' SHEZADA MAZHAR J.--- Through the present writ petition, the petitioners have challenged the order dated 6-9-2012 and 1-3-2013 passed by the respondent Faisalabad Development Authority, Faisalabad (FDA), whereby the petitioners were directed to submit registration with the Pakistan Engineering Council (PEC) and Pakistan Council of Architects and Town Planners (PCATP), otherwise their contract of employment will not be extended after the expiry of period of six (6) months.
2. Facts necessary for the disposal of the writ petition are that the respondents/FDA published an advertisement in the newspaper dated 25-7-2007 wherein posts of Assistant Director Architecture/Town Planning and Assistant Director Engineering were published against which the petitioners applied for the respective posts. The petitioners were recommended for selection by the Selection Committee and on the basis of recommendations of Selection Committee contract of employment was given to the petitioners for initial period of three years on 15-9-2007 and 30-8- 2007. The said contract of employment was later on extended for another period of two years vide order dated 24-8-2010 without imposing any additional condition. During the second tenure of contract, the petitioner's degrees were sought to be verified from the Higher Education Commission, who verified the same vide letter dated 30-4-2012. After expiry of five years of extra ordinary period of service of the petitioners, the contract was further extended for the period of two years vide impugned order dated 6-9-2012 however a condition was added in the extension order and petitioners were directed to provide registration with PEC and PCATP respectively within a period of six months. It is also mentioned in the extension order that in case petitioner's failed to provide registration with the respective organizations their contract will not be extended after six months. Later again vide letter dated 1-3-2013 a reminder was issued to the petitioners to provide the registration with PEC and PCATP respectively. The said order of extension dated 6-9-2012 and letter of reminder dated 1-3-2013 has been impugned through the present writ petition by the petitioners.
3. Learned counsel for the petitioners submits that the condition of registration with PEC and PCATP is an afterthought as the same was not mentioned in the initial contract of employment and therefore, the additional condition imposed through the impugned letters/orders is just to frustrate and infringe the rights of the petitioners, which is not sustainable under the law; that the Faisalabad Development Authority (Appointment and Conditions of Service) Regulations, 1990 there is no such provisions of registration with PEC and PCATP; that the qualification required for the appointment of Assistant Director Town Planning and Assistant Director Engineering is possessed by the petitioners as their decrees are from the duly recognized University. The verification of Higher Education Commission (HEC) has already been done by the respondents/FDA. Submits that the requirement of registration with Councils, PEC and PCATP, is against the regulation i.e, Faisalabad Development Authority (Appointment and Conditions of Service) Regulations, 1990.
Learned counsel further submits that conditiens of the registration with council has been withdrawn even by the Federal Government as evident from the circular letter No,F-4-89/2002-R dated 10-12-2002. Further relies upon Fida Husain v. The Secretary Kashmir Affairs and Northern Affairs Division Islamabad and another (PLD 1995 SC 701) to state that the provisions of the Pakistan Engineering Council Act, 1976 are only applicable to professional engineers and consulting engineers who are in practice and not to the persons working in the Government Department, Autonomous Bodies, Local Authorities and private firms or companies, therefore, requirement mentioned in the impugned letters is against the law, learned counsel also relies upon the judgment dated 9-12-2012 of the single bench of this court Rawalpindi Bench passed in W.P.
