' WAQAR AHMAD SETH, J.--- Through this single judgment, I intend to dispose of the instant revision petition as well as connected revision petition No.617-P of 2014, as common question of law and facts are involved therein.
2. Briefly stated facts of the case are that petitioners / plaintiffs instituted a civil suit before Senior Civil Judge, Peshawar for declaration to the effect that they were inducted as Junior Engineers BPS- 17 much prior to the respondents Nos.6 to 8/defendants Nos.6 to 8, are therefore, senior to them in all respect, similarly the promotion allowed to the respondents Nos.6 to 8/defendants Nos.6 to 8 on account of having M.Sc. Engineering Degree in terms of office memorandum dated 16.04.1992, prior in time to the petitioners/plaintiffs can under no circumstances confer upon them the right of seniority. As per office memorandum dated 02.05.2011 the respondents/defendants are bound to correct the seniority list of Senior Engineers BPS-18 and to allow all consequential promotion and seniority to the petitioners/plaintiffs with arrears. That mandatory injunction directing the respondents to correct the seniority list of the Senior Engineer BPS-18 in terms of office memorandum dated 02.05.2011 and to nominate the petitioners/plaintiffs for the Middle Management Courses/Refresher Course Mandatory for promotion BPS-18 to 19 and till the petitioners/plaintiffs acquire this training no promotion of junior is to be made; permanent prohibitory injunction restraining the official respondents/defendants from making promotion to the post of Superintendent Engineer in BPS-19 on the basis of wrong and incorrect seniority list dated 21.06.2006. The respondents/defendants were summoned, respondents Nos.1, 5 and 7/defendants Nos.1, 5 and 7 filed their written statement with certain legal and factual objection, while respondents Nos.6 and 8 have filed application under Order-VII, Rule-11, C.P.C. For rejection of the plaint, which was replied. Learned trial court after hearing arguments of both. The parties on the application, returned the suit/plaint to the petitioners/plaintiffs under Order-VII, Rule-10, C.P.C.
For adjudication before the proper forum, vide his order dated 07.01.2011.
3. Feeling aggrieved from the order of the learned trial court, petitioners/plaintiffs filed appeal before the appellant court, which was also dismissed vide order dated 14.06.2014, hence the instant revision petition.
4. I have heard learned counsel for the parties and perused the available record with their valuable assistance.
5. Without dilating upon the merits of the case, since both the courts below have returned the case to the petitioners/plaintiffs to be presented before a competent forum while convincing and impressed by the judgment of this court i.e. Writ Petition No. 259 of 2011 titled "Qazi Muhammad Tahir v. Managing Director, PESCO, WAPDA etc." decided on 3rd July, 2013, wherein it has been held that PESCO being company has no statutory rules to regulate the terms and conditions of its employees, therefore, they cannot invoke the jurisdiction of High Court, under Article 199 of the Constitution of Islamic Republic of Pakistan and the writ petition was sent to Federal Service Tribunal, to decide the matter between the parties. The trial court impressed of the said judgment returned the suit of the petitioners/plaintiffs under Order-VII Rule 10 of the C.P.C., which was upheld by the appellate court.
6. The claim of the petitioners/plaintiffs before the trial court in their suit was that, they were appointed in WAPDA, which is still a statutory body having its own Service Rules and after the creation of different companies of Power Wing, the employees of WAPDA i.e. Petitioners were transferred and absorbed in the respective companies on the same terms and conditions, which were applicable to them in the WAPDA. These companies are registered under Companies Ordinance, 1984, are independent of WAPDA for all intends and purposes but the terms and conditions of service could not be different from the one which were in the WAPDA.
7. The Statutory Rules of Service of WAPDA were adopted by all the companies, including PESCO, and as per law, the Statutory Rules of WAPDA loses its statutory character, but the employer is not supposed to go beyond or to contravene the rules so adopted, even if those are not statutory.
8. The employees of WAPDA, were governed by section 17(1)(b) of WAPDA Act, 1958, which provides a special remedy for redressed of their grievances before Federal Service Tribunal, whereas the employees of PESCO, have got no protection of said section 17(1)(b) of WAPDA Act, 1958, nor the employees of companies qualify to be as civil servants under the Civil Servants Act, 1973. The Apex Court in a judgment comprising of Hon'ble 9 judges, titled Muhammad Mubeen-us-Salam v.
Federation of Pakistan reported in PLD 2006 SC 602, has held while deleting and declaring section 2-A of Federal Service Tribunal Act, as illegal and unlawful, that the non statutory bodies cannot approach the Federal Service Tribunal for redressed of their grievances and they are not civil servants and as such with utmost respect sending the cases to Federal Service Tribunal, of those employees, who are not governed by any Statutory intervention, does not seems to be justified in the presence of larger bench/full bench judgment of the Apex Court as cited above.
