Dost Muhammad Khan, J.--Through this Constitutional petition, the petitioners seek that a writ of mandamus be issued to the Respondent No, 1 commanding it to register them (petitioners) as graduate engineers in the prescribed manner and in the relevant discipline to which their credentials are related and the decision of the "PEC" dated 15.11.2002 and the subsequent decision of "PEC" (Executive Committee) dated 6.12.2003 requiring the petitioners to re-appear in the examination they had passed during the period when Respondents 4 and 5 were not accredited be also declared without lawful authority.
The total number of the petitioners shown in the title of the petition are 92 but because of duplication/repetition of names of Petitioner Nos, 2 and 3 Munir Hussain and Shahzad Hadi at Sr.
Nos, 11 and 47 the actual number of the petitioners comes to 90 as is evident from the preliminary objection taken by Respondents Nos, 4 and 5 in their comments filed to the writ petition.
2. Briefly, facts leading to the present petition are that the petitioners were firstly admitted in the session of 1997 in the discipline of Electrical and Civil Engineering by the College of Engineering and Technology, Peshawar, a private sector institution then affiliated with AlKhair University A.J.K. The Al-Khair University has been established through Act No, XXVIII of 1994 of the A.J.K. Assembly. The Federal Government vide Ministry of Education (Government of Pakistan) NOC/letter No, F-2-6/54- UE-I dated 31.5.1995 has granted it permission to impart education in different disciplines within Pakistan. The Government of N.W.F.P. vide letter No, SO (UE)7-29/96 dated 21.8.1997 has also given permission to it to establish/affiliate branches and constituent colleges within the territorial limits of N.W.F.P. The University Grants Commission re-designated as Higher Education Commission has also granted recognition and equivalence to the degrees/educational programmes of Al-Khair University (Respondent No, 3).
For the accreditation of the college Respondent No, 4 as well, Respondent No, 3 submitted a joint AC-I form to the "Pakistan Engineering Council and in response the Inspectors/visitation team of "PEC" made visit to Engineering College of Mirpur on 4.5.1999 which too was affiliated with Respondent No, 3 but took no decision because it was decided that all the constituent/affiliated colleges of Respondent No, 3 would be evaluated on campus to campus basis.
As the petitioners were by then studying as admitted students in the campus of Respondent 4 thus, realizing the risk involved because of the delay in taking any decision by the "PEC", it applied independently to .Respondent No, 1 for accreditation of its Electrical and Civil Engineering Programmes on 26.11.1999. At this stage the petitioners were studying in 3rd year which, per version of Respondents Nos, 4 and 5, was according to the practice and policy of accreditation adopted by Respondent. No, 1 but it took more than a year time from Respondent No, 1 to take any step in the matter because on 17.10.2000 the Inspectors/visitation team of it visited the said college at Peshawar for the first time and after inspection of the academic standards and other allied facilities, some deficiencies in some of the areas were pointed out to its administration. All these deficiencies in the relevant faculties were immediately made good at the cost of Rs, 1,50,00,000/- and the Respondent No 1 was duly informed to that effect vide letter No, AK-2295 dated 13.11.2000 with a further request to grant accreditation without further loss of time.
Notwithstanding the fulfillment of the said requirements by Respondent No, 4, the "PEC" after a period of more than six months, through letter No, PEC/Accr/004/Al-Khair-P/2001 repeated its demand for fulfilling the same instead of sending inspectors to verify the same physically, thus, pushed to a trouble corner, Respondent No, 4 in sheer desperation approached "PEC" through Letter No, AK-2732 dated 6.6.2001 reminding it the self explanatory text of its letter dated 13.11.2000 repeating once again that the deficiencies pointed out had already been removed at heavy cost/investment.
