1. This judgment will also dispose of Writ Petition No. 22003 of 1996 as questions of law and facts are common in both of them.
2. 2.In this Constitutional petition legality of order dated 17-2-1997 for appointment of respondent No. 6 as Director (Tech.) P.R.T.C. By the Minister for Transport/Chairman, P.R.T.C., subject to approval by the Board of Directors, P.R.T.C., has been called in question.
3. 3.The facts forming then background of this Constitutional petition shortly stated are that the petitioner joined the services of West Pakistan Road Transport Corporation (P.R.T.C.) as Assistant Works Manager in BS-16 in 1970. On 12-10-1994 when the petitioner was holding the post of District Manager, P.R.T.C., Green Town Depot, Lahore, he was appointed to hold current charge of the post of Director (Tech.), P.R.T.C Headquarters in his own pay and scale as a stop-gap arrangement relieving Chaudhry Iqbal Hussain of the additional duties in anticipation of approval of P.R.T.C.
4. Board of Directors. The post of Director (Tech.) is in Grade-19 whereas the post of District Manager is in Grade-18. It was not denied during arguments that the petitioner was drawing maximum pay of Grade-18, therefore, was given move-over, for the purpose of deriving pay of Grade-19. .
5. 4.On 12-8-1996 the Managing Director. P.R.T.C., Lahore in compliance of the directive of Minister for Transport/Chairman, P.R.T.C. Dated 9-8-1996 issued order on 12-8-J996 for the transfer of the petitioner from the post of Director (Tech.) P.R.T.C., Headquarters and was posted as D.M., P.R.T.C., Body Building Workshop, Multan Road., Lahore, whereas Mr. Affan Javed Khan, Executive Engineer, (Civil) P.R.T.C., Headquarters was directed to hold additional charge of the post of Director (Tech.)
6. P.R.T.C., in addition to his own duties temporarily in anticipation of Board's approval. A representation was made against this by the petitioner which was accepted and through order dated 5-11-1996 after obtaining sanction/approval of the Board of Directors through resolution passed through circulation the petitioner was reposted to officiate as Director (Tech.) in his own pay and scale.
7. 5.Mr. Affan Javed Khan, Executive Engineer (Civil), therefore, ceased to hold additional charge 'of the post of Director (Tech.) who feeling aggrieved of this order filed Writ Petition No. 20452 of 1996 before this Court in which this Court passed interim order for the suspension of the said order dated 5-11-1996.
8. 6.Respondent No. 6 whose appointment as Director (Tech.) has been challenged in this Constitutional petition also filed connected Writ Petition No.22003/96 challenging the legality of Mr. Affan Javed Khan's appointment as Director (Tech.) by order dated 12-8-1996, apart from other on the main ground that Minister for Transport/Chairman, P.R.T.C. OD whose directive the said order was issued, was not competent to pass any order regarding promotion of the officers by ignoring the terms and conditions. In the comments filed by the P.R.T.C. In the said Constitutional petition this position as to in competency of Minister for Transport/Chairman, P.R.T.C. To pass any order for promotion or transfer of officers, was admitted as correct.
9. 7.During pendency of the said writ petition filed by Mr. Affan Javed Khan against order dated 5-11- 1996 through which the present petitioner was reposted as Director (Tech.) Mr. Affan Javed Khan was regularly promoted and appointed as Secretary, P.R.T.C. In BS-19, therefore, the interim order passed in his said petition for the suspension of order dated 5-11-1996 automatically became inoperative as a consequence of which the said order stood revived and the petitioner should have been allowed to take over the charge of the post of Director (Tech.) but instead the Minister for Transport/Chairman, P.R.T.C. Issued order on 17-2-1997 impugned in this Constitutional petition for the appointment of respondent No.6 as Director (Tech.) and petitioner was posted as Manager Central Workshop (Gulberg), Lahore in anticipation of approval of P.R.T.C. Board of Directors 8.Learned counsel for petitioner maintained that Minister for Transport/Chairman, P.R.T.C. Was not vested with the power of making promotion or posting of an officer in Grade-19 which power was vested only in the Board of Directors of P.R.T.C, therefore, the impugned order is wholly without jurisdiction and void ab initio.
