Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Shafiq-ul-Hassan VS Respondent: Federation of Pakistan etc
Court Name: Lahore High Court Judge(s): Jawad Hassan Title: Shafiq-ul-Hassan vs Federation of Pakistan etc Case No.: Writ Petition No.39841 of 2020 Date of Judgment:2020-10-09 Reported As: 2020 PLC (C.S) 1593, 2020 LHC 2095 Result: Petition dismissed
JUDGMENT
"What is my role as a Judge? Certainly it is my role, and the role of every Judge, to decide the dispute before me. Certainly it is my role, as a member of my nation' s highest court, to determine the law by which the dispute before me should be decided. Certainly it is my role to decide cases according to the law of my legal system. But is that all that can be said about my role? Are there criteria for assessing the quality of my work as a Judge? Certainly no such assessment should be based on the aesthetic quality of my writing? Nor shou ld the criterion be the number of sources I cite in my decisions. But then what would be a meaningful criterion? What is my role, and do I even have a role beyond merely deciding the dispute before me according to the law? These questions occupy me daily as I enter the courtroom and take my seat on the bench. "Professor Aharon Barak, the Judge in a Democracy". Princeton University Press, Princeton and Oxford, 2006. JUDGMENT JAWAD HASSAN, J. This judgment will decide the issues raised by the Respondents challenging an interim order dated 09.09.2020 before the Hon'ble Supreme Court of Pakistan in C.P.No.2482 of 2020, in which the Hon'ble Supreme Court has directed this Court on 02.10.2020 (the "Supreme Court Order" ) to decide the case in the week commencing 05.10.2020 by keeping in view the observations made therein, relevant part of which is reproduced as under: "2. We notice that the suspension of the respondent' s transfer order has created an anomalous situation because as shown by the learned Additional Attorney General, a successor temporary appointee to the post of CEO, FESCO was notified on 4.9.2020 and was approved by the Board of Directors of the Company on 5.9.2020. This aspect was not noticed by the learned Single Bench while suspending the impugned order . 3. Be that as it may, the grant of interim relief which has the effect of permanence is violative of the rule laid down by this Court in the case of Islamic Republic of Pakistan v. Muhammad Zaman Khan (1997 SCMR 1508 ). The constitutional jurisdiction by Superior Courts must be exercised according to the settled principles of law. Granting
---
## Page 2
longevity to a suspensory order without hearing the other side is, if at all, done exceptionally . These are words of caution that are necessary for ensuring the majesty of the law and preserving public trust in the courts of law. Having said that, it is also the policy of this Court to interfere with interim orders passed by the High Court only exceptionally . This would be in cases of serious violation of the law or wrongful exercise of jurisdiction. 2. The Petitioner through this petition under Article 199 Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution" ) has challenged the order of Respondent No.2/Ministry of Energy (Power Division) dated 28.08.2020 (the "Impugned Order" ) and made the following prayer: "In view of the above circumstances, it is most respectfully prayed that the instan t service appeal may kindly be accepted and the impugned order dated 28.08.2020 passed by the Respondent No.2 may kindly be set-aside and the appellant be allowed to continue his duties as CEO, FESCO, Faisalabad to meet the ends of the justice". 3. This petition was initially taken up by this Court on 08.09.2020 and 09.09.2020 and interim relief was granted while suspending the operation of the Impugned Order till a date to be fixed by the office. The Respondents, however , assailed the said interim order before the Hon'ble Supreme Court of Pakistan. On 02.10.2020, the Hon'ble Supreme Court made certain observations, narrated above, pursuant to which this petition was entrusted to this Court. This Court on 07.10.2020 partly heard the parties and fixed the case for today for remaining arguments and decision. I. PETITIONER'S ARGUMENTS 4. As per contents of the petition, the Petitioner was working with the Respond ents-PEPCO. The Respondent No.2/Ministry of Energy (Power Division) transferred and posted the Petitioner as Chief Engineer in Tribal Areas Electric Supply Company ("TESCO") and he was also assigned to look after the work of the Chief Executive Officer, TESCO vide order dated 08.02.2019. Later on, he was again transferr ed from TESCO to Faisalabad Electric Supply Company ("FESCO") by the Respondent No.2 vide order dated 31.07.2019 and was assigned to look after the work of CEO, FESCO on stop gap arrangement. He was again transferred and attached with PEPCO by the aforesaid Respondent through the Impugned Order dated 28.08.2020. 