JUDGMENT: JAVED IQBAL, J.--- The above captioned petitions for leave to appeal have been preferred on behalf of petitioners against the judgment, dated 30-1-2004 whereby the appeals preferred under section 4 read with section 2-A of the Civil Servants Act of 1973, assailing the order of Chief Pilot Planning, Scheduling and Coordination (Respondent No,4), dated 3-11-2003 have been dismissed.
2. Precisely stated the case of the petitioners is" that the Training Policy enumerated in the Flight Operation Manual has been violated and the selection of training in U.S.A. Qua Boeing-777 has been made on extraneous consideration by ignoring the petitioners without any lawful justification which resulted in serious miscarriage of justice-It is also the case of petitioners that they were finally selected to undergo the above mentioned training but dropped for the reasons best known to the concerned functionaries of P.I.A.C. The order, dated 3-11-2003 passed by P.I.A.C. Whereby the petitioners were directed to report for attending Airbus 310 Technical Course to be commenced on 3-11-2003 was challenged by the petitioners at first instance departmentally and subsequently, the learned Federal Service Tribunal was approached by means of appeals which were rejected.
3. Mr. Raja Qureshi, learned counsel for the petitioners urged with vehemence that the provisions as contained in the Administrative Order No,17 of 2001 (Cockpit Crew Service Rules) dated 17-7-2001 were misinterpreted and. Misconstrued by the learned Federal Service Tribunal who erred in relying upon Administrative Order No,38/2003 having no nexus with the real controversy. It is contended emphatically that the petitioners who were selected to undergo training on Boeing-777 were discriminated and ignored without any cause and the private respondents who were admittedly juniors were sent for training on Boeing-777 in U.S.A. It is contended that the Training Policy formulated by the P.I.A.C. Itself has been violated and the provisions as contained in rule 6(1) of the Flight Operation Manual were ignored and on the contrary order, dated 29-10-2003 was passed which was not inconsonance with the Training Policy and the petitioners were asked to attend a technical course pertaining to Airbus-310 which was to commence w,e,f, 3-10-2003 at the P.I.A.
Training Centre. It is argued that the order, dated 29-10-2003 was in contravention of the provisions, as contained in rule 6(1) of the Flight Operation Manual, as 14 days prior notice was never given to the petitioners with ulterior motive and mala fide intention in order to deprive them from the training opportunity on Boeing-777 for which their selection was made. According to Mr. Raja Qureshi, learned Advocate Supreme Court, it was a manoeuvred and calculated move to accommodate a few blue-eyed pilots which were admittedly juniors to the petitioners and resultantly not only heavy financial loss was 'caused to them but their professional prestige and professional status was also damaged. It is contended with vehemence that the learned Federal Service Tribunal has erred by ignoring the fact that Boeing-777 is superior equipment as compared to that of. Airbus-310 in the international market. It is pointed out that Boeing-777 with superior equipment has no comparison whatsoever with Airbus-310 and P.I.A.C. Has put both the Aircrafts on equal footings before the learned Service Tribunal with malice and mala fides in order to deprive the petitioners from their legitimate rights to undergo training on Boeing-777. It is argued that the petitioners were intimated about their selection for the training abroad on Boeing-777 by the Chief Pilot Planning (Respondent No,4) by means of letter, dated 1-9-2003 and directed them to complete all the necessary formalities to reach Seattle U.S.A. For training commencing on 14-11- 2003, pursuant whereof the petitioners completed all the formalities for obtaining Visa and reserved their passage. It is contended that the selection of Mr. Khalid Azmat, Mr. Muhammad Sohail, Mr. A. Nadeem and Mr. Inamullah Jan, First Officers, Flight Operations, P.I.A. Karachi is based on whims and capriciousness of the P.I.A.C. Which has made the chance of promotion of the petitioners very remote and bleak. It is urged with vehemence that no discretion whatsoever was vested in P.I.A.C. To violate the Training Policy and select the junior pilots in an arbitrary and whimsical manner.
