IN THE SUPREME COURT OF PAKISTAN 
(APPELLATE JURISDICTION) 
 
PRESENT: 
MR. JUSTICE GULZAR AHMED, CJ 
MR. JUSTICE IJAZ UL AHSAN 
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI 
 
CIVIL APPEAL NO. 900 OF 2020 
(On 
appeal 
against 
the 
judgment 
dated 
23.10.2019 passed by the Peshawar High 
Court, Peshawar in Writ Petition No. 618-
P/2019) 
 
PESCO, Wapda House through its Chief Executive 
 
…Appellant(s) 
VERSUS 
Ishfaq Khan and others 
 
…Respondent(s) 
 
For the Appellant(s): 
Mr. Asad Jan, ASC 
 
 
For Respondent(1-10): 
Mr. Abdul Hafeez Amjad, ASC 
Mr. Mehmood A. Sheikh, AOR  
 
 
Date of Hearing: 
01.02.2021 
… 
JUDGMENT 
 
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through this appeal by 
leave of the Court, the appellant has called in question the vires of 
the impugned judgment dated 23.10.2019 passed by the Peshawar 
High Court, Peshawar, whereby the Writ Petition filed by the 
appellant was dismissed and the judgment dated 07.01.2019 
passed by the Labour Appellate Tribunal, KPK, Peshawar was 
upheld.  
2. 
 
Briefly stated the facts of the matter are that the 
respondent Nos. 1-10 are working as regular Upper Technical 
Subordinate (UTS) in the appellant department. They filed appeal 
before the appellant PESCO for their promotion to the post of Junior 
Engineers/Assistant Managers (BPS-17) against 5% quota reserved 
for UTS graduate engineers. The said appeal was turned down vide 
order dated 21.12.2015 on the ground of non-availability of the 
vacancy with further clarification that the said quota is meant for 
induction/direct recruitment and not promotion. This led to filing of a 
Grievance Petition by the respondents before the Labour Court, 
Peshawar. The learned Labour Court allowed the Grievance Petition 
Civil Appeal No. 900/2020 
-: 2 :-
vide judgment dated 09.04.2018 by holding that since there is 5% 
quota for promotion according to the policy issued by the WAPDA 
and since all other similar electric companies are following the policy 
of WAPDA, the appellant PESCO is also bound to follow instructions 
and policies of WAPDA. Being aggrieved, the appellant department 
filed Labour Appeal before the Labour Appellate Tribunal, Peshawar, 
which was dismissed vide judgment dated 07.01.2019. The 
appellant challenged the judgment of the Labour Appellate Tribunal 
before the Peshawar High Court by filing Writ Petition No. 618-
P/2019 but it also met the same fate vide impugned judgment dated 
23.10.2019. Hence, this appeal by leave of the Court.  
3. 
 
Learned counsel for the appellant inter alia contended 
that the learned High Court has failed to take into consideration that 
though PESCO is a constituent company of parent department 
WAPDA but being an autonomous body it has its own statutory rules 
and as such it has been separated from WAPDA in this regard; that 
while drawing analogy from the rules framed by the parent 
department, the appellant cannot be asked to adopt its rules; that 
this very aspect was totally ignored by the High Court and without 
giving any definite finding regarding the maintainability of the 
grievance petition before the Labour Court, the impugned judgment 
resulted into grave miscarriage of justice; that the judgment passed 
by the Labour Court directing the appellant to grant promotion to the 
respondents in lieu of the 5% quota reserved for UTS graduate 
engineers is without any legal justification, which aspect was 
altogether ignored by the learned High Court while handing down 
the impugned judgment.  
4. 
 
On the other hand, learned counsel for the respondents 
has candidly defended the impugned judgment. The main stay of 
the arguments advanced by the learned counsel was that 5% quota 
was reserved for Upper Technical Subordinates for promotion to the 
post of Assistant Manager/Junior Engineers (BPS-17) pursuant to 
the letter issued by WAPDA dated 16.09.2005, which was declined 
to the respondents by the appellant department, therefore, the 
grievance petition was competent and in accordance with law.  
5. 
 
