IJAZ-UL-AHSAN, J. --- The petitioner is a Senior Engineer presently working in BPS-18, has been inducted in the said grade on the basis of higher qualification (M.Sc. Engineering) in line with, the applicable service rules. He was initially recruited in the service of WAPDA on 15.5.1993. However, on devolution of WAPDA, he is presently working with Pakistan Electric Power Company (PEPCO). He is a highly qualified Electrical Engineer and acquired a Ph.D. Degree in his field in the year 2005. On the date of his initial recruitment he was governed, by the Pakistan, WAPDA Service of Electrical Engineers Rules, 1965. It appears that on 14.1.1986 Rule 3.1(1) of WAPDA Service of Electrical Engineers Rules, 1965 (hereinafter referred to as the Rules), was amended. Through the said amendment, the method of recruitment was changed to provide that a person who has acquired higher qualification of Ph.D. May be considered, for fresh induction as Superintending Engineer for highly specialized fields like Design etc. It was provided that in addition to a Ph.D.
Degree in engineering the eligible candidates who also have five years experience wlll be inducted in BPS-19.
2. On 29.10.2007 a notification was issued on the basis of a decision taken by the. Authority in its meeting held on 27.9.2007 to the effect that officers who were already inducted in BPS-18 on the basis of higher qualification of M.Sc./Ph.D. Against the prescribed quota wlll not be eligible for induction in BPS-19. Through the scid notification the Authority purportedly amended Rule 31(l) of the Rules. It appears that the petitioner, who had been granted BPS 18 from BPS-17 on the basis of his M.Sc. Qualification, read claimed induction as Director in BPS-19 on the basis of his Ph.D.
Qualification. This matter was initially considered by the Authority but it was decided that the said matter will be taken up after the petitioner's promotion from BPS-17 to BPS-18 had been actualized.
As a part of the progress of giving the petitioner the benefit of acquisition of a Ph.D. Degree to be entitled for induction as a Director in BPS-19, the respondent/PEPCO wrote a letter dated 5.12.2008 to the Director (Administration), Rachna College of Engineering and Technology, Gujranwala, where the petitioner is presently working on deputation as its Principal, requesting him to provide no inquiry/penalty certificate in respect of the petitioner. The letter was endorsed to Director WMC, PEPCO, Director (Confid.) PEPCO and a number of other officials for the purpose of consideration of his case for his induction as Superintending Engineer in BPS-19. On 7.3.2009, a Selection Board considered the working paper for induction of the petitioner as Superintending Engineer on the basis of higher qualification of Ph.D. Plus five years experience. On the said date certain senior Engineers of the Power Wing of PEPCO were approved for induction in BPS-19. However, this benefit was withheld in the case of the petitioner on the basis of para 2 of Notification dated 29.10.2007. It may be useful to reproduce the said paragraph :--- "The officers already inducted in BPS-18 on the basis of higher qualification of M.Sc./Ph.D. Against prescribed quota wlll not be eligible for induction in BPS-19."
The petitioner made a representation to the Managing Director PEPCO asserting that his entitlement to be inducted as Superintending Engineer in BPS-19 on the basis of higher qualification and five years experience in accordance with Rule 3.1(1) of the Rules. However, the representation has not been decided. The petitioner is aggrieved of the denial of his right to be inducted as Superintending Engineer in BPS-19.
3. The learned Counsel for the petitioner submits that the petitioner possesses a degree in M.Sc.
Engineering and has also completed his Ph.D. In Engineering. He is a highly qualified professional with specialization in power design. He has a large number of publications to his credit which have been published in very prestigious journals of various universities internationally. Adds that Pakistan WAPDA Service of Electrical Engineers Rules provide that engineers with qualification of Ph.D. Or M.Sc. (with experience) may be considered for recruitment as Superintending Engineers for research and highly specialized fields like design. This is by way of direct induction. The learned counsel has referred to a decisi on reflected in the minutes of Authority Meet ng held on 12.2.2004, in which it was decided a ollows:--- '
"Authority observed that Dr. Rana Abdul Jabbar, Junior Engineer of GM (Ops) has been approved for promotion as XEN (BPS-18) and that the proposal for induction of the officer as Director BPS-19 may be resubmitted for the consideration of the Authority after the officer's promotion has actualized.
