GEPCO Engineers & Officers Association Through Chairman Mian Abdul Qayyum & 2 Others Vs Federation of Pakistan etc

Stereo.HCJDA 38.

JUDGMENT SHEET.

LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Writ Petition No.171 of 2024

(GEPCO Engineers & Officers Association (Regd.) through its Chairman, etc.) versus (Federation of Pakistan through Ministry of Energy (Power Division), etc.)

JUDGMENT

Date of hearing: 16.02.2026

Petitioners by: M/s Muhammad Ramzan Chaudhary, Barrister Abdul Qudoos Sohal and Ch.

Ghulam Rasool, Advocates.

Respondent Malik Tanveer Ahmad Awan, Assistant No.1/Federation of Pakistan Attorney General for Pakistan. by:

Respondents No.5 & 6 by: M/s Aurangzeb Mirza and Mr. Muhammad Irfan Hanjra, Advocates.

Respondent No.7 by: M/s Syed Ghazanfar Ali and Syed Salman Ali, Advocates.

MALIK JAVID IQBAL WAINS, J.:- By way of this Constitutional Petition, filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioners have assailed the vires of notification dated 05.12.2023 (“impugned notification”), issued by the Deputy Secretary (DISCOs), Ministry of Energy (Power Division), Islamabad, following a decision by the Federal Cabinet Committee on Energy (CCoE), whereby the Committee while taking into consideration the summary dated 20th September, 2023 acquiesced by the Power Division regarding “Monetization of Free Electricity Units admissible to Employees of WAPDA and XWAPDA Companies (DISCOs), GENCOs, NTDC, PITC)” approved the proposal in the following terms:- i. In the first phase, the electricity facility to in-service Officers (BS-17 and above) of WAPDA, DISCOs,

W.P.No.171 of 2024 2

GENCOs, NTDC and PITC may be monetized as detailed below which has been calculated according to supply tariff notified vide S.R.O. No.938-947(1)/2023 dated 26.07.2023 excluding taxes and duties and the same shall be frozen: - BPS Free Units Electricity Free Units Electricity Free Electricity for Non- Monetization for Monetization Units for Monetization Generation for Non- Generation for WAPDA for WAPDA Generation Generation (Rs.)

(Rs.)

ii. Henceforth, all the in-service employees in grade 17 and above of the above-mentioned entities shall pay the electricity bills issued by the respective DISCOs against the reference numbers already available with the DISCOs. iii. In the earlier circulated version WAPDA employees were not included, which have been added in the light of discussions held in a meeting at Prime Minister’s office dated 27th August 2023 duly attended by Chairman

WAPDA;

iv. For future, these rates stand frozen.

2.The grievance of the petitioners, as articulated in the pleadings of this writ petition, is that respondents No.4 to 6 inducted the members of the petitioners-association into service through a competitive recruitment process at various intervals. It is contended that upon their appointments to diverse posts, both within the engineering and officer cadres, the terms of their engagement and provision of a designated quantum of free electricity units were mentioned in their appointment orders.

3.It is maintained that since their induction into the department, the members of the Association have consistently and uninterruptedly availed this facility of free electricity units. The petitioners emphasized that this utility benefit has remained an intrinsic part of their remuneration, as per the settled terms and conditions of their employment.

4.Further asserted that respondent No.2 vide impugned notification on the basis of decision of Federal Cabinet Committee on Energy (CCoE), has withdrawn free electricity units from officers BPS-17 and above by way of monetization as detailed mentioned hereinabove, which act is illegal, unlawful and unconstitutional.

5.Learned counsel for the petitioners contends that the impugned notification has been issued without lawful authority and is liable to be set-aside, being violative of the principles of financial and administrative autonomy. It is contended that the electricity units in question are generated and managed by WAPDA through its own generations, transmission and distribution margins, and do not constitute any financial burden upon the Government of Pakistan or the national exchequer. Learned counsel further argues that the provision of electricity to employees of the power sector is on the analogy of the facilities extended by other departments and corporations, such as education, freight and telephone to their employees.

