' MUNIR AHMED CHAUDHARY, J.--- The supra titled writ petitions have been filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. These petitions are disposed of through a single judgment.
2. Brief facts as stated in Writ Petition No,518 of 2012 are that the petitioners are First Class State Subjects of Azad Jammu and Kashmir and having a qualification of B.Sc. Engineering. The petitioners are permanent employees of Public Works Department. Petitioner No,1 belongs to District Muzaffarabad while petitioner No,2 is a refugee settled in Pakistan. Both are performing their duties as Sub-Divisional Officers. Pakistan Engineering Council Act, 1976 has been adopted in AJ&K vide notification dated 29-3-1986. Section 27(5A) narrates as under: "5A. No person shall, unless registered as a registered Engineer or professional Engineer hold any post in an Engineering Organization where he has to perform professional Engineering work."
' It was stated in the petition that the private respondents are B.Tech. Honours Engineers who are not registered with Pakistan Engineering Council professional Engineer because the B.Tech.
Honours Engineer is not equal to B.Sc. Engineering and has not been mentioned in the schedule of Pakistan Engineering Council Act. The private respondents have illegally been appointed as Executive Engineers-on current charge basis by the official respondents through notifications dated 18-2-2008, 22-7-2008, 29-1-2009 and 30-10-2008. These appointments were Made 2/3 years before, which are against the law. According to section 10-B of appointment and conditions of Service Rules, 1977, the appointments are made on current charge basis for six months only.
Therefore, the appointments of private respondents have come to an end after expiry of six months, whereas the official respondents have allowed to the private respondents to carryon their functions up till now, which is against the provisions of law. The official respondents are liable to be directed to fill up the said posts of Executive Engineers in the light of Pakistan Engineering Council Act and departmental rules. It was prayed to issue a writ of quo warranto asking the private respondents that under what authority of law they are performing their functions as Executive Engineers on current charge basis after expiry of six months period? It was further prayed to order the private respondents to vacate the said posts and the official respondents may be directed to fill up the posts of Executive Engineers B-18 in the Public Works Department on permanent basis in accordance with Pakistan Engineering Council Act, 1976 and to forward the matter to the relevant selection board.
4. The official respondents stated their version through written statement. It was stated by the official respondents that Pakistan Engineering Council Act, 1976 has been enforced in Azad Jammu and Kashmir. The private respondents have been appointed due to stop gap arrangements on current charge basis. The private respondents are not eligible to be appointed on the said posts.
These posts will be filled up in accordance with the provisions of law and the private respondents shall be sent back to the posts of Assistant Engineers B-17. It was further stated that the matter has been forwarded for approval of the Government. It was prayed to decide the writ petition in accordance with the provisions of law.
5. The private respondents stated through their written statement that the instant writ petition is hit by the doctrine of laches and acquiescence. The controversy relates to terms and conditions of civil servants for which the Service Tribunal has exclusive jurisdiction and the jurisdiction of this court is barred by law. Petitioner No,1 is not an aggrieved person because he is no more a civil servant of Central Design Office. So, he has no locus standi to file the writ petition. Petitioner No,2 is placed at serial No,52 and the answering respondents have been placed at serial Nos. 19, 23, 25, 26 and 27 in the departmental seniority list. A bulk of Executive Engineers in the PWD Department have been appointed on current charge basis for many years and it became a consistent practice in the department. The petitioners have not challenged the current charge appointments of other Executive Engineers. Respondent No,7 Kh. Mohammad Azam has been appointed on officiating basis vide notification dated 30-1-2009, 'which has not been challenged by the petitioners. The petitioners have not arrayed necessary parties in the line of respondents. It was further stated by the private respondents that Pakistan Engineering Council Act is not enforceable in the State because it cannot be extended to the Azad Jammu and Kashmir territory without proper legislation by the competent authority. The private respondents have been appointed in accordance with the provisions of law and seniority list of the department. It is duty of the department to forward the cases of answering respondents to the concerned selection board for regular promotion as they cannot be penalized due to fault of the department. It was prayed to dismiss the writ petition with costs.
6. The facts stated in Writ Petition No,87 of 2013 are that the petitioners (the private respondents of Writ Petition No,518 of 2012) are permanent employees of AJ&K Public Works Department and holders of B.Tech. Honours Degree from different universities recognized by Pakistan Higher Education Commission. The petitioners were initially appointed as Sub-Engineers and thereafter were promoted as Assistant Engineers B-17. The posts of Executive Engineers B-18 have to be filled up on the basis of seniority of Assistant Engineers B-17. The petitioners were promoted as Executive Engineers B-18 on current charge basis subject to confirmation by the selection board. The department was liable to forward the working paper for promotion/confirmation of petitioners on the posts of Executive Engineers B-18 but the department due to mala-fide, and mere practice kept the matter pending for more than 4/5 years. The department, instead of forwarding the case to the selection board, initiated a summary to the higher authority whereby it was proposed that the petitioners and others who were possessing the qualification of B.Tech Honours may not be promoted as Executive Engineers B-18. The summary initiated by the official respondents was totally against law, practice, procedure and rules of the department. It was prayed to issue a writ directing the official respondents to prepare and forward working paper for prom9tion/confirmation of petitioners as Executive Engineers B-18 in accordance with law, rules, suitability, eligibility and seniority. It was further prayed to restrain the official respondents from taking any step adversing the rights of the petitioners and not to make any sought of amendment in the relevant rules for the posts occupied by the petitioners.
