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Petitioner: Mudassar Hassan Rana etc VS Respondent: Federal Government etc
Court Name: Lahore High Court Judge(s): Shujaat Ali Khan Title: Mudassar Hassan Rana etc vs Federal Government etc Case No.: Writ Petition No.14338 of 2011. Date of Judgment:2017-02-08 Reported As: 2017 PLC (C.S.) 1342, 2017 LHC 319 Result: Petition dismissed
Judgment Shujaat Ali Khan, J: - Through this single judgment I intend to decide this petition (W.P. No.14338/201 1) as well as connected petitions bearing W.P. No.7086/2014, titled Mst. Qaisra Naeem v. The District Manager PIA etc., W.P. No.7135/2014, titled Irfan Basit v. The District Manager PIA etc., W.P. No.7165/2014, titled Tanveer Qasim v. The District Manager PIA etc., W.P. No.7167/2014, titled Wajid Saleem Ch. v. The District Manager PIA etc. and W.P. No.7168/2014, titled Muhammad Ejaz v. The District Manager PIA etc. having commonality of facts and law inasmuch as in this petition Mudassar Hassan Rana etc. (hereinafter to be referred as the petitioners) while challenging Policy circulated through Admin Order No.13/2011, has assailed promotion orders of respondents No.6 to 12 (hereinafter to be referred as the respondents) whereas in connected petitions the respondents have put a challenge to proceedings pending before FIA authorities on the complaint filed by the petitioners and others. 2. Unnecessary details apart, the respondents were promoted from PG-V to PG-VI in terms of Admin Order No.13/2011, dated 02.06.2011. Aggrieved by their promotion the petitioners have filed this petition whereas the respondents by way of filing connected petitions have challenged the competence of the FIA authorities to proceed with the complaint filed by the petitioners and others against them. 3. Learned counsel for the petitioners submits that as the respondents got M.B.A. degrees without attending classes the same did not carry any legal value; that requisite NOCs were not got by the respondents prior to their admission in M.B.A.; that the petitione rs being senior to the respondents were entitled for promotion; that purportedly the respondents got their MBA degrees from Al-Khair University (AJK) (hereinafter to be referred as the University), Islamabad campus but as the said University has no campus either in Lahore or Islamabad the degrees issued in their favour are not valid and that the petitioners, alongwith others, have moved FIA authorities for criminal action against them thus they have no bearing on each other . 4. Mian Muhammad Tariq Hassan Advocate, representing PIA, while controverting the contentions urged by learned counsel for the petitioners submi ts that as terms & conditions of service of PIA employees are governed
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under non-statutory rules, this petition is not maintainable; that promotion cannot be claimed as a matter of right rather it is prerogative of the competent authority to promote an employee who fulfills the eligibility criteria; that prior to their promotion, degrees issued in favour of the respondents were sent to Higher Education Commission (HEC) for verification whereupon the said forum confirmed that the same were valid; that HEC got published a proclamation in daily Jang, dated 08.01.2012, sensitizing the public at large about degrees, if any, issued by the University on the basis of admissions after 30-04-2009 would not be acknowledged; that in addition to Special Incentive on the basis of MBA/MP A/MAS , a revised promotion policy 2011 has been published through Admin Order No.24/201 1 for promotion of the persons serving in Admin category; that on the dint of Office Order No.24/201 1 Mudassar Hassan Rana (one of the petitioners) has already been promoted in PG-VI whereas Muhammad Khalid Javed has been ignor ed on account of lack of minimum qualification as he is only intermediate; that promotion of the respondents was recommended by the Board comprising persons not only enjoying high profile but good reputation as well; that while introducing Fast Track Place ment Programme (FTPP) for MBA/MP A/MAS degree holders it was given option to the employees either to opt for that or for Normal Placement Programme (NPP) and in the event of non-clearance of six weeks rigorous training or the subsequent papers, the employee concerned was bound to be considered for promotion under the general policy; that accelerated promotion on the basis of MBA/MP A/MAS degrees was introduced by virtue of Admin Order No.24/1991 circulated on 04.06.1991 which was amended many a times but the petitioners instead of challenging the original policy has only assailed validity of Admin Order No.13/201 1; that as petitioners No.3 & 4 are no more in service this petition to their extent has become redundant. In support of his contentions learned counsel has relied upon the cases reported as Saleem Ullah Khan v. Shahid Hamid and another (2011 SCMR 788), Pakistan International Airline Corporation and others v. Tanweer -Ur-Rehman and others (PLD 2010 SC 676), Syed Noorul Hasan v. The Secretary , Ministry of Industries, Government of Pakistan, Islamabad and others (1987 SCMR 598), Muhammad Amin Bhatti v. Inspector General of Punjab Police (2011 PLC (C.S.) 535) and Malik Mazharul Haq and another v. Chairman, Pakistan International Airlines Corporation, Islamabad and 3 others (2010 PLC (C.S.) 1472 ). 