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Petitioner: Arshad Ali VS Respondent: WAPDA etc
Court Name: Lahore High Court Judge(s): Jawad Hassan Title: Arshad Ali vs WAPDA etc Case No.: Writ Petition No.43599 of 2017 Date of Judgment:2020-08-20 Reported As: 2020 LHC 1753 Result: Petition allowed
JUDGMENT
JUDGMENT JAWAD HASSAN, J. The Petitioner has invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakista n, 1973 (the "Constitution" ) by challenging a quasi-judicial order dated 14.02.2017 passed by the Respondent No.3/Director General (CM) S&C pursuant to directions issued in W.P.No.28958 of 2015 dated 09.01.2017. The Petitioner has also sought directio ns to the Respondents to grant him time scale upgradation from BPS-19 to BPS-20 w .e.f. 21.05.2014 alongwith pensionary benefits. I. BACKGROUND OF THE CASE 2. Unnecessary details apart, the backgro und of the case is that the Petitioner joined the service of Water & Power Development Authority (WAPDA) as Junior Engineer (Civil) in BPS-17 on 24.12. 1983 and consequently he was promoted as Superintendent Engineer in BPS-19 on 21.05.2012. On 15.03.2015, he was retired from service on attaining the age of superannuation. His grievance is that he was not given the benefit of Time Scale Upgradation (TSU) in terms of Office Memorandum dated 05.03.2013 despite fixation of eligibility criteria by the Respondents. During service, he was directed by the Respondents to furnish an undertaking vide letter dated 08.07.2014 for his consideration for grant of TSU however , the same was refused. Upon refusals, he filed Appeal/Representation before the Respondent No.1/Chairman WAPDA, Lahore on 09.03.2015, which remained pending and on the direction of this Court issued in W.P. No.171 11/2015 the Time Scale Upgradation Board' s meeting was held in June, 2015 and only serving Officers were allowed the TSU as the Petitioner had already been retied on 15.03.2015. The Petitioner filed another appeal to the Respondent No.1 which too was disposed of on 14.02.2017 and the TSU of the Petitioner was refused. Whereupon, the Petitioner filed an Appeal before the Federal Service Tribunal, same was dismissed being non-maintainable vide order dated 29.05.2017. Hence, this writ Petition. II. PETITIONER'S ARGUMENTS
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3. Syed Moazzam Ali Shah, Advocate inter-alia contended that the Petitioner was entitled to be upgraded within 30 days of the Promotion Board' s meeting which has to be held twice in a year in terms of Notification dated 21.06.2007 however , no meeting was convened till his retirement; that Office Memorandum dated 05.03.2013 clearly speaks about its application to officers who were in service on 15.02.2013 or may have retired thereafter; that the case of the Petitioner for TSU was proceeded in the year 2014 but the Respondent-W APDA did not convene the TSU Board' s meeting in the year 2014, without any reason, which not only deprived his vested right of TSU but it has also caused him permanen t loss of pensionary benefits of higher grade. Learned counsel has relied on "Ch. AZHAR HUSSAIN Versus SECRET ARY TO GOVERNMENT OF THE PUNJ AB LG&CD DEPARTMENT , LAHORE and 2 others" (2016 PLC (C.S.) 693), "Mrs. NASEEM M. QADRI Versus FEDERA TION OF PAKIST AN and another" (2009 PLC (C.S.) 229), "ABDUL QAYYUM MIRZA and another Versus DIRECT OR-GENERAL, FEDERAL DIRECT ORA TE OF EDUCA TION, ISLAMABAD and 5 others" (2008 PLC (C.S.) 173) and "Raja MUHAMMAD NASEEM KHAN Versus AZAD JAMMU AND KASHMIR GOVERNMENT through Chief Secretary and 4 others" ( 2010 PLC (C.S.) 439 ). III. RESPONDENTS' ARGUMENTS 4. On the other hand, learned counsel for the Respondent-W APDA filed report and parawise comments and vehemently opposed the arguments advanced by the learned counsel for the Petitioner and objected qua the maintainability of this writ Petition on the ground that the TSU has been granted to the eligible officers in lieu of promotion and the basic purpose of this policy is to provide incentive to such officers who cannot be promoted in the next grade due to non-availability of vacancies. He argued that TSU is to be granted from its date of decision of Board and not from any earlier date. He added that when the Petitioner moved Application for his TSU, he was replied vide letter dated 20.03.2015 by explaining that there was no provision available in relevant Rules for grant of TSU after retirement . He urged that Clause 6 of WAPDA Promotion Policy states that "Selection Board will usually be held twice a year" in April and October and the convener can reschedu le the number and frequency of the Board as per requirements and the schedule contains the guidelines chalked out for convenience and can be deviated from it warranted by circumstan ces with the approval of the Competent Authority . That the TSU is a de- facto promotion at par with regular promotion keeping in view the fact that all the criteria/pre-requisites of promotion are applicable on it and it is not solely a time/service length