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Petitioner: Taj Muhammad, Chief Internal Auditor, OGDCL, etc VS Respondent: Oil and Gas Development Company Limited through its Manager Director, etc
Court Name: Islamabad High Court Judge(s): Babar Sattar Title:Taj Muhammad, Chief Internal Auditor, OGDCL, etc vs Oil and Gas
Development Company Limited through its Manager Director, etc Case No.: Writ Petittion No. 1777 of 2020 Date of Judgment:2021-02-19 Reported As: 2021 IHC 58, 2022 [M] CLR 1442, 2022 PLC (C.S.) 712 Result: Petition dismissed Judgment JUDGEMENT BABAR SATTAR, J. Through this consolidated judgment the above titled Writ Petition along with Writ Petitions No. 2135, 2226 and 2368 of 2020 are being decided as they involve common question of law and have a common litigation background. 2. The peculiar facts of each case to the extent relevant for disposal of these petitio ns will be discussed in later part of the judgment. The basic question of law involved in these petitions is whether the petitioners are entitled to antedated promotions in view of the judgments of the august Supreme Court in Zulfiqar -ul-Husnain and 19 others v. Oil and Gas Development Corpora tion [2003 SCMR 1115] and Abid Kamal vs. OGDCL through its Managing Director & others (C.P .L.A No. 1538/2008 decided on 13.10.2009). 3. Learned counsel for the petitioners states that this is probably the third round of litigation between the petitioners and Oil and Gas Development Company Limited ("OGDCL") ; that in the last round of litigation the appeals filed by OGDCL were accepted by this Court and OGDCL was directed to consider the petitioners for antedated promotions in a non-discriminatory manner in accordance with law; that after such conside ration OGDCL has once again declined to grant antedated promotions to the petitioner; that the petitioners were entitled to the promotions in accordance with the decisions of the cases Zulfiqar ul Husnain and Abid Kamal ; that under the Oil and Gas Development Corporation Employees (Service) Regulations, 1994 ("Regulations") no qualifications are prescribed for promotions to EG-IV , V and VI and the said Regulations require that employees be promoted every five years. 4. Learned counsel for the respondent in Writ Petitions No. 1777, 2135 and 2226 of 2020 has taken the Court through factual details of three cases which reproduced in para.9 below . He submits that the case of Abid Kamal is distinguishable as the said employee was placed at No.1 of the seniority list and was otherwise qualified for promotion. The learned counsel further states that all the petitioners who were entitled to be granted the benefit of
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Zulfiqar ul Husnain have been granted such benefit and their promotions have not been withheld in any discriminatory fashion; that the company has prescribed the procedure for considering promotions and promotions are made in accordance with the criteria prescribed under the Regulations; that the impugned letter dated 10.06.2020 was issued in accordance with law as the petitioners did not qualify on the basis of their merit, fitness and seniority to be granted antedated promotions; that granting such promotions to the petitioners would be in breach of the Regulations and discriminatory to other employees of the company who have been considered for promotions or granted promotions in accordance with the Regulations. He concluded his submissions by stating that the petitioners are seeking automatic promotions in breach of the seniority-cum-fitness criterion that apply to the petitioners through abuse of the process of this Court. 5. Learned counsel for the respondent in W.P No. 2368 of 2020 has also taken the Court through factual details of the case which reproduced in para.9 below and states that the petitioners in the said petition are all Technical Officers and can derive no benefit from the ratio in Zulfiqar ul Husnain as their initial appointment was not in EG-I. He submits that the petitioner No.1 is at Sr. No. 17 on the seniority list and in considering employees for promotion, the company runs through the prescribed procedure and considers that whether there is a vacant position against which a promotion can be made, in acco rdance with the regulation 32(I), and further considers the merit, fitness and seniority of the employee in accordance with the prescribed criteria in compliance with regulation 32(3) of the Regulations. He also submits that the impugned letter that regretting grant of antedated promotions to the petitioners was in accordance with law and suffers from no legal infirmity . And that the instant petition is not maintainable as it requires the court to undertake evaluation of the merit and fitness of the petitioner , which is a responsibility vested in the Departmental Promotion Committee under the Regulations. 6. In rebuttal, learned counsel for the petitioners states that there was no reference to seniority and fitness in Abid Kamal and in view of the ratio in Abid Kamal the petitioners are entitled to automatic promotions every five years. 