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Petitioner: Malik WAQAS AHMED VS Respondent: GOVERNMENT OF PAKISTAN through Secretary of Ministry for Water and PowerHonorable Justice Muhammad Farrukh Irfan KhanCh. Muhammad Younas
2011 P L C (C
2011 P L C (C.S.) 455
[Lahore High Court]
Before Muhammad Farrukh Irfan Khan, J
Malik WAQAS AHMED and another
Versus
GOVERNMENT OF PAKISTAN through Secretary of Ministry for Water and Power and 13 others
Writ Petitions Nos.5801 and 8649 of 2010, heard on 5th May, 2010.
(a)Constitution of Pakistan---
----Arts. 199 & 212---Constitutional petition---Maintainability---Gujranwala Electric Power Company Limited (GEPCO)---Non -recruitment of petitioner against post advertised by GEPCO---Petitioner for not being recruited would not fall within category of "civil servant"---Such petition was, not barred by Art. 212 of the Constitution.
Ahmad Salman Waris v. Nadeem Akhtar PLD 1997 SC 382 rel.
(b) Pakistan Water and Power Development Authority Act (XXXI of 1958)---
----Ss. 3, 5, 6 & 8(2)(ii) & (5)(a)---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Gujranwala Electric Power Company Limited (GEPCO)---Non-recruitment of petitioners against post advertised by GEPCO despite having high grades in requisite academic qualification---Under Pakistan Water and Power Development Authority Act, 1958, Government or competent authority in order to carry out functions of Federation might frame schemes for a Province or any part thereof providing for generation, transmission and distribution of power---GEPCO was created to perform functions of distributing company in connection with such affairs of Federation---All Directors, Chief Executive and Chairman of GEPCO were nominated by WAPDA/PEPCO and had no discretion to do any act or process or formulate any policy independently without prior approval of PEPCO/WAPDA---Funds were provided to GEPCO by State for carrying on its such functions---Entire system of GEPCO was being run by Federal Government---GEPCO was, amenable to writ jurisdiction of High Court.
(c) Pakistan Water and Power Development Authority Act (XXXI of 1958)---
----Ss. 3, 5, 6 & 8(2)(ii), (5)(a)---Constitution of Pakistan, Art.199---Constitutional petition---Gujranwala Electric Power Company Limited (GEPCO)---Refusal of authority to appoint petitioners against advertised posts despite having high grades in requisite academic qualification, but candidates recommended by Federal Minister of WPADA were appointed in complete disregard to merit policy---Validity---Advertisement restricted posts to candidates belonging to Districts falling within work area of GEPCO and did not extend to whole of Punjab Province---Record showed that out of 437 appointees, 242 belonged to Rawalpindi District not falling within work area of GEPCO---Corrigendum issued by competent authority did not mention extending of invitation of applications to whole of Punjab Province, but only extended date of receiving applications while stating that other terms and conditions would remain same---Authority had not undertaken written test, but had made appointments on basis of recommendation of the Minister---Record produced by authority with much pain and hesitation showed that most of applications of appointed candidates were incomplete and tampered with---Letter of Chief Executive of GEPCO available on record showed that some political forces had transgressed his powers and he did what he was not supposed to do---Authority had no moral and legal jurisdiction to deviate from conditions laid down in its advertisement and departmental recruitment policy---Due process of law , had not been applied in impugned appointments as such no vested right was created therein ---Only candidates having responded to advertisement within prescribed time limit in accordance with advertised requirements would have an equal and fair opportunity to be considered on merits, but not others---High Court accepted constitutional petition by awarding costs of Rs.25,000 to each petitioner while directing authority to re-commence process of appointment in a fair and transparent manner in accordance with law---High Court for hesitation of officials to produce official record, tampering with same and their efforts to defeat ends of justice by concealing facts of case burdened in their personal capacity to pay a further sum of Rs.25,000 as compensatory costs to each of petitioners for mental torture and agony having been suffered by them in such process.
Salahuddin v. Frontier Sugar Mills and Distillary Ltd. PLD 1975 SC 244 and Aitchison College, Lahore through Principal v. Muhammad Zubair PLD 2002 SC 326 ref.
