' ABID AZIZ SHEIKH-J.--- Through this writ petition, the petitioner has assailed the impugned order dated 28-2-2013 passed by respondent No,4 whereby the representation of the petitioner for direct induction to the post of "Superintending Engineer" on the basis of higher qualification along with eight years experience has been rejected. The petitioner is further seeking a direction that respondents should consider the case of the petitioner for direct induction as "Superintending Engineer" in the service 'of GEPCO in terms of rule 3.1 (i)(d) of Pakistan WAPDA Service of Electrical Engineers Rules, 1965 (Rules, 1965).
2. Brief facts of the case are that petitioner was appointed with respondent-GEPCO as Junior Engineer (B.S. 17) on contract basis vide letter dated 7-10-2004 and his services were regularized vide letter dated 25-1-2006 as "Junior Engineer". As per clause 8 of the terms and conditions of petitioner's contract, in respect of matters which are not specified in the appointment letter, the petitioner was to be governed by rules and regulations applicable to WAPDA employees as amended from time to time. After acquiring the degree of M.Sc. in the year 2012, the petitioner made representation dated 14-2-2013 to his employer respondent-GEPCO seeking his induction as "Superintending Engineer" on the basis of acquired M.Sc. degree in terms of rule 3.1(i)(d) of the Rules ibid. The said representation was rejected vide letter dated 28-2-2013 and petitioner is informed that presently he does not qualify for induction against the post of "Superintending Engineer" because he does not have three years post qualification experience. The petitioner being aggrieved of the aforesaid letter dated 28-2-2013 filed this constitutional petition seeking direction against the respondents to consider the case of the petitioner for direct induction as "Superintending Engineer" in terms of Rule 3.1(i)(d) of Rules 1965.
3. The learned counsel for the petitioner argued that the provisions of Rule 3.1(i)(d) ibid which was notified on 14-1-1986 prescribed the method of recruitment and stipulates, that an engineer will be entitled to direct induction as "Superintending Engineer", if he possesses M.Sc. with 3 years' experience. Submits that interpretation of the aforesaid rule by the respondents that the qualifying experience should be post qualification is incorrect. Further contends that vide Office Memorandum dated 16-4-1992, note was added under the existing Rule 3.1(i)(d) of the Rules ibid, according to which the engineers having three years' relevant experience after M.Sc. may be considered for induction as Senior Engineer against the prescribed quota, has no statutory backing and in any case, the said note cannot control or go beyond main provisions of the Rules. Further submits that the Office Memo. dated 2-5-2011 in which the aforesaid Rules, are interpreted is patently illegal and unlawful and said rules require judicial interpretation of this Court.
4. In response to the preliminary objection raised by respondents in their reply and parawise comments, the learned counsel for the petitioner contends that though the petitioner was appointed with respondent GEPCO on contract basis vide letter dated 7-10-2004, however, in clause 8 of the said letter, it was clearly mentioned that in respect of terms and conditions not specified therein, the petitioner will be governed by rules and regulations applicable to WAPDA employees. Submits that the WAPDA Employees Service of Electrical Engineers Rules, 1965 are framed under section 18 of Pakistan Water and Power Development Authority Act, 1958 (WAPDA Act), therefore, the rules are of statutory nature. Further submits that in any case, the respondent authority-GEPCO is a public limited company which is wholly owned and controlled by the Government for all intents and purposes and the rules made applicable to the employees including the petitioner are one which are applicable to the WAPDA employees, therefore, the constitutional remedy is available to the petitioner as there is a violation of the aforesaid rules by the respondent itself. In this regard, reliance is placed on Malik Waqas Ahmed and another v.
Government of Pakistan, through Secretary of Ministry for Water and Power and 13 others (2011 PLC (C.S.) 455 Lahore), Imran Hussain v. Water and Power Development Authority through Chairman WAPDA and 4 others (2011 PLC (C.S.) 116 Lahore), Syed Muhammad Raza Kazmi v. University of Engineering and Technology, Taxila (2011 PLC (C.S.) 152 Lahore), GEPCO v. Eng. Kamran Ahmed (I.C.A. No,495 of 2012), GEPCO v. Rasheed Ahmad (Labour Appeal No,449 of 2006 dated 27-3-2008), Munsif Shah v. PEPCO through Managing Director, Lahore and 4 others, Muhammad Asim Rafique and 11 others v. Zarai Taraqiati Bank Limited (2011 PLC (C.S.) 1434) Pakistan Defence Officers Housing Authority and others v. Lt. Col. Syed Javaid Ahmed (2013 SCMR 1707). Further submits that the alternative remedy of Civil Court is specifically barred under section 17 of the Pakistan WAPDA Act, 1958.