5. Learned counsel for the Petitioner inter-alia contended that the Impugned Order was badly motivated and passed on the basis of political influence whereby his services were ordered to be attached with PEPCO, Lahore; that the word attachment is neither part of the Companies Act, 2017 with reference to transfer and posting etc., nor it is the part of rules adopted by the Respondents-company , as such it is alien to law; that the Impugned Order was passed during the ban imposed on transfers and postings in all DISCOs by the Government of Pakistan amidst Covid-19 by Ministry of Energy (Power Division) dated 29.09.2020 which was subsequently extended up till 31.12.2020; that the Impugned Order is also against the transfer/posting policy for the officers of DISCOs dated 27.12.2017 and also is violative to selection procedure dated 28.03.2019; that the post held by the Petitioner is a tenure post which cannot be disturbed by frequent transfers; that the Impugned Order has been issued with malafide and without jurisdiction; that the Impugned Order is against the fundam ental rights guaranteed under Article 4 and 25 of the Constitution as such the same is liable to be set-aside. In order to support his contention, he relied on "Syed MAHMOOD AKHT AR NAQVI and others Versus FEDERA TION OF PAKIST AN and others"( PLD 2013 SC 195), "ZAHID AKHT AR Versus GOVERNMENT OF PUNJAB through Secretary , Local Government and Rural Development, Lahore and 2 others"( PLD 1995 SC 530), "KAMRAN AHMAD Versus CHIEF EXECUTIVE GEPCO and others"( 2017 PLC (C.S.) 900), "TAHIR ABBAS Versus FESCO, JHANG and others"( 2011 PLC (C.S.) 354), "Mrs. ITRA T SAJJAD KHAN Versus FEDERA TION OF PAKIST AN through Secretary Ministry of Defence and 3 others" (2015 PLC (C.S.) 1056 ), "PAKIST AN DEFENCE OFFICERS' HOUSING AUTHORITY and others Versus Lt. Col. Syed JAWAID AHMAD" (2013 SCMR 1707 ), "MUHAMMAD UMAR LODHI XEN (OPERA TIONS) Versus WAPDA and two others" (PLJ 2014 Lahore 157), "P.T.C.L and others V ersus MASOOD AHMAD BHA TTI and others" ( 2016 SCMR 1362 ). II. RESPONDENTS' ARGUMENTS A. Argument of Respondent No.1, 2 & 5 (Ministry of Energy (Power Division) 6. Ch. Ishtiaq Ahmad Khan, Additional Attorney General appeared on behalf of the Respondent No.1/Secretary , Ministry of Energy (Power Division) and objected to maintainability of the petition on the ground that since FESCO
---
## Page 3
has non-statutory rules and matter pertains to transfer of an employee whose terms and conditions of service are governed by the contract of his employment, so writ petition is not competent under Article 199 of the Constitution. He argued that the Petitioner was transferred during the ban on administrative grounds as it is prerogative of competent authority to exercise its powers in suitable cases. He relied on "PAKIST AN AIRLINE PILOTS ASSOCIA TION and others Versus PAKIST AN INTERNA TIONAL AIRLINE and another" (2019 SCMR 278), "Dr. TAHIR MASUD Versus AMJAD ALI KHAN and 4 others"( 2019 PLC (C.S.) 1167), "TARIQ MEHMOOD MALIK Versus CHIEF EXECUTIVE OFFICER and others"( 2018 PLC (C.S.) 664 ) and 2018 PLC (C.S.) Note 6. B. Argument of Respondent No.3&4 (PEPCO) 7. M/s Nadim Ahmad Sheikh and Rizwan Faiz Muhammad, Advocates for the Respondents No.3 & 4 raised objection to maintainability of the petition on the ground that the rules of PEPCO/FESCO are non-statutory therefore, its employees are barred from invoking the jurisdiction of this Court under Article 199 of the Constitution. Further states that the facts brought forth in the petition are disputed and controversial which cannot be gone into in the present dispensation. Next argued that the Petitioner has not impleaded new incumbent Mr. Arshad Munir , hence petition cannot proceed due to non-joinder of necessary parties. They adds that the transfer/posting/appointment is an admini strative matter which falls within exclusive domain and policy decision of competent authority . Argued that the Boar d has approved the appointment of Mr. Arshad Munir as CEO, FESCO on 05.09.2020 hence the objection of the Petitioner is uncalled for. Lastly , they relied on "M/o IPC through Secretary and others Versus ARBAB ALTAF HUS SAIN and others" (2014 SCMR 1573 ) and "WALI-UR-REHMAN and others V ersus ST ATE LIFE INSURANCE CORPORA TION and others" ( 2006 SCMR 1079 ) C. Argument of Respondent No.6 (FESCO) 8. M/s Waqar A. Sheikh and Aurangzeb Mirza, Advocates for the Respondent No.6 also raised objection to maintainability of the petition on the ground that the rules of DISCOs are non-statutory therefore, its employees are barred from invoking the jurisdiction of this Court under Article 199 of the Constitution. They argued that transfer/posting is purely an administrative order and the transfer policy referred to by learned counsel for the Petitioner is not applicable in the case in hand. Further argued that since services of the Petitioner are governed by non-statutory rules of service and as such the Respondent No.2 has the right to remove the CEO of a public sector company in terms of Section 190(2) of the Companies Act, 2017. D. Argument