' AZIZ-UR-REHMAN, J.--- By means of this Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 filed on 18th January, 2013, the Petitioners inter alia are seeking directions to the Respondents for release of the 'Professional Graduate Allowance' at the uniform rate of Rs, 10,000/- [Ten Thousand only] plus all accrued arrears and for explanation as to why the status of UTS to the Petitioners who are Graduate Engineers have not been granted. The prayers sought in the Petition read as follows:--- "i. Declare the withdrawal/containment of Professional Graduate Allowance as illegal, unjustified and set aside the same and. ii. Direct the respondents to release the Professional Graduate Allowance to petitioners at the uniform rate of Rs, 10,000 per month with all the arrears as accrued to the petitioners. Iii. Direct the respondents to explain as to under what law, the petitioners/Graduate Engineers have not been granted even the status of UTS. iv. Declare that, the quota as set forth by the respondents for graduate and non-graduate engineers for further promotion as illegal, void and in utter disregard of the clear provision of the Act of Parliament, which is binding upon them to follow and increase the quota of Graduate Engineers amongst the employees of respondent No,7. v. Direct the respondent No,7, to fill the 70% quota by direct induction among the Graduate Engineers of respondent No,7 and should be considered first, and if found unfit or misfit, then the outsiders may be considered for induction against the same positions. Vi. Declare the act of respondents for imposing the mandatory training and departmental promotion examination over the graduate and registered engineers as illegal, void ab initio and set aside the same. Vii. Any other relief(s) this honourable court deem fit in the given circumstances and in the great interest of justice. "
2. The brief relevant facts in the background are as follows:---
3. The petitioners, per assertion, are the employees of Water and Power Development Authority [In short W.A.P.D.A.], who were appointed in different years and are serving in their capacities as Line Superintendents I, II and SSO with the Hyderabad Electric Supply Company Limited [In short H.E.S.C.0.]. As averred in the Memo. Of Petition [In short MoP], the Petitioners are duly registered Graduate Engineers [B.E.], thus fall under the umbrella of Pakistan Engineering Council [In short PEC]. Being certified and registered professional Engineers are also entitled to hold any professional engineering position in any organization to the exclusion of non-graduate Engineers.
4. The Petitioners' terms and conditions of service are governed under the Pakistan W.A.P.D.A.
Service of Electrical Engineering Rules, 1965 [Referred to as 'Service Rules'], framed by W.A.P.D.A.
Under section 18 of Pakistan Water and Power Development Authority Act, 1958. [W.P. Act XXXI of 19581.
5. Per petitioners contentions, the Pakistan Engineering Council [In short PEC], had initially raised the issue regarding grant of 'First Class Status' to the Graduate Engineers with Government of Pakistan which was also subsequently endorsed by the respondent No,4/Secretary Cabinet Division of Pakistan. Apart from the above, the Pakistan Engineering Council [PEC] vide its letter dated 07-11- 2008, addressed to the respondent No,1, had also asked the respondents Nos.2 and 3 for grant of 'BPS-17' status [Class-1 Status] to the Graduate Engineers. The petitioners, though, are entitled to enjoy the status of 'Class-1', however, till date no heed has been given to request of PEC for grant of BPS-17 status [Class-1 status].
6. With a view and in order to create confusion, uncertainty and prolong the issue, respondents continuously asking the petitioners about their 'service particulars'. Besides, the petitioners were also called upon to appear in the 'Departmental Promotion Examination' [In short DPE] being pre- requisite for their promotion in BPS-17. This condition of mandatory 'training' and passing of 'Departmental Promotion Examination' by the already registered engineers, per petitioners' version beside, illegal is void ab initio. The petitioners, amongst others graduate engineers are actually deemed to be exempted from passing of such DPE and training. The petitioners, thus without going through the process of DPE and training are entitled to be prompted in 3PS-17 directly.
7. According to the petitioners, the Pakistan Electric Power Company [Pvt.] Ltd. [In short PEPCO], through its' letter No,21775- 89/MDP/E-II/22/4/58/Loose-8-98 dated 6-5-2010 [Annexure 'C' to the MoP], had also directed all the Power Supply Companies to induct the 'Upper Technical Sub- ordinates' [UTS], who are Graduate Engineers against the positions of BPS-17 without passing any 'Departmental Promotion Examination' and/or going through any other mandatory training. The Pakistan Electric Power Company [Pvt.] Limited [PEPCO], vide its' earlier order No,25960-85/MDP/E- 11/22/1/58/ Loose-898 dated 20-12-2008 [Annexure 'D to the MoP] had also issued necessary instructions regarding the prescribed service limit for 'promotion' of the Graduate Engineers recruited as 'UTS' and B.Tech [Hons.] who are working in such capacity. Being relevant the said letter is reproduced as under:--- PEPCO PAKISTAN ELECTRIC POWER COMPANY (PVT.) LIMITED Fax # 042-9202176 Office of the Tele # 042-9203623 Managing Director (PEPCO)
PBX # 042/9202211/2073/2280 WAPDA House, Lahore No,25960-85/MDP/E-11/22/1/58/Loose-898 Dated: 20-12-2008 OFFICE ORDER In partial modification of Director (Rules) Wapda 0.M.No,D(Rules)/07452/1/IV/12325- 13625 dated 05.03.2002 and No,D/DD(Rules)/0743/3/V/34001-35300 dated 16-9-2005, the competent authority is pleased to reduce the prescribed service limit for promotion of Graduate Engieners recruited as "UTS" and B.Tech(Hons) working as "UTS" as under--- {{TABLE}} S. No, Category Period required for promotion as Jr. Engineer Gradue Engineer recruited as "UTS" The services limit for promotion previously fixed as 10 years shall now be reduced to 2 years B.Tech(Hons) working as "UTS" The services limit for promotion previously fixed as 10 years shall now be reduced to 4 years.
' These instructions shall be applicable with imrnedite effect and no previous case shall be re- opened.
' This issues with the approval of competent authority. Sd/- (Masood Mehmood) Director (Personnel Affairs) PEPCO HYDERABAD ELECTRIC SUPPLY COMPANY OFFICE OF THE CHIEF EXECUTIVE OFFICER HESCO HYDERABAD ' Endst. No,CCO/HESCO/HR&Admn ' Dir/A3/59535-67 Dated 31/12/2008 ' Copy of above is forwarded to for information:-- * Chief Engineer/Technical Director HESCO Hyderabad Chief Engineer/Operation Director HESCO Hyderabad Chief Engineer/(T&G) HESCO Hyderabad Chief Engineer/(Power) HESCO Sukkur Manager Opr:/GS0 Circle HESCO---(All)
Manager (MM) /Civil/ Commercial/ Planning/ CM&O/ TM&CM/M&S HESCO Hyderabad/Sukkur Regional Manager (M&T) HESCO Hyderabad/Sukkur Project Director Const:/GSC HESCO Hyderabad Principal RTC HESCO Jamshoro Provincial Chairman PWHECLU Gari Khata, Hyderabad"
8. As averred in the year, 2009, a meeting of WAPDA's Board of Directors was convened on 19th February, 2009 wherein the approval for restoration of 'Special Engineering Allowance' as 'Special WAPDA Allowance' was accorded at the rate of Rs,10,000 [Rupees Ten Thousand only] per month with immediate effect for WAPDA 'Graduate Engineers' of all Engineering cadres. Thereafter, General Manager [H.R.] PEPCO vide an Office Order No,GM (HR)/HRD/A-587/2196-2234 dated March, 21, 2009 [Annexure to the MoP], of which copies were forwarded to all other Companies had also endorsed the grant of 'Special Graduate Allowance' to all the Graduate Engineers .At the uniform rate of Rs,10,000 [Rupees Ten Thousand only] per month.
9. The petitioners under the aforesaid scenario, claim entitlement for the grant of 'Special Graduate Allowance' as WAPDA's employees approached thereafter to the respondent No,8/Chairman of Pakistan Engineering Council [PEC] for clarification and containment of anomaly in the process of 'induction' and 'promotion' of non-graduate Engineers to the higher scale i.e, BPS-17. Per Petitioners version for holding professional post in any organization, registered with the Pakistan Engineering Council [PEC] is must for such professional Engineers. The Respondent No,8, in response thereto vide its' letter No,Lega1/063/12 dated 30-1-2012 [Annexure 'F' to the MoP] statedly addressed to the respondents Nos.1 and 2 had purportedly advised them that no person shall unless registered as 'Registered Engineer' or 'professional Engineer' with PEC could hold any post in any Engineering Organization where he is required to perform professional engineering work[s]. No non-graduate, in other words, could hold any professional position without his/her registration with the Pakistan Engineering Council [PEC]
10. Moreover, according to the Petitioners, HESCO in an unjustified manner held its' 83rd meeting of BoD on 29.06.2012 [Annexure 'G-4' to the MoP] wherein, per H.R. Committee's recommendations, the BoD. Of HESCO consequently approved the conversion of 10 posts of 'Matriculation quota' of UTS [BPS-16] to 'Graduate quota' for accommodation of qualified UTS as Junior Engineers in HESCO. The relevant part of the minutes under AGENDA-3 reads as follows:- "AGENDA-3 Conversion of 10 posts of Matriculation quota of U.T.S. (PBS-16) to Graduate quota for accommodation of qualified UTS as Junior Engineer in HESCO (Recommended by H.R.
