Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: IMRAN HUSSAIN VS Respondent: WAPDA through its Chairman WAPDA, Lahore and others
Court Name: Lahore High Court Judge(s): Syed Mansoor Ali Shah Title: IMRAN HUSSAIN vs WAPDA through its Chairman WAPDA, Lahore and others Case No.: W.P. No. 6210 of 2010 Date of Judgment:2010-07-15 Reported As: PLJ 2011 Lahore 602 Result: Petitions allowed
JUDGMENT
JUDGMENT This Consolidated jugdgment shall also decide writ petitions mentioned in Schedule A along with the titled petition. Petitioners had applied for the posts of Assistant Lineman (ALM), Meter Reader, Commercial Assistant and Naib Qasid. All these petitions are the same grievance and raise identical questions of law and facts and are, therefore, being decided through this consolidated judgment. 2. Brief facts of the case are that Faisalabad Electric Supply Company ("FESCO") publically advertised vacancies in 22 different categories of posts, including the above posts, in Urdu and English dailies namely: "fang" and "Daily Express" on 2.11.2008. The said public advertisement was restricted for candidates domiciled in Districts Bhakkar, Faisalabad, Toba Tek Singh, Mianwali, Sargodha and Khushab. 3. Petitioners eagerly applied for the abovementioned posts under Direct Quota and Employees' Children Quota alongwith their' testimonials. Petitioners were issued Interview Call Letters and thereafter they appeared to be interviewed by the concerned Selection Board of the area. The requirement of written test was dispensed with, as is described more fully later in the judgment. Principal grievance of the petitioners is that the Selection Boards simply marked their presence, as they went in for the interview. No question was asked and they were told that the interview has been concluded. The mode and manner of conducting interviews lead the petitioners to assume that FESCO is not interested to fill the said vacancies. However, the petitioners later on found out to their dismay that all the posts had been filled. Petitioners allege that they have been deprived of their long awaited chance to a lawful employment and-what has aggravated their injury is the skewed and selective appointments based solely on political favourtism, disregarding merit. It is
---
## Page 2
vehemently and somewhat poignantly contended by the petitioners that appointments were even made from outside the group of districts mentioned in the advertisement. It was submitted that the entire recruitment process was the work of a hidden political hand, which successfully orchestrated the recruitment process to its own advantage by dictating autonomous public sector companies to violate their own recruitment policy. It was argued that the appointments were made in violation of the Recruitment Policy, 1992 which was heartlessly and unlawfully modified to achieve the desired benefit for the concerned quarters. 4. M/s. Muhammad Ilyas Khan, Khawaja Tariq Rahim, Aurangzeb Miria, Shahid Karim, Mian Abdul Qudoos, and Muhammad Shahzad Shaukat, Advocates interchangeably appeared on behalf of FESCO, as well as, Pakistan Electric Power Supply Company ("PEPCO"). Muhammed Ilyas Khan Advocate, one of the counsel for FESCO, vehemently, raised preliminary objections to the maintainability of the instant petition. 5. His objections were that writ petition against FESCO does not fie as it is merely a company incorporated' under the Companies Ordinance, 1984. He further submitted that the principle of "master and servant" applies in the present case as the petitioners are not governed by any statutory rules of service and lastly, the instant matter involves factual inquiry and therefore, writ is not an appropriate remedy. Learned Counsel placed reliance on "Executive District Officer Schools and Literacy, District Dir Lower and others vs. Qamar Dost Khan and others" (2006 SCM R 1630), 'Almas Ahmad Fiaz v. Secretary Government of the Punjab, Housing and Physical Planning Development, Lahore and another" (2006 SCM R 783) and 'Maqbool Ahmad v. Pakistan Agricultural and others" (2006 SCM R 470). 6. On merits, counsel for PEPCO/FESCO submitted that as the last date for receipt of applications was 15.3.2009. On the said date 86,102 applications were received, however, only 44,656 candidates appeared in the interview under the Direct Quota out of which 1306 were appointed and only 1100 joined the said posts. Under the Employees' Children Quota, 3,477 candidates applied, 2,464 appeared in the interview and only 313 candidates were appointed while only 247 joined the service. Therefore, a total number of 1,347 candidates joined the posts and mit of this 101 candidates were not domiciled from the group of advertised districts. 