6.It is further contended that the facility of electricity is being extended to employees in BPS-1 to BPS-16 within the power sector, therefore, withdrawal of the same exclusively from officers in BPS-17 and above amounts to discrimination inter se amongst similarly placed employees, particularly the members of the petitioners’ Association. Learned counsel adds that the withdrawal of free electricity units, without any corresponding increase in salary or alternative compensatory mechanism, effectively reduces the overall remuneration package of the officers. It is also argued that the Cabinet lacks the requisite jurisdiction to frame or alter policy decisions concerning service benefits, including the withdrawal or modification of free electricity units.

7.Learned counsel further maintains that the principle of locus poenitentiae is fully applicable in the present matter, as it recognizes the authority of a decision-maker to reconsider, modify, or withdraw a decision prior to its final implementation, wherever, in the instant case, the facility in question has been abruptly withdrawn without affording

due opportunity for reconsideration, thereby offending the settled contours of the above said principle. Lastly, it is contended that the impugned notification is contrary to the spirit and mandate of Articles 4, 9 and 25 of the Constitution of the Islamic Republic of Pakistan, 1973.

8.Learned counsel appearing on behalf of respondents No.1 and 2 contends that the petition is not maintainable under constitutional jurisdiction, as the petitioners are employees of corporate entities incorporated under law and are governed by a master and servant relationship. Further submits that since no statutory rule has been violated and the impugned notification constitutes a policy decision within the executive domain, therefore, the impugned notification was issued to rationalize and streamline the finances of State-Owned Enterprises in view of severe financial constraints in the power sector, including mounting circular debt and projected losses. Adds that the facility of free electricity units has not been withdrawn but monetized, as the admissible amount is now included in the officers’ pay, and payment is made by them at the prescribed rate. This change in modus operandi was necessitated by administrative complications, risk of duplication, delays in recoveries, and liquidity concerns of loss-making entities.

9.Learned counsel for respondents further argues that no discrimination or infringement of constitutional rights has been violated as the petitioners cannot compare themselves with employees of other entities governed by distinct service frameworks. The policy was adopted uniformly and upon recommendations of the Ministry of Finance the decision of discontinuation of such facility was made. Further maintains that the plea of locus poenitentiae is misconceived, as no vested right accrued, and merely the benefit has been monetized.

10.Learned counsel for respondents No.5 and 6 submits that Gujranwala Electric Power Company (GEPCO) is a company incorporated under the Companies Act and wholly owned by the Government of Pakistan. Its policy decisions are taken by the Board of Directors in accordance with the guidelines issued by the Federal

Government, which retains authority to issue directions in respect of operational and service matters. Although the facility of free electricity units forms part of the service conditions of employees, yet the relationship between GEPCO and its employees is governed by the master and servant principle, therefore, such benefits, being non-statutory in nature, may be modified or withdrawn by the competent authority as a matter of policy. The continuation or discontinuation of the facility lies within the discretion of the employer and cannot be challenged merely because similar benefits have been extended by other entities.

11.It is further contended that the impugned decision was taken after due consideration by the Cabinet Committee on Energy (CCoE), on the basis of a summary submitted by the Power Division, Ministry of Energy, concerning the monetization of free electricity units admissible to employees of WAPDA and ex-WAPDA companies, including DISCOs, GENCOs, NTDC, and PITC. The decision was made in the best interest of the organization and in view of the prevailing and changed circumstances. No issue of discrimination arises, as extension of benefits to one category of employees does not create a legal obligation to extend the same to another. It is asserted that since the service conditions are contractual and non-statutory, they are not amenable to constitutional jurisdiction, the matter pertains purely to internal organizational policy of a government-owned company and, as such, the writ petition is incompetent and not maintainable, hence liable to be dismissed.

12.Arguments heard. Record perused.

13.In the present constitutional petition, the question of maintainability has been raised on the ground that the petitioners’ association itself is not an aggrieved entity in respect of the impugned notification issued by the respondents. Learned counsel for the petitioners, however, submits that the members of the petitioners’ association are directly aggrieved from the said notification. It is also an admitted position that the instant petition has been filed by the petitioners’ association through its office bearers, who are employees of

the respondents and are themselves affected from the impugned notification. Therefore, this Court deems it appropriate to decide the matter on merits rather than on mere technicalities.

