I

IN THE SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction)

PRESENT:
MR. JUSTICE GULZAR AHMED, CJ
MR. JUSTICE IJAZ UL AUSAN
MR. JUSTICE MUNIB AKHTAR

Civil Appeal No.749 of 2021

On appeal from order dated 16.07.2020 of
High Court of Balochistan at Quetta, passed
in C.P.No. 1233 of 2017.

Pakistan Electric Power Company ..Appellant(s)

Versus

Syed Salahuddin & others .Respondent(s)

For the Appellant(s) Mr. Munawar Iqbal Duggal, ASC

Syed Rafaqat Hussain Shah, AOR
For Respondents# 1&2 Mr. Kamran Murtaza, Sr.ASC
(via video link from Quetta)

For Respondents# 3&4 Nemo

Date of Hearing 21.12.2021

JUDGMENT
IJAZ UL AHSAN, J-. This appeal by leave of

the Court arises out of a judgment of the High Court of

Balochistan at Quetta dated 16.07.2020. Through the

impugned judgment, a constitutional petition bearing

No.1233 of 2017 filed by Respondents No.1 and 2 (Syed

Salahuddin Sahibzada Karim Jan) was allowed and the

Appellant-PEPCO was directed to notify their promotions

as Superintending Engineers (BS-19) with effect from

13.10.2016 instead of 14.04.2017 and they were also

 -
Civil A ppeal No.749°f 2021 2
S

held entitled to pensionary and all other benefits as

Superintending Engineers (BS- 19) with effect from

13.10.2016.

2. Briefly stated the facts necessary for decision

of this Appeal are that Respondents No.1 and 2

approached the High Court of Balochistan by way of a

constitutional petition seeking a direction that action of

the Appellant of notifying them in BS-19 on 14.04.20 17

after their juniors were promoted in the next grade on

13.10.2016 was illegal with a further direction to the

Appellant to notify them in BS-19 with effect from the

date when their juniors were notified i.e. 13.10.2016. The

petition was contested on various legal and factual

plains. One of the main grounds urged by the Appellant

was that the Respondents were admittedly employees of

Quetta Electric Supply Company ("QESCO") which was a

separate and distinct legal entity incorporated under the

Companies Ordinance, 1984 which did not have any

statutory rules. In the absence of any statutory rules,

alleged violation of terms and conditions of QESCO would

not attract the constitutional jurisdiction of the High

Court as held by this Court, vide judgment dated

21.06.2012 passed in C.P.No.1591 of 2011 titled Chief

Executive Officer PESCO, Peshawar v. Muhammad Aftab-

ur-Rehman and others.

Civu A ppeal No.749 of 2022 3

3. Leave to appeal was granted by this Court on

24.05.202 1 in the following terms:

"The learned ASC for the petitioner-PEPCO inter alia

contends that there are no statutory rules of service
governing the employees of the petitioner-PEPCO and the
High Court has erred in law in observing that the employees
of the petitioner are governed by the statutory rules of service
and thereby allowed the constitutional petition filed by the
Respondents.

2. Having heard the learned counsel and going through

the impugned judgment, we are inclined to grant leave to
appeal in this case to consider inter alia the reasons
recorded in our last order dated 24.05.2021 as well as the
submissions made before us today. Appeal stage paper
books be prepared on the available record. However, the
parties are at liberty to file additional documents, if any
within a period of one month. As the matter relates to service,
the Office is directed to fix the same for hearing in Court
expeditiously, preferably after three months.

3. Since the impugned judgment has been rendered by a

Division Bench of the High Court, the appeal arising out of
the instant petition be fixed before a three member Bench of
this Court."

4. The learned counsel for the Appellant-PEPCO

submits that the High Court failed to take into

consideration the fact that Respondents No.1 and 2 were

employees of QESCO which does not have statutory rules

and any alleged violation of terms and conditions of

service of the said Respondents would not attract the

constitutional jurisdiction of the High Court. He further

maintains that where terms and conditions of employees

of a statutory body are not regulated by rules framed

 civil A ppeal No. 749 of 2021

- under any Statute but under the rules and instructions

issued for its internal use, the constitutional jurisdiction

of the High Court cannot be invoked. He maintains that

the impugned judgment of the High Court fails to take

notice of the law laid down by this Court in the case of

"Pakistan Defence Officers' Housing Authority and others

v. Lt. Col. Sed Jawaid Ahmed" (2013 SCMR 1707). He

adds that the impugned judgment has not even

considered a Division Bench's decision of the same Court

reported as "Ali Gohar Mazar v. Federation of Pakistan

throug h Chief Executive Officer, Quetta Electric Supply

and others" (2010 PLC (CS) 353), where it was clearly

and categorically held that employees of QESCO could

not invoke the constitutional jurisdiction of the High

Court.

