The petitioner is a citizen of Pakistan and is aggrieved, of the advancement of the time by one hour in the Pakistan standard time (PST) made by the Federal Government vide notification dated 14.4.2009, and also with respect to the load shedding in force in the country.
2. In the petition, the concept, the purpose, the considerations, reasons and the standards of the Daylight Saving Time (DST) in-vogue in other countries of the world, called summer and winter time has been explained; and it is argued by the learned counsel that such reasons are neither available for the instant decision nor have been adhered to in the matter; further reference has been made to Section 2 of the Standard Time (Interpretation of References) Ordinance, 1943 (Ordinance No, VI of 1943) and it is argued that by virtue thereof the standard time of the country has been itself fixed by the statute i.e five and one-half hours plus the Greenwich Mean time. It is thus stated that this change of time brought about through the impugned notification by an executive order, is violative of the said law, as the Government has no authority to amend it, which is the domain of the legislature.
3. As regards the load shedding, the learned counsel though concedes that the country is facing serious energy crises, but his grievance is that the load shedding/management is being done in grave discriminatory manner, as according to the data provided by the respondents along with their comments, it established that some privileged, persons/institutions such as the Presidency, Prime Minister House/Secretariat Governor House, Chief Minister House and Secretariat have been exempted for no rational behind it, whereas the entire nation is facing the misery of the load shedding, which is disproportionate, unscheduled and unannounced, thus the poor people of the country are being put to suffer on account of the load shedding in the simmering heat; he has also made reference to the devastating effect being caused to the industrial and agricultural sector of the country on the above account, especially in terms of financial loss, unemployment, and price hike of the essential commodities of life; he has suggested that the Court should constitute a commission to look into all these aspects and for proposing the load shedding/management, which should be regulated under the orders of the Court.
4. Conversely, learned Deputy Attorney General has explained the concept of Greenwich Mean time; he has pointed out that in the year 1884 International Meridian Conference was held in United State in which 25 countries of the world including the United Kingdom and France participated; a resolution was adopted therein as per which the imaginary line from North to South pool passing through the main observatory at Greenwich, a small town of U.K, was conceived to be a zero meridian; this criteria was held to be the reference for the fixation of standard time for various countries all over the world. It is stated that in the sub-continent at the time when the Ordinance 1943 was enforced (sub-continent was of a Colony of Britain), five and one-half hours plus the Greenwich Mean Time was considered to be the standard time; however, after emergence of Pakistan, it was reduced by the Government to plus 5 hours. Anyhow, now the Federal Government as per Section 2 of the Ordinance IV of 1943 has advanced the time by one hour; for the empowerment of the Govt. in this behalf, he has referred to Section 2 of the Ordinance ibid; Federal Government Rules of Business read with Schedule 2, Item No, 14 whereby, the Interior Division has the authority to fix the PST. Besides, it is submitted that the fixation/advancement of time is the policy decision of the Government, which is based upon rational i.e to save the day light, so as to meet the energy challenges and such policy decision cannot/should not be interfered in the constitutional jurisdiction of this Court. Reference in this behalf has been placed upon the cases reported as The State. Vs. Zia-ur-Rahman and others (PLD 1973 SC 49), Mian Muhammad Nawaz Sharif. Vs. President of Pakistan and others (PLD 1993 SC 473), Fida Hussain. Vs. The Secretary, Kashmir Affairs and Northern Affairs Division, Islamabad and another (PLD 1995 SC 701), Government of Pakistan through Secretary, Ministry of Commerce and another. Vs. Zamir Ahmad Khan (PLD 1975 SC 667), Zamir Ahmad Khan vs. Government of Pakistan and another (1978 SCM R 327), Col. A S. Sangwan vs. Union of India and others (AIR 1981 SC 1545) and Syed Muhammad Arif and others. Vs. University of Balochistan and others (PLD 2006 SC 564).
