2020 PLP (C (PLC(CS))

AMIN-UD-DIN KHAN, J.

Through this Civil Petition for Leave to Appeal, filed under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973, leave has been sought against the judgment dated 18.12 2018 of the learned Lahore High Court, Lahore, whereby Writ Petition bearing No 2360 of 2016, filed by the present Petitioner, was dismissed.

2. The Petitioner filed Writ Petition before the Lahore High Court, Lahore under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 to challenge the orders of the Wafaqi Mohtasib and the President of Pakistan dated 23.10.2013 and 30.03.2015 respectively, whereby recommendations were made to accommodate Respondent No.3 for appointment in the Petitioner Company on the basis of Blood Relations Quota (BRQ) and the representation made by the Petitioner before the President, was dismissed.

3. Brief facts of the case are that Muhammad Fazal Khan, father of Respondent No.3, was an employee in the Petitioner Company. After his retirement, subsequent to an advertisement dated 11.12.2007, Respondent No.3 applied for appointment against the post of "fitter" vide application No.1146 on the basis of employee's son quota, called Blood Relations Quota (for brevity in the later part of the judgment it will be mentioned as BRQ). When appointments could not be made due to some administrative issues, the Petitioner once again invited applications through advertisement dated 21.03.2012, and Respondent No.3 once again applied for the post of "helper" vide application No.5232 on the basis of employee's son/BRQ. He was interviewed, but not appointed and hence, a complaint was filed before the Wafaqi Mohtasib, which was allowed vide order dated 23.10.2013. The Petitioner assailed the order before the President of Pakistan, who maintained the order of the Wafaqi Mohtasib and dismissed the representation/appeal of the Petitioner Company vide order dated 30.03.2015. The Petitioner then filed a Writ Petition before the Lahore High Court, Lahore, which too was dismissed vide impugned order dated 18.12.2018.

4. Learned counsel for the Petitioner Company contends that the Wafaqi Mohtasib did not have jurisdiction in this case, hence, the impugned order is liable to be set aside. The Petitioner, being a Public Limited Company, is neither established nor controlled by the Federal Government, a complaint against the same could not be entertained by the Wafaqi Mohtasib in the matters of appointment and service of employees, since the Petitioner Company has no Statutory Rules. Furthermore, no element of malpractice is made out on the record which could attract the jurisdiction of the Wafaqi Mohtasib. The Petitioner Company also argued that Respondent No.3 was at Serial No.307 on the Merit List, whereas, only 159 candidates were appointed against BRQ. The impugned order is non-speaking order and is liable to be set aside. The Wafaqi Mohtasib also lacked jurisdiction in this case due to being Acting Wafaqi Mohtasib under Section 7 of the Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 (hereinafter referred to as "the Order of 1983"), and that the matter of recruitment in the Petitioner Company, being an executive function, could not be challenged under Section 9 of the Order of 1983 before the Wafaqi Mohtasib.

5. Learned counsel for Respondent No.3 on the other hand has argued that the impugned order has been validly passed under section 7 of the Order of 1983 read with Section 4 of the Wafaqi Mohtasib Institutional Reforms Act, 2013 (hereinafter referred to as "the Act of 2013"), which devolves the same powers upon Acting Wafaqai Mohtasib as are possessed by the duly constituted Wafaqi Mohtasib. The Petitioner is a Company controlled by the Federal Government and hence, falls under the definition of "Agency" in the Order of 1983. The learned counsel further argued that the power exercised by the Wafaqi Mohtasib was in accordance with the law and the selection of candidates was done without any standardized interview or on the basis of a transparent merit. This conduct amounts to maladministration on behalf of the Petitioner Company, and hence, the impugned order is speaking order in consonance with the spirit of law.

6. We have heard the arguments of the learned counsel for the parties and perused the available record.

7. As far as maintainability of the complaint before the Wafaqi Mohtasib is concerned, it has been held in the case reported as Peshawar Electric Supply Company Ltd. v. Wafaqi Mohtasib (Ombudsman) Islamabad and others (PLD 2016 SC 940), in which a matter of similar nature came before this Court, and it was held as under: "

9. In the case in hand, the learned High Court while dismissing the Writ Petition of the Petitioner has, inter alia, held that the Petition was not competent as an alternate remedy, in terms of Article 32 of the Order, was available. The grievance of the Petitioner was that the Wafaqi Mohtasib did not have the jurisdiction to order and or recommend the appointment of a person on the 20% quota reserved for the employees of different categories referred to in paragraph 3 above, who were admittedly over age. We have to examine as to whether the Order confers authority on the Ombudsman to entertain grievance of the nature under the garb of powers granted to him under Article 9 of the Order. In other words, whether the Wafaqi Mohtasib can recommend the appointment of this nature by relaxing the upper age limit of a person? We are of the considered view that the appointment and or recruitment in a public sector company like Petitioner is an executive function and such function cannot be performed by the Wafaqi Mohtasib under Article 9 of the Order which excludes his jurisdiction to entertain a complaint of the nature." (emphasis supplied)

8. Placing reliance upon the judgment of this Court reported as Peshawar Electric Supply Company Ltd. (supra), it can be safely adduced that the Wafaqi Mohtasib did not have jurisdiction to hear the case of Respondent No.3 against the Petitioner Company. The learned Lahore High Court, Lahore, has erred in dismissing the Writ Petition and the Wafaqi Mohtasib was not vested with jurisdiction in the instant case.

9. However, admittedly the Petitioner does not have a clear BRQ policy as we are informed by the learned counsel for the Petitioner Company that at the occasion of appointment a policy was framed with the concurrence of Collective Bargaining Agent (CBA) Union. Respondent No.3's rights have been prejudiced by not being considered for appointment under a transparent criterion for appointment as "helper". Therefore, being seized of the matter and in order to meet the ends of justice under Article 187 of the Constitution of the Islamic Republic of Pakistan, 1973, this Court directs the Petitioner to formulate a clear policy for appointment on BRQ and set down transparent criteria for appointment under the same. The Petitioner is also directed to consider the case of Respondent No.3, as well as the other applicants, as per the newly formulated policy. Guidance for formulation of this policy for appointment on BRQ basis may be taken from Section 17-A of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, which provides as under: "Notwithstanding anything contained in any rule to the contrary, whenever a Civil Servant dies while in service or is declared invalidated/incapacitated for further service, any one of his unemployed children, may be employed by the Appointing Authority against a post to be filled under rules 6 and 17 for which he/she possesses the prescribed qualifications and experience and such child may be given 10 additional marks in the aggregate by the Public Service Commission or by the appropriate Selection Board or Committee, provided he/she otherwise qualifies in the test/examination and/or interview for posts in BS-6 and above: Provided further that one child of Government who dies while in service or declared invalidated/incapacitated for further service shall be provided a job against posts in BS-1 to 5 in the department in which the deceased Government servant was working, without observance of formalities prescribed under the rules/procedure. Provided such child is otherwise eligible for the post."

10. Consequently, the instant Civil Petition for Leave to Appeal is converted into appeal and allowed with a direction to the Petitioner Company to formulate a clear and transparent Blood Relations Quota Policy as discussed hereinabove. MWA/S-44/SC Petition allowed.