Khurshid Ahmed Naz Faridi v. Bashir and 3 others 1993 SCMR 639; M. Zafar Abbas v. Commissioner and others 1999 PLC 931; Nazir Ahmad Panhwar v. Government of Sindh through Chief Secretary Sindh 2009 PLC (C.S.) 161 and Justice Khurshid Anwar Bhinder and others v. Federation of Pakistan and another PLD 2010 SC 483 rel.
(d) Civil service---
----Advertisement for a job---Deviation by Appointing Authority from originally advertised conditions of employment --- Scope stated.
The act of placing an advertisement is called "advertising" (a verb).
An advertisement is a promise stating all the rules which the authority undertakes to observe in consideration for giving employment to the most suitable candidate. Ordinarily, there should be no deviation from the said advertisement requirements. However, for the general good and/or to overcome some legal deficiency, if any deviation has to be made from the originally advertised conditions, then such changes should be advertised in the same manner as the original advertisement and also to be notified to each and every applicant, if the process of filling up of the posts has commenced in the meanwhile. This is so, because the authority bringing about the change in the advertised employment conditions has a much more onerous responsibility to discharge once the process of employment has begun and the un suspecting candidates are drawn into the said process with full vigor and zeal, for some of whom this may be the start of a new phase in life, placing full trust in the appointing authority and the system prevalent in the country, thus, dreaming and planning their future on the basis of their getting through the "advertised" conditions on merits. The superior Courts of the country have always tried to preserve this "trust" of the society in the procedure to be adopted following "promise" made in the course of an advertisement for employment, admission to an institution etc. to avoid any ambiguity, arbitrariness deviation from transparency and transgression from authority. Vested rights accrue to an applicant after the passing of the last date for the submission of documents as stipulated in the advertisement.
Muhammad Intizar-ul-Hassan v. University of Agriculture, Faisalabad and 2 others 1997 PLC (C.S.) 855; Amir Hamza v. Government of Balochistan and others 2005 PLC (C.S.) 1201 and Ghulam Mustafa v. The Mehran University of Engineering and Technology, Jamshoro and 7 others 1986 CLC 1056 rel.
(e) Civil service---
----Appointment on a post by competent authority --- Exercise of powers and discretion by such authority --- Principles stated.
The departmental authorities competent to make appointments are expected to exercise their authority and discretion honestly, objectively and in accordance with law without being influenced by any external forces including their superiors.
Dr. Naveeda Tufail and 72 others v. Government of Punjab and others 2003 SCMR 291 rel.
(f) Discretion---
---Exercise of discretion is bound by rules of reasons, which must be guided by law and must not be exercised in an arbitrary or fanciful manner.
Zubair Ahmad and another v. Shahid Mirza and 2 others 2004 SCMR 1747 rel.
Ch. Muhammad Younas for Petitioner (in Writ Petitioner No.5801 of 2010).
Ch. Fiza Ullah for Petitioner (in Writ Petition No.8649 of 2010).
Muhammad Ilyas Khan along with Hashmat Ali Kazmi, H.R. Director GEPCO.
Date of hearing: 5th May, 2010.
JUDGMENT
MUHAMMAD FARRUKH IRFAN KHAN J.--- Through this judgment I intend to decide both the W.P. No.5801 of 2010 and W.P.No.8649 of 2010, as identical questions of law and fact are involved in both these petitions.
2. The main grievance of the petitioners is that the respondents filled up various posts in Gujranwala Electric Power Company Limited (hereinafter referred to as "GEPCO") in utter disregard of the recruitment policy, in violation of terms and conditions of the advertisements in the national press and under political intervention/direction in sheer discrimination to the rights of the petitioners.
3. Briefly, the facts of the case as put forth by the petitioners are that the respondent No.3 invited applications for various posts of BPS-1 to 15 through an advertisement in the Daily Jang dated 2-11-2008. The petitioners having requisite qualification applied for the said posts. On 6-11-2009 the petitioners appeared for interview before the respondent authorities. Despite the fact that the petitioners have high grades in their academic qualifications they were ignored and appointment letters were issued in favour of the candidates recommended by the Federal Minister for Water and Power Development Authority (WAPDA) in complete disregard to the merit policy hence, this writ petition.
