Stereo. H C J D A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT LAHORE

JUDICIAL DEPARTMENT

Case No: W.P. No.6210 / 2010 

Imran Hussain Versus  WAPDA etc.

JUDGMENT

Dates of hearing 29.04.2010, 08.07.2010, 12.07.2010,

13.07.2010 and 15.07.2010
Petitioner by Mr. Ameer Abdullah Khan Niazi, Advocate

Respondents by: Mr. Nasim Kashmiri, Deputy Attorney

General,
M/s. Muhammad Ilyas Khan, Aurangzeb
Mirza, Shahid Karim, Kh. Ahmad Tariq
Raheem, Shahzad Shaukat, Muhammad
Munir Khan, Mian Abdul Qaddus, Sarfraz
Ahmad Cheema, Alia Ijaz Advocates for
respondents
M/s Muhammad Arshad Javed, Ch. Ahmad
Saif Ullah Khathana, Muhammad Arif
Pervaiz Butt, Azhar Iqbal and Zia Shahid,
Advocates for appointees
Mr. Tanveer Safdar Cheema, Chief
Executive FESCO,
Ch. Muhammad Ashraf, Director (HR)
FESCO,
Mr. Shabbir Ahmad, Senior Manager L&W
PEPCO

Syed Mansoor Ali Shah J:- This consolidated judgement

shall also decide writ petitions mentioned in Schedule A along

W.P. No.6210/2010 2

with the titled petition. Petitioners had applied for the posts of

Assistant Lineman (ALM), Meter Reader, Commercial

Assistant and Naib Qasid. All these petitions air the same

grievance and raise identical questions of law and facts and are,

therefore, being decided through this consolidated judgment.

2. Brief facts of the case are that Faisalabad Electric Supply

Company (“FESCO”) publically advertised vacancies in 22

different categories of posts, including the above posts, in Urdu

and English dailies namely: “Jang” and “Daily Express” on

2.11.2008. The said public advertisement was restricted for

candidates domiciled in Districts Bhakkar, Faisalabad, Toba

Tek Singh, Mianwali, Sargodha and Khushab.

3. Petitioners eagerly applied for the abovementioned posts

under Direct Quota and Employees’ Children Quota alongwith

their testimonials. Petitioners were issued Interview Call Letters

and thereafter they appeared to be interviewed by the concerned

Selection Board of the area. The requirement of written test was

dispensed with, as is described more fully later in the judgment.

Principal grievance of the petitioners is that the Selection

Boards simply marked their presence as they went in for the

interview. No question was asked and they were told that the

interview has been concluded. The mode and manner of

conducting interviews lead the petitioners to assume that

 
W.P. No.6210/2010 3

FESCO is not interested to fill the said vacancies. However, the

petitioners later on found out to their dismay that all the posts

had been filled. Petitioners allege that they have been deprived

of their long awaited chance to a lawful employment and what

has aggravated their injury is the skewed and selective

appointments based solely on political favourtism, disregarding

merit It is vehemently and somewhat poignantly contended by

the petitioners that appointments were even made from outside

the group of districts mentioned in the advertisement. It was

submitted that the entire recruitment process was the work of a

hidden political hand, which successfully orchestrated the

recruitment process to its own advantage by dictating

autonomous public sector companies to violate their own

recruitment policy. It was argued that the appointments were

made in violation of the Recruitment Policy, 1992 which was

heartlessly and unlawfully modified to achieve the desired

benefit for the concerned quarters.

4. M/s. Muhammad Ilyas Khan, Khawaja Tariq Rahim,

Aurangzeb Mirza, Shahid Karim, Mian Abdul Qudoos, and

Muhammad Shahzad Shaukat, Advocates interchangeably

appeared on behalf of FESCO, as well as, Pakistan Electric

Power Supply Company (“PEPCO”). Muhammed Ilyas Khan

Advocate, one of the counsel for FESCO, vehemently, raised

 
W.P. No.6210/2010 4

preliminary objections to the maintainability of the instant

petition.

5. His objections were that writ petition against FESCO does

not lie as it is merely a company incorporated under the

Companies Ordinance, 1984. He further submitted that the

principle of “master and servant” applies in the present case as

the petitioners are not governed by any statutory rules of service

and lastly, the instant matter involves factual inquiry and

therefore, writ is not an appropriate remedy. Learned Counsel

placed reliance on “Executive District Officer Schools and

Literacy, District Dir Lower and others vs. Qamar Dost Khan

and others” (2006 SCMR 1630), “Almas Ahmad Fiaz v.

Secretary Government of the Punjab, Housing and Physical

Planning Development, Lahore and another” (2006 SCMR

783) and “Maqbool Ahmad v. Pakistan Agricultural and

others” (2006 SCMR 470).

6. On merits, counsel for PEPCO/FESCO submitted that as

the last date for receipt of applications was 15.3.2009. On the

said date 86,102 applications were received, however, only

44,656 candidates appeared in the interview under the Direct

Quota out of which 1306 were appointed and only 1100 joined

the said posts. Under the Employees’ Children Quota, 3,477

candidates applied, 2,464 appeared in the interview and only

 
W.P. No.6210/2010 5

313 candidates were appointed while only 247 joined the

service. Therefore, a total number of 1,347 candidates joined

the posts and out of this 101 candidates were not domiciled

from the group of advertised districts.

7. It was submitted that the recruitment was initiated on the

basis of Recruitment Policy, 1992 framed by WAPDA and

adopted by the Board of Directors of PEPCO and FESCO

independently. The Recruitment Policy, 1992 was prepared in

line with the “GOP [Government of Pakistan] Policy

Parameters like open advertisement of the vacancies in the

National Press and conducting written tests and interviews of

the eligible candidates.” After the public advertisement for the

vacant posts on 2-11-2008, Managing Director (“M.D.”)

PEPCO issued Letter dated 15-10-2009 on the direction of the

Minister for Water and Power, whereby deviation was made in

the Recruitment Policy, 1992 and the requirement of written

test was dispensed with, replacing it with only a WALK-IN

INTERVIEW.

8. The marks for the written test (65 marks) were added into

the interview marks making the total marks allocated for the

WALK IN interview to be 90, while 10 marks were to be

awarded for higher qualifications. Counsel for FESCO/PEPCO

submitted that 11 (eleven) Selection Boards were constituted to

 
W.P. No.6210/2010 6

conduct the WALK-IN INTERVIEWS at various centres

located at Joharabad, Jhang, Toba Tek Singh, Faisalabad and

Sargodha. It is contended that the appointments were made

strictly in accordance with law and on the basis of merit.

9. When counsel for the respondents were asked whether

there was any objective criteria framed for the purposes of

carrying out interviews by PEPCO, FESCO or the Selection

Boards, the counsel candidly submitted that no objective

criteria was framed and the interviews were conducted purely

on discretionary basis. Chief Executive Officer (“CEO”),

LESCO appeared in person and was directed to place on record

the interview proceedings/workings of the Selection Boards so

that the Court could assess and satisfy itself regarding the

uniform basis and parameters employed by all the Selection

Boards while interviewing candidates for the posts. Chief

Executive Officer categorically submitted that no record of

proceedings of the Selection Boards was available. Chief

Executive Officer made a statement to this effect in writing

before the Court, which is dated 12.7.2010 and has been placed

on the record as mark “A” which states:

“The undersigned had checked from the head of all

Selection Boards constituted for selection of FESCO
employees in various categories. They informed that after
the induction/consolidation of the selection results at

 
W.P. No.6210/2010 7

FESCO Headquarters, Faisalabad, the officer incharge of

selection board of various centres did not retain the record
of the proceedings of Selection Board, since they had
signed consolidated computerized results and as a record
was not required to be retained under any rules.”