based incentive which is granted to each and every officer, who fulfills/completes the requisite length of service, therefore, the Petitioner is not entitled for the TSU as matter of right. Learned counsel relied on the judgments cited as "Shafique Ahmad Khan v .NESCOM and others" (PLD 2016 SC 377), "Muhammad Tariq Badr v. Nationa l Bank of Pakistan" (2013 SCMR 314), "Muhammad Zaman and others v. Government of Pakistan, etc." (2017 SCMR 571) and "National Bank of Pakistan v . Iftikhar Rasool Anjum" (PLJ 2017 313 (DB). IV. MOOT POINTS 5. After hearing the preliminary arguments of learned counsel for Parties on 12.06.2019 following moot points were framed by this Court in order to determine the actual controversy of issue in hand: 1. Whether non-convening mandatory meeting of the Board by the Authority amounts to miscarriage of justice and denial of benefits of Notification? 2. Who was responsible to convene meeting of Time Scale Upgradation Boards and when it was mandatory to hold twice in a year , what was its composition? 3. How many TSU and TSUB have been held from year 2013 to 2016? 6. Pursuant to the order dated 12.06.2019, Barrister Lamia Niazi and Malik Muhammad Awais Khalid, Advocates were appointed as "Amicus Curiae" to assist the Court by examining all the relevant Laws on the aforesaid moot points regarding non-convening of regular Board Meeting by the various authorities and bodies under respective law. V. ARGUMENTS OF AMICUS CURIAE 7. Barrister Lamia Naizi, learned Amicus Curiae submitted her written brief and emphasized on the word "Shall" used in the Notification dated 11.06.2007 of the Respondent-W APDA. She states that admittedly two (02) meetings as prescribed and required by Notification have to be held to deal with the promotion cases and it is manifest that
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this mandatory provision has not been complied with rather violated and flouted by the Respondent-W APDA. She adds that non-compliance of mandatory provisions under the Companies Ordinance, 1984 held to have penal consequences which may be converted to warning etc. depending on the facts of the case. She relied on the Election Act, 2017 and states that non-compliance under this Act has penal consequences. Lastly Barrister Lamia Naizi states that in services cases where the provision is considered necessary and mandatory then its non- compliance will lead to an action taken to be void. She relied on "Sardarzada ZAFAR ABBAS and others Versus Syed HUSSAIN, MUR TAZA and others" (PLD 2005 Supreme Court 600), "Lt. Col. (Rtd.) GHAZANF AR ABBAS SHAH Versus Mehr KHALID MEHMOOD SARGANA and others" (2015 SCMR 1585 ), "Sh. RIAZ-UL- HAQ and another Versus FEDERA TION OF PAKIST AN through Ministry of Law and others" (PLD 2013 S.C. 501), "Syed MAHMOOD AKHT AR NAQVI and others Versus FEDERA TION OF PAKIST AN and others" (PLD 2013 S.C. 195), "MUHAMMAD TARIQ MASOOD, CEO SAUDI PAK LEASING COMP ANY LIMITED Versus COMMISSIONER (SPECIALIZED COMP ANIES DIVISION) SECP" (2018 CLD 44) (SECP), "NATIONAL TRANSMISSION AND DESP ATCH COMP ANY LIMITED Versus CORPORA TIZA TION AND COMPLIANCE DEPARTMENT , SECP" (2018 CLD 197) and "KHALID MEHMOOD and 4 others Versus Messrs MUL TI PLUS CORPORA TION PRIV ATE LIMITED and 2 others" ( 2017 CLD 1737 ). 8. Malik Muhammad Awais Khalid, Advoc ate/Amicus Curiae also submitted his written brief and adop ted certain arguments advanced by Barrister Lamia Naizi. Additionally , in order to highlight the mandatory force of the word 'Shall" he put much emphasis on Section 8 of the Pakistan Medical and Dental Council, 2019, Section 3(4) of the Punjab Environmental Protection Act, 2017, Section 4 of Article of Association of Lahore Waste Management Company , Section 7(1) of the Punjab Village Panchayats and Neighbourhood Councils Act, 2019 and Section 5 of The Pakistan Engineering Council Act, 2015. He further added that there are certain Acts and Ordinances in Pakistan according to which the authorities are bound to convene mandatory meetings from time to time. 9. Arguments heard and record perused. VI. DETERMINA TION BY THE COURT 10. The argument of learned counsel for the Petitioner is that the Petitioner was entitled to be upgraded within 30 days of the Promotion Boards meeting in terms of Notification dated 11.06.2007 but unfortunately the Respondents did not convene any meeting till his retirement, reasons best known to them. The learned Counsel for the Respondents could not give any plausible reply rather admitted in report and parawise comments that no meeting was held in 2014 whereas the same was convened after the retirement of the Petitioner on 12.06.2015. In order to proceed further it is necessary to discuss the moot points. 1. Whether non-convening mandatory meeting of the Board by the Authority amounts to miscarriage of justice and denial of benefits of Notification? 