' This order will dispose of Petitions No. 18 (146) of 1980 and 18 (147) of 1980, which were heard together as they raised common questions of fact and law. These petitions formerly numbered 18
(14) of 1978 and 18 (15) of 1978, respectively, were heard by the former learned Chairman Mr. Justice Ataullah Sajjad who allowed them, by his order dated 17th January, 1979. Certain Graduate Officers of the Karachi Electric Supply Corporation Ltd. The Respondent-Company filed Writ Petitions No. D- I072 of 1979 and D-31 of 1980 in the High Court of Sind, Karachi challenging the order of the Chairman on the ground that the Graduate Officers who were not heard, were adversely effected by the said order. The cases were therefore, remanded back to the Specified Authority for re- bearing after giving notice in the newspapers inviting graduate and non-graduate officers of the Respondent-Company to represent their points of view Accordingly, notices were got published by me in Daily 'Dawn', Karachi on 26th January, 1981 and Daily 'Ring' on 27th January, 1981 and notices were also displayed on the Notice Boards of the KESC.
2. As such the graduate officers of the KESC who desired to appear, namely Shabbir Ahmed Sulangi and Muhammad Tahir filed written statements. They, as well as other Graduate officers, were represented by Mr. Sabihuddin Ahmed, Advocate. The cases were heard afresh by me, as directed by the learned High Court.
3. The brief facts giving rise to the present two petitions are that by office Order No. 5, dated 14th February, 1974, the KESC revised its existing cadres of posts of Technical and Non-Technical Officers, by fixing common grades. Pay scales and laying down the minimum qualification for appointment. The pay scales of officers including the petitioners in both the cases, were improved and some fringe benefits were also given to them. The controversy relates to the interpretation of clause (c) of the said Order No. 5 headed as 'QUALIFICATION FOR POSTS'. That clause laid down that "In future, qualification for appointment as officers in both cadres. Technical and Non-Technical shall be graduate". The last sentence of that clause stated that "Non-graduates shall not be promoted beyond the rank of Assistant Executive Engineer". Sub-paragraph 2 of the clause (c) then prescribed the minimum qualifications for appointment of officers in each of the several departments of KESC and ended with a NOTE: "These conditions will not apply to the present incumbents of these points." By clause 'E' of the Office Order, existing incumbent officers were given an option to opt for the new scales of pay, other terms and conditions of service by signing a form specified in the said Office Order and it was further stated that the option once exercised was final and could not be changed. The petitioners in both the petitions had exercised their options for the new pay scales.
4. The petitioners in petition No. 18 (146) of 1980 are Technical Officers, Mahboobur Rehman, Assistant Executive Engineer and N. Nizam Siddiqui, Superintendent Engineer. Both petitioners do not hold qualification as graduates in Electrical Engineering, although they possess diplomas and other Engineering qualifications. In the second petition No. 18 (147) of 1980, the petitioners are non- technical officers in the Respondent Corporation. Mushtaq Ahmad held the substantive post of Administrative Officer. Ataur Rehman Ansari held the posts of Assistant Administrative Officer.
These petitioners also do not hold graduate degrees.
4. It appears that the Office Order No. 5 was not strictly implemented for over two and a half }ears as there was some difference of opinion over the interpretation of clause (c) of the Office Order with regard to the eligibility of the existing incumbents who were non-graduate officers, both Technical and non-Technical and who were appointed prior to the office order. After obtaining legal opinion, the Co-ordination Committee of the KESC took a decision and issued an office Memorandum No. OC-461126, dated 30th May, 1977, that "(b) Non-Graduates shall not be promoted beyond the rank of Assistant Executive Engineer", and... "(c) that non-Graduate officers of Grades II, III, IV and V are not entitled to any promotion". Petitioners in both petitions who are non-Graduate officers contended that as a result of this decision and interpretation, their chances for further promotion had been adversely affected and, in particular, petitioner Mahboobur Rehman who was officiating Executive Engineer, was reverted to his substantive post of Assistant Executive Engineer, while Mushtaq Ahmad was reverted to his substantive post of Administrative Officer. Therefore, petitioners submitted these petitions before the Chairman of the Commission as Specified Authority under section 6 of the Pakistan Essential Services (Maintenance) Act, 1952, praying the Chairman to regulate the terms and conditions of their service in respect of their eligibility for future promotion and issue directions that the higher educational qualification for appointment, namely, graduation, laid down in the Office Order No. 5 of 1974 will not be applicable to the existing incumbent ,officers, Technical and non-Technical who were appointed prior to the said Office Order.
