' SHAHID ANWAR BAJWA, J.---Facts leading to this petition are that petitioner was inducted in BS-11 as Sub Engineer in Sindh Councils Unified Grades (hereinafter referred to as SCUG) Service with effect from 28-12-2005. Educational qualification of the petitioner was that he acquired Degree of B.Tech (Hons) from NED University of Engineering & Technology, Karachi in 2004. It is contended in a petition that B. Tech (Hons) is at par with B.E/B.Sc. (Engineering) in terms of Policy laid down by letter dated 17-3-1973 issued by the Federal Government. Vide Notification dated April 4, published in Sindh Government Gazette on April 21, 2005, Sindh Councils Unified Grades Rules 1982 (Engineering Branch) were amended. In respect of employment in Basic Scale 17 it was provided as under:-- "Basic Scale 17: Minimum Qualification:---Degree in Engineering or B.Sc (Engineering); or an equivalent qualification in civil or Mechanical and Electrical Engineering from a recognized University and registered with Pakistan Engineering Council.
(i) Fifty per cent by initial appointment
(ii) Twenty per cent by promotion from amongst the Sub-Engineers having qualification of BE/BSc in Civil Electrical or Mechanical with at least five years service.
(iii) Fifteen per cent by promotion from amongst the Sub-Engineers having qualification of B.Tech
(Hons) with at least five years of service as such; (iv). Fifteen per cent by promotion from amongst the diploma holders sub-engineers on the basis of seniority cum fitness with at least five years of service as such; ' Note.--Seniority of the Sub-Engineers would be maintained separately qualification wise i.e, BE, B.Tech (Hons) and diploma holders,
2. This constitutional petition was filed with the following prayers:-- A. Declare that the PEC Act, 1976, directs only for regulation of practice of the profession of engineering and consultancy in private sector and it never governs the public sector engineering works and the public service engineers of Government/Semi Government Departments who are not registrable with the respondent No,7 under the PEC Act.
B. Declare that the public engineering works of the Government/ semi-Government Institutions are not professional engineering works and the engineers employed by the respondents Nos.1 to 6 for execution of such public engineering works, are not doing practice of engineering profession, but doing public engineering service which cannot be treated as practice of the professional of engineering and consultancy in Government/semi-Government Institutions.
C. Declare that the respondent No,7 possesses no authority and no jurisdiction of issuing directions to and requiring the respondents Nos.1 to 6 for including requirement of "Professional Engineering" in their recruitment rules, for not recognizing the Government prescribed and the recognized Engineering University's conferred engineering degree of B.Tech (Hons), and for getting engineers of the Government/semi-Government Departments registered with the respondent No,7.
D. Declare that the acts of the respondent No,7 restraining the respondents from implementing the Federal Government Laws prescribed by the respondents Nos.1 and 2 for non-registration of the Government/semi-Government Engineers with the respondent No,7 and of the Engineering Degree of B.Tech (Hons), through its (respondent No,7) letter No,PEC/Reg/ 017/1-A/96, dated 13-4-1996 and No, PEC/Reg/067/96, dated 16-5-1996, are coram non judice, without jurisdiction, mala fide and void. E. Declare that the act of respondent No,7 directing the respondent No,3 for not deleting the requirement of "Professional Engineering" from the recruitment rules and stressing that it (respondent No,7) does not recognize B.Tech (Hons) as engineering degree, through its (respondent No,7) letter No,PEC/063/99, dated 2073-1999, is coram non judice, without jurisdiction, mala fide and void. F. Declare that the respondent No,7 is liable for actior under section 30 of the PEC Act, 1976, for its default and for 'mproper working of interfering in the working of the respondents Nos. 1 to 6 incompatible to the PEC Act perpetrated through their Letters No, PEC/Reg/017/1-A/96, dated 13-4-1996, No, PEC/Reg/067/96, dated 16-5-1996 and No, PEC/63/99, dated 20-3-1999.
