NISAR AKHTAR Versus MINISTRY OF WATER AND POWER, through Secretary, Pak Secretariat, Islamabad
ORDER
SHUJAAT ALI KHAN, J.---- Briefly put, the petitioners joined Water and Power Development Authority (WAPDA) as Junior Engineers (BS-17). In the year 1999, WAPDA was re-organized resulting into creation of different Generation Companies (GENCOs), Distribution Companies (DISCOs), National Transmission and Despatch Company (NTDC) and Pakistan Electrical Power Company Ltd. (PEPCO). In the year 2001, the petitioners accepted offers of their employment in NTDC, MEPCO and GEPCO. Subsequently, on the recommendations of the Selection Board, the petitioners were appointed as Senior Engineers (BS-18), vide office order, dated 04.01.2003, issued by WAPDA against the quota reserved for Junior Engineers having M.Sc. qualification. On 31.05.2006, seniority list of Senior Engineers working in Power Wing was prepared by WAPDA which was circulated through letter, dated 25.07.2006, according to which the petitioners were at Seniority Nos.738, 828, 824, 830, 741, 743 and 733, respectively. Later on, vide Office Memorandum, dated 02.05.2011, PEPCO, while withdrawing the seniority/promotion earned by the petitioners on account of merit as well as higher qualification i.e. M.Sc., disturbed the Seniority circulated through letter, dated 25.07.2006. Being aggrieved of the impugned Office Memorandum, the petitioners and others filed a representation before the Managing Director, PEPCO whereupon legal opinion was solicited from the legal wing regarding withdrawal of Office Memorandum, dated 25.07.2006. On the other hand, WAPDA vide Office Memorandum, dated 24.10.2013, refused to implement the changes in seniority of Senior Engineers as per recommendations of PEPCO. The grievance of the petitioners is that pursuant to Office Order, dated 07.04.2014, the respondents are sending certain juniors to the petitioners for Middle Management Course on the basis of Office Memorandum, dated 02.05.2011.
2. Learned counsel for the petitioners submits that since the petitioners joined WAPDA as Junior Engineers and during their service they improved their academic qualification upto M.Sc., therefore, they were appointed against special quota reserved for the Junior Engineers having higher qualification, hence their seniority was to be determined from the date when they joined as Senior Engineers; that in the year 1999, WAPDA was re-organized and certain companies were established while giving option to the WAPDA employees to opt for appointment in one of them and it was clarified that their terms and conditions would remain same but the impugned order even offends against the re-organizational plan; that while passing the impugned order, PEPCO has suo motu changed rules, framed by the WAPDA; that even the Legal Advisor of PEPCO also opposed the suggestion of re-fixation of the seniority of the petitioners and that prior to passing of the impugned order, no notice was given to the petitioners, thus they were condemned unheard.
2(sic). Learned Assistant Attorney-General for Pakistan, while opposing this petition, states that since question relating to seniority of the petitioners has been agitated in this petition, the same being part of their terms and conditions of service, instant petition is not maintainable; that after their appointment in the respective companies, the petitioners are governed under the principle of master and servant, thus, present petition is not maintainable; that mere adoption of rules of WAPDA by the companies in which the petitioners are working, cannot be used to hold these petitions maintainable; that through the impugned order, only the seniority of the petitioners has been re-adjusted, thus, no prejudice has been caused to them and that mere opinion of the legal advisor has no sanctity in the law untill and unless the same is endorsed by the competent authority. Relies on Pakistan Airline Pilots Association and others v. Pakistan International Airline and another (2019 SCMR 278), Dr. Tahir Masud v. Amjad Ali Khan and 4 others (2019 PLC (C.S) 1167), Tariq Mehmood Malik v. Chief Executive Officer and others (2018 PLC (C.S) 664), M.H. Mirza v. Federation of Pakistan through Secretary, Cabinet Division, Government of Pakistan, Islamabad and 2 others (1994 SCMR 1024) and Chairman, WAPDA and 2 others v. Syed Jamil Ahmed (1993 SCMR 346).
3. Mr. Aurangzeb Mirza, Advocate, representing respondents Nos.5 and 7, while adopting the arguments advanced by learned Assistant Attorney-General, submits that as the WAPDA employees can approach the Service Tribunal in the event of violation of any of their terms and conditions of service, instant petition is not maintainable. Relies on Miss Naureen Naz Butt v. Pakistan International Airlines through Chairman, PIA and others (2020 SCMR 1625).
