MIANGUL HASSAN AURANGZEB, J:- Through the instant writ petition the petitioner, Murad Khan, seeks a direction to respondent No.2, Managing Director, National Transmission and Despatch Company Limited ("NTDCL") to revise his pay slips by incorporating therein four advance increments with effect from 23.07.2013.
2. The facts essential for the disposal of the instant petition are that on 13.08.2013, the petitioner retired from NTDCL after attaining the age of superannuation. Prior to his retirement, he was serving as General Manager, NTDCL Lab, Rawat, Islamabad. The petitioner's claim for four advance increments that he has raised in the instant petition is based on the notification No.C.S/NTDCL/2188-2203, dated 23.07.2013. Vide the said notification dated 23.07.2013, the Managing Director of NTDCL allowed four advance increments with immediate effect to officers of NTDCL in BPS-17 and above on acquiring Masters' Degree in Management / Administrative Sciences from the universities recognized by the Higher Education Commission ("HEC"). The notification dated 13.01.2014 issued by the Company Secretary of NTDCL inter alia shows that NTDCL's Board of Directors, in its 77th meeting held on 27.12.2013, ratified the said decision of the Managing Director set out in the notification dated 23.07.2013. After his retirement, on 10.02.2014, the petitioner submitted an application to the Budget and Accounts Officer, General Administration Division Section, Pakistan Electric Power Company seeking the issuance of a revised salary slip showing four advance increments so as to enable him to claim arrears and revised pension. In the said application, the petitioner had stated inter alia that he had been awarded a Masters' degree in Business Administration ("MBA") by Allama Iqbal Open University, Islamabad. The petitioner submitted another application dated 17.08.2015 to the Finance Director of NTDCL wherein he reiterated the request for issuance of revised salary slip after incorporating the four advance increments in terms with NTDCL's notification dated 23.07.2013. The said application dated 17.08.2015 also shows that the HV&SC Lab where the petitioner was working prior to his retirement, was attached with NTDCL with effect from 25.10.2012. In response to the petitioner's application, NTDCL vide letter dated 02.09.2015 required from him certain documents including the office order granting him permission to pursue higher qualifications. Vide letter dated 16.09.2015, the petitioner replied that he "could not obtain formal permission from the competent Authority and engaged in academic activities soon after being declared as successful in the entry test." The petitioner also mentioned in the said letter that getting permission from the competent authority for higher qualification entitles a person to financial assistance towards tuition fees and expenditure on books etc., otherwise the student has to bear all expenditures himself.
3. Vide the letter dated 06.11.2015, NTDCL informed the petitioner that under Rule13-A of Pakistan WAPDA Employees Conduct Rules, 1978, no WAPDA employee can take up a course of study at an evening educational institution without prior permission of his appointing authority. The petitioner vide letter dated 09.01.2016 responding to NTDCL's letter dated 06.11.2015 contended that the notification allowing the four advance increments puts no conditionality except for the degree to be recognized by HEC and that the petitioner had obtained the degree through distant learning scheme therefore his academic activities had no concern with official obligations and performance. The petitioner filed yet another application dated 15.02.2017 to the Managing Director of NTDCL wherein he had again sought to revise his pay slip incorporating four increments. In response, vide letter dated 15.03.2017, NTDCL sought from him a copy of his MBA degree duly verified from HEC to proceed further in the matter. The petitioner vide letter dated 25.03.2017 provided a copy of his MBA degree. Apparently, the authorities at NTDCL showed reservations on the delay in completion of the petitioner's studies for which the petitioner vide letter dated 19.06.2017 explained that extension of the studies was permitted due to administrative issues of the university. According to the petitioner no response was thereafter given to him by NTDCL. Hence the instant petition.
