Abdul Qadir Haji (Petitioner) VS Pakistan Steel Mills (Respondent)

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ORDER SHEET

IN THE HIGH COURT OF SINDH. KARAbI{I

C. P. No.D-43 of2008

Date Order with signatue ofJudge

Petitioner Abdul Kadir Haji in person.

Pakistan Steet Mills thtrough Mr. Khalid Imran Siddiqui, advocate.

MUHAMMAD XABIM I<EAN-AGIIAJ., The petitioner is an employee of Pakistan Steel Mills, who was due for plomotion from Manager to the post of Deputy General Manager (Non-Engineering). He was denied promotion following a -4 decision of Departmental Promotion Committee ("DPC") held on 25.10.2007. The petitioner alleges that respondent No.[ did not treat the petitioner equally with other successful applicants and thereby discriminated against him and as such abridged the fundamental dghts ofthe petitioner as, inter alia, guaranteed by Articles 4 and 25 of the Constitution oflslamic Republic ofPakistan, 1973.

2.According to the petitioner, on account ofthe discrimination against him by the DPC held on 25.10.2007, he was illegally superseded by respondents Nos 2 and 3, who were junior to him. The petitiorcr further alleges that as per Service Rules and Regulations of respondent No.l, the promotion fiom the post of Manager to 1 Deputy Gercral Manager is to be given on "best out of best" formula, as set-out in the Service Rules and the Minutes ofDPC meeting held on 25.10.2007, which the petitioner claims were flouted in his case by the DPC. For brevity sake rclevant paragaph (a) of the said minutes of DPC held otr 25.10.2007 is reproduced herein below:-

"a) P from aser to DGM Grade (Both TechnicauNotr Technical Cadre)

As per organograrn approved by the Board of Directors, 59 posts of Deputy General Managers are sanctioned. At present only 40 posts of Deputy General Managirs are held. 19 clear vacancies of Deputy General Managers are available.

Minimum 65% marks in qua ification of last 5 years ACRS

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As per rules post of DGMS and above shall be treated as selection post as such suitability of DGMs be assessed on the basis of Bdst out of the Best formula as well as disciplinary action initiated against them during last thxee (03) years: ifany and their general reputation."

3.According to the petitioner he met all the above rcquirements but was not promoted in contmventiofl of the Rules ard Regulations of Pakistan Steel Mills.

Instead, respondent No.3 who did not meet all the rcquirements, in particular, the average 6502 marks in quantification of last five years ACRS was promoted ahead of him.

4.Respondent No.l has filed parawise comments alongwith a set of documents in support of its contention that the petitioner was not discriminated against by the //4 DPC. Responde[t No.l has also raised preliminary objection to the maintainability of this petition under Article 199 of the Constitutiol of the Islamic Republic of Pakistan. According to respondent No.l, the petitioM has no vested right to promotion and the petition should be dismissed.

5.Respondent No.l additionally claims that the petition is not maintainable as Respondent No.l has its own rules and rcgulations of service, which are non- statutory in nature and, therefore, the p€titioner's service is solely govemed by such rules and is not subject to the wdtjurisdiction under Article 199 ofthe Constitution, .,1 1973. In support ofthis coltention, Respondent No.l places reliance on ihe cases of PAKISTAN RED CRESCENT SOCIETY v. NAZIR GILLANI (PLD 2005 SC 806) and GOVERNMENT OF PAKISTAN v. HAMEED AKHTAR NIAZI (PLD 2003 sc r l0).

6.Respondent No.l, however, agrees with the petitioner's contention that promotion to the post in question is govemed by adopting best out ofbest fomula as opposed to that of seniority-cum-fitness.

7.Having heard the petitioner irl p€rson and leamed counsel for the respondents in depth and having reviewed the documents placed on file the Court reaches the following conclusion.

