NASIM HASAN SHAH, JJ. ---The above-noted- three appeals have been heard together as the crucial question which falls for determination in all of them is common. The question is whether the Diploma Engineers employed in Pakistan Railways can be debarred from promotion to Grade-18 on the ground that they are not registered as "professional engineers and consulting engineers" with the Pakistan Engineering Council even though they were otherwise by reasons of their seniority etc. Eligible for promotion to Grade-18.
2. It appears that on 2-3-1987 the Chairman/Secretary, Railway communicated a decision in this respect to all the Chief Engineers in the Railways by a circular letter which stated; -- "SUB:Appointment against Professional Engineering posts in BS-18 and above on the Pakistan Railways.
Kindly refer to the Railway Board's Letter No. Admn.l/87-SN/1, dated the 24th February, 1987 sending therewith scale-wise and Department-wise seniority lists of officers in B.S-17 and above on the Pakistan Railways as on the 15th February, 1987. In view of the representation, dated the 25th February, 1987 received from the Pakistan Engineering Council, Islamabad (copy enclosed), it should be ensured that no promotion is made to the posts in BS-18 and above which conflicts with the provisions of the Engineering Council Act, 1976. It may further be noted that no one should be promoted to professional engineering posts in BS-18 and above, who does not have a qualification recognised by the Pakistan Engineering Council, which entitles one to be a Member of the Engineering Council and authorises him to man a professional assignment in BS-18."
3. The reference to the advice of the Pakistan Engineering Council referred to in the above letter was to the following effect: -- "Subject:Modification in Seniority of Graduate Engineers by including Diploma Holders in the Combined SeniorityRoll Dear Sir, Several representations are pouring in from graduate engineers of Railway protesting against proposed modification of combined seniority roll of graduate engineers and diploma holders to bring them at par for further promotion in Grade-18 and above.
We wish to bring it to your kind notice that neither the Council had interfered nor has any intention to interfere into the internal affairs of any department. The Council takes notice when the professional engineering works are assigned to unqualified persons who are not registered with this Council as professional engineers. In this connection your kind attention is invited to section 27 of the Pakistan Engineering Council Act, 1976, according to which the engineers and employers both are obliged to ensure that the professional engineering works are assigned only to the registered professional engineers. A copy of Pakistan Engineering Council Act, 1976 is enclosed for your kind perusal.
The issue of promotion of diploma-holders was deliberated by a committee appointed by the Government of Pakistan and the decision was communicated to all departments/organisations under Ministry of Fuel Power and Natural Resources Letter No.WA/4(25)/74, dated 16th November, 1974 (copy enclosed) which was issued after the approval of the Prime Minister and is still in force for compliance by all concerned. The Council has been honouring these decisions which allow diploma-holders to be promoted up to 20% to Grade-17. There is no provision under this letter or under Pakistan Engineering Council Ad that a diploma-holder can undertake the responsibilities of positions in Grade-18 and above which is entirely professional engineering work. In case they are promoted to Grade-17 up to 20% quota, they are required to obtain Temporary Licence under Section12 of PEC Act to perform professional engineering work in that capacity.
The above issue was further deliberated by a Committee constituted by the Punjab Government under Chairmanship of Mr. S.K. Mahmud the then Additional Chief Secretary whose recommendations are enclosed for your kind perusal. Para. 8 of these recommendations is reproduced below: --
8. Secretaries of all engineering departments were agreed that diploma engineers were not professionally competent to undertake engineering works of the level of XEN and above. It was not, therefore, possible to consider the question of modifying rules to make them eligible for promotion to these jobs. The existing ratio (20%) of promotion of diploma engineers to the post of Assistant Engineer was considered to be sufficient. The Committee was of the view that the Government could appoint a non-gradate 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.-- - (As a result 48 persons who were above 20% quota were reverted in the Punjab, Irrigation and Power Department as per news item of daily Dawn, dated 26th February, 1984 (copy enclosed).
Subsequently the Chief Secretary, Punjab Government had taken up the issue with the Chairman, Pakistan Engineering Council, Gen. Shafqat Ahmad Syed who was the then Secretary of Communication, Government of Pakistan as well. A copy of Chief Secretary Punjab's D.O. Letter is enclosed for your kind perusal.