G. Declare that the respondents Nos.1 to 6 are under obligatory duty of performing functions and administering service matters of their Public Engineering Works Departments in accordance with the Government Works Laws/ Rules and the Civil Servants Act/ Rules enforced by the Government and not under the PEC Act, 1976, and not under the directions of the respondent No,7.
H. Declare that the acts of the respondent No,3 and consequently of the respondents Nos.4 to 6 in accepting and implementing the void dictates of the respondent No,7 for not acting upon the Federal Law about the B.Tech (Hons) engineering degree, for not deleting from the recruitment rules the requirement of registration of Government/semi-Government engineers as Professional Engineer with the respondent No,7, and for not treating B.Tech (Hons) as engineering degree, are coram non judice, withotu jurisdiction, mala fide and void. I. Declare that the acts of the respondents Nos.3 to 6in violating the Federal Laws contained in the O.M.No,CDN-II-2/7/95-1, dated 14-3-1996 and O.M.No, F. 8-1/94-Polytechnic, dated 17-4-1996, are malfeasance, nonfeasance, misfeasance, coram non judice, without jurisdiction, mala fide and void. J. Declare that if the Engineers of the Public Engineering Works Departments of the Government /semi Government institutions are found involved in the practice of "Profession of Engineering and Consultancy" in private second over and above their Public Service duties, they would be accused of misconduct under the Government servants conduct rules as well as of the respondent No,7 under section 27 of the PEC Act, 1976.
K. Declare that under law the B.Tech (Hons) is unexceptionably and mandatorily engineering degree at par with the B.E./B.Sc. (Engg) degrees and its non-recognition by the respondent No,7 has no effect on its academic degree status and on its prescription by the Government/ semi- Government departments for their service matters. L. Declare that the 33% departmental quota for promotion of B.E./B.Sc. (Engg)/B.Tech (Hons) Graduate Sub-Engineers to BS-17 prescribed for the Civil Servants under the Sindh Government Notification No,SOEII(C& W)1-8/31/92 (Pt.II), dated 30-9- 1994, being the matter not contained in the SCUG Service Rules, 1982, the same stood attracted and mandatorily operated to the SCUG Service (the petition) under Rule 14 ibid and under the apex Judgment as "2003 SCMR 813)".
M. Declare that the Amendment Rules prescribing impossible and unlawful condition of registration of B.Tech(Hons) with the respondent No,7, providing discriminatory promotion quotas of 20% and 15% for the at par degrees of B.E./B.Sc. (Engg) and the B.Tech (Hons) respectively, and for keeping separate discriminatory seniority lists of the two at par graduates enforced by the respondents No,5 and 6 through their Notification No, SLGB/SCUG/Engg-II/4(595)3004/1014, dated 4-4-2005, are void under Clause (2) of Article 8 of the Constitution of the Islamic Republic of Pakistan, 1973.
N. Declare that discrimination practiced by the respondents Nos.5 and 6 with the petitioner in application of Rule 14 of the SCUG Service Rules, 1982, and by not treating the petitioner alike to his counterparts, is void being repugnant to Article 25 of Constitution of Pakistan, 1973, and that the respondents are mandatorily required to equally cover the petitioner according to his existing promotion laws and treat him alike to the similarly benefited servants.
