GHULAM ABBAS SOOMRO Versus PROVINCE OF SINDH

SHAHID WAHEED, J.--- This judgment is a continuation of the order issued on the 7th of February, 2024, by a Three-Member Bench of this Court in this appeal, which is reported as 2024 SCMR 673 (hereinafter referred to as the reported order). To provide a clear understanding of the context, it would be appropriate at the outset to recap the key points of this appeal, which present two significant dimensions for the Court s deliberation. The first concerns the legitimacy of the successive transfer orders affecting the appellant, while the second addresses the underlying justification for those transfers. Relating to the first dimension, it is important to note that the matter has already been conclusively settled in the reported order. We will therefore not elaborate further on that aspect. We will pick up the thread from the point where the stitch was made over to this Bench and will complement the reported order.

2. In his written statement presented before the Services Tribunal, the Secretary of the Works and Services Department of the Government of Sindh explained that the appellant s transfer order was rescinded based on a cautionary note highlighted in the penultimate paragraph of the judgment determined in Maula Bux Shaikh 1 . This cautionary note is crucial and is reproduced below:

The net result of the above discussion is that this petition fails. It is dismissed, and leave refused, however, with note of caution that government shall not allow or permit any person to perform professional engineering work as defined in the PEC Act, who does not possess an accredited engineering qualification from an accredited engineering institution and his name is not registered as a registered engineer or professional engineer under the PEC Act.

3. This cautionary note, intricately woven with three material terms, namely, professional engineer , registered engineer and professional engineering work , prompted a Three-Member Bench of this Court to conduct a thorough survey of the relevant case law involving the Pakistan Engineering Council Act of 1975 ( the Act ). The purpose of this examination was to find whether there exists a conflict between the cautionary note outlined in the judgment of Maula Bux Shaikh and the judgment in Fida Hussain 2 . Upon this review of case law, the Three-Member Bench concluded that both the Fida Hussain and Maula Bux Shaikh cases assert that it is principally within the domain of the concerned Government to determine whether an individual civil servant s academic qualifications are adequate for promotion from one Grade to a higher Grade. However, it seems that the Bench, realising the significance of the terms professional engineer , registered engineer , and professional engineering work , recognised the necessity of a definitive ruling on two pivotal questions: First, can any governmental policy regarding promotions be substantively implemented if its enforcement risks violating the Act or any other statute, or could such a policy expose individuals who stand to benefit from it to criminal liability? Secondly, does restricting an Executive Engineer (BS-18) from performing the professional engineering works required of that role lead to the establishment of divergent classes of employees within the same cadre, thereby potentially infringing on the principle of equality and non-discrimination as enshrined in Article 25 of the Constitution? After careful consideration of these concerns, the Bench deemed it prudent to forward the case to a larger Bench for a more in depth review.

4. The questions posed to this Bench do not necessitate an extensive examination of the provisions within the Act, given that such an analysis has already been carried out in prior legal precedents, particularly those referred to in the reported order. All that is needed here is to determine the connotations of the three terms used in the cautionary note, and once it is done, the answer to the questions posed to this Bench would come to the fore. This exercise requires understanding the purpose for which the Act was enacted, the amendments made to it over time, and the jurisprudence developed thereon. We, therefore, deem it pertinent to refer to the judgment of the High Court rendered in the case of Muhammad Azim Jamali 3 , which this Court has previously evaluated on appeal by the Pakistan Engineering Council 4 ( the Council ) and subsequently reconsidered and approved in Fida Hussain. This judgment is significant because it was the first to examine the Act and the term professional engineer on the principle that debates held within the Assembly serve as an important, albeit sometimes limited, instrument for interpreting the law, and that ministerial statements issued in Parliament constitute an equally credible source providing insight into the intent of the framers as well as the mischief that a specific law seeks to address 5 . As such, the High Court in Muhammad Azim Jamali had sought the records of parliamentary debates held during the passage of the Pakistan Engineering Council Bill on 5th of December, 1975. From analysing these debates, it was inferred that the primary aim of introducing the Engineering Council Bill was to restructure the engineering profession, aligning it with regulatory frameworks in the medical and legal fields. The legislation sought to establish an Engineering Council comparable to the Medical Council and the Bar Council, thereby instituting necessary checks and balances within the profession. In his judgment, Ajmal Mian, Chief Justice (as he then was), drew parallels between the provisions of the Act and those outlined in the Legal Practitioners Act, observing that the latter applies strictly to practising advocates and does not extend its purview to persons holding legal qualifications working in statutory corporations or government departments. While these persons may be providing legal advice in the context of their employment, they are not necessarily covered by statutes designed for practising attorneys. Similarly, Justice Saeeduzzaman Siddiqui, in agreement with Chief Justice Ajmal Mian s observations, noted that the mere possession of an engineering qualification by a person employed in a capacity necessitating engineering expertise does not inherently require that person to be registered under the Act. He concluded that the term professional engineer as defined by the Act possesses a specific connotation. It refers to persons who are in the profession of engineering and practice as such to tender technical advice in respect of work that involves engineering skills. This perspective still holds good, and we prefer to approve it.

