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Petitioner: Syed SAQIB JAHANGIR VS Respondent: FEDERATION OF PAKISTAN through Secretary, Ministry of Water and PowerHonorable Justice Aziz-Ur-RehmanMalik Naim Iqbal,Ansari Abdul Lateef
2016 P L C (C.S.) 728
[Sindh High Court]
Before Syed Hasan Azhar Rizvi and Aziz-ur-Rehman, JJ
Syed SAQIB JAHANGIR and 19 others
Versus
FEDERATION OF PAKISTAN through Secretary, Ministry of Water and Power and 7 others
Constitutional Petition No.D-277 of 2013, decided on 14th November, 2014.
(a) Civil service---
----Withdrawal of Special Engineering Allowance---Promotion---Misjoinder and non-joinder of necessary parties---Effect---Petitioners were aggrieved of quota set forth by the authorities for graduate and non-graduate engineers as well as mandatory condition of training and passing of Departmental Promotion Examination by the already registered engineers for induction in the "Upper Technical Staff" graduate-engineers in BPS-17---'Professional engineering work'---Determination and scope---Contentions of the petitioners were that they were entitled for promotion to BS-17 on the analogy of employees of PEPCO and WAPDA; that approval of conversion of 10 posts from `Matric quota' of UTS (BS-16) to 'Graduate quota' for the accommodation of qualified UTS as Junior Engineers in the Electric Company was illegal and against the law---Plea of the authorities was that Electric Supply Company being a separate entity, had no statutory rules and the rules adopted by the Electric Supply Company had been borrowed from WAPDA, thus, constitutional petition was not maintainable and petitioners were not entitled to claim the 'Special Graduate Allowance' as neither they were working in BPS-17, nor were the employees of WAPDA---Validity---Electric Supply Company was a separate legal entity having no statutory rules and its affairs were run and managed by its Board of Directors---Where terms and conditions of service of the employees of a statutory body were not regulated by rules/regulations framed under the statute, but only under the rules or instructions issued for its internal use, in such like situation, a writ normally could not be issued---Electric Supply Company, being a separate entity having its own Board of Directors for running of its management and affairs, was not ipso facto bound by the decisions of WAPDA and/or PEPCO until and unless the same were properly approved by the Board of Directors of the company---Petitioners were Company's employees in the capacities of Sub-Station Operators SSO-I, SSO-II and Line Superintendents (LS-I) in BPS-13---Upper Technical Subordinates (UTS) in the Company had been allocated 5% quota for promotion against the post of Assistant Junior Engineers, subject to the condition that the eligible candidates (UTS) must have undergone the mandatory training and passed Departmental Promotion Examination on the basis of seniority-cum-fitness, which was a pre-requisite criteria for UTS to be considered for promotion to the next higher grade as per Promotion Policy of the Company; therefore, wish and desire of petitioners through induction besides misconceived was misleading---Petitioners, who are employees of Electric Supply Company and not of WAPDA, were absolutely not entitled to claim the release of the `Graduate Allowance' merely on the basis of WAPDA's letter as well as PEPCO's office order, which were not binding on the Company---Directives/instructions which were only applicable to the employees of PEPCO and/or WAPDA could not be stretched so long to cover the cases of the petitioners, who were employees of the Company and not of PEPCO and/or WAPDA---Merely on the ground that 'c.c.' had been forwarded to Electric Supply Company and others the same could not ipso facto be deemed binding---'Special Engineer Allowance' was only for 'Graduate Engineers' in BPS-17 and above, but as the petitioners were not 'Graduate Engineers' of BPS-17 and above, as such, none of them was entitled to claim the allowance---Constitutional petition was dismissed, in circumstances.