4. During the course of the hearing of the instant petition vide orders dated 18.04.2022 and 04.07.2022, this Court had directed that Managing Director of NTDCL to afford an opportunity of a hearing to the petitioner and take a decision on his application. The order dated 19.09.2022 passed by the Managing Director of NTDCL was placed on record whereby he had decided that the petitioner's request for grant of four advance increments cannot be acceded to, for the reasons that he did not obtain permission of the competent authority for admission in MBA program which was mandatory under Conduct Rule 13-A of the Pakistan WAPDA Conduct Rules, 1978 and secondly that since he had obtained the MBA degree when he was close to his retirement, he did not contribute to the utility of the organization with the said degree.
5. On 31.10.2022, the learned counsel for NTDCL took an objection to the maintainability of the instant petition on the ground that the terms and conditions of the petitioner's service with NTDCL are not governed by any statutory service rules, and that Pakistan WAPDA Conduct Rules, 1978 are applicable by virtue of a decision taken on 05.04.1999 by NTDCL's Board of Directors. As the case was ripe for final arguments, the parties were also heard on the merits of the case.
6. Learned counsel for the petitioner, after narrating the facts leading to filing of the instant petition, submitted that the NTDCL is an entity wholly owned and controlled by the Ministry of Water and Power and WAPDA; that NTDCL is not a private limited company in a strict sense because its Managing Director and Board of Directors are appointed by the Government; that the matter about the petitioner's entitlement to receive advance increments is governed by the statutory rules contained in Pakistan WAPDA Conduct Rules, 1978; that the incentive regarding the grant of advance increments is a matter of policy of the Ministry of Water and Power and has been implemented by NTDCL's Managing Director and its Board of Directors; that NTDCL's management refused to accept the petitioner's lawful request for the grant of four advance increments on the ground that he did not obtain departmental permission to undertake higher studies; that the departmental authorities referred to Rule 13-A of the Pakistan WAPDA Conduct Rules, 1978; that a clarification regarding the said Rule 13-A makes it clear that departmental permission is only required where an employee is attending regular evening classes; and that since the petitioner was studying through distant learning method, no regular classes were held and thus obtaining departmental permission was not mandatory. Learned counsel for the petitioner prayed for the writ petition to be allowed in terms of the relief sought therein.
7. On the other hand, learned counsel for NTDCL opposed the instant petition primarily on the ground that through this petition under Article 199 of the Constitution, the petitioner seeks to enforce a notification which was put in force by virtue of an approval of the Board of Directors of NTDCL; that NTDCL is a private limited company which was incorporated on 06.11.1998 under the provisions of erstwhile Companies Ordinance, 1984; that under the Articles of Association of NTDCL, it's Board of Directors is the apex body to run the management and administration of NTDCL; that Pakistan WAPDA Conduct Rules, 1978 are not applicable to NTDCL employees by their own force instead the said Rules are applicable by virtue of a decision taken on 05.04.1999 by NTDCL's Board of Directors; that the notification dated 23.07.2013 with regard to the incentive of four advance increments was subject to the approval and ratification of NTDCL's Board of Directors; that the said decision was ratified in 77th meeting of NTDCL's Board of Directors held on 27.12.2013 and the same was notified vide notification dated 13.01.2014; that the petitioner had not obtained departmental permission for admission in MBA course and thereby violated the Pakistan WAPDA Conduct Rules, 1978 therefore he was not entitled for the benefit of the incentive; that the incentive of increments was issued with the aim that after improving their educational qualifications, the employees would give benefit to the organization but the petitioner completed the MBA degree at a time when he was at the verge of retirement; and that the Managing Director of NTDCL, after taking into account all the material aspects of the case, had lawfully passed the order dated 19.09.2022 whereby he had declined to accede to the petitioner's request. Learned counsel for NTDCL prayed for the writ petition to be dismissed.
8. I have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance. The facts leading to the filing of the instant petition have been set out in sufficient detail at paragraphs 2 to 5 above and need not be recapitulated.
