' MALIK HAMID SAEED, J.---Sher Bahadur, petitioner, being a Graduate B.Sc Electrical Engineer in the Pakistan Telecommunication Company Limited, Islamabad (PTCL) is aggrieved of the Revised Provisional Seniority List in respect of Divisional Engineers (BPS-18) circulated vide No,S(11)35-1/2002 dated 14-6-2002 whereby 328 Engineers (respondents Nos.6 to 333), being not eligible to be appointed as Professional Engineers have been illegally promoted to BPS-18 and assigned the job of Professional Engineers.
2. It is averred in the writ petition that the petitioner joined the then Telephone and Telegraph Department, Government of Pakistan, Islamabad as Assistant Divisional Engineer in BPS-17 on 3-5- 1990 and was promoted as Divisional Engineer in BPS-18 in 1994. On establishment of Pakistan Telecommunication Company Limited, Petitioner's services stood transferred to it. The petitioner's name is entered with Pakistan Engineering Council, as a qualified and recognized Engineer.
According to the petitioner, the respondents are not registered as Professional Engineers with Pakistan Engineering Council, hence they cannot undertake or be assigned the job of Professional Engineering work.
3. The Engineers/respondents in their written statement have vehemently denied the plea of the petitioner that they being diploma engineers are not qualified for the job as they are also Associate Engineers possessing three years Diploma and 3-1/2 years training at Telecom Staff College, Haripur on their Credit. They were appointed in accordance with law and they are holding their posts in the Department in accordance with their terms and conditions of service germinating their advertisement of the posts by Federal Public Service Commission as far back in the year 1967, Telegraph and Telephone Manual, Pakistan Telecommunication (Reorgansation) Act, 1996 and Pakistan Telecommunication Company Limited Service Regulations, 1996 amended till date, therefore, it is incorrect to suggest that they cannot be engaged in the Professional Engineering work. The respondents have also questioned the maintainability of the writ petition as the matter raised in the writ petition is one within the ambit of terms and conditions of service for which the jurisdiction of this Court is barred under Article 212 of the Constitution of Islamic Republic of Pakistan.
4. After hearing the learned counsel for the parties and going through the material placed on file, in our view, the arguments of the learned counsel for the respondents are forceful. The terms and conditions of service of employees of the then Telephone and Telegraph Department are protected under section 36 of the Pakistan Telecommunication (Re-organisation) Act, 1996. Subsection (2) of section 36 provides as under:- "(2) Subject to subsection (3), the terms and conditions of service of any Transferred Employee shall not be altered adversely by the company except in accordance with the laws of Pakistan or with the consent of the Transferred Employees and the award of appropriate compensation".
' None of the respondents Nos.6 to 333 had been appointed as Professional Engineers in the respective department. The respondent/engineers were promoted as Assistant Divisional Engineers (BPS-17) and Divisional Engineers (BPS-18) against their respective promotion quota on the basis of their seniority-cum-firness as well as after qualifying the Departmental examination/training. The Rules for appointment/promotion of Assistant Divisional Engineers/Divisional Engineers does not provide that such appointment/promotion should be made from amongst the professional engineers only. The respondents Nos.6 to 333 are enjoying the status of Assistant Divisional Engineer/Divisional Engineers since long as they were promoted as Assistant Divisional Engineers (BPS-17) in the year 1988 and further promoted as Divisional Engineers (BPS-18) in the year 1992 and onward. Their names were also inserted in the previous seniority list of Divisional Engineers which was issued in the year 1995. Under the PTCL Service Regulation 1996, posts in Basic Pay Scale 17 of Assistant Divisional Engineers are to be filled 60% by initial recruitment 40% through promotion and in Basic Pay Scale 18 of Divisional Engineer 100% by promotion. It is further provided in the said Regulation that Assistant Engineer (BPS-16) or Sub- Divisional Officer (BPS-16) would be entitled to promotion as Assistant Divisional Engineer after rendering certain period of service on such posts. Similar is the criterion for promotion to the post of Divisional Engineers.
5. The question agitated in this writ petition with regard 'to the eligibility of the respondents Nos.6 to 333 to perform the work of professional engineers in contravention to the provisions of the Pakistan Engineering Council Act. 1976, directly and substantially remained under consideration in various cases before the august Supreme Court of Pakistan and were decided in favour of diploma engineers. The relevant from the judgments is hereby reproduced for the sake of convenience':-- ' PLD 1995 Supreme Court 701 (Fida Hussain v. The Secretary, Kashmir Affairs and Northern Affairs Division, Islamabad and another)
"Pakistan Engineering Council, however, has exclusive domain to decide, as to whether any particular qualification could be equated with another academic qualification but would have no power to say that civil servant/employee holding particular academic qualification could not be promoted from a particular grade to higher grade-Government cannot abdicate its power to decide such question in favour of a corporate body which is not in its control nor it can act in a manner which might be violative of Art.25 of the Constitution on account of being discriminatory." .
Pakistan Engineering Council is vested with functions to regulate persons qualified to practise as professional engineers and consulting engineers and not persons who were employed in the Government or semi-Goverment organizations".