Muhammad Sadiq and others v. University of Sindh and another PLD 1996 SC 182; Maqsood Ali and others v. Government of Sindh through Secretary, Local Government, Public Health Engineering, Rural Development and Katchi Abadies Department and 5 others 2007 YLR 2243; Abdul Rauf and 10 others v. Government of Sindh and others 2003 CLC 1602; Tariq Saeed Saigol v. District Excise and Taxation Officer, Rawalpindi 1982 CLC 2387; Pak American Fertilizer Ltd., Mianwali v. Amir Abdullah Khan and another 1984 CLC 2170; Hyderabad Electric Supply Co. v. Mushtaq Ali Brohi 2010 PSC 1392; Pakistan Defence Officers' Housing Authority v. Lt. Col. Syed Jawaid Ahmed 2013 SCMR 1707; Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others 2011 SCMR 1813; Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1975 SC 463; Secretary B&R Government of West Pakistan v. Fazal Ali Khan PLD 1971 Kar. 625 and State Bank of Pakistan through Governor and another v. Imtiaz Ali Khan and others 2012 SCMR 280 rel.
(b) Constitution of Pakistan---
----Art. 199---Constitutional jurisdiction of High Court---Object and Scope---Object of proceedings initiated under Art.199 of the Constitution was for the enforcement and protection of a vested right and not for the establishment of the rights---Right, might not only be existing one, but for its enforcement under constitutional jurisdiction the infringement thereof is also must.
(c) Constitution of Pakistan---
----Art. 199---Constitutional jurisdiction of High Court---Nature---Laches---Slackness and laxity of petitioner---Effect---Relief under writ jurisdiction besides being extra-ordinary is discretionary---Persons who demonstrate a style of slackness and laxity, undoubtedly cannot invoke such jurisdiction at his/their sweet will and wish---While considering the grant of relief under constitutional jurisdiction the question of delay and laches has to be given a serious thought and consideration.
Malik Naim Iqbal for Petitioners.
Abdul Sadiq Tanoli, Standing Counsel for Respondents Nos.1, 3 and 4.
Ansari Abdul Lateef for Respondent No.7.
Ghulam Haider Shaikh for Respondent No.8.
Nemo for Respondents Nos.2, 5 and 6.
Date of hearing: 14th October, 2014.
JUDGMENT
AZIZ-UR-REHMAN, J.--- By means of this Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 filed on 18th January, 2013, the Petitioners inter alia are seeking directions to the Respondents for release of the 'Professional Graduate Allowance' at the uniform rate of Rs.10,000/- [Ten Thousand only] plus all accrued arrears and for explanation as to why the status of UTS to the Petitioners who are Graduate Engineers have not been granted. The prayers sought in the Petition read as follows:---
"i. Declare the withdrawal/containment of Professional Graduate Allowance as illegal, unjustified and set aside the same and.
ii. Direct the respondents to release the Professional Graduate Allowance to petitioners at the uniform rate of Rs.10,000 per month with all the arrears as accrued to the petitioners.
iii. Direct the respondents to explain as to under what law, the petitioners/Graduate Engineers have not been granted even the status of UTS.
iv. Declare that, the quota as set forth by the respondents for graduate and non-graduate engineers for further promotion as illegal, void and in utter disregard of the clear provision of the Act of Parliament, which is binding upon them to follow and increase the quota of Graduate Engineers amongst the employees of respondent No.7.
v. Direct the respondent No.7, to fill the 70% quota by direct induction among the Graduate Engineers of respondent No.7 and should be considered first, and if found unfit or misfit, then the outsiders may be considered for induction against the same positions.
vi. Declare the act of respondents for imposing the mandatory training and departmental promotion examination over the graduate and registered engineers as illegal, void ab initio and set aside the same.
vii. Any other relief(s) this honourable court deem fit in the given circumstances and in the great interest of justice. "
2. The brief relevant facts in the background are as follows:---
3. The petitioners, per assertion, are the employees of Water and Power Development Authority [In short W.A.P.D.A.], who were appointed in different years and are serving in their capacities as Line Superintendents I, II and SSO with the Hyderabad Electric Supply Company Limited [In short H.E.S.C.O.]. As averred in the Memo. of Petition [In short MoP], the Petitioners are duly registered Graduate Engineers [B.E.], thus fall under the umbrella of Pakistan Engineering Council [In short PEC]. Being certified and registered professional Engineers are also entitled to hold any professional engineering position in any organization to the exclusion of non-graduate Engineers.