14.GEPCO is a public sector entity wholly owned by the Government of Pakistan and operates under the policies framed by the Federal Government. Being a public utility responsible for the provision of electricity to the general public, the company functions within the administrative and financial framework prescribed by the Federal Government and is required to manage its resources in accordance with broader policy objectives. In performing these functions, the organization must balance its obligation of service delivery with financial sustainability, particularly in light of the prevailing fiscal constraints within the power sector, including the issue of mounting circular debt and anticipated operational losses.

15.In this backdrop, the controversy requiring determination is whether the facility of free electricity units constituted a vested or statutory right capable of enforcement through constitutional jurisdiction, and whether its monetization through the impugned notification suffers from illegality, arbitrariness, discrimination, or any constitutional infirmity. The scope of examination by this Court, therefore, remains confined to assess the legality and propriety of the decision making process leading to the issuance of the impugned notification.

16.The decision of the Federal Cabinet Committee on Energy (CCoE), culminating into the impugned notification regarding monetization of free electricity units for officers in BPS-17 and above, constitutes a considered policy determination in the context of financial restructuring of the power sector. The monetization was undertaken, with the aim of streamlining administrative processes, reducing operational inefficiencies, and ensuring uniformity of benefits across public sector entities. Such executive decisions, being policy in nature, are entitled to judicial deference. Unless patent illegality, arbitrariness, or constitutional

infirmity is demonstrated, this Court cannot interfere in matters concerning financial and administrative policy.

17.Insofar as the facility of free electricity units is concerned, the same was in the nature of a service-linked perk and privilege extended to employees with a view to facilitate the discharge of their duties and providing an incentive in service. Such benefits, by their very character, do not constitute core service rights, statutory entitlements, or pensionable benefits. While employees are entitled to remuneration in accordance with the terms and conditions of their appointment, non- statutory allowances and privileges remain within the administrative discretion of the competent authority and may be altered, monetized, or withdrawn having regard to operational requirements and financial considerations.

18.The decision to reconfigure the facility of free electricity units by substituting it with a monetized component cannot, therefore, be said to be arbitrary or prejudicial, particularly when the overall remuneration of the employees remains unaffected. Such a measure merely reflects a policy decision aimed at rationalizing the benefit in accordance with the organizational framework and administrative exigencies.

19.In order to demonstrate that the facility of free electricity units had acquired a binding character, learned counsel for the petitioners placed reliance upon certain appointment letters issued to members of the Association and invited the Court’s attention to Clause 20 thereof, wherein it is mentioned that the employee “will be entitled to the concession of free electricity supply as admissible under the Rules.” However, when specifically asked by the Court to identify these statutory rules, regulations, under which such entitlement had been conferred, learned counsel was unable to point out any such provision. No statutory rules or regulatory instruments substantiating the alleged entitlement were appended with the petition.

20.Conversely, the learned Law Officer appearing for the respondents categorically refuted the existence of any formally framed rules granting

such right and submitted that the facility had merely been extended as an administrative concession, not emanating from any statutory mandate. This aspect considerably undermines the petitioners’ assertion that the benefit constituted an enforceable legal right.

21.Even otherwise, it is a settled principle of law that where service conditions are not governed by the statutory rules, but arise purely from administrative instructions or contractual arrangements, such terms are ordinarily not enforceable through constitutional jurisdiction. Although GEPCO, being a public utility company wholly owned by the Government, may fall within the ambit of constitutional jurisdiction on the basis of the functional test, the enforcement of purely non-statutory service benefits is governed by a distinct legal footing. In absence of a statutory foundation, the alleged entitlement remains contractual in nature and cannot be elevated to the status of a fundamental or vested right capable of enforcement through constitutional proceedings.