We have heard learned counsel for the parties and have 
gone through the record.  During the course of arguments, learned 
Civil Appeal No. 900/2020 
-: 3 :-
counsel for the respondents was specifically asked to show any 
provision of law which empowers the Labour Court to strike down a 
policy or notification or it can direct a statutory body to adopt the 
rules/policies of another statutory body. Learned counsel failed to 
substantiate any legal justification and candidly conceded that the 
Labour Court has no jurisdiction to do so. It is now established 
without any reservation that for striking down a policy, notification 
or an executive order if it infringes the rights of an individual or 
group of individuals or if it is found to be arbitrary, unreasonable or 
violative of law or Constitution, the power exclusively rests with the 
High Court under Article 199 of the Constitution of Islamic Republic 
of Pakistan, 1973, and a challenge could be thrown to such a policy, 
notification or the executive order by way of filing a Constitutional 
Petition. The Labour Court is not seized with such jurisdiction, 
therefore, the jurisdiction exercised by it while directing the 
appellant to constitute a committee to grant promotion to the 
respondents against 5% quota while drawing analogy with other 
similar electric companies is beyond its scope.  
6. 
 
There is yet another question i.e. whether the 
respondents could have claimed promotion instead of induction 
against 5% quota by way of filing grievance petition. For this it 
would be in order to reproduce Section 37(1) of the KPK Industrial 
Relations Act, 2010, which reads as under:- 
“37(1) A worker may bring his grievance in respect of 
any right guaranteed or secured to him by or under any 
law or any award or settlement for the time being in 
force to the notice of his employer in writing, either 
himself or through his shop steward or collective 
bargaining agent within three months of the day on 
which the cause of such grievance arises”  
 
7. 
 
A close reading of the above-quoted provision of law 
would show that the grievance petition would only be competent if 
the grievance is with regard to a ‘right guaranteed under law, 
settlement, or award’. We do not want to delve into the question 
whether the respondents are ‘workmen’ or not but even for the sake 
of arguments, if it is admitted that the respondents are ‘workmen’ 
Civil Appeal No. 900/2020 
-: 4 :-
within the purview of the aforesaid KPK Industrial Relations Act, 
2010, even then the claim of the respondents for which they filed 
grievance petition does not fall within the ambit of ‘right guaranteed 
or secured to them by any law’. When we confronted learned 
counsel for the respondents with this aspect of the matter, he 
contended that the word ‘law’ means policy of the organization. 
However, we are not convinced with the contention of the learned 
counsel. The word ‘law’ in Section 37 of the Act means that it has to 
be a legal right guaranteed by the statute.  
8. 
 
The respondents were basically seeking ‘promotion’ to 
the post of Junior Engineers/Assistant Manager (BPS-17). The 
learned courts below have held that all the similar electric 
companies like the appellant have adopted the WAPDA rules for 
promotion of the similarly placed employees, therefore, the clog of 
departmental promotion and fresh induction by the PESCO will 
make their previous service tenure redundant/forfeited. Admittedly, 
PESCO is a distinct entity, which has its own statutory rules. The 
law does not permit that a statutory body, who has its own rules, be 
compelled to adopt the rules of another separate entity. The Labour 
Court only had the authority to interpret and deal with the 
respondents under the policy of PESCO, which clearly says that the 
5% quota is for induction/direct recruitment and not for promotion. 
Learned counsel could not controvert that pursuant to the 
clarification issued by the PEPCO dated 08.03.2010, the posts in 
question in the appellant department were to be filled in by way of 
induction and not promotion, which means that there would be fresh 
appointment 
and 
not 
the 
continuation 
of 
the 
earlier 
job. 
Departmental induction means that the employer takes competitive 
examination from among the serving eligible candidates for the 
higher post and the candidates who rank on top according to merit 
are appointed afresh whereas the remaining continue to perform 
their job on the previous posts. In these circumstances, we are of the 
view that the learned Labour Court had no power to direct the 
appellant company to adopt the rules of WAPDA or similar 
constituent companies and has wrongly assumed jurisdiction. There 
can be no doubt that if an order is void, without jurisdiction, ultra 
vires and passed in disregard of the law, any superstructure raised 
Civil Appeal No. 900/2020 
-: 5 :-
over it would automatically fall to the ground and it cannot sustain 
in the eyes of law.  
9. 
 
For what has been discussed above, we allow this 
appeal and set aside the impugned judgment of the Peshawar High 
Court, Peshawar dated 23.10.2019.  
 
 
   
 
CHIEF JUSTICE 
 
 
 
JUDGE 
 
 
 
JUDGE 
Islamabad, the 
1st of February, 2021 
Approved For Reporting 
Khurram 