7. It was submitted that the recruitment was initiated on the basis of Recruitment Policy, 1992 framed by WAPDA and adopted by the Board of Directors of PEPCO and FESCO independently. The Recruitment Policy, 1992 was prepared. in line with the "GOP [Government of Pakistan] Policy Parameters like open advertisement of the vacancies in the National Press and conducting written tests and interviews of the eligible candidates." After the public advertisement for the vacant posts on 2-11-2008, Managing Director ("M.D.") PEPCO issued Letter dated 15-10-2009 on the direction of the Minister for Water and Power, whereby deviation was made in the Recruitment Policy, 1992 and the requirement of written test was dispensed with, replacing it with only a WALK-IN INTERVIEW. 8. The marks for the written test (65 marks) were added into the interview marks making the total marks allocated for the WALK IN intended to be 90, while marks were to be awarded for higher qualifications. Counsel for FESCO/PEPCO submitted that 11 (eleven) Selection Boards were constituted to conduct the WALK-IN INTERVIEWS at various centres located at Joharabad, Jhang, Toba Tek Singh, Faisalabad and Sargodha. It is contended that the appointments were made strictly in accordance with law and on the basis of merit. 9. When counsel for the respondents were asked whether there was any objective criteria framed for the purposes of carrying out interviews by. PEPCO, FESCO or the Selection Boards, the counsel candidly submitted that no objective criteria was framed and the interviews were conducted purely on discretionary basis. Chief Executive Officer ("CEO"), LESCO appeared in person and was directed to place on record the interview proceedings/workings of the Selection Boards so
---
## Page 3
that the Court could assess and satisfy itself regarding the uniform basis and parameters employed by all the Selection Boards while interviewing candidates for the posts. Chief Executive Officer categorically submitted that no record of proceedings of the Selection Boards was available. Chief Executive Officer made a statement to this effect in writing before the Court, which is dated 12.7.2010 and has been placed on the record as mark "A" which states: "The undersigned had checked from the head of all Selection Boards constituted for selection of FESCO employees in various categories. They informed that after the induction/consolidation of the selection results at FESCO Headquarters, Faisalabad, the officer incharge of selection board of various centres did not retain the record of the proceedings of Selection Board, since they had signed consolidated computerized results and as a record was not required to be retained under any rules.' 10.The CEO also confirmed that no objective criteria was framed for the purposes of the interviews by FESCO, or the Selection Boards. 11.Counsel for PEPCO was asked how MD, PEPCO single handedly modified Recruitment Policy, 1992, dispensing with the requirement of the written test which is provided for in the Government of Pakistan Policy parameters for recruitment ? and whether the Board of Directors of PEPCO had authorised the MD, PEPCO to issue letter dated 15.10.2009 ? Counsel for PEPCO sought time and on the next date of hearing placed on record the extracts of the Board Resolution passed by the Board of Directors of PEPCO dated 24.5.2010 whereby ex-post facto ratification was granted to the letter dated 15.10.2009 issued by MD, PEPCO. He further submitted that PEPCO has to follow the Government Instructions, which have been noted in letter dated 15.10.2009. 12.On 8.7.2010, Mr. Abid Ali Chaudhry, Assistant Registrar (Criminal-II) of this Court was appointed as a Local Commissioner who was directed to immediately leave for the Head Office of FESCO, Faisalabad and to undertake the following tasks:-- '1. To obtain a copy of the Recruitment Policy/notification followed by FESCO for the present appointments. 2. To obtain a copy of the notification/letter through which Selection Boards were appointed, showing the names of the members of the said Selection Boards. 3. Letter/notification shoving the objective criteria framed by FESCO for the purposes of carrying out interviews or the appointments in the present cases. 4. The local commission will take up 10 cases at random of the petitioners (maintained by respondent FESCO) and place his stamp and signatures on all the pages of the said files. He will do the same by taking 10 cases at random of the persons appointed by FESCO and place his stamp and signatures on all the pages of the said files. 