Committee).
' Admn. And H.R. Director briefed that we have 37 vacant posts of Junior Engineers. To fill in these posts the policy says that ratio of 70:30 is adopted. The 70% posts require to fill in from direct quota and 30% through promotion. The promotion quotais further distributed as below:
(i) UTS (LS-I/SSO-I) B . E. 5%
(ii) UTS (B.Tech.) 5%
(iii) UTS (Diploma) 7-1/2%
(iv) UTS (Matric) 12-1/2% ' The room against quotas from S.Nos.1 to 3 is full except remaining one or two posts however the vacant room of 17 posts is available in Matric quota and not a single candidate is available in Matric quota. These number of vacancies are lying vacant since years. On the other hand the Graduate UTS who are also eligible for promotion are available therefore, management considered it in the interest of Company and work that at least 10 posts from Matric quota may be shifted to Graduation quota so that eligible UTS may be promoted. If some Matric UTS will become eligible in a future the remaining 7 posts will also lying vacant for them. Chairman enquired about the union point of view it was replied that they must be asked to protect the quota of Matric officials and we are leaving 7 posts for that category. CEO HESCO further observed that if we are filing these vacancies through Advertisement the lot of pressures will facv by the management therefore, we have the lot of Graduate subordinate officials working as LS-I/SSO-1 and they possess the service/experience of more than 20 years. The Secretary further pointed out that H.R. Committee has also recommended the point and the draft minutes have been placed with the agenda at Page No,36.
Decision. As H.R. Committee recommended that BoD approved shifting of 10 posts of Junior Engineers from Matric quota to Graduate quota. [Underlining is ours]
11. Earlier all the power supply companies were also directed to induct the 'Upper Technical Staff' graduates Engineers against the positions of BPS-17 without taking other mandatory training. In this regard reference was made to letter No,1775-89/MDP/E-II/22/1/ 58/Loose-8-98 dated 6th May, 2010 written by Director [Personnel Affairs] PEPCO to Chief Executive Officer DISCO's, GENCO's and NTDC.
12. Nonetheless, the Petitioners and other graduate Engineers were deprived of their valuable and considerable right of promotion through direct induction. Moreover, the promotion to the post of Junior/Assistant Engineers in the aforesaid percentage referred to under Agenda-3 in the BoD's 83rd meeting of HESCO is illegal and in violation of law. According to the Petitioners the decision of BoD of HESCO, which was taken in its 83rd meeting, held on 29-6-2012, in the light of recommendation of HR Committee, per Petitioners' stand, the approval of such conversion of 10 posts from 'Matric quota' of UTS [BPS-16] to 'Graduate quota' for the accommodation of qualified UTS as Junior Engineers in HESCO is illegal and against the law.
13. The respondent No,7 [Chief Executive Officer of HESCO] on service filed a very detailed and comprehensive 'counter affidavits' in response to the MoP as well Injunction Application [C.M.A.
No,1016 of 2013] wherein all the allegations and assertions of the petitioners were specifically and forcefully denied. According to respondent No,7, the instant petition as 'framed' and 'filed' is bad for 'non-joinder' of necessary party i.e, HESCO. Without impleading the HESCO as a party in the petition [which is a very essential and proper party], no effective order can be passed in the absence thereof. The petitioners as well as respondent No,7 are all paid employees of HESCO as such, respondent No,7 is not a competent person and/or otherwise, vested with any authority/jurisdiction to grant any kind of relief to his junior colleagues on his own will and wish. Such relief until and unless is duly sanctioned/approved by the employer [HESCO] through its' BoD will be of no legal effect.
14. HESCO, it is worth to note, is a Company duly registered under the Companies Ordinance, 1984 [XLVII of 1984] having no statutory rules for appointment, transfer and promotions of its' employees.
The present Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 in view of this score as well is not maintainable. The petitioners albeit, without pin- pointing any violation of statutory rules and/or law cannot be deemed as aggrieved persons.
Beside, without showing any vested legal right and establishing breach thereof, the petitioners could not invoke the jurisdiction of this court under Article 199 of the Constitution of Pakistan, 1973.
15. Moreover, the petitioners as being employees of HESCO in their capacity[ies] as Sub-station Operators and Line Superintendents [i.e, SSO-I and SSO-II and LS-1] have illegally and malafidely joined the Federation of Pakistan, Secretaries of Establishment/Cabinet Division, Chairman WAPDA, Chairman PEC, Chairman PEPCO, Member Power Ministry of Water and Power as parties un- necessarily. The instant Petition is also bad for non-joinder/misjoinder of necessary and proper parties. None of the aforesaid parties has played or otherwise, can play much-less any active role in the Petitioners' employment in HESCO. Further, no any specific relief has been sought by the Petitioners against any of the aforesaid unnecessary, un-essential and improper parties. HESCO, PEPCO and WAPDA in their own independent capacities are not parties in the instant Petition. On this ground as well the Petition is in-competent in law. The Petition as brought against the Official designations or titles is bad in form as such must fail/liable to be dismissed.
16. Needless to say, that in HESCO one category of a Graduate Engineers is initially appointed as Sub-Station Operator [SSO-II] in 'BPS-11' and after 05 years of service they are considered for promotion against the post of SSO-I in 'BPS-13'. Serving for 5 years in 'BPS-13' qualified Engineers thereafter are considered for promotion against vacancy[ies] of Junior Engineers in 'BPS-17' if, available in 5% quota of Upper Technical Sub-ordinates [UTS]. The same however, is subject to passing of Departmental Promotion Examinations [In short DPE]. Per Respondent No,7's versions such are the pre-requisites for consideration of promotion of a UTS to a higher grade i.e, BPS-17.
17. Apart from the above, the another category of Graduate Engineers is of those Graduate Engineers who are initially appointed as Line Superintendents [LS-1] or as Sub-Station Operator [SSO-I] in 'BPS-13' and thereafter they become eligible to be considered for promotion against the posts of Junior Engineer[s] if, available under 5% quota. Every candidate, however, needs to be considered for promotion only after undergoing through the 'mandatory training' and passing of the DPE. In such process of promotion the seniority-cum-fitness criteria is also strictly observed.
18. Out of the petitioners those who have undergone the 'mandatory training' as well as passed the DPE, no doubt, per respondent No,7 stand, will be considered for promotion when vacancy[ies] of Junior Engineer in 'BPS-17' under 5% quota become available. In HESCO, the UTS with a minimum of 5 years regular service in his own cadre/grade, becomes eligible and entitled for consideration to be promoted against vacant posts of Junior Engineers. In 'BPS-17'. This, however, is subject to availability of vacancy[ies] in 5% quota, passing of DPE and completion of the 'mandatory training'.
It is significant to note that none of the present petitioners except a few Petitioners have passed the DPE and undergone the mandatory training. None of the un-qualified Petitioners can be considered for promotion. In the long run, however, on availability of vacancy[ies] of Junior Engineers in 'BPS-17' under 5% quota, the eligible LS-1 or SSO-I including the eligible petitioners, of course, would be considered for promotion in 'BPS-17'.
19. As far as the 'Special Graduate Allowance' is concerned, the Petitioners in their capacities as employees of HESCO and not of WAPDA [as alleged in Para 2 of the MoP] are not entitled to claim the 'Special Graduate Allowance' from HESCO. Reference, in this regard, has also been made to the letters of appointments issued by HESCO and duly accepted by the petitioners [Ref. Annexure 'A-3' to 'A-39' to the Mon The three documents [Annexures 'E' to 'E-3' to the MoP] relied upon by the petitioners beside irrelevant are not binding on HESCO. The same pertain to and deal exclusively the Graduate Engineers who are working in WAPDA and not in HESCO in 'BPS-17' and above. The said Office Memorandum dated 30th August, 2008 [Annexure 'E-1' to the MoP] and Office Order dated March, 21, 2009 [Annexure 'E-2' to the MoP] beside irrelevant are not applicable to the Graduate Engineers of HESCO. Admittedly, the Petitioners are Graduate Engineers [B.E.] serving in 'BPS-11' and 'BPS-13' Upper Technical Subordinates [In short UTS] in HESCO and thus do nothing with the WAPDA.
Manifestly, under the aforesaid 'Office Memorandum' and 'Office Order', none of the Petitioners is entitled to claim or otherwise, can be allowed 'Special Graduate Allowance' as they are neither working in 'BPS-17' nor are the Employees of WAPDA.