4. The Petitioners' terms and conditions of service are governed under the Pakistan W.A.P.D.A. Service of Electrical Engineering Rules, 1965 [Referred to as 'Service Rules'], framed by W.A.P.D.A. under section 18 of Pakistan Water and Power Development Authority Act, 1958. [W.P. Act XXXI of 1958].
5. Per petitioners contentions, the Pakistan Engineering Council [In short PEC], had initially raised the issue regarding grant of 'First Class Status' to the Graduate Engineers with Government of Pakistan which was also subsequently endorsed by the respondent No.4/Secretary Cabinet Division of Pakistan. Apart from the above, the Pakistan Engineering Council [PEC] vide its letter dated 07-11-2008, addressed to the respondent No.1, had also asked the respondents Nos.2 and 3 for grant of 'BPS-17' status [Class-1 Status] to the Graduate Engineers. The petitioners, though, are entitled to enjoy the status of 'Class-1', however, till date no heed has been given to request of PEC for grant of BPS-17 status [Class-1 status].
6. With a view and in order to create confusion, uncertainty and prolong the issue, respondents continuously asking the petitioners about their 'service particulars'. Besides, the petitioners were also called upon to appear in the 'Departmental Promotion Examination' [In short DPE] being pre-requisite for their promotion in BPS-17. This condition of mandatory 'training' and passing of 'Departmental Promotion Examination' by the already registered engineers, per petitioners' version beside, illegal is void ab initio. The petitioners, amongst others graduate engineers are actually deemed to be exempted from passing of such DPE and training. The petitioners, thus without going through the process of DPE and training are entitled to be prompted in BPS-17 directly.
7. According to the petitioners, the Pakistan Electric Power Company [Pvt.] Ltd. [In short PEPCO], through its' letter No.21775-89/MDP/E-II/22/4/58/Loose-8-98 dated 6-5-2010 [Annexure 'C' to the MoP], had also directed all the Power Supply Companies to induct the 'Upper Technical Sub-ordinates' [UTS], who are Graduate Engineers against the positions of BPS-17 without passing any 'Departmental Promotion Examination' and/or going through any other mandatory training. The Pakistan Electric Power Company [Pvt.] Limited [PEPCO], vide its' earlier order No.25960-85/MDP/E-11/22/1/58/ Loose-898 dated 20-12-2008 [Annexure 'D' to the MoP] had also issued necessary instructions regarding the prescribed service limit for 'promotion' of the Graduate Engineers recruited as 'UTS' and B.Tech [Hons.] who are working in such capacity. Being relevant the said letter is reproduced as under:---
PEPCO PAKISTAN ELECTRIC POWER COMPANY (PVT.) LIMITED
Fax # 042-9202176 Office of the Tele # 042-9203623 Managing Director (PEPCO) PBX # 042/9202211/2073/2280 WAPDA House, Lahore No.25960-85/MDP/E-I1/22/1/58/Loose-898 Dated: 20-12-2008
OFFICE ORDER
In partial modification of Director (Rules) Wapda O.M.No.D(Rules)/07452/1/IV/12325- 13625 dated 05.03.2002 and No.D/DD(Rules)/0743/3/V/34001-35300 dated 16-9-2005, the competent authority is pleased to reduce the prescribed service limit for promotion of Graduate Engieners recruited as "UTS" and B.Tech(Hons) working as "UTS" as under---
S. No.
Category
Period required for promotion as Jr. Engineer
1.
Gradue Engineer recruited as "UTS"
The services limit for promotion previously fixed as 10 years shall now be reduced to 2 years
2.
B.Tech(Hons) working as "UTS"
The services limit for promotion previously fixed as 10 years shall now be reduced to 4 years.
These instructions shall be applicable with immedite effect and no previous case shall be re-opened.
