' JAWAD HASSAN, J.--- Through the instant constitutional petition, the Petitioner has assailed the Office Order of the DG (HR and Admn) dated 28.11.2016 (the "Impugned Order"), whereby it was intimated that the meeting of Selection Board regarding promotion from Assistant Manager (Operation) to Deputy Manager (Operation) Gujranwala Electric Power Company (GEPCO) will be held on 28.11.2016.
2. The learned counsel of the Petitioner submitted that the Petitioner was serving as SDO and passed M.Sc. (Electrical) in October 2012 from the University of Engineering and Technology (UET) and submitted an application for promotion/induction on 14.02.2013 as Executive Engineer against the reserved quota for MSc in GEPCO. Further, the Petitioner also moved several applications for his promotion but no response was received. Therefore, the Petitioner has challenged the proceedings of the Respondent No,2 dated 28.11.2016 and also seeks consideration/promotion/induction from the said date i,e, 28.11.2016. The Petitioner contended that the proceedings of the Respondent/ Promotion Board are based on mala fide and discriminatory against the Petitioner as B.Sc SDOs will stand senior than the Petitioner. He submitted that the Petitioner was sole candidate for consideration as XEN as multiple complaints were pending against other candidates for consideration of induction as XEN, hence those were not fit for consideration. The learned counsel for the Petitioner contended that the selection process can be tested by High Court in its writ jurisdiction on touchstone of unreasonableness and discrimination. In this regard he relied on the case of Muhammad Munawar Jang Sher Qadri v. Government of the Punjab and 3 others (2013 PLC (C.S.) 96).
3. On the other hand, the learned counsel of the Respondents submitted that service Rules of GEPCO are not statutory; writ petition is not maintainable as has been held in the case of Pakistan International Airline and others v. Tanveer ur Rehman and others (PLD 2010 SC 676); that the Petitioner has already filed W.P. No,10379/2013, raising similar grievance which was dismissed on 12.11.2013 and the judgment was reported as Kamran Ahmad v. WAPDA and others (2014 PLC (C.S.)
332) and accordingly, Intra Court Appeal was also dismissed; that the Board of Directors of GEPCO has not approved any Rules for promotion of SDOs having M.Sc. Engineering, as such the Petitioner does not have any right to file writ petition; that there is no policy dated 16.04.1992 approved by the Board, so the entire assertion in that respect is incorrect.
4. Arguments heard and record perused.
5. It is manifest to note from the documents appended with the petition that on 14.02.2013 the Petitioner submitted an application before the CEO, GEPCO; Gujranwala for induction/promotion as Executive Engineer, which was replied by the HR and Admn Director that in light of WAPDA office memorandum dated 16.04.1992, the case of Petitioner is not fit for consideration because three years post qualification experience is mandatory for consideration. Importantly, the office memorandum of WAPDA dated 16.04.2016 specifically stated that Engineers having three years' relevant experience after M.Sc. Engineering may be considered for induction as Senior Engineer against the quotas.
6. Similarly, the Petitioner also submitted applications on 01.09.2016, 7.09.2016, 23.11.2016, 28.11.2016 and subsequently a legal notice to the same effect on 19.12.2016 for induction as Executive Engineer on the basis of M.Sc. With three years post qualification experience.
7 . On 28.08.2016, the Manager (HR and Admin) required the Petitioner, along with others, to produce certain documents/information in respects of Junior Engineers, not later than 30.08.2016, and the Petitioner submitted the required documents on 01.09.2016. Further, on 01.12.2016, the Manager (HR and Admin) required the Petitioner, along with others, to submit completion of record not later than 05.12.2016, in which it was mentioned at para 3 that in case of non-submission of required documents within time, it will be considered that officer concerned is not willing for induction as Senior Engineer.
8. However, the Petitioner replied to the letter of 01.12.2016 on 15.12.2016, that the copy of the degree of M.Sc. Electrical Engineering was provided on 09.12.2016 and copy of registration No,Elect/23358 has been submitted. The Petitioner further submitted that demanding said documents at this stage was mala fide and clear victimization because the Petitioner has already submitted applications and there was no hurdle for processing the matter for induction in the Board.