20. On 14-10-2014, when the above petition came-up before us, we heard Mr. Malik Naim Iqbal, learned counsel for petitioners, Mr. Ansari Abdul Lateef learned counsel for respondent No,7, Mr. Ghulam Haider learned Standing Counsel and with their valuable assistance also gone through the available record before us minutely.
21. Mr. Malik Naim Iqbal, learned counsel for Petitioners, forcefully contended that the policy of HESCO regarding promotion amongst UTS Graduate Engineers besides vague is un-fair. According to the learned counsel, the petitioners have not been given the status of Upper Technical Staff [UTS]. Not only this, the 70% quota placed for 'direct recruitment' is not only illegal but the same has also been unlawfully filled by calling candidates from other provincial companies without any advertisement. Such exercise of power by HESCO is not only mala fide but also is a gross violation of the Rules and Regulations. Mr. Malik Naim Iqbal while, arguing the case further contended that the filling of 70% posts through direct recruitment and 30% through promotion from the reserved quotas under the HESCO' s Policy is also unjustified. Like-wise, the shifting of' I() posts of Junior Engineers from 'Matric quota' to 'Graduate quota' besides illegal is improper.
22. Moreover, the HESCO has illegally compelled the petitioners to go through the process of Departmental Promotion Examination [DPE] as well as the 'mandatory training'. Mr. Malik Naim Iqbal, learned counsel for the Petitioners next argued that passing of DPE and of going through mandatory training for promotion to 'BPS-17' is not necessary as the petitioners and other graduate Engineers are exempted from the passing of the Departmental Promotion Examination [DPE] and mandatory training. According to Mr. Malik Naim Iqbal, the Petitioners and all other Graduate Engineers of HESCO in fact are entitled to be promoted by 'transfer'/'induction' and not through promotion as the word 'Promotion' has been substituted by 'Induction'.
23. Mr. Malik Naim Iqbal, learned counsel for the Petitioners while, further elaborating his arguments focused our attention towards' letter of PEPCO No,21775-89/MDP/E-II/22/1/58/Loose-8-98 dated 6th May, 2010 [Annexure 'C' to the MoP] and vehemently submitted that the Graduate Engineers, working as UTS are to be appointed/inducted afresh.
24. Due to the aforesaid illegalities committed by the respondents and for redressal of their grievances the petitioners have approached this court under its' Constitutional Jurisdiction. The instant Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, per learned counsel for the Petitioners, is not only maintainable but also deserves to be granted as prayed.
25. Mr. Ghulam Haider Shaikh, learned counsel for respondent No,8 [PEC] while, adopting the arguments of Mr. Malik Naim Iqbal, further argued that Pakistan Engineering Council [In short PEC] is a statutory body duly constituted under Pakistan Engineering Council Act, 1975 [Act V of 1975].
According to Mr. Ghulam Haider Shaikh, it is the PEC who is the only authorized body under the law to register the Engineers/professional Engineers and also to award recognition to their qualifications.
26. Learned counsel for respondent No,8, next contended that under section 2 (xxv)(c) of PEC Act, [Act V of 1975], the management of Engineering works in respect of all engineering disciplines are deemed to be 'Professional Engineering Works'. Such professional Engineering works under section 27 of the Act, 1975 [Act V of 19761 can only be undertaken/executed by Engineers who are duly registered with PEC. In terms of section 27, whoever undertakes any such professional engineering work shall without his name is borne on the Register, shall be liable to be punished with imprisonment for the period specified therein. For better understanding section 27 of Pakistan Engineering Council Act, 1975 [Act V of 1975] is reproduced as follows:--- "27. Penalties and procedure:-
(1) After such date as the Federal Government may, after consultation with the Council, by notification in the official Gazette, appoint in this behalf, whoever undertakes any professional engineering work shall, if his name is not for the time being borne on the Register, be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both, and, in the case of a continuing offence, with a further fine which may extend to two hundred rupees for every day after the first during which the offence continues.
(2) After the date appointed as aforesaid, whoever employs for any professional engineering work any person whose name is not for the time being borne on the Register shall be punishable, on first conviction, with imprisonment for a term which may extend to six months, or with fine which may extend to five thousand rupees, or with both and on a second or subsequent conviction, with imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both.
(3) Whoever willfully procures or attempts to procure himself or itself to be registered under this Act as a professional engineer or consulting engineer by making or producing or causing to be made or produced any false or fraudulent representation or declaration, either orally or in writing, and any person who assists him therein shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.
(4) Whoever falsely pretends to be registered under this Act, or not being registered under this Act, uses with his name of title any words or letters representing that he is so registered, irrespective of whether any person is actually deceived by such pretence or representation or not, shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.
(5) No person undertaking any professional engineering work shall, unless he is registered under this Act, be entitled to recover before any court or other authority any sum of money for services rendered in such work.
(6) No court shall take cognizance of any offence punishable under this Act save on complaint made by, or under the authority of, the Council. [Underlining is ours]
(7) No court inferior to that of a Magistrate of the first class shall try any offence punishable under this Act.
27. According to Mr. Ghulam Haider Shaikh, learned counsel for Respondent No,8 [PEC], the 'Professional Engineering Works' can only be performed/executed by a registered Engineer/Professional Engineer with PEC. Non-compliance of the Provisions of the Act, 1975 [Act V of 1976], no doubt, would expose the Employer and Employees to penalties mentioned therein. The functions of the Respondent No,8 have been defined in section 8 of the Act, 1975 [Act V oi 1976]. For ready reference section 8 of the Act, 1975 [Act V of 1976] is also reproduced below:--- "8. Functions of the Council.--- The following shall be the functions of the Council, namely:---
(a) Maintenance of a Register of persons qualified to practice as professional engineers and consulting engineers;
(b) Recognition of engineering qualifications for the purpose of registration of professional engineers and consulting engineers;
(c) Removal of names from the Register and restoration to the Register of names which have been removed ;
(d) Laying down of standards of conduct for the members;
(e) Safeguarding the interests of the members;
(f) Promotion of reforms in the engineering profession: [Underlining is ours]
(g) Management of the funds and properties of the Council ;
(h) Promotion of engineering education and review of courses of studies in consultation with the Universities ;
(i) Levy and collection of fees from applicants for registration or temporary licenses and members;
(j) Exercise of such disciplinary powers over the members and servants of the Council as may be prescribed ;
(k) Formation of such committees as may be prescribed; and
(1) Performance of all other functions connected with, or ancillary or incidental to, the aforesaid functions."
28. Per Mr. Ghulam Haider Shaikh, learned counsel for PEC [respondent No,81, the provisions of the Act, 1978 [Act V of 19761, are wide enough to cover cases of all those persons who are employed in any private or Government organization or otherwise, to undertake any professional engineering work, as defined under the Act, 1975 [Act V of 1976]. The Government, no doubt, can appoint a non- graduate engineer in any grade but if, the post involves performance of professional engineering works then such appointment would attract the penalties prescribed under the Act, 1975 [Act V of 1976]. T'he professional engineering work, per Mr. Ghulam Haider Shaikh could not be assigned to a person until and unless he is registered with the Pakistan Engineering Council under the Act, 1975.
This restriction is also applied to persons employed by the Government. No impediment, however, seems to be thdre for the Government to promote a Diploma Holder to a higher grade. In fact it is for the employer to see if, the promotion of a Diploma Holder to a higher grade is either linked with undertaking of professional engineering work or not. If it is linked, it cannot be granted. However, if, it is not then it can be granted.
29. Lastly, Mr. Ghulam Hader Sheikh, argued that since PEC does not recognize 'Diploma Holders' or '13.Tech' equivalent to B.Sc. Engineering degree thus any act to equate 'Diploma Holders or 'B.Tech' with accredited B.Sc. Engineering degree and/or otherwise, appoint the non-qualified persons on the posts involving 'professional engineering works' would, of course, be illegal. Per learned counsel, the Pakistan Engineering Council [PEC], since long time is issuing letters/circulars to various Engineering Departments/Organizations for asking them to ensure that 'Professional Engineering Works' are not assigned to Diploma Holders, B.Tech and other un-qualified persons in violation of law.
