1. Through the above titled writ petition filed under Section 44 of the AJ&K Interim Constitution Act, 1974, a direction has been sought against the official non-petitioners to set aside the rules enforced through notification dated 22.03.1999 and notification dated 26.09.2003 for the post of Assistant Engineer BPS-17 in Public Works Department by which the quota of initial recruitment has been curtailed from 75% to 65%. A further direction has been sought to restrain the non-petitioners from framing the rules regarding post of Assistant Engineer BPS-17, contrary to the Pakistan Engineering Council Act, 1976, which has been adopted in AJ&K through notification dated 29.03.1986.
2. The petitioners, in the above titled case, are Civil Engineers registered with Pakistan Engineer Council and on the other hand, private non-petitioners are diploma holders having B-Tec (Honours) diplomas in Civil Engineering. In the year 1992, rules were framed for recruitment of Assistant Engineers (BPS-17) and basic qualification for recruitment as such was mentioned as degree in Engineering in the requisite discipline from a recognized. University or an equivalent qualification as a Professional Engineer registered with the Pakistan Engineering Council. Method of promotion to the post of Assistant Engineer was laid down as:-- "(a) 75% by initial recruitment as per Col. 6, (b)5% by promotion on the basis of seniority-cum-fitness from amongst Sub-Engineers with not less than 8 years service & possessing qualifications prescribed for initial recruitment if not such person is available, then by initial recruitment, 20% by promotion on the basis of seniority-cum- fitness from amongst Sub-Engineers of the requisite discipline who held the minimum qualifications prescribed for initial recruitment as Sub-Engineers, have completed 10 years service as Sub-Engineer in the Department and Sub-Engineers professional examination."
3. In the year 1999, the rules were amended and quota of Professional Engineers was curtailed to 65% instead 'of 75% for initial recruitment and quota of Sub-Engineers, who have improved the qualification as B.Sc. was enhanced from 5% to 10%. Another amendment in the rules was effected on 26.09.2003 whereby method of recruitment for Executive Engineer (BPS-18) was laid down as by promotion on the basis of seniority-cum-fitness from amongst Assistant Engineers with at least 05 years service as such who possess qualification prescribed for initial recruitment to the post of Assistant Engineer and who have passed Departmental examination prescribed in the PWD Code and except in a case where Section 28(b) of the Pakistan Engineering Council Act, 1976 (Act vs. of 1976), applies are registered as a Professional Engineer with Pakistan Engineering Counsel (PEC). In the same manner, qualification for appointment as Assistant Engineer (BPS-17) was substituted as under:-- "(a) 65% by initial recruitment as per Co1.6,
(b) 15% by promotion on seniority-cum-fitness basis from amongst Sub Engineers possessing qualification of B.E/B.Sc. Engineering/AMIE in the relevant discipline/B-Tec (Honours) provided that those with the B.E/B.Sc. Engineering/ AMIE degree shall have three years experience while those who possess B-Tech (Honours) degree will have 5 years experience as such. If none is available for promotion then by initial recruitment.
2. (c)20% by promotion on the basis of seniority-cum-fitness from amongst Sub-Engineers of the requisite Discipline who hold the minimum qualification prescribed for initial recruitment as Sub Engineer in the Department and have placed in BPS-16, after passing the Sub-Engineers professional examination."
3. 4.It is the case of the petitioners that Pakistan Engineer Council Act, 1976, (hereinafter may be referred as Act, 1976) has been adopted by Azad Jammu & Kashmir Govt. vide notification dated 29.03.1986. While relying on Section 27(5-A), it has been contended that "No person shall, unless registered as an Engineer or Professional Engineer, hold any post in an Engineering Organization where he has to perform Professional Engineering Works". The petitioners claim that they are certified engineers registered with Pakistan Engineering Council (PEC), so, the non-petitioners are not eligible to be appointed/promoted as professional Engineers. Amendments effected in the year 1999 and 2003 have been challenged by the petitioners being violative of Act, 1976.