9. The petitioner is admittedly a retired employee of NTDCL. The NTDCL is a company limited by shares which was incorporated on 06.11.1998 under the provisions of erstwhile Companies Ordinance, 1984. It may be correct that 100% of shareholding of the company is owned by the Federal Government but the management and control of the company is with the Board of Directors. The said Board of Directors is constituted under Article 49 of its Articles of Association of NTDCL. The learned counsel for NTDCL had brought on record the minutes of the NTDCL's Board of Director's meeting held on 05.04.1999 and 06.04.1999. Agenda item No.13 in the said minutes shows that the Board of Directors had unanimously resolved to run the affairs of NTDCL as per existing rules and regulations of WAPDA. It was because of this decision of NTDCL's Board of Directors that the WAPDA's service rules became applicable to the employees of NTDCL including the petitioner.
10. The Articles of Association of NTDCL outlines the process of its internal affairs. Under the said Articles of Association, the management and control of NTDCL is with the Board of Directors.
Apparently, it was for this reason that vide notification dated 23.07.2013 while deciding to allow the four advance increments to the officers who had acquired MBA degree, the Managing Director of NTDCL made the said decision subject to ratification of NTDCL's Board of Directors. The said ratification was made by NTDCL's Board of Directors in its 77th meeting held on 27.12.2013. The dispensation for grant of four advance increments upon acquiring an MBA degree was thus made applicable to the employees of NTDCL by virtue of the decisions dated 23.07.2013 and 13.01.2014 taken by NTDCL's Managing Director and Board of Directors, respectively. For the purpose of ascertaining the legal character of such dispensation, it is immaterial whether a similar policy for advance increments was already available to WAPDA employees. The fact remains that the said advance increments became applicable on NTDCL's employees only after the issuance of notifications dated 23.07.2013 and 13.01.2014.
11. Now, it needs to be determined whether the instant writ petition is maintainable for the enforcement of the terms and conditions of the petitioner's service with NTDCL. Although NTDCL does perform functions in connection with the affairs of the Federation and was created as a result of unbundling of WAPDA, but this by itself would not make this maintainable. The question whether the petitioner, who is an employee of the NTDCL, can enforce his terms and conditions of service through constitutional petition would depend on whether the terms and conditions of his service with NTDCL are governed by the statutory rules. The Hon'ble Supreme Court in the case titled as Principal, Cadet College, Kohat and another Vs. Muhammad Shoaib Qureshi (PLD 1984 SC 170), had settled the principle that where terms and conditions of an employee are governed by non- statutory rules or regulations the same cannot be enforced in writ jurisdiction. The relevant portion of the said judgment reads thus:- "It is, therefore, evident that where the conditions of service of an employee of a statutory body are governed by statutory rules, any action prejudicial taken against him in derogation or in violation of the said rules can be set aside by a writ petition. However, whether his terms and conditions are not governed by statutory rules but only by regulations, instructions or directions, which the institution or body, in which he is employed, has issued for its internal use, any violation thereof will not, normally, be enforced through a writ petition."