30. Mr. Ghulam Haider Sheikh, in support of his contention has placed reliance on the case of Muhammad Sadiq and others v. University of Sindh and another [PLD 1996 SC 1821 wherein it was observed as follows:--- "10. ...Whether B. Tech (Pass) or B. Tech. (Honours) can be recognised by the Government of Pakistan or other Government functionaries for in or promotion. The same has been dilated upon exhaustively by a Full Bench of this Court comprising the Chief Justice and four companion Judges in the case of Fida Hussain v. The Secretary, Kashmir Affairs and Northern Affairs Division, Islamabad and another (PLD 1995 SC 701), in which it has' been held that the Government had the exclusive domain to decide, whether any particular qualification would be considered sufficient for promotion from any particular grade to a higher grade and that the Government is vested with the power to change such policy' from time to time, whereas Pakistan Engineering Council has exclusive domain to decide, as to whether a particular qualification could be equated with another academic qualification but it has no power to say that a civil servant/employee holding a particular academic qualification could not be promoted from a particular grade to a higher grade...." [Underlining is ours]
31. On the other hand, Mr. Ansari Abdul Lateef, learned counsel for respondent No,7 [Chief Executive Officer HESCO], forcefully contended that HESCO has its' own policy of promotion which is fully binding upon the petitioners. According to Mr. Ansari, all the petitioners are employees of HESCO and not of WAPDA as alleged by them. The petitioners, indeed, are well aware of the 'terms' and 'conditions' of their appointments. While, elaborating his arguments, Mr. Ansari Abdul Lateef also referred to their Letter of Appointments [i.e, Annexures 'A-3' to 'A-39' to the MoP] and forcefully contended that the Petitioners now cannot take a U-Turn to wriggle out of their 'terms' and 'conditions' of service, mutually agreed upon between them and the HESCO.
32. Mr. Ansari Abdul Lateef next argued that in terms of para 'c' of PEPCO Policy Letter No,21775- 87/MDP/E-11/22/1/58/Loose-8-98 dated 6th May, 2010 [Annexures 'C' to the MoP], Departmental Promotion Examination [DPE] and Mandatory Training, are the pre-requisites for promotion. For better understanding the aforesaid Letter No,21775- 87/MDP/E-II/22/1/58/Loose-8-98 dated 6-5- 2010 is reproduced here in below:--- ' PEPCO PAKISTAN ELECTRIC POWER COMPANY (PVT.) LIMITED OFFICE OF THE MANAGING DIRECTOR (PEPCO) WAPDA HOUSE, LAHORE 21775-87/MDP/E-11/22/1/58/Loose-8-98 Dated: 06-5-2010
1. All Chief Executive Officers (DISCOs) (Except CEO PESCO)
2. All Chief Executive Officers (GENCOs)
3. Chief Executive Officer (NTDC)
Subject: INDUCTINO OF UPPER TECHNICAL SUBORDINATE STAFF ' In the light of several queries received from filed formations regarding this office order No,25960- 85/MDP/E- 11/22/1/58/Loose-8-95 dated 20-12-2008, the undersigned is elaborate the following contents of office order as under:---
(a) This office confirms the contents of this office Order No,25960-85/MDP/E-11/22/1/58/Loose-8-95 dated 20.12.2008 vide which the word "promotion" was substituted by "Induction".
(b) The Graduate Engineers, working as UTS are to be appointed/inducted afresh in the light of Office Memorandum No,D/DD/(Rules)07453/3/V/3400-35300 dated 16-9-2005.
(c) Induction criteria should be followed as per laid down procedure. Departmental promotion Examination and mandatory training are pre-rquisite for promotion and not for induction.
[Underlining is ours] Sd/- (Syed Masood Ahmed) Director (Personnel Affairs) PEPCO CC. Master file"
33. The petitioners on becoming eligible, indeed, would be considered for promotion , as soon as vacancies occur under 5% quota on the basis of seniority-cum-fitness plus after undergoing the 'mandatory training' and passing of the Departmental Promotion Examination [DPE]. Out of the petitioners, only a few Petitioners presently have passed the DPE and have also undergone the mandatory training. As far as the other petitioners are concerned, at present they are not eligible for promotion. The petitioners stand for induction straight away on the basis of the PEPCO's aforementioned letter is not only misconceived but also misleading.
34. Per Mr. Ansari, ihe Petitioners and all others, who are HESCO's employees, on attaining the 'eligibility criteria' would , indeed, be considered for promotion on the basis of seniority-cumfitness, however as and when vacancies occur in the reserved 5% quota. All those petitioners who do not fall within the ambit of the 'prerequisite criteria' would, of course, not be eligible for promotion [i.e, from SSO-11 to SSO-I (` BPS-13') and from LS-1 (UTS) 'BPS-13'] to 'BPS-17' until and unless they satisfy and fulfill the pre-requisite criteria. Mr. Ansari Abdul Lateef vehemently argued that the documents relied upon by the Petitioners [Annexures 'E' to 'E/3' to the MoP] are irrelevant as they exclusively pertain to the Graduate Engineers who are working in WAPDA in 'BPS-17' and above. The aforesaid documents besides being not binding are absolutely irrelevant as far as the 'Graduate Engineers' of HESCO are concerned. All the Petitioners admittedly are serving in 'BPS-11' and 'BPS-13' in HESCO and the HESCO, needless to say, is an independent legal entity whose affairs are knowingly run and managed by its' own Board of Directors [BoD].
35. Mr. Ansari also strenuously contended that none of the petitioners is entitled to be allowed 'Special Allowance' as having been allowed to the Graduate Engineers in 'BPS-17' and above working in WAPDA. Besides, HESCO has never received any 'advice' from PEC [Respondent No,8] with regard to the so called 'clarification' and 'containment of anomaly' in the process of induction and promotion of non-graduate Engineers to higher scale positions . None of the Petitioners is working in 'BPS-17' and above, as such on the basis of the following Office Order of PEPCO cannot be allowed the 'Special Allowance'. The PEPCO's Office Order No,GM (HR)/HRD/A.587/2196-2234 dated 21st March, 2009 being relevant is reproduced herein below: PEPCO "Pakistan Electric Power Company (Pvt.) Limited ' Office of the General Manager (Human Resources)
189-WAPDA House, Shahrah-i-Quaid-i-Azam, Lahore.
Tel: (042) 9201989 and 9202211/2139 Fax: (042) 9202492, Email: saelainraia@hotmail.Com Ref:# GM(HR)/HRD/A-587/2196-2234 Date: March 21,2009 OFFICE ORDER Subject: SPECIAL ALLOWANCE PEPCO BOD has been pleased to accord approval for grant of " Special Allowance" at a uniform rate of Rs,10,000 (Rupees ten thousand only) per month for Graduate Engineers in all Engineering Cadres of BPS-17 and above, working in Corporatized Entities and allied Power Wing Head Offices under PEPCO with effect from 20.02.2009. [Underlining is ours] Sd/-21-3-09 (Abdur Rehman) , General Manager (HR) PEPCO CC.To:-
(1) CFO PEPCO
(2) Advisor PEPCO
(3) Sr.GM/ GMs PEPCO
(4) ED (L&CA)/Company Secretary PEPCO
(5) All CEOs, DISCOs/NTDC/GENCOs
(6) All Finance Directors, DIS0s/NTDC/GENCOs
(7) C.E. (Admn.) Power PEPCO
(8) DG (IS) PEPCO
(9) Sr. B&AO PEPCO
(10) SO. To MD-PEPCO
(11) PA to Member (Power) (12).Master File"
36. Since HESCO and its Board of Directors [BoD] are not parties to the instant petition as such the present petition is also bad for non-joinder of necessary party[ies]. Moreover, no decision taken by the Board of Directors [BoD] of HESCO has been questioned/challenged in the instant Petition.
According to Mr. Ansari, in the absence of HESCO as party, no effective order can be passed and/or otherwise enforced against the HESCO. Neither any decision of PEPCO and/or WAPDA is binding nor can be enforced against HESCO much-less in the proceedings to which HESCO is not a party.
Lastly, Mr. Ansari prayed for dismissal of the Petition with cost.
37. Mr. Abdul Sadiq Tanoli, learned Standing Counsel while, adopting the arguments of Mr. Ansari Abdul Lateef, further argued that the petitioners have sought no relief against the respondents Nos.1, 3 and 4. Per learned Standing Counsel, the answering Respondents are 'pro forma parties' in the instant Petition in fact have been joined to give jurisdiction to this Court. Learned Standing Counsel further submitted that the Petitioners in actual fact are contract employees of HESCO and not of WAPDA. HESCO being a Company registered under Companies Ordinance, 1984 independently run and managed its' affairs and business through its' duly constituted Board of Directors [BoD]. The prayer for the so-called release of the 'Professional Graduate Allowance' to the graduate Engineers of HESCO besides misconceived is misleading. The petitioners, nonetheless, are not aggrieved by any order of the respondents Nos.1, 3 and 4. Per learned counsel, the instant Petition as framed and filed is devoid of merits as such is liable to be dismissed with costs.
38. Heard arguments and perused the record available before us.
39. Before proceeding further it would be appropriate to refer to the 'Note' dated 18th' January, 2013 of the Deputy Registrar [Writ] then put-up before the Hon'ble Chief Justice of this Court for passing thereon proper and necessary orders regarding entertaining of the instant Petition. From perusal of the record it appears, that on 18th January, 2013, the present Petition was ordered to be entertained at the Principal Seat at Karachi.