4. Mr. Sajid Zahid, learned Advocate Supreme Court has entered appearance on behalf of P.I.A.C.
And strenuously opposed the view point as canvassed at bar by Mr. Raja Qureshi, learned Advocate Supreme Court for the petitioners and supported the judgment impugned for the reasons enumerated therein with further submission that P.I.A.C. Had strictly followed the provisions of the Administrative Manual as enumerated in the admin. Order bearing No,38 of 2003, dated 12- 8-2003 while nominating the private respondents. It is argued that the Admin. Order No,38/03, dated 12-8-2003 was never challenged by the petitioners at opportune moment which cannot be done now. In order to substantiate his view point, he also referred the Flow Chart of Career of Pilots concerning the promotion of pilots. It is also denied that the petitioners were ever nominated for Boeing-777 training in U.S.A. And according to him it was only a "probable selection" which does not create any legal right in favor of the petitioners, hence, the question of its infringement does not arise. It is mentioned that four senior most Captains were nominated finally for the training on Boeing-777 at Seattle, U.S.A. Vide letter No, CPPS 7 C/35, dated 4-11-2003. It is also contended that appeals preferred on behalf of the petitioners before learned Federal Service Tribunal were not maintainable as no choice can be conferred upon any of the pilots to fly the plane of his own choice, which would create a havoc in the P.I.A.C. And would ultimately prove detrimental to its interest being commercial organization. It is argued that on various occasions some of the petitioners have also manoeuvred to get themselves promoted to Airbus-310 in spite of the fact that Boeing-777 was to be inducted into the fleet of P.I.A.C. And therefore, at this juncture they cannot be allowed to change their stance without any legal or moral justification which is lacking. It is pressed time and again that they have moved an application to join Airbus-310 which is an admitted feature of the case. It is also clarified that they had already completed their training on Airbus-310 and no bond whatsoever was signed by them to undergo training on Boeing-777. It is also pointed out that vacancies occurred at first instance for Airbus-310 and therefore, they were adjusted which would not affect their seniority or financial position.
5. Mrs. Naheeda Mehboob Elahi, Standing Counsel appeared on behalf of the Attorney General for Pakistan and adopted the argument of Mr. Sajid Zahid, learned Senior Advocate Supreme Court who entered appearance on behalf of P.I.A.C. And supported the judgment impugned for the reasons enumerated therein.
6. After having gone through the entire record, we are of the view that the petitioners could not have been superseded on superfluous grounds. It is an admitted feature of the case that as per list of Flight Crews defined in Admin Order No, 38/2003 dated 12-8-2003 for DOJ Clearance for American visa for probable selection for Boeing-777 Transition Training, the petitioners stood at serial No,1-4, in accordance with their seniority which was never disputed. The list of. Flight Crews is reproduced hereinbelow to appreciate seniority position of the petitioners:--- "FLIGHT OPERATIONS DEPARTMENT TRANING DIVISION DIRECTOR FLIGHT OPERATIONS List of flight crew defined in Admin Order No,38/2003 dated August 12, 2003, for DOJ clearance for American visa for probable selection for B777 Transition Training.
S. No.Captains P. No. S.No.First officers P.No.
1. Ilyas 29586 1. Abid Hassan 51734
2. Imran 31120 2. Ikramullah 51749
3. Sarwal 31125 3. Sated A 51743
4. Shahid Hussain 31122 4. Sohail Ahmed 51758
5. Kazmi 32848 5. Muhammad Sohail 5787
6. Tariq Majeed 32872 6. IU Jan 51775
7. Nasimullah 32870 7. A Nadeem 51782
8. Yousuf Zai 32874 8. Khalid Azmat 51737
9. Adil 32877 9. Sheikh Hasan 51747 10.Shuja Naqvi 32915 10. Najeeb Amin 51735 11.Aijaz Haroon 35207 11. Arshad Mehmood 51792 12.Omer Ishak 35208 12. Rao Taimore 51768 13.Amir Kamal 35212 13. Farrukh Wasim 51793 14.Kamran 35213 14. A.U. Asim 51790 15.Naveed Aziz 35214 15. S. Jamal 51769 16.Gobi 35218 16. Zahid 51789 17.Gardezi 36177 17. Iffan 51776 18.Imran Usman 36176 18. Aman 51754 19.Badar 36172 19. Khurram Butt 51751 20.Humayun 36167 20. Tariq Javed 51773 21.Imran Sherazi 36168 21. Abrar Hasan 151739 22.Basharat Ali 36175 22. Omer Akhtar 51748 23.Pervez Jang 37498 23. Babar Zaheer 51784 24.Salman 37500 24. Rehan Ashraf 51772 25.Ahmer Malik 37502 25. Tahii Hasan 51759 26.Akhtar 37506 26. Shehzad Ali 51744 27.Hamid Afzal 37507 27. Khalid 51732 28.Niaz 37511 28. Naveed Akhtar 51738 29. Farrukh Mirza 51766 30. M. Nasir 51763 31. Faisal 51740 32. Khurram Mughal 51753 33. Irfan Habib 51736 34. M. Issa 52347 Capt. Basharat Ali Chaudhry, Chief Pilot Planning Scheduling & Coordination
7. The letter dated 1-9-2003 addressed by the Chief Pilot Planning/Scheduling and Co-ordination would show that the petitioners were asked to complete the following formalities:- "(i) US Visa forms (duly filled by the applicant)
(ii) Please bring two photographs 2 x 2 inches white background (as per NIV photo requirement form attached).
