2023 PLP (C (PLC(CS))

MUHAMMAD SAJID MEHMOOD SETHI, J.

Through instant petition, petitioner has assailed vires of office order dated 19.09.2022, passed by respondent No.5 / Director (BR), LESCO, Lahore, whereby respondent No.6 has been posted as Project Director (GSC) Circle LESCO, on current charge, in place of petitioner. Petitioner has sought following relief from this Court:- "It is, therefore, most respectfully prayed that this petition may kindly be allowed and the impugned office order dated 19.09.2022 may graciously be set aside. An appropriate writ / direction may graciously be issued to the respondents to adhere to the relevant policy decisions / office memorandums etc. and therefore, they be restrained from undertaking displacement of petitioner in such alike manner."

2. Brief facts of the case are that petitioner joined services of LESCO as SDO / Junior Engineer (BS-17) on 11.09.1999 and lastly promoted as Superintending Engineer (S.E.) (BS-19) on 07.12.2020. Later on, petitioner was posted as Project Director (GSC) Circle LESCO on 08.10.2021. However, vide impugned order dated 19.09.2022, respondent No.6 has been posted in place of petitioner on current charge basis. Hence, instant petition.

3. Learned counsel for petitioner submits that as per office memorandum of Establishment Division, the senior most persons available in the concerned wing, where higher post falls vacant, should be given current charge of higher post and admittedly the respondent No.6 working as Deputy Manager Transmission and Grid Deposit Works Division, LESCO was not liable to be considered for posting against the office of petitioner on current charge basis. He adds that as per seniority list maintained by LESCO, said respondent is at Sr. No.63 of Executive Engineers (BS-18), whereas petitioner is at Sr. No.21 of the Superintending Engineers (BS-19), thus, said respondent was not eligible to be posted against post of BS-19, held by an incumbent on regular basis. He further submits that even otherwise as per applicable policy, before completion of mandatory period of at least two years, no transfer could have been made. It is the stance of petitioner that posting of respondent No.6 could not be made on current charge basis when the post was not vacant and no person on current charge basis could have been appointed to the said post In support, petitioner annexed correspondence dated 17.01.2018, whereof the posting policy was duly adopted by the Board of Directors of LESCO in its 189th meeting. According to the transfer / posting policy of officers of DISCOs, no transfer would be made before completion of mandatory stay of at least two years on a particular post. In the end, he submits that impugned office order dated 19.09.2022, being ultra vires, is unsustainable in the eye of law. In support, he relied upon Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division. Islamabad and others (PLD 2012 Supreme Court 132), Pakistan Defence Officers' Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed (2013 SCMR 1707) and Pakistan International Airlines Corporation through Managing Director v. Amna Fraz and others (2022 SCMR 1852). When confronted, learned Legal Advisor for respondent-LESCO as well as learned counsel for respondent No.6 have raised objection as to maintainability of instant writ petition by contending that LESCO has no statutory rules and its relationship with the employees is that of master and servant. In support, he has referred to Ministry of IPC through Secretary and others v. Arbab Altaf Hussain and others (2014 SCMR 1573) and Dr. Tahir Masud v. Amjad Ali Khan and 4 others [2019 PLC (C.S.) 1167]. However, he is unable to show as to how a person can be appointed on current charge basis on a particular seat when same is not vacant.

4. Heard. Record perused.

5. Undeniably, LESCO is governed by non-statutory rules, hence, this Court is not inclined to interfere in the matter. However, this Court, being custodian of law and the Constitution, is duty bound, by making a tentative assessment of the material laid before it, to pass directions to advance the cause of justice and observance of relevant law / policy. It is settled law that discretion, even if vested in the authorities, has to be exercised strictly in accordance with law and in an independent, transparent and unbiased manner. All the administrative authorities are under an obligation to act fairly and on reasonable basis. The object of good governance cannot be achieved by exercising discretionary powers unreasonably, arbitrarily and without application of mind. Reliance in this regard is placed upon Tariq Aziz-ud-Din and others: in re. Human Rights Cases Nos.8340, 9504-G, 13936-G, 13635-P and 14306-G to 143309-G of 2009, decided on 28th April, 2010 (2010 SCMR 1301) and Human Rights Case No. 11827-S of 2018, decided on 3rd September. 2018: In the matter regarding Selling of National Assets including PIA at Throwaway Price (2019 SCMR 1952).

6. In view of the above, since the matter is of serious nature involving questions of seniority and eligibility in terms of memorandum dated 21.11.2000 regarding appointment of officers on current charge against higher posts, issued by the Establishment Division, Cabinet Secretariat, Government of Pakistan along with other correspondence dated 06.04.1982, therefore, in case of non-compliance of directions and non-observance of guidelines mentioned therein possibility of mala fide cannot be ruled out, especially when the seat in question is not vacant. In this view of the matter, I am inclined to transmit copy of this petition along with annexures to respondent No.1 / Secretary, Ministry of Energy (Power Division), Islamabad with direction to look into petitioner's grievance and decide the matter strictly in accordance with law as well as case law referred supra, after hearing the petitioner and all concerned, by treating the same as representation on petitioner's behalf, through a speaking order, within a period of fifteen days from the date of receipt of certified copy of this order. Respondent No.1 is further directed to ensure that rules, regulations and applicable law / policy are strictly followed in this as well as any other case involving transfers and postings. Compliance report shall be furnished to this Court through Deputy Registrar (Judicial).

7. With the above observations and directions, instant petition stands disposed of. MH/N-44/L Order accordingly.