5. As regards the other limb of the case, about the load shedding, learned DAG has stated that it is a misnomer that on account of the load shedding, the energy is being saved, rather it is being conserved, which means the careful use of the resource through the process of load management, taking into account peak hours of demands which are being clipped and for the purpose of meeting such demand, the load is shifted to the hours when it is more required. In this regard, he has mentioned Graphs placed at pages 42 to 46 with the comments of PEPCO, which reflects that the demand and generation prior to invocation of DST and thereafter. In the graphs at page 42, the peak period, according to the learned DAG is in between 20 and 21 hours and it is submitted that by load management, this peak period is stretched, so that the electricity is provided to all the concerned/necessary consumers. The other graph placed on the record according to the learned DAG shows that by clipping the peak period the object of load management has been successfully achieved. On account of the graph at page 46, which is a comparative table, he has pointed out that during the period i.e 31st May 2008 to 3 June 2008, at 21 hours, the demand was 16,589 MW, which on account of the load management and the day light increase was decreased to 15,606; on 2nd June, 2008 it was 14,164; however, on 3rd of June, 2008 it increased to 16,283 but that was due to the high temperature etc. and if the DST was not in force, the demand for the 3rd June would have been much higher; he has stated that the demand and supply fluctuates on daily basis and is dependent on large number of factors. Thus on the basis of this data and experience of the past years, the PEPCO is stated to have forwarded the summary to the Ministry of Interior, through the Ministry of Water and Power for the advancement of the time for maximum utilization of the day light for the year 2009 as well.
6. As far as the point of discrimination is concerned, it is argued by learned DAG, that no exemption has been granted to any individual person or the private sector, rather it is either the hospitals, the schools or the institutions of immense national importance, which are exempted, the chart in this behalf has been placed on the record. Learned DAG also pointed out that according to the summary showing power position dated 23.3.2009, in the month of March, there is shortfall during the peak hours of-964 to 4908 and from 51 to -319 for April and -1428 for May and for June-1596 to 2652 MW per day. And this was subject to certain conditions, such as full fuel supply to thermal plants, etc.; besides the breakdowns such as that recently 10 units of Mangla Power Stations collapsed on account of a technical fault and only two out of these have so far been restored and brought on line on 10th of this month.
7. Heard. Without going into the question of locus standi of the petitioner; the petitioner while challenging the advancement of time has primarily rested his case by quoting examples from other parts of the world, and urged that such reasons and standards have not been followed in the instant case. I am afraid that such illustration, reasons and consideration are not apt to the present situation faced by our country, which i passing through quite an abnormal, difficult and extraordinary phase, the shortage of energy is quite acute and it is a publicly known fact that the demand and supply/availability are incompatible and there is a vast gap in relation thereto.
Anyhow, the real question involved in the matter is, if the Federal Government has the authority to issue the impugned notification for advancing the time by one hour; in the petition, the petitioner infact has set out a plea that there is no legislation on the subject and through an executive action the Federal Government is not empowered to take the impugned decision/action; it seems that the petitioner was unaware of Ordinance VI of 1943 when the petition was filed, however, on its indication by the respondent's side, it has been now argued that the time can only be fixed by amending the said law. I am afraid, that this contention has no force, the interpretation of the law, which has been placed by the learned counsel for the petitioner, is absolutely unfounded, rather from the language of the section, which is reproduced below: "While an order of the Federal Government is in force fixing Standard Time by reference to Greenwich Mean Time as being in advance of Greenwich Mean Time by an interval other than five and one-half hours, any reference in any enactment in force in [Pakistan] to Standard Time shall, notwithstanding that such reference may define Standard Time as being five and one-half hours in advance of Greenwich Mean Time, be interpreted as a reference to Standard Time as fixed for the time being by the order of the Federal Government."
