2014 P L C (C.S.) 467
[Balochistan High Court]
Before Qazi Faez Isa, C.J. and Muhammad Kamran Mulakhail, JJ
MUHAMMAD IQBAL
Versus
FEDERATION OF PAKISTAN through Secretar y, Water and Power, Islamabad and 3
others
Constitutional Petition No.663 of 2010, decided on 19th December, 2013.
(a) Pakistan Water and Power Developm ent Authority Act (XXXI of 1958)---
----S. 17(1)(B)---Constitution of Pakistan , Arts.199 & 212---Constitutional petition---
Maintainability---WAPDA employ ee---Promotion---Employee working in "Power Company" of
Water and Power Development Authority (WAPDA) aggrieved by his supersession invoked the
Constitutional jurisdiction of High Court---Valid ity---Employee working in "Power Company"
of WAPDA at the time of his appoi ntment was in service of Paki stan and as per S.17(1)(B) of
Water and Power Development Authority Act, 1958 was a civil servant", therefore bar of
Art.212 of the Constitution was attracted---C onstitutional petition was dismissed.
(b) Constitution of Pakistan---
----Arts. 199 & 212---Constitutional petition---Ma intainability---Civil service--- Promotion---
Scope--- Terms and conditions of service---Scope---Promotion was not a vested right of a civil servant as the same was dependent upon the e ligibility-cum-fitness---Person eligible for
promotion being senior in rank in the grade but was not fit to share highe r responsibilities would
not be promoted to the next grade---Question of eligibility for promotion relate to terms and conditions of service and was to be subjected to judicial sc rutiny by the Service Tribunal---
Constitutional petition was dismissed.
Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui 1991 SCMR 1129; Muhammad Anis v.
Abdul Haseeb PLD 1994 SC 539 and Saleemullah Khan v. Shahid Hamid 2011 SCMR 788 rel.
Amanullah Kanrani for Petitioner.
Date of hearing: 18th November, 2013.
ORDER
MUHAMMAD KAMRAN KHAN MULAKHAIL, J.--- The following prayer has been
made in this petition:---
"It is, therefore, accordingl y prayed that this honorable court may graciously hold that
petitioner is senior than privat e respondent No.4 and deserved to be promoted accordingly, in the
interest of justice, equity and fairplay."
2. Brief facts as stated are that the petiti oner was appointed as junior Engineer on 11-8-
1977, in the Water and Power Development Author ity ("WAPDA") at Que tta and served in
Technical/Engineering cadre, with considerable length of 33 years of service when this petition
was filed, he was serving as Superintending Engineer in WAPDA/Quetta Electric Supply
Company, Ltd ("QESCO").
3. The learned counsel for the petitioner contended that the name of the petitioner was at
serial No.67, of the integrated seniority list, maintained regarding Non-Generation Power Wing
and on 26-5-2010, the petitioner was interviewed by the promotion board but the result of the
interview was not conveyed to him: and he came to know, vide Office Order No.76161 dated 2-
6-2012, that the respondent No.4, viz Syed Waqas Ashraf, whose name was at serial No.73, of
the seniority list, had been prom oted as Chief Engineer. It is contended that the petitioner was
superseded by the respondent No.4, with connivan ce of the promotion board. He further stated
that the petitioner has an unblemished record of service of more than 33 years and during the
said period he had accomplished various important assignments. Though, the petitioner had preferred a representation/depa rtmental appeal on 13-8-2 010, before the Manager Director,
(PEPCO) WAPDA House, Lahore, but the petiti oner was not conveyed about the fate of the
same. The learned counsel stated that since pr omotion does not fall within the purview of the
terms and conditions of service, therefore, the bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan ("the Constitution") does not come in his way and he can file a
petition under Article 199 of the Constitution.
4. This petition was filed on 16-10-2010, wherein, in para No.7 it is stated that the petitioner
is on the verge of retirement, which was due on 19th May, 2011. The petitioner has since retired
on having attained the ag e of superannuation.
5. Admittedly, the petitioner was in service of Pa kistan at the time of his appointment till his
retirement and preferred a departmental app eal against the promotion of respondent No.4.
Services of civil servants are governed by the Civil Se rvant Act, 1973, while the services of the
WAPDA/QESCO employees are gove rned by the West Pakistan Water And Power Development
Authority Act, 1958. Section 17(1) (1 B) of the Act is relevant fo r a better understanding of the
controversy and is repr oduced here under:---
"(1B) Service under the Authority is hereby decl ared to be service of Pakistan and every
person holding a post under the Authority, not be ing a person who is on deputation to the
Authority from any Province, shall be deemed to be a civil servant for the purposes of the
Service Tribunals Act, 1973 (LXX of 1973)."
Thus in view of the above provision, which st ates that WAPDA/QESCO employees are public
servants and Article 212 of the Constitution is at tracted. Reliance is also placed on an unreported
judgment of this court authored by the Hon' ble Chief Justice, wherein through common
judgment Constitutional Petitions Nos.176, 204, 224, 303, 304, 321, 363, 502, 628, 709 and 766 of 2011 have been decided and all of said eleven petitions have been dismissed in view of the bar
contained in Article 212 of the Constitution.
6. The contention of learned counsel for the pe titioner that the question of promotion does
not fall within the purview of terms and cond ition of service is not acceptable and said right
being a legal vested right can be agitated in constitutional petition under Artic le 199 of the
constitution is also not acceptable because promotion is not a vested right of a civil servant as it
depends on the eligibility-cum-fitness and if a pe rson is eligible for prom otion being senior in
rank in the grade but is not fit to share higher responsibilities he would not be promoted to the
next grade. The Hon'ble Apex Court in number of reported judgments has held that the question
of eligibility for promotion relates to terms and c onditions of services and is to be subjected to
judicial scrutiny by the Service Tr ibunal as inter alia held in Mian Abdul Malik v. Dr. Sabir
Zameer Siddiqui (1991 SCMR 1129), Muhammad Anis v. Abdul Haseeb (PLD 1994 SC 539)
and Saleemullah Khan v. Shahid Hamid (2011 SCMR 788).
Therefore, for the aforesaid reasons the pe tition is dismissed accordingly but with no
order as to cost.
JJK/10/Bal. Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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