0. Declare that inaction of the respondents Nos.5 and 6 on the representation made on 3-9-2005, on the objections on void amendments files on 30-4-2005, and on the legal notices dated 24-3- 2005 and 14-5-2005 of the petitioner, is nonfeasance and malfeasance and also unlawful penalization of the petitioner by the respondents. J. Direct the respondents Nos.3 to 6 to act upon the apex, Federal and Sindh Education Department laws which have treated B.Tech(Hons) as Engineering Degree at par with the B.E./B.Sc. (Engg.) degrees and have withdrawn/ deleted the condition of registration with the Pakistan Engineering Council from the recruitment rules, and thereby perform the duty enjoined upon them recruitment rules, and thereby perform the duty enjoined upon them by law. Q. Direct the respondents Nos.3 to 6 to desist from acting upon the void directions from the Pakistan Engineering Council regarding non-recognition of B.Tech(Hons)
Engineering Degree and for inclusion of the requirement of registration with the Pakistan Engineering Council in the recruitment rules and thereby perform the duty enjoined upon them by law. R. Direct the respondents Nos.3 to 6 to stop discriminatory application for the rules and to act upon the decide the promotion matter of the petitioner under Rule 14 of the SCUG Service Rules, 1982, read with the 33% Departmental quota for promotion of the Graduate Sub-Engineers to BS-17 prescribed under the Sindh Government Recruitment Rules No,SOEII(C&E)1-8/31/92/(Pt. II), dated ?
0-9-1994, mandatorily operative to the petitioner, and as per real resolution No,8 dated 10-4-2004, passed by the respondent No,6 (the DPC) within four weeks and thereby perform the duty enjoined upon them by law. S. Direct the respondents Nos.1 and 2 to institute action against respondent No,7 under section 30 of the PEC Act, 1976, for its default and for improper working of interfering in the working of the respondents Nos.1 to 6 not compatible to the PEC Act, 1976, through their letters No,PEC/Reg/017/1-A/96 dated 13-4-1996, No,PEC/Reg/067/1996 dated 16-5-1996 and No,PEC/063/99, dated 20-3-1999.
3. Learned counsel for petitioner first referred to Rule 14 of the Sindh Councils Unified Grades Service Rules 1982. The rule is in the following words: "In all matter not expressly provided for in these rules the members of the service shall be governed by general rules applicable to the civil servants as are prescribed by Government."
4. Learned counsel referred to a letter dated 26-10-1973 issued under the signatures of the then Minister for Education and Provincial Coordination written to Governors of the four provinces. In the letter the then Minister addressed them in the following words:-- "From: Mr. Abdul Hafeez Pirzada, Minister for Education and Provincial Coordination.
' My Dear Governor, ' As you may be aware the Polytechnic Diploma Holders had been agitating for a long time for provision of facilities for higher education. In order to resolve this issue in consultation with the Provincial Governments various Associations of the Polytechnic Diploma Holders, I convened a meeting on the 20th October, 1973 of the Chairman/Directors for Technical Education in the Provinces, Principals of Polytechnics, Representatives of Engineering Universities/Colleges and Representatives of various Associations of the polytechnic Diploma Holders. It was decided that steps should be taken to introduce the degree programmers for the polytechnic diploma holders without further delay.
2. As envisaged in the new Education Policy, the following programmer was adopted. There will be two degree courses for diploma holders (i) B.Tech. (Pass) and (ii) B.Tech (Honours).
3. Admission to the B.Tech (Pass) course shall be subject to the candidates fulfilling the following minimum requirements.
(i) Three years diploma from a Polytechnic institute in first Division.
(ii) Two years, industrial training/experience. Candidates without industrial experience shall be required to undergo one year's supervised/guided practical training in industry to be arranged by the institution concerned.
(iii) Performance in the admission test.
4. B. Tech (Pass) course will consist of a year's program me of studies at the institution. The degree of B.Tech (Pass) shall be treated at par with a Bacholar's degrees in Science.
5. Candidates having successfully completed B. Tech (Pass) degree course shall be eligible for admission to a two years B.Tech (Honours) course. The first year of this course will comprise (Honours) course. The first year of this course will comprise supervised/guided industrial training during which the students shall be assigned specific projects relevant to their fields of study. The second year will consist of intensive study at the institution. B.Tech (Honours) shall be treated at par with B. Sc . (Engineering)/B. E . Degree.
' It was also decided that so long as necessary facilities do not exist in Balochistan and N.-W.F.P.
And other backward areas, Federal Government will arrange placement of students from these areas in other Provinces.
' You are requested to kindly direct the relevant authorities of your Province to implement these decisions urgently.