10. The CEO also confirmed that no objective criteria was

framed for the purposes of the interviews by FESCO or the

Selection Boards.

11. Counsel for PEPCO was asked how MD, PEPCO single

handedly modified Recruitment Policy, 1992, dispensing with

the requirement of the written test which is provided for in the

Government of Pakistan Policy parameters for recruitment ?

and whether the Board of Directors of PEPCO had authorised

the MD, PEPCO to issue letter dated 15.10.2009 ? Counsel for

PEPCO sought time and on the next date of hearing placed on

record the extracts of the Board Resolution passed by the Board

of Directors of PEPCO dated 24.5.2010 whereby ex-post facto

ratification was granted to the letter dated 15.10.2009 issued by

MD, PEPCO. He further submitted that PEPCO has to follow

the Government Instructions, which have been noted in letter

dated 15.10.2009.

12. On 8.7.2010, Mr. Abid Ali Chaudhry, Assistant Registrar

(Criminal-II) of this Court was appointed as a Local

Commissioner who was directed to immediately leave for the

 
W.P. No.6210/2010 8

Head Office of FESCO, Faisalabad and to undertake the

following tasks:-

“1. To obtain a copy of the Recruitment

Policy/notification followed by FESCO for the
present appointments.

2. To obtain a copy of the notification/letter

through which Selection Boards were
appointed, showing the names of the members
of the said Selection Boards.

3. Letter/notification showing the objective criteria

framed by FESCO for the purposes of carrying
out interviews or the appointments in the
present cases.

4. The local commission will take up 10 cases at

random of the petitioners (maintained by
respondent FESCO) and place his stamp and
signatures on all the pages of the said files. He
will do the same by taking 10 cases at random
of the persons appointed by FESCO and place
his stamp and signatures on all the pages of the
said files.

5. In case any of the above is missing and FESCO

fails to furnish the same to the satisfaction of
the local commission, he will record the
statement of Director, HR&A to that effect and
procure the signatures of the said Director on
the said statement.”

13. The Report of the Local Commission dated 12.7.2010 has

been placed on record. No written objections have been filed

against the said Report and none of the counsel controverted the

contents and findings of the said Report during their arguments.

14. On 29.4.2010, FESCO was directed to issue notices to all

the candidates who were appointed as Assistant Lineman,

Meter Readers, Commercial Assistants and Naib Qasids so that

 
W.P. No.6210/2010 9

their presence before the Court is ensured. Notices were duly

issued to all the appointees in the above category out of which

65 appointees appeared before this Court through counsel.

Counsel for the appointees submitted that they have been

appointed through a lawful process of interview and once the

said appointment has been made, any lapse or irregularity

committed by the department cannot affect the appointments of

the said persons and placed reliance on “Muhammad Zahid

Iqbal and others v. D.E.O. Mardan and others” (2006 SCMR

285). They further argued that the principle of locus

poenitentiae also applies in the present case. They contended

that they were appointed after fulfilling all the requirements and

the procedure laid out by respondent FESCO and, therefore,

cannot be deprived of their rightful appointment. It was also

contended that the said appointments were for a period of one

year and already six months had elapsed, therefore, interference

by this Court at this stage would be harsh and will unduly affect

the appointees.

15. Arguments heard. Record perused.

16. I shall first address the preliminary objections raised by

Mr. Muhammad Ilyas Khan, Advocate appearing on behalf of

FESCO. Admittedly, FESCO is owned by the Federal

Government and is therefore a State owned company and hence

 
W.P. No.6210/2010 10

an instrumentality of the State performing functions in

connection with the affairs of the Federation. It is now settled

and trite law that State owned companies are amenable to writ

jurisdiction. Reliance is placed on “Pakistan International

Airline Corporation and others v. Tanweer-ur-Rehman and

others” (PLD 2010 SC 676).

17. The second preliminary objection regarding application of

the principle of “master and servant” is misconceived as it is

not the terms and conditions of service which are under

challenge in the instant petitions but the mode and manner of

recruitment followed by a public sector company which is in

question. It is an obligation of a public institution to act fairly,

justly, reasonably and transparently. In the present case, it has

been agitated that the Recruitment Policy, 1992 has been

violated. Inspite of public advertisement, sham interviews have

been conducted without any common and prefixed objective

criteria to transparently judge and evaluate the candidacy of the

applicants. It is submitted by the petitioners that the process

adopted by FESCO and its Selection Boards is blatantly devoid

of due process; it deprives the petitioners of their right to lawful

employment and livelihood and discriminately ousts the

petitioners from the recruitment process in violation of articles

4, 18 and 25 of the Constitution. Therefore, the objection

 
W.P. No.6210/2010 11

regarding “master and servant” is misplaced and without force.

18. The last preliminary objection is regarding factual

controversy involved in the present case. This objection also

has no force as it has been admitted by the counsel, as well as,

the Chief Executive Officer and the Director, Human Resource

(later in the judgment) that no objective criteria was framed for

the purposes of conducting interviews. Further, the authority of

MD, PEPCO to issue Letter dated 15.10.2009 and the blind

implementation of the same by FESCO is a legal question that

can be easily addressed in the present constitutional

proceedings. I, therefore, reject all the three preliminary

objections raised by respondent FESCO as being frivolous and

misconceived.

19. On merits these petitions raise the following questions of

public law and institutional importance:

a. Can appointments be made on the basis of

WALK-IN interviews without a pre-fixed
objective criteria shared amongst all the Selection
Boards (interviewers) by FESCO or PEPCO to
maintain a uniform objective selection process?
Whether failure to do so offends articles 4, 18 and
25 of the Constitution besides affronting the
principles of social and economic justice?

b. Whether in the absence of any record, minutes or

notes of the proceedings, it could be inferred that

 
W.P. No.6210/2010 12

discretion was not lawfully and transparently

exercised by the interviewing members of the
Selection Boards?

c. Whether M.D, PEPCO could single handedly on

the “advice” of the Minister for Water & Power,
temporarily amend the Recruitment Policy framed
by WAPDA under the guidelines of the Federal
Government?

d. Whether Board of Directors of a public sector

company is competent to grant ex post facto
ratification without giving reasons?

e. Whether, management of FESCO could blindly

implement the decision of M.D. PEPCO without
first placing the same (Letter dated 15-10-2009)
before the Board of Directors of FESCO and
getting their approval ?

20. To answer these questions, it will be useful to sketch the

chronological sequence of events:

(i) PEPCO (Human Resource Directorate)

communicated to FESCO vide letter dated 30-10-
2008, that Cabinet Secretariat, Establishment
Division has been pleased to grant NOC for
“advertisement only” of 1195 vacant positions
spread over 22 different posts from BPS 1 to 14.

(ii) Through the same letter FESCO was directed to

ensure that advertisement appears in two daily
URDU newspapers having wide circulation
preferably for 2-11-2008 (Sunday).

 
W.P. No.6210/2010 13

(iii) The advertisement appeared in “Jhang” and “Daily

Express,” Faisalabad on 2-11-2008. The public
advertisements were for 22 different posts and
specifically stated that the posts had to be filled by
residents domiciled in Districts: Faisalabad,
Bhakkar, T.T.Singh, Sargodha, Mianwali and
Khushab (the geographical service region of
FESCO). The present petitioners applied for the
posts of Assistant Lineman (ALM), Meter Reader,
Commercial Assistant and Naib Qasid.

(iv) Vide Letter dated 10-11-2008 with the subject:

EXEMPTION FROM BAN ON RECRUITMENT,
PEPCO informed FESCO that selection process of
the advertised posts “is restricted at this stage till
further instructions.” This was perhaps due to the
Ban on Recruitment as the title of the Letter
suggests.

