2014 PLP (C (PLC(CS))

MUHAMMAD KAMRAN KHAN MULAKHAIL, J.

The following prayer has been made in this petition:

"It is, therefore, accordingly prayed that this honorable court may graciously hold that petitioner is senior than private respondent No.4 and deserved to be promoted accordingly, in the interest of justice, equity and fairplay."

2. Brief facts as stated are that the petitioner was appointed as junior Engineer on 11-8-1977, in the Water and Power Development Authority ("WAPDA") at Quetta and served in Technical/Engineering cadre, with considerable length of 33 years of service when this petition was filed, he was serving as Superintending Engineer in WAPDA/Quetta Electric Supply Company, Ltd ("QESCO").

3. The learned counsel for the petitioner contended that the name of the petitioner was at serial No.67, of the integrated seniority list, maintained regarding Non-Generation Power Wing and on 26-5-2010, the petitioner was interviewed by the promotion board but the result of the interview was not conveyed to him: and he came to know, vide Office Order No.76161 dated 2-6-2012, that the respondent No.4, viz Syed Waqas Ashraf, whose name was at serial No.73, of the seniority list, had been promoted as Chief Engineer. It is contended that the petitioner was superseded by the respondent No.4, with connivance of the promotion board. He further stated that the petitioner has an unblemished record of service of more than 33 years and during the said period he had accomplished various important assignments. Though, the petitioner had preferred a representation/departmental appeal on 13-8-2010, before the Manager Director, (PEPCO) WAPDA House, Lahore, but the petitioner was not conveyed about the fate of the same. The learned counsel stated that since promotion does not fall within the purview of the terms and conditions of service, therefore, the bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan ("the Constitution") does not come in his way and he can file a petition under Article 199 of the Constitution.

4. This petition was filed on 16-10-2010, wherein, in para No.7 it is stated that the petitioner is on the verge of retirement, which was due on 19th May, 2011. The petitioner has since retired on having attained the age of superannuation.

5. Admittedly, the petitioner was in service of Pakistan at the time of his appointment till his retirement and preferred a departmental appeal against the promotion of respondent No.4. Services of civil servants are governed by the Civil Servant Act, 1973, while the services of the WAPDA/QESCO employees are governed by the West Pakistan Water And Power Development Authority Act, 1958. Section 17(1) (1B) of the Act is relevant for a better understanding of the controversy and is reproduced here under:

"(1B) Service under the Authority is hereby declared to be service of Pakistan and every person holding a post under the Authority, not being a person who is on deputation to the Authority from any Province, shall be deemed to be a civil servant for the purposes of the Service Tribunals Act, 1973 (LXX of 1973)." Thus in view of the above provision, which states that WAPDA/QESCO employees are public servants and Article 212 of the Constitution is attracted. Reliance is also placed on an unreported judgment of this court authored by the Hon'ble Chief Justice, wherein through common judgment Constitutional Petitions Nos.176, 204, 224, 303, 304, 321, 363, 502, 628, 709 and 766 of 2011 have been decided and all of said eleven petitions have been dismissed in view of the bar contained in Article 212 of the Constitution.

6. The contention of learned counsel for the petitioner that the question of promotion does not fall within the purview of terms and condition of service is not acceptable and said right being a legal vested right can be agitated in constitutional petition under Article 199 of the constitution is also not acceptable because promotion is not a vested right of a civil servant as it depends on the eligibility-cum-fitness and if a person is eligible for promotion being senior in rank in the grade but is not fit to share higher responsibilities he would not be promoted to the next grade. The Hon'ble Apex Court in number of reported judgments has held that the question of eligibility for promotion relates to terms and conditions of services and is to be subjected to judicial scrutiny by the Service Tribunal as inter alia held in Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui (1991 SCMR 1129), Muhammad Anis v. Abdul Haseeb (PLD 1994 SC 539) and Saleemullah Khan v. Shahid Hamid (2011 SCMR 788). Therefore, for the aforesaid reasons the petition is dismissed accordingly but with no order as to cost. JJK/10/Bal. Petition dismissed.