4. Further submits that the petitioner had received M.Sc. Degree and completed his Ph.D. In the year 2003. He therefore, legitimately expected that he wlll first be inducted directly in BPS-18 and thereafter on acquisition of his Ph.D. And in line with the service rules and on the basis of decision of the Authority dated 12.2.2004, he would directly be inducted in BPS-19. The learned counsel has drawn my attention to notification dated 29.10.2007, through which minutes of authority meeting held on 29.9.2007 were circulated. In item No. 2 of said notification, it was stated that the officers already inducted in BPS-18 on the basis of higher qualification of M.Sc./Ph.D. Against prescribed quota would not be eligible for induction in BPS-19. As a result of the said decision, induction of the petitioner in BPS-19 was deferred. A meeting was held for induction of M.Sc./Ph.D. Senior Engineers (non-Generation to Generation) to the rank of Superintending Engineers/Directors (BPS-19) on 7.3.2009. However. The petitioner's case was deferred purportedly on the basis of Notification dated 29.10.2007.
5. The learned counsel for the petitioner argued that the Notification dated 29.10.2007 does not enjoy the status of rules. He points out that the petitioner is admittedly. Working on deputation With PEPCO. Referring to Office Order dated 8.1.2008, the learned counsel submits that the rules governing WAPDA employees are not applicable to the employees of PEPCO, unless the same have been approved/adopted by the. Managing Director, PEPCO. He submits that there is nothing on record to show that M.D., PEPCO has adopted the amendment made in the rules vide Notification dated 29.10.2007, therefore, the petitioner cannot be made subject to the same.
6. The learned counsel for the petitioner further submits that the petitioner's right to be inducted in BPS-19 stood established through the aforesaid decision dated 12.2.2004. The same could not be nullified by giving retrospective effect to notification dated 29.10.2007. Even otherwise, according to the learned counsel the amended rule provides that the benefit of fresh induction cannot be granted twice i.e. Once when the candidate obtained M.Sc. Degree and thereafter when he completes his Ph.D. According to him the amendment does not fulflll the criteria of reasonabllity and is, therefore, liable to be struck down.
7. The learned counsel has finally argued that a simllarly placed employee namely Dr. Aftab was allowed fresh induction in Grade-18 on completion of M.Sc. And in Grade 19 on receiving Ph.D. And submitted that the petitioner is being discriminated against and is entitled 'to be treated at par with Dr. Aftab.
8. The learned counsel for the respondent, on the other hand has raised a preliminary objection regarding maintainabllity of the petition. He relies on 2002 PLC (CS) 442 and PLD 2006 SC 602 to argue that the instant petition is not maintainable, He submits that the petitioner is not governed by Section 2-A of the Civll Servants Act and is therefore not effected by the judgment referred by the Hon'ble Supreme Court of Pakistan in Mubeen-ul-Islam's case. He refers to Section 17(1)(B) to submit that through a deeming provision, all WAPDA employees have been termed as civll servants and have, therefore, been made subject to the jurisdiction of Federal Services Tribunal.
Referring to 1986 SCMR 18, the learned counsel submits that the right of the WAPDA employee to have recourse to the Federal Service Tribunal has been recognized and the jurisdiction of this Court, NIRC and the Labour Court has specifically been barred.
9. The learned counsel further points out that the benefit of direct induction once avalled, cannot be avalled repeatedly. He adds that a second induction being in the nature of extraordinary benefit is barred under the WAPDA Rules.
10. I have heard the learned counsel for the parties at length and have also gone through the record with their assistance.
11. Rule 3.1(1), inter alia, provides:--- (a)
(b)
(i) (ii) (c) The posts of Superintending Engineers shall be filled in by promotion from amongst.
