' DR. SAJID QURESHI, J.----Brief facts of the case are that the petitioners are professional engineers duly recognized by the Pakistan Engineering Council (P.E.C.) and they joined the C.D.A. 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, nonregistered 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 Nos.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 (P.E.C.) 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 law including the legislation of the P.E.C. Act, 1976.
2. The learned counsel for the petitioner stated that the C.D.A. 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 fundamental rights as 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 Margala Towers in Islamabad, which was as a result of negligence and un-professionalism by non-professionals; the purpose of registration with the P.E.C. 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 P.E.C.
The subject-matter is not involving terms and conditions but simply a provision of the promotion within the C.D.A which has been unlawful and illegal, since it does not implement the P.E.C. 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 P.E.C. He relied on "Fida Hussain v. Secretary" PLD 1995 SC 701, which holds that if the work involves Professional Engineer works then registration with the P.E.C. Is must. Further in "D.B. Decision, Balochistan 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 P.E.C. That the P.E.C. 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 P.E.C. Initially relied on a letter dated 14-1-2006, issued by the P.E.C. In which that B-Tech (Hons) is a program which is not acredited by the P.E.C. It does not register them as engineers. He contended that the P.E.C. 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 P.E.C. 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 P.E.C. Section 27(5A)(1) and
(2) are reproduced as below.
"27(5A). No person shall, unless registered as 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 thousands 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 thousands rupees, or with both and on a second or subsequent conviction, with imprisonment for a term which may extended 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 P.E.C. And noncompliance of these sections, shall attract penalties. In Fida Hussain v.
Secretary Kashmir Affairs PLD 1995 SC 701 the Honourable Supreme Court upheld the earlier judgments of the Supreme Court in Pakistan Diploma Engineering Federation v. Federation of Pakistan". Further, the learned counsel stated that vide notification No,716, (1) 2006 published in Gazette of Pakistan dated 10-7-2006 the respondent No,1 C.D.A. In pursuance of section 27 (5A) of the P.E.C. Act, 1976 amended the C.D.A. Employees (Service) Regulations, 1992 and the following paragraph was 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 from the council at the appointment."
4. That this newly added paragraph was in conformity with section 27 5(A). The learned counsel also stated that the petitioners have sent a letter to Higher Education Commission (HEC), wherein it was clarified that B-Tech (Hons) are not qualified Engineers and for this reason P.E.0 is unable to register them as engineer. The learned counsel stated that the promotion of four Assistant Directors as Deputy Directors including respondents Nos.5 and 6, who are non-graduates, nonprofessional and non-registered by (PEC) respondent No,2, this has caused a grave injustice and utter disregard of the mandatory statutory provisions of the PEC Act, 1976 and that respondent No,1 has violated not only the provisions of the P.E.C. 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 counsel relied on Muhammad Iqbal's case 2007 SCMR 682 in which the 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 wrong. Therefore, this High Court can intervene on readdressing the wrong that the respondent No,1 was 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 v. Principal Ayub Medical College PLD 2003 SC 143. Finally the learned counsel for the petitioners 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 engineers who are registered with the PEC.
5. The learned counsel for respondent No,1 stated that C.D.A. Is statutory nature and does not warrant invocation of writ jurisdiction in Ch. Abdul Rashid v. C.D.A. PLD 1979 Lah.
803. That this writ petition is hit by principle of laches as the respondents Nos. 5 and 6 are Diploma holders of Associate Engineers and were appointed in C.D.A. 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 v. Secretary Kashmir Affairs and Northern Affairs PLD 1995 SC 701 in which it was held that the holders of degree of B-Tech (Hons) are and were eligible for promotion to the next higher grade. The learned counsel made a point that the answering 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 C.D.A 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 C.D.A. Board, and that the eligibility of the encumbrance is for appointment whereas the P.E.C. Act pertains to direct recruitment and the said Act is not applicable in the promotion cases. The learned counsel further contended that the H.E.C. 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 P.E.C. Act, 1976, section 27(5A) clearly states that a person has to be registered with the P.E.C., as an engineer or a professional engineer if he is to perform professional engineering works, he relied on Fida Hussain v. Secretary Civil Appeal No,442/43 of 1994 (supra), in "Balochistan High Court D.B. C.B. 112 of 1996" it was held that professional engineering work can only be assigned to a person if he is registered as a professional engineer with P.E.C., and that any assignment of professional engineering work given to him on account of such promotion will be clear violation of P.E.C. 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 P.E.C. 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 undertake professional engineering works if he is registered with P.E.C. However, it is very clear that the P.E.C. 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 and the appointment of non- qualified persons to the posts involving professional engineering work is illegal.
7. The learned counsel for respondents Nos.5 and 6 argued at great length, firstly, that the petitioners are employees of the C.D.A. Incorporated in the C.D.A. Ordinance, 1961 and that their terms and conditions are regulated by statutory services regulations known as C.D.A. 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 amenable to Federal Service Tribunals Act, 1973.
Reliance has been made on Muhammad Idrees v. A.D.B.P. And 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 laches, 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 C.D.A. Competent authority in 1985, was not challenged by the petitioners. Under the principle of locus poenitentiae the promotion order impugned in writ petition has been acted upon. That the respondents Nos.5 and 6 have assumed charge and are 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 Nos.5 and 6 are having B-Tech (Hons) were eligible for promotion to the next higher grade and that they are not engaged in actual professional engineering works and are working in a supervisory capacity on the administration side. He contended that it is C.D.A. Being an employer who is to determine the eligibility criteria and that the P.E.C. Under the P.E.C. Act, 1976 has no authority for laying down any eligibility criteria for employment in C.D.A. The C.D.A. Board initially in 1995 fixed 5% quota for promotion of Sub-Engineers holding degree 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 v. Federation of Pakistan" in which the C.D.A. 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 Ch. Abdul Rasheed v. C.D.A. PLD 1979 Lah.
803. The learned counsel argued at great length on the Fida Hussain's case PLD 1995 SC 701 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 v. A.D.B.P." case Civil Appeal No,1394 of 1999, while considering the Mobeen Islam's case PLD 2006 SC 202 confirm that the C.D.A. 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 v. 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 F.S.T.
And Civil Court have the jurisdiction. That the C.D.A. Has rules which are approved by the Federal Government which are statutory in nature, but also has regulations which have been approved by the Board of Directors and hence non-statutory, 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 affected if the respondents Nos.5 and 6 will be demoted and will have very far reaching effects on the working of the C.D.A.
8. From the above arguments and examination of the documents and the case-law, it transpires that the legislation of the P.E.C. Respondent No,2 is very clear in that section 27 5-A (supra) lays down criteria, the persons eligible to be appointed for performing professional engineering work; from the bare reading it is very clear that only registered and professional engineers have the right to be appointed to perform professional engineering work. This has been endorsed by the amendments made in the C.D.A 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 certificates which are not equivalent in any way to the professional engineering degrees against the posts specified for professional 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 P.E.C. 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, unqualified engineers such as those with B-Tech. (Hons.), in order for promotion of an individual to the Engineering Cadre which contains posts specified for professional engineers, the registration with P.E.C. Is a must. If the respondent No,1 promotes individual not only in violation of P.E.C. 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 its stands is illegal and unjust since respondents Nos.5 and 6 do not have B.Sc. Engineering degrees and are not registered with P.E.C. As required by law.
9. In view of the above, this writ petition is allowed. The impugned order to the extent of respondents Nos.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 (Hons) for promotion against the posts specified for professional engineers unless they are registered with the P.E.C. As required under law and if they are required to perform professional engineering works. Parties to bear their own costs.