be registered as a professional engineer with the Council. The word engineer is prefixed by the word professional, which has a definite connotation and is used when a person is in practice of a particular profession. (iii) The terms `professional engineering work' as defined in clause (k) of section 2 of the Act refers to the services/works which are normally rendered by a professional engineer, who, is in practice, namely, giving of professional advice and opinions. The other services/works mentioned after the above two services/works are to be read in conjunction with them, otherwise it would lead to absurdity. 1 may give an illustration. Suppose A for his private residential building employs B a diploma‑holder in engineering to take weekly measurements of the work executed. The work, measurements and the residential building both have been mentioned in the above clause (k). If we were to read the words professional advice and opinion disconjunctively with the ‑`word measurement' it must follow that A and B have rendered themselves liable to be prosecuted under subsections (1) and (2) of section 27 of the Act referred to hereinabove, which could not have been the intention of the law maker. (iv) That section 8 of the Act, which defines the functions of the Council inter alia provides for the maintenance of a Register in terms of section 16 of the Act `of persons qualified to practice as professional engineers and professional consultants and not persons in service'. (v) That section 12 of the Act empowers the Executive Committee to grant to any person domiciled outside Pakistan, who does not hold any recognized engineering qualification but, who holds a diploma in engineering, or a degree in applied sciences or an equivalent diploma from the institution recognized by the Council etc. a temporary licence for a specific project to work as an associate of a professional engineer, but the latter will have to sign and seal the plans and specifications for the project. (vi) That section 16 provides for the maintenance of a register and for enrolment of professional engineers and professional consultants, whereas section 17 of the Act provides for removal of the name of a professional engineer or professional consultant and de‑enrollment. It may be observed that subsection (2) of section 17 of the Act empowers the Enrolment Committee in its discretion to refuse to permit the registration of any person to direct the removal altogether or for a specified period from the register the name of any registered professional engineer or consulting engineer, who or which has been convicted for any such offence as implies in the opinion of the‑ Committee a defect of character or who or which after an enquiry and of hearing 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. (vii) That section 20 of the Act provides for lodging of a complaint against any professional engineer or consulting engineer, whereas section 21 contemplates constitution of Tribunals of Inquiry for inquiring into such complaints. Furthermore, subsection (6) of section 22 provides that in any case in which it (i.e. the Tribunal) 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 recovered by the respondent from the complainant may be recovered from the respondent and be paid to the complainant as compensation. (viii) That subsection (5) of section 27 of the Act provides that no person undertaking any professional engineering work, shall, unless he is registered under the Act, be entitled to recover before any Court or authority any sum of money for services rendered in such work." However, a contrary view was taken by Qaiser Ahmad Hamidi, J. as under:‑‑ "

6. According to Pakistan Engineering Council Act, 1975, only registered professional and consulting engineers are authorised to undertake professional engineering works. The copy of letter sent by Chairman Pakistan Engineering Council to Government of Punjab dated 2‑6‑1977 further makes it clear that the Federal Government had announced 30th June, 1977, to be the last date by which all professional and consulting engineers shall get themselves registered with the Pakistan Engineering Council. It appears that due to pressure of diploma‑holders who are not registered professional engineers, there has been flagrant violation for the provisions of the Act. Even in relating to the posts of Assistant Executive Engineers (BPS‑17) regarding which a decision was taken by the Government that diploma holders could be appointed against such posts, the same lacks the warrant of law and is the nature of concession granted to unqualified persons. The appointment of the diploma‑holders against senior posts of Pakistan Railways in disregard of the provisions of the Act, is, therefore, illegal on the face of it. It may be noted that the responsibilities of the engineers in Pakistan Railways are more onerous. They relate to proper functioning of the railways and the construction, design, supervision and maintenance of engineering works which affect the safety of public at large." The matter was referred to a third learned Judge and was heard by Saiduzzaman Siddiqui, C.J. (as he then was), who concluded as under:‑‑ "

7. 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, CJ, (as he then was) in his judgment compared the provisions of the Act with the provisions of Legal Practitioners' Act and observed that the provisions of the Legal Practitioners' Act are applicable only to the practising Advocates and are not extended to persons having legal qualification who are employed in Statutory Corporations, and other departments though they may be tendering legal advices in course of their such employment. The observations of Ajmal Mian, CJ., appear to be in accord with the objects of the Act. I am, therefore, of the view that merely because a person possesses an engineering qualification and is employed on a job which requires engineering skill does not mean that he must be registered under the Act."