5. The learned counsel for Respondents No.1 and

2 has however defended the impugned judgment. He

maintains that the employees of QESCO and Pakistan

Electric Power Company ("PEPCO") are governed by the

statutory rules in view of the fact that Pakistan WAPDA

Employees (Efficiency & Discipline) Rules, 1978 have

been adopted by the Board of Directors of QESCO in its

meeting dated 28.06.2005. Therefore, by reason of such

adoption, the employees of QESCO and PEPCO are

governed by the statutory rules.

Civil Appeal No.7490(2021 5

6. We have heard the learned counsel for the

parties and gone through the record. It appears that

Respondents No-1 and 2 were Electrical Engineers and

inducted into service of WAPDA on 23.11.1985 and

15.08.1984 respectively. Subsequently, when bifurcation

of WAPDA as envisaged in Section 8(vii) of the WAPDA

Act, 1958 took place whereby the Power Wing of WAPDA

was restructured into generation, transmission and

distribution of electrical power, different corporate

entities/ companies were established under the then

Companies Ordinance, 1984. The Appellant had been

given the mandate to take control and manage the

process of transition of WAPDA Power Wing into

aforementioned corporate entities. Consequently, services

of the contesting Respondents were transferred by the

Appellant to QESCO in the year 2003-04 after obtaining

consent from them, as they were local residents of

Balochistan and wished to serve in their Province. While

serving at QESCO, the said Respondents were promoted

as Executive Engineers on 23.06.2007 and 02.02.2007

respectively after observing all codal formalities. As per

Manpower Transition Programme, a centralized seniority

list of officers serving in BS-18 and onwards in different

Energy related Corporations was being maintained by

PEPCO and promotion was also the mandate of PEPCO.

CIIM A ppeal X..749 of 202) 6

7. The record also indicates that promotion cases

of 145 senior Engineers, on the basis of integrated

seniority list were considered by PEPCO Selection Board.

In the said seniority list, Respondents No.1 and 2 were

placed at Nos. 118 and 119 respectively. In this respect,

PEPCO Selection Board considered the question of

promotions on the basis of parameters elaborated in

PEPCO Promotion Policy ("the Policy"). Key Performance

Indicators ("KPI5") and Mobile Meter Reading Data

("MMR") were evaluated/ considered to determine the

performance of every individual on the basis of data

collected from respective Distribution Companies. After

considering all material aspects, the Selection Board

recommended promotion of 57 senior Engineers,

including Respondents No.1 and 2, out of 145 senior

Engineers to the rank of Superintending Engineers (non-

generation) (BS- 19). However, out of the said 57 senior

Engineers, the Board recommended immediate

promotions of 35 senior Engineers unconditionally

whereas the remaining 22 senior Engineers, including

Respondents No.1 and 2 were recommended for

promotion subject to certain conditions. In the case of

Respondents No.1 and 2, they were recommended for

promotion with the condition that, "their performance will

be monitored for next three months and if found

ciVil A ppeal IV,. 749 of 2021 7

satisfactory, promotion orders will be issued accordingly".

Following the recommendations of the Board conditional

promotion letters were issued clearly stating as under:

'The performance of the officers after their

promotion will be evaluated on the basis of defined KPIs
for a period of six months, extendable for further three
months. In case of failure to perform in accordance with
the prescribed KPIs for the post, the promotion of the
officers will be reviewed. It was also categorically
stated that promotion of officers at Serial Nos. 1 to 34,
will be purely on temporary basis and they will not
claim seniority/promotion over those who may
otherwise be senior to them."

8. It appears from the record that performance

evaluation of a number of senior Engineers including

Respondents No.1 and 2 as per KPIs was requested from

QESCO after completion of three months vide letter dated

04.11.2016 by the Appellant. The requisite performance

evaluation of the said officers was provided and after

examination of the same, reports were compiled and

summarized and cases of 17 officers including

Respondents No.1 and 2 were sent for approval of

promotion by the competent authority. Out of the said 17

officers, promotion orders of 10 officers having

satisfactory performance were issued on 26.12.2016.

