CH. HASAN NAWAZ (MEMBER).---The appellants of these three appeals taken together for disposal because of common questions of law and fact are in service as Sub-Divisional Officers and Assistant Director in the Water Wing of WAPDA, which they joined on different dates in the years 1958, 1961 and 1967 as Overseers after having secured a diploma in Civil Engineering from the Ploytechnic Institute of Rasool.
2. The West Pakistan WAPDA (Water Wing) , Service of Engineers Rules, 1968 are applicable to matters of recruitment and promotion of Engineers in WAPDA. Rules 5 and 6 of the Rules were amended by Office Order dated 14-9-1973. Thereafter, as we see, from Office Memorandum of 9-1- 1983. Rules 5(2)(c)(i), 5(2)(d)(i) and (ii), 5(2)(c)(ii) and 7(2)(d) were substituted by the following Rules:-- "5(2). The "appointing authority" shall by general or special order determine by which of the methods, mentioned in sub-rule (1) above,, a vacancy or vacancies (except in the case of Junior Engineers) shall be filled, provided that where it is decided by the "appointing authority" not to fill any vacancy by initial recruitment or by transfer of a suitable person belonging to another service or department.
5(2)(c)(i). The post of Superintending Engineer shall be a Selection Grade appointment and shall be filled by selection on merit with due consideration for his seniority, from among the Senior Engineers possessing a degree in civil or in specific cases Mechanical Engineering, from a recognised University or equivalent qualifications recognised by the Authority provided that the Senior Engineer to be promoted has put in the required number of years of approved service as laid down by the authority, from time to time. A diploma holder Senior Engineer, will not be eligible for promotion to the post of Superintending Engineer.
5(2)(d). The post of Senior Engineer will be filled by promotion from among the Junior Engineers, who hold a degree in Engineering or equivalent qualification on the basis of seniority-cum-fitness: Provided that the Junior Engineer to be promoted has passed the Water Wing Professional Examination and has also put in the required number of years of approved service as laid down by the authority from time to time.
Explanation.---The term `equivalent qualification' for the purpose of this rule shall be deemed to mean a qualification declared by the Authority through a special or general order to be equivalent to a degree in Engineering. 20% vacancies will be reserved for accelerated promotions. After 4 vacancies have been filled in on the basis of seniority-cum-fitness, 5th vacancy will be filled in by a candidate who deserves accelerated promotion by virtue of his being head and shoulders above his colleagues in professional competence (which covers knowledge and experience), integrity and honesty and devotion to duty besides loyalty to WAPDA and the nation.
5(2)(e)(ii). 25% of the posts by promotion on the basis of seniority-cum--6tness from among qualified sub-Engineers Grade-16 or employees holding equal rank and possessing qualifications and experience etc. As prescribed by the authority from time to time.
7(2)(d). An officer of Autonomous or Semi-Autonomous body in Grade-17."
3. The effect of this amendment was that the diploma-holder engineers including the appellants no longer remained eligible for promotion as Senior Engineer (B-18) and they were not considered for promotion. They claim to have made various representations against this amendment in the rules and their case is that a high-powered meeting was held on 22-2-1992 under the Chairmanship of Additional Secretary (Water) of Ministry of Water and Power for implementation of Federal Government Decisions regarding Diploma Engineers working in WAPDA. The minutes of this meeting bear our that one of the decisions taken was that "the Ministry will follow the decisions of Supreme Court on the matters of promotion of diploma engineers and B-Tech. Engineers".
4. It is pleaded that the appeal to which reference was made in the minutes of the meeting, had been filed in the Supreme Court by Pakistan Engineering Council against Mr. Muhammad Azeem Jamali and 44 others (Civil Appeal No.57 of 1992) against the majority judgment of the Sindh High Court, where it. Was held "that the diploma engineers are not affected in the matter of their terms and conditions of service by the provisions of Pakistan Engineering Council Act, 1976". This decision was given by the Sindh High Court on a Constitutional petition filed by degree-holder engineers against the promotion of diploma-holders as Senior Engineer (B-18). The Supreme Court dismissed the appeal and upheld the Sindh High Court's decision.
5. The appellants' case is that the Secretary-General of Pakistan Diploma Engineers Federation informed WAPDA of the Supreme Court's decision through letter dated 6-11-1993 and a request was made to the Chairman for withdrawal of the amendment of 1983, so that the Diploma holders may be considered ('pr promotion as Senior Engineers alongwith the degree-holders on the basis of seniority-cum-fitness to the extent of quota reserved for them before the amendment of 1983.
6. However, certain degree-holders were promoted as Senior Engineers by order, dated 25-11-1993, apparently. In disregard of the diploma-holders' representation. They have been impleaded as respondents Nos.3 to 19 in this appeal. It is contended that the order of contesting respondents promotion dated 25-11-1993 and the 1983 amendment of the rules are illegal and that the appellants are entitled to be considered for promotion to the post of senior engineers on the basis of their seniority.