4. Mian Muhammad Javed, Advocate, representing respondent No.6, has adopted the arguments advanced by the learned Assistant Attorney-General as well as Mr. Aurangzeb Mirza, Advocate, representing respondents Nos.5 and 7.
5. Mr. Fiaz Ahmad Sanghera, Advocate, representing respondents Nos.2 to 4, submits that since the impugned order has been passed in terms of amendment in Pakistan WAPDA Service of Electrical Engineer Rules, 1965, the same is immune from interference by this Court and that as question relating to their terms and conditions of the petitioners has been agitated in this petition, jurisdiction of this Court is ousted as the petitioners are being governed under non-statutory service rules.
6. Learned counsel for the petitioners, while exercising his right of rebuttal, submits that after their appointment in the companies, the petitioners cannot approach the Service Tribunal, hence, the objection raised against maintainability of this petition on account of availability of alternate remedy is not sustainable. Adds that since the terms and conditions of service of the petitioners being enjoyed by them in WAPDA have been protected, any order passed in violation of those terms and conditions is amenable to the constitutional jurisdiction of this Court. Relies on Pakistan Defence Officers' Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed (2013 SCMR 1707), Pakistan Telecommunication Company Limited through General Manager and another v. Muhammad Zahid and 29 others (2010 SCMR 253) and Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd., Tokht Bhai and 10 others (PLD 1975 SC 244).
7. While replying to the Court's query as to the jurisdiction of the PEPCO to determine the terms and conditions of employees of other companies, learned Assistant Attorney-General states that there is nothing available in that regard except the summary approved by the Prime Minister regarding appointment of an independent Chairman for PEPCO.
8. I have heard learned counsel for the parties at considerable length and have also gone through the documents, appended with this petition, as well as the case-law cited at the bar.
9. Firstly taking up the question regarding maintainability of this petition, I am of the view that admittedly the petitioners were originally employees of WAPDA and upon creation of different companies to deal with the power sector in WAPDA, they were offered appointment in their respective companies. The terms and conditions encapsulated in their offer of employment, in their respective companies, is imaged below:-
According to Clause 4.2 supra, till the formulation of Service Rules and Regulations by the company concerned, the terms and conditions of the transferred employees were to be governed under the rules and orders of WAPDA. Learned counsel representing the respondents have admitted that till date the companies have not framed requisite rules determining the terms and conditions of the transferred employees meaning thereby that the petitioners are still being governed under the rules applicable to the employees of WAPDA. In this backdrop, writ petition filed by the petitioners claiming enforcement of the Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1978 (the Rules 1978) is maintainable. The apex Court of the country in the case of P.T.C.L. and others v. Masood Ahmed Bhatti and others (2016 SCMR 1362) while dealing with the question relating to maintainability of a writ petition on behalf of transferred employee, whose terms and conditions of service were governed under the statutory provision of law in his/her parent department, has inter-alia held as under:-
"A fleeting glance at the provisions quoted above would reveal that the departmental employees on their transfer to the Corporation became employees of the Corporation under section 9 of the Act of 1991 and then of the PTCL under section 35 of the Act of 1996. Their terms and conditions of service were fully protected under section 9(2) of the Act of 1991 and 35(2) of the Act of 1996. None of the terms and conditions could be varied to their disadvantage as is provided by the sections reproduced above. Not only that the legislature also bound the Federal Government to guarantee the existing terms and conditions of service and rights including pensionary benefits of the transferred employees. Since they by virtue of the aforesaid provisions became employees of the Corporation in the first instance and then the PTCL, they did not remain Civil Servants any more. But the terms and conditions of their service provided by sections 3 to 22 of the Civil Servants Act and protected by section 9(2) of the Act of 1991 and sections 35(2), 36(a) and (b) of the Act of 1996 are essentially statutory. Violation of any of them would thus be amenable to the constitutional jurisdiction of the High Court." (emphasis provided)
Further, the Apex court of the country in the case of Zarai Tarqiati Bank Limited and others v. Said Rehman and others (2013 SCMR 642) while dealing with a proposition relating to maintainability of writ petition on behalf of the transferred employees has laid law to the following effect:-
"33. In the light of what has been discussed in the preceding paras, the Staff Regulations, 1961 and the Promotion Policy, 1999 stand incorporated by way of legislative reference and thereby have acquired a statutory status for the respondent employees who stood transferred and became employees of the company in terms of section 6 of the Ordinance, 2002. The writ petitions which sought enforcement of those regulations were maintainable."