12. In the instant case, as mentioned above, NTDCL is a company incorporated under the provisions of erstwhile Companies Ordinance, 1984 and its management and administration is vested in its Board of Directors. The rules, notifications, instructions and regulations setting down the terms and conditions of NTDCL's employees are issued with the approval of its Board of Directors and cannot be termed statutory in character. A similar proposition came up for consideration before the Hon'ble Supreme Court of Pakistan in case of PEPCO Vs. Syed Salahuddin (2022 SCMR 991). In the said case, employees of Quetta Electric Supply Company filed a constitutional petition before the Hon'ble High Court of Balochistan wherein they assailed the notification with regard to their date of promotion. Just like NTDCL, Quetta Electric Supply Company also came into being after WAPDA was restructured in terms of Section 8(vii) of the WAPDA Act, 1958 and the Power Wing of WAPDA was restructured into generation, transmission and distribution of electrical power. Resultantly different corporate entities / companies were established under the provisions of the Companies Ordinance, 1984 and the said companies adopted the service rules of WAPDA. Now, before the Hon'ble High Court of Balochistan an objection was taken on the maintainability of petition due to the non-statutory character of the service rules. But the Constitutional petition was allowed by the Hon'ble High Court. In appeal, the Hon'ble Supreme Court set aside the judgment of the Hon'ble High Court of Balochistan and held as follows:-
10. There is yet another aspect of the matter. A specific objection regarding jurisdiction of the High Court to entertain the petition was raised which was dealt with in the following manner:- "The petitioners being employees of QESCO/PEPCO are governed by statutory rules and as such the constitutional petition filed by the Respondents under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is maintainable."_ We find that in the first place, there was no ground to hold that the Respondents were governed by the statutory rules. Admittedly, the Respondents by their own choice had joined QESCO which is a distinct and separate legal entity having been incorporated in the erstwhile Companies Ordinance, 1984 and has its own Board of Directors. Just by reason of the fact that QESCO had adopted existing rules of WAPDA for its internal use does not make such rules statutory in the context of QESCO. It was clearly and categorically held by this Court in Pakistan Defence Officers Housing Authority (ibid), Pakistan Telecommunication Company Ltd. through its Chairman v. Iqbal Nasir and others (PLD 2011 SC 132) as well as Pakistan International Airlines Corporation and others v.
Tanveer ur Rehman and others (PLD 2010 SC 676) that where conditions of service of employees of a statutory body are not regulated by rules/regulations framed under the Statute but only by rules or instructions issued for its internal use, any violation thereof could not normally be enforced through constitutional jurisdiction and they would be governed by the principle of "master and servant". The learned High Court appears to have not been assisted properly in the matter and therefore omitted to notice the said principle of law laid down in the aforenoted case and reiterated repeatedly in a number of subsequent judgments of this Court.
13. As far as the Pakistan WAPDA Conduct Rules, 1978 and other service rules framed under the Pakistan WAPDA Act, 1958 are concerned, the said rules are applicable to NTDCL's employees by reference, i.e. on the basis of decisions made by the Board of Directors of NTDCL. Mere adoption of statutory rules of the WAPDA or their application by reference would not mean that the terms and conditions of NTDCL's employees are governed by statutory rules. In this regard the Hon'ble Supreme Court of Pakistan in paragraph 6 of the judgment in the case titled as M.H. Mirza Vs. Federation of Pakistan through Secretary, Cabinet Division, Government of Pakistan, Islamabad and 2 others (1994 SCMR 1024), held as follows:- "Sections 37, 38, 50 and 51 of the CDA Ordinance, 1960 (Ordinance XXIII of 1960) are relevant. An examination of these provisions shows that the CDA was itself to determine the terms and conditions of its employees and that the Government had no say in the matter. None of its Regulations whether framed by it itself or adopted by reference had a statutory basis in law. This view is supported by the view taken in Ch. Abdul Rashid v. Capital Development Authority, Islamabad and others (PLD 1979 Lahore 803) and the Principal, Cadet College, Kohat and another v. Muhammad Shoab Qureshi (PLD 1984 SC 170). The adoption of the rules of the Government or their application by reference will not lend a statutory cover or content to these rules, as held in Lahore Central Co-Operative Bank Limited v. Saif Ullah Shah (PLD 1959 SC (Pak)
210 and finally very recently in Chairman, Pakistan Council of Scientific and Industrial Research, Islamabad and 3 others v. Dr. Mrs. Khalida Razi (Civil Appeal No.270 of 1993). There being no statutory rules in the field, a Constitutional petition was not at all competent on the subject.
14. In view of the above, I hold that since the terms and conditions of service which the petitioner seeks to enforce through the instant writ petition are non-statutory as they have been made with the approval of the NTDCL's Board of Directors, the instant writ petition is not maintainable and is therefore dismissed with no order as to costs. I have avoided making any observation about merits of the case lest it might prejudice the case of either party before the appropriate forum.