7. The above matter came up before this Court through appeals with the leave of this Court, which were inter cilia filed by the Pakistan Engineering Council. The same were dismissed and the above majority view of the High Court of Sindh was maintained.

8. However, Raja Muhammad Bashir, learned Deputy Attorney‑ General, has submitted that the following portion of the judgment of this Court in the case of 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) supports the plea of the respondents:‑‑ "

18. We on the other hand after hearing Mr. Abid Hassan Minto, learned Advocate for the appellant at considerable length consider that this is not a correct interpretation of the judgment of the High Court. The High Court has clearly stated that the provisions of the Act were wide enough to include cases of those persons engaged in professional engineering works whether employed in any private or Governmental organisation, if they are called upon to undertake any professional engineering work, as defined under the Act. In fact in the connected case CA. No. 31 of 1992 a Committee of Secretaries constituted by the Punjab Government correctly summed up the true position obtaining in the Ad as follows:‑ `The Committee was of the view that the Government could appoint a non‑graduate engineer to a post in any grade but if the post involved performance of professional engineering work such appointment would attract penalties prescribed in the Act.' The finding of the Referee Judge in this case is to the same effect and in our opinion this fording is quite correct."

9. In this regard, we may point out that it is the domain of the Government concerned to decide whether a particular academic qualification of a civil servant/employee is sufficient for promotion from one Grade to another higher Grade and whereas it is in the domain of the Pakistan Engineering Council to decide, as to whether a particular academic qualification can be equated with another academic qualification, but it has no power to say that the civil servants/employees holding particular academic qualifications cannot be promoted from a particular Grade to a higher Grade. The main object of the Act as pointed out by one of us (Ajmal Mian, J.) and Saiduzzaman Siddiqui, CJ. (as he then was) in the above High Court judgment is to regulate the working of professional engineers and consulting engineers and not to regulate the qualifications or the working of the engineers in the Government or semi‑Government departments. The definitions of the terms "professional engineer" and "professional engineering work" given in clauses (j) and (k) of section 2 of the Act are to be read together and, therefore, as a corollary to the same, it must follow that the term ""professional engineering work" as defined in clause (k) of section 2 of the Act is to be performed by a professional engineer as defined in clause (j) thereof, which is evident from section 8 of the Act, which defines the functions of the Pakistan Engineering Council as under:‑‑ "

8. Functions of the Council.‑‑‑The following shall be the functions of the Council, namely:‑‑ (a) maintenance of a Register of persons qualified to practise as professional engineers and consulting engineers; (b) recognition of engineering qualifications for the purpose of registration of professional engineers and consulting engineers: (c) removal of names from the Register and restoration to the Register of names which have been removed; (d) laying down of standards of conduct for the members; (e) safeguarding the interests of the members; (f) promotion of reforms in the engineering profession; (g) management of the funds and properties of the Council; (h) promotion of engineering education and review of courses of studies in consultation with the Universities; (i) levy and collection of fees from applicants for ' registration or temporary licences and members; (j) exercise of such disciplinary powers over the members and servants of the Council as may be prescribed; (k) formation of such committees as may be prescribed; and (l) performance of all other functions connected with, or ancillary or incidental to, the aforesaid functions." A perusal of the above quoted section shows that the Pakistan Engineering Council is vested with the functions to regulate the persons qualified to practice as professional engineers and consulting engineers and not persons who are employed in the Government or semi‑Government Organisations. If the Government employees a professional engineer as defined in the Act for performing professional engineering work as envisaged by the Act in above clause (k) of section 2, the provisions of the Act would be attracted and not otherwise.