No,2709 of 2011 titled Aftab Ahmed and others v. Federation of Pakistan and others, wherein it was held that "the service of the petitioners is not governed by Pakistan Engineering Council Act. The provisions of act are applicable only to the professional Engineers and Consulting Engineers who are in practice and not to the persons working in Government departments." Learned counsel further submitted that the condition to submit registration with PEC and PCATP are also against the contract appointment policy, as there is no such condition of registration is mentioned in the appointment letters of the petitioners. It is next added that the petitioners have already served the respondents/department for the last more than six years and they have become overage, therefore, they are entitled to be regularized. Further submits that the impugned order is against the principle of legitimate expectations and in this regard relies upon Zaman Cement Company (Pvt.) Ltd. v. Central Board of Revenue and others (2002 SCM R 312). Further submits that the impugned orders are contrary to law and against the rules. Furthermore the respondents have no jurisdiction to annul the recommendation of Departmental Selection Committee. Submits that the condition of registration with Councils is also in violation of Articles 4 and 25 of the Constitution of Islamic Republic of Pakistan, 1973. Further the Public Functionaries are bound under the law to redress the grievance of their subordinate pending before them after application of judicious mind and after showing cogent reasons as mandated under Article 4 of the Constitution of the Islamic Republic of Pakistan, 1973 read with section 24-A of the General Clauses Act, 1897. Submits that the alleged condition is illegal and is liable to be withdrawn/set aside by this Hon'ble Court in writ jurisdiction.
4. On the other hand, learned counsel for the respondents/FDA submits that the petitioners being contract employees have no locus standi to file the present writ petition. Further submits that as per section 27(5A) of the Pakistan Engineering Counsel Act, 1976 no person can hold post of Engineering if he is not registered with the Pakistan Engineering Council. Similarly under PCATP Ordinance,. 1983 the Architect and Town Planner are required to be registered with the said organization. Submits that the petitioners do, not fulfill the requisite qualification and therefore, they are not entitled to remain further on the said posts. Further submits that the requirement of registration with the PEC and PCATP was mentioned in the advertisement published on 25-7-2007 and the same is not an afterthought. Submit that the petitioners have obtained the appointment through fraud and as per clause 14 of the contract of employment there services are liable to be terminated. Submit that no illegality has been committed on part of the respondents/FDA. Submits that the condition of registration was mentioned in the advertisement, therefore, the demand of registration at this stage cannot be termed as an afterthought on part of the respondents/ FDA.
Further submits that under Rule 22 of the FDA (Appointment and Conditions of Services)
Regulations, 1990 clearly states that the amendments made by the Government of the Punjab from time to time shall apply mutatis mutandis to the employees of the Authority/FDA. The condition of registration with PEC & PCATP is applicable in the Government of the Punjab Rules and Regulations, therefore, the petitioners are also required to obtain registration with the said Councils. Learned counsel for the respondents/FDA also relied upon the judgment reported as Fida Husain v. The Secretary, Kashmir Affairs and Northern Affairs Division Islamabad and another (PLD 1995 SC 701) to state that the petitioners are required to get registration with the respective Councils. Regarding regularization, learned counsel submits that as per clause 11 of the contract of employment, the same shall neither confer any right of regular appointment nor shall such appointment be regularized under any circumstances. Therefore, the petitioners cannot claim regularization of their services. Further submits that no such prayer has been made in the present writ petition. Regarding discrimination, learned counsel for the respondents submits that the officer mentioned in the writ petition by the petitioners namely Asma Shoukat is duly registered with PEC therefore, the petitioners cannot agitate that they have been discriminated.
5. I have heard the arguments of learned counsel for the parties and perused the available record with their able assistance.
6. Before proceeding to deal with the moot point involved in this case, I will first deal with the objection of the petitioner's counsel that the condition of registration is an afterthought.
7. It is not denied by the learned counsel for the petitioners that the petitioners applied for the job on the basis of advertisement dated 25-7-2007 wherein the petitioner's job along with other jobs of FDA were advertised. The bare perusal of the said advertisement reveals that the condition of registration with the PEC for the post of Assistant Director Engineering and registration with PCATP for the post of Assistant Director Architecture/Town Planning were mentioned in the advertisement.
The relevant portion of the advertisement wherein' the qualification for initial recruitment for the posts is given as under:--- Sr.