4. 5.So far as merits of the case are concerned, the petitioners have relied on a letter issued by University Grants Commission dated . 31.08.2000, whereby status of the degree of B-Tec (Honours) has been ascertained, It reads as under: "The degree of B-Tec /Honours) is not similar to B.E/B.Sc Engineering degree. Both the degrees of B.E/B.SC Engineering and B-Tec (Honours.) be considered as two distinct disciplines of knowledge in the field of Engineering and Technology and should run parallel to each other. However, B-Tec (Honours) may be treated at par and compatible with B.E/B.Sc Engineering degree holders as far as grades, pay and promotions and other benefits are concerned. The Committee further noted that it was up to the employer to determine the type of qualification required for a particular job."
5. 6.On the other hand, the private non-petitioners are of the view that petitioners have no locus- standi to file the instant writ petition. It has further been objected that petitioners have challenged the Rules of the years 1999 and 2003 through the instant writ petition in the year 2009 i.e. after a period of more than 10 years, so, the writ petition is hit by the principle of lathes. As another preliminary objection, it has been stated that necessary parties have not been impleaded in the line of non-petitioners, so, the writ petition is not maintainable.
6. 7.It has been contended by the private non-petitioners that Govt. is competent to alter or amend the rules from time to time. It has further been explained that provisions of Pakistan Engineering Council Act are applicable only to professional Engineers and Consulting Engineers who are in practice and not to the persons working in the Government Departments. The private non- petitioners are of the view that University Grants Commission has treated the degree of B-Tec
(Rona) equal to B.Sc Engineering, so, the Govt. has rightly amended the rules in accordance with needs of the time. It has further been explained that rules prevailing in Public Works Department of Punjab also provide 15% quota for B-Tec (Hons). The non-petitioners have argued that they have been promoted to next higher grades in accordance with existing rules, so, a right has accrued to them, which cannot be done away with without hearing all the incumbents.
7. 8.Public Works Department of Azad Jammu & Kashmir has also filed written statement through Legal Advisor Therein it has been contended that Pakistan Engineering Council has not declared B- Tec (Hons) degree holders as professional Engineers, however, Govt. of Mad Jammu & Kashmir vide notification dated 26.09.2003 has exempted B-Tec (Hons) degree holders from application of Section 28(b) of PEC Act for the purpose of promotion to grades BPS-17 and 18. It has further been stated that the department has moved the Govt. for revival of Departmental Rules dated 17.02.1992 in its true shape. The department is of the view that 65% quota has been provided for professional degree holders for appointment to the posts of Assistant Engineers BPS-17 and the petitioners are at liberty to apply against the prescribed quota.
8. 9.Pakistan Engineering Council has come .up with the stance that Pakistan Engineering Council is a statutory body constituted by the Pakistan Engineering Council Act, 1976 (Act vs. of 1976), and has been assigned with the responsibility of regulating the "Engineering Council" with the vision that the engineering profession shall function as a key driving force for achieving rapid and sustainable growth in all national, economic and social fields. It has been explained that authority to register professional engineers and to award recognition for the purposes of the Act, as such, rests solely with the PEC as has been concluded by the apex Court of Pakistan in PLD 1996 SC 182. It has further been explained that under Section 2(xxv)(g) of the PEC Act, "Professional Engineering Works" can be undertaken by the Engineers who are registered with PEC and penalties have been provided under Section 27 of Act, 1976, in violation thereof. It has been explained that if a person not registered with PEC, undertakes any professional engineering work, shall be punishable with imprisonment for 06 months or with fine upto Rs. 10,000/- or with both. In the same manner, an employer has also been held responsible in terms of conviction with imprisonment and fine. PEC has explained that professional Engineering works can only be executed by a professional Engineer registered with PEC and non-compliance attracts penalties in terms of Section 27 ibid. It has been prayed on behalf of PEC that impugned rules may be harmonized with PEC Act and Bylaws and no promotion/induction for the post where Professional Engineering works are involved, should be given to the persons other than the Engineers registered with PEC.
9. 10.I have gone through the written arguments furnished by the parties. It has been argued on behalf of the private non-petitioners that impugned rules of the year 1999 and 2003 are non- certified copies, which is a violation of Rule 32(2) of the High Court Procedure Rules, 1984, so, the writ petition is not maintainable. It may be stated that impugned rules are law of the land and have been admitted by the non-petitioners as well. So, applicability of Rule 32(2) of the High Court Procedure Rules is not attracted.