5. ' Conversely the learned counsel for respondent No,2 argued that petitioner is an employee of GEPCO which is a private limited company incorporated under the Companies Ordinance, 1984.
Submits that the petitioner was appointed on contract on 7-10-2004, therefore, he has no locus- standi to challenge the rules which were in field prior to the appointment of the petitioner as he was well aware of these rules at the time of induction into service. Further submits that GEPCO being a private limited company does not have a statutory backing or it does not have statutory rules and regulations, therefore, the petitioner is governed under the terms of the contract dated 7- 10-2004 and in respect of terms which are not available under the contract of appointment, by way of reference, the rules which were applicable to the employees of WAPDA were adopted by GEPCO.
Adds that mere fact that the rules of WAPDA are adopted by GEPCO will not automatically make these rules statutory for the purpose of GEPCO which is a limited company. In this regard, reliance is placed on M.H. Mirza v. Federation of Pakistan through Secretary, Cabinet Division, Government of Pakistan, Islamabad and 2 others (1994 SCMR 1024). Further submits that the rules made by WAPDA under section 18 of the Pakistan WAPDA Act, 1958 are also not made by the Federal Government but by the authority and therefore, it does not have statutory backing, hence, the writ petition is not maintainable for the enforcement of non-statutory rules. Reliance is placed on Chairman WAPDA and 2 others v. Syed Janiil Ahmed (1993 SCMR 346), Pakistan Defence Officers Housing Authority and others v. Lt. Col. Syed Javaid Ahmed (2013 SCMR 1707), Abdul Wahab and others v. HBL and others (2013 SCMR 1383). Further added that section 17 of WAPDA Act, deal with removal of services and not applicable to the case of the petitioner.
6. On merits, the learned counsel contends that the representation of the petitioner was rightly rejected on 28-2-2013 as the petitioner did not have post qualification experience. Further submits that though the petitioner is claiming that he does have experience but neither in the petition nor in the representation, any proof was given that petitioner has acquired post qualification experience, hence this is a factual controversy which cannot be resolved in this petition. Adds that as the petitioner does not qualify to be inducted at the first instance, therefore, there is no question of impairing his seniority.
7. The learned counsel for the respondents Nos.3 and 4 adopted the arguments of learned counsel for the respondent 2 and further relied upon Muhammad All and 11 others v. Province of KPK through Secretary, Elementary and Secondary Education, Peshawar and others (2012 SCMR 673), Qamar SuIran and others v. Mst. Bibi Sufaidan and others (2012 SCMR 695)- and Pakistan Telecommunication Co. Ltd. through Chairman v. lqbal Nasir and others (PLD 2011 SC 132) to argue that where rules are not statutory, no writ petition is maintainable. Further submits that vide Office Memo. dated 16-4-1992, a note was added in Rule 3.1(i)(d) of the Rules ibid and according to said note, the petitioner ,does not qualify to be appointed as "Superintending Engineer". Contends that when the petitioner was inducted into service on 7-10-2004, the aforesaid note was already in the field and the contract of appointment of the petitioner specifically mentioned that all the rules which are applicable to WAPDA employees will be applicable to the petitioner, therefore, no vested right of the petitioner has been effected. Further contends that neither the aforesaid Office Memo. dated 16-4-1992 nor the Office Memo. dated 2-5-2011 is specifically under challenge in this petition.
8. I have considered the submissions made by learned counsel for the parties and have gone through the record and the precedent case-law cited at the bar.
9. The claim of the petitioner in this writ petition is that he being working as Junior Engineer has a right for direct induction to the post of "Superintending Engineer" on the basis of having acquired higher qualification with required experience in terms of Rule 3.1.1(d) of Rules 1965 enforced, w.e.f, 14-1-1986. On the other hand besides raising preliminary objection on maintainability, the respondents are denying the petitioner's claim for direct induction to the post of "Superintending Engineer" being not qualified. In order to better appreciate the controversy, it is expedient to reproduce the relevant Rules of 1965, relating to the method of recruitment as amended vide Office Memorandum dated 14-1-1986 as under:--- Rule 3.1(1).
(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 of equivalent qualification having:-- -
(i) 12 years service in a post carrying BPS-17 and above including 5 years service on BPS-18,
(ii) 7 years service in BPS-18 where initial recruitment took place in BPS-18. or 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 etc.:---
(i) Ph. D (Engineering) with 5 years experience,
(ii) M.Sc. (Engineering) with 8 years experience.
