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Petitioner: ZULFIQAR ALI MEMON VS Respondent: PAKISTAN WATER AND POWER DEVELOPMENT AUTHORITY,Ex parte
2000 P L C (C
2000 P L C (C.S.) 1042
[Supreme Court of Pakistan]
Present: Ajmal Mian, C.J., Sh. Ijaz Nisar and Ch. Muhammad Arif JJ
ZULFIQAR ALI MEMON and others
Versus
PAKISTAN WATER AND POWER DEVELOPMENT AUTHORITY and others
Civil Appeals Nos. 76‑K ' to 78‑K of 1993, decided on 16th November 1998.
(On appeal from the judgment, dated 25‑10‑1992 passed by the High Court of Sindh, Karachi in Constitution Petitions Nos.571 of 1992, 727 of 1992 and 752 of 1992).
(a) Constitution of Pakistan (1973)‑‑‑
‑‑‑Arts. 185.(3) & 212‑‑‑Leave to appeal was granted by Supreme Court to consider; whether the decision of WAPDA in appointing the petitioners as Technical Upper Subordinates was based on determination of fitness or otherwise of the petitioners and whether jurisdiction of High Court was barred under Art.212 of the Constitution.
Iqan Ahmed Khurram's case PLD 1980 SC 153 ref.
(b) Constitution of Pakistan (1973)‑‑‑
Arts. 185 & 212‑‑‑Appointment to the post of Junior Engineer‑‑ Acceptance of appointment letter to the lower post‑‑‑Employees did not contest the appointment letter issued by the Authority until institution of their Constitutional petitions in High Court‑‑‑No explanation whatsoever had been offered by and on behalf of the employees on account of their own voluntary act of accepting the assignment/appointment as Technical Upper Subordinates‑‑‑Appeal was dismissed accordingly.
Iqan Ahmed Khurram's case PLD 1980 SC 153 distinguished.
Mansoor Ali Khan, Advocate Supreme Court with Ahmadullah Faruqi, Advocate‑ on‑Record for Appellants.
R.A. Qureshi, Advocate‑on‑Record for Respondents. Nos. 1 to 3.
Respondents Nos.4 to 6: Ex parte. Respondent No.7 (absent).
Date of hearing: 16th November, 1998.
JUDGMENT
CH. MUHAMMAD ARIF, J.‑‑‑The above appeals by leave of this Court against a common judgment, dated 25‑10‑1992 dismissing appellants Constitution Petitions Nos.D‑751 of 1992, D‑727 of 1992 and D‑752 of 1992 have arisen in relation to the induction into service of the appellants in Pakistan Water and Power Development Authority, WAPDA for short. Respondents, Member (Power) and Director‑General (Personnel), WAPDA were sought by the appellants before the High Court of Sindh to be mandated as below in the Constitution petitions afore‑referred:‑‑
"The petitioners, therefore, humbly pray that the Hon'ble Court may be pleased to‑‑
(a) hold and declare that the petitioners are legally entitled to be appointed as Junior Engineers (BS‑17), w.e.f. the dates the respondents Nos.4 to 14 had been appointed, on the basis of their higher merit than that of the said respondents and also because the vacancies of Junior Engineers (BS‑17) existed on the said dates which is evident from the very appointment orders of the respondents Nos.4 to 14 as Junior Engineers (BS‑17) and consequently declare that the appointments of private respondents Nos.4 to 14 was as act of favourtism of respondents Nos. l to 3 and as such illegal and mala fide and is a nullity in law;
(b) issue direction to respondents Nos. l to 3 to appoint the petitioners as Junior Engineers (BS‑17) against the posts on which private respondents Nos.4 to 14 had been inducted by way of direct recruitment in view of petitioners preferential right of their appointment based on their higher merit compared to that of the private respondents Nos.4 to 14 on the merit list;
(c) further direct that the petitioners will be entitled to all consequential benefits of their aforesaid appointment as Junior Engineers (BS‑17) including seniority, fixation of pay and the payment of difference of pay and allowances."