10. 9.On behalf of respondent No.6 an attempt was made to meet this argument by arguing that through resolution the Board of Directors conferred power on the Minister/Chairman, P.R.T.C. The powers of taking appropriate disciplinary actions, promotions, demotions and removal of employees of the Corporation. A copy of the said resolution has been placed on the record. It reveals that on 7-7-1996 the Managing Director, P.R.'T.C. Made a proposal that earlier decision of Board of Directors taken in its meeting dated 16-1-1996 may be reviewed and the decision taken in 21st meeting dated 17-1-1995 revived and powers to appoint, promote, demote, to order for punishment under E & D Rules of the P.R.T.C. Employees etc. May be conferred on the Chairman, P.R.T.C. The matter was placed before the Directors of the Board through circulation. The same Managing Director who was also Secretary Transport, Government of the Punjab, voted in favour of this resolution twice, one as Managing Director and Second as Secretary Transport as both were the Members of the Board of Directors and since one person happened to hold the charge of both the posts, therefore, he exercised right of vote twice. It was also signed by Mian Afzal Hayat who was Minister for Law as ex-officio Director, P.R.T.C. Being Member of the Board and Mr. Muhammad Munir Azhar, M.P. A./Director, P.R.T.C. These three members of the Board put their signatures on 7-7- 1996 expressing their approval/agreement with the said proposal whereas Secretary Finance, Government of the Punjab, Commissioner, Lahore Division, Commissioner, Rawalpindi Division and Chief Transport P&D Department, Government of the Punjab who were also Directors did not vote in its favour by expressing their disagreement on the ground as indicated in their note that a decision had already been taken to wind up P.R.T.C. And to give a golden handshake to the employees, there would hardly be any occasion for appointments, promotions or demotions, therefore, their proposal for delegation of powers did not seem to be necessary. This resolution was treated to have been carried by the majority of the Members of Board of Directors considering vote of Managing Director and Secretary Transport used twice though he was one person holding both the posts, though his vote was to be counted as single vote, as such, the said resolution according to law shall not be deemed to have been approved/passed by the Directors of the Board but in spite of that in exercise of powers delegated to Minister for Transport through the said unsuccessful resolution the Minister for Transport/Chairman, P.R.T.C. Passed the impugned order for posting and promotion of respondent No. 6 as Director (Tech.) instead of allowing the petitioner to take over the charge of the said post in pursuance of order dated 5-11-1996 which earlier had been approved by the Board of Directors through resolution by circulation and stood revived with the promotion of Mr. Affan Javed Khan in Grade-19 as Secretary, P.R.T.C. On account of which the said post became vacant.
11. 10.In Writ Petition No. 20805 of 1996 filed by one Mahmood Ahmad in which the question of legality of the said resolution of the. Board of Directors by which it was assumed that the said Board had approved delegation of power to Minister for Transport, was under consideration. The P.R.T.C. In its comments filed by its Managing Director through Mr. Ahmed Awais, Advocate its learned counsel who in this petition is also the counsel for P.R.T.C. Took stand that the said resolution was got moved by Minister for Transport who was ex officio Chairman of P.R.T.C. By exerting pressure on the Managing Director for conferment of administrative powers on him. It was stated in the said comments that at the relevant the Secretary Transport was holding additional charge of Managing Director, P.R.T.C. Who moved the said resolution on 7-7-1996 which was not approved by the Board as out of all the Members of the Board, three supported the resolution and four opposed it. Those who supported the resolution were Secretary Transport, Mian Afzal Hayat, the then Law Minister/ex- officio Director and Mr. Muhammad Munir Azhar, M.P.A./Director whereas four Directors namely Secretary Finance, Commissioner, Lahore Division, Commissioner, Rawalpindi Division and Chief Transport P&D Department, Government of the Punjab opposed it. Since Secretary Transport was also holding the additional charge of Managing Director, therefore, he voted twice and his one vote was counted twice, as such, the Chairman treated that Directors of the Board were equally divided i.e. Four in favour of the resolution and the other four against it. He treated the same having been passed by casting his own vote in its favour as Chairman, whereas the resolution failed four by three. Apart from this respondent No.6 in his own connected Petition No.22003 of 1996 in paragraph 6 took specific stand that Minister for Transport/Chairman, P.R.T.C. Was not vested with the power to make appointment of officers of the Corporation, as such, appointment by him of Mr. Affan Javed Khan as Director (Tech.) through order dated 12-8-1996 was- illegal, therefore, he cannot turn around and support his own appointment as Director (Tech.) by the Minister for Transport/Chairman, P.R.T.C. In pursuance of the powers allegedly delegated to him through the said resolution of the Board of Directors.