7. Two prayers have been made in this appeal. First is that the amendment made in the 1983 may be struck down as illegal with a declaration that the appellants are entitled to be considered for promotion as senior engineers (B-18) in accordance and compliance with the judgment of the Supreme Court in Civil Appeal No.57 of 1992". The second is that order dated 25-11-1993 promoting respondents Nos.3 to 19 as Senior Engineers may be setconsidered for promotion as Senior Engineers alongwith others of their class on the basis of seniority-cum--fitness.
8. From the prayer part of the appeal it is clear that no relief can possibly be granted to the appellants unless the amendment made in the rules by the Authority in 1983 is set aside and declared as illegal. It may be mentioned here that nothing has been said by the appellants in their pleadings to indicate that they question the authority's competence to effect amendment in the rules.
9. Since the appellants' reliance, in the main, is on the decisions taken in the meeting of 22-2-1992 under the Chairmanship of Additional Secretary (Water) and the Supreme Court's judgment, their relevant portions may be reproduced with advantage. The decision arrived at in the meeting was to the following effect:-- "This Ministry will follow the decisions of Supreme Court on the matters of promotion of diploma engineers and B-Tech. Engineers."
10. According to the appellants' pleadings, "the meeting took notice of pendency of an appeal before the Supreme Court of Pakistan regarding promotion of Diploma Engineers and B-Tech.
Engineers to the post of Senior Engineer/Executive Engineer in BS-18" and that "it was clearly decided that the Ministry of Water and Power would follow the decision of Supreme Court in this behalf'. On the basis of these pleadings, it was contended by the appellants' learned counsel that the decision taken in the meeting amounted to WAPDA 's commitment to follow the Supreme Court's decisions.
11. We are not inclined to agree. In the first place, the decisions made in this meeting were not those of the Authority. As we see from the minutes, the meeting was held under the advice of the Minister concerned to discuss and look into the problems on implementation of Federal Government decisions regarding Diploma Engineers, contained in Ministry of Water and Power's O.M. Dated 16- 11-1974 being faced by the Diploma Engineers working in WAPDA. There is nothing in the minutes to show that the members of the Committee were entrusted with the task of making any final decision. Nor is there anything to show that any such decision was in respect of the amendment made in the rules in the year 1983. Further, even if it be assumed that the meeting had in fact been entrusted with any such task, there is hardly anything in the terms of the relevant decision to indicate that reference was being made to the Supreme Court's likely decision in Civil Appeal No.57 of 1992. Still further, it is difficult to hold that the decision made in this meeting amounted to any commitment made by WAPDA. A closer application to the relevant minutes show that the Ministry had decided to follow "the decisions of the Supreme Court on the matters of promotion of Diploma Engineers and B. --Tech. Engineers. This can by no means be taken to have any reference to a particular decision of the Supreme Court and that too the one which was likely to be made in the aforementioned civil appeal filed by the Pakistan Engineering Council against the majority judgment of the Sindh High Court.
12. Even if it be assumed that the decision made in the meeting of 22-2-1992 had any nexus with the possible decision of the Supreme Court in the aforementioned case and that it amounted to WAPDA'S commitment, as the appellants' learned counsel wants us to believe, the appellant's case is not promoted by any means whatsoever. In support of this view a reference may be made to the relevant portion of the Supreme Court's decision. It makes the following reading:- "The conclusion of the learned Chief Justice was expressed as follows:-- "A careful reading of subsections (1) and (2) of section 27 of the Act will flow that the penalties prescribed in the section are attracted only against those persons who are not registered under the Act but undertake any professional engineer work as defined in the Act. Similarly, the person who employs a person who is not registered under the' Act, on a professional engineer work, is equally liable for punishment under the Act. The above provisions are wide enough to include the cases of those persons who may be employed in any private or Governmental organization and are called upon to undertake any professional engineers work. The provisions of the Act, regarding registration of professional engineer and consulting engineer therefore, in my view, would not be applicable to the persons serving as engineer with the Railways, as in course of their such employment they neither act as professional engineer nor as consulting engineer. However, if such persons undertake any professional engineer work as defined under the Act, then the provisions regarding registration under the Act will be attracted and they could also be punished in accordance with the provision of section 27 of the Act for violating the provision of the Act."
12-A. The above judgment of the High Court was not challenged either by the qualified engineers who held degree from recognized institutions of Pakistan nor by the diploma-holders but only by the Pakistan Engineering Council (which was one of the respondents in the Constitution petition filed in the High Court). According to the Pakistan Engineering Council, the provisions of the Pakistan Engineering Council Act had not been correctly interpreted because the judgment of the majority in the High Court, it appeared to the Council had laid down that the Act applied to engineers engaged in professional engineering works in the private sector whereas the application of provisions of the Act, according to them, could not be restricted only to the private practitioners alone.