Senior Engineers in BPS-18 who hold a degree in Electrical Engineering or equivalent qualification having:-
(i) (ii) or Engineers with qualification of Ph.D. At M.Sc. (with experience) may be considered for recruitment as Superintending Engineers for research and highly specallised fields like design etc:,
(i) Ph.D. (Engineering) with 5 years experience,
(ii) M.Sc. (Engineering) with 8 years experience.
It is noticed that the Authority in its meeting held on February 12, 2004, decided as follows:--- Induction of Dr. Rana Abdul Jabbar Khan, Junior Engineer, office of GM (Ops) as Director in BPS-19.
26. Authority observed that Dr. Rana Abdul Jabbar, Junior Engineer of GM (Ops) had been approved for promotion as XEN (BPS-18) and that the proposal for induction of the officer as Director BPS-19 may be resubmitted for the consideration of the Authority after the officer's promotion has actualized.
12. It appears that positive steps were taken towards submitting the case of the petitioner with the competent authority and in this regard letter dated 5.12.2008 seeking no inquiry/penalty certificate, referred to above, was issued. In addition, various other steps were taken by the respondents towards the said purpose.
13. The record indicates that through a notification dated 29.10.2007, the following decision was taken and circulated by the Authority:--- Notification Sub:- Induction of M.Sc./Ph.D. Engineers as SE (BPS 19) - Amendment of Authority Decision Minutes of Authority's Meeting September 27 2007 circulated vide WAPDA's No. S/AD(Cord)03003/MTG/1799, dated 8.10.2007 refers.
1.
2. The officers already inducted in BPS-18 on the basis of higher qualification of M.Sc./Ph.D. Against prescribed quota wlll not .Be eligible for induction in BPS-19.
The said notification resulted in denial to the petitioner of his right to be inducted in BPS-19 as Superintending Engineer and is the bone of contention between the parties.
14. The points that need consideration by this Court are as follows:---
(1) Whether the petitioner continues to be governed by the Rules?
(2) Whether notification dated 29.10.2007 has the effect of modifying Rule 3.1(6)?
(3) Whether the decision of the Authority as communicated on 29.10.2007 has retrospective effect?
Before proceeding further in the matter, I would like to deal with a technical objection raised by the learned counsel for the respondent regarding jurisdiction of this Court to entertain and adjudicate upon this matter. He pleads the bar of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. He has submitted that the matter relates to terms and conditions of service, hence the petitioner should have avalled the alternate remedy before an appropriate forum. As far as the question of jurisdiction is concerned, the same has been resolved in the recent Judgment of the Honourable Supreme Court of Pakistan in the ,case of Muhammad Mubeen-ul-Islam v. Federation of Pakistan, through Secretary Ministry of Finance and others (PLD 2006 S.C. 602) [see law declared at sideline "ss" page 689) to the effect that persons working in Government controlled Corporations were not deemed to be holding a post under Section 2A of the Service Tribunal Act, 1973 and were not entitled to seek remedy from the Service Tribunal. Admittedly the petitioner is an employee of a Corporation controlled by the Government and can no longer be deemed to be a civll servant.
Thus the prohibition contained in Article 212(2) of the Constitution of Islamic Republic of Pakistan, 1973, is not attracted to the case of petitioner.
15. Coming to the question of applicabllity of the Rules to the petitioner, it may be pointed out that the petitioner was sent to PEPCO on deputation and has been working with the said organization since long, PEPCO is admittedly a separate entity being a public company with controlling shares held by the Government. In this regard I have come across a recent letter dated 16.6.2010 issued by lnayat Hussain, Chief Engineer (Admn.)
Power, PEPCO in which it is stated as follows:---
(1) Dr. Abdul Jabbar Khan is a PEPCO employee for all intents and purposes being a Power Wing Officer as all the Power Wing Officers except those working in Hydel Generation, on bifurcation of WAPDA into PEPCO and WAPDA, have become employees of PEPCO. Whlle the officer was sent on deputation to Rachna College of Engineering and Technology, Gujranwala he was serving in PEPCO.