10. Considering from another angle, according to Clause (6.1) above, the petitioners were transferred to their respective companies on the same terms and conditions, which were applicable to them in WAPDA. Though after transfer to the companies, their status was no more that of an employee of WAPDA, however, their writ petition complaining against non-fulfillment of terms and conditions, prevalent in their parent department, is maintainable. While dealing with somewhat similar question, the Apex Court of the country in the case of Divisional Engineer Phones, Phones Division, Sukkur and another v. Muhammad Shahid and others (1999 SCMR 1526) has inter-alia held as follows:-
"In cases of Corporation created by the Government through statutory instruments if existing employees are transferred to the Corporation, in the absence of any provision to the contrary, the transferred employees continue to remain in the service of Corporation on the same terms and conditions under which they were working before their transfer to the Corporation."
11. A bird's eye view of the Writ Petition filed by the petitioners brings it to limelight that they have inter alia questioned the power of PEPCO to deal with the terms and conditions of service of other companies in particular the seniority which was finalized by WAPDA way back in the year 2006 and nobody objected against the said seniority. The said question can only be agitated by invoking constitutional jurisdiction of this Court in terms of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. In this backdrop, the objection raised by the respondents against maintainability of this petition is hereby spurned.
12. Now reverting to the merits of the case, I have observed that through the impugned Office Memorandum, the PEPCO decided the question relating to fixation of seniority of the Senior Engineers, the relevant part of the impugned Office Memorandum is reproduced below:-
"The induction was shrouded by confusion with reference to seniorities of regular and other officers inducted on higher qualification basis. It was deemed just an appropriate to decipher the issue through a Committee constituted vide office order No. 09966/869-80, dated 15.01.2011. The committee after due diligence and deliberations finalized the recommendations for resolution of the issue."
The above quoted para from the impugned Office Memorandum shows that the matter regarding fixation of seniority was taken up without any sound reasoning inasmuch as just confusion in a matter per-se does not permit the competent authority to undo anything which has already attained finality until and unless it has concrete basis, which in my humble opinion, was missing in the case in hand inasmuch as nobody, including the Senior Engineers, ever voiced grievance against the seniority finalized by WAPDA in the year 2006.
13. While going through the file, I came across communication, dated 26.06.2015, addressed by Secretary PEPCO, BOD to the General Manager (HR) PEPCO, conveying the decision of the BOD regarding promotion of engineers inducted on the basis of high qualification of M.Sc./Ph.D. Relevant portion of the said letter reads as under: -
"5. Although their seniority was wrongly fixed from the date of induction but the policy letter of 02.05.2011 could not be implemented retrospectively especially in view of legal opinion obtained on this issue. Further, the said seniority was not challenged at the time of promotion of these senior engineers as SE by their colleagues Graduate Engineers. The seniority of the remaining all those engineers who were inducted as Senior Engineers and given seniority from the date of induction in the seniority list of 2006 but not promoted as yet will be fixed according to PEPCO policy letter dated 02.05.2011.
6. The Board further decided that this decision will be restricted to the six number of Engineers mentioned above only and will not be quoted as precedent in future."
A cursory glance over the afore-quoted decision of the PEPCO BOD renders it crystal clear that the PEPCO authorities also conceded to the effect that any subsequent policy by the PEPCO cannot be used retrospectively to the disinterest of an employee of a company but the action of the respondents to nominate the juniors of the petitioners for the Middle Management Course in utter disregard to the seniority finalized by WAPDA in the year 2006 stands proof of the fact that they are blowing hot and cold in the same breath inasmuch as on the one hand they validated the seniority list prepared by WAPDA in the year 2006 and on the other left out the name of the petitioners while making nomination for Middle Management Course.