During this impasse, the Governor N.W.F.P. after evaluation of its credentials, granted Respondent No, 4 the charter/status of University through Ordinance No, XXI on August 30, 2001 and in this way Cecos University of I.T. and Emerging Sciences {Respondent No, 5) was established within the campus of Respondent No,
4. The President of Respondent No, 5 while exercising powers u/S. 10 (3) read with Section 25 of the Ordinance declared Respondent No, 4 as its constituent institution through notification dated 31.8.2001. Similarly on the report of "Equivalence Committee" consisting of academicians, educationists and researchers of high-repute and stature constituted vide Notations No, CU/Reg/143 dated 27.10.2001, the petitioners were accredited/transferred to Respondent No, 5 "CECOS University" after evaluating and testing their courses of study, their knowledge in their relevant disciplines. Notification to this effect was issued on 10.11.2001. On the' other hand the application (AC-1 form) filed by Respondent No, 4 with "PEC" remained in the shelf without any progress despite hectic efforts of persuasion made by Respondent No, 4.
3. After its establishment, Respondent No, 5 (CECOS) applied for accreditation vide letter No, CCE & IT/020 dated 20.10.2001 Annex-"K" on the same terms and in view of the advice of Respondent No, 1 "PEC" contained in letter No, PEC/Accr/Al-Khair/2001 dated 6.9.2001. This request 'was in continuation of the College (Respondent No, 4)'s earlier application dated 26.11.1999. Alongwith the application, full particulars of the students i,e, petitioners admitted therein were also provided in shape of AC-I form with' a further request that their admission be regularized from the date of their enrolment in the College because of the decision of the Equivalence Committee holding them eligible and fulfilling the required criteria at the time when their credits were transferred to the University (CECOS) (except Petitioners Nos, 41 and 55). The petitioners performance was already found satisfactory by the High Power Committee of Equivalence but Respondent No, 1 "PEC" again sought clarification on certain points including transfer of credits vide letter dated 19.2.2002 which was responded through letter dated 20.2.2002 without any amount of delay. The Respondent No, 1 "PEC" appointed 17.4.2002 the date for the second visit and this time the visitation committee found all the required standards of education within the campus up to the prescribed mark and satisfactory. After this visit of the committee, Respondent No, 1 "PEC" and Respondent No, 5 (CECOS) exchanged numerous correspondence/communications on the issue but with no positive results and it was after hectic efforts of persuation through various reminders that Respondent No, 1 "PEC" was made to take a decision whereby through letter dated November 15, 2002 it granted accreditation to Respondent No, 5 but with the following conditions:--
1. "Pakistan Engineering Council is pleased to inform, you that the B.Sc. Civil and B.Sc. Electrical.
Engineering programs of your University has been accredited as under:--
(a) B.Sc. Civil Engineering-- Awarded to persons admitted in 2002 and after and to be reviewed after, one year i,e, 2003.
(b) B.Sc. Electrical Engineering-- Awarded to person admitted in 2002 and after and to be reviewed after one year i,e, 2003.
2. Progress on rectification/improvement of weak areas observed by our visitation team and already pointed out may be intimated to this office.
3. Necessary SRO/Notification will be published and provided later. Yours Faithfully, SD/- XXX Engr. Maj. Muhammad Farooq (Rtd.) Deputy Registrar. ---------- Aggrieved of such action because the fate of the, petitioners was left at the mercy of whirlwind, Respondent No, 5 preferred an appeal to the Chairman of Respondent No, 1 "PEC" pointing out grave discrimination meted out to the petitioners. This time an inspection team of Respondent No, 1 "PEC" headed by a convener of Equivalence Committee made a visit to the campus of the Respondent, No, 5 on 5.3.2003. Report to this effect was submitted to the "PEC" which was deliberated upon in its 41st meeting held on 17.4.2003 and final decision made therein is to the following effect.