5. Now, we touch on the term registered engineer and make a bid to find its connotation. Before Maula Bux Shaikh, the consistent view of the courts was that the Act applied only to professional engineers and professional consultants in practice. However, in 2011, the Act was extensively amended by the Pakistan Engineering Council (Amendment) Act. The preamble to the Act was amended to state that the Council would act as an apex body dedicated to encouraging and promoting excellence within the engineering profession, regulating the quality of engineering education and practice, and thereby fostering rapid economic and social growth in Pakistan. From this vantage point, the primary objective of the Act becomes clear: it seeks to maintain oversight and regulate the practices of persons engaged as professional engineers or registered engineers, and to punish violations of the Act s provisions in cases of employment on professional engineering works of such persons, who are not registered as engineers with the Council. Based on this objective, it is evident that the amendments to the Act added a new term registered engineer and defined it in clause (xxvii) of section 2 as a person who holds an accredited engineering qualification, whether working privately or in the employment of an engineering public organisation (i.e. a department of the Federal Government or a Provincial Government, a Public Corporation, autonomous or semiautonomous body, cantonment board, municipality, improvement trust or other local authority 6 ) and is registered as such by the Council. It appears that the introduction of the registered engineer category in the Act aims to streamline operations for the Government and any organisations that are owned or controlled by it. This addition enables the public entities to assign or delegate professional engineering work to their own qualified engineers, thereby reducing the financial burden that arises from hiring or employing professional engineers for professional engineering work. As a result, the Act now permits registered engineers to engage in a wide array of professional engineering works. However, it is important to note that they are not authorised to independently sign off on designs. It is essential to clarify here that the inclusion of registered engineers within the framework of the Act does not impose any limitation on the Government s power to delineate the qualifications and other criteria pertinent to their roles. The Government still retains the responsibility and discretion to establish specific requirements for the recruitment process, as well as to determine the terms and conditions governing postings, transfers, and promotions for persons employed in its engineering-related departments or organisations. It only implies that if a person is called upon to perform any of the professional engineering works as defined under the Act, the provisions of the Act will come into operation to ensure that such a person is a professional engineer or a registered engineer.