16. It appears that vide office order dated 8.1.2008, the following notification was issued:--- OFFICE ORDER It is notified that the services of all employees working in the companies wlll continue to be governed for all intents and purposes by the Rules & Orders in force in WAPDA. This arrangement shall be valid untll such time companies notify their on Service Rules and Regulations.
Any amendment in WAPDA rules/instructions i.e.f. 20.10.2007 wlll accordingly be adopted after endorsement/approval of MD PEPCO.
This issues with the approval of Managing Director PEPCO.
The above notification clearly indicates that services of all employees working with PEPCO are governed by the, rules and orders in force in WAPDA. It can, therefore, safely be assumed that the petitioner is governed by the provisions of Rule 3.1(1). The important question is whether the notification dated 29.10.2007 has the effect of modifying Rule 3.1(1) to the effect that officers already inducted in BPS-18 on the basis of higher qualification of M.Sc./Ph.D. Against prescribed quota wlll no longer be eligible for induction in BPS-19. The answer to the question lies in the second paragraph of the aforesaid office order dated 8.1.2008 in which it has categorically been stated that any amendment in WAPDA Rules/Instructions with effect from 20.10.2007 wlll be adopted after endorsement/approval of M.D. PEPCO. Consequently, the amendment in Rule 3.1(1) sought to be made vide Notification dated 29.10.2007 having been made after 20.10.2007 requires the endorsement/approval of M.D. PEPCO to be applicable to PEPCO. Nothing has been brought on record nor has it been alleged that endorsement/approval of the Notification dated 29.10.2007 was granted by M.D. PEPCO. The net effect of this is that as far as the petitioner is concerned, the continues to be governed by Rule 3.1(i) (admittedly adopted and applicable to PEPCO) in its unamended form.
17. There is yet another angle from which this matter can be looked at. It is an admitted position that the Authority had considered the case of the petitioner in 2004 and directed that the case of his induction as Director (BPS-19) may be resubmitted for consideration of the Authority after the officer's promotion has been actualized. Further, positive steps were taken by the respondents towards completing the process of actualization and preparing his dossier for submission before the Authority. In other words, the case for his induction under the Rules applicable to him was already in the process when the Notification dated 29.10.2007 was issued. I am, therefore, of the view that since the notification dated 29.10.2007 could not be given retrospective effect, the respondents were estopped from depriving the petitioner from a right that had already accrued in iris favour by virtue of acquisition of a Ph.D. Degree and a legitimate expectation arising therefrom that he would be inducted to a higher grade on account of his acquisition of a Ph.D. Degree. It may be pointed out that the petitioner also meetings the five year service requirement envisaged under the rules.
18. The petitioner is a highly qualified and accomplished engineer, has received his Ph.D. Degree from RMIT University Australia and has got a large number of research papers published in International Journals relating to Electrical Engineering. Such individuals, in my opinion, need to be encouraged and recognized so that they may concentrate their talents, abllities and energies towards the service of their Country. Unfair treatment, entanglement in bureaucratic quibbles and technicalities, denial of lawful rights and unfair and unjust treatment is pushing the brightest of our minds into dead ends and forcing our best and brightest to leave the Country and go elsewhere in search of recognition and adequate compensation/rewards commensurate with their education, abllity and talent. This trend needs to be eradicated, otherwise we wlll be left with mere pen rushers mired in the abyss of mediocrity who wlll neither have the talent nor the vision, inclination and abllity to do something for their Country.
19. For the aforesaid reasons, I allow this petition in the following terms:---
(a) It is held that the notification dated 29.10.2007 is not applicable to the case of the petitioner.
(b) Respondent No. 1 is directed to decide the representation of the petitioner within thirty days from the date of receipt of certified copy of this order, in the light of findings given in this judgment.
There shall be no order as to costs. .