9. On 28.11.2016, the DG (HR and Admin) issued the Impugned Order, in which it was stated that the meeting of Selection Board regarding promotion from Assistant Manager (Operation) to Deputy Manager (Operation) will be held on 28.11.2016 under the convenorship of CEO of GEPCO, and the certain officers were requested to attend the meeting. It is pertinent to note that no proceeding for any promotion have been taken place yet, hence, the Petitioner has not been denied of the promotion by GEPCO and no adverse order has yet been passed against him.
10. It is noteworthy that in the previous case of the Petitioner reported as, Kamran Ahmad v. WAPDA and others (2014 PLC (C.S.) 332), two following questions were under consideration by this Court: Whether the Gujranwala Electric Power Company Limited (GEPCO) is discharging functions in connection with the affairs of Federation or a Province within the meaning of clause 5 of Article 199 of the Islamic Republic of Pakistan, 1973 and amenable to the constitutional jurisdiction of the High Court?
(ii) Whether the rules governing terms and conditions of service applicable to the petitioner are statutory and petitioner can enforce these rules through constitutional petition for his induction to the post of "Superintending Engineer" (SE)?
11. In the present case, similar questions may be raised. Importantly, these questions were dealt with by this Court in following words: "16. Though GEPCO is not a statutory authority as it is not established under a statue but incorporated as a company under the Companies Ordinance 1984, however, when applied the aforesaid 'functional test', it squarely applies to GEPCO. It is an entity wholly owned and controlled by the Government and for all intents and purposes, it follows the policies laid down by the Government of Pakistan regarding supply of electricity under its controlled area. Indeed it is a "public utility company" providing basic amenities to the public at large. Therefore, I have no hesitation to hold that GEPCO is a body corporate performing function in connection with the affairs of the State and therefore, amenable to the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
17. To be a person within the meaning of Article 199(5) of the Constitution and being amenable to constitution jurisdiction is one thing and to enforce the terms and conditions of service through constitutional jurisdiction is altogether a different thing. Now coming to the question, whether the terms and condition under which the service of the petitioner is governed including 3.1(1) (c) and 3.1(1) (d) of Rules, 1965 are statutory in nature and whether constitutional jurisdiction can be invoked to enforce these terms and conditions of service.
24. Applying the aforesaid principles of law to the case of the petitioner, I feel no hesitation in drawing inference that petitioner is not governed under statutory rules hence terms and conditions of contract of his service are not enforceable through constitutional petition.
12. It is worth mentioning here that since the promotion of the Petitioner is not governed by any statutory Rules, the same cannot be enforced through the constitutional jurisdiction of this Court.
13. Even otherwise, it is essential to mention here that the Petitioner has challenged the office order in which the meeting point was only intimated and no action was taken against the Petitioner, nor any final order was passed as to the promotion. In the case of Nabi Bakhsh Khan Khoso v. Branch Manager, National Bank of Pakistan (2000 SCMR 1017), the Honourable Supreme Court refused the leave to appeal on the ground that High Court while dismissing the constitutional petition filed by the Petitioner had rightly held that writ of prohibition could not be issued because no adverse action had been taken by the Bank against the Petitioners except issuance of notices. The stand taken by the Petitioner in his reply as well as the representation, which he sent in reply to the notices contained questions which were to be decided by Bank officials. Issuance of writ of prohibition, therefore, was pre-mature, because no adverse action had been taken against the Petitioner.
14. In this view of the matter, it has also been held in the case of Muhammad Rauf Patwari v. District Collector/DCO, Toba Tek Singh (2014 PLC (C.S.) 386 [Lahore]), that constitutional petition would not be maintainable against initiation of an inquiry or issuance of a notice directing the Petitioner to file his reply. Only a reply had been sought from the Patwari and no final order had been passed.
Therefore, the Honourable Court held that constitutional petition was filed prematurely and was accordingly dismissed. It was further held in the case of Frontier Construction Co. Private Limited v.
Bahauddin Zakariya University, Multan Vice-Chancellor (2006 MLD 978 [Lahore]) that writ could not be issued merely on basis of news items unless any specific order passed by competent Authority was before it reflecting exact position. Constitutional petition having been filed at pre mature stage, could not be entertained.
15. In view of the above law, case law and discussion, the instant petition is dismissed and the GEPCO is directed to continue its operations of promotion in accordance with law.