Waseem Haider etc Vs Government of Khyber Pakhtunkhwa through Chief Secretary, etc.

Judgment Sheet

(Judicial Department)

WP No.192-812022

Waseem Haider etc.

v.

Government of Khyber Pakhtunkhwa through Chief Secretary, etc.

TADGMENT

For petitioners: I Umer Nawaz. attornev for petitioners.

For respondents:

Advocates

Date of hearing: 27.05.2025

*{.,f**

4 MUHAMMAD TARIO AF'RIDI" J.- Through the instant writ petition under Article 199 of the Constitution, the petitioners have prayed for the following relief:

It is, therefore, humbly prayed that on acceptance of instant petition, a writ may kindly be issued directing the respondents for making the appointments of the petitioners on the posts in question according to final merit list and recommendations list.

2.Concisely, the facts as set out by the petitioners in the instant writ petition are that the Peshawar Electric Supply Company (PESCO) advertised 2,605 posts of Assistant Lineman (BPS-05), of which 1,954 were reserved for open merit, 130 for the minority quota, and 521 for the employee's son quota. The petitioners applied against the posts reserved for

open merit and, after participating in the test and interview, secured positions within the ambit of selection. However, to their astonishment, another merit list was uploaded on the website of KMU, wherein the posts reserved for open merit were distributed on a district-wise basis, and merit lists were prepared according to the marks secured in the respective districts. Consequently, the petitioners were ousted from their earlier secured merit positions, prompting them to petition this Court under Article 199 of the Constitution with the prayer as aforesaid.

3.Before adverting to the merits of the case, it would be pertinent to mention here that today, the petitioner Samiullah and the petitioners' attorney Umer Nawaz appeared before the Court and stated that their counsel is not available. However, considering that the matter has been pending before this Court since 2022, and that it involves a short legal proposition that has already been addressed in multiple cases not only by the Supreme Court, but also by this Court, we deemed it appropriate to proceed with the matter in accordance with law.

We, therefore, carefully examined the grievance raised by the petitioners, the material appended with the writ petition, and the law declared on the point in issue. Arguments advanced by the learned counsel for the respondents were also heard. Record perused.

I 4. There is no denial of the fact that respondent-company (PESCO) was established in the year 2002 in view of the bifurcation of the Power Wing of WAPDA as envisaged under Section 8(vii) of the WAPDA Act, 1958, whereby, the Power Wing of WAPDA was restructured into generation, transmission, and distribution of electric power. Thereafter, 13 different corporate entities / companies were established, including the respondent-compmy, duly registered under the repealed Companies Ordinance, 1984. The respondent- I company, in view of the aforesaid bifurcation, took control of and management of the transition process of the WAPDA Power Wing, and since then, all the functions of the respondent-company are being performed by its Board of Directors.

5.The status of distribution companies and their history can also be traced in a judgment rendered in the case of Humavun

(PLJ 2008

Tr.C. (Services) 374), which reads as under:

The West Pakistan Water and Power Development Authority Act, XXXI of 1958 was promulgated on 24.04.1958 to provide for the unified and coordinated development of the Water and Power resources of Pakistan. Upon the creation of the'Authority, all persons serving in connection with the affairs of the provinces in the Electricity and Inigation Departments were liable to serve under the Authority. The Authority under Section 17 was further authorized to employ

such officers and officials as it may consider necessary for the v performance of its functions.

2.Later by virtue of Article 12 of the Province of West Pakistan (Dissolution) Order-I of 1970, the West Pakistan Water and Power Development Authority continued to function under the Act of 1958 subject to the following modifications:--

"12. Continuance of West Pakistan WAPDA. (1) As from the appointed day, the West Pakistan Water and Power Development Authority established under the West Pakistan Water and Power Development Authority Act, 1958 (West Pakistan Act XXX of 1958), in this Article referred to as the said Authority, shall continue to function under the said Act subject to the following modifications, namely:--

(a)all powers of the Provincial Government in relation to the said Authority shall be exercisable by the President;

(b)any reference to the Provincial Government in any law or other legal instrument in relation to the said Authority shall be construed as reference to the President;

(c)any authority constituted by the Provincial Government under the said Act and any officer or other person appointed for the purposes of the said Authority by the Provincial Government shall be deemed to have been constituted or appointed by the President.

2.To aid and advise him in relation to the administration and management of the affairs of the said Authority, the President shall constitute an Advisory Board consisting of such representatives from the new Provinces as he may, after consultation with the Government of those Provinces, appoint.

3.The procedure of the advisory Board constituted under clause (2) shall be regulated by rules made by the Board with the approval of the President and, until such rules are made, in such manner as the President may direct.

4.The Advisory Board constituted under clause (2) shall exercise such powers and perform such functions relating to

the administration and management of the affairs of the said l' Authority as the President may direct.

5.In the matter of recruitment of persons for the purposes of the said Authority, there shall be maintained such ratio between the new Provinces as the President may direct.

6.The President may, be order, make provisions for the financing of the said Authority and for the appointment amongst the new Provinces of the liabilities arising therefrom and of the sums recoverable from the said Authority by the Provincial Governments.

7.The powers vested in the President under this Article shall be exercised by him for the purposes of the new Provinces.

