P L D 1996 Supreme Court 182 (PLP)

AJMAL MLAN, J.‑‑‑ By this common judgment we intend to dispose of the above two appeals which *involve common point of law. In Civil Appeal No.590‑K of 1990, a detailed leave granting order was passed and leave was granted to consider the question, as to whether respondent No.2 was justified in not registering the appellants' professional engineering degrees under the Pakistan Engineering Council Ac4 1976 hereinafter referred to as the Act. Whereas in Civil Appeal No. 695‑K of 1990, leave to appeal was granted on the basis of the aforesaid leave granting order passed in Civil Appeal No. 590‑K of 1990.

2. The brief facts leading to the filing of Civil Appeal No. 590‑K of 1990 are that the. University of Sindh in academic year 1972‑73 introduced special curriculum, for obtaining M.Sc. (Communications) and M.Sc. (Electronics) degrees for those who had obtained Diplomas from Polytechnics and such other Institutions. It seems that prior to the establishment of respondent No1, namely, Pakistan Engineering Council under the Pakistan Engineering Council Ordinance, 1975 (Ordinance XV of 1975), which was converted into the Act, the appellants appeared in. the above new courses and passed the examinations. It is the case of the appellants that respondent No.1 approached respondent No..2 for the recognition of above degrees under the Act, which request was declined. ' Thereupon, inter alia present . four appellants filed Constitution Petition No.D‑1228 of'~'1'98~ in the High Court of Sindh, impleading respondents Nos'.1 and as such. However', the, above petition was dismissed through a judgment dated 5‑12‑1985. Whereas the facts of Civil Appeal No. 695‑K of 1990 are that the appellants, who were diploma holders; pursuant to the Government of Pakistan new Education Policy, which introduced: (i) B.Tech. (Pass); and (ii) B.Tech. (Honours). (which were to be treated as Bachelor Degree in Science and B.Sc. (Engineering)/B.E. degree, respectively), qualified the ' game. It is also their case that at their behest inter alia respondent No.1, Federation of Pakistan, approached respondent No.2 for registration of above B. Tech. (Honours) as professional engineering degree, which request was declined. Thereupon, they filed Constitution Petition No.D‑557 of 1985, which wag dismissed by a Division Bench of the High Court of Sindh through the judgment dated 12‑12‑1988, against which they filed a petition for leave to appeal, which was granted on the basis of aforesaid leave granting order passed in Civil Appeal No.590‑K of 1990.

3. Mr. M. Bilal, learned Sr. A.S.C. has appeared for the appellants, in Civil Appeal No. 590‑K of 1990 but nobody has appeared for the appellants in the aforesaid Civil Appeal No. 695‑K of 1990. Whereas Mr. Abid Hasan Minto, learned A.S.C., has appeared for respondent No.2, namely, Pakistan Engineering Council.

4. Since the above two appeals involve common question of law, we have decided the same on merits after hearing Mr. M. Bilal and Mr. Minto.

5. In support of Civil Appeal No.,S90‑K of 1990, it was vehemently urged by Mr. Bilal that as the University of Sindh is an Engineering Institution in terms of the First Schedule to the Act, the decision of Sindh University to treat the above degrees in M.Sc. (Communications) and M.Sc. (Electronics) as professional engineering degrees is binding on respondent No.2 particularly when even the Universities Grants Commission has, supported its stand. To reinforce the above submission, he has referred' to section 2(e) and (1), section 10 , of the Act and Item No.3 of the First Schedule,, read as follows‑

