ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT,

HYDERABAD.

PRESENT:

1. Mr. Justice Amir Hani Muslim

2. Mr. Justice Ahmed Ali Shaikh

C.P.No.D-204 of 2006

DATE ORDER WITH SIGNATURE OF JUDGE

23.12.2009.

Mr. Muhammad Solat Rizvi Advocate for Petitioner.

Mr. Allah Bachayo Baloch Additional Advocate General Sindh.

Mr. Irfan Ahmed Meo Advocate for respondents/WAPDA

Ahmed Ali Shaikh J: Through the instant petition, the petitioner has prayed as under:-

It is humbly prayed on behalf of the Petitioner above named that this Honourable Court may be pleased to held and direct the Respondents No.1 and 2 to:-

a) Implement the Judgment of Hon’ble Supreme Court reported in PLD 1995 SC 710 in its letter and spirit;

b) Consider the petitioners (B.Tech) (Hons) at par with the Engineers having B.E/B.Sc. degrees.

c) Direct the Respondents to consider the Petitioner for promotion/ up-gradation for the post of BPS-18.

d) Award any other relief as deemed just and proper in the circumstances of the case;

2. From the pleadings, it appears that the petitioners had joined the service of respondents in 1973. During service, they improved their qualification and obtained the degree of B.Tech (Hons) in 1983. Subsequently they were promoted as Jr. Engineer (BPS-17) in 1985. It appears that on 11.02.2004 and 07.04.2004, some colleagues of the petitioners, who were junior to them, were promoted by the respondents but the petitioners were ignored. Again on 30.11.2004, the Respondent No.2 approved the promotions of some Junior Engineers though they were juniors to the petitioners but the petitioners were not considered. The grievance of the petitioners is that they were not considered for promotion for the reason that they are possessing B.Tech (Hons) degree, which has not been recognized by Pakistan Engineering Council equivalent to B.E/B.Sc Engineering degree. The rules framed by the WAPDA are in violation of Article 25 of the Constitution as the promotion from grade 16 to 17 is made available to the employees possessing B.Tech (Hons) degree but the promotions from grade 17 to grade 18 and above has not been provided simply for the reason that B.Tech (Hons) degree has not been recognized as equivalent to B.E/B.Sc. Engineering degree by Pakistan Engineering Council. It further appears from the pleadings that in the year 2004, a policy for up-gradation of posts of Junior Engineers was made by the WAPDA whereby some Junior Engineers possessing 15 years served in BPS-17 were upgraded in BPS 18 but the petitioners and other employees, who were possessing B.Tech (Hons) degree were ignored.

3. The respondents filed their comments in which they have taken the plea that the B.Tech (Hons) degree has not been declared equal to B.E/B.Sc Engineering degree by the Pakistan Engineering Council, therefore, the petitioners are not entitled for promotion or up gradation from BPS-17 to BPS-18 and no discrimination has been made to the petitioners in respect of promotion or up gradation. The employees having B.E degree have been promoted from BPS-17 to BPS-18.

4. Learned counsel for the petitioners has contended that the petitioners have been ignored/ deprived from the promotion on the ground that B.Tech (Hons) degree has not been recognized by Pakistan Engineering Council as equivalent to B.E/B.Sc Engineering degree. The service of the petitioners is not governed by any rule or provision of Pakistan Engineering Council and if any rule/ provision exist, same is not applicable to the service of the petitioners. Learned counsel has placed before us, copy of office memorandum dated 17.04.1996 of Government of Pakistan, Ministry of Education by which it has been declared that in pursuance of judgment of Honourable Supreme Court dated 5^th June, 1995 passed in Suomoto Revision No.52/1993 and in line with the policy decision contained in the Ministry’s letter No.F-15-29/73 Tech dated 26.10.1973 for introduction of B.Tech programme, B.Tech (Hons) Degree shall be treated at par with B.Sc Engineering/B.E degree. Learned counsel has further relied upon the office order of Federal Public Service Commission Isamabad dated 10^th December, 2002 which reveals that in the light of office memorandum dated 14.03.1996 of Ministry of Water and Power as well as on the advise of University Grants Commission (UGC) now Higher Education Commission(HEC), the B.Tech(Hons) degree has been declared at par with B.E/B.Sc Engineering Degree and it has been decided by the commission that the candidates possessing the qualification of B.Tech(Hons) will be eligible for the post where prescribed qualification is B.E/B.Sc Engineering. The above letter further reveals that the condition of registration of Engineers with Pakistan Engineering Council which was imposed by Establishment Division vide letter No.16/2/80-R-9 dated 14.12.1986 has been withdrawn, therefore, the condition for registration with Pakistan Engineering Council is applicable where the required qualification is B.E/B.Sc Engineering. In support of his contentions, learned counsel has relied upon the case of Fida Hussain Vs The Secretary Kashmir Affairs and Northern Affairs Division Islamabad and another PLD 1995 S.C 701.

5. Learned counsel for the respondents has contended that the ratio of Fida Hussain’s case (supra) relates to the promotion of the B.Tch (Hons) holders from BPS-16 to BPS 17, therefore, it is not applicable to the case of the petitioners. It is further stated that per letter dated 12.07.2006, issued by the Additional Registrar Pakistan Engineering Council, the B.Tech (Hons) degree from any university is not equivalent to B.E/B.Sc Engineering degree in Pakistan, therefore, petitioners are not eligible for promotion from BPS 17 to BPS-18. Learned counsel has appended copy of the above said letter as Annexure “A” with the comments.