"The Pakistan Engineering Council again referred this issue to the Ministry of Water and Power, Government of Pakistan, who clarified that the diploma-holders are only allowed to be promoted up to 20% of Grade-17 posts and there was no further proposal for changing these bases. A copy of Gen. Shafqat Ahmad Syed's letter, dated 5 July, 1978 and the reply from the Secretary, Water and Powers dated 8-1-1979 are enclosed for your kind information."
Gen. Shafqat Ahmad Syed communicated the final decision to the Chief Secretary, Punjab Government that the diploma-holders are not entitled to be promoted to Grade-18 and above, vide his letter, dated 16th January, 1979 (copy enclosed).
In view of the position explained above we, therefore, submit that the proposed modification for combining the seniority roll of graduate engineers and diploma-holders will not be in conformity with PEC Act and any further promotion of diploma-holders in Grade-18 or above will be in violation of PEC Act. You are, therefore, requested to kindly reconsider the issue to avoid future complications."
4. Although the decision communicated by the letter dated 2-3-1987 was subsequently "pended till further orders" by the letter dated 10-3-1987 issued by the Chairman/Secretary Railways, however, in point of fact no promotion of any Diploma Engineer in Grade-17 to Grade-18 -was made for several years. This circumstance gave rise to the apprehension, in their minds, that the advice of the Pakistan Engineering Council (which was a basis of the decision of the Chairman/Secretary Railways contained in the letter dated 2-3-1987 was still operating against them in obtaining promotion to Grade-18. Accordingly, two writ petitions were filed in the Lahore High Court by the Diploma Holders namely Writ Petition No.1529 of 1987 (Pakistan Diploma Engineers Federation v.
Federation of Pakistan and others) and Writ Petition No.2012 of 1987 (Maqbool Ahmad and others v.
Federation of Pakistan and others) questioning the decision communicated in the letter dated 2-3- 1987.
5. The Lahore High Court vide its judgment dated 21-9-1987 dismissed Writ Petition No.1529 of 1987 holding that the petitioner therein was a body registered under the Societies Act, 1860 and a registered body could not be deemed to be an aggrieved person within the meaning of that expression in Article 199 of the Constitution. It was further observed that the grievance contained in the said petition related to the Terms and Conditions of its members and not of the petitioner (registered body). Since the appellants had not suffered any wrong, therefore, it had no locus standi to file the writ petition.
6. The second writ petition filed by the Diploma Holders namely Writ Petition No.2012 of 1987 was also dismissed by the Lahore High Court vide judgment dated 21-6-1987, inter alia, on the ground that no legal right of the petitioners therein had been infringed because the matter of promotion to a higher grade depended not merely on the basis of seniority but depended also on the fact of fitness. Since the Government could make any reasonable criteria to determine the fitness of an officer entitling him to promotion for higher responsibilities and this being a policy matter, such a decision could not be interfered with in a Court of law.
7. Civil Appeal No31 of 1990 is directed against the judgment of the Lahore High Court passed in Writ Petition No.1529 of 1987 while Civil Appeal No32 of 1990 is directed against the judgment of the Lahore High Court in Writ Petition No.2012 of 1987. 'th
8. Mr.Hamid Khan, learned counsel for the appellants in both the cases after some preliminary submissions made a statement before us that he wished to withdraw these appeals because during the pendency of the appeals one of the appellants had already been promoted to Grade-18 and it appeared that the apprehension of the appellants that the letter dated 10-3-1987 (whereby the earlier letter of the Chairman/Secretary, Railway dated 2-3-1987 had been pended was not being given effect to, was not quite correct.