(d) The posts of Executive Engineers shall be filled in by promotion amongst Junior Engineers in BS- 17 who hold a degree in Electrical Engineering or equivalent qualification on the basis of seniority- cum-fitness: ' Provided that the Junior Engineer to be promoted has passed the power Wing Professional Examination and has also put in 5 years of approved service as such under the Authority.
' 20% vacancies will be reserved for accelerated promotion. After 4 vacancies have been filled in on the basis of seniority-cum fitness, 5th vacancy will be filled in by a candidate who deserves accelerated promotion by virtue of his being head and shoulders above his colleagues in professional competence (which covers knowledge and experience) integrity and honesty and devotion to duty besides loyalty to WAPDA and the Nation in accordance with prescribed Guidelines. or ' Engineers with qualification of Ph.D or M.Sc (with experience) may be considered for recruitment as Senior Engineers for research and highly specialized fields like design etc:---
(i) Ph.D (Engineering)
(ii) M.Sc (Engineering) with 3 years experience.
(e) 75% of the posts of Junior Engineers shall be filled in by direct recruitment from candidates having following qualifications:--- ' Degree/AMIE in Electrical Engineering Recognized by Pakistan Engineering Council, or Diploma/Degree from a foreign University recognized by Pakistan Engineering Council as equivalent to an Engineering Degree.
25% of the posts shall be filed in by promotion on the basis of seniority-cum-fitness from amongst the upper subordinates in BPS-16 who are Matriculates or Diploma holders and have passed prescribed Departmental Examination.
' The authority vide office Memorandum dated 16-4-1992 added following note under the existing rule 3.1(1)(d) ibid as under:-- "Note:-- Engineers having three years relevant experience after M, Sc. (Engineering) may be considered for induction as Senior Engineers against the prescribed quota. The Engineers appointed from the Junior Engineers serving in WAPDA on the basis of above qualifications and experience will be posted on specialized assignments like Research, Planning, Design, Training and Computer etc. and will remain posted as such till their colleagues (Junior Engineers), senior to them in the seniority list, are promoted as Senior Engineers."
10. The perusal of clause 3.1(1)(d), shows that it relate to the method of recruitment to the post of Executive Engineer through promotion amongst "Junior Engineers" on the basis of seniority cum fitness and it also relate to the recruitment as Senior Engineer from Engineers with M.Sc.
(Engineering) with 3 years experience. This clause does not deal with recruitment to the post of "Superintending Engineer" from Junior Engineers as claimed by the petitioner. Similarly "Note" added on 26-4-1992 under the existing rule 3.1(1)(d) deal with induction as "Senior Engineer" against the prescribed quota amongst the Engineers having three years experience after M.Sc.
(Engineering) and does not deal with recruitment to the post of Superintending Engineer from Junior Engineer. The only clause which deal with promotion as well as recruitment as "Superintending Engineer" is clause 3.1(1)(c). The perusal of said clause shows that for the purpose of promotion, it will be amongst "Senior Engineers" in B.S. 18 and for the purpose of recruitment, it will be from "Engineers" with qualification of Ph.D or M.Sc. (Engineering) with experience of 5 years for Ph.D and experience of 8 years for M.Sc. The reading of clause 3.1(1)(c), (d), (e) and 'Note' ibid shows that terms "Junior Engineer", "Engineer", "Executive Engineer", "Senior Engineer" and "Superintending Engineer" are used in different situations.
11. It is admitted position that on 7-10-2004, the petitioner was appointed on contract basis as "Junior Engineer" with GEPCO. The petitioner's services were regularized as a "Junior Engineer" on 25-1-2006 and as per legal notice dated 16-3-2013 annexed with the petition, even currently the petitioner is posted as Junior Engineer as SDO Noshera Virkan Sub-Division II, Gujranwala. The aforesaid rule 3.1(1)(c) in Rules 1965 provides that for the purpose of recruitment to the post of "Superintending Engineer" it will be amongst Engineers. Though the word "Junior Engineer" is not used in the aforesaid clause, however, if it is accepted that the word "Engineer" used in clause 3.1(1)
(c) will include "Junior Engineer", the next question will be that whether the petitioner who was inducted into service of GEPCO through contract on 7-10-2004, acquired M.Sc (Electrical Engineering) from University of Engineering and Technology, Lahore in the year 2012 (as per his own representation dated 14-2-2013), has acquired 8 years experience with M.Sc as required under 3.1.1(c). If this 8 years experience as prescribed in rule 3.1(1)(c) is considered as post M.Sc. (Eng.) experience (as claimed by the respondent) then the petitioner is not qualified as he admittedly did his M.Sc. in the year 2012, however, if this 8 years experience in Rule 3.1(1)(c) is a pre-higher qualification (M.Sc Engineering) experience and "Junior Engineer" is also entitled to be recruited as Superintending Engineer, under Rules, 1965, then the most important first legal question would be whether GEPCO is amenable to the constitutional jurisdiction of this Court and secondly whether clause 3.1.1(c) and other clauses of the Rules, 1965 for the purpose of petitioner are part of statutory rules, hence enforceable through this constitutional petition.
