ALI GOHAR MAZARI vs WATER AND POWER DEVELOPMENT AUTHORITY, LAHORE
This petition for leave to appeal challenged a judgment of the Federal Service Tribunal, which had dismissed the petitioner's claim for promotion to Grade-17 in the Water and Power Development Authority (WAPDA). The petitioner argued that the Pakistan Water and Power Development Authority (Power Wing) Stores Management Service Rules, 1983, requiring a departmental examination for promotion, were not applicable to the Generation section of WAPDA until a notification in 1996. Consequently, the petitioner sought promotion effective from 1988, citing the promotion of colleagues. The respondents contended that the petitioner, having joined in 1986, was not entitled to the benefits of earlier re-designations and that the rules were applicable. The Supreme Court observed that the petitioner failed to raise the specific plea regarding the non-applicability of the rules before the Tribunal or in the initial petition. Furthermore, the Court held that determining whether the rules applied to the Generation section prior to 1996 involved a question of fact that could not be examined at the leave-to-appeal stage. As the petitioner had since cleared the examination and received promotion, the Court refused leave to appeal.
- Can a question of fact regarding the applicability of service rules be raised for the first time during a petition for leave to appeal?
- Is a civil servant entitled to promotion to a higher grade without passing a mandatory departmental examination if the relevant service rules were allegedly not applicable to their specific department at the time?
- Pakistan Water and Power Development Authority (Power Wing) Stores Management Service Rules, 1983
1. AJMAL MIAN, C.J.---This is a petition for leave to appeal against the judgment dated 21-5-1997 passed by the Federal Service Tribunal (hereinafter referred to as the Tribunal in Appeal No, 116(K) of 1996 filed by the petitioner praying for the following relief: "In view of the above submissions it is respectfully prayed that the Honourable Tribunal may kindly be pleased to declare and hold that the appellant is entitled to be promoted in Grade-17 and/or be placed in Grade-17 with effect from the date of his confirmation and/or with effect from 6/9th July, 1988 when his other colleagues were promoted as such and direct the respondents to promote him accordingly and grant him all consequential benefits." dismissing the same on the ground that since the petitioner had not passed the departmental examination he was not entitled to promotion to BPS-17. The petitioner has, therefore, filed the present petition.
2. In support of the above petition Ch. Ghulam Hasan Gulshan, learned counsel for the petitioner, has vehemently . contended that the Pakistan Water and Power Development Authority (Power Wing)
3. Stores Management Service Rules, 1983 (hereinafter referred to as the Rules) which have been relied upon by the respondents were not made applicable to the Generation section of WAPDA. To reinforce the above submission, he has invited our attention to the WAPDA Office Memorandum dated 9-4-1984 and the Notification dated 2-9-1984 whereby the Rules were made applicable to the areas of Electricity Boards of Lahore, Multan, Peshawar, Hyderabad and Quetta. His further submission was that first time the Rules were made applicable to the Generation section of WAPDA by Notification dated 16-10-1996 (the above documents are placed in Part-II of the paperbook) and therefore, the petitioner was entitled to promotion to BPS-17 with effect from 9-7-1988 when his colleagues were so promoted.
4. On the other hand, Sh. Zamir Hussain, learned counsel appearing for the respondentsicaveator has invited our attention to the Office Order dated 6-7-1988 (at page 25 of the paperbook Part-I), whereby the General Manager (Admn.), WAPDA, re-designated the Assistant Store Officers in BPS- 15 as Field Store Managers BPS-17 with effect from 16-6-1983, without passing the departmental examination for the reason that the Rules were not in the field. His further submission was that the petitioner joined service in 1986, and therefore, he could not have pressed for the benefit of the above office order. The above position seems to be correct.
5. As regards the applicability of the Rules to the petitioner, it will suffice to observe that the above plea was not specifically raised before the Tribunal in the memo. of the petition nor the same has been raised before. this Court in the memo. of petition. The question as to whether there was any order or notification prior to the above notification dated 16-10-1996 making the Rules applicable inter alia to Generation section, is a question of fact which we are not inclined to examine at this stage, Admittedly, the petitioner has already been promoted in BPS-17 after clearing the examination. In our view it is not a fit case for grant of leave and the same is refused.
6. The petition is dismissed.