No.Name of PostBasic ScaleNo. of postsAge for initiation recruitmentMinimum Qualification for initial recruitment Minimum yearsMaximum years 1.Assistant Director Architecture/Town Planning17 4 21 25Bachelor's Degree in Architecture or City and Regional Planning registered with PC. ATP 2.Assistant Director Engineering17 3 21 25Bachelor's Degree in Civil/Mechanical or Electrical Engineering and Registered with PEC
8. The stance taken by the petitioner's counsel that it is an afterthought requirement is negated by the advertisement. However it is a fact that despite the condition of registration with Councils were mentioned in the advertisement, petitioners were selected by the Selection Committee and were appointed against the respective posts without any objection from any coroner. It is also an admitted fact that no objection with regard to non registration with PEC and PCATP was raised by the respondents/FDA for the first five years of petitioner's services: Respondents/FDA came to know this fact only during the verification of the petitioner's documents and therefore the condition was specifically mentioned in the impugned extension of employment order dated 6-9-2012. Despite the fact that respondents/FDA granted six months time to the petitioners for providing the registration, petitioners never applied for the registration with the respective councils. The stand taken by the learned counsel for the respondents/FDA that the petitioner's are not holding requisite qualification of engineering and architecture/town planning strengthen.
9. The bare reading of the Higher Education Commission Ordinance, 2002 reveals that it deals with the institutional accreditation only. Whereas under the PEC, Act, 1976 engineering program/courses are accredited by PEC and under PCATP, Ordinance, 1983 architects and town planning program/courses are accredited by the PC ATP. The reason for not applying for the registration clearly shows that the courses petitioners have followed the courses which are not accredited from the respective councils. This also means that the petitioners are not holding the qualification of an engineer and an architect/town planner. Under the PEC, Act, 1976 and PCATP, Ordinance, 1983 institutions who grant decree/diplomas of engineers and architects/town planners required to get their courses recognized under the respective laws from the respective councils. In this regard reference is made to section 10 of the Pakistan Council of Architects and Town Planners Ordinance, 1983 which deals with the accreditation of architectural and town planning qualifications. The section states; Recognition of architectural and town planning qualifications granted by institutions in Pakistan.--- (1) The architectural and town planning qualifications granted by the institutions in Pakistan which are included in the First Schedule shall be the recognized qualifications for the purposes of this Ordinance. a(2) Any architectural or town planning institution in Pakistan which grants an architectural or town planning 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.
' Similarly section 10 of the Pakistan Engineering Council Act, 1976 which deals with the accreditation of engineering qualifications states as under;---
10. Accreditation of engineering qualifications granted by institutions in Pakistan.--- (1) The engineering qualifications granted by institutions in Pakistan which are included in the First Schedule shall be the accredited 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 accredited and the Council may, be notification in the official Gazette, amend the First Schedule so as to include such qualification therein.
10. In view of the above, an engineer and architect/town planner it is necessary to have studied the course which has been duly accredited by the respective councils and if they have not studied the accredited course, they will not get registration from the respective councils. Further as per the definition given in section 2(a) & (b) of the Pakistan Council of Architects and Town Planners Ordinance, 1983 and section 2(xxiii) of Pakistan Engineering Council Act, 1976 the petitioners cannot be called as architect/Town Planner or Engineer unless they are holding degree from an institution whose programs are duly accredited by the Council.
11. Keeping in view the above, the moot point of the present controversy is whether the petitioners are required to obtain registration with the respective councils or not being employee of a government organization?
12. In order to resolve the moot point, I shall first deal with the Pakistan Engineering Council Act, 1976 which requires under section 27(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."
13. From the above it is clear that in order to work in any engineering organization petitioners were required to register with the PEC as a registered engineer or professional engineer.
14. Now the question arises whether the FDA is an engineering organization or not?
15. FDA has been established under Development of Cities Act, 1976 and section 7 of the said Act states the functions of a development authority in the following words;--- Powers and functions of Authority.-- (1) Subject to the provisions of this Act and any rules framed there under, the Authority may exercise such powers and take such measures as may be necessary for carrying out the purposes of this Act.