12. In this regard the questions which crop up for consideration would be as follows:---
(i) Whether the Gujranwala Electric Power Company Limited (GEPCO) is discharging functions in connection with the affairs of Federation or a Province within the meaning of clause 5 of Article 199 of the Islamic Republic of Pakistan, 1973 and amenable to the constitutional jurisdiction of the High Court?
(ii) Whether the rules governing terms and conditions of service applicable to the petitioner are statutory and petitioner can enforce these rules through constitutional petition for his induction to the post of "Superintending Engineer" (SE)?
Answer to Question No,(i).
13. In order to deal with this postulation, it is essential to make reference to scheme and framework of Water and Power Development Act, 1958 (WAPDA Act) which provide for unified and co- ordination developments of the Water and Power resources of Pakistan. Under section 3 of the WAPDA Act, 1958, an authority known as (Pakistan) Water and Power Development Authority (WAPDA) was established, which was a body Corporate and the Federal Government has the power to issue such directives as it may consider necessary on matter of policy from time to time.
Under sections 4 and 6 of the WAPDA Act, the Chairman and 6 members of WAPDA are to be appointed by the Federal Government. The plans for the development and utilization of water and power resources of Pakistan on unified and multi-purpose basis are also approved by the Federal Government. To effectuate the concept of devolution of powers, GEPCO and seven other distribution companies were created. Though these companies are distinct corporate entities incorporated under the Companies Ordinance, 1984, however, they are performing the same functions as once allocated to WAPDA under the WAPDA Act. While dilating the question whether GEPCO is "person" within the meaning of Article 199 (1)(a)(ii) read with Article 199(5) of the Constitution, the expanded functions of the Federation or a Province in contemporary age have to be kept in mind. The role of modern welfare state and its various institutions has increased manifold. The Government is regulator and dispenser of special services and it has power to create jobs, issue licenses, fix quotas, grant leases, enter into contracts and provide variety of utility services and basic amenities to the people. Such entire entrepreneurial activities are at times carried out through companies created under the statute or under the Companies Ordinance, 1984. The test to determine whether such company is a "person" amenable to judicial review is from the functions perform by that company. The Courts have generally classified it as "Functional Test".
The functions of these companies/institutions if have element of public authority, public or statutory duties to perform and carry out its transaction for the benefit of the public and not for private gain or benefit, it will be amenable to judicial review.
14. In the context of "functional test", the august Supreme Court in Abdul Wahab and others v. HBL and others (2013 SCMR 1383), held that two factors are the most relevant i.e, the extent of financial interest of the State/Federation in an institution and the dominance in the controlling affairs thereof. In Salahuddin v. Frontier Sugar Mills and Distillery Ltd. (PLD 1975 SC 244), the august Supreme Court laid down similar test to assess whether a body or authority is a person within a meaning of Article 199 of the Constitution and observed:--- "The primary test must always be whether the functions entrusted to the organization or person concerned are indeed functions of the State involving some exercise of sovereign or public power; whether the control of the organization vests in a substantial manner in the hands of Government; and whether the bulk of the funds is provided by the State. If these conditions are fulfilled, then the person, including a body politic or body corporate, may indeed be regarded as a person performing functions in connection with the affairs of the Federation or a Province; otherwise not."
' The aforesaid view was further affirmed in Aitcheson College, Lahore through Principal v.
Muhammad Zubair (PLD 2002 SC 326), and while not interfering with the judgment of this Court whereby it was held that the said college was amenable to the jurisdiction of the High Court under Article 199 of the Constitution, the august Supreme Court laid down as follows:--- "Applying the above test on the facts of the instant cases, we feel no hesitation in drawing inference that the Board of Governors, Aitcheson College, Lahore headed by the Governor of the Province as its President along with other officers i.e, Secretaries Education, Finance and General Officers Commanding as well as unofficial Members are involved in providing education which is one of the responsibility of the State and by taking over its management and control the board, exercises sovereign powers as well as public powers being a statutory functionary of Government who in order to provide it full legal/Constitutional protection had brought it into the folds of its Education Department by amending the Provincial Rules of Business as back as in 1994 and even if for the sake of arguments if it is presumed that no financial aid is being provided to the College from the Provincial Public exchequer, even then, the College remains in dominating control of the Provincial Government through Board of Governors. Therefore, the above test stands fully satisfied and we are persuaded to hold that organization of the Aitcheson College, Lahore falls within the definition of a person."
