The backdrop of this writ petition is that the petitioners being eligible for promotion to the next higher rank were expecting promotions but were superceded and the private respondents were promoted over and above the petitioners.
2. Learned counsel for the petitioners submits that the Selection Board for promotion was not properly constituted as after 10.10.2007 WAPDA remained nowhere in the hierarchy of the petitioners because they had become the employees of the Company so considering the case by WAPDA culminates the impugned selection a nullity in the eye of law being without jurisdiction. Further submits that the impugned minutes of the Selection Board are an outcome of colorable exercise of powers, as the petitioners who were more qualified, more suitable, were singled out whereas the private respondents who could not even compete the petitioners, were benefited and that too on extraneous consideration.
3. On the other hand, learned counsel for WAPDA as well as private respondents submit that no doubt the petitioners had become the employees of Company but even then they are controlled by WAPDA, they are getting salaries from WAPDA, till today no Company has constituted any board and it is a prevalent practice that the promotion cases are always considered by WAPDA and always Chief Executive of the Company participates in the meeting of the Selection Board and particularly in this case the Chief Executive of the Company where the petitioners are performing their duties did participate as is evident from the record. Further submit that the petitioners are stopped to challenge the point of non-competency of the Selection Board due to their own conduct because not only they participated in the impugned promotion process but they also filed representations before the Chairman WAPDA against their super session but surprisingly not even a single word regarding the in-competency of Selection Board was used in the said representations, so they are stopped by law as well as by their conduct. Further submit that representations of the aggrieved persons were minutely considered by the Chairman WAPDA, which is reflected from the bare fact that out of total, five cases were referred back to Selection Board for reconsideration, out of which two pertains to the cases of Chief Engineers and the other three to the cases of Superintending Engineers.
4. Learned counsel for WAPDA has produced the record pertaining to the impugned selection.
5. Arguments heard. Record perused.
6. To resolve this controversy the basic issue is to examine that whether there is any element of non-transparency in the impugned matter or not when the matter relates to the Selection Posts where the seniority cannot be considered a sole criteria for promotion.
7. As held by the Hon'ble Supreme Court of Pakistan in a number of cases that right of judicial scrutiny cannot be taken away from the superior Courts, hence in exercise of jurisdiction under Article 199 of the Constitution of Pakistan, I myself scrutinized the available record and it shall be advantageous to reproduce as under:-- Name Marks Penalty Syed Javed Hussain Hashmi 71.1 Superseded on 28.09.2005.
Superseded on 24.04.2006.
Deferred on 05.10.2006.
Deferred on 21.04.2007.
Superseded on 05.12.2007.
Censure in the year 1987. Censure in the year 2001.
Censure in the year 2006.
Arif Mohy-ud-Din. 73.4 Stoppage of increment for two years in 1987.
Superseded on 05.12.2007.
Bahadar Ali Khan 70.5 Censure.
Superseded on 05.12.2007.
Said Hassan. 71.7 Censure in the year 2002 Superseded on 05.12.2007.
8. There is one petitioner namely Muhammad Ryas Sheikh, whose case is different than the four others, so his case shall be discussed later.
9. So far the private respondents are concerned, their achievements are as follows:-- Name MarksPenalty Noor Ahmed Mengal 79.5 No penalty Javed Pervaiz 82.6 No penalty Nasir Mahmood 75.4 No penalty Raja Abdul Hameed 77 No penalty (even retired)
Pervaiz Masud 79.2 No penalty Mehr Khan 76.6 No penalty Arshad Mahmood 77.4 No penalty Muhammad Dawood 74.5 No penalty Jalal-ud-Din 77.4 No penalty Muhammad Akram 76.7 No penalty Muhammad Aslam Sadiq75.8 No penalty (even retired)
Muhammad Afzal 76.9 No penalty Asghar Ali Niazi 77 No penalty Shahid Hussain 76.8 No penalty Rana Muhammad Ajmal Khan79.6 No penalty Muhammad Arshad75.7 No penalty Hafiz Ashraf Ali 76.7 Censure in 2006-2007 Rasool Khan Mahsood76.7 No penalty Mahmood Shah 78 No penalty Niaz Hussain Naqvi 80.5 No penalty Saleem Akhtar 79 Censure in 2007.
Nazir Ahmed Sheikh 73.8 Censure in 2004.
10.If the entire proceedings, of the Departmental Selection Board are perused and then put in juxta-position with the petitioners' contentions for non-transparency I am afraid that the petitioners' contentions have no force at all.
11. It is the right of an employee that for the purpose of promotion his case be considered alongwith his batch mates' but promotion cannot be asked as a matter of right. In the present case, the minutes of the Selection Board clearly reveal that all eligibles were not only considered as a matter of routine but consideration was fair and just except in one case and that very lapse cannot be considered a mala fide one or with some ulterior motive. In that ease Muhammad Ilyas Sheikh Petitioner No, 3 got 75.4 with one minor penalty of censure, whereas one Muhammad Arshad, Chief Engineer Quetta having 73.8 was promoted and the petitioner-Muhammad Ilyas Sheikh was superseded. In the entire proceedings, this is the only case where the interference on this Court can be justified, otherwise in all other cases the transparency in the process of Selection Board is fully evident.
12.In the attending circumstances, writ petition to the extent of Muhammad Ilyas Sheikh- Petitioner No, 3 is allowed to the extent of conversion of his super session into deferment, declaring the supersession as illegal, thus Respondents No, 1 and 2 are directed to reconsider the promotion case of Muhammad Ilyas Sheikh-Petitioner No, 3 in the next forthcoming meeting of Selection Board fairly, justly and without being influenced from the previous minutes of the Selection Board.
In arriving this conclusion, reference can be made to the law laid down in the cases of Muhammad Zaheer Abbasi vs. Government of Pakistan (2003 PLC (CS) 503) Said alias Khurshid and others vs. Deputy Commissioner, Settlement Department and others (PLD 2003 Lahore 617), Brig. Muhammad Bashir vs. Abdul Karim and others (PLD 2004 SC 271), Muhammad Ashraf vs. Government of Pakistan through Secretary Establishment, Government of Pakistan and another (2007 PLC (CS)
669) and Muhammad Iqbal and others vs. Executive District Officer (Revenue), Lodhran and another (2007 SCMR 682). Writ petition to the extent of Syed Javed Hussain Hashmi, Arif Mohy-ud- Din, Bahadar Ali Khan and Said Hassan (Petitioners No, 1, 2, 4 and 5) is dismissed, being without any force.