5. After considering the submissions of the respective parties, the learned former Chairman, held that :-
(1) Petitioners had not signed their options with full consciousness of the fact that they being non- Graduate, will not be considered for promotion in future and thereby foregoing their right for future promotion, especially as the correct interpretation and implementation of the very office order No. 5 of 1974 by its author, the management, remained in doubt for over 23/4 years and necessitated taking legal advice.
(ii) Clause (c) of the Office Order No, 5/74 applied to future appointments and future promotions of all appointees having the prescribed qualifications but did not include existing incumbents of posts like the petitioners, who were to be excluded from operation of the 'conditions' mentioned in clause (c) by virtue of the NOTE. Both the petitions were accordingly allowed.
7. 1 have heard Mr. Ali Amjad, Advocate on behalf of the petitioners and Mr. Safiullah Siddiqui for the KESC and Mr. Sabihuddin Ahmad, Advocate for the graduate officers.
8. The same submissions were advanced before me by the counsel of the respective parties as were submitted before the learned previous Chairman in support of their respective interpretation of clause (c) of the Office Order No. 5 of 1974 and of the legal effect of the options signed by the petitioners in regard to the question of their eligibility for being considered for future promotion. I do not propose to discuss these submissions again since I am in entire agreement with the conclusions reached by the learned previous Chairman, in his order dated 17th January, 1979.
However, a new argument was put forward by Mr. Sabihuddin Ahmad on behalf of the Graduate Electrical Engineers, who were not represented before the previous learned Chairman and I propose to deal with it.
9. The argument is that the KESC is a technical organization engaged in the generation and supply of electricity to the residents of Karachi. It v.As contended that it is contrary to principle, to allow pro motions of non-qualified electrical engineers to responsible engineering positions, bearing in mind that the object of the Essential Services (Maintenance) Act, 1952 is to ensure continuity in supply of electricity services essential to the life of the community. Mr. Sabihuddin Ahmad referred to Pakistan Engineering Council Act, 1975 (Act No. V of 1976) which lays down that only persons holding recognized engineering qualifications mentioned in the Schedules to the Act, are alone entitled to undertake professional engineering work, so much so that under section 27 of the said Act, it is an offence punishable with imprisonment and/or fine, for any person to undertake any professional engineering work unless his name is borne on the register maintained by the Engineering Council by the prescribed date (which in this case had been appointed as 31st December, 1977). Under subsection (2) of section 27 it is also an offence punishable with imprisonment and or fine for anyone who employs any person whose name is not for the time being borne on the register to do any professional engineering work. I am told that, recently, on 2nd October, 1980, the Chairman of the Pakistan Engineering Council, has taken up this matter with Heads of Engineering Departments/Autonomous Bodies and Corporations including the KESC, requesting them to ensure that all Engineers serving in their organization, are registered with the Council and professional engineering works are assigned to the Engineers duly registered with the Council. It was further submitted that the Council has no power to exempt non-qualified engineers from the operation of the said Act, although in exceptional cases, the Executive Committee of the Council, may grant temporary licences under section 12 of the said Act, to them to carry out the works on the recommendation of the engineering public organization. It was questioned as to how the Commission could issue regulations allowing promotion of the petitioners, who were not qualified graduate Electrical Engineers, to responsible engineering positions to undertake professional engineering work, in spite of the prohibition laid down by the Pakistan Engineering Council Act, 1975.
10. The argument of Mr. Sabihuddin Ahmad is not without any weight. But, in my opinion, I am not called upon to answer that question in this case, which it will be for the Engineering Council to decide. The question before me however, is whether the petitioners who were existing incumbents and who were appointed prior to Office Order A No, 5 of 1974, are eligible to be considered for future promotion t higher grades. I have held in agreement with the order of the learned previous Chairman that they are eligible for promotion. Accordingly, directions are issued that they shall be allowed to compete on merits with graduate Engineers before the Selection Board. It will be for the Selection Board to consider their cases alongwith those of the qualified graduate Engineers. The Selection Board will, no doubt, take into consideration on the one hand, their length of service, practical experience gained by them and suitability for the higher post and compare the same with the advantages of academic qualifications of the Graduate Engineers on the other, bearing in mind the nature and duties of the post concerned and that it would be exceptional to allow non- Graduate Electrical Engineers to hold the high ranking technical posts. The matter should in my opinion, be left to the practical discretion of the Selection Board and no hard and fast rule should be laid down.
11. For the foregoing reasons, I would allow both the petitions and hold that clause (c) of the Office Order No. 5 of 1974 does not debar non-Graduate officers who were appointed prior to the office order from being considered as eligible for future promotion to higher grades.