5. On the other hand, learned Deputy Attorney General, while supporting the view point of learned counsel representing PIA, states that proceedings pending before FIA cannot be quash ed as they are independent in nature. 6. Mr. Naveed Ahmad Khawaja Advocate, representing the respondents, while opposing this petition, submits that as the petitioners have assailed vires of Promotion Policy the same is not main tainable; that as terms & conditions of service of employees of PIA are gove rned by non-statutory rules this Court lacks jurisdiction to deal with any issue relating to said terms & conditions; that degrees issued in favour of the respondents have already been verified by HEC, thus, it being a past and closed transaction cannot be re-opened; that as a matter of fact the respondents attended MBA classes at Lahore Campus of the University thus no exception can be taken against their degrees; that the queries raised in this petition revolves around factual inquiry which cannot be decided in Writ jurisdiction rather for the purpose the petitioners have to approach the relevant forum; that HEC itself fixed 30.04.2009 for validity of degrees issued by the University campuses functioning beyond the territorial jurisdiction of AJK; that since Promotion Policy was formulated in the year 1991 it cannot be believed that the same was framed just to facilitate the respondents as they joined the department in the year 1996 and that mala- fide on the part of the petitioners is manifest from the fact that Muhammad Khalid Javed (one of the petitioners) swore an affidavit on 28.06.2011 to the effect that he did not want to proceed with the matter but the rest of the petitioners with a view to mislead the Court suppressed the factum of the same. Learned counsel in support of connected petitions submits that since matter regarding validity of degrees in favour of the respondents is pending adjudicatio n before this Court, continuation of proceedings before FIA authorities on the complaint of the petitioners and others is a nullity in the eye of law; that competence of a person to hold a particular post cannot be investigated by FIA authorities; that after validation of degrees issued by the University prior to 30.04.2009 by HEC no other authority including FIA has any power to enter into an inquiry relating to genuineness of the said degrees; that while filing complaint before FIA authorities, the petitioners and others concealed factum of filing petition before this Hon'ble Court; that none of the offences contained in Schedule
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attached with Federal Investigation Agency Act 1974 is made out from the contents of complaint submitted by the petitioners and others, therefore, jurisdiction of FIA authorities is barred; that though degrees were issued in favour of the petitioners on the basis of examina tion held in the year 2007 but the petitioners and others kept mum till the year 2013 when the respondents were promoted in PG-VI; that mala-fide on the part of FIA authorities is manifest from the fact that after taking cognizance of the matter just to humiliate and blackmail the respondents the matter was unnecessarily publicized in national press; that Pak Lawrence College, Lahore, where the respondents attended MBA classes was affiliated with the University pursuant to communication bearing No.AU-2(25)/GA/2007, dated 12.06.2007 addressed by the Registrar of the University to the Chairman, Pak Lawrence Institute, 93-1 Shadman Lahore; that the petitioners also filed a petition under section 22-A & B Cr.P.C. before Mr. Mazhar Salim, Additional Sessions Judge/Ex-Of ficio Justice of Peace, Lahore, seeking direction to FIA authorities to conclude inquiry No.1/2014 wherein the FIA submitted reply inter-alia with the assertion that originally the inquiry was closed by the competent authority vide letter dated 10.11.2014, however , later on the same was re-opened but the petitioners failed to provide any fresh evidence to prove the allegations against the respondents, thus, the continuation of proceedings before FIA authorities amount to humiliate and blackma il the respondents. In support of his contentions learned counsel has relied upon the cases reported as Abdul Wahab and others v. HBL and others (2013 SCMR 1383 ), Pakistan International Airline Corporation and others v. Tanweer -Ur Rehman and others (PLD 2010 SC 676), Khawaja Muhammad Hussain Khateeb v. Additional Sessions Judge, Sialkot and 7 others (PLD 2016 Lahore 522), Muhammad Arshad Rafique v. Government of Pakistan through Secretary and 4 others (2016 PLC (C.S.) 952), Hassan Mehmood v. Habib Bank Limited through President and 4 others (2016 PLC (C.S.) 315), Riaz Gul and others v. Federation of Pakistan through Secretary , Ministry of Water and Power , Government of Pakistan, Islamabad and others (2016 PLC (C.S.) 350), Khalid Hassan Khan v. Pakistan International Air Lines through Director of Marketing and 2 others (2013 YLR 847), Muhammad Anwar Ansari v. Chief Election Commissioner , Islamabad through Secretary Election Commission of Pakistan and 5 others (2011 YLR 2810 ) and Munir Akhtar Awan and others v . Khalid Mansoor and others (2010 YLR 3144 ). 