3.Subsequently vide Ordinance LXXII of 1979 as amended by Ordinance XX of 1998, the Pakistan Water and Power Development Authority was constituted and the Pakistan 4 Water and Power Development Authority Act, 1958 extended to the whole of Pakistan except the Districts of Karachi. The original employees of WAPDA were thus federalized.

4.Vide General Order No. 1 dated 26.03.1998 issued by the Chairman. WAPDA it was decided that under the Pakistan Power Sector Reform Programme as many as twelve companies under the Companies Ordinance, 1984 shall be incorporated to manage and run the power sector of WAPDA. Pursuant to this the respective asset block of WAPDA were decided to be corporated into separate independent commercial entities to enhance the efficiency and competitiveness of the Power Wing. Correspondingly it was decided that the erstwhile Area Electricity Boards be incorporated into companies. Consequently as many as twelve companies were incorporated under the Companies Ordinance, 1984 and certificates of incorporation under Section 32 ibid alongwith certificate for commencement of business under Section 146 (2) ibid were issued to them. This comprised of nine distribution companies, three thermal generation companies besides NTDC for performing of function of transmission. Vide office order dated 17.06.1999 the services of concerned WAPDA employees were placed at the disposal of these newly incorporated companies. This placing/secondment was initially effective for a period of three years where-after options were invited from all such employees to opt for employment under the respective companies. This constituted what was termed as Manpower

Transition Programme whereby the employees serving in the v companies who had opted to become companies' employees ceased to be WAPDA employees and became employees of the respective companies with effect from the prescribed date (s). In pursuance of the order dated 17.06.1999 options were obtained from WAPDA employees for company employment and the employees who opted for company employment were declared as such with effect from the date specified in each case. Subsequently fresh contracts of employment were executed between the employees and the respective companies with the specific provision of severing their employment with the WAPDA. The terms and conditions of employment of such opting employees was to be not less favourable than the ones obtaining in WAPDA for such employees. Thus from effective date, the employees of the Power Wing, WAPDA were transferred to the respective companies incorporated under the Companies Ordinance, ./) 1984 and assumed employment of the companies w discontinuing the employment with WAPDA. The Memorandum and Articles of Association ensured financial and administrative autonomy of these companies. Regarding the rules relating to service, discipline and other matters, it was provided that the employees of the companies shall be governed by the companies' rules and regulations as to be notified by the company. These rules and regulations would be based on the coffesponding rules enforced in WAPDA which shall be adopted by the company to the maximum possible extent. These rules were to be approved by the Board of Directors of the company concerned. In the interregnum the employees of the companies were to be governed for all purposes by the rules, orders enforced in WAPDA for the present.

6.The foregoing discussion leads us to the conclusion that upon the incorporation of these power distribution companies, they were granted autonomy and placed under independent Boards of Directors. The pivotal question that now arises is whether this Court has the authority to issue a writ to such a company. In our view, this question with regard to the

jurisdiction of this Court to issue a writ to the respondent- v company is not novel, rather it has been conclusively addressed by the Supreme Court in Chief Executive PESCO v. Muhammad Aftab-ur-Rehman (Civil Petition No.1591 of 20ll), wherein it was held:

6.In the case of Principal Cadet College Kohat Vs Muhammad Shoaib Qureshi (PLD 1984 SC 170), this Court had held that where the terms and conditions of service of an employee of a statutory body were governed by statutory rules then any action taken against him in derogation of the said Rules could be set aside by writ jurisdiction. However, in absence of such statutory rules any violation thereof could not normally be enforced through a writ petition. Recently, this Court in the case of Pakistan International Airline Corporation and others Vs Tanweer-ur-Rehman and others (PLD 2010 SC 676) has held that although the Corporation was performing functions in connection with the affairs of the Federation but in the absence of statutory rules, any adverse action taken by the employer was not amenable to the writ jurisdiction of the High Court and in these circumstances the principle of master and servant would be applicable. A similar view was taken by this Court in the case of Pakistan Telecommunication Co. Ltd. through Chairman (supra).

7.Admittedly, the petitioner-company has been incorporated under the Companies Ordinance and does not have any statutory rules though it may be discharging functions in connection with the affairs of the Federation i.e. power generation. I{ence, in the absence of statutory rules, any violation of the terms and conditions of service of the employees would not attract the writ jurisdiction of the High Court. In these circumstances, we are of the opinion that the leamed High Court did not have the jurisdiction to entertain the writ petition of the respondent No.l and hence the impugned order is not sustainable.

7.There is no denial of the fact that a writ can only be issued against a 'person' as defined under Article 199(5) of the

v Constitution. However, as noted above, the power distribution companies have been granted autonomy and placed under independent Boards of Directors, and since they are not statutory bodies, therefore, they do not fall within the definition of 'person' for the purposes of Article 199 of the Constitution.

8.In these circumstances, we are clear in our minds that the respondent-company does not fall within the definition of person as aforesaid and, therefore, no writ could be issued against it.

9.Consequently, this petition 1S hereby dismissed.

However, the petitioners shall be at liberty to approach the competent forum for the redressal of their grievance in accordance with law.

Announced 27.05.202s (Ghafoor Zaman)

JUDGE

AF

JUDGE

ttANIUE-D

(D.8.)

Hon'ble Mr. Justice Muhammad Tariq Afridi I{on'ble Mr. Justice Abdul FaYaz