14. The most pivotal question, which requires determination by this Court, is as to the competence of the PEPCO to deal with the terms and conditions of employees of other companies. It is of common knowledge that scope and purpose to establish a company is divulged in its Memorandum of Association. The primary purposes to establish PEPCO, as per its Memorandum of Association, are as follows: -
Primary Purpose- a) To act as a managing agent on terms to be settled and subject to provisions of Section 206, in respect of all businesses, assets, properties and rights of the Power Wing of the Pakistan Water and Power Development Authority (WAPDA), including, but not limited to:
(i) the business, [assets, properties, rights and liabilities relating to the generation, transmission and distribution of electrical power which are under the ownership or control of WAPDA or under the Control of another person or persons, whether natural or juridical; and
(ii) the business, assets, properties, rights and liabilities relating to those facilities which are under the control or ownership of WAPDA or under the control of another person or persons, natural or juridical, and are commonly used for purposes in any manner, directly or indirectly, related to the generation, transformation, transmission and distribution of electric power. b) To carry on, expand, extend, privatise or restructure all or any of the above businesses, assets, properties and rights by and through, but not limited to:
(i) the formation, establishment, incorporation and promotion of companies from such businesses, assets, properties and rights as managed by the Company from time to time;
(ii) the trusteeship on behalf of the Government of Pakistan and/or WADPA of such shares issued to the Government of Pakistan and/or WAPDA;
(iii) acting as managing agents of the companies described in sub-clause (i); and
(iv) with the approval of the Government of Pakistan, the sale of all or substantially all of the said assets, businesses and shares or other modes of privatisation such as but not limited to the execution of management or concession agreements in favour of other private sector entities. c) To act as trustee upon terms and trusts to be settled, for all business, assets, properties and rights of WAPDA and the companies described in Article 1(b)(i).
A perusal of the afore-quoted portion from the Memorandum of Association of PEPCO shows that no-where the PEPCO was given the mandate to determine the terms and conditions of service of employees of other distribution companies rather the BODs of the companies concerned were vested with the power to determine the terms and conditions of service of the employees of the relevant companies. It is well-established by now that an authority which has not been given specific power/jurisdiction in respect of any matter cannot assume the same by itself. Reliance in this regard is placed on the case reported as Allah Rakha (deceased) through L.Rs and others v. Additional Commissioner (Revenue), Gujranwala and others (2020 SCMR 502).
15. During the course of arguments, learned counsel representing the respondents, put much emphasis on the contents of Summary, approved by the Prime Minister regarding appointment of independent Chairman for PEPCO. A cursory glance over the said Summary shows that the PEPCO has no-where been given the authority to deal with terms and conditions of service of the employees of other companies. Moreover, the contents of the summary relating to appointment of Chairman PEPCO cannot be used to intrude into affairs of the other companies which are enjoying their independent status.
16. While scanning the file, I have noted that a communication was addressed by the Prime Minister Office to all the stakeholders relating to re-structuring the reforms and privatization of WAPDA-Executive Order, which is imaged below:-
According to Clause-3 supra the Board of Directors of PEPCO and other companies were given free hand to exercise the powers given to them by the Companies Ordinance, 1984 in respect of appointment and determination of terms and conditions of service of their employees without seeking approval of the Federal Ministries and in the offer letters of the petitioners it was clarified that until and unless the Service Rules/Regulations were framed by the companies, the transferred employees would be governed under the Services Rules and Orders applicable to the WAPDA employees. Admittedly, according to the Seniority List finalized by WAPDA in the year 2006 the petitioners were senior to those who have been nominated for Middle Management Course, hence, grave injustice is being caused to the petitioners on account of suo-motu use of powers by PEPCO which otherwise have not been vested in it.
17. It is imperative to note that at the time of their appointment in the companies by way of transfer, it was clarified in unequivocal words that the inter-se seniority of the transferred employees would be protected. Reference in this regard can be made to Clause 3 of the offer letters issued in favour of the petitioners. It has not been denied by the respondents' side that the WAPDA prepared a seniority list in respect of Senior Engineers (BS-18) working in Power Wing and the same was circulated through letter, dated 25.07.2006. Since no objection was raised against the said seniority list, the same remained intact upto 02.05.2011 when the PEPCO issued impugned Office Memorandum. The said act of the PEPCO being contrary to the terms and conditions contained in the Offer of Appointment letters of the petitioners cannot be allowed to hold field simply for the reason that PEPCO has general power relating to re-structuring of Power Wing of WAPDA especially when it does not enjoy power to determine terms and conditions of the employees of other companies.