of Respondent No.7 (W APDA) 9. Mr. Raza Bashir , Advocate for the Respondent No.7 also objected to maintainability of the petition on the ground of bifurcation notification dated 23.07.2009 issued by Pakistan Water & Power Development Authority and stated that the Petitioner 's grievance relates to the Respondents No.2 to 4 and therefore, the Respondent-W APDA has no concern with the petition in hand. 10. I have heard learned counsel for the parties and gone through the available record. III. FACTS OF THE CASE 11. It is not disputed by the parties that the Petitioner joined the service of FESCO as XEN vide offer of employment letter dated 17.02.2012 by accepting certain terms and conditions of employment, including Clause- VI(3) which reads as follows: "Subject to the employing Company' s consent, the Company may at its discretion post a Company-based Officer to serve anywhere under PEPCO until further orders, provided that he will be paid the allowance admissible to holders of such post under PEPCO" (emphasis added) 12. Subsequently , he was transferred and posted as Chief Engineer TESCO by the Respondent No.2/Ministry of Energy (Power Division) vide order dated 08.02.2019 and assigned to look after the work of Chief Executive Officer, TESCO on temporary basis as a stop gap arrangement till further orders. 13. He was again transferred and posted from TESCO to FESCO vide order dated 31.07.2019 on the retirement of the then incumbent, Mujahid Islam Billah, and was looking after the work of CEO FESCO on stop gap arrangement. 14. While the Petitioner was looking after the work of CEO FESCO, his services were attached with PEPCO, Lahore and another person was appointed to look after the day to day work of CEO FESCO with immediate effect
---
## Page 4
on temporary basis as a stop gap arrangement. Relevant portion of the Impugned Order is as follows: "The Competent Authority has been pleased to attach the services of Mr. Shafiq ul Hassan, General Manager , FESCO, presently looking after the work of CEO, FESCO with PEPCO, Lahore. 2. Mr. Ehsan Elahi, Chief Engineer , FESCO will look after the day to day work of CEO FESCO, with immediate effect on temporary basis as a stop gap arrangement and until further orders, in addition to his own assignments". IV. NUB OF THE MA TTER 15. As per Order of the Hon'ble Supreme Court of Pakistan, this Court has narrowed down the precise questions which require determination of this Court: A. Whether the instant W rit Petition is maintainable in present circumstances? B. Whether the services of the Petitioner could be attached or transferred to PEPCO from FESCO? V. MAINT AINABILITY OF THE PETITION 16. This Court is firstly deciding the issue of maintainability of the instant petition . The question of maintainability was agitated by learned counsel for the Respondents on the ground of non-statutory rules of FESCO/PEPCO, whereas argument of learned counsel for the Petitioner was that the present petition is maintainable in the light of case law reported as "TARIQ MEHMOOD MALIK Versus CHIEF EXECUTIVE OFFICER and others"( 2018 PLC (C.S.) 664) "KAMRAN AHMAD Versus CHIEF EXECUTIVE GEPCO and others"( 2017 PLC (C.S.) 900), "TAHIR ABBAS Versus FESCO, JHANG and others"( 2011 PLC (C.S.) 354), and "Mrs. ITRA T SAJJAD KHAN Versus FEDERA TION OF P AKIST AN through Secretary Ministry of Defence and 3 others"( 2015 PLC (C.S.) 1056 ). 17. The above said factual resume of appointment, transfers and posting calendar of the Petitioner clearly manifest and establishes that his employment was of contractual nature and the Respondents have the authority to post him anywhere in PEPCO. The counsel for the Petitioner has failed to point out any statu tory rules of PEPCO or FESCO to rebut this position. The maxim "pacta sunt servanda" dictates that agreements are made to be kept, and the right and liabilities of the Petitioner are subservient and dependent to the terms of his contract. In such a case, when the relationship of employment is an outcome of contract and there are no statutory rules to govern the terms and conditions of employment then such a relationship is governed by the principle of master and servant and in such like cases the constitutional petition under Article 199 of the Constitution is not maintainable. Reliance in this regard can be placed on "Lt. Col. Rtd. Aamir Rauf Versus Federation of Pakistan through Secretary M/o Defence and 3 others" (2011 PLC (CS) 654) and "Nadeem Ahmed Versus Pakistan State Oil Company Limited and another" ( 2005 PLC (C.S.) 1447 ). 18. The Hon'ble Supreme Court in "EXECUTIVE COUNCIL, ALLAMA IQBAL OPEN UNIVERSITY , ISLAMABAD through Chairman and another Versus M. TUFAIL HASHMI" (2010 SCMR 1484 ) has observed that employees, who are discharging functions in connection with the affairs of Federation, can approach the learned High Court under Article 199 of the Constitution but subject to the condition if their services are protected under the statutory rules. In "Muhammad Zaman and others v. Government of Pakistan and others" (2017 SCMR 571) the Hon'ble Supreme Court of Pakistan has held that since the regulations in question concerns the pension and gratuity matters of employees of SBP, those are basically instructions for the internal control or management of SBP and are therefore, non-statutory . 