40. In answer to the contents of MoP as well as Injunction Application [C.M.A. No,1016 of 2013] detailed 'counter affidavits'/'objections' have been filed on behalf of respondent No,7 wherein inter alia specific objections regarding the maintainability, 'non-joinder' and 'misjoinder' of the necessary parties have been raised. Some of the relevant paras [i.e, paras 3, 4, 8 and 10 under the heading PRELIMINARY/LEGAL OBJECTLIONS] read as follows:- 3.. That instant Petition of the Petitioners is bad for Nonjoinder/Non-impleadings of necessary, essential and proper Party in absence of which no effective Order can be passed by this honourable Court as such the Petition of the Petitioners is liable to be dismissed exclusively on this ground.
4. That admittedly Answering Respondent No,7/CEO HESCO Hyderabad so also all the Petitioners abovenamed are paid Employees of HESCO as such an Employee may be of a Higher/Senior Grade/Cadre is not empowered and vested with jurisdiction to grant any relief to any of his Junior Colleagues on his own till such relief is sanctioned/approved by the Employer hence the Petition of the Petitioner is liable to be dismissed on this ground also.
8. That the Petitioners have illegally, intentionally, malafidely and unnecessarily joined Federation of Pakistan, Secretariats of Establishment/Cabinet Divisions in Federation, Chairman WAPDA, Chairman Pakistan Engineering Council, Chairman PEPCO and Member (Power) in Ministry of Water and Power when while serving as SSO-1, SSO-II and LS-I in HESCO none of the said Parties have played any Role in the Petitioners employment with HESCO nor any relief has been claimed by the Petitioners from any of these unnecessary, unessential and improper Parties as such the Petition is liable to be dismissed on this ground also.
10. That in One category a Graduate Engineer in HESCO is initially appointed as Sub-Station Operator (SSO-II) in BS-11 and after 5 Years of Service the incumbent will be considered for Promotion against the Post of SSO-1 in BS-13 and after serving for 5 Years the incumbent will be eligible to be considered for Promotion against a post of Junior Engineer in BS-17 only when there is a Vacancy available in 05% Quota of Upper Technical Sub-Ordinates (UTS) with passing of Departmental Promotion Examination (DPE) and after undergoing the Mandatory Training on Seniority-cum-Fitness bases which is the Prerequisite criteria for a UTS to be considered for next Higher Grade Promotion.
41. Apart from the above, in para 9 of the 'Counter Affidavit'/Objections under the heading 'REPLY TO FACTS' it has been categorically averred as follows:--- "9. That in reply to contents of Para 10 of the Memo of the Petition of the Petitioners it is submitted that the Petitioner's Annexure "E" to Annexure "E3" exclusively pertains to Graduate Engineers who are serving in WAPDA in BS-17 and above as such the said Order dated 30-8-2008 and Office Memorandum dated 21-3-2009 are not applicable to the Graduate Engineers of HESCO who are not in BS-1 and Petitioners being Graduate Engineers serving in BS-11 and BS-13 Upper Technical Subordinates (UTS) have nothing to do with WAPDA alleged Office Memorandum/Order and none of the petitioners is even eligible to be allowed Special Allowance whatever has been allowed to BS-17 and above Graduate Engineers in WAPDA as such the allegations of the Para under reply being irrelevant as the Grade/Cadre of the petitioners UTS are concerned are denied."
42. Despite such specific denials/averments, the petitioners however, in their own wisdom either ignored and/or avoided to file any 'affidavit-in-rejoinder' in rebuttal thereof. The averments/assertions so made on 'oath' have thus gone un-rebutted/un-challenged. Besides the petitioners also failed and/or avoided to take necessary steps for joining HESCO in above petition as party. Under the facts and circumstances of the case and particularly in absence of HESCO as party, the petitioners are absolutely not entitled for any of the relieves sought against the HESCO. In absence of any rebuttal we are bound to accept the same as true and correct in view of the cases of (a) Maqsood Ali and others v. Government of Sindh through Secretary, Local Government, Public Health Engineering, Rural Development and Katchi Abadies Department and 5 others 2007 YLR 2243 and (b) Abdul Rauf and 10 others .v. Government of Sindh and others [2003 CLC 1602 D.B.] wherein the Division Benches of this Court have observed as follows:--- "...Neither the respondents Nos.2 and 6 nor any other functionary of the Provincial Government has cared to file an affidavit or even comments explaining'their version of facts. As such we are bound to accept the contention of the petitioners affirmed on oath..." ... The detailed counter-affidavit has been filed by the private respondents as well as parawise comments have been filed by the official respondents. In the counter-affidavit private respondents made serious allegations of forgery and manipulations in the record. The said allegations have not been denied by the petitioners by filing the rejoinder affidavit and as such the same go without any rebuttal."
43. Significantly, Hyderabad Electric Company Limited [HESCO], is a Company which was formed to take over/acquire all the properties, assets and liabilities of Hyderabad Area Electricity Board, then owned by Pakistan Water and Power Development Authority [In short WAPDA]. The aforementioned Company was incorporated on 23rd April, 1998 and for the commencement of its' business a Certificate was also issued to it on 1st July, 1998 under section 146[2] of Companies Ordinance, 1984 [XLVII of 1984]. The Company [HESCO] thus is a separate legal entity to manage and run its' affairs independently.
44. Needless to say, a Company under law can sue and be sued in its' own Corporate name and not in the names of its' agents or servants. A Company being a separate juristic person is distinct and different from its' shareholders. Moreover, a company is not mere alias for its shareholders nor merely an agent for them. Without an express provision of law, the liability of a Company cannot be termed and/or treated as the liability of the Chief Executive and/or its' Directors. The shareholders and Directors, under law, are not liable for the liabilities of a Company, save and except to the extent and in the manner as provided under the statute. In this regard reference can be made to the case of Tariq Saeed Saigol v. District Excise and Taxation Officer, Rawalpindi 111982 CLC 2387] wherein it was observed as follows:--- "10. ... It cannot be denied that the company, in law, is a separate juristic person, distinct from its shareholders and directors. The latter are not liable for its liabilities, except to the extent and in the manner provided under the Statute. In E.B.M. Company Limited v. Dominio Bank (AIR 1937 PC 279) it has been laid down that: "They believe it to be of supreme importance that the distinction should be clearly marked, observed and maintained between an incorporated company's legal entity and its actions, assets, rights and liabilities on the one hand, and the individual shareholders and their action" assets, rights and liabilities on the other hand."
' The position of the petitioner, was, that he carried on the business of the company and managed its affairs. The assets of the company in his hands were to be applied for certain defined objects. It is difficult to agree with the learned Assistant Advocate-General that section 3 creates a charge against the person of the petitioner rendering even his personal property liable to be appropriated for the recovery of the cess due from the company. In the absence of any express provision in the Ordinance to that effect, the liability of the company cannot be taken as that of the Chief Executive or the directors. As observed above, the assets of the company were entrusted to the petitioner for particular purposes. Bern of an office bearer he is an agent of the company. In law, a corporation is answerable not only for the acts of its agent, which they are lawful authorised to do but even for their unlawful and negligent acts, which they perform about its business, so authorised:"
[Underlining is ours]
45. Even a subsidiary company under law is separate legal entity and it's 'acts' and 'defaults' are not the acts and defaults of the parent Company. Likewise, for the acts and defaults of a parent company, the subsidiary Company cannot be made liable. Reliance in this regard is placed on the case of Pak American Fertilizer Ltd., Mianwali V. Amir Abdullah Khan and another [1984 CLC 2170] wherein it was observed as follows:--- "11. No doubt, both the appellant-company as well as the National Fertilizer Marketing Ltd. Are entirely owned by the Central Government, but that would not make them so indistinguishable from each other that the liability of one could be treated as liability of the other. Admittedly both were separately incorporated and the mere fact that shareholders of the one 'were also the shareholders of the other, did not suffice to treat them as one person. Reliance was placed on Re: Ebbw Vale U. D. C v. South Wales Traffic Area Licensing Authority (1) which laid down the rule:-- "...That a subsidiary company is not the agent of the parent company, but is an entirely separate entity. Its acts are not the acts of the parent company, and the parent company is not responsible for its acts or defaults... "
46. Evidently HESCO is a separate legal entity having no statutory rules and its' affairs are run and managed by its' Board of Directors. It is important to note that where the terms and conditions of service of the employees of a statutory body are not regulated by rules/regulations framed under the statutes but only under the rules or instructions issued for its internal use then in such like situation, a 'writ' normally cannot be issued. HESCO which knowingly is a separate legal entity having its' own Board of Directors for running of its' management and affairs do not become ipso facto bound by the decisions of 'WAPDA' and/or 'PEPCO' until and unless the same are properly approved by the BoD of HESCO. For seeking the relief under Constitutional jurisdiction of the court the principles of law summarised in the case of Pakistan Defence Officers' Housing Authority v. Lt. Col. Syed Jawaid Ahmed [2013 SCM R 1707] read as follows:---
50. (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. [Underlining is ours]
(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 an 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."