10. Reverting to the merits of the present case, as pointed out hereinabove, that the petitioner pursuant to the above decision of the Government of Pakistan dated 26‑10‑1973 passed his B. Tech. (Pass) in 1977 and B., Tech. (Honours) in March, 1981, from the N.E.D. University, Karachi, and, therefore, acted upon the above representation of the Government. In this view of the matter, it is not just and fair not to consider the petitioner for promotion to BPS‑17 keeping in view the admitted fact that a number of other civil servants/employees in the same department in the same position have been promoted by the departments/organisations concerned. In this behalf, it may be pertinent to refer to the case of Mukhtar Ahmad and 37 others v. Government of West Pakistan through the Secretary, Food and Agriculture, Civil Secretariat, Lahore and another (PLD 1971 SC 846). The facts of the above case were that the persons possessing the qualifications mentioned in Rule 7 of the West Pakistan Agricultural Engineering Service (Class II) Rules, 1963, were not available. The Government launched a scheme for training of Assistant Agricultural Engineers, whereunder 46 Graduates in B.Sc. Agriculture were to be selected for appointment as Assistant Agricultural Engineers after their successful completion of two years diploma courses at an Agricultural University. The above scheme was discussed by the Government with the Public Service Commission. The candidates selected by the Public Service Commission, who were about to complete their training of two years, were informed by the Government that they would have to appear again before the Public Service Commission to be selected for appointment to the posts of Assistant Agricultural Engineers (Class II). The candidates asserted that after the completion of their training they were entitled to be appointed as Assistant Agricultural Engineers (Class II) in terms of the offer made to them and they could not be required to appear again before the Public Service Commission for such appointment. On the other hand, the Government contended that the candidates did not possess the qualification prescribed by rule 7 of the West Pakistan Agricultural Engineering Service (Class II) Rules, 1963, for appointment to such posts. The matter came up for hearing before this Court in the form of an appeal with the leave of this Court filed by the candidates against the judgment of a Division Bench of the erstwhile High Court of West Pakistan. The same was allowed and inter alia the following was concluded:‑‑ "The offer of the Government and its acceptance by the appellants constituted a valid agreement and the Governor's order, dated the 1st July, 1965 provided the authority for such an agreement. This agreement is capable of being enforced in law. The Government was both competent and obliged to implement that agreement. When the Governor's order, dated the 1st July, 1965, provided a special authority for recruitment to the 46 posts of Assistant Agricultural Engineers, rule 7 of the Recruitment Rules was not applicable in this case."

11. The above case supports the petitioner's stand. Another aspect which escaped notice of this Court in the judgment under review is that some of the other civil servants/employees placed in the same position as the petitioner was had been considered for promotion to BPS‑17 and in fact were promoted, whereas the petitioner was denied the above benefit which amounted to violation of inter alia Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973. In this regard, reference may be made to the case of IA. Sherwani and others v. Government of Pakistan through Secretary, Finance, Division, Islamabad and others (1991 SCMR 1041).

12. The judgment of this Court in the case of Muhammad Siddique Nasin) (supra) relied upon by the Tribunal is distinguishable for more than or.; reason, firstly, in the above case the notification of the Government of Punjab, dated 8‑2‑1961 equivalising B. Tech. (Honours) with B.Sc. Engineering degree was withdrawn on 15‑3‑1985, whereas the petitioner received degree of B Tech. (Honours) in June, 1985, i.e. after the withdrawal of the notification, whereas in the present case, admittedly the petitioner passed his B. Tech (Honours) in March, 1981, before the Pakistan Engineering Council through its Registrar's above letter dated 24‑4‑1984 stated that there was, typographical error in the above quoted portion of its Registrar's letter dated 30‑4‑1981. Secondly, in the judgment in the case of Pakistan Diploma Engineers Federation (Registered) through its Chairman (supra), this Court affirmed the majority ~7ew of the High Court of Sindh in the case of Muhammad Azim Jamali (supra), in which it has been held that the provisions of the Act are applicable only to professional engineers and consulting engineers who are in practice and not to the persons working in the Government Departments, autonomous bodies, local authorities and private firms or companies.

13. We may again observe that it is exclusively within the domain of the Government to decide whether a particular qualification will be considered sufficient for promotion from a particular Grade to a higher Grade and it is also within the domain of the Government to change the above policy from time to time as nobody can claim any vested right in the policy. However, it cannot abdicate its power to decide the above question in favour of a corporate body which is not in its control nor it can act in a manner which may be violative of Article 25 of the Constitution on account of being discriminatory. It is still open to the Government for future to provide that academic qualification of B. Tech. (Honours) will not be considered sufficient for promotion from BPS‑16 to BPS‑17 if the same does not violate the above principle.

14. The upshot of the above discussion is that the judgment under review is liable to be recalled as it proceeded on wrong premises. We would, therefore, allow the above Suo Motu Review Petition and recall the above judgment. In consequence thereof, petitioner's Civil Appeal No. 216 of 1991 is allowed and the judgment of the Tribunal is set aside and the respondents are directed to consider the petitioner's case for promotion to BPS‑

17. AA./F‑368/S Review allowed.