4. Learned counsel for the petitioners submits that there are serious irregularities in the recruitment process; that no written test was held as per terms and conditions of the advertisement; that the posts were reserved for the candidates belonging to the area of GEPCO but this vital requirement has been ignored and candidates belonging to other divisions in particular Rawalpindi District have been selected; that the appointments have been made in total disregard to the terms and conditions of the advertisement; that no merit list was prepared after the interview as per policy and as was required in the terms of the advertisement; that out of the total 437 appointees 72 were over age; that the whole process of appointment was a result of nepotism and favourtism; further that the applications of most of the appointees did not bear the signatures of the applicants, were undated and were addressed to the Minister for Water and Power Development Authority which is sufficient proof of illegality, colourable exercise of jurisdiction, mala fide and political influence in the selection process; that the appointments are made in derogation of the merit policy and have deprived the petitioners of their legitimate expectation of being appointed or at least' being considered against the said posts on the basis of their qualifications, written test and interview; that the appointments for State jobs are not the personal bounty of any one person and authority and have to be made on merit; that the persons appointed against the posts were not even eligible to be considered as most of them belonged to areas not falling within the jurisdiction of GEPCO; were over age, did not apply in the prescribed manner, within the stipulated time, and have been appointed without observing the due process in contravention of the rights of the bona fide applicants; Finally submits that the appointment orders are violative of Articles 4, 18 and 25 of the Constitution of the Islamic Republic of Pakistan, 1973.
5. Conversely, the learned counsel for the respondents Nos.1 to 3 submits that the respondent No.2 is a public limited company and is not governed by any statutory rules, therefore, this Court lacks the jurisdiction to entertain matters against it under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973; that what has been raised in the instant petitions are matters of factual controversies which cannot be resolved in the Constitutional jurisdiction of this Court; that the selection procedure followed by the GEPCO/respondents Nos.1 to 3 is based upon the policy of the Government and the documents were scrutinized in terms of the Service Rules; that a Selection Board recommended the candidates who fulfilled the requisite criteria and also were found to be on merit by the Chief Executive Officer after due scrutiny and-'evaluation; that only filing of applications for the said posts cannot create any vested right in favour of the petitioners; that no doubt according to the terms and conditions of advertisement, the seats were reserved for the inhabitants of the area of GEPCO, but the applications were received from all over the Punjab, therefore, keeping in view the policy of PEPCO dated 11-10-2009 (Annexure "R/4" to the parawise comments dated 14-4-2010) opportunity was given to the candidates from all over the Punjab; that the person who publishes an advertisement can change or modify the terms of the same at any stage; that a corrigendum in this regard has also been published in various newspapers; that a written test was not conducted because about "hundred thousands" candidates applied for the said posts and keeping in view the law and order situation in the country the competent authority decided not to conduct the written test (Annexure:R/2 dated 15-10-2009 of the parawise comments); that according to the policy competent authority can grant relaxation in the upper age limit upto ten years; that all the appointments were made in an open and fair manner without violating the constitutional provisions in the selection process; that merit was the only criteria for the selection of candidates who fulfilled all other requirements laid down by the honourable Superior Courts of the country which has been followed in the selection process by GEPCO/respondent; that no appointment was made on the recommendation of the Minister for Water and Power Development Authority.
6. I have heard the arguments and have gone through the record of the petitions. I find it essential to deal with the question of maintainability of these petitions first.
7. It is an admitted fact that the petitioners applied for the posts advertised by the respondent No.3 but were not recruited, therefore, they do not fall within the category of a civil servant and as such the bar contained in Article 212 of the Constitution does not apply while dealing with the instant constitutional petitions. Reliance in this regard is placed on Ahmad Salman Waris v. Nadeem Akhtar PLD 1997 SC 382.
8. As to the other contention of the learned counsel for the respondents Nos. 1 to 3 that respondent No.2 is a public limited company whose service rules are not statutory in nature as such the jurisdiction of this Court under Article 199- of the Constitution cannot be invoked against the said respondent-company. In order to deal with this postulation it is essential to make a reference to sections 3, 4, 5, 6, 8(2) (ii) and 8(5)(a) of the Water and Power Development Authority Act, 1958 which are reproduced as under:---
"3. Constitution of the Authority.--- (1) There shall be established an Authority to be known as the Pakistan Water and Power Development Authority for carrying out the purposes of this Act.