12-B. We on the other hand after hearing Mr. Abid Hassan Minto learned Advocate for the appellants at considerable length consider that this is not correct interpretation of the judgment of the High Court. The High Court has clearly stated that the provisions of the Act were wide enough to include cases of those persons engaged in professional engineering works, whether employed in any private or Governmental organization, if they are called upon to undertake any professional engineering work, as defined under the Act. In fact in the connected case CA. No.31 of 1992 a Committee of Secretaries constituted by the Punjab Government correctly summed up the true position obtaining in the Act as follows:-- "The Committee was of the view that the Government could appoint a non-graduate engineer to a post in any grade but if the post involved performance of professional engineering work such appointment would attract penalties prescribed in the Act.
The finding of the Referee Judge in this case is to the same affect and in our opinion this finding is quite correct."
13. It is clear from the observations made by the Supreme Court in their judgment that the question involved for determination in the writ petitions before the Sindh High Court and then in Civil Appeal No.57 of 1992 before the Supreme Court was altogether different from one raised in the present appeal before us. Besides, the question before the High Court and the Supreme Court, whatever be its import, was raised in the background of different facts. In any case, by no stretch of imagination can the Supreme Court's decision be taken to have bad the effect of nullifying the amendment made in the rules by the Authority in 1983.
14. These considerations notwithstanding, a closer application to the Supreme Court's observations in paragraph 18 of the judgment rather shows that there is nothing which could have been taken by the appellants in support of their case. As we understand, the dispute before the Supreme Court was regarding interpretation of the Sindh High Court's judgment. The contention of the counsel for Pakistan Engineering Council was that the provisions of the Pakistan Engineering Councils Act had not been correctly interpreted because the judgment of the majority in the High Court had laid down that the Act applied to engineers engaged in professional engineering works in the private sector, whereas the application of the provisions of the Act could not be restricted only to the private practitioners alone. The Supreme Court said that the learned counsel's interpretation of the High Court's judgment was not correct. It was observed that the High Court had clearly stated that the provisions of the Act were wide enough to include cases of those persons engaged in professional engineering works whether employed in any private or Governmental Organization, if they are called upon to undertake any professional engineering work as defined under the Act. A reference was then made to the minutes of the Committee of Secretaries constituted by the Punjab "Government which are as follows:-- "The Committee was of the view that the Government could appoint a non-graduate engineer to a post in any grade but if the post involved performance of professional engineering work, such appointment would attract penalties prescribed in the Act."
15. It was then said that the Committee's view was correct appreciation of the true legal position emerging from the Act. According to the Committee's understanding of the provisions, a non- graduate could be appointed to any post in any grade only if it did not involve performance of professional engineering work. This is clearly suggestive of the fact that the Supreme Court confirmed the view that no diploma-holder could be appointed to a post which involves the performance of a professional engineering work.
16. What we gathered from the submissions made by the respondents' learned counsel during the course of his arguments was that the main consideration before the Authority in making the diploma-holders ineligible for promotion to the post of Senior Engineer (B-18) was that it involves the performance of professional engineering work. He argued that the nature of duties to be performed by the Senior Engineers required a professional skill which, according to the authority, was not available to non-degree-holders. We hold that there is nothing .In the Supreme Court's judgment to indicate, if at all it be assumed that the question before their Lordships for determination was the one involved in these appeals, that they differ in principle with these considerations. They rather endorsed the view of Secretary's Committee in Civil Appeal No.31 of 1992 that the appointment of a non-graduate engineer to a higher post involving performance of professional engineering works, attracted the penalties prescribed in the Act. It was observed that the findings of the Referee Judge in the case was to the same effect and that it was correct.
17. Therefore, in this view of the matter, there is hardly anything in the Supreme Court's judgment which can be taken even to have remotely supported the appellants' case. The authority's 1983 amendment of the rules is still in existence and it has not been struck down by the Supreme Court's judgment. We hold that it has been made by the competent authority and that their virus is not under challenge before us. No relief, whatsoever can, therefore, be granted under the circumstances to the appellants, who under the existing rules are not eligible for promotion as Senior Engineer.
18. This was in respect of merits. We might as well deal with the respondents' objection regarding limitation. It is contended that the appeals are time-barred. We are inclined to hold that this contention is not without substance. As already mentioned before, the amendment which adversely affected the appellants rights and their eligibility for promotion was brought about in the year 1983. This amounted to an order in respect of the terms and conditions of their service and they ought to have challenged the validity of these amendments well in time. They say that they have been making representations against these amendments. But they should then have had recourse to the Tribunal with their grievance, in case their representations failed to produce any result. We are not inclined to agree that the cause of action arose in their favour only as a result of the Supreme Court's judgment read with the decision made in the meeting of 19-2-1992. It is accordingly held that all the three appeals are time-barred.
19. For the abovementioned reasons, the appeals are dismissed as time-- barred and without any substance. No order as to costs. Parties to be informed.