' In Pakistan International Airlines v. Tanweer-ur-Rehman (PLD 2010 SC 676), reiterating the earlier view, the august Supreme Court laid down a similar three pronged test:---
(i) whether the functions entrusted to the organization or person concerned are indeed functions of the State involving some exercise of sovereign or public power,
(ii) Whether the control of the organization vests in a substantial manner in the hands of Government; and
(iii) Whether the bulk of funds is provided by the State.
15. The august Supreme Court in Pakistan Defence Officers Housing Authority and others v. Lt. Col. Syed Javaid Ahmed (2013 SCMR 1707) while discussing status and the functions of various authorities i.e, Pakistan Steel Mills, Port Qasim Authorities, SME Bank, Defence Housing Authority Karachi held as under:--- "Keeping in view the Statutes which established and the functions of the appellants' authorities, and having considered in the light of "function test", we hold and declare that these are statutory bodies, performing some of the functions which are functions of the Federation State and through the exercise of public power, these bodies create public employments. These bodies are therefore "persons" within the meaning of Article 199(I)(a)(ii) read with Article 199(5) of the Constitution. If their actions or orders passed are violative of the Statute creating those bodies or of Rules/Regulations framed under the Statute, the same could be interfered with by the High Court under Article 199 of the Constitution. "
16. Though GEPCO is not a statutory authority as it is not established under a statue but incorporated as a company under the Companies Ordinance 1984, however, when applied the aforesaid "functional test", it squarely applies to GEPCO. It is an entity wholly owned and controlled by the Government and for all intents and purposes, it follows the policies laid down by the Government of Pakistan regarding supply of electricity under its controlled area. Indeed it is a "public utility company" providing basic amenities to the public .at large. Therefore, I have no hesitation to hold that GEPCO is a body corporate performing function in connection with the affairs of the State and therefore, amenable to the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. In this regard, I am also fortified by the law laid down by this Court in Imran Hussain v. Water and Power Development Authority through Chairman WAPDA and 4 others (2011 PLC (C.S.) 116), Tahir Abbas v. FESCO, Jhang and others (2011 PLC (C.S.) 354)-and Malik Waqas Ahmed and another v. Government of Pakistan through Secretary of Ministry for Water and Power and 13 others (2011 PLC (C.S.) 455).
Answer to Question No,(ii).
17. To be a person within the meaning of Article 199(5) of the Constitution and being amenable to constitution jurisdiction is one thing and to enforce the terms and conditions of service through constitutional jurisdiction is altogether a different thing. Now coming to the question, whether the terms and condition under which the service of the petitioner is governed including 3.1(1)(c) and 3.1(1)(d) of Rules, 1965 are statutory in nature and whether constitutional jurisdiction can be invoked to enforce these terms and conditions of service. To determine this question, I intend first.to see the test and criteria laid down by the apex Court in various judgments in this regard and then find out whether the said test and criteria is applicable to the case of the petitioner. In Anwar Hussain v.
Agricultural Development Bank of Pakistan (PLD 1984 SC 194), it was held that if the relationship between the employer and employee is the result of a contract freely entered into by the contracting parties then the principle of Master and Servant will apply, however, this principle will not apply if some law or statutory rule intervenes and places fetters upon freedom of the parties in the matter of the terms of the contract. It is expedient to reproduce the relevant extract of the aforesaid judgment of the august Supreme Court:7- "TM test of the employer/employee relation is the right of the employer to exercise control of the details and method of performing the work. It follows that if the relationship is the result of a contract freely entered into by the contracting parties, then the principle of Master and Servant will apply. The Principle, however, will not apply if some law or statutory rule intervenes a the matter of the terms of the contract. It is on this principle that a civil servant for whom there are constitutional safeguards, is governed by the principle of possessed of a legal character for the enforcement of which he can bring an action. Even where the employee is not a civil servant but there are statutory safeguards governing his relationship with the employer and placing restrictions on the freedom of the parties to act, the general law of Master and Servant will not apply. In such cases the employer would be bound to follow the procedure provided for in the statute or the statutory rules before terminating the service of the employee and in the absence of conformity to such procedure, the termination of service would not be clothed with validity and the employee will be entitled to an action for his reinstatement."