5 In case any of the above is missing and FESCO fails to furnish the same to the satisfaction of the local commission, he will record the statement of Director, HR&A to that effect and procure the signatures of the said Director on the said statement." 13.The Report of the Local Commission dated 12.7.2010 has been placed on record. No written objections said Report and none of the counsel cont findings of the said Report during their arguments. 14. On 29.4.2010, FESCO was directed to issue notices to all candidates who were appointed as Assistants Linaman, Meter Readers, and Assistant Commercial Naib Qasids so that their presence before the Court is ensured. Notices were duly issued to all the appointed in the above category out of which 65 appointees appeared before this Court through counsel. Counsel for the appointees submitted that they have been appointed through a lawful process of interview and once the said appointment has been made, any lapse or irregularity commited by the department cannot affect the appointments of the said persons and placed reliance on 'Muhammad Zahid Iqbal and others v. D.E.O. Mardan and others" (2006 SCM R 285). They further
---
## Page 4
argued that the principle of locus poenitentiae also applies in the present case. They contended that they were appointed after fulfilling all the requirements and the procedure laid out by respondent FESCO and, therefore, cannot be deprived of their rightful appointment. It was also contended that the said appointments were for a period of one year and already six months had elapsed, therefore, interference by this Court at this stage would be harsh and will unduly affect the appointees. 15.Arguments heard. Record perused. 16. I shall first address the parliminary objections by Mr. Muhammad Ilyas Khan, Advocate appearing on behalf of FESCO. Admittedly, FESCO is owned by the Federal Government and is therefore a State owned company and hence an instrumentality of the State performing functions in connection with the affairs of the Federation. It is now settled and trite law that State owned companies are amenable to writ jurisdiction. Reliance is placed on "Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman and others" (PLD 2010 SC 676). 17.The second preliminary objection regarding application of the principle of "master and servant" is misconceived as it is not the terms and conditions of service which are under challenge in the instant petitions but the mode and manner of recruitment followed by a public sector company which is in question. It is an obligation of a public institution to act fairly, justly, reasonably and transparently. In the present case, it has been agitated that the Recruitment Policy, 1992 has been violated. Inspite of public advertisement, sham interviews have been conducted without any common and prefixed objective criteria to transparently judge and evaluate the candidacy of the applicants. It is submitted by the petitioners that the process adopted by FESCO and its Selection Boards is blatantly devoid of due process; it deprives the petitioners of their right to lawful employment and livelihood and discriminately ousts the petitioners from the recruitment process in violation of Articles 4, 18 and 25 of the Constitution. Therefore, the objection regarding "master and servant" is misplaced and without force. 18.The last preliminary objection is regarding factual controversy involved in the present case. This objection also has no force as it has been admitted by the counsel, as well as, the Chief Executive Officer and the Director, Human Resource (later in the judgment)' that no objective criteria was framed for the purposes of conducting interviews. Further, the authority of MD, PEPCO to issue Letter dated 15.10.2009 and the blind implementation of the same by FESCO is a legal question that can be easily addressed in the present constitutional proceedings. I, therefore, reject all the three preliminary objections raised' by respondent FESCO as being frivolous and misconceived. 19.On merits these petitions raise the following questions of public law and institutional importance: (a) Can appointments be made on the basis of WALK-IN interviews without a pre-fixed objective criteria shared amongst all the Selection Boards (interviewers) by FESCO or PEPCO to maintain a uniform objective selection process? Whether failure to do so offends articles 4, 18 and 25 of the Constitution besides affronting the principles of social and economic justice? (b)Whether in the absence of any record, minutes or notes of the proceedings, it could be inferred that discretion was not lawfully and transparently exercised by the interviewing members of the Selection Boards? (c)Whether M.D, PEPCO could single handedly on the "advice" of the Minister for Water & Power, temporarily amend the Recruitment Policy framed by WAPDA under the guidelines of the Federal Government? (d)Whether Board of Directors of a public sector company is competent to grant ex post facto ratification without giving reasons? (e)Whether, management of FESCO could blindly implement the decision of M.D. PEPCO without