7. Various rounds of litigations between OGDCL and its employees in relation to their promotions and antedated promotions have gone on for the last two decades and the key cases that need to be considered and addressed for adjudication of these petitions are discussed below: (i) Zulfiqar-ul-Husnain and 19 others v . Oil and Gas Development Corporation [ 2003 SCMR 1 115]. In this case, the august Supreme Court after scrutinizing the organizational structure of OGDCL, wherein non- technical employees were initially placed in Executive Group EG-I and technical employees in EG-II, held that (i) non-technical employees were entitled to be promoted from EG-I to EG-III as they could not be placed in EG-II being a pay group for technical employees, and (ii) the cadre of non-technical employees could not be subjected to discriminatory promotion conditions in comparison to technical employees, and they were entitled to being promoted directly from EG-I to EG-III just as technical employees were entitled to being promoted from EG-II to EG-III. The august Supreme Court accepted the right of EG-I employees to be given antedated promotion to EG-III with effect from the date they were promoted to EG-II and ought to have been promoted in EG-III due to the discriminatory treatm ent meted out to them. In this case the august Supreme Court laid down no general principle that all OGDCL employees were entitled to promotions every five years or that they were entitled to antedated promotions based on their years of service alone. In para 13 of the judgment, the august Supreme Court held that the decision in the instant case would only apply to the appellants before the august Supreme Court and not to other employees whose cases would be treated under the principle of past and closed transaction. (ii) Muhammad Sajid and others vs. Managing Director , OGDCL, etc. (Writ Petition No. 1223 of 2012). In this writ petition, the petitioners' case was that notwithstanding para-13 of Zulfiqar -ul-Husnain case, OGDCL had promoted similarly placed employees by giving them the benefit of the ratio in Zulfiqar -ul-Husnain , even though they were not before the Federal Service Tribunal and their cases fell within para-13 of the said judgment and thus OGDCL 's actions were discriminatory . This Court through judgment dated 07.04.2014 directed OGDCL to place the petitioners in EG-III from the date of becoming so entitled in view of the ratio in Zulfiqar -ul-Husnain . The OGDCL appealed the order on the basis that the petitioners' case fell within para 13 and was hit by the doctrine of past and closed transaction. The argument was rejected by the august Supreme Court as it held the following:
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"the argument that the respondents did not service in EG-II for a period of 5 years remained unsubstantiated as nothing in black and white has been broug ht on the record to show that their service in EG-II is less than five years. The rule on the basis whereof this argument is based on was also not cited before us nor has it ever been cited before the Tribunal. In any event, no line of distinction between the case of the respondents and those of the other employees dealt with in the case of Zulfiqar-ul-Husnain and 19 others (supra) have been drawn. Yes, in the case of Zulfiqar-ul-Husnain and 19 others (supra), this Court held that the other employees who failed to approach the Tribunal for the redressa l of their grievance would be hit by the doctrine of past and closed transaction but this observation will not hold the field when we held in the case of Hameed Akhtar Niazi v. The Secretary , Establishment Division, Government of Pakistan and others (1996 SCMR 1185) and Tara Chand and others vs. Karachi Water and Sewerage Board, Karachi and others (2005 SCMR 499), that if a benefit has been extended to a civil servant who litigated for his rights should also be extended to the one who did not litigate therefor if his case is at par with the former. When seen in this backdrop, the view taken by the Service Tribunal appears to be correct." (iii) Irfan Habib Sheikh vs. Ministry of Petroleum and Natural Resources, Islama bad and another (ICA No. 554 of 2016) filed against the order passed in W .P No. 97/201 1. Writ Petition No. 97/201 1 was dismissed by this Court on the ground that the petitioner belonging to non-technical cadre could not claim the benefit of the ratio in Zulfiqar -ul-Husnain . The petitioner had been inducted as an Auditor and had voluntarily sought re-designation as Store Officer. He was mistakenly given the benefit of Zulfiqar -ul- Husnain by OGDCL and placed in EG-III as he should have been placed in EG-II being a technical employee and was junior-most in the Store Department. The ICA was dismissed as the appellant could seek no benefit from the dicta in Zulfiqar -ul-Husnain . (iv) Muhammad Yasin v . OGDCL, etc . (Writ Petition No. 21 of 2014.) This petition was dismissed as the petitioner belonged to the technical