22.The objections raised by the petitioners on the grounds of discrimination, diminution of remuneration, and the applicability of the doctrine of locus poenitentiae are equally without substance. The impugned policy of monetization has been applied uniformly to all officers in BPS-17 and above, thereby maintaining parity within the relevant cadre. The facility in question was neither statutory nor vested in character but was extended merely as a discretionary service concession; consequently, its reconfiguration does not infringe any accrued legal right. The doctrine of locus poenitentiae, which contemplates reconsideration before a right becomes final, is inapplicable in circumstances where non-statutory entitlement had crystallized. Likewise, the doctrine of legitimate expectation cannot be invoked to restrain a lawful policy adjustment undertaken in public interest, particularly where the benefit was inherently subject to modification and did not confer an indefeasible right merely by virtue of its continued enjoyment.

23.The petitioners contention that the facility has not been withdrawn for employees in BPS-1 to BPS-16 and the impugned action is discriminatory, is misconceived. The law does not mandate identical treatment in all circumstances; different categories of employees may legitimately be treated differently where the distinction is founded upon an intelligible differentia having a rational nexus with the object sought to be achieved. A classification is constitutionally valid where it is based on a clear and reasonable distinction logically connected with the purpose of the policy. In the present case, officers in BPS-17 and above constitute a distinct cadre within the service hierarchy, and the policy of monetization has been introduced as part of fiscal rationalization at higher grades. The differential treatment is therefore based upon a reasonable classification and does not amount to unlawful discrimination. The Hon’ble Supreme Court of Pakistan while upholding the RULES/

POLICY FOR MONETIZATION OF TRANSPORT FACILITY FOR

CIVIL SERVANTS (BS-20 TO BS-22) in case reported as Syed Azam Shah v. Federation of Pakistan through Secretary Cabinet Division, Cabinet Secretariat, Islamabad and another (2022 SCMR 201) has held as under:-

“12. The decision of Steering Committee was not particularized or person specific to the appellant but it was made applicable across the board for all Principals, Professors and Teachers in BS-20 and above which does not seem to be discriminatory or arbitrary but on account of reasonable classification with rational nexus. The compass and magnitude of judicial review of governmental policy is now well settled and defined in which neither the court can act or represent as appellate authority with the aim of scrutinizing the rightness, fittingness and aptness of a policy nor may act as advisor to the executives on matters of policy which they are entitled to formulate. The extensiveness of judicial review of a policy is to test out whether it violates the fundamental rights of the citizens or is at variance to the provisions of the Constitution, or opposed to any statutory provision or demonstrably arbitrary or discriminately. The court may invalidate laws, acts and governmental actions that are incompatible with a higher authority more so, an executive decision may be invalidated for being unlawful and also maintains check and balance. This can be sought on the grounds that a decision arises when a decision- maker misdirects itself in law, exercises a power wrongly, or improperly purports to exercise a power that it does not have,

which is known as acting ultra vires; a decision may be challenged as unreasonable if it is so unreasonable that no reasonable authority could ever have come to it or a failure to observe statutory procedures. The dominance of judicial review of the executive and legislative action must be kept within the precincts of constitutional structure. In the case of Abdul Hameed and others. v. Water and Power Development Authority through Chairman, Lahore and others (2021 SCMR 1230), this Court held that the roles of each organ of the State are defined within the Constitution of the Islamic Republic of Pakistan, so also in different laws. It is not the role of the Courts to interfere in policy decisions, unless it is manifest that such a policy decisions are the outcome of arbitrary exercise of power, mala fides, patently illegal or manifestly unreasonable. The court placed reliance on the case of Asaf Fasihuddin Khan v. Government of Pakistan (2014 SCMR 676), in which it was held that the duty of the Court is to confine itself to the question of legality, whether a decision making authority exceeded its powers; committed an error of law; committed a breach of the rules of natural justice; reached a decision which no reasonable tribunal would have reached or abused its powers.“

24.Further, the Hon’ble Supreme Court while deciding the case of “Special WAPDA Allowances” of WAPDA employees in case reported as Abdul Hameed and others v. Water and Power Development Authority through Chairman, Lahore and others (2021 SCMR 1230) has enunciated as under:-