(2) Without prejudice to the generality of the provisions of the foregoing subsection, the Authority may--
(i) initiate and maintain a continuous process of comprehensive development planning for the area within the objective of preparing a development plan;
(ii) periodically update such a development plan and coordinate its implementation by the Authority or Government agencies within the area;
(iii) develop, operate and maintain water supply, sewerage and drainage system within the area;
(iv) prepare Annual Development Programme for the area, ensure compliance of the Annual Development Programme with pribrities established in the development plan after its established in the development plan after its preparation and evaluate performance under the Annual Development Programme at the end of each year;
(v) establish, maintain and periodically revise as necessary, planning controls and building regulations for the area to:---
(a) Provide appropriate urban design and protect public safety; and
(b) ensure compliance with the development plan after its preparation.
(vi) prepare, implement' and enforce schemes for environmental improvements, housing, urban renewal including slums improvement and re-development, solid waste disposal, transportation and traffic, health and education facilities and preservation of objects or places of historical, archaeological, scientific, cultural and recreational importance;
(vii) take any steps or adopt any measures for the face lifting and beautification of the area;
(viii) acquire property, both movable and immovable,
(ix) sell, lease, exchange or otherwise dispose of any property vested in its,.
(x) undertake any works and incur any expenditure;
(xi) procure machinery instruments or any other material required by it;
(xii) enter into contracts,
(xiii) cause studies, surveys, experiments, technical researches or contribute towards the costs of any such studies, surveys, experiments or technical researches made by any other Agency;
(xiv) issue interim development order for the area for which a scheme is under preparation and restrict or regulate by general or special order, any change in the use of land and alternation in building structure and installation;
(xv) seek and obtain advice and assistance for the preparation of any scheme, or for the execution of any scheme from any Government agency or person and such agency or person shall give the advice and assistance sought by the Authority to the best of its ability, knowledge and judgment and the additional expenditure, if any, involved in giving such advice or assistance shall be borne by the Authority; and
(xvi) establish an agency/agencies and entrust to it such powers and functions as it may deem fit with the approval of the Government.
16. When the above powers and functions of the FDA are read with the definition given under section 2(xxv) of professional engineering works and engineering services in section 2(xiv) of the Pakistan Engineering Council Act, 1976 it is clear that the respondent/FDA is an "engineering organization" which is required to carry out not only functions of a' professional engineers but also provide engineering services. Engineering services are defined under section 2(xiv) of the PEC, Act, 1976 in the following words;--- (xiv)" engineering services" means services relating to study, preparation of reports, design, supervision, estimation, documentation, evaluation and advising in matters of engineering profession and engineering works; ' Similarly the professional engineering work has been defined under section 2(xxxv) in the following words;---
(xxv) "professional engineering work" means the giving of professional advice and opinions, the making of measurements and layouts, the preparation of reports, computations, designs, drawings, plans and specifications and the constructions, inspection and supervision of engineering works, in respect
(a) railways, aerodromes, bridges, tunnels and metalled roads;
(b) dams, canals, harbours, light houses;
(c) works of an electrical, mechanical, hydraulic, communication, aeronautical power engineering, geological or mining character;
(d) waterworks, sewers, filtration, purification and incinerator works;
(e) residential and non-residential buildings, including foundations framework and electrical and mechanical systems; thereof
(f) structures accessory to engineering works and intended to house them;
(g) imparting or promotion of engineering education, training and planning, designing, development construction, commissioning, operation, maintenance and management of engineering works in respect of computer engineering, environmental engineering, chemical engineering, structural engineering, industrial engineering, production engineering, marine engineering and naval architecture, petroleum and gas engineering, metallurgical engineering, agricultural engineering, telecommunication engineering, air-conditioning ventilation, cold storage works, system engineering, electronics, radio and television engineering civil engineering, electrical engineering, mechanical engineering and biomedical engineering etc;
(h) Organizing, managing and conducting the teaching and training in engineering universities, colleges, institutions, Government colleges of technology, polytechnic institutions and technical training institutions;
(i) Preparing standard bidding or contract documents, construction cost data, conciliation and arbitration procedures guidelines for bid evaluation, pre-qualification and price adjustments for construction and consultancy contracts; and
(i) Any other work which the council may, by notification in the official Gazette, declare to be an engineering work for the purposes of this Act;
17. From the above it is very much clear that the work which needs to be carried out by an employee of the FDA is related to the engineering professional work and engineering services hence the requirement of registration with the PEC is applicable on the employees who are carrying out these engineering works and services for FDA.