This issues with the approval of competent authority. Sd/- (Masood Mehmood) Director (Personnel Affairs) PEPCO
HYDERABAD ELECTRIC SUPPLY COMPANY
OFFICE OF THE CHIEF EXECUTIVE OFFICER HESCO HYDERABAD
Endst. No.CCO/HESCO/HR&Admn Dir/A3/59535-67 Dated 31/12/2008
Copy of above is forwarded to for information:--
* Chief Engineer/Technical Director HESCO Hyderabad
* Chief Engineer/Operation Director HESCO Hyderabad
* Chief Engineer/(T&G) HESCO Hyderabad
* Chief Engineer/(Power) HESCO Sukkur
* Manager Opr:/GSO Circle HESCO---(All)
* Manager (MM) /Civil/ Commercial/ Planning/ CM&O/ TM&CM/M&S HESCO Hyderabad/Sukkur
* Regional Manager (M&T) HESCO Hyderabad/Sukkur
* Project Director Const:/GSC HESCO Hyderabad
* Principal RTC HESCO Jamshoro
* Provincial Chairman PWHECLU Gari Khata, Hyderabad"
8. As averred in the year, 2009, a meeting of WAPDA's Board of Directors was convened on 19th February, 2009 wherein the approval for restoration of 'Special Engineering Allowance' as 'Special WAPDA Allowance' was accorded at the rate of Rs.10,000 [Rupees Ten Thousand only] per month with immediate effect for WAPDA 'Graduate Engineers' of all Engineering cadres. Thereafter, General Manager [H.R.] PEPCO vide an Office Order No.GM (HR)/HRD/A-587/2196-2234 dated March, 21, 2009 [Annexure 'E-1' to the MoP], of which copies were forwarded to all other Companies had also endorsed the grant of 'Special Graduate Allowance' to all the Graduate Engineers at the uniform rate of Rs.10,000 [Rupees Ten Thousand only] per month.
9. The petitioners under the aforesaid scenario, claim entitlement for the grant of 'Special Graduate Allowance' as WAPDA's employees approached thereafter to the respondent No.8/Chairman of Pakistan Engineering Council [PEC] for clarification and containment of anomaly in the process of 'induction' and 'promotion' of non-graduate Engineers to the higher scale i.e. BPS-17. Per Petitioners' version for holding professional post in any organization, registered with the Pakistan Engineering Council [PEC] is must for such professional Engineers. The Respondent No.8, in response thereto vide its' letter No.Legal/063/12 dated 30-1-2012 [Annexure 'F' to the MoP] statedly addressed to the respondents Nos.1 and 2 had purportedly advised them that no person shall unless registered as 'Registered Engineer' or 'professional Engineer' with PEC could hold any post in any Engineering Organization where he is required to perform professional engineering work[s]. No non-graduate, in other words, could hold any professional position without his/her registration with the Pakistan Engineering Council [PEC]
10. Moreover, according to the Petitioners, HESCO in an un-justified manner held its' 83rd meeting of BoD on 29.06.2012 [Annexure 'G-4' to the MoP] wherein, per H.R. Committee's recommendations, the BoD of HESCO consequently approved the conversion of 10 posts of 'Matriculation quota' of UTS [BPS-16] to 'Graduate quota' for accommodation of qualified UTS as Junior Engineers in HESCO. The relevant part of the minutes under AGENDA-3 reads as follows:---
"AGENDA-3 Conversion of 10 posts of Matriculation quota of U.T.S. (PBS-16) to Graduate quota for accommodation of qualified UTS as Junior Engineer in HESCO (Recommended by H.R. Committee).