cadre and was seeking antedated promotions to EG-III and EG-IV even though the ratio in Zulfiqar -ul-Husnain did not apply to him. This writ petition and W .P No. 4032/2014 were dismissed on the basis of para 13 of Zulfiqar -ul-Husnain. The reasoning of the judgment would have binding on this Court under the principle laid down in Ardeshir Cowasjee vs. Messers Multiline Associates and others (PLD 1993 Karachi 237), except that while adjudicating these petitions the attention of the Court was not drawn to the decision of the august Supreme Court in Civil Petition No. 940 of 2014, wherein the august Supreme Court had declared that observations in para 13 of Zulfiqar - ul-Husnain were per in curium in view of the law settled in Hameed Akhtar Niazi v. The Secretary , Establishment Division, Government of Pakistan and others (1996 SCMR 1185) and Tara Chand and others vs. Karachi Water and Sewerage Board, Karachi and others (2005 SCMR 499), wherein it was held that the benefit of precedent ought to be afforded to non-contesting employees and the ratio of a precedent should be followed subsequently . It was further held that in case of conflict, the judgment of the large r bench would prevail as held in Fazal Muhammad Chaudhri v. Ch. Khadim Hussain and others (1997 SCMR 1368 ), Babar Shahzad v. Said Akbar (1999 SCMR 2518 ), Sardar Muhammad Nawaz v. Firdous Begum (2008 SCMR 404) and Chairman, State Life Insurance Corporation v . Hamayun Irfan ( 2010 SCMR 1495 ). (v) Muhammad Raza Ghauri v . OGDCL,etc. (Writ Petition No. 4148 of 2012). This petition was filed by the petitioner after denial of representation seeking promotion. This was also a case of discrimination as those promoted were junior to the petitioner and had been appointed in a manner similar to the petitioner . The petition was allowed. The OGDCL filed an appeal (i.e. ICA No. 986/2013), which was dismissed. The OGDCL then filed Civil Petition No. 2048/2013 which was also dismissed. The august Supreme Court was not impressed by the argument that a writ petition against OGDCL was not maintainable and the remedy available to employees was that of filing a civil suit. (vi) (Nisar Muhammad, etc. vs. The OGDCL, etc. (Civil Petitions No. 1359 to 1361 of 2009). Here the august Supreme Court found that employees were in the employment of OGDCL at the time that the Company was incorporated and were protected by section 5 of the Oil & Gas Development (Reorganization)
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Ordinance, 2001 ("Ordinance") and terms and conditions of their service were governed under the Regulations which were statutory in nature. Para 5 of the judgment is reproduced below: "Before parting with this judgment, we need to address the arguments advanced by learned counsel for the Company (respondent No.1) relating to the jurisdiction of the High Court. He submitted that if the Rules of 1994 are indeed to be treated as statutory rules, the petitioners should approach the Federal Service Tribunal for redressal of their grievances. The implication of this arguments is that the High Court did not have jurisdiction in the case. We are not inclined to go into this question because the matter is already before us and even if the High Court did not have jurisdiction it would be pointless, directing the appellants to approach the Service Tribunal and then to open the door for the aggrieved side to again come before us to agitate the same matter ." (vii) C.P.L.A No. 1538 of 2008 (Abid Kamal vs. OGDCL through its Managing Director and others.) Here the august Supreme Court took into account the decision of OGDCL recorded in letter No. ED(F)/5800 dated 20.07.2009 wherein it was decided in view of the apex Court' s decision in Zulfipar ul Husnain that, inter alia, "the aggrieved (both technical and non-technical) officers given back dated EG-III may be given protection of seniority with subsequent adjustment of promotions already earned." In the proceedings before the august Supreme Court there was an admission of non-implementation of Supreme Court' s judgment by OGDCL in its "real spirit". In view of the decision and admission by OGDCL, subsequent antedated promotions from EG-II to EG-V were ordered to afford Mr. Abid Kamal "requisite relief, at par with the other employees of the Corporation, which was denied to him". Mr. Abid Kamal was at Sr. No. 1 of the relevant seniority list that applied to him and his case was, therefore, one of discrimination. In the said case the august Supreme Court held that the petitioner was entitled (i) to be given EG-III from his date of promotion to EG-II, (ii) to be granted requisite seniority which ought to be protected such date of promotion to EG-III, and (iii) to be considered for subsequent promotions keeping in view the date on which he was entitled to and ought to have been promoted to EG-III. It is on the basis of ratio in Abid Kamal that the present petitioners seek relief in the instant petitions. (viii) Arshad Mehmood (W rit Petition No. 3256 of 2019) This Court relied on Syed Tahir Abbas Shah Vs