' MUHAMMAD FARRUKH IRFAN KHAN, J.--- The petitioner has filed this petition under Article 199 of the Constitution of Islamic Republic of Pakistan impugning the order dated 22-2-2011 issued by the respondent's department whereby the petitioner was declared ineligible for his appointment in Pakistan Agricultural Storage and Services Corporation Ltd. (hereinafter referred to as PASSCO).
2. Succinctly, stated the facts leading to this constitutional petition are that one Ejaz Ahmad Gurmani, late father of the petitioner has been serving as Purchase Officer in the respondents' department, who died during service. The petitioner's mother Rafia Sultana moved respondent No,1 for induction of her son Adnan Ali Gurmani, the petitioner in the respondents' department. The petitioner was interviewed by the respondents but no result was announced. Later on, the impugned letter dated 22-2-2011 was received by the petitioner wherein it was stated that the petitioner is not eligible for appointment in PASSCO under the Office Order dated 6-3-2010 (hereinafter referred to as PASSCO's policy), which does not provide for the employment for the children of the deceased employees, who were working in scales other than BS-1 to 7.
3. The respondents, on the direction of this Court, filed report and parawise comments stating that in view of the Assistance Package for Families of The Government Employees, who died in service dated 13-6-2006 issued by the Government of Pakistan Cabinet Secretariat Establishment Division, Islamabad (hereinafter referred to as Establishment Division's Policy), the employment will be, given to the children of deceased employees' who were working in Grade BS-1 to 15 and that there is no policy for induction of the deceased empolyees' children in PASSCO, who had been working in BS-16. They also took a preliminary objection as to the maintainability of the writ petition.
4. Learned counsel for the petitioner submits that the PASSCO's policy dated 6-3-2010 is not only against law, rules and policy issued by the Government of Pakistan but also ineffective qua the rights of the petitioner; that as per Establishment Division's policy, it has been expressly provided that the deceased employee's son will be accommodated for the post in BS-1 to BS-15 on two years contract without advertisement and there is no restriction on the BS grade in which the employee was serving at the time of death; that the respondents' department in its own capacity had no lawful authority to lay down PASSCO's, policy unless it is approved by the Establishment Division and it has to be in accordance with the Rules of Business. It has been further argued that this writ petition does lie against the respondents' department. Relies on case-law reported as "PLD 2002 Supreme Court 1063", "2006 SCMR 1240 (Supreme Court of Pakistan)" and "2002 PLC (C.S.) 211 (Supreme Court of Pakistan)".
5. Learned counsel for the respondents has raised preliminary objection as to the maintainability of this writ petition stating that the respondents Corporation is a Limited Liability Corporation and is not working as a Government Department.
6. The second contention of the learned counsel for the respondents is that according to the Cabinet Division's policy, employment is restricted to one child of the deceased employee who was working in BS-1 to BS-15 and on that basis the petitioner cannot benefit from the said policy also, as his father was Purchase Officer in BS-16
7. I have heard both the learned counsel for the parties and have gone through the policies of the government referred to hereinbefore in detail with them.
8. The initial objection raised by the learned counsel for the respondents that the writ petition is not maintainable against the respondents, is repelled having regard to the case-law reported as "PLD 2002 SC 1063 titled Jamshed Akhtar v. Pakistan Agricultural Storage and Services Corporation Limited (PASSCO) through Managing Director and another". The relevant para reads as under:- "The PASSCO has been registered under the Companies Act, 1913, as a private limited Company wherein the Federal Government has 25% shares, whereas the remaining shares lie with other nationalized scheduled Banks. However, the company is administratively controlled by the Federal Government as per Entry No,31 in the Rules of Business, therefore, appellant shall be deemed to be a "civil servant" within the meaning of section 2-A of the Act only for the limited purpose to avail the remedy of appeal before the Service Tribunal. Therefore, simply by insertion of section 2-A in the Act the status of the petitioner would not be affected but the terms and conditions of his service would be governed by the Ordinance."
9. So far as the application of Establishment Division's policy is concerned, it will be helpful to reproduce the same, as follows:-- "Government of Pakistan Cabinet Secretariat Establishment Division.
' Islamabad, the June, 13, 2006. OFFICE MEMORANDUM ASSISTANCE PACKAGE FOR FAMILIES OF GOVERNMENT EMPLOYEES WHO DIE IN SERVICE "The undersigned is directed to refer to the subject noted above and to convey the approval of Prime Minister, for the following assistance package for government employees who die in service.
In Service Deaths Security Related Deaths Rs.10 million, according to the following servicesUp to Rs.1.5 million according to following scales BSAmount BS Amount Rs.200,0001-15 Rs.500,000 Rs.300,00016-19 Rs.10,00,000 Rs.400,00020 & aboveRs.15,00,000 Rs.500,000 Rs.800,000 Rs.10,00,000 75% pension to the spouse or eldest son till the youngest child attains the age of 18 years.Normal pension to the spouse, after that for lifeFull pension to the spouse or eldest son till the youngest child attains the age of 18 years.