11. The Petitioner has claimed that he is entitled for his TSU in the light of Notification dated 11.06.2007, relevant part of the same is reproduced as under: "1. In continuation to above notifications, it is hereby clarified that the Time Scale Upgradation Boards shall be held twice in a year within 30 days of the Promotion Boards. However , where Promotion Board could not be held for any reasons the T ime Scale Upgradation Board shall be held regularly ." (a) Meaning of Shall as used in the notification to imply mandatory compliance of the meetings. 12. According to Black's Law Dictionary , the term "shall" is defined as follows: "As used in statutes, contracts, or the like, this word is generally imperative or mandatory . In common or ordinary parlance, and in its ordinary signification , the term "shall" is a word of command, and one which has always or which must be given a compulsory meaning: denoting obligation. It has a peremptory meaning, and it is generally imperative or mandatory . It has the invariable significance of excluding the idea of discretion, and has the significance of operating to impose a duty which may be enforced, particularly if public policy is in favor of this meaning, or when addressed to public officials, or where a public interest is involved, or where the public or persons have rights which ought to be exercised or enforced, unless a contrary intent appears." 13. Further the Lord Plummer J. in People v. O'Rourke, 124 Cal.App.752, 758-59 (Cal.Ct.App. 1932) interpreted the word "Shall" in the following words:
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"The legislature did not use the permissive word "may", but that word, where the public interest are involved by the action of a ministerial officer , is often construed to take on the mandatory form. (County of Los Angeles v. State of California, 64 Cal.App.290) [222 P. 153]; Stockton Plumbing Supply Co. v. Wheeler , 68 Cal.App.592 [229 P. 1020]. In 57 C.J., page 548, the word "shall" is defined where it relates to a ministerial act from which it distinctly appears that the word is mandatory if the public interests are involved. It is there said: "In common or ordinary parlance, and in its ordinary signification, the term "shall" is a word of command, and one which has always or which must be given a compulsory meaning: denoting obligation. It has a peremptory meaning, and it is generally imperative or mandatory . It has the invariable significance of excluding the idea of discretion, and has the significance of operating to impose a duty which may be enforced, particularly if public policy is in favor of this meaning, or when addressed to public officials, or where a public interest is involved, or where the public or persons have rights which ought to be exercised or enforced, unless a contrary intent appears; but the context ought to be very strongly persuasive before it is softened into a mere permission," etc." 14. It is also essential to comprehend the other Laws, wherein the Principle regarding convene of meeting has been recognized. Section 8 of the Pakistan Medical and Dental Council Ordinance, 2019 , states that: "The council shall be meet at least once in three months at such time and place as may be decided by the president." 15. Section 3 of the Punjab Environmental Protection Act, 1997 , is re-produced as under: 3. Establishment of the [Punjab] Envir onmental Protection Council. (1) The Government shall, by notification in the official Gazette, establish a Council to be known as the Punjab Environmental Protection Council consisting of ... (2) The Members of the Council, other than ex-officio members, shall be appointed in accordance with the prescribed procedure and shall hold office for a term of three years. (3) The Council shall frame its own rules of procedure. (4) The Council shall hold meetings as and when necessary , but not less than two meetings shall be held in a year . (5) The Council may constitute committees of its members and entrust them with such functions as it may deem fit, and the recommendations of the committees shall be submitted to the Council for approval. (6) The Council or any of its committees may invite any technical expert or representative of any Government Agency or non-governmental organization or other person possessing specialized knowledge of any subject for assistance in performance of its functions. 16. Section 4 of the Article of Association of Lahore Waste Management Company , which relates to Annual General Meeting, is re-produced as under: "A general meeting to be called Annual General Meeting shall be held, in accordance with the provision of Section 158, within eighteen (18) months from the date of incorporation of the company and thereafter once at least in every year calendar year within a period of four (4) months following the close of its financial year and not more than fifteen (15) months after the holding of its preceding Annual General Meeting as may be determined by the Directors. " 17. Section 7 of the Punjab Village Panchayats and Neighbourhood Councils Act, 2019 , is also relevant, which reproduced as under: "7. General and extra-ordinary meetings of common assembly -- (1) Every common assembly shall hold not less than two general meetings in the every calendar year on such dates as may be appointed by its chairperson." 18. Section 5 of the Pakistan Engineering Council Act, 1975 , is also significant, therefore, the same is reproduced as under: "5. Annual General Meeting of the Council -- (I) An annual general meeting of the Council shall be held at the headquarters of the Council at such time as may be appointed by the Executive Committee. 2. Who was responsible to convene meeting of Time Scale Upgradation Boards and when it was mandatory to hold twice in a year , what was its composition?