' With regards. Yours sincerely (Sd).
(Abdul Hafeez Pirzada).
5. Learned counsel further submitted that it is a case of discrimination for promotion and it violated Article 25 of the Constitution of the Islamic Republic of Pakistan. He submitted that the Pakistan Engineering Council (respondent No,7) was violating not only directive of the Government but also Article 25 of the Constitution because it does not treat degree of B.Tech (Hons) as equal to B.E./B.Sc.
(Engineering). Learned counsel further submitted that Rules framed by the Provincial Government or prescribing quota of 20 per cent for B.E./B.Sc. (Engineering) and 15 per cent for B.Tech(Hons) graduates is also similarly violative of the constitution.
6. Although petition contains 15 prayer clauses for declarations and 4 for directions, learned counsel contended that his grievance is primarily three fold; firstly degree of B.Tech (Hons) be treated as equivalent to the degree of B.E./B.Sc. (Engineering) both by the Provincial Government as well as by the Pakistan Engineering Councils; secondly, Pakistan Engineering Councils be directed to include holders of B.Tech (Hons) degree among Professional Engineers and thirdly reservation of separate quota for B.Tech (Hons) and separate quota for B.E./B.Sc. (Engineering), the two degrees being equal is violative of Article 25 of the Constitution. Learned counsel relied upon Fida Hussasin v. The Secretary, Kashmir Affairs and Northern Affairs Division Islamabad and another PLD 1995 SC 701 and Administrator, Municipa. Corporation v. Muhammad Arshad and others 2003 SCMR 813. In support of his contention that Pakistan Engineering Councils exercises public power learned counsel relied upon Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd. Tokht Bhai and 10 others PLD 1975 SC 244.
7. Mr. Adnan Karim learned A.A.-G. Has submitted that qualification of B.Tech (lions) and B.E./B.Sc.
Are different and they are not equivalent or equal with each other. He relied upon Pakistan Diploma Engineers Federation (Registered) Through its Chairman v. Federation of Pakistan through Secretary, Ministry of Water and Power, Government of Pakistan, Islamabad and 9 others 1994 SCMR 1807, and Muhammad Azim Jamali and 11 others v. Government of Pakistan through Secretary/Chairman, Ministry of Railway and 33 others 1992 PLC (C.S.) 637. Learned A.A.-G. Has relied upon I.A. Sharwani and others v. Government of Pakistan Through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041.
8. We have considered submissions made by the learned counsel and have also gone through the record as well as case law cited at'bar.
9. A brief reference to the provisions of the Pakistan Engineering Councils Act, 1976 may be relevant at this stage. Pakistan Engineering Councils Act received assent of President of Pakistan on January 10, 1976. It defines "professional engineer" as under:-- ' Section 2(j).---"professional engineer" means a person who holds a recognized engineering qualification and is registered as a professional engineer.
' It also defines engineering public organization as under:-- ' Section 2(f).--"engineering public organization" means a Department of the Federal Government or a Provincial Government, a public Corporation, autonomous or semiautonomous body, cantonment board, municipality, improvement trust or other local authority; ' It defines "professional engineering works" and then it defines "recognized engineering qualification" as under:-- ' Section 2(1).--"recognized engineering qualification" means any of the qualifications included in the First Schedule or the Second Schedule;
10. Section 3 provides for Constitution and incorporation of Engineering Council. Sections 4 to 7 provide for various meetings of the Engineering Councils. Section 8 lays down functions of the Engineering Council and the functions relevant for the purpose of this petition are; (a) (b), (h).
Same areas under:--
(a) maintenance of a Register of persons qualified to practice as professional engineers and consulting engineers;
(b) recognition of engineering qualifications for the purpose of registration of professional engineers and consulting engineers;
(h) promotion of engineering education and review of courses of studies in consultation with the Universities;
11. Section 9 provides for Executive Committee. Section 10 deals with recognition of domestic qualifications and section 11 does the same for foreign institutions. It is in the following words:--
10. Recognition of engineering qualifications granted by institutions in Pakistan.---(1) The engineering qualifications granted by engineering institutions in Pakistan which are included in the First Schedule shall be the recognized engineering qualifications for the purposes of this Act.