47. HESCO, which is not party to the present proceedings, by virtue of its Memorandum and Article of Association, is absolutely competent to run its affairs, management and administration as well as decide the cases of promotion etc. Of its' employees through its' Board. The guidelines issued for promotion clearly and explicitly declare that it is the Selection Board which shall consider the cases of eligible officers of BPS-17 and above. The relevant part of the guidelines reads as follows:--- "1. General: The Selection Board shall consider the cases of eligible officers of BS-17 and above in order of seniority and shall either recommend a case for promotion to the next higher grade or for suppression or deferment. While recommendation for special assignment/field, the principle of right man for the right job will be kept in view, because this principle directly contributes 'to increasing the efficiency, productivity and revenue earning for the department as well as job satisfaction for the individual."
48. It is also important to note that in the case of Hyderabad Electric Supply Co. v. Mushtaq Ali Brohi [2010 PSC 1392], an employee of Hyderabad Electric Supply Co., had challenged the award of major penalty of dismissal from service under the Ordinance, 2000 [XVII of 2000] in writ jurisdiction which was allowed. However, on assailing the same before Hon'ble Supreme Court of Pakistan the said judgment was set aside by holding that the service regulations are non-statutory, therefore, writ was/is not competent. In that case, however, the statutory intervention of Ordinance, 2000 [XVII of 2000] at the relevant time being in field, was not appreciated and/or considered.
49. Later-on inter alia the case of Hyderabad Electric Supply Co. v. Mushtaq Ali Brohi [2010 PSC 1392] came-up before the Hon'ble Supreme Court of Pakistan for consideration in the case of Pakistan Defence Officers' Housing Authority v. Lt. Col. Syed Jawaid Ahmed [2013 SCM R 1707]. Paras 56 and 59 thereof being relevant are reproduced herein below:--- "56. The legislative intent in the promulgation of Ordinance, 2000, inter alia, was that "persons in corporation service" in their service matters should be dealt with in accordance with the provisions of the said law and to ensure a fair deal/trial it was inter alia provided in the Ordinance that unless specifically so exempted by a reasoned order, the competent authority shall hold a regular enquiry against an employee accused of misconduct and that he shall have a right of appeal (Section 10 of the Ordinance)."
59. For what has been discussed above, the cases of this Court reported as (Pakistan International Airlines Corporation PLD 2010 SC 676, Executive Council Allama Iqbal Open University 2010 SCM R 1484 and Hyderabad Electric Supply Co. 2010 PSC 1392 Supra), we observe with respect, did not declare or enunciate any principle of law but were rendered in their own peculiar facts and circumstances and may not be treated as precedent on the issue we are seized of, because:---
(i) The issue before this Court in Executive Council Allama Iqbal Open University supra was only whether the Service Tribunal had jurisdiction to hear the appeal in view of the law laid down in Mubeen-us-Salam's case supra and whether the writ jurisdiction under Article 199 of the Constitution could be invoked in the event of violation of Ordinance, 2000.
(ii) In all the above cases, the point that irrespective of the Rules/Regulations being non-statutory the promulgation of Ordinance, 2000 was a statutory intervention and any violation thereof would be amenable to writ jurisdiction was not considered. In Hyderabad Electric Supply Co. 2010 PSC 1392 Supra, there was no allegation that there was any violation of any provision of the Ordinance 2000 and enforcement of Service Rules was sought which were found to be non- statutory. [Underlining is ours] .
(iii) Neither the mandate of Articles 4 and 10A of the Constitution nor the law laid down in Civil Aviation Authority through Director-General v. Javed Ahmad (2009 SCM R 956) and Azizullah Memon v. Province of Sindh (2007 SCM R 229) was considered in those cases."
50. From the perusal of the above, it is crystal clear that the Service Rules of HESCO are non- statutory as held in the case of Hyderabad Electric Supply Co. v. Mushtaq Ali Brohi [2010 PSC 13921.
51. Moreover, for seeking a relief under Article 199 of the Constitution the right of which a redressal is being sought must be an established vested bona fide right. Such right may be a statutory right or otherwise, recognized by law. Besides it must be clear and free from controversy that is to say it shall not require the recording of evidence. The object of proceedings initiated under Article 199 of the Constitution, it is significant to note, is for the enforcement and protection of a vested right and not for the establishment of the rights. The right, may not only be existing one but for its enforcing under constitutional jurisdiction the infringement thereof is also must. On this aspect of the matter from the case of Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others [2011 SCM R 18131 the relevant portions are reproduced as follows:---
10. It is incumbent upon party seeking constitutional remedy to show that such party has a clear legal right and that such right is so clear as not to admit of a reasonable doubt or controversy. High Court will not go into disputed questions of fact in Constitutional jurisdiction. This is more so when it is supported by attending circumstances and relevant record. Constitutional jurisdiction of High Court, cannot be converted into that of an appellate Court. Disputed questions of fact cannot be entertained or allowed to be reagitated in writ jurisdiction. When the relevant law provides other forums for the purpose. It follows that finding of fact recorded by appellate Court below on appraisal of evidence cannot be disturbed in writ jurisdiction. In constitutional jurisdiction Court does not go into a question involving minute details nor can it decide facts of which no foundation is laid, unless it is shown that such controversy is devoid of supporting record, or perverse." (M.H.
Abidi v. State Life Insurance Corporation 1990 M LD 563, Muhammad Nazim v. Rehana Parveen Begum 1990 M LD 344),
11. It is well-settled by now that "the superior Courts should not involve themselves into investigations of disputed question of fact which necessitate taking of evidence. This can more appropriately be done in the ordinary civil procedure for litigation, by a suit. This extraordinary jurisdiction is intended primarily, for providing an expeditious remedy in a case where the illegality of the impugned action of an executive or other authority can be established without any elaborate enquiry into complicated or disputed facts. Controverted questions of fact, adjudication on which is possible only after obtaining all typ'es of evidence in power and possession of parties can be determined only be courts having plenary jurisdiction in matter and on such ground constitutional petition was incompetent." (State Life Insurance Corporation of Pakistan v. Pakistan Tobacco Co. Ltd. PLD 1983 SC 280).
13. There is no cavil to the proposition that "it is generally accepted that the inherent jurisdiction should not normally be invoked where another remedy is available. Inherent powers are preserved to meet a lacuna in the Criminal Procedure Code in extraordinary cases and are not intended for vesting the High Courts with powers to make any order which they are pleased to consider to be in the interests of justice...." [Underlining is ours]
52. Nevertheless, while dealing with the breach of fundamental rights, under circumstances of the case, the mandate of two Constitutional Articles i.e, Article 4 and Article 10-A need to be kept in mind. Article 4 and Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973 read as follows:--- "4. Right of individuals to be dealt with in accordance with law, etc.--- (1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be and of every other person for the time being within Pakistan.
(2) In particular--
(a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law;
(b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and
(c) no person shall be compelled to do that which the law does not require him to do."
"10-A, Right to fair trial--- For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process."
53. As far as the present Petitioners are concerned they are HESCO's employees in their capacities as Sub-Station Operators SSO-I, SSO-II and Line Superintendents [LS-I] in BPS-13. The Upper Technical Sub-ordinates [UTS] in HESCO have been allocated 5% quota for promotion against the posts of Assistant Junior Engineers. Such promotion, however, is subject to the condition that the eligible candidates [UTS] must have undergone the mandatory training and passed DPE on the basis of seniority-cum-fitness. Knowingly such is a pre-requisite criteria for UTS to be considered for promotion to the next higher grade as per Promotion Policy of HESCO. The wish and desire of the Petitioners through induction besides misconceived is misleading.
54. The Petitioners are the employees of the HESCO [see appointment letters i.e, Annexures 'A' to 'A- 39' to the MoP] but they did not bother or deem it necessary to join HESCO and/or its' BoD in the present petition as party[ies]. In the 'counter affidavit' a 'specific objection' was raised regarding non-joining of HESCO but the same was ignored by the petitioners in their own wisdom. Despite such objection neither any 'affidavit-in-rejoinder' was filed nor otherwise, necessary steps were taken for impleading the HESCO and its' BoD in the instant petition. It is worth to mention that under Order I, Rule 10, C.P.C., two classes of persons namely necessary and proper parties can be joined.
The former class consists of persons whose joining is must. In the later class only those persons come, without whose presence, the questions involved, [as the case in hand is] cannot be completely and effectively adjudicated upon and/or enforced. In the case of Islamic Republic of Pakistan v. Abdul Wali Khan [PLD 1975 SC 463], the Hon'ble Supreme Court of Pakistan while dilating upon the aforesaid aspect of the matter has observed as follows:--- "Now a proper party is a party whose presence before the Court is necessary to enable the Court to effectually and completely adjudicate upon and settle all questions involved in the proceedings.
The terms "questions involved" include all matters, material to a proper decision of the case but the object of making such persons parties is to prevent multiplicity of proceedings. The person must, therefore, be a person whose interest is likely to be affected even though no relief is claimed against him. This does not, therefore, extend to persons who have no interest which is likely to be affected by the proceedings nor does it embrace persons only general interested in common with others nor can persons be added as parties so as to set up a new cause of action which does not concern the original parties."