9. Accordingly, the said appeals (CAs. Nos. 31 and 32 of 1991) shall stand dismissed as withdrawn.
10. This brings us to third appeal, which has been heard along with the above-noted two appeals namely CA. No.57 of 1992. In this appeal respondents Nos.1 to 12 herein who were holding the post of Assistant Executive Engineer -and are qualified Civil Engineers holding degrees of BE/B.Sc. From recognized Institutions of Pakistan filed a Constitution Petition No.D-483 of 1984 before the Sindh High Court alledging that respondents Nos.13 to 20 (herein) who were holding positions as Executive/Divisional Engineers (Grade-18) in Pakistan Railways were not qualified to be enrolled as professional engineers within the meaning of Pakistan Engineering Council Act, 1976 as they were only diploma-holders; he further alleged that respondents Nos. 21 to 45 (herein) who too were only diploma-holders and were presently holding posts of Assistant Executive Engineer (Grade-17) in Pakistan Railways were claiming promotions to the next higher posts of the Executive/Divisional Engineers (Grade-18) to which they were not entitled. The case of the respondents Nos.1 to 12 in their Constitution petition was that the entrustment of the work in the nature of professional engineers to respondents Nos. 13 to 20 or the promotion of respondents Nos. 21 to 45 as Executive/Divisional Engineers is violative of the provisions of section 27(1) of the Act according to which if any person undertakes any "professional engineering work" and his name is not borne on the Register maintained by the Pakistan Engineering Council under the Act he is liable to be punished, in accordance with the provisions of the Act. On these premises a declaration was sought that respondents Nos. 13 to 45 were not entitled to undertake any professional engineering works and that these respondents were not entitled to appointment against a post requiring discharge of professional engineering works.
11. The Constitution petition was placed before a Division Bench consisting of Ajmal Mian, CJ. (as he then was) and Qaiser Ahmed Hamidi, J. The learned Judges differed on the scope of application of provisions of the Act. According to the view taken by Ajmal Mian, CJ. The provisions of the Act are applicable only to engineers who were either practising as professional engineers or as consulting engineers and as such the provisions of the Act are not applicable to the persons with engineering qualification employed in the Railways as Engineers, Assistant Engineers, or in any other capacity, connected with the engineering works.
12. On the other hand Qaiser Ahmed Hamidi, J. Was of the opinion that the provisions of the Act were all embracing and would apply to all persons who are either practising as professional engineers or consulting engineers or are employed in any Government Department, or in any private organisation as Engineers and are entrusted with the duties to supervise any work which falls within the definition of "professional engineering work" as defined in the Act.
13. As a difference of opinion arose between two members of the Division Bench on the point whether the provisions of the Act are applicable to all professional engineers and consulting engineers or they applied only to those persons having engineering qualification employed in Railways against posts, which required engineering skill.
14. The provision of law which requires interpretation in this case was section 21 of the Act particularly subsection (1) thereof which provided as under: -- "27. Penalties and procedure. --(1) After such date as the Federal Government may, after consultation with the Council by notification in the official Gazette, appoint in this behalf, whoever undertakes any professional engineering work shall, if his name is not for the time being borne on the Register, be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both, and, in the case of a continuing offence, with a further fine which may extend to two hundred rupees for every day after the first during which the offence continues."
15. The Referee Judge Saeeduzzaman Siddiqui, CJ. (as he then was) after carefully analysing the relevant provisions of the Act came to the conclusion that the expression "professional engineer" carries a specific connotation in the Act which means a person who is in the profession of an engineering and practise as such for the purpose of tendering technical advice in respect of a work involving technical skill of engineering. Accordingly, a person who is not independently practising in the profession of engineering and is in the employment of the Government Department would not be covered in the definition of professional engineer so as to make him register able under the provisions of the Act. He further explained that merely because a person possesses an engineering qualification and is employed on a job which requires engineering skill does not mean that he must be registered under the Act.
16. 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 show that the penalties prescribed in the section are attracted--only against those persons who are not registered under the Act but undertake any professional engineering work as defined in the Act. Similarly, the person who employs a person who is not registered under the Act, on a professional engineering 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 organisation and are called upon to undertake any professional engineering 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 engineering 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."
17. The above judgment of the High Court was not challenged either by the qualified engineers who held degrees 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.
18. We on the other hand after hearing Mr. Abid Hassan Minto learned Advocate for the appellant at considerable length consider that this is not a 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 organisation, 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 effect and in our opinion this finding is quite correct.
18. In this view of the matter there is also no force in this appeal. This too shall stand dismissed with the above observations and clarifications.