(2) Any engineering institution in Pakistan which grants an engineering qualification not included in the First Schedule may apply to the Council to have such qualification recognized, and the Council may, by notification in the official Gazette, amend the First Schedule so as to include such qualification therein.
12. Section 12 relates to grant of temporary licenses to a person domiciled outside Pakistan who does not hold any recognized engineering qualification. Section 13 confers power on Counsel to require information from engineering institution in Pakistan which grant recognized qualification as to courses of study undergone in order to obtain such qualifications. Section 14 confers power on the Council to appoint such number of inspectors to attend any or all examinations held by the institutions in Pakistan. Section 16 relates to maintenance of register of profession engineers and consulting engineers provides as under:-- 16.Maintenance of Register, etc.--(1) The council shall maintain in the prescribed manner a Register in which shall be entered the names and other particulars of persons possessing recognized engineering qualification whose applications for registration as professional engineers and consulting engineers are from time to time granted by the counsel.
(2) Every application for registration under this Act shall be made to the Council in the prescribed form and be accompanied by the prescribed fee.
(3) Every professional engineer and consulting engineer registered under this Act shall be entitled to receive a certificate registration under the hand of the Registrar.
(4) A certificate of registration issued under subsection (3), shall, subject to the provisions of this Act, remain in force until the thirty first day of December of the year in which it is issued and shall thereafter be renewable for any number of years not exceeding three at a time upon payment of the prescribed fee.
13. Section 17 relates to registration and removal of names from register and section 18 provides an appeal against such removal. Section 19 relates to revision of register and section 20 relates to complaints against professional engineers. Rest of sections provide various ancillary provisions and rules making power.
14. First Schedule give a list of Universities in Pakistan and other Institutions which grant degrees which are recognized by the Engineering Council. Second Schedule similarly refers to degrees, diplomas etc. Granted by Foreign Universities and Institutions which are recognized by the Pakistan Engineering Council.
15. Above survey indicates that in the First Schedule universities are named and various degrees issued by those universities are recognized engineering qualifications under section 2(1) are specified and professional engineer, as defined in section 2(j), is a person who holds a recognized engineering qualification and is registered as a professional engineer. Section 10 confers power on the Council, by notification in the official gazette, to amend the First Schedule so as to include in it such qualification which is not originally included in it. Thus Council has been conferred power under section 10 to grant recognition to various engineering qualifications and once it recognizes a qualification, law confers power, on Pakistan Engineering Council, of amending First Schedule accordingly. Section 16 of the Act provides that all professional engineers and consulting engineers are required to get themselves registered under the Act and it is provided in the Act that no professional engineering work shall be undertaken by a person whose name is not borne on the register maintained by the Pakistan Engineering Council.
16. Having looked at Pakistan Engineering Council Act, 1976 it may be relevant to refer to case law on the issues involved in this case. Leading case is of Fida Hussain v. The Secretary, Kashmir Affairs and Northern Affairs Division, Islamabad and Another PLD 1995 SC 701. In this case the Supreme Court first referred to letter issued by the Minister for Education and Province Coordination on 26- 10-1973. We have already reproduced that letter. The letter set out policy of government that qualification of B-Tech (Hons) shall be treated at par with B.Sc. (Engineering)/B.E. Degree. Certain employees who had cleared B-Tech (pass) and B-Tech (Hons) were promoted to BS-17 by the authority concerned. Petitioner Fida Hussain was not so promoted. Administrator Northern Areas, Gilgit was informed by the Chief Engineer that petitioner could not be promoted as Pakistan Engineering Council did not recognize B-Tech (Hons) as equivalent to B.Sc. (Engg). Thereupon, petitioner filed departmental appeal which was rejected. Appeal before the Federal Service Tribunal followed and that appeal was dismissed upholding that Pakistan Engineering Council was appropriate body to give opinion and Pakistan Engineering Council did not accept B.E. / B.Sc.