---
## Page 5
first placing the same (Letter dated 15-10-2009) before the Board of Directors of FESCO and getting their approval ? 20. To answer these questions, it will be useful to sketch the chronological sequence of events:-- (i)PEPCO (Human Resource Directorate) communicated to FESCO vide letter dated 30-10-2008, that Cabinet Secretariat, Establishment Division has been pleased to grant NOC for "advertisement only of 1195 vacant positions spread over 22 different posts from BPS 1 to 14. (ii)Through the same letter FESCO was directed to ensure that advertisement appears in two daily URDU newspapers having wide circulation preferably for 2-112008 (Sunday). (iii)The advertisement appeared in "Jhang and "Daily Express," Faisalabad on 2-11-2008. The public advertisements were for 22 different posts and specifically stated that the posts had to be filled by residents domiciled in Districts: Faisalabad, Bhakkar, T.T.Singh, Sargodha, Mianwali and Khushab (the geographical service region of FESCO). The present petitioners applied for the posts of Assistant Lineman (ALM), Meter Reader, Commercial Assistant and Naib Qasid. (iv)Vide Letter dated 10-11-2008 with the subject: EXEMPTION FROM BAN ON RECRUITMENT, PEPCO informed FESCO that selection process of the advertised posts is restricted at this stage till further instructions." This was perhaps due to the Ban on Recruitment as the title of the Letter suggests. (v)Vfde Letter dated 16-12-2008 of PEPCO, last date for submission of applications was extended till 15-1-2009. FESCO vide its Letter dated 17.1.2009. reported to PEPCO that 80,173 applications had been received in all 22 categories in response to advertisement dated 2-11- 2008 with the closing date of 13-11-2008 and more applications were expected as the date was extended. (vi)PEPCO vide Letter dated 12-2-2009 wrote to all the corporatized entities (including FESCO) the following: {{TABLE}} "Corporatized Entities may complete the recruitment process in a fair and transparent manner at their own strictly in line with the applicable instructions rules and recruitment policy PEPCO, however, as a part of its mandate, will continue its routine and normal surveillance, covering selection process through in-house arrangements. This is issued with the approval of the Managing Director PEPCO" {{TABLE}} (vii) Vide Letter dated 19-2-2009 issued by PEPCO, the last date for the receipt of applications was once again extended to 15-3-2009. This was done in view of letter of Ministry of Water and Power dated 19-2-2009 whereby the ban on recruitment was lifted. (viii) On 26-3-2009 PEPCO informed the DISCOs (including LESCO) that The competent authority has been pleased to allow for further proceeding with Recruitment Process for the posts, cleared for advertisement only. Please ensure strict compliance with laid down procedures/recruitment policies and all applicable Service Rules and instructions issued from time to time." (ix)At the time of the Public Advertisement dated 2.11.2008 till the issuance of Letter dated 15.1.2009, the New Recruitment Policy for WAPDA Employees Grade 1-15 (settled vide Office Memorandum dated 25-01-1992) was in vogue. The said Recruitment Policy states: {{TABLE}} NEW RECRUITMENT POLICY FOR WAPDA. EMPLOYEES GRADE 1-15
---
## Page 6
Adopting the new Recruitment 1. Policy of the Federal Government, WAPDA has accordingly modified its own Recruitment Policy. The new policy adopted by WAPDA is at annexure "A" covering all grades of employees, with special emphasis on merit, elimination of discretion and including the monitoring role of Public Representatives. 2. Previously merit was determined with the help of subjective/trade tests. Now only objective test has been introduced for grade 3-15 recruitment, specimen of which is enclosed depending upon the specific recruitment of each trade. Papers for objective tests may be prepared on these lines. 3. The new Recruitment Policy is to be followed strictly in letter and spirit. Authority: Director General (S&GA) Wapda's Circular No. DG/AD(E.IB)/7225-Re-5045-5203 dt. 25.01.1992. Annexure "A" GUIDELINES FOR RECRUITMENT OF STAFF IN BPS 1-15 1. In supersession of all previous instructions on the subject a new Recruitment Policy has been approved by WAPDA on the basis of the one announced by the Federal Government, laying emphasis on elimination of discretion and the monitoring role of Public Representatives. Salient features of the new Recruitment Policy are as under:-- a. All recruitment will be made in February and August every year. 