CEO FESCO etc Vs Fakhar Abbas Khan etc

Stereo. H C J D A 38.

Judgement Sheet

IN THE LAHORE HIGH COURT AT LAHORE.

JUDICIAL DEPARTMENT

ICA No.65735 of 2020 Chief Executive Officer, FESCO, etc. Versus Fakhar Abbas Khan, etc. and ICA No.65742 of 2020 Chief Executive Officer, FESCO, etc. Versus Muhammad Shahbaz, etc.

JUDGEMENT

Date of Hearing: 24.09.2026 Petitioner by: Mr. Aurangzeb Mirza, Advocate.

Respondent by: M/s. Abdul Ghaffar Dhariwal and Ghulam Akbar Sial, Advocates.

MUNAWAR IQBAL DUGGAL, J.- This judgment shall decide Intra-Court Appeal No.65735 of 2020 and connected Intra-Court Appeal No.65742 of 2020, as both arise out of the consolidated judgment dated 10.09.2020 passed by the learned Single Judge in Writ Petition No.9224 of 2017, instituted by Fakhar Abbas Khan, and Writ Petition No.36910 of 2017, instituted by Muhammad Shahbaz. By the impugned judgment, the former petition was allowed with a direction to issue an appointment letter to Fakhar Abbas Khan against the post of Assistant Line Man (ALM), whereas the latter petition was dismissed. The appeals have been preferred by the concerned officers of Faisalabad Electric Supply Company (FESCO), collectively referred to hereinafter as the appellants.

2.The controversy originated in the recruitment process for the post of ALM. Fakhar Abbas Khan and Muhammad Shahbaz each obtained 79 marks out of 100 and were amongst the candidates on the waiting list. Upon a vacancy becoming available, the FESCO vide its letter dated 25.10.2016 initially declared Muhammad Shahbaz as the senior-most waiting candidate. Subsequently, the candidature of Fakhar Abbas Khan was preferred on the basis of age by FESCO vide its letter dated 15.11.2016. Accordingly, it was decided vide letter dated 07.12.2016 by FESCO that offer of employment be issued in favour of

Fakhar Abbas Khan. Being aggrieved with this development in the form of letter dated 07.12.2016, Muhammad Shahbaz challenged the said action of FESCO through Writ Petition No.39130 of 2016 before this Court, interestingly without impleading Fakhar Abbas Khan as one of respondents. The said W.P No. 39130/2016 was disposed of on 15.12.2016, on the first date of hearing without issuing notice to the respondents, by directing the competent authority to treat the petition as representation of Muhammad Shahbaz and decide it in accordance with law after hearing the persons concerned.

3.Thereafter, through letter dated 21.03.2017, FESCO conditionally decided in favour of Muhammad Shahbaz on the premise that, where candidates secured equal marks, the child of an employee enjoyed preference. Accordingly, through the aforesaid letter dated 21.03.2017, directions were issued to convenor of the selection committee to finalize the case of Muhammad Shahbaz for employment after examining his educational documents and service record of his father. Fakhar Abbas Khan being aggrieved with letter dated 21.03.2017, filed Writ Petition No.9224 of 2017 praying therein that letter dated 21.03.2017 issued in favor of Muhmmad Shahbaz be set aside and earlier letter dated 07.12.2016 relating to his appointment be restored.

4.During scrutiny of Muhammad Shahbaz’s educational documents, an official of FESCO vide his letter dated 28.03.2017 pointed out that “Matriculation certificate of the candidate shows F- grade obtaining 274 marks out of 850 total marks. The Matriculation certificate has been issued with the condition “NO FAIL/NO PASS” basis. The basic qualification for appointment of ALM is Matric”. Accordingly, the Matriculation certificate of Muhammad Shahbaz was sent for verification to Deputy Controller Examinations, Board of Intermediate and Secondary Education, Faisalabad, who vide his letter dated 18.04.2017 “affirmed that the above candidate cannot be considered qualified in his SSC Examination or equivalent thereto”. Muhammad Shahbaz challenged the letter dated 18.04.2017 seeking its

cancellation and further direction to FESCO to appoint him as ALM by way of filing Writ Petition No.36910 of 2017 before this Court. The impugned judgment describes the certificate as bogus however, the Board’s determination is that same could not be treated as having qualified in the SSC examination or its equivalent. The material consequence for the present proceedings is that his challenge to the adverse determination was dismissed.

5.The learned Single Judge also noted that a brother of Muhammad Shahbaz had already obtained appointment against the employees’ children quota and held that another concessional appointment could not be claimed on that basis. This fact has also been pointed out in FESCO’s own letter dated 28.03.2017 that Muhammad Shahbaz’s brother namely Muhammad Imtiaz has already been appointed against Employee Children Quota (“sECQ”) vide letter dated 04.01.2017. Considering all these facts, the learned Single Judge in Chamber passed the judgement dated 10.09.2020 impugned in these ICAs to the effect that as the two candidates had secured equal marks, Fakhar Abbas Khan, being older in age, was held entitled to appointment. Muhammad Shahbaz has not preferred an appeal either against dismissal of his own petition or against the relief granted to Fakhar Abbas Khan. The two appeals before us have been instituted by FESCO alone.