7. While exercising his right of rebuttal, learned counsel for the petitioners submits that as the petitioners are not claiming promotion from this Court instant petition is maintainable; that it is not believable that the respondents attended the M.B.A. classes regularly while performing their official duties; that HEC in response to letter No.FIA/CCC/LHR/582, dated 18.03.2014, informed the Additional Director FIA that the degrees/transcripts of the students admitted w.e.f. 30.04.2009 to 16.10.2011 shall not be validated/recognized; that as some of the degrees of the respondents pertain to the year 2009, they cannot be termed as legitimate; that the competent authority issued letters of displeasure, dated 20.10.2015, regarding completion of M.B.A. degree by the respondents without getting requisite NOC which fact is sufficient to establish that they got admission in M.B.A. classes without issuance of prior NOC by the competent authority; that by virtue of communications, dated 24.10.2016, addressed by HR Manager Marketing, PIA, to M/s. Wajid Saleem and Qaisra Tabassum (respondents herein) they have been asked to submit their original degrees for onward submission to HR Record meaning thereby that the same were not on the record of the department, thus, the asserti on of the respondents that their degrees have been verified for more than once by HEC on the move of the depar tment is not believable and that as till date the respondents have not been issued notice in the instant petition they have no right of audience. To fortify his last contention learned counsel for the petitioners has referred to order 23.6.201 1 whereby only notices were issued to respondents No.3 to 5 with a direction to file report and parawise comments. 8. I have given anxious consideration to the arguments advanced by the respective learned counsel for the parties in addition to going through the documents forming part of these petitions, report and parawise comments and those produced by the learned counsel for the parties during the course of hearing as well as the case-law cited at the bar . 9. A cursory glance over this petition shows that under the garb of a challenge to Office Order No.13/201 1 the petitioners have assailed the promotion of the respondents inter-alia with the plea that the same is not only discriminatory but also is being used as a devise to infringe the fundamental right of promotion of the petitioners and other similarly placed persons. This fact brings it to light that the petitioners in the attire of writ of quo
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warranto want to settle their personal grudge with the respondents on account of their promotion in PG-VI on the basis of MBA degrees. It is well entrenched by now that a writ of quo warranto is not maintainable on behalf of a person whose personal interest is involved. Reliance in this regard is placed on the cases reported as Muhammad Shahid Akram v. Government of the Punjab through Chief Secretary and 3 others (2016 PLC (C.S.) 1335) and Barrister Sardar Muhammad v. Federation of Pakistan and others (2013 PLC (C.S.) 625). In the case of Muhammad Shahid Akram (Supra) this Court while dealing with the issue in hand has inter-alia observed as under: - "9. The next point raised on behalf of the respondents that the petition is fraught with mala fide. Though the proceedings in terms of writ of quo-warranto are not adversarial in nature but these are inquisitorial and anybody can move for the same being the wrestle blower but the blowing of wrestle must be for the benefit of public in general and not for the personal vengeance. It is always up to the judicial conscious of the Court to examine as to whether the same qualifies the yardsticks laid down in Article 199(1)(b)(ii) of the Constitution of the Islamic Republic of Pakistan, 1973 or not. But at the same time grant of relief in quo-warranto is based on principles of equity and thus the conduct and motive of the petitioner can be looked into by the High Court while entertaining the writ of quo-warranto. It is evident from the record that one of the petitioner Faisal Mehmood Khan is an ex- employee of Punjab Emergency Service Rescue 1122 who was proceeded departmentally under the orders of respondent No.3, being the Director General and as a result of the departmental proceedings he was removed from the service vide order dated 23rd of August, 2012. This clearly shows the motivation and mala fide on the part of the said petitioner to file the petition challenging the appointment of respondent No.3. Even the petitioner in the instant petition also approached Human Rights Cell of the Hon'ble Supreme Court of Pakistan Islamabad through an application in the year 2012. The Constitutional jurisdiction cannot be resorted to settle the personal differences between the parties. Thus this Court is inclined to observe that the petition is outcome of the personal vengeance and the same is not maintainable on this score." 