(iii) Submission of Current/all old Passports."
8. The letter, dated 23-9-2003 makes it abundant clear that selection of the petitioners was made for training on Boeing-777 which runs as follows:--- "BATCH-701 Dated 23-9-2003 FO Abid Hassan P-51734 Understand you have already been interviewed at US Embassy, Islamabad on your previous interview date. Please advise the status of US visas.
(a) BIB2 (Issue Date.............. Expiry Date.........
(b) CID (Issue date ................ Expiry Date...........
(c) Token Issued
(d) Admin Process Letter issued on 25-3-2003
(e) Telephone No, 021-5849829/5340485/0333-2116221 Please confirm at your earliest to Manager Passport/Visa Section, Karachi.
(Sd.)
Capt. Syed Sarwat Hussain)
Chief Pilot-B-777 Flight Operations-Karachi."
9. A bare perusal of the said letter would reveal that it was a final selection and the petitioners were also interviewed by US Embassy and thus it cannot be termed as "probable selection". Nothing adverse has come on record from any quarter inferring that something went wrong somewhere which resulted in supersession of the petitioners.
10. The contention as raised on behalf of the petitioners by Mr. Raja Qureshi, learned Advocate Supreme Court is not without substance that the seniority list dated 24-10-2003 is indicative of the fact that the petitioners being senior most First Officers were selected for training on Boeing-777 and the "learned Federal Service Tribunal has ignored the aspect that fourteen (14) days mandatory notice for training would not be deemed to have been complied with by first issuing letter, dated 29-10-2003 directing the petitioner to join Airbus-310 training w,e,f, 3-11-2003 and upon being informed of the mandatory provision, of the Training Policy, the management had re-issued a letter, dated 4-11-2003 directing the petitioner to join training on 13-11-2003 deeming the notice to operate w,e,f, 29-10-2003 retrospectively being a period when the petitioner was out of the seniority slot for training of Airbus-310 and thus received legitimate expectancy for training on Boeing-777 and had already been removed from flying duties and was directed to undergo training."
11. In our considered view, the learned Federal Service Tribunal erred while holding that the petitioners have failed to submit any order from the P.I.A.C. Showing that they were finally selected for training on Boeing-777 in U.S.A. For the simple reason that the letters dated 15-8-2003, 2-9-2003 and 23-9-2003 would show that it was not a "probable selection" but all the necessary formalities were completed. A There is no doubt in our mind that the petitioners were selected for Boeing-777, relevant literature qua the training was made available to the petitioners, necessary formalities were completed and the clearance of the U.S.A. Department of Justice was obtained and besides that reservations were also made to send the petitioners to U.S.A. For training on Boeing-777.