Normal pension to the spouse after that for life Retention ofgovernment house or payment of rent for hired house for five years or till the age of superannuation which ever is earlier but for a minimum period of 3 yearsRetention of government house or payment of rent for hired house till superannuation or for five years which ever is later Employment for posts in BS-01 to BS-15 on two years contract without advertisementEmployment for posts in BS-01 to BS-15 on two years contract without advertisement.
Free education to one child up to the age of 18 yearsFree education to one child up to the age of 18 years Free health facilities to widow for life and for children up to age of 18 years in government hospitals.Free health facilities to widow for life and for children up to age of 18 years in government hospitals.
Allotment of a plot as per PGEHF policy against 2% quota fixed for deceased employees. The widow would also be eligible to be considered for allotment of plot as per PGEHF policy applicable to serving Federal Government employees. However, allotment of plot against one category would render her ineligible for consideration in second category.Allotment of a plot as per PGEHF policy against 2% quota fixed for deceased employees. The widow would also be eligible to be considered for allotment of plot as per PGEHF policy applicable to serving Federal Government employees.
However, allotments of plot against one category wound render her ineligible for consideration in second category.
In case of advance against salaries sanctioned by the AGPR or the provincial AG office, the unpaid balance to be waived.In case of advance against salaries sanctioned by the AGPR or the provincial AG office, the unpaid balance to be waived.
' All Ministries/Divisions are requested to take further necessary action in that matter accordingly.
Sd/ (Ch. R.A. Zia) Section Officer"
Nowhere in the said policy, restriction has been placed requiring that the benefit of employment would be restricted to a child of only those employees who have died while serving the government in BS-1 to BS-15. Therefore, the contention of the learned counsel for the respondents, in this connection, is entirely misconceived. The requirement of the policy is that addition to the payment of certain health-care, pensionary and monetary benefits etc., employment for posts in BS-01 to BS-15 on two years contract without advertisement would also be awarded. In this view of the matter, I hold that the policy does not exclude the employee's children serving in BS-16 or higher grades from taking the advantage of the said policy.
10. The further contention of the learned counsel for the respondents that they have their own package/policy for the deceased employee's children dated 6-3-2010 is brought to a naught by the argument of the learned counsel for the petitioner that in the absence of approval of the said policy by the Establishment Division as required under Rule 11 of the Rules of Business (Central Government) 1973, the same has no legal sanctity. The rule ibid requires as under:-- "No Division shall without previous consultation with the Establishment Division, issue, or authorize the issue of, any orders, other than orders in pursuance of any general or special delegation made by the Establishment Division,--"
' Despite being given ample opportunity, the learned counsel for the respondents has failed to produce any document or material to show that the respondents have such general or special delegation given by the Establishment Division, to formulate and apply such a policy. The above contention finds support in the case reported as "2006 SCMR 1240 titled Muhammad Ilyas Khokhar and 24 others v. Federation of Pakistan and others", where it was observed by the Apex Court that:- - "It may be noted that as far as the Auditor-General is concerned, he in his capacity has got no lawful authority to lay down the policy unless it is approved by the Establishment Division, in accordance with the Rules of business as well as the relevant law on the subject."
11. It is also to be noted that the compensatory policies are prepared keeping in view the general well being of the employees who are likely to be effected/benefited by the said policies and therefore, are prepared with much thought, thorough inquiry and consultation after taking into account their social, moral and financial implications, as such it is mandatory for the Divisions or the Corporations working under the control of the Federal Government to prepare such policies in consonance with the guidelines of the Federal Government. On the whims of the various regimes, who may govern/administer these Corporations, from time to time, such benefits cannot be taken away or reduced from the minimum threshold level provided by the guiding policy of the Federal Government. As these policies are aimed to provide a stop gap arrangement for the sustainability of the deceased government employees' families, on compassionate grounds, therefore, a Division or a Corporation may give higher or better compensation package than the minimum level provided by the Federal Government. Such policies can never act as a sword to shop off same benefits from the minimum threshold level of the guiding policy. Nevertheless prior consultation with the Establishment Division is mandatory, even in those cases where the Divisions or the Corporations working under the control of the Federal Government wish to give enhanced benefits as compared to those in the policy given by the Establishment Division.
12. As the mandatory provision of consultation with the Establishment Division has not been undertaken and the respondents do not have any general or special delegation given by the Establishment Division to formulate and put in service policy dated 6-3-2010 for PASSCO's employees, therefore, I declare that the said policy dated 6-3-2010, is void ab-initio, bad in law and of no legal effect. The petition in hand is allowed and the respondents' department is directed to process the application of the petitioner strictly in accordance with the policy of the Establishment Division dated 13-6-2006 and decide the same within a period of four weeks.