However, the performance of remaining officers including

Respondents No.1 and 2 having not been found

satisfactory were recommended to be observed for further

CMM A ppeal Np 79 o[2021

three months. On expiry of such period of three months,

the competent authority after being satisfied to some

extent with their performance issued their promotion

orders and they were accordingly promoted with effect

from 14.04.2017. Respondents No.1 and 2 were aggrieved

of their promotion with effect from 14.04.2017 and

sought promotion from the date on which their juniors

were promoted i.e. 13.10.2016. The High Court allowed

their petition by observing that lawful justification for

issuing promotion orders of different senior officers on

different dates had not been provided. It was further

observed that there was no justification available on the

record as to why the recommendations dated 12.08.20 16

were not given effect across the board. The High Court

therefore recorded a finding that General Manager (HR)

PEPCO/the Appellant had acted with malice in issuing

promotion orders of the Respondents on 14.04.20 17

instead of 13.10.2016. The aforenoted narration of the

procedure adopted by the Appellant-PEPCO makes it

abundantly clear that it had placed on record all material

documents showing fulfilment of procedural formalities

on the basis of which some Engineers were promoted

1
immediately and the others conditionally for which valid

reasons which fell within the purview of PEPCO Selection

Board were furnished.

-T
Civil A ppeal No. 749 of 2022

9. We also find that there was no justification or

basis for the High Court to come to the conclusion that

GM (HR), PEPCO had acted with malice. We have

I
scanned through the record and do not find any material

that may even remotely point towards mala fide or malice

on the part of the functionaries of the Appellant. We

therefore find that the finding recorded by the High Court

relating to malice and absence of lawful reasons or

justification for promoting different officers on different

dates was not based on the record and arose out of

misinterpretation and misconception of proceedings of

I
the Selection Board as reflected in the Minutes. We are

also of the view that the PEPCO Selection Board was

competent in the matter and imposition of conditions

including evaluation of officials in view of their

performance on the basis of defined KPIs for a period of

three months extendable by another three months was

neither unlawful nor unreasonable and squarely fell

within the parameters of the Policy and directives of the

competent authorities.

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:

Civil Apucol No. 742 of 2021 10

"The petitioners being employees of QESCO/PEPCO are

governed by statutory rules ana as sucri rn.e
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 Housiflg

Authority (ibid), Pakistan Telecommunication Company

Ltd through its Chairman v. Igbal Nasir and others (PTA])

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

CU,u Avoeo( Np 749 of 2021 11

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.

11. Further, while assuming jurisdiction in the

matter, the learned High Court omitted to appreciate that

in case of an employee of a Corporation where protection

cannot be sought under any statutory instrument or

enactment, the relationship between the employer and

the employee is governed by the principle of "master and

servant" and in such case the constitutional jurisdiction

of the High Court under Article 199 of the Constitution

cannot be invoked. We also find that although a

F
judgment of this Court dated 07.03.2019 in the case of

employees of IESCO was brought to the notice of the

High Court in which a similar finding was recorded

regarding non-availability of constitutional jurisdiction to

the employees of IESCO, the Court appears to have

misinterpreted and misconstrued the ratio of the same

and therefore arrived at a conclusion which appears to be

contrary to the settled law on the subject. We also notice

that a judgment of a Division Bench of the same High

Court escaped the notice of the High Court of

Balochistan whereby it had clearly held that employees of

CluE? A pp eal No. 749 of 2021 12

QESCO could not invoke its constitutional jurisdiction.

Further, a judgment of this Court rendered in the case of

Chief Executive Officer PESCO, Peshawar (ibkl) examined

the question of jurisdiction of the High Court under

Article 199 of the Constitution in matters relating to

employees of PEPCO which is identically placed insofar

as it was also incorporated under the Companies

Ordinance, 1984 pursuant to bifurcation of various

Wings of WAPDA into separate corporate entities and it

came to the conclusion that since PEPCO did not have

statutory rules, the High Court lacked jurisdiction to

interfere in matters involving employment disputes

between PEPCO and its employees. The ratio of the said

judgment was clearly attracted to the facts and

circumstances of this case, which appears to have

escaped the notice of the High Court. We are therefore in

no manner of doubt that in view of the fact that QESCO

does not have statutory rules governing the terms and

conditions of service of its employees, the relationship

between the Appellant-PEPCO and Respondents No.1

and 2 was governed by the principle of "master and

servant" and the Respondents could not have invoked t H

constitutional jurisdictional of the High Court for

redressal of their grievances.

 Civil Appeal No. 749 of 2021
13

12. For the foregoing reasons, we find that the

impugned judgment of the High Court dated 16.07.2020

rendered in C.P.No, 1233 of 2017 is unsustainable and is

accordingly set aside. Consequently, the appeal is

allowed.

ISLAMABAD. THE
2.1.12.2021
ZR/*
NOT APPROVED FOR REPORTING