MUHAMMAD NAWAZ ABBASI, J.--- Leave to appeal has been sought in this petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan against the judgment dated 22-12-2005 passed by a Division Bench of High Court of Sindh, at Karachi, whereby the constitution petition filed by the petitioner seeking direction for giving effect to the recommendations of Selection Board for his promotion to BPS-20, was dismissed with the following observations:-- "The unmistakable position that emerges from the above pronouncements that though eligibility for promotion of civil servant is to be considered with reference to the rules applicable to him the moment he is sought to be appointed (either by way of promotion, transfer or initial recruitment) to a post entailing performance of professional engineering work his registration as professional engineer with the Pakistan Engineering Council is a mandatory prerequisite. It is evident from the parawise comments filed that the post in question required performance of such functions. The petitioner, therefore, could not be conceded eligible. Indeed this would not affect his eligibility for being considered for promotion under the Rules for any post not requiring such functions to be performed. For the foregoing reasons, we find no merit in this petition and dismiss the same together with listed applications."
2. The petitioner, a Grade 19 officer of Government of Sindh in the engineering cadre filed a constitution petition in the High Court of Sindh at Karachi voicing the grievance for not being considered for promotion' to BPS-20 and the High Court in the light of assurance given by the Additional Advocate-General, Sindh for redressal of his grievance at the departmental level, disposed of the writ petition accordingly. In pursuance thereof, the Selection Board in the meeting held on 10-4-2004 after considering the matter, recommended the petitioner for promotion to BPS- 20 subject to the advice of Law Department. However, the administrative department instead of placing the case of petitioner before the competent authority again referred it to the Selection Board and the Selection Board having taken notice of the fact that petitioner was not registered as professional engineer with Pakistan Engineering Council (PEC), held him not eligible for promotion.
3. The first contention of the learned counsel in support of this petition was that once a person is recommended for promotion by the Selection Board, the administrative department or the competent authority, as the case may be, cannot again refer his case back to the Board for reconsideration without disagreeing with the earlier recommendation of the Board. The second limb of his argument was that registration of petitioner with PEC was not requirement under Sindh Council Unified Grade (SCUG) Service Rules, 1982 framed under Sindh Civil Servants Act, 1974, read with promotion policy of Government of Sindh for promotion of BPS-20 and the administrative department while determining the eligibility of the petitioner for promotion did not strictly follow the rules on the subject. The third contention of the learned counsel was that petitioner belonged to engineering cadre, has been regularly performing professional engineering work during his service and not only the department in view of his experience and qualification, has earlier conceded his eligibility for promotion before the High Court in Constitution Petition No,D-1559 of 2002, but Selection Board also cleared him for promotion. Learned counsel submitted that in view of the High Court was in complete departure to the law laid down by this Court in Pakistan Diploma Engineers Federation (Regd.) v. Federation of Pakistan 1994 SCM R 1807 and Fida Hussain v. The Secretary, Kashmir Affairs and Northern Affairs Division PLD 1995 SC 701.
4. This is an admitted fact that the petitioner being a diploma holder was neither registered with PEC nor was a professional engineer within the meaning of Pakistan Engineering Council Act, 1976.
The claim of the petitioner was that under SCUG Service Rules, 1982, the appointment through promotion to Grade-20 post in the Engineering Branch of Government of Sindh, has to be made on the basis of selection on merits from amongst the members of service in Grade-19 in the said branch with minimum seventeen years experience and he having fulfilled the criteria was entitled to promotion and requirement of registration as professional engineer with PEC, was not relevant to determine his eligibility for promotion to BPS-20 under the rules applicable to his service. The learned counsel for the petitioner, however, applicable to his service in the light of law laid down by this Court in Pakistan Diploma Engineers Federation (Regd) v. Federation of Pakistan 1994 SCMR 108, has conceded that Pakistan Engineering Council Act, 1976 would be applicable to all qualified engineers engaged in any type of work requiring engineering skill either employed in the private sector or in the Government Organization and argued that notwithstanding the control of the work of a person engaged as professional or consulting engineer by PEC Act, 1976 the matters relating to the terms and conditions of service of the engineers who are in Government service either registered with PEC or not, are regulated by the rule governing their service and consequently, the eligibility of the petitioner a diploma holder for promotion to BPS-20 was to be determined independently by the Pakistan Engineering Council Act, 1976.
5. The diploma engineers certainly are not qualified engineers in terms of Pakistan Engineering Council Act, 1976 and cannot A claim the status of engineers at par to the professional engineers registered with PEC. This Court in Pakistan Diploma Engineers Federation (Regd.) v. Federation of Pakistan 1994 SCM R 1807 involving the same question, held that a graduate engineer can be appointed against a non-professional position but if the assignment involves professional engineering work, the appointment would essentially be subject to the fulfilment of the requirement of Pakistan Engineering Council Act, 1976. The relevant observation of the Court is reproduced as under:-- "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 Organization, if they are called upon to undertake any professional engineering work, as defined under the Act. In fact in the connected case C.A. No,31 of 1992 a Committee of Secretaries constituted by the Punjab Government correctly summed up the true position obtaining in the Act 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 finding is quite correct."
6. This is settled law that diploma engineers cannot be recognized professional engineers who hold recognized engineering qualification as provided in section 2(j) of PEC Act, 1976, which provides as under:-- "Professional engineer" means a person who holds a recognized engineering qualification and is registered as a professional engineer."
7. The basic qualification for a professional engineer under the law is B.Sc. Degree in engineering from a recognized institution in Pakistan and diploma in engineering is not a recognized qualification for a professional engineer in terms of PEC Act, 1976. The service rules governing the service of the petitioner (SCUG Service Rules, 1982) and the promotion policy of the Government of Sindh, would neither override the provisions of the above Act nor relax the requirement of basic qualification of professional engineer for promotion to BPS-20 in the engineering branch of Government of Sindh. The relevant provision of SCUG Service Rules, 1982 is reproduced hereunder:- - "V-Engineering Branch.
1. Grade 20 By selection on merit from among the members of the service in Grade-19 of the B Engineering Branch with at least 17 years experience as such in Grade-17 and above."
8. The above rule envisages clearly that a person can be considered for promotion to BPS-20 in the Engineering Branch of Government of Sindh, subject to fulfilment of the condition of basic qualification of a professional engineer prescribed under Pakistan Engineering Council Act, 1976 and a diploma holder being not a professional engineer in terms of PEC Act, 1976 cannot hold a post carrying responsibilities of a qualified professional engineer. The eligibility of a person for promotion from BPS-19 to 20 in the Engineering Department of Government of Sindh is subject to the fulfilment of the requirement of basic qualification with requisite experience as provided in SCUG Service Rules, 1982 in the relevant field therefore, neither any concession could be given to the petitioner in the matter of his eligibility to hold the post in BPS-20 nor the requirement of basic qualification could be relaxed by the Court or by Selection Board. The careful examination of rules on the basis of which petitioner asserted the claim of promotion to BPS-20 against the post carrying responsibilities of a professional engineer, would show that his claim was without any substance and learned counsel for the petitioner has not been able to satisfy us that a diploma holder on the basis of his experience alone, would stand at par to a person registered as professional engineer with Pakistan Engineering Council.
9. The Government having the domain to frame the policy of promotion and appointment can also by law, provide the qualification for appointment against a particular post and thus, appointment against such a post through promotion or otherwise, cannot be claimed without fulfillment of the criteria and the requisite qualification.
10. In the light of foregoing discussion, we do not find any substance in this petition and same is accordingly dismissed. Leave is refused.