10. 11.In my humble view question of laches also does not attract in the instant case for the reason that as per the contents raised in the writ petition, the impugned rules are a continuing wrong. The petitioners are not civil servants, so, allegation of negligence to challenge the rules cannot be leveled against them. It may also be mentioned here that Legal Advisor for PWD has rgued that matter falls within the terms and conditions of a civil servant, so, the writ petition is not maintainable. As stated earlier that petitioners are not civil servants, so, the argument does not attract because the petitioners have no remedy to file an appeal before the Services Tribunal.
11. 12 Moot point in the instant case is that whether B-Tec (Hons) degree holders are entitled to promotion as Assistant. Engineers BPS-17 and Executive Engineers BPS-18? University Grants Commission vide its letter dated 31.08.2000 has stated that degree of B-Tec (Hons) is not equal to B.E/B.Sc Engineering degree. It has further been explained by University Grants Commission (UGC) that both the degrees are to be considered as two distinct disciplines of knowledge in the field of Engineering and Technology. U.G.0 has further explained that B-Tec (Hons) may be treated at par and compatible with B.E/B.Sc Engineering degree holders as far as grades, pay and promotions and other benefits are concerned and it was upto the employer to determine type of qualification required for a particular job. Learned counsel for the private non-petitioners has relied on Fida Hussain's case (PLD 1995 SC 701) by contending that provisions of PEC Act, 1976, are applicable only to professional Engineers and consulting Engineers who are in practice and'not to the persons working in the Govt. departments, autonomous bodies, local authorities and private firms or companies. Learned counsel has further relied on Rizwan Muzaffar's case (2010 SCR 156) by contending that rules making powers vest in the Government. The Govt. is competent to enhance, alter or amend the prescribed qualification for a particular post.
12. 13.I have gone through Fida Hussain's case as well as Muhammad Sadiq & others v.. University of Sindh and another, reported as PLD 1996 SC 182. Pakistan Engineering Council Act, 1975, promulgated on 14.01.1976, has been adopted in Azad Jammu & Kashmir through Act, XXIX of 1986 on 29.03.1986. PEC Act, 1975, is the mother law providing qualification of professional engineers.
13. According to Section 2(xxiii), "Professional Engineer" has been defined in the following words:-- "(xxiii) "Professional Engineer" means a person who holds an accredited engineering qualification and after obtaining a professional experience of five years, whether working privately or in the employment of an engineering public organization, has passed the prescribed engineering practice examination and is registered as such by the Council."
14. 14.Sub-section (xxv) of the definition clause further lays down that: "(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 construction, inspection and supervision of engineering works, in respect of--
(a) Railways, aerodromes, bridges, tunnels and metalled road; (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 worlds; (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, avionics and space engineering, transportation 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;guidelinesfor bid evaluation, prequalification and price adjustments for construction and consultancy contracts; and (j)Any other work which the council may, by notification in the official Gazette, declare to be an engineering work for the purpose of this Act."
15. 15.Definition of "Registered Engineer" has been laid down in Section 2(xxvii) in the following words: "Registered Engineer" means a person who holds an accredited engineering qualification, whether working privately or in the employment of an engineering public organization and is registered as such by the Council. Registered Engineer shall perform all professional engineering works except independently signing design."
16. 16.The Act has further provided penalties for violation of certain acts under Section 27(2) as under: "27(2) After the date appointed as aforesaid, whoever employs for any professional engineering work any person whose name is not for the time being borne on the Register shall be punishable, on first conviction, with imprisonment for a term which may extend to six months, or with fine which may extend to five thousand rupees, or with both, and on a second or subsequent conviction imprisonment for a term which may extend to one year or with fine which may extend to ten thousand rupees, or with both."
17. A perusal of the afore-cited law makes it crystal clear that responsibilities of Professional Engineering work can be assigned to a professional engineer registered with PEC and none else.
17. The private non-petitioners in the instant case are not registered engineers with Pakistan Engineering Council, therefore, are not entitled to carry on professional engineering works as defined in clause xxv of Section 2 of PEC Act. The same proposition came up before the Hon'ble Supreme Court of Pakistan in Fida Hussain's case wherein their lordships concluded in Paragraph 13 of the judgment as under: "We may again observe that it is exclusively within the domain of the Government to decide whether a particular qualification will be considered sufficient for promotion from a particular Grade to a higher Grade and it is also within the domain of the Government to change the above policy from time to time as nobody can claim any vested right in the policy. However, it cannot abdicate its power to decide the above question in favour of a corporate body which is not in its control nor it can act in a manner which may be violative of Article 25 of the Constitution on account of being discriminatory. It is still open to the Government for future to provide that academic qualification of B.Tec (Hons) will not be considered sufficient for promotion from BPS-16 to BPS-17 if the same does not violate the above principle".