6. Given the amended foundational objective of the Act, it is crucial to interpret the term professional engineering work accurately. This interpretation will not only illuminate the cautionary note provided in Maula Bux Shaikh but also provide clarity regarding the questions referred to this Bench. The term professional engineering work , as defined in clause (xxv) of section 2 of the Act, encompasses the range of services and works typically carried out by a professional engineer in practice, primarily the provision of professional advice and opinions. Other services and works mentioned in clause (xxv) following these two core functions ought to be interpreted in conjunction with them; if viewed separately, the interpretation could lead to nonsensical outcomes. This elucidation is in line with what has been stated in Muhammad Azim Jamali and then incorporated in Fida Hussain. It will become even clearer and more meaningful when considering how government departments, organisations or bodies engaged in the construction of various types of building works operate within a structured hierarchy of personnel responsible for both executing and supervising the construction tasks. It is widely recognised that many of the personnel involved in these operations such as Masons, Head Mistris, Overseers, and Assistant Engineers ordinarily do not hold formal engineering degrees. Instead, they often hold diplomas or certificates that qualify them for their respective roles. These staff members, despite lacking engineering degrees, are entrusted with the responsibilities that include taking accurate measurements, preparing detailed layouts, drafting reports, and creating specifications, as outlined in clause (xxv) of section 2 of the Act. Importantly, they perform these functions under the oversight of qualified persons with engineering degrees, ensuring their work aligns with established standards. Similarly, numerous private construction companies employ personnel who may not have formal engineering qualifications. Accepting the premise that the words professional advice and opinion are to be read disjunctively with other works and services stated in clause (xxv) of section 2 of the Act would have significant repercussions. It would imply that with the enforcement of the Act, countless employees in both government departments and private organisations potentially numbering in the millions throughout Pakistan would suddenly find themselves disqualified from performing their jobs. This interpretation could not have been the lawmakers intention.

7. In light of the aforementioned considerations, it is evident that the Act, after amendments, stipulates that no person may practice as a professional engineer, serve as a professional consultant, or perform as a registered engineer to execute professional engineering work without prior registration with the Council or a temporary license issued in accordance with section 12 of the Act. Furthermore, no department or organisation specified in clause (xiii) of section 2, which defines engineering public organisation , is permitted to employ anyone as a professional engineer or professional consultant or registered engineer unless that person s name appears on the register maintained by the Council under section 16 of the Act.

8. We have now arrived at a stage where we need to elucidate the purpose of the cautionary note included at the end of the judgment delivered in Maula Bux Shaikh . Based on the extensive analysis above, it is abundantly clear that the provisions of the Act neither regulate the terms and conditions of the service of civil servants nor impose any constraints on the government s authority to formulate policies on recruitment, promotion, job responsibilities, postings, or the terms and conditions governing civil servants. It only states that persons working in the government may advance in their careers within the same cadre, subject to the government s rules and policies; however, any professional engineering work will be performed only by a registered engineer or a professional engineer. Therefore, it can be concluded that enforcement of the provisions of the Act does not result in the creation of distinct classifications of employees within the same government cadre. In the sequel, the cautionary note recorded in Maula Bux Shaikh becomes distinctly clear. It specifically pertains to the realm of professional engineering work, as outlined in section 2(xxv) of the Act, which is exclusively conducted by persons actively practising engineering (professional engineer) or registered engineers, both of whom possess accredited engineering qualifications from recognised engineering institutions. The cautionary note effectively prevents the government from allowing any person who lacks the necessary authorisation to undertake professional engineering work. It reminds that failing to do so will attract the penalties set out in the Act.

9. So viewed, this appeal succeeds and is allowed. Resultantly, the Tribunal s order dated 28th of January, 2021 is set aside, and the respondents are directed to consider the appellant s case in accordance with the conclusion set out above and paragraph 6 of the reported order.

10. All pending CMAs are disposed of.

UN/G-2/SC Appeal allowed.

1 Maula Bux Shaikh and others v. Chief Minister Sindh and others (2018 SCMR 2098 = 2019 PLC (C.S.) 282)

2 Fida Hussain v. The Secretary, Kashmir Affairs and Northern Affairs Division, Islamabad and another (PLD 1995 SC 701)

3 Muhammad Azim Jamali and 11 others v. Government of Pakistan through Secretary/Chairman, Ministry of Railways and 33 others (1992 PLC (C.S.) 637)

4 Pakistan Engineering Council through Registrar v. Muhammad Azim Jamali and 44 others, Civil Appeal No.57 of 1992 (1994 SCMR 1807)

5 Pepper (Inspector of Taxes) v. Hart [(1992) 3 WLR 1032 = 1993 SCMR 1019], A & B Food Industries Limited v. Commissioner of Income-Tax / Sales, Karachi (1992 SCMR 663), Muhammad Mubeen-us-Salam and others v. Federation of Pakistan (PLD 2006 SC 602)

6 Section 2(xiii) of the Pakistan Engineering Council Act, 1975.