(v) Vide Letter dated 16-12-2008 of PEPCO, last date

for submission of applications was extended till 15-
1-2009. FESCO vide its Letter dated 17.1.2009
reported to PEPCO that 80,173 applications had
been received in all 22 categories in response to
advertisement dated 2-11-2008 with the closing
date of 13-11-2008 and more applications were
expected as the date was extended.

(vi) PEPCO vide Letter dated 12-2-2009 wrote to all the

corporatized entities (including FESCO) the
following:

 
W.P. No.6210/2010 14

“Corporatized Entities may complete the recruitment

process in a fair and transparent manner at their own
strictly in line with the applicable instructions rules
and recruitment policy….

PEPCO, however, as a part of its mandate, will continue

its routine and normal surveillance, covering selection
process through in-house arrangements.

This is issued with the approval of the Managing

Director PEPCO”

(vii) Vide Letter dated 19-2-2009 issued by PEPCO, the

last date for the receipt of applications was once
again extended to 15-3-2009. This was done in view
of letter of Ministry of Water and Power dated 19-2-
2009 whereby the ban on recruitment was lifted.

(viii) On 26-3-2009 PEPCO informed the DISCOs

(including LESCO) that “The competent authority
has been pleased to allow for further proceeding
with Recruitment Process for the posts, cleared
for advertisement only. Please ensure strict
compliance with laid down
procedures/recruitment policies and all
applicable Service Rules and instructions issued
from time to time.”

(ix) At the time of the Public Advertisement dated

2.112008 till the issuance of Letter dated
15.1.2020, the New Recruitment Policy for
WAPDA Employees Grade 1-15 (settled vide
Office Memorandum dated 25-01-1992) was in
vogue. The said Recruitment Policy states:

 
W.P. No.6210/2010 15

NEW RECRUITMENT POLICY FOR WAPDA EMPLOYEES GRADE 1 – 15

Adopting the new Recruitment
1. Policy of the Federal Government, WAPDA has accordingly
modified its own Recruitment Policy. The new policy adopted by
WAPDA is at annexure “A” covering all grades of employees, with
special emphasis on merit, elimination of discretion and including
the monitoring role of Public Representatives.
2. Previously merit was determined with the help of subjective/trade
tests. Now only objective test has been introduced for grade 3 – 15
recruitment, specimen of which is enclosed depending upon the
specific recruitment of each trade. Papers for objective tests may be
prepared on these lines.

3. The new Recruitment Policy is to be followed strictly in letter and

spirit.

Authority: Director General (S&GA) Wapda’s Circular

No.DG/AD(E.IB)/7225-Re-5045-5203 dated 25.01.1992.

Annexure “A”
GUIDELINES FOR RECRUITMENT OF STAFF IN BPS 1 – 15

1. In supersession of all previous instructions on the subject a new

Recruitment Policy has been approved by WAPDA on the basis of the one
announced by the Federal Government, laying emphasis on elimination of
discretion and the monitoring role of Public Representatives. Salient
features of the new Recruitment Policy are as under:-

a. All recruitment will be made in February and August every year.

b. Advertisement in the electronic media/National Newspapers (at least
in 2 dailies) will be made with 30 days notice and on Sundays only.
c. Posts in BPS 1 – 2 will not be advertised. Whenever there is a need
to fill in these vacancies concerned formation will ask for
application from Secretary WAPDA in addition to applications
available in the concerned office.
d. Posts for various Grade i.e. (BPS 1 – 15) will be advertised.
e. Qualifications where prescribed in Service Rules for various grades
will be strictly adhered to.
f. All appointments are to be made strictly on Merit basis on
experienced / academic /technical qualification.
g. No weghtage will be given to interview, unless essential for the post.
h. No adhoc appointments will be made.
i. Age relaxation will not be allowed when candidates of correct age
are available. However, candidate who may become over age as a

 
W.P. No.6210/2010 16

result of ban imposed by the Government since November 1990 the

age limit may be relaxed by 1 ½ years till 31.12.1992.
2. Procedure for Recruitment

Objective/Trade test will be organized for all advertised post by the

respective formations, where considered necessary.
3. Selection Board

Posts of BPS 1 – 4 Members not below the rank of BPS 17 officer.

For all advertised posts: Selection Board will be as per WAPDA Service
Rules.
4. Appointing Authority

As per existing delegation of administrative powers laid down in

Service Rules.

5. Domicile
- All direct recruitees should be domiciled of the Region (Area
Electricity Board/Province) where the posts exist, as per
existing policy.

- BPS 3 – 15: As far as possible, recruitment in Head Office,

Power Stations and Dams is made on all Pakistan basis
according to the Provincial Quota prescribed by the Federal
Government.

6. Quota

The quota reserved for various categories is given below:

- Employees Children 33.1/3%
- Disabled 1%
- Ex-Servicemen 10%
- Dest-i-tute/ Orphan 5%

(x) Office Memorandum dated 19-11-2003 issued

by PEPCO states:

PAKISTAN

 
W.P. No.6210/2010 17

WATER AND POWER DEVELOPMENT AUTHORITY

SERVICES & GENERAL ADMINISTRATION

DIRECTOR GENERAL 332-Wapda House,

(S&GA) Shahrah-I-Quaid-I-Azam,
Lahore.

No.DG(S&GA)/D(Rules)/07453/30/III/55906-27206 Dated 19.11.2003.

OFFICE MEMORANDUM

Subject: QUALIFICATION PARA-METERS FOR RECRUITMENT OF STAFF.

Authority in its meeting held on 04.11.2003 has decided as under:-

1. The prescribed qualification to appointments in BPS 1 to BPS 4 and

Sanitary Workers will be as under:-

a) BPS 3 and BPS 4 Matric

b) BPS 1 and BPS 2 Middle
except Sanitary Worker
c) Sanitary Worker Literate (who can read
newspaper and write a
simple letter in any language)

2. All Service Rules instructions of such categories will stand amended to the
above extent.

3. Merit list for appointments upto BPS-15 will be prepared as under:-

a) Weightage to Written Test 65 Marks

b) Weightage in Interview 25 Marks

c) One step higher qualification 10 Marks

and above than the prescribed

qualification in the relevant
Service Rules (No weightage to above
One step higher qualification)
(emphasis supplied)

Recruitment policy will stand amended to the above extent.

Sd/-
(Muhammad Akbtar Choudhary)
Director General

(xi) However, quite abruptly, vide letter dated

15.10.2009, M.D, PEPCO issued the

 
W.P. No.6210/2010 18

following letter:
PEPCO PAKISTAN ELECTRIC POWER COMPANY (PVT.) LTD.

Ref: Managing Director/D/A 4200-4218

Dated October 15, 2009

Chief Executive Officer

DISCOs, GENCOs & NTDC

Subject: PRIORITY CONSIDERATION FOR CRTICIAL

VACANCIES /CLEARANCE OF OPERATIONAL ISSUES.

Further to communications on subject, priority redressal of

Technical / Operational and Revenue problems has become more
pronounced now and thus cannot be left to procedural handling. Of course,
these can be resolved to a great extent through improving on governance
and supplementing the deficient HR base of the Companies on immediate
basis, presently touching critical levels for skilled/semi-skilled categories
like ALMs, ASSAs, LSs, Meter Inspectors, Meter Readers, Bill
Distributors and other ministerial staff. Whereas Companies have
advertised the vacant posts procedural requirements still mars the sincere
efforts for early inductions.

It has been brought to the notice of Ministry of Water &

Power that PEPCO is following Recruitment Policy adopted from
WAPDA, that is based on GOP Policy Parameters like open
advertisement of the vacancies in the National Press and conducting
the written tests and interviews of the eligible candidates, a process
not likely to complete within 4 –5 months even if given straight going.
The job has become difficult on account of overwhelming response of
the candidates for the advertised vacancies i.e. running in hundred
thousands. Still another very serious concern is on the law and order
situation as prevalent in the country, where holding of written test in
congregation of thousands of candidates is not without serious life
threats. There is a rising trend of the insurgency and terrorism where
mass gatherings are the obvious and easy targets for the miscreants. It
has been deemed appropriate to avoid providing any chance to
terrorists by avoiding holding of gathering of candidates for written
tests on certain placed and venues.