OGDCL through M.D. Head Office, Islamabad (2011 SCMR 1912 ) to hold that employees of OGDCL can avail the remedy of writ, the rules of OGDCL being statutory in nature. The OGDCL filed C.P.L.A No. 713/2012 against this Court' s decision but the findings of the decision of this Court was not set aside. (ix) Arshad Mehmood Khan vs. OGDCL (Writ Petition No. 3965 of 2013) Here this Court held that a writ against OGDCL was maintainable and appeal against the order was dismissed by the august Supreme Court in Civil Petition No. 1530/2014 on 08.12.2014. In this case the reasoning of HR Department of OGDCL for refusing promotion was found to be perverse. The HR Department refused promotion on the basis of non-availability of vacancy whereas the record established that an employee junior to the petitioner was promoted and thus non-availability of vacancy could not be set up as a ground for refusing promotion. (x) Muhammad W asal Butt vs. OGDCL (Writ Petition No. 2061 of 2010) This Court issued a writ against the OGDCL on the basis that the petitioner had been discriminated against. The appeal against the order in Civil Petition No. 593/2012 was dismissed by the august Supreme Court for not being pressed. 8. The appraisal of the history of this litigation leads to the following conclusions: (i) the grievances of employees of OGDCL against illegal orders can be brought before the High Court in its writ jurisdiction if the terms and conditions of service of such employees are governed by the Regulations of 1994, which have been af forded statutory protection of section 5 of the OGDCL Ordinance; and (ii) this Court and the august Supreme Court have exercised jurisdiction in favour of employees where it has been established on the basis of undispute d record or admission that such employee has been subjected to discrimination. Neither the High Court nor the august Supreme Court has laid down a general principle that employees of the OGDCL are entitled to antedated promotion on the sole basis that they have completed service of five years in their respective grades, which is only one of the prerequisites to consider an employee for promotion in the next grade.
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There is no judgment in the field that has laid down that OGDCL ought to disreg ard the other criteria prescribed under the Regulations and any Board of Directors' decisions, and should promote employees on the sole basis of completion of five years of service in each grade. 9. The relevant employment facts for each petition are as follows: (I) Writ Petition No. 1777 of 2020. (Taj Muhammad vs. OGDCL, etc.) The petitioner joined the OGDCL on 27.11.1990 as Assistant Internal Auditor in EG-I against temporary post. He was appointed as Assistant Internal Auditor in EG-II with effect from 01.07.1994 on the basis of holding Master 's degree. On 01.12.1999, the petitioner was promoted to EG-III and thereafter promoted to EG-IV w.e.f. 01.12.2004, EG-V w.e.f. 01.07.2010 and EG-VI w.e.f. 01.07.2015. The benefit of the judgment of the august Supreme Court in Zulfipar -ul-Husnain , was also extended to the petitioner and he was promoted to EG-III w.e.f. 01.07.1994 i.e. the date when he was promoted as EG-II. The petitioner also filed W.P No. 2247/2012 praying therein for antedated promotions in EG-IV , V & VI in light the judgments of the august Supreme Court dated 15.01.2002 and 13.10.2009, which was accepted by this Court through judgment dated 27.02.2017. Feeling aggrieved the OGDCL filed an appeal (i.e. ICA No. 116/2017), which was disposed of by order dated 09.03.2020, with the direction to the OGDCL to consider the respondents for antedated promotions strictly in accordance with law. In compliance of the said order , the OGDCL considered the petitioner for promotions in EG-VI, EG-V & EG-VI. However , he was informed through letter dated 10.06.2020 that since he was placed in EG-II and not promoted, therefore the judgment of august Supreme Court was not applicable to his extent and consequently the benefit of promotion to EG-III granted to the petitioner with effect from 01.07.1994 was withdrawn by letter dated 10.06.202. The petitioner is now seeking antedated promotions in EG-IV with effect from 01.12.1999, to EG-V w.e.f. 01.12.2004 and EG-VI w.e.f. 01.12.2009 in the light of the ratio in Zulfipar -ul-Husnain . (II). W rit Petition No. 2135 of 2020. (Muhammad Javed Ahmed & others vs. OGDCL, etc.) The petitioners were appointed in Accounts and Finance Department of the respondent company in EG-I and they were promoted to EG-II with effect from 01.07.1994 and EG-III with effect from 01.07.1999. Subsequently , petitioners No. 1 to 5 in the light of the judgment of the august Supreme Court in Zulfipar -ul-Husnain , were promoted to EG-III w.e.f. 01.07.1994 whereas petitioner No.6 was promoted to EG-III with effect from 01.07.1993. The petitioners filed departmental representations seeking antedated promotions in accordance with the judgments of the august Supreme Court passed in Zulfipar ul Husnain and Abid