SHAUKAT AZIZ SIDDIQUI, J.---By this single Judgment I.C.As. Nos,62/2008 and 63/2008, involving identical subject matter are being disposed of.
Brief facts gleaning out from the instant LC.A are that, respondents Nos,1 to 4 filed Writ Petition No,2142/2007 before Islamabad High Court, Islamabad assailing the office order dated 26-05-2007 passed by the CDA, whereby appellants (respondents Nos,5 and 6 in writ petition) were promoted on the ground that according to basic criteria laid down in the Pakistan Engineering Council Act, 1976 and in the light of amendment in Part-B (Method of Appointment etc. in the Engineering Cadre) of CDA Employees (Service) Regulations, 1992 the appellants were not eligible for promotion as Dy. Directors. The writ petition was allowed vide impugned judgment dated 22-05-2008.
2. The appellants assailed the impugned judgment on the grounds that it is against law and facts of the case, perverse to the provision of Constitution of Islamic Republic of Pakistan, 1973, coram non-judice, illegal and capricious in nature. The learned counsel for Appellants submitted that, the dispute in question qua respondents Nos,1 to 4 and appellants, being employees of CDA, incorporated under the Capital Development Authority Ordinance, 1960 and their terms and conditions having been regulated by non-statutory service regulations known as "CDA Employees (Service) Regulations, 1992 having been framed in exercise of powers conferred by Section 51 of the Act ibid is not amenable to constitutional jurisdiction of the High Court. It is further contended that, the impugned office order, qua promotion of the appellants could not be annulled on the principle of locus poenitentiae, as the appellants on the basis of impugned office order have attained inalienable valuable rights, including pay, allowances and legitimate expectation of promotion etc. while the learned single judge failed to appreciate that writ petition was hit by the principle of laches, because the appointment of the appellants as Sub-Engineers, on the basis of Diploma of Associate Engineer and subsequent promotion as Assistant Director and Dy. Directors on the basis of B-Tech (Hons) degrees against special quota for promotion earmarked by the CDA Board, was not challenged by the respondents Nos,1 to 4. It is next submitted that inspite of amendment in the CDA Employees (Service) Regulations, 1992 vide SRO No,716(I)/2006, 10% quota reserved for promotion of Sub-Engineers to the post of Assistant Director, holding B.Tech. (Hons.) degrees has not been abolished and it is applicable to initial appointment and not in case of promotion of an incumbent from a lower post to a higher post on the basis of seniority-cum-fitness basis, against reserved quota. That in view of dictum laid down by the Hon'ble Supreme Court of Pakistan in case titled Fida Hussain v. The Secretary, Kashmir Affairs and Northern Affairs Division (PLD 1995 SC 701) appellants, holding degrees of B.Tech (Hons) are and were eligible for promotion to the next higher grade and it was to be determined by the employer and none-else as to the eligibility or otherwise of an incumbent for promotion to next higher grade. That, the learned Single Judge did not notice that the amendment in Part-B of the CDA Employees (Service) Regulations, 1992, vide notification dated 7th July, 2006 is ultra vires of law, contradictory to provisions pertaining to quota reserved for promotion of Engineers holding B.Tech (Hons) degrees. The said amendment, if at all, is considered applicable to initial appointment prospectively, cannot be allowed to unilaterally change terms and conditions of service to disadvantage of the existing employees and that too retrospectively.
That, Pakistan Engineering Council under the provision of Pakistan Engineering Council Act, 1976 has no authority to lay down any eligibility critera for employment in CDA. The CDA Board initially in 1995 fixed 5% quota for promotion of Sub-Engineers, holding degrees of B.Tech (Hons). Later on this quota was enhanced irom 5% to 10% in 2004 and the appellants were promoted as Assistant Directors against the said quota. The learned counsel prayed that instant appeal may be accepted and impugned order dated 22-05-2008 passed in W.P. 2142/ 2007 may be set aside.
3. On the other hand learned counsel for respondents vehemently argued that instant ICA is not maintainable, while on merits, learned counsel submits that, respondents Nos,1 to 4 are professional engineers, duly recognized by the Pakistan Engineering Council and they joined the CDA as Assistant Directors in grade 1 after fulfilling all the prerequisites including qualification and experience, against the posts specified for the professional Engineers. The. respondent No,5 CDA is a statutory body, incorporated and established under the Capital Development Authority Ordinance, 1960. The respondent No,7, established under Pakistan Engineering Council Act, 1976.
Section 8(b) read with sections 10 and 11 of the said Act stipulates that accreditation of engineering and technology qualifications for the purpose of registration of registered engineers, professional engineers, consulting engineers, technologists and technicians is one of the fundamental functions of the Council. Council is exclusively responsible to regulate the engineering profession in the country. Criteria for the persons eligible to be appointed for performing professional engineering work as laid down in section 27(5A) of the Pakistan Engineering Council Act, 1976 is reproduced as under:- "No person shall, unless registered as registered engineer or professional engineer, hold any post in an engineering organization where he has to perform professional engineering work."