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19. As per Notification dated 11.06.2007 the Petitioner is eligible for promotion being serving employee of the Respondent-W APDA. Notification dated 05.03.2013 clearly depicts that the same is applicable to the Officers, who are in service on 15.02.2013 and admittedly the Petitioner was retired from service on 15.03.2015 and could not be granted TSU only because of non-convening of TSU Board' s meeting. Failure to convene the aforesaid TSU Board' s Meeting twice in the years from 2013 to 2016 amounts to non-compliance and violation of afore-referred mandatory principle lead to take a penal action. Reliance is placed on "Muhammad Tariq Masood, CEO Saudi Pak Leasing Company Limited v. Com missioner (Specialized Companies Division) SECP" (2018 CLD 44) (SECP), wherein it has been held: "Failure to convene Annual General Meet ing by Company even in extended period of one month as required under Section 158(1) of the Companies Ordinance, 1984. The Appellant being a CEO was responsible to ensure timely preparation of accounts and removal of the objections of the BOD in an appropriate manner , however he failed to perform the required role. The other directors should not be instrumental to violate the mandatory requirements of the law and in case of any objection on the accounts they should act in accordance with law ." 20. Further relied on "National Transmission and Despatch Company Limited v. Corporarization and Compliance Department, SECP" (2018 CLD 197), wherein the Default under section 158 of the Companies Ordinance, 1984 had been established, however by considering the facts of the case and subsequent compliance of the company , Commission took lenient view and Penalty of fine imposed on the appellant was converted into a warning and appellant CEO of the Company was directed to ensure strict compliance of the relevant provisions of the law in future. 3. How many TSU and TSUB have been held from year 2013 to 2016? 21. It is established in the report and parawise comments in paragraphs No.5 and 6, that no meeting of Senior Selection Board (SSB) for grant of TSU in BPS-20 was held during 2014 or during the ex-of ficer's service tenure in 2015 (i.e. 01.01.2015 to 15.03.2015). However , in the year 2015 Meeting of Senior Selection Board was held on 12.06.2015. VII. ANAL YSIS OF THE COURT 22. The Petitioner had embarked upon a well-founded expectancy of time scale promotion since, on one hand his tenure of service was equated with the required overall length of service necessary for becoming eligible to be considered for such promotion and secondly and most importantly when the Prom otion Policy of the Department itself provided that the meeting of the Board for the purpose of time-scale promotion shall be held twice a year. This directive of the Policy is clearly reflective of the intentions of the policy maker that the case of an employee, whose right to get time-scale promotion is accrued, must be dealt with immediately and in no case be kept dormant for more than six months. Had it not been the intention of the policy maker , the word 'shall' should not have been used, which is a mandatory expression and manifest purpose of the rule/policy that it must be acted upon as a general course and depart from that should not be resorted therefrom. 23. The case of Petitioner is a case of hope and legitimate expectation well founded on the completion of required overall length of service necessary for time-scale promotion and the availabi lity of Promotion Policy of the respondent department, wherein it is clearly stated that meeting of the Board for the purposes of giving time-scale promotion will be held twice a year. In case titled "CHAIRMAN, FEDERAL BOARD OF REVENUE, Islamabad Versus Mrs. NAUREEN AHMED TARAR etc" (2020 SCMR 90), the August Supreme Court of Pakistan has observed that the principle of legitimate expectancy aims at enforcing fairness and preventing arbitrariness. This rule of fairness and non-arbitrariness is recognized in our jurisprudence to mean that an advantage or benefit derived from a competent legal dispensation, departmental practice or establi shed procedure that has been extended to and enjoyed by a person may legitimately be expected to remain available unless notice or opportunity to defend or adjust his position is given to that person. The doctrine of legitimate expectation is rooted in Article 25 of the Constitution which abhors arbitrariness and insists on fairness in all administrative dealings. It has now gained importance in administrative law as a component of natural justice, non-arbitrariness and Rule of law. It aims at checking the growing abuse of administrative power as a supplement to the principles of natural justice,