12. It further transpired from scrutiny of the record that P.I.A.C. Has taken contradictory pleas before various forums such as the High Court of Sindh, the Federal Service Tribunal, the National Assembly of Pakistan and before this Court. It is not possible to reconcile such contradictory statements which depicts unfair practice, lack of honesty and straightforwardness. It would not be out of place to mention here that P.I.A.C. Itself has introduced the Training Policy in the Flight Operation Manual which provides that guideline for future training course of the Flight Operation Department such as Code No,6 with the nomenclature of Transition Training Rule 6(1) titled as General read with Flight Operation Manual, was implemented in August, 2003 and acted upon in letter and spirit. What necessitated deviation from the well entrenched Training Policy formulated by the P.I.A.C. Itself in the case of petitioners is not understandable? The letter dated 29-10-2003 whereby the petitioners were asked to undertake training of Airbus-310 Technical Course is not inconsonance with the Training Policy particularly, the provisions as enumerated in sub-rule 1 of rule 6 of the Flight Operation Manual Transition Training General. The above mentioned provisions are mandatory in nature and have binding effect which could not be altered, amended, changed or violated by the P.I.A.C. Without a reasonable justification which is lacking this case. No discretion has been conferred upon it by any statute, enactment, by law or any directive having legal sanctity to violate the Rules, Regulation and Policy to accommodate someone who otherwise could not have been accommodated. Had the said departure from the Training Policy been in the interest of PI A.C., the position would have been different. For the sake of argument, if it is considered that it is a choice or discretion of the P.I.A.C. To choose the pilot of its own choice for training of Boeing-777, but such discretion cannot be exercised in a whimsical and arbitrary manner as has been done by the P.I.A.C. We are conscious of the fact that "every exercise of discretion is not an act of discrimination.
It becomes an act of discrimination only when it is improper or capricious exercise or abuse of discretionary authority, and the person against whom that discretion is exercised faces certain appreciable disadvantages which he would not have faced otherwise. Where the discrimination is not based on any rational ground bearing upon the subject dealt with, the law will offend against the principle of equality and will be void. In this regard we are fortified by the dictum laid down in 1992 CLC 219 (DB) + AIR 1965 All 275 + AIR 1952 SC 75." Allah Yar v. General Manager, Railways Headquarters 2001 SCM R 256. Admittedly the petitioners were senior most and nothing adverse has come on record against them and in such an eventuality, how they could have been superseded. There appears to be no plausible justification or explanation for it.
13. Mr. A.K. Brohi, in his treatise Fundamental Law of Pakistan while elaborating his notion of inequality aptly remarked that "there are, let us note, various kinds of inequalities; inequality emanating, for example, from economic disequilibrium observable in our society, and this inequality in its turn leads up to the denial of equal opportunity for all. Then there is what might be called, political inequality, which leads up to disenfranchisement of a vast section of the people of a given country and thus inevitably involves the deprivation of the right of the people to participate in the political life of the State. The ideal of political equality can only be realized by universal suffrage and free participation in the representative institutions by recourse to which modern democratic States are functioning. Similarly, there is such a thing as social inequality; the growth of humanism has brought about the liberation of people from the thralldom of slavery and the evil of un touch ability and such other social abominable practices which deprive people of an honorable place as free citizens in a democratic society. To this list of inequalities might be added the inequality which results from racial pride; this, again, finds its- culmination in the dogma that only those who have blue blood in their veins are capable of taking part in the political, civic and economic activities of the State. Historically considered, the notion of human equality has arisen as a protest against the practice of magnifying artificial distinctions between man and man based on considerations like wealth, purity of blood and religious superstition and making these as criteria for determining the status of each individual in the total legal order. If the judicial administrative organs of the State while applying the law were to discriminate between man and man and exercise what may be characterized as arbitrary authority in singling out some persons for discriminatory treatment they would be acting counter to the ideal of equality before law which has been proclaimed by the framers of the Constitution in the first part of the clause of Article 5--- an Article which declares that all citizens are equal before law. It would thus be noticed that notion of human equality had emerged as a reaction to abhorring artificial distinctions between man and man or between one class of men and another class based on consideration, inter alia, of personal likes and dislikes under the garb of discretion.
14. In his Treatise 'Discretionary Powerswhich is Legal Study of Official Discretion D.J. Galligan has acknowledged that "the general principles that discretionary decisions should be made according to rational reasons means; (a) that there be findings of primary facts based on good evidence, and (b) that decisions about the facts be made for reasons which serve the purposes of the statute in an intelligible and reasonable manner". According to the celeberated author, the actions which do not meet these threshold requirements are arbitrary, and may be considered a misuse of powers. (Emphasis provided).