The case of the appellants before the High Court was that they were Bachelors‑of‑ Engineering (Electrical and Electronic) from Mehran University of Engineering and ‑Technology, Jamshoro and Mehran University of Engineering and Technology College, Nawabshah. Being "Professional Engineers" having been registered by the Pakistan Engineering Council, they in response to an advertisement for appointment to .the posts of Junior Engineers (BS‑17), dated 7‑8‑1986, applied for their appointment against the posts reserved for Sindh‑Rural Quota. They were interviewed by the Selection Board constituted by respondent‑Member (Power), WAPDA and selected, among others for appointment as such. However, they were informed by the office of respondent‑Member (Power) that although they had qualified the interview for the posts of Junior Engineer but being on low merit, they were being offered the posts of Technical Upper Subordinates (BS‑12). They accepted the suggested appointment and were appointed against the posts of Technical Upper Subordinates in 1987. According to the appellants, they came to know that their alleged 'low merit' was wrong, fictitious and fallacious and so was the assertion by the respondents that there was any want of vacancies of Junior Engineers. Some of the appointments made by the r6spondent‑Authorities in 1986 related to persons who were lower on merit as compared to the appellants. Similarly, those who were holding the posts of Technical Upper Subordinates and had appeared in the then selection had also obtained lower merit than the appellants. Alleging favouritism to some of the appointees/selectees as also discriminatory treatment having been meted out to the appellants, they filed the aforesaid Constitution petitions before the High Court which were dismissed through the impugned judgment, with the following observations:‑‑-
"It has been noticed that the petitioners had accepted the offer, for appointment in BS‑12; they have remained in service for nearly six years and during this period they have appeared in tests/interviews for the posts of Junior Engineers (BS‑17). They have claimed that they are entitled to be appointed as Junior Engineers ' with consequential benefits. In our view, as observed earlier, their grievances relate to terms and conditions of their service, and their remedy lies before the Federal Service Tribunal.
"Reference here may be made to the following cases, on which reliance had been placed by Mr. Manzoor Ali Khan, learned counsel for the petitioners:‑‑
(1) PLD 1980 SC 153.
(2) C.P. No.D‑226 of 1990, an unreported decision of a Division Bench of this Court.
"The two cases are distinguishable and do not support the case of the petitioners for maintainability of this petition.
"For the aforesaid reasons, the said three petitions were dismissed in limine by our short order, dated 6‑10‑1992."
2. Para. 3 of the Leave Grant Order, dated 17‑3‑1993 reads thus:‑‑
3. Mr. Manzoor Ali Khan, learned counsel for the petitioners has raised the following questions:‑‑
Whether the decision of the WAPDA in appointing the petitioners as 110 Technical Upper Subordinates (BS‑12) was based on determination of fitness or otherwise of the petitioners?
Whether the jurisdiction of the High Court was barred under Article 212 of the 'Constitution. The learned counsel has relied on Iqan Ahmed Khurram's case (PLD 1980 SC 153).
"The questions raised by the learned counsel are questions of law of general importance and require consideration. Even otherwise the facts stated by the petitioners point out to the irregularity in the appointments made to the posts of Junior ‑Engineers. In such a situation we take cognizance of the case under Article 184(3) of the Constitution as well for the purposes of considering the case "
3. It appears that the learned Division Bench of the High Court of Sindh proceeded to dismiss the Constitution petitions of the appellants after duly considering the effect of voluntary acceptance of the offer to them for appointment in (BS‑12); that they remained in service for about six years and during this period they did appear in the tests/interviews for the posts of Junior Engineer (BS‑17) and came to the conclusion that their grievance is inextricably linked with the terms and conditions of service and, therefore, bar of jurisdiction contained is Article 212 of the Constitution is applicable . to their case in that the Federal Service Tribunal is possessed of the jurisdiction to resolve such disputes, according to law.