The position has been discussed and brought in the notice of

Minister of Water & Power and in the view of the aforementioned
circumstances, it has been advised to fill 50% of the vacancies in BPS 1 –
16 on immediate basis in accordance with the Recruitment Policy with
unavaoidable exception, where required. Additionally, the Minister of
Water and Power has also been kind to allow recruitment against
vacancies for Engineers and Officers of Common Cadre (BPS-17)
including those pertaining to Revenues, Accounts and Audit etc.

Accordingly, Entities are required to immediately start the

selection process against 50% of the vacancies for BPS 1 – 16 from
amongst the candidates who have applied against the advertised vacancies
and also meet minimum prescribed criteria in the relevant Service Rules,

 
W.P. No.6210/2010 19

by curtailing the selection process given in Recruitment Policy to the

extent that all other steps will be strictly complied, but for the
entrance test exception. The candidates will be called for walk in
interviews and marks reserved for written test shall be added in the
interview marks. The successful candidates shall then be issued offer of
appointments. It is further clarified that CEOs may consider relaxation in
age as already authorized to them and change the short listing criteria,
where warranted, but otherwise not in conflict with the Service Rules to
provide equal chances to all in view of persistent ban on recruitment.

The above-mentioned measures are interim arrangements to

cater for the special circumstances, called for by immediate staffing
requirements, overwhelming response of candidates and security concerns
for holding written tests in large congregation of candidates running in
thousands, applicable to only 50% of the vacancies of BPS 1 –16. The full
process will stand restored automatically on completion of instant
recruitment against allowed 50% vacancies as prevalent heretofore
without any notice thereby, including the provision of written test.

The Recruitment Policy, however, will remain applicable as

such for induction in Officers category where arrangements are possible
for comparatively lesser number of candidates. The date, time and venue
for examination against the Officers Cadre (both Technical and Non-
Technical), if not already taken up, should be initiated for 50% of such
vacancies on immediate basis in observance of prescribed criteria in
Recruitment Policy and Service Rules.

All concerned may note to ensure induction of staff against the

vacancies to the level allowed on Fast Track basis so as to supplement the
deficient HR Base for alleviating the operational problems of the
Companies.

Sd/-
Engr. Tahir Basharat Cheema
Managing Director

(xii) Thereafter 11 Selection Boards were

constituted and “WALK IN” interviews
were held in five Centre located at
Joharabad, Jhang, Toba Tek Singh,
Faisalabad and Sargodha and as a result
the 1,347 vacant posts were filled. Details
are as follows:

Total no of Total number Total no of Total no of

Candidates of Candidates successful candidates
applied who candidates who joined
appeared in the posts
the WALK

 
W.P. No.6210/2010 20

IN
INTERVIEW

89,579 47,120 1,619 1,347

21. On the basis of the above facts, I take up the first question

i.e., the absence of a pre-fixed uniform and shared Objective

Criteria for awarding marks to candidates who appeared for

the WALK IN interview, out of a total of 90 marks. Mr. Shahid

Karim, Advocate appearing on behalf of PEPCO, submitted at

the bar, that no Objective Criteria was framed by PEPCO or

FESCO for assessing the candidates in the interview. CEO,

FESCO in his statement tendered in writing before this Court

dated 12-7-2010 (placed as Mark “A”) admitted that the record

of the proceedings of the Selection Boards is not available as it

was not retained by the Selection Boards. When asked if an

objective test or criteria was prepared and handed over to the

Selection Boards so that a uniform interviewing process could

be carried out, he submitted that no such criteria existed. No

such objective criteria has been placed on the record or finds

mention in the parawise comments filed by FESCO.

22. Statement of Muhammed Ashraf Chaudhry, HR & Admin

Director, FESCO recorded on 09.07.2010 by the Local

Commissioner states that: “….Assessment of the candidates in

interview was not segregated in terms of different traits of

 
W.P. No.6210/2010 21

character, personality, etc but overall assessment was evaluated

by the Selection Board as no such written instructions exist….”

23. It is therefore an admitted position that no Objective

Criteria for evaluation of candidates during the WALK IN

Interviews was chalked out by PEPCO, FESCO or the Selection

Boards. The Office Order through which 11 Selection Boards

for various areas where constituted having a convenor and two

members were given the following instructions. Office Order

dated 28-10-2009 constituting Selection Board for the Sargodha

Centre, which is similar to the others, is reproduced hereunder:

Faisalabad Electric Supply Company Limited

(WATER AND POWER DEVELOPMENT AUTHORITY)

Tel # 041-9220370 OFFICE OF THE

Fax # 041-9220445 CHIEF EXECUTIVE OFFICER FESCO
(WAPDA) FAISALABAD

No.8235/DDA/E-II/ DATED 28.10.2009

OFFICE ORDER
1. A Board of following Officers will conduct walk in interviews
of candidates for appointment on contract basis in FESCO, for the
categories mentioned below on the dates mentioned against each at
0900 hrs in Sargodha Centre:-
1. Mr. Abdul Razzaq, - Convenor
Manager (L&L) FESCO
2. Mr. Aamil Hussain Siddiqi, - Member
st
Deputy Manager (Operation) 1 Divn. Sargodha

3. Mr. Javed Hussain, - Member

nd
Deputy Manager (Operation) 2 Divn. FESCO Sargodha
4. Mr. Riaz Hussain Balock - Member
Deputy Manager (Commercial)

 
W.P. No.6210/2010 22

5. Malik Ashfaq Ahmed, - Member

Deputy Manager (Technical) FESCO Sargodha
6. Mr. Saeed Ahmed Qureshi - Member
Deputy Manager (MIS) FESCO Sargodha
7. Mr. Shahbaz Mehmood - Member
Assistant Manager (CTC) FESCO Sargodha
8. Mr. Javed Anwar Sandhu - Member
Assistant Manager (Operation) Tariqabad
Sub Division FESCO Sargodha
9. Mr. Maroof Ahmed - Member
Assistant Manager (Operation)
City Sub Division FESCO Sargodha
10. Mr. Imran Ali, - Member
Assistant Manager (Operation)
Civil Lines Sub Division FESCO Sargodha
11. Mr. Muhammad Tariq - Member
Assistant Manager (Operation)
Rural Sub Division FESCO Sargodha
12. Mr. Ghulam Murtaza - Member
Assistant Manager (Operation)
Kot Farid Sub Division FESCO
13. Mr. Raza Ali Nawaz - Member
Assistant Manager (Construction)
FESCO Sargodha
14. Mr. Muhammad Rashed - Member
Assistant Manager (SS&T) FESCO Sargodha

15. Mr. Yasir Farooq - Member

Assistant Manager (P&I) SS&T FESCO Sargodha

Category Date

UDC 29.10.2009

LDC/TCC 30.10.2009

Chowkidar 30.10.2009

Naib Qasid 31.10.2009

Commercial Assistant 01.11.2009

ASSA 02.11.2009

Bill Distributor 03.11.2009

ALM 04.11.2009

 
W.P. No.6210/2010 23

Meter Reader 05.11.2009

Lorry Driver 06.11.2009

Assistant/Head Clerk 07.11.2009

Note:
a. Arrangements will be made at Sargodha Centre by
Manager (Operation) Sargodha Circle FESCO
Sargodha.

b. Convenor will further constitute Sub Committees of

the above Board.

c. The officials already earmarked will be deputed for

document checking and getting attendance of
candidates. The Convenor in consultation with the
Officers of the board will specify their assignment.

d. The Convenor of the board himself will be present at

the Venue well before the start of the interview and
till completion.

e. No unauthorized / irrelevant Officer / official will be

allowed to enter at the place of Venue in any case
except the Officers specifically detailed for the
purpose.

f. No candidate without original Call letter and

National Identity Card will be allowed.

g. No photocopy of the Board proceedings will be

retained in any case by any member / official.

h. Board Proceedings and attendance sheets will be

provided by this Headquarters.

i. The Board members will report to Convenor well

before 30 minutes of the prescribed time on the date
of interview.