(Engineering) degree of B-Tech (Hons) as equal to B.Sc. Degree. Civil Petition for Leave to Appeal was filed in the Supreme Court and leave to appeal was granted. However, appeal was dismissed and thereafter a review petition was filed. Moot question was noted by the Supreme Court in the following words:- "We are, therefore inclined to hold that factually the policy decision contained in the above quoted letter of Minister of Education and Provincial Coordination dated 26-10-1973 was implemented.
Even if we were to hold that the Pakistan Engineering Council had not approved the above equivalisation of the above academic degrees, it would not make any difference as the basic question in the present case which escaped notice of the learned Judges of the Bench of this Court which rendered the judgment involved is, as to whether the Pakistan Engineering Council is competent to decide the question, whether a particular academic degree should be accepted as sufficient academic qualification for promotion of civil servants and employees of the semi- Government organizations from a particular lower grade to a particular higher grade or is it within the domain of the Government or the semi-Government organization concerned."
17. Thereafter Supreme Court referred to judgment of this Court in Muhammad Azim Jainali's case (supra). In this case which was heard by a Division Bench, there was difference of opinions between two Members of Bench and consequently matter was referred to third learned Judge who held as under:-- "From the above debates in the National Assembly, it would appear that the object of introducing the Engineering Council Bill of 1975 was to bring the engineering profession on the same line and make it subject to similar check and control as are applicable to the Medical and Legal Profession, by creating an Engineering Council in line with the Medical Council and the Bar Council. Ajmal Mian, C.J. (as he then was) in his judgment compared the provisions of the Act with the provisions of Legal Practitioners Act and observed that the provisions of the Legal Practitioners Act are applicable only to the practicing advocates and are not extended to persons having legal qualification who are employed in Statutory Corporations, and other Departments though they may be tendering legal advices in course of their such employment. The observations of Ajmal Mian, CJ., appears to be in accord with the objects of the Act. I am, therefore of the view that merely because a person possesses an engineering qualification and is employed on a job which requires engineering skill does not mean that he must be registered under the Act."
18. The Supreme Court concurred with this view of the High court in Pakistan in Diploma Engineers Federation (Registered) case (supra). Facts were that on 2-3-1987 Secretary Railway communicated decision to all the Chief Engineers directing them that no promotion was to be made in BPS-18 and above of any person who did not hold recognized qualification as recognized by the Pakistan Engineering Council. Subsequently, Chief Secretary Punjab had taken issue with Pakistan Engineering Council and it was informed that diploma holders are not entitled to be promoted to Grade 18. Consequently, it was ordered that combined seniority list of graduate engineers and diploma holders will not be in conformity with the Pakistan Engineering Council Act and that any further promotion of diploma holder in BS-18 would be in violation of the provisions contained in the Act of 1976. Consequently, writ petition was filed in the High Court. High court dismissed writ petition holding that petitioner is a body registered under the Societies Act, 1860 and that a registered body could not be deemed to be an aggrieved person within the meaning of that expression in Article 199 of the Constitution of the Islamic Republic of Pakistan. It was further held that issue involved related to terms and condition of members of society and not of society itself.
Matter was taken to the Supreme Court. Muhammad Azim Jamali's case was referred to and opinion of Mr. Justice Saeed-uzZaman Siddiqui referred to in that case was upheld by the Supreme Court.
19. We may also refer to Muhammad Younus Aarin v. Province of Sindh through Chief Secretary Sindh Karachi and 10 others 2007 SCMR 134. The petitioner a grade 19 officer of Government of Sindh in Engineering Cadre filed Constitution Petition in this Court voicing his grievance that he had not been considered for promotion to BS-20 and the High Court in the light of assurance given by Additional Advocate-General for redressal of his grievance at departmental level disposed of writ petition accordingly. Departmental Selection Board in its meeting after considering the matter recommended petitioner for promotion to BPS-20 subject to advice of Law Department.