7. The respondents submitted written statement, stating ,the same version as taken in the written. statement submitted in Writ Petition No,518 of 2012 and prayed to dismiss the writ petition filed by the petitioners.
8. The consolidation of both the writ petitions was ordered. During pendency of the writ petitions, petitioner No,1 Kh. Muhammad Azam (Writ Petition No,87 of 2013) got recorded his statement that he does note want to pursue the petition. So, his name was deleted from the said writ petition. The name of the said Kh. Muhammad Azam was also deleted from the other Writ Petition No,518 of 2012 being respondent as a result.
9. Arguments were advanced by the learned counsel for the parties. Sardar Muhammad Habib Zia Advocate, the learned counsel for the petitioners Engineer Awais Samad and another argued that the private respondents (petitioners in Writ Petition No,87 of 2013) were basically employed as Sub- Engineers B-11 and later on they were promoted as Assistant Engineers B-17. Then they obtained B.Tech. (Hons.) degrees and they were promoted and appointed as Executive Engineers B-18 on current charge basis. They were not eligible to be appointed as Executive Engineers B-18, because the degree of B.Tech. (Hons.) is not recognized by Pakistan Engineering Council (PEC) and the Higher Education Commission (HEC). These appointments were made as stop gap arrangements.
The said Executive Engineers are not registered with Pakistan Engineering Council as professional engineers. They were promoted as Executive Engineers on current charge basis through notifications dated 18-2-2008, 22-7-2008, 29-1-2009 and 30-10-2008 for six months only but they are performing their functions on the said posts up till now. The learned counsel further argued that the petitioners are holders of B.Sc. Engineering and they were appointed as Assistant Engineers B-17 through initial recruitment. The department was bound to forward working paper/summary for promotion in accordance with the provisions of law to the concerned selection board but the officials of department did not forward the same and are violating the provisions of law. The learned counsel requested to accept the writ petition filed by Engineer Awais Samad and another and to dismiss the petition filed by . the petitioners Ch. Munir Ahmed and others and referred the following precedents in support of his arguments.
' An unreported case titled Kh. Muhammad Azam v. Azad Government and others (Writ Petition No,1920 of 2012) decided on 26-3-2013 by the High Court of AJ&K.
10. While controverting the arguments advanced by the learned counsel for the petitioners Engineer Awais Samad and another, Ch. Amjad Ali Advocate, the learned counsel for respondents Nos.6, 8 and 9 (Dil Khuram, Raja Inamullah Nadeem and Kh. Muhammad Iqbal) contended that the respondents were promoted in accordance with the seniority list of Assistant Engineers and in accordance with the provisions of law. The respondents have obtained B.Tech. (Hons.) degrees, which are recognized by the Higher Education Commission of Pakistan. Pakistan Engineering Council Act cannot be enforced in AJ&K and extension of the same has been made without legal justification. The selection board has not been impleaded as a party. The writ petition filed by Engineer Awais Samad and another is hit by the doctrine of laches. The promotion and appointment of the respondents is a temporary arrangement and it has to be approved by the concerned selection board. No final order for the promotion has been issued yet, so the writ petition is not maintainable. The learned counsel further argued that no writ of quo-warranto can be filed for personal interest. The learned counsel pressed into service that the matter for promotion of the respondents must be forwarded by the department to the concerned selection board as early as possible. The learned counsel requested to dismiss the writ petition filed by Engineer Awais Samad and another and referred the following precedents in support of his arguments.
' PLD 1963 SC 203; PLD 1969 SC 42; PLD 1987 Lah. 286; PLD 1993 SC (AJ&K) 12; PLD 1995 SC 701; 2001 PLC (C.S.) 11; PLD 2002 SC (AJ&K) 1; An unreported case decided by the apex Court of AJ&K titled Irshad Ahmed Awan v. Sanaullah and others (Civil Appeal No,32/11) decided on 4-4-2011.
' Kh. Iftikhar Ahmed Advocate, the learned counsel for respondent No,7 owned the arguments advanced by the learned Advocate Ch. Amjad Ali.