' In Principal, Cadet College, Kohat and another v. Muhammad Shoab Qureshi (PLD 1984 SC 170), the august Supreme Court reiterated the above principle and held as follows:-- "It is, therefore, evident that where the conditions of service of an employee of a statutory body are governed by statutory rules, any action prejudicial taken against him in derogation or in violation of the said rules can be set aside by a writ petition. However, whether his terms and conditions are not governed by statutory rules but only by regulations, instructions or directions, which the institution or body, in which he is employed, has issued for its internal use, any violation thereof will not, normally, be enforced through a writ petition."
The above principle was reiterated in following cases:----
(1) Nisar Ahmad v. The Director, Chiltan Ghee Mills (1987 SCMR 1836).
(2) National Bank of Pakistan v. Manzoorul Hasan (1989 SCMR 832).
(3) Sindh Road Transport Corporation through its Chairman v. Muhammad Ali G. Khokhar (1990 SCMR 1404).
(4) Karachi Development Authority and another v. Wali Ahmad Khan and others (1991 SCMR 2434).
18. The august Supreme Court recently in Abdul Wahab and others v. HBL and others (2013 SCMR 1383) while deliberating the status of Habib Bank Limited Staff Service Rules, 1981, held as under:--- "Attending to the second part of the proposition, it is an admitted position that the petitioners were employed (promoted) by the Bank as a result of a prescribed internal process of the Bank and the letters of petitioners appointment (promotion) clearly indicate that they were taken into employment on their unequivocal acceptance of the terms and conditions employment, because in the said letters (appended by the petitioners themselves with the petition), it is clearly mentioned that "you shall be bound by the rules and regulations of the bank for the time being in force". Thus when such offer (of appointment) was duly accepted by the petitioners, it culminated into a valid and a binding service contract between the parties, which for all intents and purpose was meant to govern and regulate the relationship inter se the parties. It may not be irrelevant to mention here (which may also be reiterated in other parts of the judgment) that it is not the case of the petitioners that they are governed by any statutory rules of service. It is settled law that, where a service grievance is agitated by a person/employee who is not governed by the statutory rules of service, before the High Court(s), in terms of Article 199 of the Constitution such petition shall not be maintainable; reference in this behalf can be made to PLD 2010 SC 676 (Pakistan Intermztional Airline Corporation v. Tanweer -ur-Rehman) and PLD 2011 SC 132 (Pakistan Telecommunication Co. Limited v. lqbal Nasir (note: the question however, if that is possible in terms of Article 199(1) (c), we have deferred."
19. Let's apply the aforesaid test and criteria laid down by the august Supreme Court, to the case of the petitioner to find out whether his terms and conditions of service including Rules of 1965 are statutory or contractual in nature and whether the same are enforceable through constitutional jurisdiction. The petitioner was appointed on contract as Junior Engineer in GEPCO vide contract appointment letter dated 7-10-2004. The terms and conditions of service of the petitioner are governed under the said appointment on contract letter dated 7-10-2004, however, in respect of other matters which are not specified therein, as per clause 8 of said appointment contract letter, the petitioner was to be governed by the rules/regulations as applicable to WAPDA employees as amended from time to time. For ready reference, clause 8 of the appointment contract letter dated 7-10-2004 is reproduced hereunder:--- "(8) In respect of other matters, not specified in this letter, you will be governed by the Rules/Regulations as applicable to WAPDA Employees as amended from time to time.
20. The perusal of petitioner's appointment contract letter dated 7-10-2004 shows that petitioner is governed under the terms and conditions of said appointment contract letter and the rules and regulations of WAPDA employees are also made applicable to the petitioner not through any Statute but in terms of clause 8 of his appointment contract letter dated 7-10-2004 where it is specified that in respect of other matters, the rules and regulations applicable to the WAPDA Employees will apply to the petitioner. It is settled law that mere adoption of statutory rules of the Government or their application by reference will not automatically lend a statutory cover or content to those rules. In this context, the august Supreme Court of Pakistan in M.H. Mirza v.