18. 18.This version finds support from a case decided by the apex Court of the State reported as 2010 SCR 156, wherein it has been laid down that rules making powers vest in the Govt. and the Govt. is competent to enhance, alter or amend the prescribed qualification for a particular post. The same proposition came up before the Supreme Court of Pakistan in Muhammad Sadiq & others' case reported as PLD 1996 SC 182, wherein earlier case of Fida Hussain v. Secretary. Kashmir Affairs and Northern Affairs Division Islamabad and another was also discussed. The Supreme Court of Pakistan in Paragraph 09 of the judgment concluded as follows: "We are inclined to hold that the High Court in exercise of its Constitutional jurisdiction cannot sit as a Court of appeal over the decision of a body incorporated under the statutes for deciding the question, whether a particular qualification is to be recognized under the relevant statute. The fact that Sindh University, or the University Grants Commission or the Government of Pakistan treats a particular qualification equivalent to a particular prbfessional qualification, will not be relevant for the purpose of decision by the authority concerned under the relevant statute. So, the decision of Sindh University to treat M.Sc. (Communications) or M.Sc. (Electronics) as engineering qualification will not be binding on Pakistan Engineering Council, nor the decision of the Government of Pakistan that B.tec (Honours) will be equivalent to Bachelor of Engineering, would be binding on Pakistan Engineering Council, which has to decide the question under the Act without being influenced by the decision of any other body or authority."
19. 19.The Court further clarified its stance in the case law reported as PLD 1996 SC 182 in the following words: "However, we may clarify that Civil Appeal No. 695-K of 1990 (in which nobody has appeared for the appellants as stated above), also involves the question, whether B. Tec (Pass) or B. Tec (Honours) can be recognized by the Government of Pakistan or other Government functionaries for induction or promotion. The same has been dilated upon exhaustively by a Full Bench of this Court comprising the Chief Justice and four companion Judges in the case of Fida Hussain v. The Secretary, Kashmir Affairs and Northern Affairs Division Islamabad and another (PLD 1995 SC 701), in which it has been held that the Government had the exclusive domain to decide, whether any particular qualification would be considered sufficient for promotion from any particular grade to a higher grade and that the Government is vested with the power to change such policy from time to time, whereas Pakistan Engineering Council has exclusive domain to decide, as to whether a particular qualification could be equated with another academic qualification but it has no power to say that a civil servant/employee holding a particular academic qualification could not be promoted from a particular grade to a higher grade. With the above clarification, both the appeals are dismissed. However, there will be no order as to costs."
20. A careful study of the afore-discussed case law in the light of prevailing departmental rules and the provisions of PEC Act shows that although Govt. is empowered to frame or amend rules and lay down specific qualification for a particular job, yet power is subject to Pakistan Engineering Council Act. It hardly needs to reiterate that PEC Act prescribes qualification and responsibility of a professional Engineer. The private non-petitioners, in the instant case, are B.Tec (Hons) (Diploma Holders) and do not fall in the definition of professional Engineers nor they have been registered with PEC. Amended rules of the year 1999 and 2003 provide specific quota to BTec (Hons)
20. (Diploma Holders) for promotion to the post of Assistant Engineers BPS-17. In may humble view, the Govt. is empowered to lay down pecific qualification for recruitment or promotion to a particular post but those who are holding B-Tec(Hons) Diploma are not entitled to be assigned Professional Engrineer Work.
21. Nutshell of the above discussion is that Public Works Department of Azad Jammu & Kashmir has already moved for revival of Departmental Rules of the year 1992 in the original shape. The Government is, therefore, directed to dispose of the summary within a reasonable time. The writ petition is disposed of in the manner that the private non-petitioners or the others holding B.Tec
(Hons) diplomas are not entitled to be assigned Professional Engineering Works. They can, however, be promoted in accordance with the prevailing rules against the posts which do not involve Professional Engineering Works.