"However, after detailed deliberations, the committee recommended that all those 92 students should undergo remedial education at CECOS University to make up deficiencies in the engineering programme----"
These minutes were rescinded in the 42nd meeting of the Equivalence Committee of Respondent No, 1 "PEC" and its. Executive Committee held on 9.8.2003 by taking decision that a comprehensive plan be submitted by Respondent No, 5 to the "PEG for remedial education and the programme for the petitioners to take examination in the relevant discipline for the purpose of their accreditation which was submitted on 12.10.2003 and another visit was made by the officials of "PEC" on 17.11.2003 to the campus of Respondent No,
5. As a result of that visit a report was submitted to the committee who in the 43rd meeting held on 6.12.2003 took the following decision:-- The accreditation committee unanimously rejected the recommendations of the academician committee. The members stated that remedial education was desirable but not binding, .however, repeating of the exams to be taken under non-accredited programme was binding.....
In the next meeting of the Executive Committee because of the internal dissent no decisive step could be taken and the fate of the petitioners was left to hang high and dry in the air.
In their parawise comments, Respondents 4 and 5 have categorically _ claimed that not only the Higher Education Commission, the then "University Grants Commission", had granted recognition/equivalence to it and its degrees in the relevant discipline but also the standard of education imparted the facilities provided in the faculties and laboratories were/are par excellence and much better than many other similar educational institutions to whom accreditation have already been granted.
4. In their parawise comments, Respondents 1 and 2 both have denied the claim of the petitioners as well as Respondents 4 and 5. The stance taken by them is that at the time of first visit by the visitation team of Respondent No, 1 "PEC" because of glaring shortcomings/anomalies like its unclear status, lack of faculty, very higher subject teacher ratio, inadequate laboratories and laboratory staff, poor sampling by the students and their lack of knowledge about the subjects taught, accreditation was not granted to Respondent No, 4, then affiliated with Al-Khair University, and the decision of Respondent No, 5 (CECOS University) transferring credit of the petitioners to it was not binding on Respondent No, 1 "PEG'.
5. On the other hand, it was vehemently argued and stated at the bar for the petitioners as well as Respondents Nos, 4 and 5 that because of indiscipline, discriminatory treatment meted out to different institutions including Respondents 4 and 5 and mis-management, the President of Pakistan was pleased to dissolve the Executive Committee of the Respondent No, 1 "PEC" whereafter a new Committee was constituted which was constrained to direct on 14.12.2002 that all decisions of the dissolved Committee would be liable to review. It was also argued that the impugned action of Respondent No, 1 "PEC" granting accreditation to Respondent No, 5 with effect from the year 2002 and onward, depriving the petitioners to take benefit of it is neither supported by any provision of the Pakistan Engineering Council Act No, V of 1976 nor there is any Regulation or bylaws in its support thus, the same besides being seriously discriminatory, is also unreasonable and irrational.
The conditions imposed, it was argued, were thus without lawful authority as the "PEC." and its Executive Committee has no such powers under the Statute, Regulation and the bylaws as the accreditation is granted to the educational institutions imparting engineering education of various disciplines and not to the individuals/ students. Similarly it was argued with considerable vehemence that accreditation is always retrospective in its effect because it is granted to the already established institutions wherein students are already admitted and studying in various disciplines when its faculties are fully operative because the question of granting accreditation to any institution having no student studying therein would never arise. It was also contended that the delay in granting accreditation was due to the dilatory tactics and inaction on the part of Respondent No, 1 "PEC" by not taking timely decision despite of hectic efforts of persuasion made by Respondents Nos, 4 and 5 in that regard as it took more than three years to complete the process and during this long period only two visits by the Committee of "PEC" were made to their campus.
6. For Respondent No, 1 "PEC" it was argued with vehemence that, it being the only statutory body having exclusive jurisdiction to recognize/accredit any institution imparting education in engineering discipline subject to the criteria laid down by the law and rules thus, the. "PEC" or its Committees alone are competent to take any decision to that effect and the High Court in its Constitutional jurisdiction, could not `,substitute its opinion to the contrary. In this regard reliance was placed heavily on the principle of law enunciated by the apex Court in the case of Muhammad Sadiq and others v. University of Sindh and another (PLD 1996 SC 182) which is to the following effect:--
9. "We are inclined to hold that the High Court in exercise of its Constitutional jurisdiction could not sit as a Court of appeal over decision of a body incorporated under statute for deciding a question whether a particular qualification is to be recognized under the relevant statute. The fact that Sindh University or University Grants Commission or 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 the Sindh University to treat M.Sc. (Communication) or. M.Sc. (Electronics) as Engineering qualification will not be binding on "PEC" nor the decision of the Government of Pakistan that B.Tech (Hon's) will be equivalent to Bechelor of Engineering would be binding on "PEC" which has to decide it without being influenced by the decision of any other body or authority."