55. The instant Petition has been filed against official designations or title of officers of HESCO, PEPCO and WAPDA who are in actual fact not legal or natural persons. Law on this point is very much settled that legal proceedings can only be filed/initiated by and against a natural or legal person. For this reason as well, the present Petition is bad in its' form as such not maintainable.
Reliance can be placed on the case of Secretary B&R Government of West Pakistan v. Fazal Ali Khan [PLD 1971 Kar. 625] wherein it was observed as follows:---
9. ".,.The appellants could not be sued with reference to their designations for their official act, unless they were 'Corporations sole', whereas they in fact are not. Only legal and natural persons can be sued as defendants in terms of Order I, rule 3, C.P.C. When no statute provides that. a public officer shall be a 'Corporation sole' and can be sued in its corporate name, as the case here is, he has to b,e sued under the ordinary law which becomes applicable. In support of his contention the learned counsel for the appellants has cited three decisions which are reported as the Sheriff of Bombay v. Hakamji Motaji & Co. (1), Manahem S. Yeshoova v. Union of India and others (2) and P.B.
Shah &'Co. And others v. Chief Executive Officer and others (3)
10. In the first cited case, suit had been brought against the Sheriff of Bombay in his official title and it was held in it as under:--- "Because one can bring a suit against a public officer in respect of acts done by him in his official capacity, it does not follow that one can sue that officer by his official name, just as if he was a 'corporation sole' ."
11. In the second reported case, suit was brought against the Collector of astoms and it was held in it as follows:--- "The Collector of Customs is not a legal entity, but is merely an office occupied by several persons from time to time as appointed by the authorities. Hence a suit cannot be filed against or in the name of Collector Customs."
12. In the third repotted case the suit was filed against Chief Executive Officer and City Architect of Corporation of Calcutta and it was held in this reported case as follows:--- "Where a statute provides that a public officer shall be a corporation sole and can be sued in his corporate name, the officer may be sued in that name. In the absence of such a provision, either in the Calcutta Municipal Act, 1951 or in any other statute that the person occupying the offices of the Commissioner, or the Chief Executive Officer and of the City Architect are corporation soles or that they or any of them may sue or be sued by their official titles. From time to time different persons occupy those offices. Therefore, under Order VII, rule 1(c), if the plaintiff intends to sue the persons who for the time being occupy those offices he must implead those persons by their individual names. In the eye of the law the so-called Chief Executive Officer and City Architect without the individual names of the person occupy those posts given in the suit title are not really on the record of the case." [Underlining is ours].
56. The Petitioners in the present case are relying on the letters pertaining to the years, 2008-2010.
For enforcing the so-called rights thereunder the instant Petition has been filed in the year, 2013 which, in our view, is also hit by the 'doctrine of laches'. It is needless to say, that a relief under writ jurisdiction besides extraordinary is discretionary. The persons who demonstrate a style of slackness and laxity, undoubtedly, cannot invoke such jurisdiction at his/their sweet will and wish.
While considering the grant of relief under writ jurisdiction the question of delay and laches has to be given a serious thought and consideration. Unless and until a 'plausible' and 'satisfactory' explanation is forthcoming then occurrence of such laches/delay should not be overlooked and/or ignored. The instant Petition, on this score as well is liable to be dismissed. Reliance can be placed on the cage of State Bank of Pakistan through Governor and another v. Hntiaz Ali Khan and others [2012 SCM R 280] wherein it was observed as follows:--- 30 ..."Laches is a doctrine whereunder a party which may have a right, which was otherwise enforceable, loses such right to the extent of its enforcement if it is found by the Court of law that its case is hit by the doctrine of laches/limitation. Right remains with the party but it cannot enforce it.
The limitation is examined by the Limitation Act or by special laws which have inbuilt provisions for seeking relief against any grievance within the time specified under the law and if party aggrieved do not approach the appropriate forum within the stipulated period/time, the grievance though remains but it cannot be redressed because if on one hand there was a right with a party which he could have enforced against the other but because of principle of limitation/laches, same right then vests/accrues in favour of the opposite party.
It is settled principle of our jurisprudence as well that delay defeats equity and that equity aids the vigilant and not the indolent. In the case of Jawad Mir Muhammadi v. Haroon Mirza (PLD 2007 SC 472), a full Bench of this Court has held that lathes per se is not a bar to the constitutional jurisdiction and question of delay in filing would have to be examined with reference to the facts of each case; question of delay/lathes in filing constitutional petition has to be given serious consideration and unless a satisfactory and plausible explanation is forthcoming for delay in filing constitutional petition, the same cannot be overlooked or ignored subject to facts and circumstances of each case.
' In this very case reference has also been made to words of Lord Camden L.C. From the judgment of Smith v. Clay (1767) 3 Bro. C.C. 639n at 640n wherein it has been observed that "a Court of equity has always refused its aid to stale demands, where a party has slept upon his right and acquiesced for a great length of time; nothing can call forth this Court into activity, but conscience, good faith, and reasonable diligence,' where these are wanting the Court is passive, and does nothing". Cited judgment also refers to a book titled Snell's Equity by John Meghee 13th Edition, wherein at page 35 it has been observed that "the doctrine of laches in Courts of equity is not an arbitrary or a technical doctrine; where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted in either of these lapse of time and delay are most material".
' In Member (S&R)/Chief Settlement Commissioner v. Ashfaoe Ali (PLD 2003 SC 132), this Court has held that "writ jurisdiction is undoubtedly discretionary and extraordinary in which may not be invoked by a party who demonstrates a style of slackness and laxity on his part. Law is well-settled that a party guilty of gross negligence and laches is nor entitled to the equitable relief."
[Underlining is ours]
57. As far as the issue/release of the 'Graduate Allowance' is concerned the petitioners [who are employees of HESCO and not of WAPDA] are absolutely not entitled to claim the same merely on the basis of WAPDA's letter No,S/AD(Coord)03003/MTG/585-86 dated 19th February, 2009 [Annexure `E' to the MoP] addressed by the Secretary WAPDA to the Director General Finance [B&C] and General Manager [Admn] only. This letter as well as PEPCO's Office Order No, GM(HR)/HRD/A- 587/2196-2234 dated 21st March, 2009 [reproduced hereinabove] beside irrelevant are not binding on HESCO. The BoD of HESCO has never accorded approval to the same. For convenience purpose and ready reference the letter of 19th February, 2009 is reproduced as under:-.
"WATER AND POWER DEVELOPMENT AUTHORITY ' 752-Wapda House Lahore (SEAL)
Secretary ' No,S/AD(Coord)03003/MTG/585-86 Dated 19/02/2009 ' Director General Finance (B&C) General Manager (Admn)
' Sub: MINUTES OF Authority Meeting Held on January 31, 2009 ' Following decision(s) were made by Authority, in its meeting held on January 31, 2009 in respect of item note relating to your organization: ' Item-18: Recommendations of Standing Committee on Pay and Allowances for grant of Special WAPDA Allowance (FO(B&F) /3-30/VolV1/2214-15 dt 6-1-2009)
Discussion It was informed that the "Special Engineering Allowance", 18.1 sanctioned by the Authority in its meeting dated 6.8.2008, was withheld with the direction to reexamine the case for entertaining officers of all cadres. Accordingly, Standing Committee on Pay and Allowances has re-examined all aspects of the case and recommended that a uniform "Special WAPDA Allowance" may be sanctioned for officers of all cadres.
' DGF(B&C) Decision The Authority accorded approval For restoration of "Special ' GM(Admn.) 18.2 Engineering Allowance" as "Special WAPDA Allowance" at uniform rate of Rs,10,000 p.m. With immediate effect for WAPDA Graduate Engineers of all cadres.
' You are requested to take further necessary action under intimation to this Secretariat for the information of the Authority.
Sd/- Muhammad Imtiaz Tajwar Secretary WAPDA"
58. Bare perusal of the above would show that 'Special Engineering Allowance' at uniform rate of Rs,10,000 [Rupees Ten Thousand only] is only meant for the Graduate Engineers of WAPDA and not for HESCO's Graduate Engineers. Moreover, it is not the case of the Petitioners that at any earlier stage of service they or any of them had ever availed such 'Special WAPDA Allowance'. Be that as it may, on this ground as well the Petitioners are not entitled for any such allowance.