18. Admittedly, the question relating to change of seniority of the Superintending Engineers/Senior Engineers (Power WAPDA) also came under discussion before the WAPDA Authorities and the Director General (C.M) S&C, WAPDA through Office Memorandum, dated 04.10.2013, conveyed the decision of the competent authority, which is imaged here-in-below:-
A bare reading of the afore-imaged Office Memorandum shows that the recommendations of the PEPCO towards re-adjustment of seniority of the Senior Engineers were not endorsed by WAPDA simply for the reason that the same were repugnant to the rules on the subject. Moreover, copy of the said Office Memorandum was also endorsed to various authorities, including G.M. (HR), PEPCO, but non-consideration of the said Office Memorandum by the PEPCO Authorities while disturbing the seniority of the petitioners smacks mala fide on their part.
19. It is of common knowledge that different modes can be adopted for recruitment against a particular post inasmuch as out of total seats some can be filled in through direct recruitment whereas some are filled in by promotion on the basis of seniority-cum-fitness while the remaining can be earmarked for induction from amongst the serving employees on the basis of their higher qualification irrespective of their seniority. Insofar as the induction of the petitioners in WAPDA as Senior Engineers on the basis of higher qualification is concerned, suffice it to observe that while filing their comments in this petition it has also been admitted by the PEPCO Authorities that the petitioners were appointed on the basis of relevant rules, however, they have referred to Office Memorandum, dated 16.04.1992, issued by the WAPDA to plead that even after their induction as Senior Engineers on the basis of higher qualification, they were subjected to the condition that they would remain posted on specialized assignments till their colleagues (Junior Engineers) senior to them were promoted as Senior Engineers and the Senior Engineers appointed on the basis of higher qualification would not be promoted to the next grade till their junior colleagues are promoted. If the said stance of PEPCO authorities is admitted correct even then the Office Memorandum referred by the PEPCO authorities does not clinch the issue relating to seniority of the Senior Engineers. The Hon'ble Supreme Court of Pakistan in the case of Dr. Zohara Jabeen v. Muhammad Aslam Pervaiz (2021 SCMR 194) while dealing with the question of seniority amongst the incumbents of a post having different modes of recruitment has inter alia concluded that the persons who were appointed/promoted prior in time are to be treated as seniors while reckoning their inter-se seniority.
20. It is very paradoxical that on the one hand the respondents have admitted that the petitioners were recruited on the basis of valid rules but on the other they are of the opinion that their seniority was to be yoked with their juniors (Junior Engineers) till their promotion. If such approach is approved, the Junior Engineers, who were appointed as Senior Engineers, on the basis of higher qualification, would be deprived off their lawful right to enjoy the perks and privileges attached with the post of Senior Engineer including seniority. Further, if such practice is followed perhaps the person who was given an incentive on account of higher qualification to strengthen the HR Wing of WAPDA would become redundant. Even otherwise, it is well settled by now that while considering the question of seniority if the appointee has been selected through a competent process his/her inter se seniority would be determined according to his/her merit and if he/she has been selected through other process, his/her inter se seniority plays pivotal role. Insofar as the case in hand is concerned, after appointment as Senior Engineers, the petitioners were entitled to fixation of their seniority along with the persons, who were appointed on the said date irrespective of the fact that as to whether any of their junior was promoted or not.
21. It is relevant to note that the entire stance of the respondents hinges upon Office Memorandum, dated 16.04.1992, which for convenience of reference is imaged below:-
The recitals of the afore-imaged Office Memorandum renders it crystal clear that nowhere it has been mentioned that the seniority of the Senior Engineers appointed on the basis of higher qualification would be reckoned along with the Junior Engineers who were senior to them in the said cadre. At the cost of repetition it is observed that mere clog against posting of a government servant against a particular post cannot be considered as a bar against determination of his seniority.