2. This is issued with the approval of Chief Executive Officer,

FESCO.

Sd/-
MUHAMMAD GULZAR SHEIKH
MANAGER (ADMN)

The most fundamental component i.e, the basis of

assessment and evaluation during the interview is starkly

 
W.P. No.6210/2010 24

missing in the instructions at the fag end of the Office

Order under the heading “Note” (reproduced above).

24. Assuming for the sake of argument, that PEPCO lawfully

modified the well settled Recruitment Policy, 1992 framed by

WAPDA by morphing written test into a WALK-IN interview

with total marks of 90 (as per Recruitment Policy: 65 marks

were allocated for written test and 25 marks for interview, the

marks for written test were added into the total marks for the

interview), what needs to be seen is whether the Selection

Boards constituted for the purpose of holding WALK IN

interviews could have exercised lawful discretion in the absence

of an objective criteria.

25. It is settled law that administrative discretion has to be

structured, reasoned, rational, logical and objective. One of the

ways to arrive at such a structured exercise of discretion is to

fashion it on a well-thought out, carefully deliberated objective

standard. This helps test various faculties of the interviewee

especially those, which the institution concerned requires. The

standard can, therefore, cover experience, alertness, initiative,

general aptitude, behaviour, knowledge, dependability, etc

which forms a uniform yardstick, gauge, scale or criteria for the

exercise of discretion. Discretion without a uniform yardstick or

a formula is a loose jumble of haphazard human subjectivity,

 
W.P. No.6210/2010 25

which is inescapably susceptible to error and indubitably

arbitrary, ex facie discriminatory, highly irrational and painfully

illogical. The administrative compulsion and wisdom to

structure discretion (in this case by providing a well thought out

objective criteria/test or a score card) is to remove human

subjectivity from exercise of discretion. In the present case, this

was not done.

26. Good governance and institutional building requires that

the requirements, demands and needs of the institution are

tailored into the objective criteria/test so that the best suited

human resource is selected for the post. The proposed criteria

can sub-divide total marks into areas like; experience, skill,

aptitude, educational background, intellect, extra-curricular,

personality, ethics, etc so the interviewers have a prefixed

format to apply their mind on and disallow unchecked

subjectivity from clogging them the minds.

27. The downside of not having a clear formula or criteria is

supported by the following facts: Local Commission was

directed to collect, at random, application forms/files of

selected and rejected candidates. This was duly done. A bare

perusal of the files placed on the record and attached to the

Report of the Local Commission reveal as follows:

 
W.P. No.6210/2010 26

Post Name of the Academic Name of an Academic

Applied REJECTED qualifications APPOINTED qualifications
for candidate candidate

METER Atteeq-ur Matric 51% Ghulam F.A 50.72%

READER Rehman F.A 61% Mustafa Matric 40%
CNIC B.A 65% 33104-
38301- 8953930-7
188522-3

The appointed candidates has less qualification that the

rejected one. The above comparative chart is self-explanatory.

28. On an institutional level, structuring the discretion is to

protect the institution and the public from the vice of

arbitrariness. It is to filter whims, vagaries, caprice, surmises

and volatility attached to human behaviour, translated into

human dissection. These vices are a breeding ground for

corruption, nepotism and favourtism. These vices are like

termites and if permitted to exist, weaken the foundations of

democratic public institutions. Reference at this stage is made

to the case of Aman Ullah Khan and others V. The Federal

Government of Pakistan through Secretary, Ministry of

Finance, Islamabad and others (PLD 1990 SC 1092 at page

1147), relevant part of para 62 reads as under:-

“Wherever wide-worded powers conferring

discretion exist, there remains always the need to
structure the discretion and it has been pointed
out in the Administrative Law Text by Kenneth
Culp Davis that the structuring of discretion only
means regularizing it, organizing it, producing

 
W.P. No.6210/2010 27

order in it so that decision will achieve the high

quality of justice. The seven instruments that are
most useful in the structuring of discretionary
power are open plans, open policy statements,
open rules, open findings, open reasons, open
precedents and fair informal procedure.
Somehow, in our context, the wide worded
conferment of discretionary powers or
reservation of discretion, without framing rules
to regulate its exercise, has been taken to be an
enhancement of the power and it gives that
impression in the first instance but where the
authorities fail to rationalize it and regulate it by
Rules, or Policy statements or precedents, the
Courts have to intervene more often, than is
necessary, apart from the exercise of such power
appearing arbitrary and capricious at times”.
(emphasis supplied)

29. The above principles have been consistently reiterated in

the cases of Chairman, Regional Transport Authority,

Rawalpindi V. Pakistan Mutual Insurance Company Limited,

Rawalpindi (PLD 1991 SC 14), Director Food, N.W.F.P. and

another V. Messrs Madina Flour & General Mill s (Pvt) Ltd. &

18 others (PLD 2001 SC 1), Chief Secretary Punjab and others

V. Abdul Raoof Dasti (2006 SCMR 1876), Abdul Wahab and

another V. Secretary, Government of Balochistan and another

(2009 SCMR 1354) and Delhi Transport Corporation V. D.T.C.

Mazdoor Congress and others (AIR 1991 SC 101).

 
W.P. No.6210/2010 28

30. Interview as the sole or major component of any

recruitment or appointment process is open to error,

arbitrariness, favour and corruption. It is for this reason that

Recruitment Policy framed by WAPDA on the guidelines of the

Federal Government allocated 25% marks out 100 for

interview, while 65 marks were allocated for written test and 10

marks for higher qualifications. The midstream sudden and shift

to WALK IN interview is therefore irrational and opposed to

public policy. In case of large number of candidates interviews

become even less effective. Interviewing for two to three

minutes per candidate cannot help judge the candidate and is no

more than an eye wash, not to mention how such rushed and

cursory interview can be abused to achieve oblique ends. In the

present case, according to the record, 44,656 candidates were

interviewed in 11 days by 11 Selection Boards. This means that

on an average 377 candidates were interviewed per day by each

Selection Board, which is humanly impossible and turns the

interview and recruitment process into a cruel joke. I rely with

advantage on the under-mentioned cases for demerits of an

appointment process solely based on interview.