(2) The authority shall be a body corporate, shall be entitled to acquire, hold and dispose of property, shall have perpetual succession and a common seal and shall by .the said name sue and be sued.
(3) The Federal Government may, from time to time, issue such directives as it may consider necessary on matters of policy and the Authority shall comply with such directives and if a question arises whether any directive relates to a matter of policy, the decision of the Federal Government shall be final."
4. Appointment and term of office of Chairman and Members.---(1) The Authority shall consist of a Chairman and not more than (three) Members appointed by the Government:
Provided that till such time as the Authority is fully constituted, the Chairman shall exercise the powers, functions and duties of the Authority.
(2) .
(3) .
(4) The Chairman or any Member may at time resign: provided that his resignation shall not take effect until accepted by the Government.
5. Remuneration and conditions of service.--- The Chairman and each member shall receive salary and allowances and be subject to such conditions of service as may be prescribed by the Government, and shall perform such duties as are assigned to them under this Act or by any Regulations framed under it.
6. Removal of Chairman or Member.--- The Government may by notification remove the Chairman or any Member---
(a) if he refuse or fail to discharge or becomes in the opinion of the Government, incapable of discharging his responsibilities under this Act; or
(b) if he has been declared insolvent; or
(c) if he has been declared to be disqualified for employment in or has been dismissed from the service of Pakistan, or has been convicted of an offence involving moral turpitude; or
(d) if he has knowingly acquired or continued to hold without the permission in writing of the Government, directly or indirectly or through a partner, any share or interest in any contract or employment with or by or on behalf of the Authority, or in any land or property which, in his knowledge, is likely to benefit or has benefited as a result of the operation of the Authority.
8(2)(ii). General powers and duties of the Authority and framing of Schemes.---
(1) .
(2) .
(i) . :
(ii) the generation, transmission and distribution of power; and the construction, maintenance and operation of power houses and grids
8(5)(a) undertake any joint venture or work in association with the Provincial Government, and agency, corporation, company, authority or any person and may subscribe to the equities and acquire such other rights and obligations as may be necessary for such joint venture or association."
9. A perusal of the above provisions makes it quite clear that the Government or the Competent Authority to carry out the functions of the Federation may frame schemes for a Province or any part thereof providing for inter alia, the generation, transmission and distribution of power. The respondent No.2 and seven other distributing companies were thus created to perform the functions in connection with the affairs of the Federation.
10. The primary test as to whether a body politic or a body corporate may be regarded as a person performing functions in connection with the affairs of the Federation or a Province is laid down in the case of Salahuddin versus Frontier Sugar Mills and Distillary Ltd. PLD 1975 SC 244, which requires
(i) Whether the functions entrusted to the organization or person concerned are indeed functions of the State involving some exercise of sovereign or public power;
(ii) Whether the control of the organization vests in a substantial manner in the hands of Government; and
(iii) Whether the bulk of funds is provided by the State.
Further what has been laid down in the case of Aitchison College, Lahore through Principal v. Muhammad Zubair PLD 2002 SC 326 also applies squarely to the respondent No.2 as it is performing the functions of the State involving exercise of the public powers.
11. Moreover, from the very conduct and the stance taken by the respondent No.2 in its pleadings, the following floats to the surface:
(a) the advertisement dated 2-11-2008, inter alia, states that.