10. Learned counsel representing PIA has specifically pleaded that in addition to the Policy relating to placement of the officers having MBA/MPA/MAS degrees in next pay group, a general policy regarding promotion of the admin category is also in vogue. The said assertion of learned counsel for PIA has not been controverted by the learned counsel for the petitioners meaning thereby that two different promotion channels viz. one on the basis of seniority-cum-fitness alongwith minimum qualification and other on the basis of MBA/MPA/MAS degrees is being followed in PIA. This fact also affirms that the competent authority has introduced a reasonable classification amongst the employees who are holding MBA/MPA/MAS degrees and those who do not. It is not the case of the petitioners that any person who is not possessing the above said degrees has been promoted whereas they have been ignored rather their case is that Office Order No.13/201 1 being discriminatory deserves to be set at naught. There is no cavil with the preposition that any act of the executive aiming at discrimination amongst similarly placed persons is amenable to constitutional jurisdiction of this Court, however , when the classification is reasonable the same cannot be challenged in writ petition while pressing into service the principle of discrimination. Somewhat similar question came under discussion before the apex Court of the country in the cases reporte d as Government of the Punjab through Chief Secretary & others v. Ch. Abdul Sattar Hans & 29 others (2015 SCMR 915) and Secretary Economic Affairs Division Islamabad & others v. Anwarul Haq Ahmed and others (2013 SCMR 1687 ). In the case of Government of the Punjab through Chief Secretary & others (supra) the apex court of the country has inter-alia observed as under: - "2.... We have gone through the impugned judgment rendered by the Chairman, Punjab Service Tribunal. He has proceeded on the assumption that Federal Government employees and employee s of the Provincial Government should receive the same emoluments and perquisites if they are performing the same type of duties. This finding is flawed for two reasons. Firstly , we have not found any exercise undertaken by the Tribunal or indeed any other government functionary which would show that the actual work being performed by Senior Auditors of the Audit Department who are employees of the Federal Government is exactly the same as the work being done by the Deputy Accountants employed by the Province. Secondly , it has been held by the Service T ribunal as under:--
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"The appellants possess the similar qualifications, nature of the duties performed are similar, work under the same roof and same officer. Similarly placed are to be treated similarly. No doubt the Provincial Govt. works independently under the Constitution but generally it follows the pay scales sanctioned by the Federal Govt. If two different pay scales are given to the Federal Govt. employees and the Provincial Govt. employees it may amount to extracting labour and exploitation under Article 3 of the Constitution of Islamic Republic of Pakistan. I tend to agree with the judgment of the Lahore High Court 2004 PLC (C.S.) 586 that it is violation of Articles 2-A, 3, 25, 37 and 38 of the Constitution of Islamic Republic of Pakistan, 1973." The above reproduced observation, however, is also flawed because Article 3 of the Constitution has no application in the present case. We may note that the respondents who were appellants before the Service Tribunal were not conscripted in service. They had joined service voluntarily and had accepted the terms and conditions of service. It is evident that they did not compete with the Senior Auditors (BPS-16) of the Federal Government and, therefore, cannot claim that they should be given perks and emoluments as the Senior Auditors of the Federal Government. The question of exploitation would only have arisen if the respondents had been forcibly inducted into compulsory service. This is not the case and it appears that they had happily joined service and are enjoying the benefits of the same. 3. Thirdly , it is important to note that the Provincial Government has to remain within its own budgetary constraints. The finding of the Service Tribunal that the "Punjab Government will have to bear extra financial burden of Rs,46.44 millions, suffice to say that the service structure and financial constraints cannot stand in the way of the Constitution". This is not a tenable position because the amounts paid by way of salaries, are extracted from the pockets of citizens by means of taxation. The Province and its Government can genuinely come to the conclusion that they are not prepared to burden the people of the Province by imposing an extra levy on them. It is not for the Service Tribunal to tell the Government of Punjab to impose additional taxes/levies for the purpose of meeting the command of the Service Tribunal. We are cognizant that there may still be duties imposed on Governments which are absolute and may require allocation or reallocation of financial resources with the object of ensuring performance of such duties. In an appropriate case this can be examined. However , this case does not raise such issues. 