"Section 2(e) and (1) of the Act; 2(e) 'engineering institution' means 'an institution within or without Pakistan which grants degrees in engineering and is reccognised as such by the Council;" 2(1)Engineering qualification' means any of the qualifications 'recognised included in the First Schedule or the Second Schedule;" Section 10 of the Act; "Recognition of engineering qualifications granted by institutions Pakistan. (1) The engineering qualifications granted by engineering institutions in Pakistan which are included in the First Schedule shall be the recognised engineering qualifications for the purposes of this Act. (2) Any engineering I institution in Pakistan which grants an engineering qualification not included in the First Schedule may apply to the Council to have such qualification recognised, and the Council may, by notification in the official Gazette, amend the First Schedule so as to include such qualification therein." Item No. 3 to the First Schedule to the Act: The First Schedule (See sections 2 (m) and 10) Recognised Engineering Qualifications granted by Engineering Institutions in Pakistan:‑‑

Engineering Institution Recognised Engineering Qualifications

1

. 2

3. Sindh University B.Sc. Engineering B‑Sc. Agriculture Engineering.' A perusal of the above quoted clause (e) of section 2 of the Act indicates that it defines an engineering institution as means an institution within or without Pakistan which grants degrees in engineering and is recognised as such by the Council. Whereas clause (1) thereof provides the definition of the term "recognised engineering qualifications" as meaning any of the qualifications included in the First Schedule. It may further be noticed that subsection (1) of section 10 of the Act lays down that engineering qualifications granted by engineering institutions in Pakistan which are included in the First Schedule shall be the recogaised engineering qualifications for the purposes of the Act, whereas subsection (2) thereof provides that an engineering institution in Pakistan which grants an engineering qualification not included in the First Schedule may apply to the Council to have such qualification recognised, and the Council may, by notification in, the official Gazette, amend the First Schedule so as to include such qualification therein. It may also be pointed out that Item No.3 in the First Schedule to the Act under the caption "Engineering Institution" mentions the name of Sindh University. It is an engineering institution for the purpose of the Act, whereas under the caption "Recognised Engineering Qualifications against in the above Item No.3, B.Sc. Engineering and B.Sc Agriculture Engineering are the degrees mentioned as recognised engineering qualifications.

6. Admittedly, the degrees referred to in Civil Appeal No. 590‑K of 199(9 are not mentioned in the First Schedule against the Sindh University. SimilarlyI3 the degrees referred to in Civil Appeal No. 695‑K of 1990 do not find place it b the First Schedule. ' In this view of the matter, the above degrees are no to covered by subsection (1) of section 10 of the Act, meaning thereby, that a Ion Pakistan Engineering Council is not under any statutory obligation as, envisaged in aforesaid subsection (1) to register the above degrees as a, recognised qualifications for the purpose of First Schedule. As a corollary it il must follow that the present case falls within the ambit of subsection (2) of section 10 of‑the Act, which empowers Pakistan Engineering Council to recognise any other degree as a recognised engineering qualification for their purpose of the First Schedule by issuing a notification in the official Gazette. It is also an admitted position that no notification has been issued by the Pakistan a Engineering Council for including the above degrees in the First Schedule to‑o the Act.

7. Mr. M. Bilal has taken us through the various documents filed by the e appellants in Civil Appeal No. 590‑K of 1990, which show that Pakistan a Engineering Council had obtained all the relevant information and documents s from Sindh University before refusing to include M.Sc. (Communications) and I M.Sc. (Electronics) as recogaised engineering qualifications under the First t Schedule. He has also referred to the photostate copies of the literature filed by him indicating that the above two disciplines are recognised as the engineering ; qualification.

8. On the other hand, Mr. Abid Hasan Minto has referred to the case of I Pakistan Medical and Dental Council v. Dr. Raza Muhammad Khan (1992 t SCMR 1621) in which this Court, while dealing with the case of Pakistan i Medical and Dental Council, which enjoys similar powers as the Pakistan Engineering Council in its disciplines, set aside the judgment of the High Court passed in a writ petition by holding as fallows‑

"