9. When the companies i.e. 12 in numbers were introduced and registered, the larger bench of Federal Service Tribunal Islamabad, was constituted for the very this particular purpose i.e. Employees of the WAPDA and the absorbed employees of said companies, reported in PLJ 2008, Tr.0 (Services) 374 titled Hamayun Akhtar and others v. Chairman WAPDA etc., wherein it was held;
(i) Appeals pertaining to employees of water wing of WAPDA, who fall under the definition of "civil servants", are maintainable before the service tribunal subject to all other just and legal exceptions.
(ii) Appeals pertaining to the terms and conditions of employees of the power wing of WAPDA after their transfer and absorption in the WAPDA related companies are incompetent and liable to be dismissed.
(iii) Appeals against the order passed under removal, from service (Special Powers) Ordinance, 2000 are competent before the tribunal subject to other just and legal exceptions.
(iv) Appeals pertaining to a cause of grievance prior to the incorporation of employees on such companies shall be competent subject to other just and legal exception.
10. The above cited judgment still holds the field as the same has not been challenged or discussed by the Apex Court nor there is any judgment of the Apex Court declaring the employees of corporate companies of WAPDA entitle for approaching the Federal Service Tribunal for their grievances.
' In the case of Masood Ahmad Bhati and others v. Federation of Pakistan, reported in 2012 SCM R 152, it has been held as under:-- ---Ss. 35(1) (2) Proviso & 36(1) proviso---Status of employees---Terms and conditions of service--- Appellant was employed in service by Federal Government in Telegraph Department, which Department was converted into Pakistan Telecommunication Corporation and ultimately became Pakistan Telecommunication Company Limited (PTCL)---Grievance of appellant, was that High Court declined to implement judgment passed by Service Tribunal in his favour, on the ground that he was employee of Pakistan Telecommunication Company Limited and his service was not governed by statutory rules---Plea raised by employer company was that Federal Government had guaranteed existing terms and conditions of service and rights including expansionary benefits of employees who stood transferred from the Corporation to the company-Validity-At the moment of transition when appellant ceased to remain the employees of the Corporation and became employee of the Company, he admittedly was governed by rules and regulations which had been protected by Pakistan Telecommunication (Re-organization) Act, 1996, therefore, said rules by definition were statutory rules-Corporation could make beneficial rules in relation to its employees which were in addition to the rules of employment prevailing on 1.1.1996, however, by virtue of proviso to 5.35(2) of Pakistan Telecommunication (Re-organization) Act, 1996, the company had no power to "vary the terms and conditions of service" of its employees who were previously employees of the Corporation, "to their disadvantage "---Even Federal Government was debarred by virtue of 5.35 of Pakistan Telecommunication (Re-organization) Act, 1996, from such terms and conditions of service to the disadvantage of appellant---Guarantee did not change the nature or status of the company as the principal object required under the law was to adhere to protected terms and conditions of service of transferred employees such as the appellant--- Only effect of guarantee was to ensure that in the event the company would become incapable of fulfilling its obligations as to expansionary or other benefits, for reasons such as bankruptcy etc, the employees did not suffer, from such event of default---Distinction was drawn between the employees who stood transferred to the company by virtue of S.35 of Pakistan Telecommunication (Reorganization) Act, 1996, and Vesting Order, on one hand and those employees who joined the company after 1.1.1996---Protection under Federal Government guarantee was not available to latter category whose terms and conditions of service could be contractual in nature and would, therefore, be non statutory---Appellant was entitled to implementation of judgment of Service Tribunal , therefore, Supreme Court set aside the judgment passed by High Court and remand the matter for implementation of the judgment--- Appeal was allowed."
11. In line with the above said judgment lastly is the case reported in 2013 SCM R 1707, wherein it has been held that statutory bodies having non statutory Service Rules/Rules of Business cannot approach the High Court, in writ jurisdiction under Article 199 nor the Service Tribunals unless and until there is some statutory intervention. In view of the case of Muhammad Mubeen-us-Salam, supra, it is established by now that after the deletion of section 2-A from the Federal Service Tribunal Act, the companies and autonomous bodies having no statutory rules can neither file writ petition nor can approach the Federal Service Tribunal, therefore, returning the case of the petitioners to be presented before Federal Service Tribunal, was not justified.
12. Learned counsel for the respondents, next contended that if at all the petitioners are precluded from service laws/Tribunals, then at the most they are governed by the principle of Master and Servants and under that principle only suit for damages lies and the present suits challenging the promotion in the shape of declaratory suits are not maintainable, in this respect, he placed reliance on 1992 SCM R 1112, 2001 SCM R 909, AIR 1991 SC 1525, 1987 SCM R 1776, 2000 CLC 1796, PLD 1979 Karachi, 668 and PLD 1984 SC 194.