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. Posts in BPS 1-2 will not be advertised. Whenever there is a need to fill in these vacancies concerned formation will ask for application from Secretary WAPDA in addition to applications available in the concerned office. d. Posts for various Grade i.e. (BPS 1-15) will be advertised. e. Qualifications where prescribed in Service Rules for various grades will be strictly adhered to. f. All appointments are to be made strictly on Merit basis on experienced / academic /technical qualification. g. No weghtage will be given to interview, unless essential for the post. h. No adhoc appointments will be made. i. Age relaxation will not be allowed when candidates of correct age are available. However, candidate who may become over age as a result of ban imposed by the Government since November 1990 the age limit may be relaxed by 1(1/2) years till 31.12.1992. 2. Procedure for Recruitment Objective/Trade test will be organized for all advertised post by the respective formations, where considered necessary. 3. Selection Board
---
## Page 7
Posts of BPS 1-4 Members not below the rank of BPS 17 officer. For all advertised posts: Selection Board will be as per WAPDA Service Rules. 4. Appointing Authority As per existing delegation of administrative powers laid down in 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. 6. Quota The quota reserved for various categories is given below:
Employees Children 33.1/3 Disabled 1% Ex-Servicemen 10% Dest-i-tute/ Orphan 5%
{{TABLE}} (x) Office Memorandum dated 19-11-2003 issued by PEPCO states: {{TABLE}} PAKISTAN WATER AND POWER DEVELOPMENT AUTHORITY SERVICES & GENERAL ADMINISTRATION DIRECTOR GENERAL 332-WAPDA House, (S&GA) Shahrah-I-Quaid-I-Azam,
Lahore. Vo.DG(S&GA)/D(Rules)/07453/30/III/55906-27206 Dated 19.11.2003. OFFICE MEMORANDUM Subject: QUALIFICATION PARA-ME TERS FOR RECRUITMENT OF STAFF. Authority in its meeting held on 04.11.2003 has decided as under:- - 1. The prescribed qualification to appointments in BPS 1 to BPS 4 and Sanitary Workers will be as under:-
(a) BPS 3 and BPS 4 Matric
(b) BPS 1 and BPS 2 except Sanitary WorkerMiddle
---
## Page 8
(c) Sanitary Worker Literate (who can read newspaper and write a simple letter in any language)
2. All Service Rules instructions of such categories will stand amended to the above extent. 3. Merit list for appointments upto BPS-15 will be prepared as under:--
(a) Weightage to Written Test 65 Marks
(b) Weightage in Interview 25 Marks (c) One step higher qualification10 Marks
and above than the prescribed qualification in the relevant Service Rules (No weightage to above One step higher qualification) (emphasis supplied) Recruitment policy will stand amended to the above extent.
Sd/-
(Muhammad Akbar Choudhary)
Director General {{TABLE}} (xi) However, quite abruptly, vide letter dated 15.10.2009, M.D, PEPCO issued the following letter: {{TABLE}} PEPCO PAKISTAN ELECTRIC POWER COMPANY (PVT.) LTD. Ref: Managing Director/D/A 4200-4218
Dated October 15,2009 Chief Executive Officer DISCOs, GENCOs & NTDC Subject: PRIORITY CONSIDERATION FOR CRITICAL - VACANCIES /CLEARANCE OF OPERATIONAL ISSUES. Further to communications on subject, priority redressal of Technical/Operational and Revenue problems has become more pronounced now and thus cannot be left to procedural handling. Of course, these can be resolved to a great extent through improving-on governance and supplementing the deficient HR base of the Companies on immediate basis, presently touching critical levels for skilled/semi-skilled categories like ALMs, ASSAs, LSs, Meter Inspectors, Meter Readers, Bill Distributors and other
---
## Page 9
ministerial staff. Whereas Companies have advertised the vacant post's procedural requirements still mars the sincere efforts for early inductions. It has been brought to the notice of Ministry of Water & 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 on 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 placed and venues. The position has been discussed and brought in the notice of Minister of Water & 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 unavaoidable 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. Accordingly, Entities are required to immediately start the selection process against 50% of the vacancies for BPS 1-16 from amongst the candidates who have applied against the advertised…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.