59. Likewise, the PEPCO's 'Office Memorandum' No,FO[B&C]/10- 66(b)/Vol-22/824-923 dated 30th August, 2008 only speaks about sanction of a uniform Special Engineering Allowance Rs,10,000/- [Rupees Ten Thousand only] per month to Graduate Engineers in BPS-17 and above serving in WAPDA and not Graduate Engineers of HESCO. The aforesaid Office Memorandum dated 30th August, 2008 reads as follows:--- ' PAKISTAN WATER AND POWER ' DEVELOPMET AUTNHORITY ' Telephone# 9202482 FINANCE DIVISION (REG)
' 9202211/2233 225-Wapda House Lahore ' No FO(R&F)/10-66(b)Vol-22/824-923 Dated 30-08-2008 OFFICE MEMORANDUM Subject:- GRANT OF SPECIAL ENGINEERING ALLOWANE The Authority has been pleased to sanction a uniform "Special Engineering Allowance @ of Rs,10,000 p.m. (Rs, Ten Thousand only) to the graduate engineers in BPS-17 and above serving in all Engineering Cadres in Wapda.
Sd/- (Muhammad Farooq Memon)
Director Finance (Regulations)
Distribution:-
1. All General Manager, Wapda
2. All Chief Engineers, Wapda
3. All Head of Divisions, Wapda
4. Managing Director PEPCO
5. Secretary Wapda w.r.t. Minutes of the Authority meeting issued vide No,S/AD/(Coord)/0303/MTG/1988 - 94 dated 20-8-2008
6. All Project Directors, Wapda
7. All Superintending Engineers Wapda
8. Director General Wapda Audit
9. Chief Auditor Wapda, Al-Jannet Building, Bank Square Nila Gumbat Lahore
60. From all the above it is crystal clear that aforesaid 'Special Engineering Allowance' at uniform rate of Rs,10,000 [Rupees Ten Thousand only] is only for 'Graduate Engineers' in BPS-17 and above.
The Petitioners admittedly are not 'Graduate Engineers' of BPS-17 and above as such none of them is entitled to claim the said allowance on the basis of the aforesaid Office Memorandum.
61. With regard to the grant of 'status of UTS' to the Petitioners, it is significant to note that the Petitioners are serving in HESCO [not in WAPDA] as SSO-I, SSO-II and LS-1. In HESCO one category of a 'Graduate Engineers' are initially appointed as Sub-Station Operator ISSO-II] and after a period of 05 years of service they are considered for promotion against the post of SSO-I in 'BPS-13' and after serving for 5 years in such capacity thereafter, they become eligible to be considered for promotion against the available posts/vacancies of Junior Engineers in 'BPS-17' in 5% quota of Upper Technical Sub-ordinates [UTS]. The promotion in 'BPS-17', is however, subject to passing of 'DPE' and of undergoing the 'Mandatory Training' on 'seniority-cum-fitness' basis. The aforesaid 'pre-requisite criteria' for UTS and promotion to next 'higher grade is well known to the petitioners since long.
62. Likewise, there is another category of 'Graduate Engineers' who are initially appointed as Line Superintendents [LS-I] or Sub-Station Operators [SSO-I] in 'BPS-13'. Thereafter they become eligible for promotion against the vacant posts of Junior Engineers under the reserved 5% quota. Before a candidate is considered for promotion, such candidate must have to undergo the Mandatory Training. Besides he has also to pass the DPE on 'seniority-cum-fitness' basis before the candidate is considered for promotion. In view of this position the stand taken by the petitioners is devoid of any merits.
63. At this point of time, we would like to reproduce herein the service particulars of petitioners Nos.1 to 20 per PEPCO's letter No,CEO/HESCO/Admin&HR Div/A-3/5449 dated 25th February, 2013 herein- below:---
64. {{TABLE}} SR. No, NAME OF PETITIONERS SERVICE PARTICULARS REMARKS Syed Saqib Jahangir Recently promoted as LS-I on 12-11-2012 Not Eligible for promotion as he has less than 05 years Service without DPE and Mandatory Training.
Fayaz Hussain Bugti Sub-Station Operator (SSO-II) He is to be promoted as SSO-I as such riot eligible.
Kashif Memon Sub-Station Operator (SSO-II He is to be promoted as SSO-I as such not eligible.
Tariq Hussain Khatri Sub-Station Operator (SSO-II) He is to be promoted as SSO-I as such not eligible.
Mashkoor Ali Memon Joined as LS-I on 8-2-2010 Length of service less than 05 years as such not eligible for promotion.
Wall Muhammad Memon Sub-Station Operator (SSO-H) He is to be promoted as SSO-I as such not eligible.
Ghulam Abbas Malookani Recently promoted as LS-I on 1-8-2012 No DPE/No Training and length of service less than 5 years, not eligible.
Altaf Ahmed DPE/Training Passed Would be considered for promotion against 5% Quota when vacancy available on Seniority-cum-Fitness basis.
Farhan Ahthed Memon DPE passed Training not done as such not eligible Arshad Ali Keerio Sub-Station Operator (SSO-II) He is to be promoted as SSO-I as such not eligible.
Masroor Ahmed DPE and Training Fail Not Eligible Tufail Ahmed Shaikh DPE and Training Passed Would be considered for promotion against 5% Quota when vacancy available on Seniority-cum-Fitness basis.
Tariq Hussain Depar Joined as LS-I on 1-8-2012 Length of service less than 5 years, not eligible.
Ghazanfar Ali Rajpar Joined as LS-I on 22-1-2010 Length of service less than 5 years, not eligible.
Muhammad Naeem Qairnlchani Joined as LS-I on 1-2-2011 Length of service less than 5. Years, not eligible.
Rafiq Ahmed Shah DPE/Training passed Would be considered for promotion against 5% Quota when vacancy available on Seniority-cum-Fitness basis.
Muhammad Usman Joined as LS-I on 22-2-2010 Length of service less than 5 years, not eligible.
Fazal Ahmed Memon DPE Fail Not Eligible Muhammad Saleem Soomro DPE/Training passed Would be considered for promotion against 5% Quota when vacancy available on Seniority-cum-Fitness basis Faiz Muhammad Memon DPE Fail Not Eligible
64. From the perusal of the aforementioned service particulars of petitioners Nos.1 to 20, it is quite evident that none of the petitioners except a few ones are qualified and/or entitled to be promoted.
The candidate to be considered for promotion against a vacant post under 5% quota, must fulfil the pre-requisite criteria. Without fulfilling such 'prerequisites', no candidate shall be eligible for promotion in 'BPS-17' under 5% reserved quota. Keeping in view this position the stand taken by the petitioners is clearly misconceived and misleading.
65. Besides, no illegality as alleged by the petitioners has ever been committed by HESCO in conversion of 10 posts of 'Matriculation quota' of UTS to 'Graduate quota' much-less for accommodation of the qualified UTS as 'Junior Engineers' in HESCO. No prejudice whatsoever has been caused to the Petitioners under the facts and circumstances of the case.
66. Any directives/instructions which are only applicable to the employees of PEPCO and/or WAPDA cannot be stretched so long to cover the cases of the Petitioners who are employees of HESCO and not of PEPCO and/or WAPDA. Merely on the ground that 'c.c.' has been forwarded to HESCO and others the same cannot be ipso facto deemed binding. The petitioners who are the employees of HESCO are to be governed by the 'terms' and 'conditions' of service which were duly understood and accepted. Now they cannot be permitted to unilaterally revoke and/or wriggle out of the 'terms' and 'conditions' having been mutually agreed upon by them and HESCO. Moreover, without the sanction of BoD of HESCO the 'terms' and 'conditions' of WAPDA and/or PEPCO's employees are meaningless and cannot be applied to the employees of HESCO automatically. Undisputedly the affairs and business of HESCO is managed and run by the BoD of HESCO independently.
67. So also the prayers/directives sought by the petitioners in the instant Petition, cannot be effectively enforced against HESCO and/or its' BoD as they are not party[ies] in the instant Petition.
The learned counsel for the petitioners did not cite any law and/or Rule which was either violated and/or under which the 'Graduate Allowance' can be claimed by or granted to the employees of HESCO.
68. Moreover, the petitioners have sued the Federation of Pakistan through the Secretary Water and Power and others through designations but in the body of MoP no any allegation has been levelled or otherwise any relief has been sought specifically against the Official Respondents. Apparently such impleadment of the Federation and others has been made only to overcome the objections that might have been raised by Writ Branch on the maintainability of the Petition. Such afterthought and misleading attempt on the part of the petitioners is not only mala fide but also unjustified. Rather to say, the petitioners have not approached this court with clean hands. On this score, as well the Petition besides not maintainable is liable to be dismissed.
69. As far as the arguments of Mr. Ghulam Haider Shaikh regarding the violation and/or enforcement of the provisions of the Act, 1975 are concerned, it is suffice to say that respondent No,8 [PEC] is at liberty to take suitable action against the persons who according to PEC are violating or had have violated any provision of Pakistan Engineering Council Act, 1975 [Act V of 1975] before the appropriate forum, however, strictly in accordance with law.
70. Upon consideration of the arguments advanced by the learned counsel for the parties and perusal of the record, we have reached the conclusion that the instant Petition besides not maintainable has no substance. Accordingly, the same is dismissed along with the pending application however, with no order as to costs.