“11. The roles of each organ of the State are defined within the Constitution of the Islamic Republic of Pakistan, so also in different laws. The learned Tribunal has elaborately dealt with this issue, and, has relied on a judgment of this Court reported as Muhammad Shabbir Ahmad Nasir v. Secretary Finance Division Islamabad (1997 SCMR 1026) and Muhammad Farid Khattak v. Chief Secretary Government of N.W.F.P. (2009 SCMR 980). A transgression of those roles by one organ would amount to the usurpation of the power of another, which would be against the spirit of Article 7 of the Constitution of the Islamic Republic of Pakistan. It is not the role of the Courts to interfere in policy decisions, unless it is manifest that, such a policy decisions are the outcome of arbitrary exercise of power, mala fides, patently illegal or manifestly unreasonable. Reliance in this regard is placed on the case of Asaf Fasih Uddin Khan v. Government of Pakistan (2014 SCMR 676) of which, the relevant part is reproduced as: - “It is to be noted that the duty of the Court is to confine itself to the question of legality. Its content should be whether a decision-making authority exceeded its powers; committed an error of law;

committed a breach of the rules of natural justice; reached a decision which no reasonable tribunal would have reached; or abused its powers.”

12.The Respondent-Authority has to evaluate its fiscal capacity and cannot simply dole out allowances at any date and time and, at the whims of anyone who may feel aggrieved of an order which is otherwise properly passed by an. authority competent to do so. It is the prerogative of the authority to ascertain which class of employees should receive additional allowances and from which date. Such decision would obviously depend on various factors including available financial resources, nature of job of the employees and reasons to allow additional incentives to a certain class of employees. The argument of the learned ASC for the Appellants and the Petitioners that others were granted the Allowance from an earlier date with arrears, whereas, they were left, out, is untenable. Each case must be examined in the light of its peculiar facts and circumstances and not on the basis of a generalized allegation of discrimination. Nothing has been placed on record that may constitute convincing evidence of discrimination. Further, there is a clear and understandable differentia between different classes of employees who have been given the allowance from different date for valid reasons. We are therefore not convinced that a case for discrimination is made out. The learned Counsel for the Appellants/Petitioners has repeatedly been asked to point out any illegality in the order of the- Respondent-Authority so also the F.S.T. He has been unable to do so”.

25.The scope of judicial review in such matters is limited to examine the legality of the decisions making process. It is well settled that economic and fiscal policy decisions fall within the domain of the executive and are not open to judicial substitution unless shown to be manifestly arbitrary or violative of constitutional provisions. Courts do not sit in appeal over policy decisions nor substitute their wisdom for that of the executive in matters of fiscal planning or administrative restructuring. Interference by this Court with a policy decision of the Government, in exercise of its constitutional jurisdiction, is therefore not warranted unless a clear case of constitutional transgression is made out. For reference, reliance can be placed on Peshawar Electric Supply Company Ltd. (PESCO and others v. SS Polypropylene (Pvt.) Ltd., and others (PLD 2023 SC 316), wherein it has been held as under:- “24. As noted above, the High Court appears to have arbitrarily interfered in a policy matters which it should have been reluctant

to do considering that such matters concern complex factors which have a direct impact on the economy of the country. Where the legislature has expressly provided an authority for determination in such matters, in the shape of NEPRA, then, such authority allowed to perform its functions because it has technical knowhow owing to the fact that it comprises members from various technical fields. It has been held by this Court that in cases involving utilities and economic regulation, there are good reasons for judicial restraint and/or judicial deference to legislative judgment. It is not the responsibility of the Court to regulate economic policy. The responsibility of the Courts is limited to legal interpretation. The Court is expected to enforce fundamental rights reasonably and not in a manner which creates hurdles and unnecessary complications. In the instant case with all due respect, the learned High Court has overstepped its jurisdiction under Article 199 of the Constitution and, has overridden the policy/framework of NEPRA which matter is beyond the jurisdictional parameters of the High Court. In such a situation, the learned High Court was required to exercise self-restraint and defer the matter for determination to NEPRA. Reliance in this respect is placed on the case of Elahi Cotton Limited v. Federation of Pakistan (PLD 1997 Supreme Court 582).”