19. In "PAKIST AN TELECOMMUNICA TION CO. LTD. through Chairman Versus IQBAL NASIR and others" (PLD 2011 SC 132), it was held that "Employees of Pakistan Telecommunica tion Corporation Limited were governed by principle of "Master and servant" and in absence of statutory rules, constitutional petitions filed by employees were not maintainable". 20. In Pakistan Defence Officer 's case (2013 SCMR 1707 ) the Hon'ble Supreme Court of Pakistan has held as under: "Where conditions of service of employees of a statutory body are not regulated by Rules/Regulations framed under the Statute but only Rules or Instructions issued for its internal use, any violation thereof cannot normally be enforced through writ jurisdiction and they would be governed by the principle of 'Master and Servant'." 21. Similarly , the issue of maintainability of writ under Article 199 of the Constitution has been discussed in detail by the Hon'ble Supreme Court in "PAKIST AN INTERNA TIONAL AIRLINE CORPORA TION and others Versus
---
## Page 5
TANWEER-UR-REHMAN and others"(PLD 2010 Supreme Court 676) and has held as follows: "25. Thus, in view of discussion made hereinabove, we are persuaded to hold that although the appellant- Corporation is performing functions in connection with the affairs of the Federation but since the services of the respondent-employees are governed by the contract executed between both the parties, as is evident from the facts narrated hereinabove, and not by the statutory rules framed under section 30 of the Act, 1956 with the prior approval of the Federal Government, therefore, they will be governed by the principle of Master and Servant." 22. In "ABDUL WAHAB and others Versus HBL and others" (2013 SCMR 1383 ), the Hon'ble Supreme Court has laid down that where a service grievance was agitated by a person/employee who was not governed by statutory rules of service, constitutional petition is not maintainable. The Division Bench of this Court in "PAKIST AN INTERNA TIONAL AIRLINE and others Versus NOREEN NAZ BUTT" (2017 PLC (C.S.) 923) has held that "the Appellant Pakistan International Airline has no statutory rules and the relationship between the Respondent and the Appellants is that of master and servant. It is an established principle that in such like cases the Constitutional petition is not maintainable". 23. Similar view was upheld by Hon'ble Supreme Court in its judgment reported as "PAKIST AN AIRLINE PILOTS ASSOCIA TION and others Versus PAKIST AN INTERNA TIONAL AIRLINE and another" (2019 SCMR 278) with the following observation: "As the terms and conditions of employment in PIAC are admittedly not governed by any statutory provision and the employees are amenable to the Rule of "Master and Servant", Article 199 of the Constitution of Pakistan 1973 cannot be invoked. Reliance is placed on PIA Corporation v. Syed Suleman Alam Rizvi (1996 SCMR 1185), Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman and others (PLD 2010 SC 676) and Abdul W ahab and others v . HBL and others ( 2013 SCMR 1383 )." 24. It is pertinent to note that the judgments relied upon by the Petitioner are distinguishable from the facts of the instant petition. In the Kamran Ahmad case supra, relied upon by the Petitioner , this Court has held that promotion of employee being not governed by statutory rules could not be enforced through constitutional petition. In Tahir Abbas case supra relied upon by the Petitioner , the honorable Court has not discussed if the rules are statutory or not, and has ordered for constitution of the Medical Board to examine if the employee was medically fit before non- suiting him. Similarly , the Itrat Sajjad Khan case supra relied upon by the Petitioner is also distinguishable from the facts of the instant case because in the said case, the petitioner was removed from service without holding a formal inquiry against her in violation of natural justice. Even otherwise, it has also been held in the said case that if any statutory corporation had passed order or acted in a way that was in violation of rules and regulations construed under the statute creating that body , then same could be intervened by the High Court under constitutional jurisdiction. The Petitioner has not point ed out any violation of rule or regulation construed under any of such statute. 