(b) It is the case of the respondents Nos.2 and 3 in para 3 of their parawise comments dated 14-4-2010. "That the procedure for selection followed by GEPCO Limited is based upon the policy of the Government";
(c) In paragraph 5 of the parawise comments it is stated that "thereby it was decided in terms of the policy of the Government, sent by PEPCO through letter dated 11-12-2009 (Annexed "R/4") to expand the process of selection of the candidates in terms of this policy of the Government of Pakistan" ;
(d) The annexure R/4 being a letter from PEPCO states "please find enclosed a letter No. 1(17)2007-I&C dated 23-11-2009 on the subject received from Section Officer (I&C), Ministry of Water and Power, GOP, Islamabad, for information and strict compliance" ;
(e) The Annexure "R/2" is the direction from the Ministry of Water and Power through PEPCO which reads as follows:---
"It has been brought to the notice of Minister of Water and Power that PEPCO is following Recruitment Policy adopted from WAPDA, that is based on GOP Policy parameters like open advertisement of the vacancies in the National Press and conducting the written tests and interviews of the eligible candidates, a process not likely to complete within 4-5 months even if given straight going. The job has become difficult on account of overwhelming response of the candidates for the advertised vacancies i.e. running in hundred thousands. Still another very serious concern is one the law and order situation as prevalent in the country, where holding of written test in congregation of thousands of candidates is not without serious life threats. There is a rising trend of the insurgency and terrorism where mass gatherings are the obvious and easy targets for the miscreants. It has been deemed appropriate to avoid providing any chance to terrorists by avoiding holding of gathering of candidates for written tests on certain places and venues.
The position has been discussed and brought in the notice of Minister of Water and Power and in the view of the aforementioned circumstances, it has been advised to fill 50% of the vacancies in BPS-1-16 on immediate basis in accordance with the Recruitment Policy with unavoidable exception, where required. Additionally, the Minister of Water and Power has also been kind to allow recruitment against vacancies for Engineers and Officers of Common Cadre (BPS-17) including those pertaining to Revenues, Accounts and Audit etc." (the underlining is mine)
Therefore, it is established from the exercise carried out hereinabove that the respondent-company is entrusted and performing functions which are undoubtedly functions of the State involving exercise of public and sovereign power, where control vests exclusively in the hands of the Government. All the Directors, Chief Executive and the Chairman of the respondent No.2 are nominated members/employees of PEPCO/Water and Power Development Authority and are to hold office at the pleasure of PEPCO/ Water and Power Development Authority. These Directors have no discretion to do any act or process or formulate any policy independently without the prior approval of PEPCO/ Water and Power Development Authority. Although nothing has been adverted to in this regard by the learned counsel for respondents Nos. 1 to 3, it can be safely assumed that all the funds are also provided by the State for carrying on of its functions to respondent No.2. Thus a corporate veil or layers of hierarchy would not be sufficient to hide the very engine which runs the entire system of the respondents Nos.1 to 3 being none other then the Federal Government. Therefore, this Court holds that the respondent Nos.1 to 3 are amenable to the writ jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973.
12. Now let me proceed further to consider the merits of the case and begin with the examination of the requirements for the applicants for the posts advertised for 34 various designations in the advertisement dated 2-11-2008. The relevant provisions to be considered being (b) and are reproduced below:---
13. The conditions ibid stated in the said advertisement find their basis in the guidelines of the respondent No.2 for recruitment of staff which are reproduced, for ease of reference, as under:---
(a) .
(b) Advertisement in the electronic media/national newspapers (at least in 2 dailies) will be made with 30-days notice and on Sundays only.
(c) .
(d) Posts for various Grade i.e. (BPS-1-15) will be advertised.
(e) .
(f) All appointments are to be made strictly on Merit basis on experience/academic/ technical qualification.
2. Objective/Trade test will be organized for all advertised post by the respective formations, where considered necessary.
3-b or all advertised posts: Selection Board will be as per WAPDA Service Rules.
5. Domicile
All direct recruitees should be domiciled of the Region (Area Electricity Board/Province) where the posts exist, as per existing policy.
BPS-3-15. As far as possible, recruitment in Head Office, Power Stations and Dams is made on all Pakistan basis according to the Provincial Quota prescribed by the Federal Government.
9. The appointing authority may not disagree with the recommendation of the Selection Board without cogent reasons. Waiting list if any shall remain effective for a period of three months.
14. According to the policy given in the Water and. Power Development Authority Office Memorandum dated 19-11-2003 paragraph 3 whereof being relevant is reproduced as under:---
3. Merit direct appointment upto BPS-15 will be prepared as under:
(a) Weightage to written test
65 marks
(b) Weightage to interview
25 marks
(c) One step worker qualification and about than the prescribed…
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