15. In Amanullah Khan and others v. The Federal Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others PLD 1990 SC 1092 Shafiur Rahman, J. Who was sitting in the Full Bench has very ably propounded by know well-known doctrine of Structuring the discretionin the report at page 1147 "Wherever wide-worded powers conferring discretion exist, there remains always the need to structure the discretion and it has been pointed out in the Administrative Law Text by Kenneth Clup Davis (page 94) that the structuring of discretion only means regularizing it, organizing it, producing order in it so that decision will achieve the high quality of justice. The seven instruments that are most useful in the structuring of discretionary power are open plans, open policy statements, open rules, open findings, open reasons, open precedents and fair informal procedure (Emphasis provided). Somehow, in our context, the wide-worded conferment of discretionary powers or reservation of discretion, without framing rules to regulate its exercise, has been taken to be an enhancement of the power and it gives that impression in the first instance but where the authorities fail to rationalize it and regulate it by Rules, or policy statements or precedents, the Courts have to intervene more often than is necessary, apart from the exercise of such power appearing arbitrary and capricious at times." Government of N.-W.F.P. v. Mejee Flour and General Mills (Pvt.) Ltd. 1997 SCM R 1804.
16. The judicial consensus seems to be that the functionaries of any organization or establishment cannot be allowed to exercise discretion at their whims, sweet-will or in an arbitrary manner rather they are bound to act fairly, evenly and justly. Aman Ullah Khan v. Federal Government of Pakistan PLD 1990 SC 1092, Chairman R.T.A. v. Pakistan Mutual Insurance Company PLD 1991 SC 14, Pacific Multinational (Pvt.) Ltd. v. I.G. Of Police PLD 1992 Kar. 283, Presson Manufacturing Ltd. v. Secretary, Ministry of Petroleum and Natural Resources 1995 M LD 15, Ramama v. I.A. Authority of India AIR 1979 SC 1628, Dwarka Nath Prasad Atal v. Ram Rati Devi AIR 1980 SC1992, Ram and Shyam Company v.
State of Haryana AIR 1985 SC 1147 and Nizamuddin v. Civil Aviation Authority 1999 SCM R 467.
17. The orders, dated 29-10-2003 and 3-11-2003 when examined on the touchstone of criterion as mentioned hereinabove, the only irrefutable conclusion would be that the case in hand provides ample justification for interference in the illegality and procedural improbability bordering on the irrationality in a final action which is justifiable and can be examined to see as to whether the selection for training was made in a transparent and fair manner or otherwise?
18. We are in agreement with Mr. Raja Qureshi, learned Advocate Supreme Court on behalf of petitioners that the impugned order is designed to deprive the, petitioners of their valuable vested and substantive right to proceed on training on Boeing-777 which is professionally higher in category with better technology than Aribus-310 which would certainly result in heavy professional and financial loss to the petitioners. By now 27 Pilots out of 34 have been sent for training on Boeing-777 in U.S.A. In accordance with the Training Policy and seniority and the petitioners cannot be deprived from such training without any reason which would have substantial bearing on their future prospects. We may point out here that there is need to rescind all discretionary powers in the hands of those enjoying authority in P.I.A.C. Which should be exercised in accordance with Rules and Regulations which have no element of arbitrariness in them. In future such selection must be fair, transparent and in accordance with the Training Policy and not behind screen of secrecy and doubts which would be in the interest of P.I.A.C. Itself as whimsical and arbitrary action create acute feeling of dismay, despair, despondency and deprivation which could affect the performance of P.I.A.C. In our considered view such selection must be made on merit/fitness and seniority.
19. These are the reasons for our short order, dated 14-9-2004 which is reproduced herein below for ready reference:--- "For the reasons to be recorded later on these petitions are converted into appeals and the same are allowed. The impugned judgment, dated 30-1-2004 of Federal Service Tribunal, Islamabad, is set aside and these appeals are decided in the following term:--- "The respondents Nos. 1-5 shall consider the nomination of appellants for training on Boeing-777 at U.S.A. In the next training course there."
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