13. The judgments cited by the learned counsel for respondents and arguments advanced regarding the non maintainability of suit for declaration etc of the petitioners in view of Specific Relief Act, etc are not convincing one in the giving circumstances. The case law cited by the learned counsel is not applicable to the present situation as in all the cited cases; there is enforcement of or breach of contract, contractual obligations, dismissal or termination from service etc, for which the courts have held time and again that remedy in these circumstances is only to the extent of damages as employer being the master cannot be compelled to retain any contractual employee in service against his whims and damages in case of wrongful termination are appropriate.
14. Since, petitioners are the employees of company having no statutory service rules and in view of above cited judgments neither hey can file a writ under Article 199 of the constitution nor can approach the Federal Service Tribunal, but no one can be left remedy less. Moreover, the grievance agitated by the petitioners in their suits seems to be genuine as junior to them are promoted without any reasons or justifications and in contravention of rules, no doubt non statutory, but it is an admitted fact that for promotion purposes the respondents department is having the rules and if at all that are violated or contravene there will be a rule of jungle within the department for in service employees, creating problem for the company itself. When there is a right, there is a remedy (Ubi jus ibi remedium), is a fundamental principle of law and the law is section 9 of the Civil Procedure Code 1908 which reads along with explanation as under:-- "Courts to try all civil suits unless barred.---The courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.
' Explanation.--- A suit in which the right of property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.
15. Any person having right has a corresponding remedy to institute suits in a court unless the jurisdiction of the i.e. Civil Court is barred and by virtue of above referred provisions of the section, civil courts are granted general jurisdiction to try all suits of a civil nature. In other words wherever the object of proceedings is the enforcement of civil rights, a civil court has jurisdiction to entertain the suit independently of any statute unless its cognizance is either expressly or implicitly barred.
Civil Courts are courts of ultimate jurisdiction and unless there jurisdiction is either expressly or implicitly barred, the final decision with regard to a civil right, duty or obligations, shall be that of the civil courts, judgments of other courts notwithstanding.
16. In the suits before the trial court petitioners have claimed the enforcement of Pakistan WAPDA, Service of Electrical Engineer, Rules, 1965, and subsequent office memorandums dated 16.4.1992 and 2.5.2011 which were adopted by the respondents/PESCO company. The respondents/defendants in their writ statement have admitted that all the employees belonging to WAPDA after their absorption in the Power Supplying Companies, these Rules and Regulations of WAPDA, shall remain enforce and applicable till the same are framed by the companies, and as such the claim made under the adopted Rules cannot be brushed aside, nor the master's/employer i.e. Official respondents could be permitted to violate and contravene the said Rules / Regulations, which are adopted although, not statutory, by doing discrimination, victimization, nepotism, by pick and choice policy as has been apparent from the present case.
17. In the case of Syed Chand Badshah v. PESCO, Writ Petition No.413/2011, decided on 17.02.2011, in exactly similar circumstances, it has held as under.- "Since it has been settled in the case of Executive Council, Allama Iqbal Open University, Islamabad through Chairman and another v. M. Tufail Hashmi (Supra), the petitioner cannot be treated as a civil servant by virtue of deeming clause and that the relation between the employer and him is that of master and servant, the only course open before him shall be the. Civil suit.
Recourse to this court cannot be had when services of the petitioners are not regulated by any statute and no violation of such statute has been made as was held in the case of The Principal, Cadet College, Kohat and another v. Muhammad Shoaib Qureshi (Supra). In any case petitioner cannot be left without remedy. Regardless altogether what he can get from one court or another if and when he is aggrieved he can approach at lease the civil court if not any other forum.
Therefore, the learned courts below did not act in accordance with the law of the land by returning the plaint to the jurisdiction. We thus allow this petition, set aside the impugned order returning the plaint and sent the case back to the civil judge for adjudication in accordance with law. The plaint thus returned shall be deemed to be pending before the said court. Whether petitioner is entitled to an interim relief in the circumstances of the case, is a question which may better be left to the wisdom of the learned trial court.
18. During the arguments it was pointed out by both the counsel that during the tendency of these petitions certain orders have also been passed, therefore, the petitioners are allowed to amend their plaint by impugning those orders, if any, if needed.
19. In view of above, these revision petitions are allowed. Impugned judgments and orders of trial court dated 7.1.2014 and that of appellate court dated 14.6.2014 are set aside, and the suits of the petitioners are deemed to be pending before the trial court. The trial court is expected to decide the cases as per National Judicial Policy, being the old litigation on merits.