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unreasonableness, fiduciary duty of administrative authorities. In R. v. Secretary of State, (1987)2 All.E.R. 518, Taylor , J., observed: ".........doctrine of legitimate expectation in essence imposes a duty to act fairly. Whilst most of the cases are concerned, as Lord Roskill said with a right to be heard, I do not think the doctrine is so confined. Indeed, in a case where ex hypothesis there is no right to be heard, it may be thought the more important to fair dealing that a promise or undertaking given by a Minister as to how he will proceed should be kept. Of course such promise or undertaking must not conflict with his statutory duty or his duty, as here, in the exercise of a prerogative power . In accept the submission of counsel for the Secretary of State that the respondent cannot fetter his discretion. By declaring a policy he does not preclude any possible need to change it. But then if the practice has been to publish the current policy , it would be incumbent on him in dealing fairly to publish the new policy , unless again that would conflict with his duties." In case titled "Punjab Communications Ltd vs Union of India & Others" cited as 1999 SC 1801 , the Indian Supreme Court observed that principle of 'legitimate expectancy' is at the root of the rule of law and requires regularity , predictability and certainty in governments' dealings with the public. The Court further observed that doctrine of legitimate expectation in the substantive sense has been accepted as part of our law and that the decision maker can normally be compelled to give effect to his representation in regard to the expectation based on previous practice or past conduct unless some overriding public interest comes in the way. Continuing on the subject of legitimate expectation the Court held that it may be procedural or substantive or both. The procedural part of it relates to a representation that a hearing or other appropriate procedure will be afforded before any change in decision is made. The substantive part of the doctrine relates to the representation that a benefit of substantive nature will be granted or will be continued. Procedural legitimate expectation cannot be withdrawn without giving a person concerned some opportunity of advancing reason for contending that it should not be withdrawn. Similarly , substantive expectation cannot be withdrawn unless some rational grounds for withdrawing it has been communicate d to the person concerned and on which he has been given an opportuni ty to comment. To this Court, the principle of legitimate expectation in the substantive sense mandates that the decision making authority can normally be compelled to give effect to it unless overriding public interest demands otherwise. Coming back to present case, there is no lapse, which could be attributed to the petitioner i.e., inquiry against him etc. that could have impaired his claim, tainted his candidature and casted any shadow of impediment on his claim to be granted time-scale promotion at the time of completing the required service, when he was still holding his office of duties. The requirement, which was on the part of the Petitioner , in terms of completion of necessary tenure of service, stood complied but the requirement, which was to be fulfilled by the department i.e., convening of meeting for the purpose of granting time scale promotion twice a year, was not complied with for the whole year 2014 without assigning any reason for not convening it, when the Petitioner had not only made himself eligible for the said promotion after meeting the criteria but he was also serving as a regular employee but the inaction on the part of Respondents department by way of non-convening the required meeting of the Promotion Board negated his well rooted right of time-scale promotion against the legitimate expectation, which had already accrued in his favor well before his superannuation. Furthermore, the Respondents have neither explained/brought on record any plausible reason for non-convening the meeting nor have annexed any document to show that the Petitioner was not eligible for the grant of TSU. Although promotion is not deemed as a vested right, yet to be considered for promotion is certainly a right which cannot be negated especially when the right has already accrued without impediment and the only lapse posing hindrance in the way of such a right is an inaction on the part of department and its non-fulfillment of rules/policy . The Indian Supreme Court in A. SATYANARA YANA AND ORS. Vs.…
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