6.Learned counsel for the appellants relies upon the PEPCO letter dated 21.11.2009 and contends that preference for an employee’s child in general recruitment is distinct from appointment against the employees’ children quota. According to him, the earlier appointment of Muhammad Shahbaz’s brother exhausted only the quota concession and did not displace the preference available in an open competition where marks were equal. He submits that the learned Single Judge mixed these two matters and incorrectly preferred age over the applicable departmental policy. The relief claimed in the appeals is, in substance, restoration of Muhammad Shahbaz’s claim to appointment.

7.The case of Fakhar Abbas Khan, as set up in the proceedings, is that he was the older candidate amongst those with equal marks, had

already received the offer dated 07.12.2016 and could not lawfully be displaced by extending a further concession to Muhammad Shahbaz’s family. Muhammad Shahbaz’s pleaded position was that the SSC certificate reflected an examination scheme without a pass/fail structure, that he had subsequently completed a diploma in homeopathic medicine, and that the prescribed educational qualification stood relaxed to middle level for employees’ children. These were grounds advanced in his own petition; its dismissal has not been challenged by him.

8.Heard and available record has been examined.

9.The preliminary question is whether the appellants have demonstrated a legally cognizable grievance entitling them to maintain either appeal. That question must be examined with reference to the operative decision in each writ petition, the interest asserted by FESCO and the relief sought. The fact that the petitions were decided by a common judgment does not dispense with that examination.

10.The appellate jurisdiction invoked is that conferred by section 3 of the Law Reforms Ordinance, 1972. The availability of an appellate forum does not, by itself, establish the standing of every party arrayed in the original proceedings. In “The State through A.N.F., Rawalpindi v. Obaid Khan (deceased) through LRs” (PLD 2024 SC 810), paragraph 3, the Supreme Court explained that an appeal is a statutory remedy and that an aggrieved person must establish prejudice to an interest recognized by law. Disappointment with the result, without the requisite legal injury, is insufficient. Although the decision relates to section 43 of the Prevention of Smuggling Act, 1977 and its particular statutory setting is distinct, but its exposition of legal grievance is instructive.

11.More directly relevant is “Province of Sindh through Chief Secretary, Government of Sindh v. Abdul Sattar Khokhar” and connected cases (2026 SCP 207, decided on 18.03.2026), paragraphs 10 and 11. In a dispute concerning inter se seniority, the Supreme Court held that the employer could not pursue the personal cause of employees who had not challenged the decision. It nevertheless

expressly recognized that the Government may seek correction of a misinterpretation of law, jurisdictional error, or conflict with service rules or precedent. For better understating, it would be beneficial to reproduced para 11 of the aforesaid judgement:

“Here the principle of “no aggrieved person, no appeal” is also applicable which accentuates that a person can be found aggrieved only if his legal right or rights are adversely affected, however mere discontent or displeasure is not enough but there must be an actual legal injury. The doctrine of locus standi is meant to filter out frivolous litigation for saving precious time of Courts and ensuring that the parties are present and arguing for their own violated rights. The jurisdiction of Courts cannot be invoked for immaterial or nonfigurative questions having no nexus with the valid grievance. Neither the department has suffered any legal injury nor is it an affected party nor has any serious question of law been raised in terms of Article 212 of the Constitution. At this juncture, a phrase "out-heroding the herod" is quite relevant that originates from Shakespeare’s Hamlet, referring to someone being even more excessive or outrageous than a character (Herod) known for those very traits. The doctrine of aggrieved person acts as a gatekeeping principle. The doctrine of locus standi is mirrored in the Latin maxim “ubi jus ibi remedium”, where there is a right, there is a remedy. If a legal right is infringed, the victim has a corresponding right to approach a court for redressal, while “damnum sine injuria” explicates “no legal right is infringed so no action lies” and whereas the maxim “interest republicae ut sit finis litium” ensures finality of litigation and lays emphasis on bringing disputes to an end which is necessary for the equanimity and functionality of the legal system and society as a whole. In the case of Province of Punjab vs Dr. Muhammad Afzal (PLD 1999 SC 337), it was held that the Government should act as a fair employer and not as a contestant fighting employees.

(bold and underlining supplied for emphasis)

12.It follows that an employer is not invariably precluded from appealing in a recruitment dispute. Nor is the striking down of a recruitment policy the sole circumstance in which it may be aggrieved. An unlawful appointment direction or an erroneous determination affecting its legal powers may furnish a proper ground of appeal. Conversely, its status as appointing authority does not authorize it to litigate merely to secure the appointment of a particular unsuccessful candidate. We must, therefore, examine whether the policy objection raised in these appeals discloses an independent grievance in the circumstances of this case.

