' SAIDUZZAMAN SIDDIQUI, J.---The abovementioned two civil appeals with the leave of this Court are filed against the judgment of Federal Service Tribunal, dated 16-10-1993. Leave was granted in the above appeals to consider the following contention:-- "In seeking leave to appeal, the learned counsel for the petitioners/Pakistan Engineering Council, contended that even the work of supervision and maintenance of civil engineering is required to be done by a Professional Engineer in view of the provisions of Pakistan Engineering Council Act, 1976 and as such respondent Muhammad Aslam who was Diploma-holder and was not registered as a Professional Engineer with the Pakistan Engineering Council could not be promoted to the post of Deputy Director (Engineering). In support of his contention, the learned counsel has placed reliance on the judgment of this Court in Civil Appeals Nos.31 and 32 of 1991 and 57 of 1992 (Pakistan Diploma Engineering Federation Registered v. Federation of Pakistan) decided by a Bench of this Court by judgment dated 13-10-1993 (1994 SCMR 1807)."
2. Civil Appeal No,442 of 1994 has been filed by the Pakistan Engineering Council (hereinafter to be referred as "the Council") while Civil Appeal No,443 of 1994 is filed by Engineer Obaidullah Khan, an employee of Pakistan Institute of Medical Sciences (PIMS), Islamabad. The appellants have jointly challenged the promotion of respondent No,3 to the post of Deputy Director (Engineering). It is jointly contended, by the appellants that the post of Deputy Director requires performance of the work of a 'Professional Engineer' as defined in the Pakistan Engineering Council Act, 1975 (hereinafter to be called as 'the Act'), and therefore, respondent No,3, who is not registered as a 'Professional Engineer' with the Council, is not entitled to hold this post. It is further contended by the appellants jointly that respondent No,3, being only a diploma-holder, was not entitled to be registered as 'Professional Engineer' with the Council, and therefore, for this reason too he could not be promoted to a post which required performance of the work of a 'Professional Engineer'. The learned counsel for the appellants in support of his contention relied on the case of Muhammad Azim Jamali v. Government of Pakistan (1992 PLC (C.S.) 637) and Pak Diploma Engineers Federation (Regd.) v. Federation of Pakistan (1994 SCMR 1807).
3. The learned counsel for the private respondent as well as the learned Deputy Attorney-General, on the other hand, jointly contended that the requirement of registration of a person as a 'Professional Engineer' under-the provisions of the Act, is not applicable to a person employed in the Government Department in view of the decision of this Court in the following cases:--
(1) Muhammad Azim Jamali v. Government of pakistan (supra);
(2) Fida Hussain v. Secretary, Kashmir Affairs (PLD 1995 SC 701);
(3) Muhammad Sadiq v. University of Sindh (PLD 1996 SC 182);
(4) Abid Mahmood v. Government of Pakistan (1996 PLC (C.S.) 1061) and
(5) C.P.L.A. No,2261/L of 1996 Raja Ata Ullah v. Shabbir Ahmed Chughtai and others, decided on 12-1- 1997).
4. The admitted position in the case is that appellant in Civil Appeal No,443 of 1994 is an Engineering Graduate and is also registered with the Council as a Professional Engineer while respondent No,3 holds only a diploma in engineering and is not registered with the Council respondent No,3 is, however, much senior to appellant in Civil Appeal No,443 of 1994 in service, in grade B.17. It is also not disputed that respondent No,3 possessed the qualifications prescribed under the Service Rules for promotion to the post of Deputy Director (B.18). The objection of the appellants in the above appeals, however, jointly, against the promotion of respondent Not3 to the post of Deputy Director (B.18), is that the job of Deputy Director (B.18) necessarily required performance of a work of 'Professional Engineer' which could not be undertaken by respondent No,3 who is not only a diploma-holder in engineering but is also not registered with the Council as a 'Professional Engineer'.
5. As Muhammad Azim Jamali's case (supra) is relied by both the parties in support of their respective contentions, we may examine this case in some detail here. In that case, the controversy related to the promotion of Assistant Executive Engineer (B.17) in Pakistan Railways to the post of Executive/Divisional Engineer (B.18). The petitioners in that case were holding degrees of B.E./B.Sc. Engineering while the respondents 4 to 10 and 12 to 34 were diploma-holders in Engineering. The oontention of the petitioners in that case was that respondents 4 to 10 who were holding the posts of Executive/Divisional Engineer and respondents 12 to 34 who were claiming promotion to the post of Executive/Divisional Engineer, were not entitled to hold the post of Executive/Division Engineer' under provisions of the Act. The case was initially heard by a learned Division Bench of the High Court of Sindh consisting of Ajmal Mian, C.J. (as he then was) and Qaiser Ahmed Hamidi, J. The learned Judges differed on the interpretation of the scope of the provisions of the Act. Ajmal Mian, C.J. (as he then was) came to the conclusion that provisions relating to the registration of a Professional Engineer contained in the Act, were not applicable to persons having engineering qualification employed in the Railways against a post which required engineering skill.
The other learned Judge (Qaiser Ahmed Hamidi, J.) of the Bench, took the view that registration under the Act is necessary even for a person. Employed in the Railways against a post which required engineering qualification. On account of the above difference of opinion, the matter was referred to the referee Judge (Saiduzzaman Siddiqui, C.J., as he then was). The referee Judge took the following view:-- "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 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 Orgnaisation and are called upon to undertake any professional engineer 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 provisions of the Act."
6. The above decision of the High Court of Sindh in Muhammad Azim Jamali's case (supra) was challenged by the Council before this Court which is reported as Pak Diploma Engineers Federation (Regd.) v. Federation of Pakistan (supra). The relevant observations of this Court in Pak Diploma Engineers Federation (Regd.) case appear as follows:-- "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 Civil Appeal 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."
7. In the case of Fida Hussain v. Secretary, Kashmir Affairs (supra) decided by a five members'
Bench of this Court, the view expressed in Muhammad Azim Jamali's case as approved in Pak Diploma Engineers Federation by this Court, was not dissented from. On the contrary, the decision in Muhammad Azim Jamali's case was referred with approval and it was further stated that appeal against the decision in Muhammad Azim Jamali's case was dismissed by this Court. We are, therefore, of the view that in the present case, it is not necessary to examine any further the effect of decision in Fida Hussain v. Secretary, Kashmir Affairs (supra).
8. In the present case, the controversy whether respondent No,3 could hold the post of Deputy Director (Engineering) without being registered as a 'Professional Engineer' does not arise directly as there is nothing on record before us to conclusively establish that respondent No,3 in his capacity as Deputy Director (Engineering) is required to undertake the work of a 'Professional Engineer' within, the meanings of the Act. The promotion of respondent No,3 to the post of Deputy Director (Engineering) having been made on the basis of qualifications and seniority-cum-fitness as prescribed under the relevant Service Rules, is not open to any exception. We, therefore, find no ground to interfere with the judgment of learned Service Tribunal. The appeals are, accordingly, dismissed but there will be no order as to costs.