22. During the course of arguments, learned counsel representing respondents Nos.2 to 4 has put much emphasis on Office Order, dated 15.11.2005, issued by the PEPCO, Office Order, dated 24.11.2011, issued by Government of Pakistan, Ministry of Water and Power and communications, dated 20.02.2012 and 13.04.2012 addressed by the Government of Pakistan, Ministry of Water and Power inter-alia to the M.D. NTDC/WAPDA. Office Order, dated 24.11.2011, instead of lending any help to the respondents goes in favour of the petitioners. To fortify said findings reference can be made to the operative part of the said Office Order, which for ready reference is reproduced herein below:-
"The Board of Directors of all Government owned power distribution companies, power generation companies, National Transmission and Dispatch Company (NTDC) and Power Information Technology Company (PITC) shall henceforth be competent and authorized to decide about and grant/refuse promotions to officers of all grades in their regular employment. PEPCO is, therefore, directed to transfer the relevant record of officers to the concerned companies within thirty (30) days of issuance of this office order. Immediately upon receiving of the case files from PEPCO, the Boards of Directors shall decide the cases of promotion to the officers eligible to be considered not later than sixty (60) days taking their current position in their substantive grades into account as per existing rules ."
From the above, one thing is abundantly clear that the competence to deal with the terms and conditions of the transferred employees of the companies lies with the respective BODs and none else. It is relevant to note that according to the documents attached by the respondents with their report and parawise comments, PEPCO was saddled with responsibility to facilitate the other companies in respect of developing their HR Wing. Further, PEPCO was given power to supervise the promotion of upper stream of the employees of the companies due to the fact that record was transferred by WAPDA to PEPCO and secondly PEPCO was given supervisory role for the transitional period which has not come to an end till date. The said fact speaks volumes about sluggish and indifferent attitude on the part of the relevant authorities which cannot be let unnoticed.
23. It is imperative to note that after transfer of WAPDA employees to the companies their terms and conditions were to be determined by the respective BODs in the light of the fact that the same should not be less favourable which were being enjoyed by them in their parent department. If the terms and conditions of service of the employees of the companies are to be determined by PEPCO the very purpose of restructuring of power wing of WAPDA would become redundant.
24. During arguments, this fact also surfaced on the scene that despite appointment of certain WAPDA employees in their respective companies, in the event of their promotion they are being posted out of their respective companies. It is very strange to note that once an employee of WAPDA was offered appointment in a particular company and he accepted the same, thereafter, he cannot be asked to serve in any other company as the same would amount to fresh appointment. In this backdrop, a comprehensive policy is to be framed by the government to deal with the issues relating to the employees, in particular the Senior Engineers, transferred from WAPDA to different companies.
25. It is relevant to note that though voluminous documents have been appended with the report and parawise comments submitted on behalf of the respondents but there is not a single document to show that any notice was given to the petitioner while lowering down their seniority at the time of nomination for Middle Management Course. After finalization of the seniority, in the year 2006, all the persons whose names were included in the said seniority list were entitled to due notice prior to incorporating any change therein as nobody can be condemned unheard and the importance of right of hearing has been multiplied after addition of Article 10A of the Constitution of Islamic Republic of Pakistan, 1973. The Apex Court of the country, in the case of Dr. Yasmeen Jaffar v. Cr. Shehla Sami and others (2019 SCMR 993) while dealing with fate of an order passed in violation of the principle of audi alteram partem has inter alia observed as under: -
"7. We have heard the learned ASC for the petitioner and respondent in person. The entire record has been examined with the assistance of the learned ASC and Respondent No.1, in person. The only question requiring determination by us at this stage is whether the petitioner could have been granted proforma promotion w.e.f. 22.01.2008 as Assistant Professor (BS-18).
8. On hearing the learned ASC and the respondent in person we found that answer of the question has to be in the negative for the following reasons: i) Respondent No.1 was appointed as Assistant Professor (BS-18) w.e.f. 08.08.2008 on the recommendations of Public Service Commission against the quota reserved for initial recruitment. The petitioner was appointed as Assistant Professor (BS-18) when she became eligible, against the vacant post on 17.12.2009 on the recommendation of the Provincial Selection Board by way of promotion. The final seniority list of Gynaecology Department was issued on 10.09.2012 wherein respondent No.1 appeared at serial No.4 while petitioner was at serial No.6. This seniority list was not questioned by the any one. The dispute appears to have arisen from the Service Appeal filed by the petitioner to establish her seniority vis-a-vis Dr. Bilqees Ara Magsi. However the Tribunal did not settle that controversy and remanded the case to the department with a direction to decide the case on merit. It is significant to note that neither respondent No.1 nor three others who would have been directly affected by any change in the seniority list were neither arrayed as respondents in the Service Appeal nor were they called, impleaded or heard by the department. It is clear and obvious to us that the said persons were condemned unheard and the principle of audi alteram partem was violated at both levels. ii) The department processed the case of the petitioner in isolation without hearing other parties interested in the matter and ultimately notification dated 17.02.2015 was issued whereby the petitioner was unilaterally granted proforma promotion with retrospective i.e. 22.01.2008 which is apparently the date on which the Post of Assistant Professor against the promotion quota became available. However the department clearly overlooked the fact that on the said date the petitioner was not eligible for promotion against the said seat on account of shortfall in her relevant experience. This in addition to ignoring the rule of audi alteram partem is an additional reason why the notification in favour of the petitioner cannot be allowed to stand .."