13.ICA No.65742 of 2020 arises from the dismissal of Muhammad Shahbaz’s Writ Petition No.36910 of 2017. The adverse determination concerning his educational qualification emanated from the examination of his SSC by the Board and declaring that candidates cannot be considered qualified in his SSC Examination or equivalent thereto. Challenge to finding of Board by Muhammad Shahbaz was personal to him. Dismissal of that challenge neither invalidated a policy of FESCO nor required FESCO to recognize a qualification which the Board did not recognize. The appellants have identified no legal entitlement of their own which was defeated by that dismissal. Indeed, their prayer seeks reversal of the dismissal and a direction permitting Muhammad Shahbaz to join FESCO. In this appeal, they have thus assumed the position of the unsuccessful writ petitioner without demonstrating an independent legal injury. Their presence as respondents in his petition cannot supply that deficiency.

14.The position in ICA No. 65735 of 2020 requires separate consideration because the judgment in Fakhar Abbas Khan’s petition contains an affirmative direction to FESCO. We do not disregard that feature. Nevertheless, the grounds urged seek the appointment of Muhammad Shahbaz in place of Fakhar Abbas Khan against the same vacancy. No independent disqualification of Fakhar Abbas Khan is identified in the grounds of appeal; the asserted objection is the rival candidate’s preferential claim. The impugned judgment has not struck down the letter dated 21.11.2009. Its application was considered in deciding the competing claims of these two candidates.

15.The appellants’ policy argument must also be viewed alongside the subsisting dismissal of Muhammad Shahbaz’s challenge to the Board’s determination. They cannot establish a right to appoint him merely by disputing the method of resolving equal marks while leaving the adverse determination concerning his qualification unanswered. The appeal grounds do not demonstrate any error in the Board’s determination or identify a basis upon which its effect was displaced. In these circumstances, the asserted policy grievance supplies no

independent foundation for the particular relief sought. FESCO’s obligation is to administer the recruitment process lawfully; it has no legally protected interest in securing this vacancy for Muhammad Shahbaz irrespective of the adjudication concerning his qualification.

16.Muhammad Shahbaz’s omission to appeal would not, by itself, defeat an otherwise competent appeal by an independently aggrieved employer. Here, however, no such independent grievance has been established. His unchallenged adverse adjudication cannot be reopened solely because FESCO wishes to obtain for him the relief which he has not sought in appeal. Equally, consolidation of the two petitions did not merge their distinct causes of action or transfer his personal grievance to the appellants. We accordingly hold that both appeals, as framed and pursued, are not maintainable at their instance.

17.Even if the appellants’ objection to the interpretation of the recruitment policy was treated as sufficient to entertain Intra-Court Appeal No.65735 of 2020, the relief sought would still not follow. The letter dated 21.11.2009 contemplates that employees’ children may receive preference when they are at par with private candidates in general recruitment. Equality of marks does not, without more, establish equality of eligibility. A preference between eligible candidates cannot itself supply an educational qualification or remove the effect of an adverse determination by the examining authority.

18.The distinction drawn by learned counsel between a quota appointment and preference in general recruitment therefore does not answer the decisive difficulty in Muhammad Shahbaz’s claim. Even accepting that distinction for the purpose of argument, it would remain necessary to establish that he met the qualification applicable to the post or was covered by a valid and applicable relaxation. His petition had invoked a departmental letter dated 24.12.2004 concerning middle-level qualification for employees’ children, but that contention did not result in relief and he has not appealed. The grounds now advanced by FESCO concentrate upon equal marks and parental employment; they do not establish why the subsisting rejection of his qualification

challenge should be displaced. It is consequently unnecessary to pronounce a general rule that the appointment of one child invariably excludes another from every form of preference in open recruitment.

19.Fakhar Abbas Khan’s earlier offer and his greater age were material to the determination of the competing claims. The impugned judgment records his date of birth as 18.01.1987 and Muhammad Shahbaz’s as 04.11.1990. The case advanced for reversing that determination depends upon the latter’s asserted preference. For the reasons already given, that preference does not establish an enforceable entitlement on the present record. No sufficient ground has, therefore, been made out to disturb the appointment direction. Our conclusion is confined to these proceedings and does not amount to a fresh finding of forgery concerning Muhammad Shahbaz’s certificate or an adjudication upon the general validity of hereditary preferences in recruitment.

20.For the foregoing reasons, ICA No. 65735 of 2020 and ICA No. 65742 of 2020 are dismissed as not maintainable at the instance of the appellants. The grounds advanced for interference also fail for the reasons recorded above. The consolidated judgment dated 10.09.2020 shall remain undisturbed. Pending miscellaneous applications, if any, stand disposed of accordingly. There shall be no order as to costs.

(ABID AZIZ SHEIKH) (MUNAWAR IQBAL DUGGAL)

JUDGE JUDGE

APPROVED FOR REPORTING.

JUDGE JUDGE

Javed Malik*