12. 11.Learned counsel for respondent No. 6 endeavoured to question the eligibility of the petitioner as regards his appointment as Director (Tech.) on the ground that according to the qualification prescribed for the post a person should be a graduate in Automobile Engineering or Mechanical Engineering from a recognised University of Pakistan or any foreign country. According to the certificate issued by the Engineering University in favour of the petitioner he was B. Tech.
13. Automobile Engineer which degree cannot be treated to be equivalent to B. Sc. Engineering. He referred to an order dated 15-5-1996 passed in Writ Petition No. 674 of 1996 filed by Pakistan Engineering Council against Federation of Pakistan through which the said writ petition 'was admitted on the ground that according to learned counsel it was within the domain of Pakistan Engineering Council constituted under the Pakistan Engineering Council Act, 1976 to recognise and equalise the academic degree concerning the Engineering and since the said Council had not recognised B. Tech. Equivalent to B.Sc. So this degree could not be equalised as B.Sc. Engineering.
14. The said question arose in the circumstances that in the year 1961 the Federal Government took a decision which was circulated in all the Government Departments, Autonomous Bodies and Statutory Corporations that B. Tech. Degree would be treated to be equal to B.Sc. Engineering for the purpose of determining academic qualifications for appointment in Government service and service of statutory corporations and autonomous bodies. Subsequently the Federal Government withdrew the said decision and the matter went up to Supreme Court which upheld the earlier decision to equalise B.Tech. With B.Sc. Engineering for the purpose of appointment against different posts in Government departments, autonomous bodies and statutory corporations and the subsequent decision was withdrawn..
15. 12.The Pakistan Engineering Council has filed the said writ petition questioning the authority of the Federal Government to equalise both degrees for the purpose of Engineering council constituted under the said Act. It is for the purpose of determining the question whether the federal Government could also bind the Engineering Council to treat B.Tech. Degree equal to B.Sc.
16. Engineering that the said write petition has been admitted.
17. 13.The Pakistan Engineering Council Act, 1976 provides for registration of Consulting Engineers and Professional Engineers by the Council constituted under the said Act. Under the said Act for the purpose of registration of both kinds of Engineers the Council has been given power to issue schedule mentioning academic qualifications for registration of such Engineers in the register maintained by the Council. Neither the registration of any Engineer as Professional or consulting by the Council nor the qualification prescribed by the Council in the schedule for such registration has any bearing upon the appointments, promotions and recruitments to be made by the Governments in their offices, statutory corporations and autonomous bodies against different posts for which the Governments and the said statutory corporations or autonomous bodies could prescribe academic qualifications for such appointments as there is nothing in the Pakistan Engineering Council Act, 1976 that no person unless registered as Professional or consulting Engineer by the Council could be appointed against any post by the Federal or Provincial Government or by statutory corporation or autonomous body. The registration of professional or consulting Engineers by the Council have bearing upon the right of individual to at as such Engineer in his private capacity as professional which he would not be able to do unless he was registered as such by the Council and such registration has nothing to do with the recruitment in various departments of the Government and statutory corporations for which the Government or statutory corporation have the prerogative to prescribe academic qualifications and since in this case B.Tech. Degree has been treated to be equal to B.Sc. Engineering for the purpose of appointment in the statutory corporation like P.R.T.C. By the Government, therefore, for the purpose of this Constitutional petition the petitioner was qualified as regards academic qualification for appointment as Director (Tech).
18. 14.The petitioner admittedly joined the service in 1970 whereas respondent No.6 after doing B.Sc.
