HAFIZ TARIQ NASIM, J. - The backdrop of this writ petition is that the petitioners being eligible for promotion to. The next higher rank were expecting promotions but were superseded and the private* respondents were promoted over and above the petitioners.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 colourable 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 estopped to challenge the point of non-competency of the Selection Board due to their on conduct because not only they participated in the impugned promotion process but they also filed representations before the Chairman WAPDA against their supersession but surprisingly not even a single word regarding the incompetency of Selection Board was used in the said representations, so they are estopped 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 re-consideration out of which two pertains to the. Cases of Chief Engineers anti the other three to the cases of Superintending Engineers.
4. Learned counsel for WAPDA has produced the record pertaining to the impugned election.
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. 71,1 Superseded on Hashmi. ' 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-Dim 73.4 Stoppage of increment for two years in . 1987.
Superseded on 5.12.2007.
Bahadar Ali Khan 70.5 Censure. Superseded on 5 12.2007.
Said Hassan 71.7 Censure in the year 2002.
Superseded on 5.12.2007.
8. There is one petitioner namely Muhammad Ilyas 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 Marks Penalty 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 75.8 No penalty (even retired)
Sadiq Muhammad Afzal 76.9. No penalty Asghar Ali Niazi 77 No penalty Shahid Hussain 76.8 No penalty Rana Muhammad 79.6 No penalty Amal Khan Muhammad Arshad 75:7 No penalty Hafiz Ashraf Ali 76.7 Censure in 2006-2007 Rasool Khan 76.7 No penalty Mahsood Mahmood Shah 78 No penalty Niaz Hussain Naqvi 80.5 No penalty % Saleem Akhtar 79 Censure in 2007 Nazir Ahmed 73.8 Censure in 2004.
Sheikh
10. If the entire proceedings of the Departmental Selection Board are. Perused and then put in juxtaposition 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 case 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 .Of this Court can be justified, otherwise in all other cases the transparency in the process of Selection Board is full 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 supersession into deferment, declaring the supersession as illegal, thus respondents Nos. 1 and 2 are directed to re-consider 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 Mahammad Zaheer Abbasi v. Government of Pakistan (2003 PLC (CS) 503), Said alias Khurshid and others v.
Deputy Commissioner, Settlement. Department and others (PLD 2003 Lahore 617), Brig. Muhammad Bashir v. Abdul Karim and others (PLD 2004 SC 271), Muhammad Ashraf v. Government of Pakistan through Secretary Establishment, Government oh Pakistan and another (2007 PLC (CS) 669) and Muhammad Iqbal and others v. Executive District Officer (Revenue), Ladhran and another (20.07 SGMR 682). Writ petition to the extent of Syed Javed Hussain Hashmi, Arif Mohy-ud-Din, Bahadar Ali Khan and Said Hussain (petitioners No. 1, 2, 4 and 5) is dismissed, being without any force.