Federation of Pakistan through Secretary, Cabinet Division, Government of Pakistan, Islamabad and 2 others (1994 SCMR 1024), held as under:-- "Sections 37, 38, 50 and 51 of the CDA Ordinance, 1960 (Ordinance XXIII of 1960) are relevant. An examination of these provisions shows that the CDA was itself to determine the terms and conditions of its employees and that the Government had no say in the matter. None of its Regulations whether framed by it itself or adopted by reference had a statutory basis in law. This view is supported by the view taken in Ch. Abdul Rashid v. Capital Development Authority, Islamabad and others (PLD 1979 Lahore 803) and the Principal, Cadet College, Kohat and another v. Muhammad Shoab Qureshi (PLD 1984 SC 170). The adoption of the rules of the Government or their application by reference will not lend a statutory cover or content to these rules, as held in Lahore Central Co-Operative Bank Limited v. Saif Ullah Shah (PLD 1959 SC (Pak) 210 and finally very recently in Chairman, Pakistan Council of Scientific and Industrial Research, Islamabad and 3 others v. Dr. Mrs. Khalida Razi (Civil Appeal No,270 of 1993). There being no statutory rules in the field, a Constitutional petition was not at all competent on the subject."
' In view of the fact that petitioner's terms and conditions of service are governed under appointment contract letter dated 7-10-2004 and even Rules of 1965 are applied to petitioner through adoption under clause 8 of the appointment contract letter, therefore, these terms including Rules 1965 for all intents and purposes are contractual and not statutory for the petitioner.
21. Notwithstanding the fact the rules were adopted through a contract by GEPCO and have not became statutory automatically, even otherwise, Rules of 1965 are framed under section 18 of the West Pakistan WAPDA Act, 1958 (WAPDA Act) by the authority and not by the Federal Government.
The Hon'ble Supreme Court of Pakistan in Chairman WAPDA and 2 others v. Syed Jamil Ahmed (1993 SCMR 346) already held that rules made under section 18 of the West Pakistan WAPDA Act, 1958 are not of statutory nature. The relevant observation is reproduced hereunder:-- "Adverting to the above second submission of the learned counsel for the parties, it may be pertinent to observe that the Rules have been framed under section 18 of the Act as stated hereinabove. It may be advantageous to reproduce above section 18 of the Act, which reads as follows:-- "18. The Authority shall prescribe the procedure for appointment and terms and conditions of service of its officers and servant, and shall be competent to take disciplinary action against its officers and servants".
' A perusal of the above section indicates that it provides that the Authority shall prescribe procedure for appointment and terms and conditions of service of its officers and servants, and it shall be competent to take disciplinary action against its officers and servants. The above section does not contemplate framing of any statutory rules nor it contemplates that the prescribed procedure for the matters referred to therein is to be framed with the approval of the Government."
' The argument of learned counsel for the petitioner that even though the rules are not statutory but if they are framed by the statutory body under the powers derived from a Statute, they will become enforceable, is not applicable to the case of petitioner, because for him neither Rules of 1965 are framed nor applied under any Statute but in terms of clause 8 of his contract appointment letter dated 7-10-2004, therefore, violation of these rules will be a breach of contract including aforesaid clause 8 of the contract and not enforceable being neither a statute. nor conferring any statutory protection to the petitioner.
22. The learned counsel for the petitioner while arguing the case has heavily relied upon Pakistan Defence Officers Housing Authority and others v. Lt. Col. Syed Javaid Ahmed (2013 SCMR 1707) to stress that in view of the recent Judgment of the august Supreme Court, regardless whether rules are not approved by the Government, if the authority is Government owned organization and the rules are made under statute, it can be enforced through constitutional jurisdiction and rule of Master Corporation through its Chairman (1995 SCMR 650), House Building Finance Cori oration throu: h Mana: in: Director Karachi and another and Servant has been diluted. I have carefully gone through the aforesaid judgment of the august Supreme Court, the ratio decidendi in this judgment is, where employees of Government owned and statutory organization are removed from service under Removal from Service (Special Power) Ordinance, 2000, the constitutional petition will be maintainable. The relevant observations of the august Supreme Court are as under:--- "It was not disputed before this Court by appellants learned counsel that the respondent- employees were "persons in corporation service" within the meaning of section 2(c) of the Ordinance, 2000 and except in the case of N.E.D. University, they were proceeded against under the said law. This was a `statutory intervention and the employees had to be dealt with under the said law. Their disciplinary matters were being regulated by something higher than statutory rules i.e, the law i.e, Ordinance, 2000. Their right of appeal (under section 10) had been held to be ultra vires of the Constitution by this Court as they did not fall within the ambit of the Civil Servants Act, 1973, (in Mubeen us Salam's case (PLD 2006 SC 602) and Muhammad Idrees's case (PLD 2007 SC 681). They could in these circumstances invoke constitutional jurisdiction under Article 199 of the Constitution to seek enforcement of their right guaranteed under Article 4 of the Constitution which inter alia mandates that every citizen shall be dealt with in accordance with law. The judgment of this Court in Civil Aviation Authority (2009,SCMR 956) supra is more in consonance with the law laid down by this Court and the principles deduced therefrom as given in Para 50 above."