7. There is no cavil to the above proposition and no one can dare to differ with the principle laid down by the Hon'ble Supreme Court on the above point of law but the question of law involved herein is entirely of a different proposition. In the instant case the "PEC" while granting the said accreditation has imposed/laid down conditions that the petitioners shall undergo remedial education for a specific period and thereafter shall reappear in exams for the subjects taught and taken during the non-accredited period. Whether the "PEC" is competent to impose or lay down any such condition under any provision of the Act No, V of 1976, the by-laws and Regulation made thereunder is required to be addressed and determined.
8. The provision of Section 10 of the Act provides for recognition of these engineering qualifications granted by the engineering institutions of Pakistan which are included in the .1st Schedule while sub-section (2) lays down that any engineering institution in Pakistan which grants an engineering qualification, not included in the 1st schedule, may apply to the Council to have such qualification recognized and the Council may, by notification in the official gazette, amend the 1st schedule so as to include such qualification therein.
The provision of Section 13 of the Act ibid provides that every engineering institution in Pakistan, which, grants recognized engineering qualification shall furnish such information as the Council from time to time require as to the courses of studies and the examination to be undergone in order to obtain such qualification.
From the rival contentions of the parties and from the facts/circumstances of the case, the following law points are required to be addressed and determined:--
(i) What is the effect of accreditation granted by the "PEC" to any institution granting engineering qualification, whether it will have retrospective effect or otherwise.
(ii) Whether the "PEC" while granting accreditation to any such institution can impose conditions under any provision of law/rules on the admitted students like the one imposed in the instant case.
(iii)Whether principle of natural justice has been violated in the case of the petitioners and whether they have been condemned unheard while taking the impugned decision.
9. The relevant provision regulating the accreditation process is Section 10 of the Act of 1976. The said, provision is silent on the effect of accreditation, however, the combined study of the entire scheme of the Act would show that accreditation are granted to the already established institution of engineering education where students are already admitted and all its faculties, laboratories and allied facilities are fully operative because the inspectors team is to assess the teaching standards and that of different faculties and the laboratories with equipments alongwith the knowledge of the students admitted therein whereafter report is to be submitted to the enrolment/executive committee recommending or not to grant accreditation. In this way supposingly if any such institution commences its study courses in the month of January of a calendar year and application for accreditation is made in the middle of that year while the inspectors team visits the institution in the month of December of the same year and then accreditation is granted by the "PEC" in the next year then the said institution is stood recognized and the degrees granted to the students are necessarily to be registered by the "PEC" irrespective of the actual date of granting accreditation thus, in ordinary course once accreditation is granted it would have a retrospective effect and the students of that institution who had already appeared in the first year examination would be entitled to be registered as engineers after getting degrees from the said institution.
The "PEC" while granting accreditation to engineering institution, is required by law to amend the Ist schedule by issuing notification including the name of the institution therein which is published in the official gazette. It is a cardinal principle of law that a notification conferring privileges and rights may be retrospective in its operation. In support of this proposition the case of Messrs Army Welfare Sugar Mills Ltd. and others vs. Federation of Pakistan and others (1992 SCM R 1652 (e), case of State Bank of Pakistan vs. Messrs Faisal Spinning Mills Limited (1997 SCM R 1244 (b) may be cited with advantage thus, on this principle too the accreditation granted by the "PEC" to the, institution would take effect retrospectively.