Kamal. OGDCL informed the petitioners that the judgment dated 15.01.2001 had already been implemented and promotion s in EG-III were adjusted. The petitioners then filed W.P No. 679/2012 praying for similar antedated promotions in EG-IV , VI, VI in line with the judgment dated 15.01.2001. The said petition was allowed by order dated 24.01.2017 and the appeal filed by the OGDCL against the said order was disposed of by this Court with the direction to consider the petitioners for antedated promotions in accordance with law and in a nondiscriminatory manner. In compliance of the said judgment, the petitioners were considered but their request for subsequent antedated promotions was denied. The petitioners now seek antedated promotions of in EG-IV , EG-V and EG-VI in view of the ratio in Zulfipar ul Husnain . (III.) Writ Petition No. 2226 of 2020. (Muhammad Amin Shah vs. OGDCL, etc.) The petitioner was inducted in service as Assistant Internal Auditor in EG-1 and he was promoted to EG-II with effect from 01.07.1994 and further promoted as EG-III with effect from 01.12.1999. The petitioner was promoted to EG-III with effect from the date of promotion to EG-II i.e. 01.07.1994 in the light of the judgment of the august Supreme Court in Zulfipar -ul-Husnain . The petitioner applied for re-designation on 02.09.2003 of his own volition and he was re-designated as Store Officer and placed at the bottom of the seniority list in his cadre. He filed a departmental representation to seek antedated subsequent promotions in accordance in view of Zulfipar ul Husnain and Abid Kamal but his representation was turned down. He then filed W.P No. 2249/2012 and prayed for antedated promotions in EG-IV , VI, VI. The petition was accepted by order dated 27.02.2017 and the appeal (i.e. ICA No. 115/2017) filed by the OGDCL against the said order was disposed of by this Court through order dated 09.03.2020, with the direction to OGDCL to consider the petitioner for antedated promotion in accordance with law and in a nondiscriminatory manner . Pursuant to the said judgment, the petitioner was considered but he was
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denied subsequent antedated promotions. The petitioner now seeks antedated promotions in EG-IV , EG-V and EG- VI in accordance with the judgment of the august Supreme Court in Zulfiqar ul Husnain . (IV.) Writ Petition No. 2368 of 2020. (Abdul Sattar , etc. vs. OGDCL, etc.) The petitioners were appointed as EG-I in OGDCL. They were promoted to EG-III with effect from the date of their promotion to EG-II in pursuance of the judgment of the august Supreme Court in Zulfiqar -ul-Husnain. The petitioners filed W.P No. 1894/2013 with the prayer that they may be granted similar antedated promotions in EG- IV, VI, VI in view of the judgment dated 15.01.2001 passed in Zufiqar -ul-Husnain. The petition was disposed of by order dated 08.12.2016 with the direction to the respondent company to decide the case of the petitioners afresh in pursuance of the judgment passed by the august Supreme Court in CPLA No. 1538 of 2008. Being aggrieved of the said order , the OGDCL filed ICA No. 14/2017, which was disposed of by this Court through order dated 09.03.2020 and OGDCL was directed to consider the petitioners for antedated promotions in accordance with law and in a non-discriminatory manner . In compliance of the said judgment, the petitioners were considered but they were denied subsequent antedated promotions. The petitioners now have now challenging OGDCL 's order dated 10.06.2020. [They have further prayed for reimbursement of recovery already made from them and also for subsequent promotions in EG-IV and EG-V .] 10. According to the O.M dated 22.05.2015 the Board of Directors of OGDCL held in their 173rd meeting that: (i) under section 5 of the Ordinance promotion criteria given in Regulations will be applicable and mechanism, bench mark and evaluation process as given in Chapter IV of such Regulations will apply; (ii). it would be mandatory to take into account five performance evaluation reports while considering an employee for promotion; (iii). the minimum service of an employee to be deemed eligible for consideration of promotion would be five years subject to availability of vacancy; and (iv). accelerated promotion may be considered on the basis of extraordinary performance if so recommended in ACRs/PERs and the employee in question has completed three-years of service and meets the required qualification and experience. 11. Regulation 5 of the Regulations prescribes the procedure for consideration of employees for promotion. A promotion is made by the Departmental Promotion Committee, subject to satisfa ction of the prescribed criteria. Regulation 32 states that a promotion can only be made against an existing vacancy , on the basis of merit, fitness and seniority . In these petitions, the petitioners are praying for issuance of a writ ordering their promotions in disregard of the procedure prescribed in the…
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