Brief facts of the case are that the petitioners are professional engineers duly recognized by the Pakistan Engineering Council (PEC) and they joined the CDA after fulfilling all the pre-requisites including qualification and experience against the posts specified for the professional engineers.
Allegedly on several occasions Respondent No, 1 has promoted non-professional, non-registered and non-graduates having Diplomas and B-Tech certificates against the posts, which were specified only for professional engineers. The grievance by the petitioners is that the B.Sc (Civil Engineering) are not at par with B-Tech (Hons) and that Respondents No, 5 and 6 were promoted as Deputy Directors illegally and without lawful authority since they were not recognized as engineers by the Respondent No, 2 (PEC). The petitioners are highly aggrieved of certain orders because the people having lesser qualification were being elevated to higher post specified for performing professional engineer work, whereas the petitioners were holding superior education/qualification. That the Respondent No, 1 have been committing violation of laws including the legislation of the PEC Act, 1976.
2. The learned counsel for the petitioner stated that the CDA is statutory body, which is created by a statute, therefore, the writ of mandamus is maintainable. The FST will not have jurisdiction in this matter, since this is a matter of fitness and fitness falls within the purview of the jurisdiction of this Court. No terms and conditions are being contended. He relied on 1999 SCMR 1689. The learned counsel iterated that they were not enforcing terms and conditions rather they were enforcing a fundamental rights as an engineers and that they should not be grouped with non engineering persons. The engineers should stay with engineers and non-engineers should stay with non- engineers. The learned counsel gave an example of the collapse of the Margalla Towers in Islamabad, which was as a result of negligence and un-professionalism by non professionals; the purpose of registration with the PEC is that only qualified persons once registered can render professional advice and assistance on the professional engineer works. He stated that the Diploma Engineer can only undertake the work of a professional engineer, if, they were registered with PEC.
The subject matter is not involving terms and conditions but simply a provision of the promotion within the CDA which has been unlawful and illegal, since it does not implement the PEC Act, 1976.
Under Section 27(a), a person has to be registered as an Engineer or a Professional Engineer and under Section 27(1) and (2), in case of failure of such registration, there is a provision for imprisonment and fine. "Professional Engineer Works" can only be executed by a "Professional Engineer" who is duly registered by the PEC. He relied on "Fida Hussain Vs. Secretary" (Civil Appeal No, 443 and 442 of 1994), which holds that if the works involves Professional Engineer works then registration with the PEC is must. Further in "DZ. decision, Baluchistan High Court," (CB 112 of 1196), it was held that "professional engineer work" can only assigned to a person, if he is registered as a Professional Engineer with the PEC. That the PEC does recognize B-Tech (Hons) as equivalence to B.Sc (Engineering) degree and any action taken by the department to equate the same and to appoint non qualified persons to post involving professional engineer works would be unjust and illegal. The learned counsel for the PEC initially relied on a letter dated 14.01.06, issued by the PEC in which that B-Tech (Hons) is a program which is not a credited by the PEC it does not register them as engineers. He contended that the PEC is a statutory body constituted by the Pakistan Engineering Council Act, 1976 and is a autonomous body and it regulates the "Engineering Profession " and sets internationally recognized standards of professional competence and ethics for engineers, inter-alia, and its functions as an apex body to encourage and promote the pursuit of excellence in the engineering profession and to regulate the quality of engineering education and the practice of the engineering and technology. It has the jurisdiction/authority to registrar the professional engineer and to award recognition to their qualification. The learned counsel added that:-- ... Section 2(xxv)(g) of the PEC Act, provides that the management of the engineering works in respect of all engineering disciplines are "Professional Engineering Works" and that under Section 27 can only be undertaken/executed by engineers who are registered with PEC. Section 27(5A, 1 & 2) are reproduced as below.
"27(5A). No person shall, unless registered as a registered engineer or professional engineer, hold any post in any engineering organization where he has to perform professional engineering work".
27(1)"...whoever undertakes any professional engineering work shall, if his name is not for the time being borne on the Register, be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both, and, in the case of a continuing offence, with a further fine which may extend to two hundred rupees for every day after the first during which the offence continues ". (emphasis)
27(2)."...whoever employs for any professional engineer work any person whose name is not for the time being borne on the Register shall be punishable, on first conviction, with imprisonment for a term which may extend to six months, or with fine which may extend to five thousand rupees, or with both, and on a second or subsequent conviction, with imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both."