' PLD 1996 Supreme Court 182 (Muhammad Sadiq and others v. University of Sindh and another)
"Government would have exclusive domain to decide, whether any particular qualification would be considered sufficient for promotion from any particular grade to a higher grade and Government was vested with power to change such policy from time to time- Pakistan Engineering Council, however, has exclusive domain to decide, as to whether any particular qualification could be equated with another academic qualification but it has no power to say that a civil servant/employee holding particular academic qualification could not be promoted from a particular grade to a higher grade."
' 1998 SCM R 811 (Pakistan Engineering Council through Registrar. Islamabad and others v.
Federation of Pakistan through Secretary, Establishment Islamabad and others).
"Controversy whether said person could hold post of Deputy Director (Engineering) without being registered as "Professional Engineers" did not arise directly for there was nothing on record to conclusively establish that said person in his capacity as Deputy Director (Engineering), was required to undertake work of "Professional Engineer" within meaning of Pakistan Engineering Council Act, 1975-Promotion of the person to post of Deputy Director (Engineering) having been made on basis of qualification and seniority-cum-fitness as prescribed under relevant Service Rules, was not open to any exception."
From the above ruling, it is evident that it is for Pakistan Engineering Council to decide as to whether any 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 as it is for the Government/Department to decide whether any particular qualification would be considered sufficient for promotion from any particular grade to a higher grade. Para 4.19 (Part-III) of the Pakistan Telecommunication Corporation Service Regulation 1994, also provides that: "An employee possessing such minimum qualifications and length of service and fulfilling such other conditions as are specified for promotion in section B of appendix 2 shall be eligible for promotion to a higher post for the time-being reserved for departmental promotion in the cadre to which he belongs".
' Para. 4.20, sub-para. (2) of the Regulation further says that promotion to posts in Basic Pay Scale 17/18 and 19 shall be made by the appointing authority on the recommendations of the Departmental Promotion Committee. The services of the employees of PTCL are governed through statutory Service Regulation, which implies that persons, who are not registered with the Pakistan Engineering Council could not be denied promotion to higher grades, hence the assertion of the petitioner that respondents Nos.6 to 333 being not in possession of Engineering Degrees could not he promoted to the post of Divisional Engineers is devoid of any force, as acceptance of such plea would amount to denial of promotion to such Associate Engineers, who have been inducted in the service of the Telegraph and Telephone Department even prior to the appointment of the petitioner. It is an essential aspect of service that by the passage of time, an employee expects his promotion to the next higher grade after fulfilling the required conditions laid down by the department concerned, hence only on the basis of non-registration of the respondents with the Pakistan Engineering Council, the benefit of promotion cannot be taken away from them, which has already been declared by the august Supreme Court of Pakistan as outside the domain of the Pakistan Engineering Council.
6. The second contention of the learned counsel for the respondents is that PTCL employees are civil servants within the meanings of section 2-A of the Service Tribunals Act, 1973, therefore, no proceedings in the writ jurisdiction could be entertained as they can approach the Federal Service Tribunal, if aggrieved of any action of the authority in respect of his terms and conditions of service.
In the authority reported in 1999 PLC (C.S.) 1061, the Honourable Supreme Court of Pakistan has held as under:-- "Pakistan Engineering Council Act (V of 1976).---Preamble-- petitioner's Constitutional petition under Art.199, Constitution of Pakistan was dismissed as barred under Art.212 of the Constitution -- Validity -- Petitioner's grievance before High Court was that Engineering graduates arrayed as petitioners and diploma-holders arrayed as respondents, being parties to litigation were effectively governed by Pakistan Engineering Council Act, 1976 in the matter of appointment and promotion, and that Act did not permit those were not fully qualified Engineers but were diploma-holders to hold certain, specified posts involving professional engineering works-High Court dismissed Constitutional petition as being barred under Art.212 of the Constitution--Validity--Condition of service of person in the service of Pakistan in cases of services of the Federation would be determined by or under Act of Parliament as per terms of Art.240 of the Constitution--Pakistan Engineering Council Act, 1976 as well as Civil Servants Act, 1976 fall in the category of the Act framed by the Parliament--For testing eligibility of respondents for holding specified post, petitioner would necessary go to Service Tribunal--What was barred under Provisos of S.4, Service Tribunals Act, 1973, was fitness or suitability and not the eligibility--Petitioner had not challenged fitness or suitability but eligibility of respondents for holding specified posts which was more basic and has to be crossed before fitness or suitability can be adjudged- If rules of service applicable to parties permit promotions, then vires thereof, have to be examined and tested and even the exercise has to be undertaken by Service Tribunal. High Court was, therefore, justified in holding that question of eligibility to be considered for appointment or promotion to a post related to the terms and conditions of service and the jurisdiction of High Court under Art.199 of the Constitution was ousted on the strength of Art.212 of the Constitution, which has a non-obstante clause".
The aforesaid authority on all fours is applicable to the facts and circumstances of the present case in which the eligibility of the respondents to hold specified posts as against the provisions of the Pakistan Engineering Council Act has been challenged. Hence on this score too, Oat writ petition is not maintainable.
7. For the aforesaid reasons, the writ petition in hand is devoid of any force and is hereby dismissed accordingly. No order as to costs.