4. It is also important to bear in mind that Article 25 of the Constitution is only attracted where there is an apple-to- apple, comparison. In the present case, this is not the position because both sets of individuals i.e. Senior Auditors of the Federal Government (BPS-16) and Dy. Accountants of the Provincial Government (BPS-14) are not equally placed. There is an obvious criterion which differentiates the two categories i.e. they are employed by different employers with different financial and other resources. Thus a very fundamental issue of federalism has arisen in this case. If the reasoning of the Service Tribunal is upheld, tomorrow a Province or the Federation which is more affluent than other Provinces and is prepared to raise the salaries of its employees or as a policy decides that government servants should be paid according to the market salaries it will not be constitutionally permissible for a Court to hold that the Province which is less affluent should pay the same emoluments and provide the same perquisites as has been done by the more affluent Province. The federation and each of the Provinces exercise independent powers as per distribution of powers set out in Chapter 1 of Part V of the Constitution. This indeed is the essence of a truly federal constitutional structure " 11. It is important to observe over here that though Special Incentives for the persons having MBA/MP A/MAS degrees was initially introduced on 04.06.1991 by virtue of Admin Order No.24/1991 which remained under constant amendment in the following years but the petitioners instead of challenging the basic policy and the subsequent amendments made therein only confined their prayer to the extent of Office Order No.13/201 1. If the petitioners were of the view that the incentive on the basis of higher/specific qualification was discriminatory they should have put a challenge to the rest of the Of fice Orders issued in respect of the said Policy . 12. During the course of arguments learned counsel for the petitioners adopted clear cut plea that as the petitioners have put challenge to the policy introduced by the PIA instant petition is maintainable. It is well established by now this Court rarely uses its Constitutional jurisdiction to undo a policy framed by the competent authority . However , in the cases where it offends against any fundamental right or clear cut provision of a legislative piece, this Court
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feels no hesitation to undo the same. The Hon'ble Supreme Court of Pakistan in the case of Asaf Fasihuddin Khan Vardag v. Government of Pakistan and others (2014 SCMR 676) while highlighting the guidelines for interference by the superior courts in the Policy enunciated by the executive has inter-alia observed as under: - "46.*****The interference with the decision making process is warranted where it is vitiated on account of arbitrariness, illegality, irrationality and procedural impropriety or where it is actuated by mala fides......... The reservations or restrictions, if any, in that behalf should not be arbitrary and must be justifiable on the basis of some policy or valid principles, which themselves are reasonable and not discriminatory. It was further observed that any transaction, which is not transparent, and goes against the interest of the general public constitutes violation of Article 9 of the Constitution, which guarantees right to life to all persons." If the case of the petitioners is considered on the touchstone of the afore-quoted judgment there leaves no ambiguity that they do not qualify the test laid down by the Hon'ble Supreme Court of Pakistan to interfere with a policy issued by the competent authority. Even otherwise, it is upto the competent authority to introduce policies for better output from its subordinates with specific reference to the nature and requirements of the duties of a post. There is no denying the fact that PIA is a commercial entity and in this era of competition it cannot compete with other airlines if it does not introduce special incentives for the employees who are equipped with knowledge of business/ public administration as they cannot be equated with the persons having simple graduate/master degrees. 13. To be precise,…
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