19. Engineering to 1982 was inducted in service, therefore, the petitioner was far senior as against respondent Na.6. According to the advertisement for the post of Director (Tech) vast experience of not less than 15 years in maintenance and repair of Vehicles apart from adequate experience in designing and building of bus bodies and administration of a workshop as also wide administrative experience of controlling technical staff, was required. According to his bio-data (Annexure D) appended by the petitioner with this petition the correctness of which has not been disputed by any of the respondents by filing reply he obtained three years Diploma of Associate Engineer in Mechanical (Auto and Diesel) Technology from the West Pakistan Board of Technical Education. Lahore, in 1st Division; he is holder of to years degree of B.Tech. In Mechanical (Auto and Diesel) Technology from the University of Engineering and Technology, Lahore in 1st Division; lie is also holder of to years degree of B.Tech. (Honours) in Mechanical (Automobile and Diesel)
20. Technology from the University of Engineering and Technology. Lahore in Ist Division. He has also held the posts of Works Manager, Senior Technical Officer, Senior Works Manager, District Manager, Deputy Director Technical, Senior Maintenance and Planning Officer, Director, (Procurement and Stores), Deputy Director, Technical/Senior Maintenance and Planning Officer Member of High Powered Purchase Committee and Technical Officer National Logistic Cell on Secondment from the to the.
21. 15.The petitioner being the senior most and holder of academic qualifications prescribed for the post of Director (Tech) and having required experience had a better claim for the appointment as such as against respondent No.6 and he having already been appointed by the Board of Directors through resolution passed by circulation through order dated 5-11-1996 was entitled to hold the said post and order dated 17-2-1997 passed by the Chairman, P.R.T.C. In purported exercise of delegated Powers is not sustainable.
22. 16.Learned counsel for P.R.T.C. And respondent No. 6 argued that the resolution through circulation passed by the Board of Directors by which the petitioner---s appointment as Director (Tech.) was approved was not a valid resolution. The argument was that at the relevant the neither there was any Chairman of the Board as Minister for Transport who was to at as ex-officio Chairman had not been appointed and the other member i.e. The Member of Provincial Assembly as one of the Directors had also not been nominated. When questioned they, however, did not dispute that the remaining members of the Board of Directors which passed the said resolution by circulation were not short of quorum prescribed for passing a resolution. Even otherwise in all the writ petitions P.R.T.C. Never took this stand and opposed the appointment of the petitioner as Director (Tech.).
23. Before parting with this judgment it may be observed that on 17-2-1997 when Minister for Transport passed the impugned order in favour of respondent No. 6 General Elections in the country had already been held and within a day or to the transfer of power to the new Government established in pursuance of the said General Elections was to take place. Passing of the impugned order by the Minister at this stage can safely be held to be lacking bona fides as he should have left the matter as it is. Subsequently he according to the documents placed on the record sent summary to the new Chief Minister in order to seek approval of whatever he had done. Learned counsel for P.R.T.C when questioned as to whether approval of the Chief Minister of Punjab under the law and the rules as regards order for promotion, posting and transfer of officers of the P.R.T.C. Was required frankly conceded that it was not required. Ut4G, 17.When the arguments had concluded learned counsel for respondent No.6 submitted that he wanted to withdraw his Writ Petition No.22003 of 1996 as the same had become infructuous on account of order dated 17-2-1997 impugned in this Constitutional petition having been passed for his appointment as Director (Tech).
24. 18.At this stage instead of dismissing the said petition as withdrawn the same is being disposed of in terms of this judgment as at this stage I am not inclined to allow respondent No.6 withdraw his petition after arguing the same.
25. 19.For the foregoing reasons this petition is accepted, order dated 17-2-1997 passed by the Minister for Transport/ex-officio Chairman, P.R.T.C, for appointment of respondent No.6 as Director (Tech) is hereby declared to be without lawful authority and of no legal effect and quashed. Likewise the said order for posting the petitioners as Manager Central Workshop, Gulberg, Lahore is also declared to be without lawful authority, of no legal effect and quashed. As a consequence of this order dated 5-1 1-1996 through which the petitioner was posted as Director (Tech) stands revived and the respondents are directed to allow the petitioner in implementation of the same to hold the post of Director (Tech), P.R.T.C. And discharge functions as such in terms of the said order. There will be no order as to costs.