Through the instant petition, filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution "), the Petitioner has assailed the order dated 03.12.2020 passed by the Respondent No. 5.
2. The learned counsel of the Petitioner inter alia submitted that the impugned order has been passed without following proper procedure; that the impugned order is against the law and facts; that the impugned order is result of misreading and non-reading of material available on record; that the impugned order has been passed with mala fide and to give undue favour to the Respondents No. 6 & 7 as such is liable to be set aside.
3. Learned Law Of ficer objected to maintainability of the petition.
4. Arguments heard. Record perused.
5. First of all this Court has to see the issue of maintainability of the writ petition. Admittedly the Company (MEPCO), of which the Petitioner is an employee, has no statutory Rules and the relationship between the Petitioner and the Respondent is that of master and A servant. It is an established principle that in such like cases the Constitutional petition is not maintaina ble. In this regard reliance is placed on the recent judgment of this Court passed in Kamran Ahmed v . CEO GEPCO ( 2017 PLC CS) 900 ) in which this Court has held as under: "It is noteworthy that in the previous case of the Petitioner reported as, Kamran Ahmad v. WAPDA and others (2014 PLC(CS) 332), two following questions were under consideration by this Court:
(i) Whether the Gujranwala Electric Power Company Limited (GEPCO) is discharging functions in connection with the affairs of Federation or a Province within the meaning of clause 5 of Article 199 of the Islamic Republic of Pakistan, 1973 and amenable to the constitutional jurisdiction of the High Court?
(ii) Whether the rules governing terms and conditions of service applicable lo the petitioner are statutory and petitioner can enforce these rules throug h 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 afore said "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.
6. As the impugned order was passed by the Respondent No. 5 which has non-statutory Rules/Regulations/Policies, as such the instant petition against the impugned order is not maintainable. Reliance is also placed on the case titled Muhammad Zaman and others v. Government of Pakistan and others (2017 SCMR 571) in which the Hon'ble Supreme Court of Pakistan has held that since the regulations in question, passed under the amended law, concerned the pension and gratuity matters of employees of SBP are basically instructions for the internal control or management of SBP and are therefore non-statutory . In Pakistan Defence Officer's case ( 2013 SCMR 1707 ) the Hon'ble Supreme Court of Pakistan has held as under: "Where conditions of service of employe es 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'."
7. Furthermore, the Petitioner has alleged mala fide on the part of the Respondent No. 5 for passing the impugned order but has failed to establish from the record appended with the petition, any element of mala fide on the part of the Respondents/Department while passing the impugned order .
8. In view of the above situation, the instant petition, being not maintainable, is dismissed.