31. In “B. Ramakichenin Alias Balagandhi vs. Union of India

and others” (2008(1)SCC 362) it was held:

 
W.P. No.6210/2010 29

“It is well settled that the method of short-listing can be

validly adopted by the Selection Body….Even if there is
no rule providing for short-listing nor any mention of it
in the advertisement calling for applications for the post,
the Selection Body can resort to a short-listing procedure
if there are a large number of eligible candidates who
apply and it is not possible for the authority to interview
all of them. For example, if for one or two posts there are
more than 1000 applications received from eligible
candidates, it may not be possible to interview all of
them. In this situation, the procedure of short- listing can
be resorted to by the Selection Body, even though there is
no mention of short-listing in the rules or in the
advertisement. ….As observed by this Court in Ramana
Dayaram Shetty vs. The International Airport Authority
of India and others (AIR 1979 SC 1628):“It is a well-
settled rule of administrative law that an executive
authority must be rigorously held to the standards by
which it professes its actions to be judged and it must
scrupulously observe those standards on pain of
invalidation of an act in violation of them. This rule was
enunciated by Mr. Justice Frankfurter in “William
Vincent Vitarelli vs. Fred A. Seaton” 359 US 535; 3 L Ed
2nd 1012 (1959) where the learned Judge said: "An
executive agency must be rigorously held to the
standards by which it professes its actions to be judged.
Accordingly, if dismissal from employment is based on a
defined procedure, even though generous beyond the

 
W.P. No.6210/2010 30

requirements that binds such agency, that procedure must

be scrupulously observed. This judicially evolved rule of
administrative law is now firmly established and, if I may
add, rightly so. He that takes the procedural sword shall
perish with the sword". (emphasis supplied)

32. In “Madhya Pardesh Public Service Commission v.

Navnit Kumar Potdar and another” (AIR 1995 SC 77) it was

held:

“But where the selection is to be made only on basis of

interview, the Commission or the Selection Board can
adopt any rational procedure to fix the number of
candidates who should be called for interview. It has
been impressed by the courts from time to time that
where selections are to be made only on the basis of
interview, then such interviews/viva voce tests must be
carried out in a thorough and scientific manner in order
to arrive at a fair and satisfactory evaluation of the
personality of the candidate….. If large number of
applicants are called for interview in respect of four
posts, the interview is then bound to be casual and
superficial because of the time constraint. The members
of the Commission shall not be in a position to assess
properly the candidates who appear before them for
interview”. (emphasis supplied)

33. In “Ajay Hasia etc. vs. Khalid Mujib Sehravardi &

others. etc” (AIR 1981 SC 487) where in it was held that

interview of each of the candidates lasting only two or three

minutes asking formal questions relating to the candidates

 
W.P. No.6210/2010 31

parentage and residence and without any relevance to the

subject for which marks were allocated…. “The oral interview

test is undoubtedly not a very satisfactory test for assessing and

evaluating the capacity and calibre of candidates. Having

regard to the drawbacks and deficiencies in the oral interview

test and the conditions prevailing in the country, particularly

when there is deterioration in moral values and corruption and

nepotism are very much on the increase, allocation of a high

percentage of marks for the oral interview as compared to the

marks allocated for the written test, is not free from the vice of

arbitrariness.

34. In “Ashok Kumar Yadav and others etc. v. State of

Haryana and others.” (AIR 1987 SC 454 at page 473)

“…candidate's initiative, alertness, resourcefulness,

dependableness, cooperativeness, capacity for clear and
logical presentation, effectiveness in discussion,
effectiveness in meeting and dealing with others,
adaptability, judgment, ability to make decision, ability
to lead, intellectual and moral integrity. Some of these
qualities can be evaluated, perhaps with some degree of
error, by a viva voce test, much depending on the
constitution of the interview Board….Glen Stahl has
pointed out in his book on Public Personal
Administration that the viva voce test does suffer from
certain disadvantages such as the difficulty of developing
a valid and reliable oral test, the difficulty of securing a

 
W.P. No.6210/2010 32

reviewable record of an oral test and public suspicion of

the oral test as a channel for the exertion of political
influence and as pointed out by this Court in Ajay
Hasia’s case (AIR 1981 SC 487) (supra), also of other
corrupt, nepotistic or extraneous considerations…..”

35. Constitutionally, unlimited and unchecked exercise of

discretion is inherently discriminatory. It has no internal check

to ensure uniformity and objective application of mind across

the board. It, therefore, extends unequal treatment to equals.

Absence of an objective criteria in exercise of discretion

especially in the present case where thousands of candidates

had applied is therefore discriminatory and hence violative of

article 25 of the Constitution.

36. Petitioners, hailing from different districts of Punjab, with

modest means and humble background, desperately seeking

appointment to public service (86,000 candidates applying for

1347 posts highlights the noticeable elasticity of demand). To

subject their career and future prospects of employment and

perhaps their only hope of livelihood to an unstructured,

unchecked, unguided and unfettered exercise of discretion, puts

the fragile career of the petitioner hostage to corruption,

political opportunism and nepotism resulting in constitutional

breach of articles 4 and 18 of the Constitution.

 
W.P. No.6210/2010 33

37. Article 4 of the Constitution provides for due process and

mandates that everyone is to be treated in accordance with law.

Administrative discretion which is structurally unfettered and

unchecked cannot be said to have been exercised in accordance

with law and therefore fails to pass the test of due process under

article 4 of the Constitution.

38. The WALK IN interviews in this case are devoid of an

objective criteria and therefore violative of the due process and

the fundamental rights of the petitioners. The WALK IN

interviews are therefore declared to be ab initio unconstitutional

and unlawful creating no right whatsoever in the successful

candidates.

39. Coming to the Letter issued by MD, PEPCO and its ex

post facto ratification. It is important to note that the public

advertisement for the vacancy of the posts in question were

allowed by PEPCO and it was directed that recruitment be

made as per Recruitment Policy framed by WAPDA vide

Letters dated 12-2-2009 and 26-3-2009 (above). Still, M.D.,

PEPCO without the approval of its Board of Directors, under

the political diktat of the Minister, Water and Power issued

Letter dated 15-10-2009. The relevant extracts of the letter are

reproduced hereunder for ready reference:

 
W.P. No.6210/2010 34

It has been brought to the notice of Ministry of Water &

Power that PEPCO is following Recruitment Policy adopted from
WAPDA, that is based on GOP Policy Parameters like open
advertisement of the vacancies in the National Press and conducting
the written tests and interviews of the eligible candidates, a process
not likely to complete within 4 –5 months even if given straight going.
The job has become difficult on account of overwhelming response of
the candidates for the advertised vacancies i.e. running in hundred
thousands. Still another very serious concern is on the law and order
situation as prevalent in the country, where holding of written test in
congregation of thousands of candidates is not without serious life
threats. There is a rising trend of the insurgency and terrorism where
mass gatherings are the obvious and easy targets for the miscreants. It
has been deemed appropriate to avoid providing any chance to
terrorists by avoiding holding of gathering of candidates for written
tests on certain placed and venues.

The position has been discussed and brought in the notice of

Minister of Water & Power and in the view of the aforementioned
circumstances, it has been advised to fill 50% of the vacancies in BPS 1 –
16 on immediate basis in accordance with the Recruitment Policy with
unavaoidable exception, where required. Additionally, the Minister of
Water and Power has also been kind to allow recruitment against
vacancies for Engineers and Officers of Common Cadre (BPS-17)
including those pertaining to Revenues, Accounts and Audit etc.

Accordingly, Entities are required to immediately start the

selection process against 50% of the vacancies for BPS 1 – 16 from
amongst the candidates who have applied against the advertised vacancies
and also meet minimum prescribed criteria in the relevant Service Rules,
by curtailing the selection process given in Recruitment Policy to the
extent that all other steps will be strictly complied, but for the
entrance test exception. The candidates will be called for walk in
interviews and marks reserved for written test shall be added in the
interview marks. The successful candidates shall then be issued offer of
appointments. It is further clarified that CEOs may consider relaxation in
age as already authorized to them and change the short listing criteria,
where warranted, but otherwise not in conflict with the Service Rules to
provide equal chances to all in view of persistent ban on recruitment.

40. The said letter dispensing with the written test and adding

the marks for the same into the total score for the WALK IN

interview has poorly masked the political caprice visible

between the lines. It has been reasoned, with little logic, that if

written tests are held the process will not be concluded within 4

to 5 months due to large number of applications. Secondly, the

 
W.P. No.6210/2010 35

rise of insurgency and terrorism require that mass gathering

ought to be avoided, hence the WALK IN interviews. It maybe

noted, that in such an eventuality, where candidates hugely

out-number the limited number of vacant posts, recourse to

short-listing is the made. By setting a standard based on

academic qualifications, candidates can be short-listed and the

small number of shortlisted candidates be subjected to the

recruitment process comprising a written test and an interview.