25. The plethora of judgments mentioned above establishes that where conditions of service of an employee of a statutory body are not regulated by statutory rules and are governed under the terms of a contract or rules or instructions issued for internal use, the relationship of the employee with such statutory body is governed by the principle of Master and Servant, and any violation thereof cannot normally be enforced through writ jurisdiction under Article 199 of the Constitution, and such petition is not maintainable before this Court. In the present circumstances, the Petitioner has failed to point out any statutory rules of PEPCO and FESCO, and has failed to satisfy this Court as to maintainability of the instant Petition. The Petitioner has a contractual relationship with the Respondents which states that the company has discretion to post the employee to serve anywhere under PEPCO until further orders; accordingly , the instant Petition is not maintainable. VI. ST OP-GAP ARRANGEMENT 26. It is undisputed that the Petitioner was a Chief Engineer TESCO and was assigned to look after the work of CEO, TESCO on temporary basis as a stop gap arrangement till further orders before he was transferred and posted from TESCO to FESCO, and was again additionally charged to look after the work of CEO FESCO on temporary basis as a stop gap arrangement. While the Petitioner was looking after the work of CEO FESCO, his services were attached with PEPCO, Lahore and another person was appointed to look after the day to day work of
---
## Page 6
CEO FESCO with immediate effect on temporary basis as a stop gap arrangement. It clearly depicts that neither the Petitioner was transferred nor was posted rather his services were ordered to be attached with PEPCO, Lahore. To establish the right of the Petitioner to the post of CEO, FESCO, if any, we need to first examine the meaning of the stop gap. 27. As per Oxford Dictionary , the expression 'stop-gap' means a temporary way of dealing with a problem or satisfying a need. Similarly , the Advance Law Lexicon 4th Edition, P. 4615 describes 'stop-gap" in the following manner: "if an appointment is made to meet the contingency on account of delay in completing the process for regular recruitment to the post due to any reason and it is not possible to leave the post vacant till then, such an appointment can appropriately be called as 'stop gap arrangement". 28. According to Concise Oxford English Dictionary , Twelfth Edition, P. 1422 , 'stopgap' means a "temporary solution or substitute" . The Courts have used the said term in a number of judgments. It is a transitory or interim arrangement or a temporary measure to meet the contingency arising on account of delay in completing the process of regular recruitment to a post (due to any reason), in order to prevent stand-still in the performance of public duties. Such an appointment does not confer any right on the incumbent for regular appointment to the said post or to hold the same for an indefinite period. 29. The ground agitated by Mr. Ahsan Bhoon, ASC that he cannot be transferred before completion of mandatory tenure at the present post also does not hold water as the appointment of the Petitioner was made as a stop gap measure and order of his appointment to the incumbent post clearly states that it was made "on temporary basis as a stop gap arrangement and until further orders" . Thus, his stance pertaining to mandatory tenure does not carry weight as he was not holding regular post and only additional charge was given to him which was transitory in nature and it was only for such period until further orders were passed by the competent authority . Since the appointment of the Petitioner was made to meet the contingency on account of delay in completing the process for regular recruitment to the post due to any reason and it was not possible to leave the post vacant till then, such an appointment can appropriately be called as stop gap arrangement under the established principles of service rules. 30. In a catena of judgments, Superior Court of the country has laid down the principle that being posted at a certain place/post or transfer to a certain place/post or to retain a specific post is not a vested right of an employee/of ficial. The Hon'ble Supreme Court in "MUHAMMAD SHAFIQUE TAREEN Versus WATER & POWER DEVELOPMENT AUTHORITY through Chairman, WAPDA House, Lahore and 3 others" (1998 SCMR 1293 ) held that "the transfer order was made for administrative reasons in public interest and not for extraneous considerations. Clearly , the petitioner was liable to be transferred anywhere in the exigencies of service. He has no vested right to a posting of his choice in Quetta. Needless to say, the petitioner was not holding a tenure post, therefore, his transfer from, Quetta to Lahore, was not violative of the principles laid down by this Court" Similarly , Division Bench of this Court in "TARIQ MEHMOOD MALIK Versus CHIEF EXECUTIVE OFFICER and others"( 2018 PLC (C.S.) 664) has held that "even otherwise, an employee has no vested right to remain posted at a place of his own choice nor can he insist that he must be posted at one place or the other . He is liable to be transferred in the administrative exigencies from one place to other . Transfer of an…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.