10.Now coming to the second point, no provision, rule or regulation was referred to on behalf of Respondent No, 1 to show that it has an authority to impose conditions on the students admitted in the institution to which accreditation is granted. Section 10 of the Act No, V of 1976 exclusively regulate this process which does not confer any powers on the "PEC" either expressly or impliedly to impose any condition on the admitted , students. Once an institution is accredited and notification to that effect is issued, the passing out engineers carrying degrees of the said institution are entitled to be registered as of right. The "PEC" for its own satisfaction could deal with the petitioners separately when applications for their registration were to be submitted but not at the time when accreditation was granted to Respondents 4 and 5 because registration' of engineers is regulated separately by the provisions of Sections 12, 16 to 20 of the Act ibid albeit their entitlement to registration is because of the institution which is already accredited by the "PEC". The process of registration and accreditation, therefore, relates to two different phases/stages and could not be made combined. The procedure thus adopted by the "PEC" is not in accordance with law.
11. Now coming to the last point, suffice it to say, that right from the commencement of the process of accreditation till it was granted, the petitioners were neither given fair opportunity of hearing nor they were competently and effectively represented in the entire process before the "PEC". It is evident from the record that when accreditation was granted subject to the impugned conditions, Respondent No, 5 without consulting the petitioners submitted plan to Respondent No, 1 for their remedial education and to re-appear in the examination already taken by the petitioners as was desired by the "PEC". The objection taken to the first decision in this regard was neither taken to its logical end nor the case of the petitioners was put forth any further and in this way in our view the petitioners have been condemned in violation of the principle of natural justice and for this reason alone the impugned action/decisions taken by Respondent No, 1 are not sustainable in law.
12. While following the view of the Hon'ble Supreme Court in the case of Muhammad Sadiq and others supra (PLD 1996 SC 182) we would, therefore, avoid to lay down any particular formula to be adopted by the "PEC" and would leave the matter to be re-considered by it subject to law, principle of justice, fair play as well as rules of propriety. In the instant case we are inclined to hold that the petitioners are indeed the real victims of the circumstances created due to the contributory negligence of the Respondents 1, 4 and 5 because of much apathetic conduct both on the part of "PEC" and the institution i,e, Respondents 4 and 5. The former was well aware of the fact that the petitioners by then were admitted students of the institution and their future career was involved but it did not take reasonable care to make a timely decision on the accreditation of Respondents 4, and 5.. Similarly Respondents 4 and 5 acted with the same degree of carelessness by proceeding with the courses of studies of the petitioners realizing/recovering handsome/heavy fee from them despite the impending risk/danger involved in the process of grant of accreditation by the "PEC" instead, solemn assurance was given to the petitioners that the same was not a matter of any concern and was due to be granted in due course/routine.
Keeping in view the above facts and circumstances and because for the reason that while imposing the impugned condition the "PEC" has acted on its whims and figment of imagination without testing the credentials and academic knowledge of the petitioners. The yardstick thus, applied besides having no sanctity of law in its support is equally unreasonable and is based on artificial premises. According to para-4 of the petition Annex-D submitted to the Governor, NWFP by Respondent No, 5 it has been alleged that the "PEC" has recognized the qualifications of the graduate engineers in the same discipline, of Behauddin Zakaria University, Punjab with retrospective effect on the intervention of the Governor of Punjab. Again according to item No, 4.6 of the minutes of Executive Committee, 92nd meeting held on 14.1.2004 as it appears therefrom the case of Pakistan Navy Engineering College (NUST) was at par with the present one, therefore, the Respondent No, 1 under the law is obliged to give the same treatment to the petitioners as was given to the graduates engineers of the above two institutions. Otherwise its decision to the contrary would offend against the command of the constitution contained in Articles 4 and 25.
For the foregoing reasons and discussion, therefore, this writ petition is accepted in the above terms and the case is referred back to the "PEC"/Respondent No, 1 with the directions to reconsider the registration of the petitioners as engineers in the relevant disciplines to which their qualifications are related. As the case is fairly old enough and the future career of the petitioners is seriously involved, hence, it shall be decided as early as possible but not later than three months.