Supreme Court of Pakistani ALI GOHAR MAZARI vs WATER AND POWER
This petition for leave to appeal arises from a judgment of the Federal Service Tribunal, which dismissed the petitioner's claim for promotion to BPS-17. The petitioner, an employee of the Water and Power Development Authority (WAPDA), sought promotion with retrospective effect, arguing that the Pakistan WAPDA (Power Wing) Stores Management Service Rules, 1983, were not applicable to his specific section (Generation Section) at the material time. The core legal question was whether the petitioner was entitled to promotion despite not having passed the mandatory departmental examination, based on the alleged inapplicability of the 1983 Rules to his department prior to 1996. The Supreme Court held that the petitioner's argument regarding the non-applicability of the Rules was a question of fact that had not been properly raised before the Tribunal or in the petition. Furthermore, the Court noted that the petitioner had already secured promotion after passing the required examination. Consequently, the Court refused to grant leave to appeal, affirming that it would not entertain factual disputes not raised in the lower forum or the petition.
- Whether a claim regarding the applicability of service rules that was not raised before the Service Tribunal can be entertained for the first time in a petition for leave to appeal?
- Can an employee claim promotion to BPS-17 without passing the mandatory departmental examination based on the alleged inapplicability of service rules to their specific department?
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 Hunourable Tribunal may kindly be pleased to declare and hold that the appellant is entitled to be promoted in Grande-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 WAPDA (Power Wing) 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 paper book), and therefore, the petitioner was entitled to promotion to B.P.S-17 with effect from 9-7-1988 when his colleagues were so promoted.
3. ' On the other hand, Sh. Zamir Hussain, learned counsel appearing for the respondents/caveator has invited our attention to the Office. Order dated 6-7-1988 (at page 25 of the paper-book part 1, 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.
4. 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 appeal 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 abvoe 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.
5. ' The petition is dismissed.