Admn. and H.R. Director briefed that we have 37 vacant posts of Junior Engineers. To fill in these posts the policy says that ratio of 70:30 is adopted. The 70% posts require to fill in from direct quota and 30% through promotion. The promotion quota is further distributed as below:
(i) UTS (LS-I/SSO-I) B.E. 5%
(ii) UTS (B.Tech.) 5%
(iii) UTS (Diploma) 7-1/2%
(iv) UTS (Matric) 12-1/2%
The room against quotas from S.Nos.1 to 3 is full except remaining one or two posts however the vacant room of 17 posts is available in Matric quota and not a single candidate is available in Matric quota. These number of vacancies are lying vacant since years. On the other hand the Graduate UTS who are also eligible for promotion are available therefore, management considered it in the interest of Company and work that at least 10 posts from Matric quota may be shifted to Graduation quota so that eligible UTS may be promoted. If some Matric UTS will become eligible in a future the remaining 7 posts will also lying vacant for them. Chairman enquired about the union point of view it was replied that they must be asked to protect the quota of Matric officials and we are leaving 7 posts for that category. CEO HESCO further observed that if we are filing these vacancies through Advertisement the lot of pressures will face by the management therefore, we have the lot of Graduate subordinate officials working as LS-I/SSO-1 and they possess the service/experience of more than 20 years. The Secretary further pointed out that H.R. Committee has also recommended the point and the draft minutes have been placed with the agenda at Page No.36.
Decision. As H.R. Committee recommended that BoD approved shifting of 10 posts of Junior Engineers from Matric quota to Graduate quota. [Underlining is ours]
11. Earlier all the power supply companies were also directed to induct the 'Upper Technical Staff' graduates Engineers against the positions of BPS-17 without taking other mandatory training. In this regard reference was made to letter No.1775-89/MDP/E-II/22/1/ 58/Loose-8-98 dated 6th May, 2010 written by Director [Personnel Affairs] PEPCO to Chief Executive Officer DISCO's, GENCO's and NTDC.
12. Nonetheless, the Petitioners and other graduate Engineers were deprived of their valuable and considerable right of promotion through direct induction. Moreover, the promotion to the post of Junior/Assistant Engineers in the aforesaid percentage referred to under Agenda-3 in the BoD's 83rd meeting of HESCO is illegal and in violation of law. According to the Petitioners the decision of BoD of HESCO, which was taken in its 83rd meeting, held on 29-6-2012, in the light of recommendation of HR Committee, per Petitioners' stand, the approval of such conversion of 10 posts from 'Matric quota' of UTS [BPS-16] to 'Graduate quota' for the accommodation of qualified UTS as Junior Engineers in HESCO is illegal and against the law.
13. The respondent No.7 [Chief Executive Officer of HESCO] on service filed a very detailed and comprehensive 'counter affidavits' in response to the MoP as well Injunction Application [C.M.A. No.1016 of 2013] wherein all the allegations and assertions of the petitioners were specifically and forcefully denied. According to respondent No.7, the instant petition as 'framed' and 'filed' is bad for 'non-joinder' of necessary party i.e. HESCO. Without impleading the HESCO as a party in the petition [which is a very essential and proper party], no effective order can be passed in the absence thereof. The petitioners as well as respondent No.7 are all paid employees of HESCO as such, respondent No.7 is not a competent person and/or otherwise, vested with any authority/jurisdiction to grant any kind of relief to his junior colleagues on his own will and wish. Such relief until and unless is duly sanctioned/approved by the employer [HESCO] through its' BoD will be of no legal effect.
14. HESCO, it is worth to note, is a Company duly registered under the Companies Ordinance, 1984 [XLVII of 1984] having no statutory rules for appointment, transfer and promotions of its' employees. The present Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 in view of this score as well is not maintainable. The petitioners albeit, without pin-pointing any violation of statutory rules and/or law cannot be deemed as aggrieved persons. Beside, without showing any vested legal right and establishing breach thereof, the petitioners could not invoke the jurisdiction of this court under Article 199 of the Constitution of Pakistan, 1973.