6. From the contention raised by the parties, it appears that the petitioners were not considered for promotion from BPS-17 to BPS-18 for the reason that instead of B.E/B.Sc Engineering degree, thy do possess B.Tech (Hons) degree and same has not been declared equivalent to B.E/B.Sc Engineering degree by Pakistan Engineering Council. Pakistan Engineering Counsel is creation of Act V of 1976. The object of this Act from its preamble has been defined as under:-

“Whereas it is expedite to make provision for regulation of the Engineering profession and for that purpose to constitute Engineering Council”.

7. For resolving this controversy, we have to examine the functions of the Pakistan Engineering Council. For the sake of brevity, section 8 of the Act, which provides the function of the Council is reproduced as under:-

“8. Functions of the Council.- The following shall be the functions of the Council, namely:-

(a) maintenance of a Register of persons qualified to practice as professional engineers and consulting engineers;

(b) recognition of engineering qualifications for the purpose of registration of professional engineers and consulting engineers;

(d) laying down of standards of conduct for the members;

(e) safeguarding the interests of the members;

(f) promotion of reforms in the engineering profession;

(g) management of the funds and properties of the Council;

(h) promotion of engineering education and review of courses of studies in consultation with the Universities;

(i) levy and collection of fees from applicants for registration or temporary licenses and members;

(j) exercise of such disciplinary powers over the members and servants of the Council as may be prescribed;

(k) formation of such committees as may be prescribed; and

(l) performance of all other functions connected with, or ancillary or incidental to, the aforesaid functions.

8. For deciding the controversy in hand, it is to be seen whether such provisions are applicable to the case of the petitioners. From the plain reading of section 8 of Pakistan Engineering Council Act, it appears that function of the Council is relating to the recognition of Engineering qualification for the purpose of registration which is applicable to the professional Engineers and consulting Engineers and not applicable to the case of Engineers who are in Government service or Autonomous Bodies etc. In the case of Pakistan Diploma Engineers Federation (Registered) through its Chairman Vs. Federation of Pakistan, through Secretary, Ministry of Water and power, Government of Pakistan, Islamabad and 9 others (1994 SCMR 1807), the Honourable Supreme Court has affirmed the majority view of the High Court of Sindh in the case of Muhammad Azeem Jamali and 11 others Vs. Government of Pakistan through Secretary/ Chairman, Ministry of Railways and 33 others 1999 PLC (C.S) 637. While interpreting the applicability of Pakistan Engineering counsel Act, held that the provisions of the Act are applicable only to professional Engineers and consulting Engineers, who are in practice and not to the persons working in the Government Departments, Autonomous Bodies, Local Authorities and private firms or companies. In view of the dictum laid down by Honourable Supreme Court in case of Pakistan Diploma Engineers Federation (supra), we are of the considered view that the provisions of the Pakistan Engineering Council Act are not applicable to the case of the petitioners and on the basis of letter dated 29.06.2005 issued by the Pakistan Engineering Council, the petitioners could not be ignored for consideration for promotion from BPS-17 to BPs-18. In the case of Fida Hussain (supra), the Honourable Supreme Court has directed the respondents to consider the Petitioner’s case for promotion from BPS-16 to BPS-17 as in the above case the grievance of the Petitioner pertained to his promotion from BPS 16 to BPS-17 as he was not considered for promotion on the ground that his qualification was B.Tech (Hons). While delivering such celebrated Judgment, the Honourable Supreme Court did not touch the question of promotion from BPS-17 to BPS 18, therefore, the contention raised by learned counsel for the respondents is without force. Even otherwise the Honourable Supreme Court did not put any restriction upon the respondents regarding the promotion of B.Tech (Hons) holders from BPS 17 to BpS-18. The office memorandum dated 17.04.1996 issued by the Government of Pakistan Ministry of Education which was forwarded to all the Ministries/Divisions concerned, Chief Secretaries Punjab, Sindh, NWFP, Balochistan and AJ & K as well as to the Secretaries Education of all the provinces and Chairman and Pakistan B.Tech Engineering Council Lahore is self explanatory and same is reproduced as under:-

OFFICE MEMORANDUM

The undersigned is directed to state that in pursuance of Judgment of the Supreme Court dated 5^th June, 1995 in Suo Moto Review Petition No.52 of 1993 and in line with the policy decision contained in this Ministry’s letter No.F.15-29/73-Tech., dated 26.10.1973 for introduction of B.Tech Programme, it is reiterated that B.Tech (Hons) degree shall be treated at par with B.Sc engineering/B.E degree.

Sd/-

(NASIR AHMAD)

Assistant Educational Adviser

9. From the perusal of above memorandum, there remains no doubt/confusion that B.Tech (Hons) degree has been treated equivalent to B.E/B.Sc Engineering degree. Moreover, the Wapda, which is under the Water and Power Ministry, after receiving aforesaid memorandum, Wapda Authorities did not raise any question regarding the legality /authenticity of above said preposition and for any purpose, Wapda is not governed by any rule, regulation or provision of Pakistan Engineering Council.

10. The service of the petitioners is governed by the Wapda Service Rules and not by Pakistan Engineering Council Act or Rules. Therefore, for all purposes the promotion or up gradation of the Petitioners is regulated by Wapda Act/Rules Learned counsel for the Respondents could not place before us any provision of Wapda Service Rules showing that the B.Tech (Hons) holders are not entitled to promotion to higher ranks/ grade.

11. The upshot of the above discussion is that the respondents are directed to consider the case of petitioners for promotion or upgradation keeping in view their seniority, fitness and eligibility.

For the foregoing reasons, the above petition was allowed by us vide short order dated 03.12.2009.

JUDGE

AKC