6. Apart from that, in the exercise of its Constitutional jurisdiction the High Court does not sit as a Court of appeal over the decisions of statutory bodies. In this case the appellant Council consists of some very senior and respected members of the medical profession including the Principals of Medical Colleges. Quite a few of them have a first‑hand knowledge of the quality of excellence provided by the various medical institutions, both inside and outside the country. It is difficult to believe that while refusing to recommend recognition of the fellowship of American Medical Society as an additional medical qualification the members of the appellant Council were' not aware of the academic and clinical attainments of those who were admitted thereto. The declaration granted by the High Court ha the effect of overriding the considered opinion of persons who are the most qualified in the field to assess the professional excellence on the basis of which the fellowship is awarded. The observation of the High Court in the earlier petitions preferred by Dr. Durri Kamil. have no relevance to the litigation between the appellant and the respondent for the reason that the appellant was not a party to those proceedings and as such its views were not before the Court. Accordingly, we accept this I appeal and withdraw the writ I issued by the Court. There win be no order as to costs."

9. We are inclined to hold that the High Court in exercise of its Constitutional jurisdiction cannot sit as a Court of appeal over the decision of a body incorporated tinder the statutes for deciding the question, whether a particular qualification is to be recognised under the relevant statute. The fact that Sindh University, or the University Grants Commission or the Government of Pakistan treats a particular qualification equivalent to a particular professional qualification, will not be relevant for the purpose of decision by the authority concerned under the relevant statute. So, the decision of Sindh University to treat M.Sc. (Communications) or M.Sc. (Electronics) as engineering qualification will not be binding on Pakistan Engineering Council, nor the decision of the Government of Pakistan that B. Tech. (Honours) Will be equivalent to Bachelor of Engineering, would be binding on Pakistan Engineering Council, which has to decide the question under the Act without being influenced by the decision of any other body or authority. .