15. Moreover, the petitioners as being employees of HESCO in their capacity[ies] as Sub-station Operators and Line Superintendents [i.e. SSO-I and SSO-II and LS-1] have illegally and malafidely joined the Federation of Pakistan, Secretaries of Establishment/Cabinet Division, Chairman WAPDA, Chairman PEC, Chairman PEPCO, Member Power Ministry of Water and Power as parties un-necessarily. The instant Petition is also bad for non-joinder/misjoinder of necessary and proper parties. None of the aforesaid parties has played or otherwise, can play much-less any active role in the Petitioners' employment in HESCO. Further, no any specific relief has been sought by the Petitioners against any of the aforesaid un necessary, un-essential and improper parties. HESCO, PEPCO and WAPDA in their own independent capacities are not parties in the instant Petition. On this ground as well the Petition is in-competent in law. The Petition as brought against the Official designations or titles is bad in form as such must fail/liable to be dismissed.
16. Needless to say, that in HESCO one category of a Graduate Engineers is initially appointed as Sub-Station Operator [SSO-II] in 'BPS-11' and after 05 years of service they are considered for promotion against the post of SSO-I in 'BPS-13'. Serving for 5 years in 'BPS-13' qualified Engineers thereafter are considered for promotion against vacancy[ies] of Junior Engineers in 'BPS-17' if, available in 5% quota of Upper Technical Sub-ordinates [UTS]. The same however, is subject to passing of Departmental Promotion Examinations [In short DPE]. Per Respondent No.7's versions such are the pre-requisites for consideration of promotion of a UTS to a higher grade i.e. BPS-17.
17. Apart from the above, the another category of Graduate Engineers is of those Graduate Engineers who are initially appointed as Line Superintendents [LS-1] or as Sub-Station Operator [SSO-I] in 'BPS-13' and thereafter they become eligible to be considered for promotion against the posts of Junior Engineer[s] if, available under 5% quota. Every candidate, however, needs to be considered for promotion only after undergoing through the 'mandatory training' and passing of the DPE. In such process of promotion the seniority-cum-fitness criteria is also strictly observed.
18. Out of the petitioners those who have undergone the 'mandatory training' as well as passed the DPE, no doubt, per respondent No.7 stand, will be considered for promotion when vacancy[ies] of Junior Engineer in 'BPS-17' under 5% quota become available. In HESCO, the UTS with a minimum of 5 years regular service in his own cadre/grade, becomes eligible and entitled for consideration to be promoted against vacant posts of Junior Engineers in 'BPS-17'. This, however, is subject to availability of vacancy[ies] in 5% quota, passing of DPE and completion of the 'mandatory training'. It is significant to note that none of the present petitioners except a few Petitioners have passed the DPE and undergone the mandatory training. None of the un-qualified Petitioners can be considered for promotion. In the long run, however, on availability of vacancy[ies] of Junior Engineers in 'BPS-17' under 5% quota, the eligible LS-1 or SSO-I including the eligible petitioners, of course, would be considered for promotion in 'BPS-17'.
19. As far as the 'Special Graduate Allowance' is concerned, the Petitioners in their capacities as employees of HESCO and not of WAPDA [as alleged in Para 2 of the MoP] are not entitled to claim the 'Special Graduate Allowance' from HESCO. Reference, in this regard, has also been made to the letters of appointments issued by HESCO and duly accepted by the petitioners [Ref. Annexure 'A-3' to 'A-39' to the MoP]. The three documents [Annexures 'E' to 'E-3' to the MoP] relied upon by the petitioners beside irrelevant are not binding on HESCO. The same pertain to and deal exclusively the Graduate Engineers who are working in WAPDA and not in HESCO in 'BPS-17' and above. The said Office Memorandum dated 30th August, 2008 [Annexure 'E-1' to the MoP] and Office Order dated March, 21, 2009 [Annexure 'E-2' to the MoP] beside irrelevant are not applicable to the Graduate Engineers of HESCO. Admittedly, the Petitioners are Graduate Engineers [B.E.] serving in 'BPS-11' and 'BPS-13' Upper Technical Subordinates [In short UTS] in HESCO and thus do nothing with the WAPDA. Manifestly, under the aforesaid 'Office Memorandum' and 'Office Order', none of the Petitioners is entitled to claim or otherwise, can be allowed 'Special Graduate Allowance' as they are neither working in 'BPS-17' nor are the…
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