41. Clause 1(g) of the Guideline for Recruitment of Staff BPS

1-15 states: “No weightage will be given to the interview unless

essential for the post.” It is now settled on good authority, as

discussed earlier in the judgment, that interview must always be

a small component of the recruitment process and primacy be

given to the written tests as it involves less subjectivity and is a

better test of abilities. It is, therefore, surprising that M.D.

PEPCO on the behest of the Minister, Water and Power,

without placing it before its own Board of Directors, hurriedly

issued letter dated 15-10-2009 deleting the requirement of a

written test and hinging the recruitment process on to the

weakest modes of assessment i.e., interview.

42. The urgency and the compelling reasons that coaxed MD

PEPCO to modify an established Recruitment Policy and that

too after the process of recruitment had begun is not

 
W.P. No.6210/2010 36

forthcoming from Letter dated 15-10-2009. The said

arrangement is also temporary and for the remaining 50% seats

the original recruitment policy will be adopted.

43. Further, the ex post facto ratification by the Board of

Directors fails to give reasons of urgency, failing to explicate

why ratification was allowed. The Board of Directors of

PEPCO also failed to inquire why the established Recruitment

Policy had to be modified and whether short listing was an

option that was not placed on the table. The decision of Board

of Directors dated 25-4-2010 blandly states:-

Item 15.
RATIFICATION OF PRIOITY CONSIDERATION FOR CRITICAL
VACANCIES/CLEARANCE OF OPERATIONAL ISSUES

Through an Item Note on the subject and in the ensuing discussion

piloted by the General Manager (HR),PEPCO, the Board meeting, ex
post facto ratification no. MD/GM(HR) /HRD/A-551(09)4200-4218
dated 15-10-2009. Concerning the need for supplementing the
deficient HR base on a fast track basis alleviating the operational
problems of the Companies.

The Board of Directors ratified the aforesaid instructions, as requested.

44. The Board item note (above) fails to mention why the

decision had to be taken by M.D., PEPCO without the approval

of the Board and the Board also miserably failed to review the

reasons why such a decision was taken and failed to deliberate

whether the decision was correct. It is important to note that

decision dated 15.10.2009 is ratified by the Board of Directors

 
W.P. No.6210/2010 37

on 25-4-2010, while the decision of the MD, PEPCO stood

implemented and impugned appointments were made on 6-1-

2010.

45. Even though ex post facto ratification is permissible under

the Companies Ordinance, 1984 for companies, however, in the

case of autonomous bodies/sector, the use of ex post facto

ratification needs a revisit. A public sector company is not only

to look after the interest of its shareholders alone but has a

wider responsibility as it acts as a trustee for the people of

Pakistan. Higher standard of governance, stricter fiduciary duty

and an institutional collegiality in decision making process is an

expected operational benchmark of a public sector company.

The trusteeship of the members of the Board of Directors of

PEPCO create a sacred obligation to ensure that PEPCO is run

and managed through the Board, which is an independent and

an autonomous body constituted to safeguard the interest of the

public and of PEPCO and at all times to firewall against

political or bureaucratic opportunism. A Minister under the

Rules of Business is to provide the macro policy and fashion

the vision of the Department according to the political agenda

of the Government in power. It is not the role or the business of

the Minister, (in this case Minister for Water and Power) to

interfere with the operational working of autonomous body

 
W.P. No.6210/2010 38

like PEPCO. In this case the Minister could have stressed the

urgency to employ manpower in various power companies but

could not have gone further to suggest and direct the temporary

modification of the Recruitment Policy unless PEPCO after due

deliberation at the Board level and after giving reasons felt that

such a modification is required in the larger interest of PEPCO

and in pubic interest. Government and its autonomous

institutions are spread out in layers, every tier having its own

independent role and scope of operations and there is no room

for dictation or pressure. Unless the structure of governance laid

out in the Rules of Business read with the constitutional

principles, is protected, the system of public administration will

come crashing down, replacing public interest with personal

avarice and greed. This cannot be permitted.

46. I, therefore, hold that public sector companies (e.g.

PEPCO, FESCO) shall take collective decision in their Board

Meetings, giving reasons as required under section 24-A of the

General Clauses Act, 1897, a Board Resolution through

circulation, if there is urgency. Only in grave emergency, which

has no room for delay, the CEO may act singly in the welfare of

the company and in public interest, supported by written

reasons for its urgency and the same must be ratified by the

Board of Directors within the shortest possible time. Board of

 
W.P. No.6210/2010 39

Directors must also give reasons for allowing the CEO to take

such a decision and must give reasons for its ratification.

47. The Letter issued by Managing Director PEPCO changing

the Recruitment Policy at the behest of Minister besides

offending fundamental right (as discussed above) reflects of

poor and reckless governance.

48. As per the website of Wapda i.e., www.WAPDA.gov.pk,

“Since October 2007, WAPDA has been bifurcated into

two distinct entities i.e. WAPDA and Pakistan Electric
Power Company (PEPCO). WAPDA is responsible for
water and hydropower development whereas PEPCO is
vested with the responsibility of thermal power
generation, transmission, distribution and billing.
WAPDA is now fully responsible for the development of
Hydel Power and Water Sector Projects. PEPCO has
been fully empowered and is responsible for the
management of all the affairs of corporatized nine
Distribution Companies (DISCOs), four Generation
Companies (GENCOs) and a National Transmission
Dispatch Company (NTDC). These companies are
working under independent Board of Directors
(Chairman and some Directors are from Private Sectors).
The Companies are administratively autonomous and
leading to financial autonomy by restructuring their
balance sheets by bringing their equity position to at least
20 percent, required to meet the prudential regulations

 
W.P. No.6210/2010 40

and to facilitate financing from commercial sector

(approved by ECC).”

49. FESCO is an independent public company with its

autonomous Board of Directors. Decision of M.D. PEPCO or

the Board of Directors of PEPCO are required to be placed

before Board of Directors of FESCO in order to take a

decision regarding the recruitment process employed at

FESCO. No such Board meeting took place. The autonomy of

FESCO and the independence of the Board of Directors of

FESCO is merely fictional if directions issued by individuals

namely: M.D PEPCO (without seeking the approval of the

Board of PEPCO) are carried through by the management of

FESCO without having received the blessing of its Board of

Directors.

50. Public Institutions can only contribute to national interest

and welfare of the people if they are run as an institution and in

the public interest without any fear or favour. If the Board

Members are bypassed and are simply used to ratify orders

passed single handedly behind closed doors and without any

plausible reason, the future of public institutions is bleak. In

order to ensure independence, autonomy, national interest and

interest of the institution, the members of the governing bodies

will have to vigilantly and actively play their roles. To be on

 
W.P. No.6210/2010 41

the Board of a public sector company is to perform a public

duty in the public interest of the people of Pakistan. This role

has to be performed with full responsibility, vigilance, courage,

wisdom and for no other reason. Sadly, this is not the case here.

51. The arguments raised by the counsel for the appointees

have no force. Reliance placed on “Muhammad Zahid Iqbal

and others v. D.E.O. Mardan and others” (2006 SCMR 285) is

misconceived. In the present case prospective candidates have

brought the process of recruitment under challenge and it is not

a case where the departmental authority has cancelled

appointment due to some irregularity in the process with no

third party interest. The facts of the present case are very

different. The judgment cited has no application to the present

case.