4. Mr. Manzoor Ali Khan, learned counsel appearing in support of these appeals, has relied upon the Leave Grant Order, dated 17‑3‑1993 for reiterating that this matter was treated by this Court as one under Article 184(3) of the ‑Constitution and that section 4(1)(b) of the Federal Service Tribunals Act (No.LXX of) 1973 being a bar against taking the matters of the same nature as that of the appellants, to the appropriate Service Tribunal and eligibility of an employee to hold a particular post are fit subjects to be agitated before the High‑Court under Article 199 of the Constitution and, therefore, it was not quite right to dismiss their Constitution petitions through the judgments in appeal. He also relied upon Iqan Ahmed Khurram v. Government of Pakistan and others (PLD 1980 SC 153) in support of his latter plea. The precise contention was that as the appellants could not make a grouse against the respondent WAPDA treating the appellants in the manner in which it was done, the jurisdiction of the High Court was amply attracted in this case and decisions to the contrary are liable to be reversed. Contrarily, Mr. R.A, Qureshi, learned Advocate‑on -Record appearing on behalf of the respondent WAPDA, has supported the judgment/s in appeal on all fours.
5. We have considered the arguments addressed at the bar and have also been taken through available material. What meets the eye is that the appellants not only voluntarily accepted the offer by the respondent Authorities to be inducted into service as Technical Upper Subordinates in the year 1987 but also took couple of chances of their rise in the service as employees of WAPDA in (BS‑12) for the posts of Junior Engineers in (BS‑17), after their induction as Technical Upper Subordinates, more than once. Moreover, it is not the case of the appellants that there was any element of coercion on the part of the respondent‑Authorities to make them accept the offer of appointment as Technical Upper Subordinates.
6. The stand taken by respondent WAPDA was that appellant's Constitution petitions before High Court were simply speculative and that they have to be governed, in relation to their service, by Annexure R.1, being an Annexure to their parawise comments to the memos. of appellants' Constitution petition containing the Rules, framed in pursuance of the Authority's decision conveyed in Secretary, WAPDA's Office Order No.S/SO(E.II)I(943‑B) Admn./50483‑603, dated 16‑12‑1975 which assertion remained uncontroverted by the learned counsel for the appellants. Same is the position with regard to the parawise comments, of respondent WAPDA against paras. 15 and 16 of the Constitution Petitions before the High Court, which reads thus:‑‑---
" 15. In answer to para., 15 it is submitted that the contents of Office Memorandum Annexure ' E' with the petition are correct. It is, however, wrong on the part of the petitioners to allege that they are being treated with step‑motherly treatment from amongst themselves. The petitioners are appointed to BS‑12 for which there are independent rules for promotions to BS‑17 and they can only be promoted to that grade according to the rules of their service marked 'R/1'.
"16. In answer to paragraph 16 of the petition it is stated that seniority lists of Technical Upper Subordinates in BPS‑12 and 16 are maintained separately. BPS‑16 is granted to the Technical Upper Subordinates @ 25 % of the total sanctioned posts having 10 years' service having passed the prescribed Departmental Promotion Examination. They are considered for further promotion as Junior Engineer from BPS‑16 to BPS‑17 on seniority‑cum‑fitness basis. The seniority of Engineering Graduates working against Technical Upper Subordinate posts will be maintained keeping in view their length of service and they will be considered for the posts of Junior Engineers against reserved quota on their turn provided they fulfill the other conditions as per rules. "
It is not denied on behalf of the appellants that letter, dated 29‑12‑1987 issued by the respondent WAPDA to the appellants was ever contested by them until the institution of their Constitution petitions in the High Court of Sindh in April, 1992. No explanation whatsoever has been offered by and on behalf of the appellants to get out of the situation in which they find themselves today, on account of their own voluntary act of accepting the assignment/appointment as Technical Upper Subordinates in (BS‑12) in which they have, admittedly, made strides during the interregnum.
7. For all that has gone before, the instant appeals are devoid of any merit and are liable to be dismissed. So, be if. No costs.
Q.M.H./M.A.K./Z‑8/S Appeals dismissed.