11. Mr. Muhammad Yaqoob Khan Mughal Advocate, the learned counsel for the petitioners Ch. Munir Ahmed and others contended that the petitioners (Ch. Munir Ahmed and others) were promoted on current charge basis in accordance with the provisions of law and they were eligible to be promoted on the said posts. The petitioners are holders of B.Tech. (Hons.) degrees, which have been declared at par with the degrees of B.Sc. Engineering by the Higher Education Commission.
The department is violating the provisions of law and hesitating to forward a summary/working paper for promotion of the petitioners to the concerned selection board only to benefit the favourites. The learned counsel requested to accept the petition and to direct the official respondents to forward the summary for promotion of the petitioners to the selection board forthwith.
12. Sardar Muhammad Habib Zia Advocate, the learned counsel for Engineer Awais Samad and another contended in rebuttal that selection board is not a necessary party and Pakistan Engineering Council Act has been adopted in AJ&K and its jurisdiction has been extended. The learned counsel requested in the manner as mentioned earlier.
13. After hearing the learned counsel for the parties, I have gone through the record and the precedents referred by the learned counsel for the parties with utmost care and minutely. It is an admitted fact that the petitioners Ch. Munir Ahmed and others were promoted as Executive Engineers B-18 on current charge basis on 18-2-2008, 22-7-2008, 30-10-2008 and 29-1-2009. Such- like promotions are made under Rule 10-B of Appointment and Conditions of Service Rules, 1977. It is pertinent to reproduce the said rule as under:--- "10-B. Appointment on current charge basis.--- (1) Where a post is likely to remain vacant for a period of less than six month and the appointing authority does not consider it expedient to make an appointment on ad-hoc basis it may appoint a civil servant, who is eligible for promotion under Rules, to that post on current charge basis.
(2) An appointment made on current charge basis shall come to an end on appointment of a person on regular basis or on the expiry of six months whichever is earlier."
' It is crystal clear that the promotion and appointment on current charge basis shall come to an end on appointment of a person on regular basis by the concerned selection board or on expiry of six months whichever occurs earlier. The record reveals that the petitioners Ch. Munir Ahmed and others are performing their functions as Executive Engineers B-18 since last 4/5 years and they were not regularized by the concerned selection board up till now. So, their appointments as Executive Engineers are totally in violation of the provisions of law.
14. It was enjoined upon the official respondents to refer a working paper/summary regarding promotion on posts of Executive Engineers B-18 to the concerned selection board within the prescribed time, but the official respondents (Public Works Department) failed to do so and violated the provisions of law. The selection board is not a necessary party yet because no order has been passed by the concerned selection board regarding the impugned posts.
15. The record reveals that Pakistan Engineering Council Act has been extended to the territory of Azad Jammu and Kashmir. Now, I advert to the point that whether it is mandatory for engineers to be registered with Pakistan Engineering Council. It is an admitted principle of law that registration of engineers with Pakistan Engineering Council is necessary for professional engineers and not for persons who are employed in Government services. This principle has been laid down in the precedent PLD 1995 SC 701. It was held by the apex Court of Pakistan through the above-mentioned precedent as under:-- "A perusal of the above-quoted section shows that the Pakistan Engineering Council is vested with the functions to regulate the persons qualified to practice as professional engineers and consulting engineers and not persons who are employed in the Government or semi-Government organisations. If the Government employs a professional engineer as defined in the Act for performing professional engineering work as envisaged by the Act in above clause (k) of section 2, the provisions of the Act would be attracted and not otherwise. "
' It is evident from the above observation that registration with Pakistan Engineering Council is not mandatory for employees serving in Government service. The same principle has been reiterated in an unreported case decided on 4-4-2011 by the apex court of AJ&K titled as Irshad Ahmed Awan v. Sana-ullah and others.
16. The learned counsel for the parties are in agreement that the matter must be forwarded to the concerned selection board forthwith. The selection board has got a prerogative to confirm, defer or refuse any working paper/summary forwarded by the concerned department for promotion on any post. It seems just and proper that without going into the details of merit of the parties, the matter for promotion on the posts of Executive Engineers B-18 should be forwarded to the concerned selection board forthwith. It has to be decided by the selection board that who and who deserves for promotion on the said posts.
' Having in view the above-mentioned circumstances, it is hereby declared that promotion of the respondents Ch. Munir Ahmed and others (petitioners in Writ Petition No,87 of 2013) on current charge basis have become inoperative because the period of six months has been expired and they were not approved by the concerned selection board within the prescribed time. They are seized to remain on the said posts. The official respondents in both the petitions are hereby directed to forward a working paper/summary regarding promotions on all the posts of Executive Engineers B-18 lying vacant in the department to the concerned selection board within one month from the date of announcement of this judgment. Secretary Works and Communication Department shall be responsible to report to the Registrar of this court after compliance of the direction. Both the writ petitions are disposed of in the terms and manner mentioned above. No order as to the costs.