Administration department instead placing case before the competent authority again referred it to Selection Board and Selection Board having taken notice of the fact that petitioner was not a registered professional engineer, registered with the Pakistan Engineering Council held him not eligible for promotion. Two fold contentions were advanced in the High Court. Firstly, once selection committee had given its recommendation matter could not be sent back to it for reconsideration and secondly, registration with PEC was not requirement under the Sindh Councils Unified Grades Service Rules, 1982 and the Promotion policy of Sindh Government. It was contended that petitioner belonged to engineering cadre and had been performing engineering works during his service. The cases of Pakistan Diploma Engineers Federation (Registered) and Fida Hussain were relied upon.
The Supreme Court held that a diploma engineer is certainly "not qualified engineer in terms of Pakistan Engineering Councils Act, 1976 and cannot claim status of engineer at par with the professional engineer registered with PEC". The honourable Supreme Court in Muhammad Younus Aarin (supra) observed as under:--
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."
20. Therefore, honourable Supreme Court referred to SCUG Service Rules, and laid down as under:--
7. The basic qualification for a professional engineer under the law is B1Sc. 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 petition (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 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 Engineering Branch with at least 17 years experience as such in Grade-17 and above."
8. The above rules envisages clearly that a person can be considered for promotion to BPS-20 in the Engineering Branch of Government of Sindh, subject to fulfillment to the condition of basic qualification of a professional engineer prescribed under Pakistan Engineering Council Act, 1976 and a diploma holder being not a professional engineering 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 fulfillment 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 with 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 fulfilment of the criteria and the requisite qualification.
21. The above discussion indicates the position to be very clear. Firstly; it is the domain, and exclusive domain, of the Pakistan Engineering Council to recognize or not to recognize an engineering qualification. In fact, reading of Schedule II indicates that in certain cases Diplomas granted by foreign institutions e.g. Austria, Czechoslovakia, Hungry, Switzerland etc. Are recognized as engineering qualification and in certain other cases Master Degree in Engineering is recognized as Engineering Qualification. Therefore, it is exclusive domain of Pakistan Engineering Council to recognize or not to recognize a particular qualification. Secondly, Pakistan Engineering Council being apex body of engineering profession in Pakistan, just as Pakistan Bar Council is apex body of legal profession in Pakistan, Pakistan Medical and Dental Council is the apex body of medical profession in Pakistan has jurisdictions to recognize degrees issued by various educational institutions in Pakistan as well as abroad. Thirdly, and it should go without saying, for recognition of such degrees council must be considering standards of education of particular institution, contents of the courses, horizontal spread and vertical depth of the courses, and whether standards and contents of curriculum of training tests contained for the two different degrees are similar or identical and other cognate factors before arriving at the conclusion whether a particular educational qualification should be or should not be recognized. Fourthly, this Court cannot substitute its finding for finding by a professional body which has been conferred jurisdiction to grant recognition or not to grant recognition to a particular educational qualification.
22. In the case of petitioner he has been granted degree of Bachelor of Technology (Hons) by NED University of Engineering and Technology. A reading of First Schedule of Act of 1976 indicates that degree or Bachelor of Engineering granted by the same university is recognized by the Pakistan Engineering Councils under section 2(1) of the Act. Why NED University issues degree of Bachelor of Engineering to one set of students and B. Tech. (Hons) to another set of students indicates that the steams through which the two sets of students emerge are different and contents of course of study must also be different and nothing has been placed on record to establish that horizontal spread and vertical depth of curriculum for these two different degrees are similar or identical. In any case this must have been taken into consideration by the university authorities and that is the reason two degrees are given separate titles and therefore same cannot be equated with each other. Moreover it has been prayed that the university be directed to give the same title to the two degrees i.e, degree of B.Tech. (Hons) and B. E. /B.Sc. (Engineering).