4. Bare reading of above referred provision makes it abundantly clear that only registered and professional engineers have the right to be appointed to perform professional engineering work.
That, vide Notification No,716 (1)/2006 published in the Gazette of Pakistan dated 10-07-2006, CDA (respondent No,5) in pursuance of. section 27(5A) of the Pakistan Engineering Council Act, 1976 amended the CDA Employees (Service) Regulation, 1992 and the following paragraph was incorporated in Part-B "Method of Appointment" etc. No person shall be appointed against a post of Engineer/Assistant Director/Director unless registered as a registered Engineer or Professional Engineer with Pakistan Engineering Council. The Engineers are bound to produce registration certificate from the council at the appointment."
5. The above paragraph is in uniformity with Section 27(5A) of the Pakistan Engineering Council Act, 1976. That respondent No,5 in contravention of the above provisions, promoted non-professional, non-registered and non-graduates, having Diplomas and B-Tech certificates, which are not equivalent in any way to professional engineering degrees, against the posts specified for professional Engineer. That, respondent No,5 despite being a statutory body, was treating its employees in an extremely unfair and ruthless manner, as is evident from the fact that in Writ Petition No,72/2005 filed by some non-graduates and nonregistered employees of respondent
(CDA) challenging the act of respondent CDA of ignoring them for promotion to the post Assistant Director in reply to the petition, respondent No,1 filed parawise comments and had taken the stance that, B-Tech (Hon.) Degree and Diploma of Associate Engineering were not at par with B.Sc (Civil Engineering) therefore, they cannot be appointed against the posts specified for professional Engineers duly registered with the council. That, respondent No,7 is the only regulatory body for the engineering profession in Pakistan, supported the stance of the petitioners through letter No,HEC/B.Tech (Hons) dated 14-01-2006 to Higher Education Commission, wherein it was clarified that B. Tech (Hons.) are not qualified engineers and for this reason Pakistan Engineering Council is unable to register them as Engineers and this letter alone is adequate to resolve the whole controversy. In this view of the matter, learned counsel for respondents concluded that, the learned Single Judge has rightly and lawfully accepted the petition and passed speaking order which, has the force of law, therefore, instant ICA may be dismissed being without merit.
6. We have heard the learned counsel for the parties, noted their contentions and perused the record.
7. First point which requires determination is whether instant ICA is maintainable or not? The simple answer to this question is that only an aggrieved person can file a departmental appeal and in the present case the respondents Nos,1 to 4 had no grievance against the department and therefore, the question of filing the departmental appeal does not arise. For arguments sake if a departmental appeal is mandatory, then the petitioners/respondents Nos,1 to 4 were the aggrieved persons and they could have filed the departmental appeal/representation but they opted for an alternated remedy through writ petition which was accepted and the present appellant had no alternate but to file the present ICA which is held to be maintainable and the objection is over- ruled.
8. Reverting to the merits of the case, learned counsel for the appellant submitted that issue brought by way of filing writ petition before this court had already been decided in the case of Fida Hussain v. Secretary, Kashmir Affairs and Northern Affairs Division, reported as PLD 1995 SC 701.
Before dilating upon whether in the peculiar circumstances of instant case, above dictum of apex court is applicable or not, we would like to borrow paragraph 13 of above mentioned judgment, which reads 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. Tech. (Honours) will not be considered sufficient for promotion from BPS-16 to BPS-17 if the same does not violate the above principle."
9. In the instant matter, it is not merely statute of Pakistan Engineering Council Act, 1976 which requires registration of Engineers in accordance with the qualification, the regulations amended by the CDA itself require that against the post of Deputy Director (Civil) a second class master degree in the related discipline of Engineering along with 05 years experience in the relevant field in a relevant position equivalent to BPS-17 in Government or in an organization or a firm of repute in public or private sector is required. Although for the purpose of promotion under Regulation 3 of Part-B of the regulations for promotion from BPS-17 to BPS-18 (Deputy Director) 05 years service in relevant field in the post specified in column-2 of table and possession of a decree or diploma in Civil Engineering was requirement but through amendment in part-B "Method of appointment" it was decided that no person shall be appointed as Engineer/Assistant Director/Director unless registered as engineer or professional engineer with Pakistan Engineering Council. This amendment was aimed at getting the services of qualified engineers for better efficiency and high standard of service to meet the challenges of present day difficulties or engineering problems in odd situations. It is thus clear that the engineers not registered with the P.E.C. cannot be appointed against the post of Engineers/Assistant Directors or Directors in the CDA.
10.As for as the rule of poententiae is concerned, it has been held repeatedly by the Superior Courts that any gain, based on illegal orders, cannot be declared legal and the authority making an order can also unmake it if it is not in conformity with the established principles of rules and laws. The law cannot be stretched in aid of illegal orders which can always be and must be rectified at the earliest. On this view we are supported by the following case laws:- PLD 1973 SC 236, ii. 1998 SCM R 516, iii. 1986 SCM R 1071 11.The conclusion drawn by the learned single bench in this regard is based on facts and law points and, therefore, no interference is warranted. Resultantly, the ICA is dismissed with no orders as to costs.