3. Thus the "Professional Engineering Works" can only be executed by the "Professional Engineer' registered by PEC and noncompliance of these sections, shall attract penalties. In the "Fida Hussain Vs. Secretary Kashmir Affairs" (Civil Appeal No, 442, 443 of 1994) the Hon'ble Supreme Court Engineer Federation. Vs. Federation of Pakistan". Further, the learned counsel stated that vide Notification No, 716, (1) 2006 published in Gazette of Pakistan dated 10.7.06 the Respondent No, 1 CDA in pursuance of Section 27 (5A) of the PEC Act, 1976 amended the CDA Employees (Service)
Regulations, 1992 and the following paragraphs were incorporated in part (b) "method of appointment"; "No person shall be appointed against a post of Engineer/ Assistant Director/Director unless registered as a registered Engineer or professional engineer with Pakistan Engineering Council. The Engineers are bound to produce registration certificate form the council at the appointment",
4. That this newly added paragraphs was in conformity with Section 27(5A) the learned counsel also stated that the petitioners has sent a letter to Higher Education Commission (HEC), wherein it was clarified that B-Tech (Hons) are not qualified Engineers and for this reason PEC is unable to register them as engineer. The learned counsel stated that the promotion of four Assistant Directors as Deputy Directors including Respondents No, 5 and 6, who are non-graduates, non- professional and non-registered by (PEC) Respondent No, 2, this has caused a grave in Justice and utter disregard of the mandatory statutory provision of the PEC Act, 1976 and that Respondent No, 1 has violated not only the provision of the PEC act but also its 1992 Regulations. That appointment of ineligible people to handle extremely technical work would be disaster for the public at large and the role of the regulatory body is to ensure professionalism and trust for the public. This has been evidence in collapsing the Margalla Tower in Islamabad. The learned question of promotion rest with the jurisdiction of the competent authority and where the competent authority has violated provisions of law in exercise of its jurisdiction, the High Court in terms of Article 199 of the Constitution can be invoked for readdressing the wrongs. Therefore, this High Court can intervene on addressing the wrong that the Respondent No, 1 are committing against the petitioners. On the question of the qualifications of B-Tech (Hons) being equivalent to B.Sc engineering the former does not have a great weightage than the actual experience of the job without such qualification.
He relied on 'Dr. Muhammad Hussain Vs. Principal Ayub Medial College" (PLD 2003 SC 143). Finally the learned counsel for the petitioner prayed that the writ petition be allowed and that the writ and order of mandamus may be issued for not only declaring the promotion of B-Tech (Hons) employees illegal, unjust, and also that the Respondent No, .1 be directed not to consider Diploma Holders/B-Tech (Hons) for promotion against the posts specified for professional engineer who are registered with the PEC.
5. The learned counsel for Respondent No, 1 stated that CDA is statutory nature and does not warrant invocation of writ jurisdiction in "Ch. Abdul Rashid Vs. CDA" (PLD 1979 Lahore 803). That this writ petition is hit by principle of latches as the Respondents No, 5 and 6 are Diploma Holders of Associate Engineers and were appointed in CDA in 1975 and in 1983 respectively. They were promoted in 1985 on the basis of B-Tech (Hons) degree which has not been challenged by anybody so far. The learned counsel relied on "Fida Hussain Vs. Secretary Kashmir Affairs and Northern Affairs" (PLD 1995 SC 701) in which it was held that the holders of degrees of B-Tech (Hons) are and were eligible for promotion to the next respondents were not engaged in actual professional engineering works, rather they were performing their duties mainly in supervisory capacity in the engineering cadre and that the amendment in CDA Employees (Staff) Service Regulations, 1992 has no baring on this case. The promotions are strictly in accordance with the 1992 Regulations and there is a quota reserved for the B-Tech (Hons) by the CDA Board, and that the eligibility of the encumbrance is for appointment whereas the PEC Act pertains to direct recruitment and the said Act is not applicable in the promotion cases. The learned counsel further contended that the HEC has made it clear that the degree of B-Tech (Hons) is at par with B.Sc (engineering).
6. The learned counsel for Respondent No, 2 stated that under the PEC Act, 1976, Section 27 (5A) clearly states that a person has to be registered with the PEC as an engineer or a professional engineer if he is to perform professional engineer works, he relied on "Fida Hussain Vs. Secretary"
(Civil Appeal No, 442/443 of 1994) (supra), in "Balochistan High Court, D.B. CB 112 of 1996" it was held that professional engineering work can only be assign to a person if he is registered as a professional engineer with PEC, and that any assignment of professional engineering work given to him on account of such promotion will be clear violation of PEC Act, 1976. It was held that although it is within the domain of the Government to decide whether a particular qualification is considered sufficient for appointment promotion in any grade that if the said appointment involved execution of professional engineering work, it would attract mischief of the PEC Act, 1976 and therefore liable to be stuck down as violation of the legislation. The learned counsel vehemently argued that a Diploma Engineer could only however, it is very clear that the PEC does not recognize B-Tech
(Hons) as equivalent to B.Sc (engineering) degree and any action taken by the department to equate B-Tech (Hons) with B.Sc engineering an the appointment of non-qualified persons, to the posts involving professional engineering works is illegal.
7. The learned counsel for Respondents No, 5 and 6 argued at great length, firstly, that the petitioners are employees of the CDA incorporated the CDA Ordinance, 1961 and that their terms and conditions are regulated by statutory services regulations known as .CDA Employees (Staff)
Service Regulations, 1992, and that these regulations have been framed in exercise of the powers conferred by Section 51 of the Ordinance is meanable to Federal Service Tribunals Act, 1973.