23. Learned counsel for petitioner heavily relied upon his contention that treating the two degrees differently constitutes discrimination and is violative of Article 25 of the Constitution of the Islamic Republic of Pakistan. Although learned counsel for the petitioner did not cite any case law in support of his proposition, seminal case on this moot point is the case of I.A. Sharwani (supra). The Supreme Court in this judgment has observed as under:-- "---It would, therefore, be advantageous to reproduce here in below the above Article, which reads as follows:-- 25(1) All citizens are equal before law and are entitled to equal protection of law.
(1) There shall be no discrimination on the basis of sex alone.
(3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children."
' It may be noticed that above-quoted clause (1) enshrines the basic concept of religion of Islam.
However, this is now known as the golden principle of Modern Jurisprudence, which enjoins that all citizens are equal before law and are entitled to equal protection of law. The above clause corresponds to 14th Constitutional Amendment of the American Constitution, which inter alia provides that 'no State shall deny to any person within its jurisdiction the equal protection of law.
However, the above clause does not prohibit treatment of citizens by a State on the basis of a reasonable classification. The question, therefore, arises what should be the basis or criterion for classification as to avert violation of the above clause."
24. Thereafter after referring to as many as 11 cases from Pakistani as well as foreign jurisdiction the honourable Supreme Court summarized the position in the following words:-- "26. From the above cited cases the following principles of law are deducible:--
(i) that equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike;
(ii) that reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis;
(iii) that different laws can validly be enacted for different sexes, persons in different age groups, persons having different financial standings, and persons accused of heinous crimes;
(iv) that no standard of universal application to test reasonableness of a classification can be laid down as what may be reasonable classification in a particular set of circumstances, may be unreasonable in the other set of circumstances;
(v) that a law applying to one person or one class of persons may be constitutionally valid if there is sufficient basis or reason for it, but a classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25;
(vi) that equal protection of law means that all persons equally placed be treated alike both privileges conferred and liabilities imposed;
(vii) that in order to make a classification reasonable, it should be based;-
(a) on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out;
(b) that the differentia must have rational nexus to the object sought to be achieved by such classification."
25. The Supreme Court also, with approval referred to V.N. Shukla's Constitution of India 7th Edition that "following principle of reasonable classification does not violate" Article 25 of the Constitution.
However, "such classification must be based on criteria which are not arbitrary but must be found on rational bases". In the present case there are two streams of students; one who go for B.E./ B.Sc.
(Engineering) degree and other who go for B.Tech (Hons). They come through different courses. In one case after passing F.Sc or A Level examination students undergo 4 years of degree programme in the university whose qualification is recognized by Pakistan Engineering Council. In the second case the students start studying for diploma after matriculation and then after completion of three years diploma and following certain regime they ultimately acquire B.Tech. Not only system is different but the fact that university grants two separate degrees would indicate that horizontal spread and vertical depth of courses must be different and no material has been placed on record of this Court to suggest the conclusion that horizontal spread and vertical depth of the two courses of study is the same. In any case this requires expert professional opinion and evaluation and the universities as well as 'apex engineering professional body i.e, the Pakistan Engineering Council are much better placed in this regard and this Court should be most reluctant to substitute its finding for the conclusion arrived at by the authorities which authorities possess appropriate technical, academic and professional qualification and which authorities have been conferred specific power by law to decide the matters in this regard.
26. Since this Court has clearly observed in Muhammad Younus Aarin case (supra) that it is settled law that diploma engineer cannot be recognized as a professional engineers who hold recognized professional engineering qualification, prescription of separate quota in the SCUG rules is not violative by provisions of the Sindh Local Government Ordinance, 1979. They in no way constitute discrimination or violate Article 25 of the Constitution of the Islamic Republic of Pakistan.
27. Result of the above discussion is that this constitution petition is dismissed.