It is clear that PST shall be fixed by the Federal Government and if it is not so, in that eventuality five and one-half hours added to Greenwich Mean time shall be considered to be PST. In the instant case, on account of the Schedule 2 Item No, 14 of the Federal Government Rules of Business, fixation of time is the subject of the Interior Division and as has been explained above, on account of the summary prepared by the PEPCO routed through the Ministry of Water and Power, the Interior Division with the consultation of the whole Cabinet has advanced the time, therefore, the question of illegality and/or invalidity in this behalf as raised by the learned counsel for the petitioner has no substance and therefore, is repelled.
8. With regard the plea of rationality is concerned, suffice it to say that I am not convinced, if in the peculiar circumstances of the country, the impugned action can be termed as irrational, arbitrary capricious or unfair, besides, the impugned decision is the policy matter of the Government and when no vice of the nature indicated above is established by the petitioner on the record, this Court while exercising its constitutional jurisdiction is not supposed to sit as an Appellate forum over the administrative decision.
9. As regard the plea of load shedding is concerned, suffice it to say that when questioned, learned counsel for the petitioner has admitted that the country is facing with acute energy crises. This is also a publicly known fact. It is also generally known to the whole nation that no new power generation has been established in the country for the last many years and particularly, during the previous regime; the present Government has acquired the legacy of this calamity and seemingly has been endevouring to coup with the crises by co-ordinating the supply and demand through the process of load management, awaiting the installation of new generation projects, and till then obviously if the demand is high and the supply inadequate, that has to be done by bridging up the gap and load sharing. To plan and regulate the load management, which is dependent on so many factors and is a constantly fluctuating phenomena as mentioned, that the job can be accomplished only by the relevant authorities; it is to be decided by such authorities, as to which sector, organization, institution, establishment, area (geographical or industrial, agricultural or otherwise), should be subjected to what quantum of and the schedule of load shedding. And when the above process is not shown to be irrational, unreasonable or tainted with dishonesty of purpose, such action cannot be questioned on the touchstone of Article 25 of the Constitution of Islamic Republic of Pakistan. I have examined the chart/graphs, which have been placed on the record and find that both the decisions including the day light saving and the load management are not arbitrary or whimsical in any manner, rather those have been done under the compelling circumstances of acute energy shortage.
10. Besides, the issue of load shedding has a political fallout and repercussions; the present is a political Government and if the load shedding is being conducted for an extraneous, irrational of arbitrary reasons or a bad policy, it shall vex the public-at-large and no political Government can afford to face the anger of the public now or when it goes for the next election.
11. As regards the question of discrimination, from the data provided by the respondents' side on the record, I am convinced of the plea raised, rather it is only the essential institutions, organizations and the offices, to which the electricity is being continuously supplied and this cannot be termed discriminatory.
12. I am not inclined to constitute any Commission for the purpose of ascertaining, whether the load management is being conducted in fair and reasonable manner, because in my view, it shall be an unnecessary interference in the affairs of the Government, which should be avoided, unless it is absolutely imperative and that too on the touchstone of the settled principles of judicial review of Administrative actions, which prima facie have not been established by the petitioner on the record.
However, before parting, it may be observed that the basic object of the increase in the day time is to curtail the consumption of energy of the electricity in the evening/night, the peak period and to conserve it for other days or the sectors, but it is discouraging and a dismal to note that the Restaurants, Shopping Mall, big plazas, markets, wedding Halls, etc., etc., remain open till late night hours and no check or embargo has been placed upon them either by the Federal Government or the Provincial Government, of which this is the subject, despite the law being there, to compel the implementation of fixing the hours for the opening and closure of these establishments. If the law is duly enforced as presently it is, and/of the respondents along with the documents attached therewith, particularly the graphs and the summary, which contemplates that Pakistan is facing acute energy crises and in order to manage the distribution of the electricity to various sectors, the load shedding/management is being made. I am not convinced that such load shedding/management is based upon any unfair and discriminatory rule. From the list provided to the Court, it is not established that the petitioner or any other citizen is being discriminated, because the feeders, which have been exempted, either are schools, hospitals, or various Govt. institutions, which needs the energy for the dignity of office and nature of the work.