26. Now coming to the case-law cited by learned counsel for the respondents, I am of the view that the same is not applicable to the facts and circumstances of the present case inasmuch as in the case of Miss Naureen Naz Butt (Supra) the Apex Court of the country held that a contract employee has no right to remain in employment after expiry of that contract and that no grievance can be agitated by the government employees, in respect of non-statutory service rules, through the Writ Petition which is not the position in the case in hand inasmuch as the petitioners have sought enforcement of their right given by their parent department in respect of their seniority. In the case of Pakistan Airline Pilots Association and others (Supra) the Hon'ble Supreme Court of Pakistan declared the Writ Petition filed by the employees of PIA as not maintainable on the ground that terms and conditions of their service were governed under non-statutory rules whereas in the instant petition the petitioners have sought enforcement of the Rules, 1978 which being statutory in nature, the said case of no help for the respondents. Coming to the case of Dr. Tahir Masud (Supra) I have noted that the controversy in pith and substance in the said case revolved around the enforcement of contractual employment through Writ Petition which is not the position in the case in hand especially when in appointment letter of the petitioners it was clarified that terms and conditions being enjoyed by them in WAPDA were duly protected. In the case of Tariq Mehmood Malik (Supra) this Court held that a government servant is bound to serve at a station where he is posted by the competent authority and he has no vested right to claim posting at a particular station which is not the controversy in the case in hand. The preposition of law involved in the case of Chairman, WAPDA and 2 others (Supra) revolved around maintainability of civil suit by employees of WAPDA in respect of their terms and conditions of service. The said proceedings being totally different from the Writ Petition before this Court, same cannot be quoted in this case. In the case of M.H. Mirza (Supra) Hon'ble Supreme Court of Pakistan held that mere adoption of rules per-se does not render their status as statutory whereas in the instant case there is no question of adoption of service rules of any other department rather in the very appointment letters of the petitioners it was clarified that until and unless the service rules are framed by their respective companies, they shall be governed under the Rules, 1978.
27. As a necessary corollary to the discussion made above, instant petition is accepted in the following terms: -
(i) that the act of the PEPCO authorities to nominate juniors of the petitioners for Middle Management Course is declared illegal, unlawful and without jurisdiction, hence, respondent No.1 is directed to ensure nomination of the prospective participants, including the petitioners, for the said course, on the basis of seniority finalized by WAPDA in the year 2006, in respect of the Senior Engineers irrespective of any subsequent policy by PEPCO;
(ii) that PEPCO has no authority to deal with terms and conditions of the employees who have been transferred from WAPDA to different companies rather the BODs of the respective companies have the competence to determine the terms and conditions of the employees of their companies;
(iii) that the terms and conditions of the employees transferred from WAPDA to different companies shall not be less favourable than their parent department;
(iv) that PEPCO authorities shall return the personal files of the employees of the companies forthwith for determination of their future service prospects;
(v) that respondent No.1 is bound to implement Restructuring Reforms regarding framing of rules and regulations by the BODs of the respective companies regarding terms and conditions of service of employees who were transferred from WAPDA;
(vi) that any future policy of the government or the company cannot be used to deprive a transferred employee of a benefit availed by him in his parent department;
(vii) that respondent No.1 shall ensure that the transferred employees are not posted out of their companies without soliciting their consent in writing.
28. Office is directed to transmit a copy of this order to respondent No.1, through fax, for information and compliance.
29. Before parting with this order, it is observed that any order passed, proceedings undertaken and promotions granted on the recommendations of PEPCO before announcement of this order being past and close transaction would not be open for interference as if such approach is adopted anomalous situation would arise for the departmental authorities.
MH/N-24/L Order accordingl