10. It was also submitted by Mr. M. Bilal that the appellants in Civil Appeal No. 590‑K of 1990 had cleared the above bxaminations prior to the incorporation of Pakistan Engineering Council. The fact, in our view, does not make any difference. Since Pakistan Engineering Council was requested under the Act to accord recognition to the degrees in issue as the recognised engineering qualification , the above question was to be decided subjectively engineer with reference to the provisions of the Act irrespective of the fact that the appellants might have passed the above examinations prior to the enactment. However, we may clarify that Civil Appeal No. 695‑K of 1990 (in which nobody has appeared for the appellants as stated above), also involves the question, whether B. Tech (Pass) or B. Tech. (Honours) can be recognised by the Government of Pakistan or other Government functionaries for induction or promotion. The same has been dilated upon exhaustively by a Full Bench of this Court comprising the Chief Justice and four companion Judges in the case of Fida Hussain v. The Secretary, Kashmir Affairs and Northern Affairs Division, Islamabad and another (PLD 1995 SC 701), in which it has' been held that the Government had the exclusive domain to decide, whether . any particular qualification would be considered sufficient for promotion from any particular grade to a higher grade and that the Government is vested with the power to change such policy' from time to. time, whereas Pakistan Engineering Council has exclusive domain to decide, as to whether a particular qualification could be equated with another academic qualification but it has no power to say that a civil servant/employee holding a particular academic qualification could not be promoted from. a particular grade to a higher grade. With the above clarification, both the appeals are dismissed. However, there will be no order as to costs. (Sd.)Ajmal`Mian, J (Sd‑)Fazal Karim, J (Sd‑)Mukhtar Ahmed Junejo, J. (Sd.)Fazal Karim, J I agree, but have added a note. FAZAL KARIM, J.‑‑‑I respectfully agree. The purpose of the Pakistan Engineering Council Act, 1975 (the Act) is " to make provision for regulation of the engineering profession and for that purpose to constitute an Engineering Council". The Pakistan Engineering Council as constituted under section 3 of the Act is composed of specialists in the field of engineering. The functions of the Council among others, are recognition of engineering qualifications for the purpose of registration of professional engineers and consulting engineers, laying down the standard of conduct for its members and the promotion of reforms in the engineering education and review of courses of studies in consultation with the Universities. Section 10 by its subsection (1) provides that "the engineering qualifications granted by engineering institutions in Pakistan which are included in the First Schedule shall be the recognised engineering qualifications for the purposes of this Act", and subsection (2) of section 10 enacts: "Any engineering institution in Pakistan which grants an engineering qualification not included in the First Schedule may apply to the Council to have such qualification recognised, and the Council may, by notification in the official Gazette, amend the First Schedule so as to include such qualification therein". Section 13 of the Act c7mpowers the Council to require engineering institutions in Pakistan which grants a recognised engineering qualification to furnish such information as the Council may, from . time to time, require as to the courses of study and examination to be undergone in order to obtain such qualification and section 14 of the Act authorises the Council to appoint such number of inspectors as it may deem requisite to attend at any or an of the examinations held by the engineering institutions in Pakistan for the purpose of granting engineering qualifications which are recognised engineering qualifications or in respect of which recognition has been sought. Section 15 of the Act empowers the Council upon report by an inspector, and after obtaining the explanation of the engineering institution concerned to withdraw its recognition of an engineering qualification. The First Schedule to the Act shows that "Sindh University" is one of the Engineering institutions but the qualification possessed by the appellants is not a recognized engineering qualification. Mr. Bilal invited us to hold that despite the fact that in conferring the power the legislature uses, in section 10, subsection (2), the word 'may', Council must recognise every engineering qualification granted by an engineering institution in Pakistan. This invitation must in my opinion, be declined. 'May' involves a choice and 'shall' an order. This is the customary usage of these terms of art when they appear in a statute. Even an enabling word like 'may' may become mandatory, when the object of the power is to effectuate a legal right. (See Reg v. Home Secretary (1995) 2 V&R 464, 484 and (1879‑80) 5 AC 214, 244). Here the right to apply to the Council to recognise an engineering qualification is by subsection (2) of section 10 given to "any engineering institution in Pakistan. In other words, the matter, as regards the, recognition of an engineering qualification, is one between the engineering Institution and the Council. There is, therefore, no legal right in the petitioners to be effectuated. True that every statute must be supposed to be for public good at least in intention and, therefore, of few laws can it be said that the law confers unfettered discretionary power since the policy of law offers guidance for the exercise of discretionary power. (Province of Bombay v. Municipal Corporation of the City of Bombay AIR 1947 PC 34). Since the range of authorities and the circumstances of the use of their powers are almost infinitely various, it is of course unwise to lay down rules for the application of the remedies under Article 199 of the Constitution which appear to be of universal validity in every type of case. But it is important to remember that it is not the purpose of the remedies under Article 199 of the Constitution to take away from those authorities the powers and discretions properly vested in them by law and to substitute 'the Court as the body making the decision. (Chief Constable v. Evans (1982) 3 All ER 141, 143, 144). It must also be borne in mind that the function of the Court under Article 199 of the Constitution is not to exercise an independent discretion of its own. It must defer to the statutory body's exercise of its discretion unless it finds that the purported exercise of the discretion was ultra vires, either because it was exercised in bad faith or because as a result of misconstruing the provisions of the Act by which the discretion was conferred, it has purported to exercise the discretion when the conditions precedent to its 8xercise were not fulfilled or in exercising it, it has taken into consideration some matter which the Act forbids to be taken into consideration or it has failed to take into consideration some matter which the Act requires it to take into consideration. (Teh Chang Poh v. PP (1980) AC 458). Here the power to recognise an engineering qualification is by section 10, subsection (2) of the Act committed to the Council. That the power is a discretionary power is clear from the use of the word 'may'. No reason has been adduced for reading the word 'may' as 'shall'. As has been noticed above the Council is composed of specialists and this is, therefore, a case in which the Court must defer to the Councils exercise of its discretion. AA./M‑3200/S Appeals dismissed