23. In the aforesaid judgment, the august Supreme Court has not diluted the test of master and servant, rather while surveying the precedent case-law including Lt. Col. Shujaddin Ahmad v. Oil and Gas Development Corporation (1971 SCMR 566), Raziuddin v. Chairman, Pakistan International Airlines Corporation (PLD 1992 SC 531), The Evacuee Trust Property Board and another v.
Muhammad Nawaz (1983 SCMR 1275), Anwar Hussain v. Agricultural Development Bank of Pakistan (PLD 1984 SC 194), Principal, Cadet College, Kohat and another v. Muhammad Shoab Qureshi (PLD 1984 SC 170), Nisar Ahmad v. The Director, Chiltan Ghee Mills (1987 SCMR 1836), National Bank of Pakistan v. Manzoorul Hasan (1989 SCMR 832), Sindh Road Transport Corporation through its Chairman v. Muhammad Ali G. Khokhar (1990 SCMR 1404), Karachi Development Authority v. Wali Ahmed Khan (1991 SCMR 2434), Mrs. Anisa Rehman v. PIAC (1994 SCMR 2232), Walayat Ali Mir v.
Pakistan International Airlines v. Inayat Ullah Shaikh (1999 SCMR 311), Pakistan International Airlines Corporation (PIAC) through Chairman and others v. Nasir Jamal Malik and others (2001 SCMR 934), Aziz Ullah Memon v. Province of Sindh (2007 SCMR 229), Muhammad Dawood and others v.
Federation of Pakistan and others (2007 PLC (C.S.) 1046), Civil Aviation Authority through Director- General v. Javed Ahmad and another (2009 SCMR 956), Viteralli v. Sawn (1971) 1 W.L.R. 1578 (359 US 535 Second Series 1012), Sukhdev Singh, Oil and Natural Gas Commission, Life Insurance Corporation, Industrial Finance Corporation Employees Associations v. Bhagat Ram, Association of Clause II Officers, Shyam Lal, Industrial Finance Corporation (AIR 1975 SC 1331), the larger Bench of august Supreme Court deduced and summarized the following principles of law:---
(i) Violation of Service Rules or Regulations framed by the Statutory bodies under the powers derived from Statutes in absence of any adequate or efficacious remedy can be enforced through writ jurisdiction.
(ii) Where conditions of service of employees of a statutory body are not regulated by Rules/Regulations framed under the Statute but only Rules or Instructions issued for its internal use, any violation thereof, cannot normally be enforced through writ jurisdiction and they would be governed by the principle of 'Master and Servant'.
(iii) In all the public employments created by the Statutory bodies and governed by the Statutory Rules/Regulations and unless those appointments are purely contractual, the principles of natural justice cannot be dispensed with in disciplinary proceedings.
(iv) Where the action of a statutory authority in a service matter is in disregard of the procedural requirements and is violative of the principles of natural justice, it can be interfered with in writ jurisdiction.
(v) That the Removal from Service (Special Powers) Ordinance, 2000 has an overriding effect and after its promulgation (27th of May, 2000), all the disciplinary proceedings which had been initiated under the said Ordinance and any order passed or action taken in disregard to the said law would be amenable to writ jurisdiction of the High Court under Article 199 of the Constitution.
24. Applying the aforesaid principles of law to the case of the petitioner, I feel no hesitation in drawing inference that petitioner is not governed under statutory rules hence terms and conditions of contract of his service are not enforceable through constitutional petition. The case of petitioner is neither against any order under the Removal from Service (Special Powers) Ordinance, 2000 nor he is alleging any violation of rule of natural justice in disciplinary proceedings against him. The petitioner is claiming direct induction as "Superintending Engineer" through enforcement of rule 3.1(i) d of Rules, 1965 and to declare Note added to aforesaid rule as ultra vires of said Rules of 1965.
As already discussed in detail, these rules are not statutory and for the petitioner the same were adopted in terms of clause 8 of his appointment contract letter, therefore, for all intent and purpose, these are contractual terms for internal use, hence, the law laid down by the august Supreme Court in Pakistan Defence Housing Authority (supra), does not support the case of the petitioner, rather advances the case of the respondents.
25. In view of the above discussion, I find no substance in this constitution petition and same is dismissed with no order as to cost.