Reliance has been made on 'Muhammad Idrees Vs. ADBP & others" (Civil Appeal No, 1394 of 1999) that under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973, no other Court except the Services Tribunal can adjudicate this matter. That this petition is hit by principle of latches, as appointments of the respondents as Sub-Engineers were made in 1975 and in 1983 respectively having qualified a Diploma of Associate Engineer and subsequent promotion as Assistant Director on the basis of B-Tech (Hons) and departmental test by the CDA competent authority in 1985, was not challenged by the petitioner. Under the principle of locus poenitentiae the promotion order impugned in writ petition has been acted upon. That the Respondents No, 5 and 6 have assumed charge and or receiving salary and allowances etc as per their entitlement. Relying on 2003 SCMR 1128, 2003 SCMR 410. Further that as per Fida Hussain's case the Respondents No, 5 and 6 are having B-Tech (Hons) were eligible for in actual professional engineering works and are working in a supervisory capacity on the administration side. He contended that it is CDA being an employer who is to determine the eligibility criteria and that the PEC under the PEC Act, 1976 has no authority for laying down any eligibility criteria for employment in tDA. The CDA board initially in 1995 fixed 5% quota for promotion of Sub-Engineers holding degrees of B-Tech (Hons) and later in 2004 this quota was enhanced from 5% to 10%. The learned counsel relied on a number of case law which can be summarized as follows; "1994 SCMR 1024 (Supreme Court of Pakistan) Mirza Vs. Federation of Pakistan" in which the CDA was to determine the terms and conditions of his employees and Government has no say in the matter and that the regulations do not have a statutory basis in law.
A similar position is in "PLD 1979 Lahore 803 Ch. Abdul Rasheed Vs. CDA". The learned counsel argued at great length on the "Fida Hussain Case PLD 1995 Supreme Court" in which the equivalent of B Tech (pass) and B-Tech (Hons) were discussed and their equivalence. The learned' counsel pointed out that due to the recent 'Muhammad Idrees Vs. ADBP" case (CA 1394 of 1999), while considering the "Mobeen Islam Case PLD 2006 SC 202" confirm that the CDA is governed by statutory rules and hence abated by the Supreme Court of Pakistan. He also relied on "2006 PLC (C.S) 110 (Supreme Court of Pakistan) Asad Bashir Vs. Chairman" indicating that the writ is not maintainable and that this High Court lacks jurisdiction in this matter. The learned counsel also contended that this was a terms and conditions aspect and only the FST and Civil Court has the jurisdiction. That the CDA has rules which are approved by the Federal Government which are statutory in nature, but also has regulations which therefore, the writ does not lie in this case, since the Government has no say in the regulations. Finally the learned counsel stated that there are restrictions on the writ of Quo warranto which is not maintainable, because there are many scores of persons who will be effected if the Respondents No, 5 and 6 will be demoted and will have very far reaching effects on the working of the CDA.
8. From the above arguments and examination of the documents and the case law, it transpires that the legislation of the PEC Respondent No, 2 is very clear in that Section 27(5A) (supra) lays down criteria, the persons eligible to be appointed for performing professional engineer work; from the bare reading it is very clear that only registered and professional engineer have the right to be appointed to perform professional engineering work. This has been endorsed by the amendments made in the CDA employees Service Regulations, 1992. Any appointment of non-qualified engineers into the professional engineer work is a clear violation of the above law and the violators can be punished under the same law. The Respondent No, 1 cannot promote non-professional, non-registered and non-graduates who have Diplomas and B-Tech certificate which are not equivalent in any way into the professional engineering degrees against the posts specified for engineers. It is very clear that B-Tech (Hons) degree and Diploma of Associate Engineering are not at par with B.Sc (Civil Engineering), hence they could not be appointed against the posts specified for professional engineers duly registered with the PEC. The crux of the matter is that Respondent No, 2 is the only regulatory body for the engineering profession in Pakistan and they do not register, un qualified engineers such a those with Cadre which contain post specified for professional engineers, the registration with PEC is a must. If the Respondent No, 1 promotes individuals not only in violation of PEC Act, 1976 and 1992 Regulations, but they are also violating fundamental rights, guaranteed under the Constitution in particular Article 25, which guarantees equal protection of law. The impugned order dated 26th. of May, 2007 clearly promotes assistant Directors Civil BPS-17 to Deputy Director Civil BPS-18 in the Engineering Cadre, as it stands is illegal and unjust since Respondents No, 5 & 6 do not have B.Sc Engineering degrees and or not registered with PEC as required by law.
9. In view of the above, this writ petition is allowed. The impugned order to the extent of Respondents No, 5 and 6 is illegal, void ab-initio, unconstitutional and unjust and the Respondent No, 1 is directed not to consider Diploma Holders/B-Tech (Hans) for promotion against the posts specified for professional engineers unless they are registered with the PEC as required under law and if they are required to perform professional engineering works. Parties to bear their own costs.