18. Almost similar provisions are available in Pakistan Council of Architects and Town Planners Ordinance, 1983 which defines in section 2(a) architect and a town planner is defined in section 2(n). Whereas the professional architectural work and town planning works have been defined in section 2(f) and (k) of the said Ordinance, 1983 which include advice and opinion on measurements and layouts plans of buildings and urban and regional planning. Further under section 28 of the said Ordinance, 1983 it is mentioned that working as architect/town planner without registration with the PCATP is an offence. Hence the employees of the FDA who are required to perform functions of an architect and town planner required registration with PCATP.
19. Now I shall come to the judgments of the Hon'ble Supreme Court of Pakistan reported as Fida Hussain v. The Secretary, Kashmir Affairs and Northern Affairs Division, Islamabad and another (PLD 1995 SC 701) wherein, according to the learned counsel for the petitioners, it is held by the Hon'ble Supreme Court that the provisions of PEC, Act, 1976 are not applicable to the persons employed in the Government services. Perusal of the said judgment reveals that the matter in dispute in the said case was with regard to the decree of B. Tech (Hons.) which was to be considered equivalent to the B.Sc. (Engineering) for the purpose of promotion. Number of employees were given promotion on the basis of holding E.Tech. (Hons.) decree, however the petitioner of the said case was not granted promotion on the ground that the B.Tech. (Hons.) decree is not recognize by the PEC. It was held that the petitioner having improved his qualification on the undertaking of Government that diploma-holder engineers would be provided facility of improving their qualifications by introducing B.Tech. (Pass) and B.Tech. (Honours) degree courses, and that latter degree would be considered for promotion to B-Sc. Engineering degree was entitled to be considered for promotion to BS-17 Grade. It was further held in the said case after considering the provisions of the PEC, Act, 1976 and held that;--- 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 organizaiions. If the Government employees 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, ihe provisions of the Act would be attracted and not otherwise. Emphasis added)
20. Learned counsel for the petitioner while relying upon the first part of the above quoted para from the judgment submitted that the provisions of PEC, Act, 1976 are not applicable to the present petitioners. However, bare reading of the second part it is clear that if government employees any person for performing the functions as defined in section 2(k), which is after amendment in the PEC, Act, 1976 is numbered as 2(xxiii), the provisions of PEC, Act, 1976 shall apply.
21. Respondents/FDA has sought the services of the petitieners for performing functions of an engineer and an architect as defined in section 7 of the Development of Cities Act, 1976 therefore the provisions of both the said acts are applicable on the petitioners even in view of the above mentioned judgment of the Hon'ble Supreme Court of Pakistan.
22. The judgment of this court in W.P. No,2549 of 2012 dated 9-12-2013 is also related to the decree of B.Tech. (Hons). In the said case also petitioner's candidature was rejected on the ground that B.Tech. (Hons) decree have not be recognized by the Pakistan Engineering Council. The said judgment is not relevant to the present case on two grounds, firstly the facts of the said case are different.
' Secondly the said judgment was also passed on the basis of the above quoted judgment of .the Hon'ble Supreme Court of Pakistan and as explained above the Hon'ble Supreme Court has stated that if the services have been hired for performing functions mentioned in section 2(xxiii) then the provisions of PEC, Act, 1976 shall apply.
23. In view of what has been discussed above, the condition of registration with the PEC is applicable to the post of Assistant Director Engineering of FDA and the condition of registration with PCATP is applicable to the post of Assistant Director Town Planning of FDA. The present writ petition has no force and the same is hereby dismissed with no order as to costs.