52. Before parting with the judgment I wish to reemphasize

that public institutions can prosper and progress and materially

serve the people of Pakistan only if the public functionaries

incharge of running these institutions fearlessly guard their

powers and remain undeterred by extraneous pressure and

influence. The words of the founder of our nation Muhammed

Ali Jinnah are a timely reminder:

“The first thing that I want to tell you is this, that you
should not be influenced by any political pressure, by any

 
W.P. No.6210/2010 42

political party or individual politician. If you want to raise

the prestige and greatness of Pakistan, you must not fall a
victim to any pressure, but do your duty as servants to the
people and the State, fearlessly and honestly. Service is the
backbone of the State. Governments are formed,
Governments are defeated, Prime Ministers come and go.
Ministers come and go, but you stay on, and, therefore,
there is a very great responsibility placed on your
shoulders. You should have no hand in supporting this
political party or that political party, this political leader or
that political leader – this is not your business …While
impressing this upon you on your side, I wish also to take
the opportunity of impressing upon our leaders and
politicians in the same way that if they ever try to interfere
with you and bring political pressure to bear upon you,
which leads to nothing but corruption, bribery and
nepotism – which is a horrible disease and for which not
only your Province but others too, are suffering – if they
try and interfere with you in this way, I say, they are doing
nothing but disservice to Pakistan1.

53. For the above reasons, the impugned recruitment and

appointment of candidates to the posts of ALM, Meter Readers,

Commercial Assistants and Naib Qasids by FESCO is declared

to be unconstitutional, illegal, without lawful authority and

therefore set aside. All the said posts shall be deemed to be

vacant and filled again in terms of this judgment and the

                                                        
1
[Informal talk to Civil Officers at Government House, Peshawar 14-4-1948 from Jinnah
- Speeches and Statements 1947-1948- Oxford].

 
W.P. No.6210/2010 43

Recruitment Policy of WAPDA unless the same is lawfully

amended or modified by PEPCO or FESCO.

54. From the above facts and the record placed before this

court it is clear that the PEPCO and FESCO have played fraud

with the legitimate expectations of hundreds of people who

innocently applied desiring a decent lawful employment.

However, instead of carrying out transparent recruitment

process and giving meaningful employment to the youth of this

country, these institutions failed to perform their public duty

and have abused the public trust reposed in them by the people

of Pakistan. This calls for strict accountability of the public

functionaries involved in the process including the Board

Members of PEPCO and FESCO who seem to have taken no

note of this large-scale breach of trust. I, therefore, direct

Chairman WAPDA to inquire into these unlawful appointments

and to identify the real beneficiaries of this unlawful

recruitment process. Chairman, WAPDA shall also hear and

incorporate the views of the candidates who were rejected as

well as the ones whose appointment has been set aside through

this judgment. This report shall be placed before this Court

within five months from today.

55. Office is directed to place the Report before this Court on

the judicial side as a REPORT CASE.

 
 W.P. No.6210/2010 44

56. For the above reasons, these petitions are allowed with

costs of Rs.10,000/- per petitioner, which shall be paid equally

by PEPCO and FESCO within a month from today.

(Syed Mansoor Ali Shah)

Judge
Iqbal/*

APPROVED FOR REPORTING

 
W.P. No.6210/2010 45

SCHEDULE A

Sr.No. Writ petition No. Title

1. W.P.No. 14921/2010 Syed Muhammad Waris Shah vs.

WAPDA etc.

2. W.P.No.6212/2010 Muhammad Mushtaq vs.

WAPDA etc.

3. W.P.No.6214/2010 Abdul Wahed Khan vs. WAPDA

etc.

4. W.P.No.6215/2010 Sikandar Hayat vs. WAPDA etc.

5. W.P.No.6216/2010 Muhammad Nazzir vs. WAPDA

etc.

6. W.P.No.6217/2010 Shujat Ali Shah vs. WAPD etc.

7. W.P.No.2693/2010 Aman Ullah vs. WAPDA etc.

8. W.P.No.4985/2010 Hafiz Junaid Latif vs. WAPD

etc.

9. W.P. No.4987/2010 Aamir Hayat Khan vs. WAPDA

etc.

10. W.P. No.4989/2010 Ghulam Abbas vs. WAPD etc.

11. W.P. No.4990/2010 Muhammad Rehan Faisal vs.

WAPDA etc.

12. W.P. No.4991/2010 Adnan Raza vs. WAPDA etc.

13. W.P. No.4992/2010 Natiq Ali vs. WAPDA etc.

 
W.P. No.6210/2010 46

Sr.No. Writ petition No. Title

14. W.P. No.4993/2010 Nazir Mukhtar vs. WAPDA etc.

15. W.P. No.4994/2010 Muhammad Saqib vs. WAPDA

etc.

16. W.P. No.4995/2010 Muhammad Kamran Shehzad vs.

WAPDA etc.

17. W.P. No.4996/2010 Sajid Khan vs. WAPDA etc.

18. W.P. No.4997/2010 Muhammad Amjad vs. WAPDA

etc.

19. W.P. No.6794/2010 Muhammad Afzal vs. WAPDA

etc.

20. W.P. No.6795/2010 Basit Saeed vs. WAPDA etc.

21. W.P. No.6796/2010 Muhammad Asif Khan vs.

WAPDA etc.

22. W.P. No.6798/2010 Saqib Javid etc. vs. WAPDA etc.

23. W.P. No.6799/2010 Zulqarnain vs. WAPDA etc.

24. W.P. No.6800/2010 Muhammad Mumtaz vs.

WAPDA etc.

25. W.P. No.6801/2010 Shahid Amin vs. WAPDA etc.

26. W.P. No.8455/2010 Muhammad Saleem vs. WAPDA

etc.

27. W.P. No.8456/2010 Zafar Iqbal vs. WAPDA etc.

28. W.P. No.8457/2010 Zafar Hayat vs. WAPDA etc.

 
W.P. No.6210/2010 47

Sr.No. Writ petition No. Title

29. W.P. No.8459/2010 Ghulam Jaffar vs. WAPDA etc.

30. W.P. No.8460/2010 Mujahid Hussain vs. WAPDA

etc.

31. W.P. No.8461/2010 Muhammad Imran vs. WAPDA

etc.

32. W.P. No.8463/2010 Muhammad Waris vs. WAPDA

etc.

33. W.P. No.8559/2010 Hafiz Muhammad Azam vs.

WAPDA etc.

34. W.P. No.5831/2010 Shahid Waheed vs. Govt. of

Pakistan etc.

35. W.P. No.6717/2010 Rehan Ali vs. Govt. of Pakistan

etc.

36. W.P. No.11901/2010 Muhammad Farooq vs. WAPDA

etc.

37. W.P. No.11902/2010 Hadayat Ullah Khan vs.

WAPDA etc.

38. W.P. No.11903/2010 Muhammad Farooq vs. WAPDA

etc.

39. W.P. No.11905/2010 Muhammad Hayat Khan vs.

WAPDA etc.

40. W.P. No.11907/2010 Sikandar Hayat vs. WAPDA etc.

41. W.P. No.11908/2010 Sikandar Hayat vs. WAPDA etc.

42. W.P. No.11910/2010 Zulfiqar vs. WAPDA etc.

 
W.P. No.6210/2010 48

Sr.No. Writ petition No. Title

43. W.P. No.11911/2010 Sana Ullah vs. WAPDA etc.

44. W.P. No.11912/2010 Muhammad Saleem vs. WAPDA

etc.

45. W.P.No.11913/2010 Azam Hussain vs. WAPDA etc.

46. W.P. No.11916/2010 Hadayat Ullah Khan vs.

WAPDA etc.

47. W.P. No.11917/2010 Muhammad Nazir vs. WAPDA

etc.

48. W.P. No.11942/2010 Kamran vs. WAPDA etc.

49. W.P. No.14922/2010 Rizwan Qamar vs. WAPDA etc.

(Syed Mansoor Ali Shah)

Judge