25.It is settled law that Courts, while exercising constitutional jurisdiction, must do so on the touchstone of fairness, reasonableness and proportionality. Courts, while acting under the Constitution, must not encroach upon the domain of the executive branch unless there is violation of fundamental rights guaranteed under the Constitutional or the executive branch oversteps its legal and constitutional limits.....”

26.It is well settled that the Court cannot assume the role of the Government by taking decisions which fall squarely within the executive domain. Any such exercise would effectively amount to the Court stepping into the shoes of the executive and would constitute an instance of judicial overreach. Interference of this nature would also run contrary to the doctrine of separation of powers, which forms a foundational principle of the constitutional framework. Assumption of executive functions by the judiciary in matters of policy or administrative discretion would undermine institutional boundaries and disturb the constitutional scheme of governance.

27.The contention regarding lack of jurisdiction of the Cabinet to alter or withdraw the benefit is misconceived and without merit. The Cabinet Committee on Energy (CCoE), upon a summary submitted by the Power

Division, Ministry of Energy, relating to the monetization of free electricity units admissible to employees of WAPDA and ex-WAPDA entities, including DISCOs, GENCOs, NTDC and PITC, took the impugned decision. No violation of the Rules of Business, 1973 has been pointed out by the petitioners.

28.It is well settled that matters relating to service structure, creation or continuation of posts, and allied benefits fall within the exclusive domain of the executive, which is to assess its requirements in light of fiscal space and administrative exigencies. The Courts cannot intrude into executive policy concerning service matters or financial management in the absence of statutory violation. The decision to monetize the facility, therefore, represents a lawful exercise of administrative discretion grounded in policy considerations and financial prudence. The Hon’ble Supreme Court in GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Agriculture, Livestock and Cooperative Department Peshawar and others vs. SAEED-UL-HASSAN and others (2021 SCMR 1376) held as under:-

“16. The learned High Court has, in one of the Impugned Judgments, on the question of deleted posts, held that the Appellants were duty bound to convert all posts to the regular side without deleting any one of them. As noted above, executive policy making is not the domain of the High Court in the scheme of the Constitution and, is the prerogative of the executive to ascertain on the basis of its need, requirement, available resources and fiscal space, which posts it wishes to keep and which it wishes to abolish. Separation of powers is a well-entrenched principle of jurisprudence which requires that the Court cannot step into the shoes of the Executive. As such, when the posts of the Respondents in CA No. 273 of 2020 have been deleted by the Finance Department, the learned High Court could not have ordered the Appellants to reinstate the Respondents on non-existent posts.”

29.The impugned notification does not offend Articles 4, 9, 19-A or 25 of the Constitution of Islamic Republic of Pakistan, 1973. The measure has been adopted pursuant to a lawful policy decision and does not deprive the petitioners from any statutory entitlement. The monetization of free electricity units neither reduces basic pay nor alters

any vested service right, it merely modifies the manner in which a discretionary facility is extended by the department. Since the benefit of free electricity units was not founded upon any statutory rule and remained subject to administrative control, its reconfiguration through a policy decision does not give rise to any enforceable constitutional claim.

30.Besides above aspects of the case, it is further observed that the policy has been adopted uniformly across entities within the power sector, thereby negating any allegation of arbitrary or discriminatory treatment. The measure appears reasoned and rational, aimed at ensuring financial sustainability while maintaining employee remuneration within lawful parameters. The impugned notification neither extinguishes employment nor curtails tenure or statutory pay, it merely alters the mode of extending a discretionary facility by converting concession of free electricity units into a monetized component, which squarely falls within the ambit of administrative restructuring. In absence of mala fides, hostile discrimination, or violation of any statutory mandate, no ground for judicial interference is made out.

31.Accordingly, the impugned notification dated 05.12.2023, issued by respondent No.2 does not warrant any interference by this Court, and the same is hereby upheld. Consequently, this writ petition stands dismissed. All C.Ms. arising out of this writ petition stand disposed of.

(MALIK JAVID IQBAL WAINS)

JUDGE

Approved for reporting.

JUDGE

Announced in Open Court on 13.04.2026.

JUDGE

Usman*