IJAZ AHMAD CHAUDHRY, C.J.--- Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner has sought setting aside of the order dated 29-1-2010 whereby fixation of pay of the petitioner according to BS-8 has been declined for the reason that he has not fulfilled the requisite condition of completion of LM-1 course within his probation period.
2. Precisely the facts relevant for the purpose of disposal of this writ petition are that the petitioner joined the respondents' department as Lineman (BS-4) in C.T.R. After fulfilling and accepting the terms and conditions mentioned in the letter of offer for appointment. Dated 27-6-1995 and the subsequent appointment letter dated 12-7-1995. He started rendering his services for the department and after one year he was transferred by respondent No,2 from Kasur to Lahore on his own request vide letter No, Staff (I).8-6/96(Pt), dated 15-6-1996. Though as per terms of the offer letter the petitioner had to complete LM-1 Course during his probation period yet respondent No, 2 was duty bound to nominate him for the said post in absence of such nomination it was not A possible for the petitioner to complete the said course on his own. The petitioner was nominated for the said course by respondent No,2 in the year 2005. On successful completion of the said course, the petitioner was duly promoted from BS-4 to BS-8 by respondent No,2 w,e,f, 6-7-2007.
Respondent No,2 vide letter dated 31-12-2009 sent the service book of the petitioner for fixation of pay according to the new grade (BS-8) to respondent No,1 but he raised an objection to the effect that the service of the petitioner would be considered regular from the date of completion of LM-1 as per the condition of his offer of appointment letter No,RT/E-141, dated 27-6-1995 and turned down the request of respondent No,2 for fixation of the pay of the petitioner according to BS-8, hence the instant writ petition.
3. The learned counsel for the petitioner has contended the objection of respondent No, 1 that the services of the petitioner were to be considered as a regular upon completion of LM-1 course (three months) within the probation period is contradictory to the terms and conditions of the offer letter wherein the petitioner had specifically been directed to submit his consent within a fortnight. The true spirit of insertion of sub-clause (vi) and clause 4 in the offer letter is that the employment of the petitioner was subject to clearance of LM-1 course which respondent No, 1 could not properly appreciate. It was the duty of Divisional Engineer Telegraphs, Kasur to depute the petitioner for the above said training course and he could not himself undertake the required course. Even otherwise LM-1 course was meant for illiterate persons whereas the petitioner is an educated person. There were certain conditions in the offer letter which were observed by the petitioner after joining the service, thus, the act of respondent No, 1 being illegal and unlawful be set aside.
4. On the other hand the learned Deputy Attorney-General assisted by the learned counsel for respondent No,1 has opposed the petition on the grounds that the writ petition is hit by Article 199(5) of the Constitution of Islamic Republic of Pakistan, 1973 because the respondents are not public functionaries; hence, the same is not maintainable. The petitioner has to invoke the jurisdiction of Labour Court rather than invoking the door of this Hon'ble Court under Article 199 of the Constitution. It was mandatory upon the petitioner to fulfil the conditions mentioned in the offer letter so as to qualify for service of his pay. As per policy and rules of the respondents, up- gradation to BS-8 Pension Scheme was to be done only after completion of 12 years of regular service in the relevant cadre but the length of service of the petitioner was not reached up to the requisite duration. According to clause 8 of the offer letter the service of the petitioner will be dispensed with if any discrepancy in documents/qualifications is observed at any stage. Here in this case the petitioner has opted to join course of LM-1 after a lapse of five long years instead of tendering his willingness within a fortnight. This petition is not maintainable, hence the same be dismissed.
5. After hearing the learned counsel for the parties and going through the documents appended with this petition as well as the reply submitted by the respondents it has been observed by me that one of the terms of letter dated 27-6-1995, offering appointment to the petitioner as Lineman (BPS-4) in C.T.R. Against Centralized System of Periodical Recruitment under the Federal Government (Phase-II), was successful completion of L.M-1 Course (three months duration) from the Divisional Telecom Training Center. The petitioner accepted the offer of appointment and joined the aforesaid post where after the aforesaid condition was to be fulfilled by the petitioner on his nomination by the department for the said course. It was not within the domain and control of the petitioner to join the said course of his own. The department, with a view to prove bona fide on their part, failed to show anything to the effect that the petitioner was ordered/nominated to undertake the aforesaid training course but he refused to do so. In the absence of such an order the department cannot take a stand that the petitioner did not fulfill the terms and conditions of the letter of offer of appointment. In such circumstances the impugned order in the shape of an objection raised at the time of, fixation of pay of the petitioner in BS-8 is illegal.
6. The department in his comments admitted that the petitioner had undertaken the required course in the year 2000 and the impugned order raising the objection that service will be considered as regular on completion of LM-1 course is ill-founded and could not have been raised in the year 2010 as at that time the petitioner had completed the required course. Even otherwise it seems that under the garb of fixation of petitioner's salary in BS-8 after completion of above- mentioned course respondent No,1 tried to strike a staggering cut on the service of the petitioner because respondent No,1 was not obliged to deal with the matter of service but he was only required to fix pay of the petitioner according to the request made by respondent No, 1.
7. As far as the objection of the learned counsel for the respondents regarding maintainability of the writ petition is concerned, PTCL is a statutory body being the creation of Pakistan Telecommunication Act, 1991, this Court has ample powers to exercise its constitutional jurisdiction in the matters where there is patent illegality or material irregularity committed by the functionaries of the Corporation in order to do justice for providing requisite relief to the aggrieved persons. Reliance in this regard is placed upon the case reported as Executive Council Allama Iqbal Open University Islamabad v. M. Tufail Hashmi (2010 SCM R 1484) wherein while referring to a judgment passed in Civil Appeal No,172-K of 2009 it has, inter alia, been held that the employees of those organizations which are discharging functions in connection with the affairs of Federation can approach the learned High Court under Article 199 of the Constitution. In such circumstances, the objection of the learned counsel for the respondent does not carry much weight.
8. For what has been discussed above this writ petition is hereby accepted and the impugned order dated 29-1-2010 is hereby set aside. Consequently respondent No,1 is directed to fix the pay of the petitioner according to BS-8 as has been forwarded by respondent No,2.