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8.As a preliminary matter the Coud finds that the Consl. Pgition- filed against the respondents by the petitioner under Article 199 ofthe Constiidtion ofthe lslamic Republic of Pakistan, 1973 is maintainable on a number of gmunds. These include the fact that the petitioner claims that he has been discriminated against irl breach of his fimdamental dghts guaranteed by the Constitution and that Adicle 199 of the Constitution, 1973 can be resorted to ifno other adequate remedy is available to the petitioner, as is the case in hand. The Cout cites with approval the conclusions reached in the case of MUHAMMAD DAWOOD v. FEDERATION OF

PAKISTAN (SBLR 2007 SINDH 495), rclevad portion ofwhich is set out below:- D "Irrespective of an employee of a State controlled corporation not being a civil servant the corporation themselves continue rr{ to remain amenable to the jurisdiction of this Court urder Article 199 ofthe Constitution.

iD The rule of master and servant is inapplicable to cases where there is violation of statutory provisions or ofany other law.

iii)The expression 'violation of law' would not be confined merely to violation of any specific provision of a statute but the expression 'law', as observed by Hamoodur Rehman, J., (as his lordship then was) in Govemment of West Pakistan vs. Begum Aga Abdul Karim Sorish (PLD 1969 SC 14 @ 3l) and ought to be considered in its generic sense as connoting all that is treated as law in this country including even the judicial principles laid down from time to time by the superior courts. It means according to the accepted norms of legal process al1d postulates a strict performance of all the firnctions and duties laid down by law. It may, instance, includes the principles of -'af natural justice, the public duty to act fairly and honestly and absence of malafides in fact and law. ln all such cases the Cout would be competent to grant relief ofreinstatement."

9.It is significant to record that the cases relied upon by respondent No.l and refened to earlier in this judgment were decided before the decision of the Hon'ble Supreme Court of Pakistan in MUIIAMMAD MUBEEN-US-SALAM AND OTHERS v. FEDERATION OF PAKISTAN (SBLR 2006 SC 258) which in effect precluded the Federal Sewice Tribunal from hearing cases of employees of stat€ owned or contolled corporations. As such the above cited cases are distinguishable as the legal position has now chaoged on accourlt of the ruling in MUHAMMAD MUBEEN-US-SALAM's case and the subsequent findings of this Court in MUHAMMAD DAWOOD's case.

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10.Pamgaph 2.34 ofthe Pakistan Steel OIficers Service Rules and Regulations prescribes the procedure for promotions from Manager to Deputy General Manager.

This paragraph makes it clear that the minimum qualiling service is seven years and the promotion criteria is not based on seniority-cum-fitness but is a selection post where best out of best formula is to be applied, Furthermore, the minutes of DPC meetiry held on 25,10.2007, as mentioaed above, postulates certain guidelines for the promotion from Manager to Deputy Gerleral Manager. Such guidelines include the minimum 65% of marks in quantilication of last five years ACRS and as per rules conflrms that the post of Deputy Genqral Manager and above should b€ heated as Selection Post to be filled on the basis ofbest out ofbest formula.

."1 11. A careful review ofthe documents provided to the Court by respondent No.l clearly show that the respondent No.3 had an avemge ACR over the last five years of 63.20/o. As such according to respondent No.l's own rules ard best out of best formula and the minimum average grcde, as laid down in the board meeting, it is clear that rcspondent No.3 should not have been considered for promotion as he did not meet the basic requirement of 650% average marks in quantification over his ACRS for the last five yeaxs. On the other hand the documents provided by respondent No.l reveal that the p€titioner did meet the required grading of having an a average ACR of657o marks in quantification over the last five yeals.

12.The Court does not subscribe to respondent No.l's argument that because respondent No.3 had greater specialization in Horticulture he was more suitable for the position and this obviated the need for respondent No.3 to meet the minimum requiremelt of 65o% marks in quantification oflast five years ACRs.

13.In the given circumstances, we, therefore, hold that the petitioner was discriminated agaiNt by the DPC held ot 25.10.2007 as according to its own fomula the petitioner should have been selected for promotion ahead of respondent No.3, who did not even meet the minimum requirement of averaging 657o marks in quantification in his ACRs over the last 5 years. Even theB on the best out of best formul4 the petitioner's higher average ACR of 65% entitled him to be promoted ahead ofrespondent No.3, who had a lower average ACR of 63.2%. More so as other

5 t documents placed on record by Respondent No 1 in comiiiance with this courts order dated 14.1 1.08 indicate no other shortcoming or disqualification in the service record of the petitioner which could justify the decision of the DPC for witholding his promotion or allowing promotion of Respondent No 3 ahead of him.

14.As such, we allow the petition with the direction to the respondent No.1 to immediately promote the petitioner on the post of Deputy General Manager in place ofRespondent No 3. We, however, decline the reliefofconsequential back benefits.

The petition is allowed and disposed of in the above terms.

Karachi, March 19, 2009 d-- Jud[e

ustice