IN THE SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction)  
 
 
 
 
 
 
Present: 
 
 
 
 
 
Mr. Justice Amir Hani Muslim 
 
 
 
 
 
Mr. Justice Ejaz Afzal Khan 
 
 
 
 
 
Mr. Justice Tariq Parvez 
 
 
CIVIL PETITION NO.701 OF 2016 
(On appeal against the judgment dated 04-12-2015 
passed by the Peshawar High Court, Peshawar, in  
Writ Petition No.1796-P/2015) 
 
 
Peshawar Electric Supply Company Ltd 
… 
… 
Petitioner. 
   
 
 
 
 
Versus 
 
Wafaqi Mohtasib (Ombudsman)  
 
… 
… 
Respondents  
Islamabad and others  
 
For the Petitioner   
: 
Mr. Abdul Rauf Rohaila, ASC 
 
 
 
 
 
Mr. M. S. Khattak, AOR 
For Respondents (1-2)  
: 
Hafiz Ahsan-ud-Din Khattak, AOR 
 
 
 
 
 
Raja Abdul Ghafoor, AOR 
On Court Notice   
: 
Rana Waqar Ahmed, Addl. AG 
Date of hearing 
 
: 
25-07-2016. 
 
JUDGMENT 
 
 
AMIR HANI MUSLIM, J. - Through these 
proceedings, the Petitioner has impugned the judgment dated 
04.12.2015, of the Peshawar High Court whereby Writ Petition 
filed by the Petitioner against the order of Wafaqi Mohtasib was 
dismissed, inter alia, on the ground that the Petitioner has failed to 
avail the alternate remedy provided under Article 32 of the 
C.P.No.701/16. 
2 
Establishment of the Office of Wafaqi Mohtasib Order 1983 
(hereinafter referred to as the Order).  
 
2. 
 
The relevant facts of the case are that owing to the 
unsatisfactory performance of WAPDA, its power wing was 
privatized and distribution companies were created in various areas 
for distribution of electricity which, for operational purposes, seek 
guidance from PEPCO. The Peshawar Electric Supply Company 
(Pvt.) Ltd (PESCO) was created and incorporated under the 
Companies Ordinance, 1984, to distribute electricity in the 
Province of Khyber Pakhtunkhwa. PESCO has no statutory rules 
and its employees are regulated by the service rules of WAPDA, 
PEPCO and Government Service Rules.  
 
3. 
 
On 08.04.2004, WAPDA issued an Office Order, 
directing, inter alia, that 20% of the posts in BS-01 to BS-09 in all 
categories are reserved for the children of WAPDA deceased or 
retired employees and employees who died during service. The 
point in issue between the parties is that certain persons filed 
applications before the Wafaqi Mohtasib for a direction to the 
PESCO to appoint them in the PESCO against the said 20% quota, 
after relaxing certain conditions. Thereafter, the Wafaqi Mohtasib 
made recommendations for their appointments after relaxing the 
prescribed conditions. Not only that, the Wafaqi Mohtasib also 
C.P.No.701/16. 
3 
issued notices to the PESCO for implementation of these 
recommendations.  
 
4. 
 
The PESCO impugned the recommendations of the  
Wafaqi Mohtasib and the letters for implementations before the 
Peshawar High Court, through a Writ Petition which was 
dismissed vide impugned judgment dated 04.12.2015, inter alia, 
on the ground of maintainability. Hence this Petition for leave to 
Appeal.  
 
5. 
 
The learned Counsel for the Petitioner has contended 
that the jurisdiction of the Ombudsman is dependent on the 
provisions of Article 9 of the Order. According to him, Article 9(1) 
clearly demarcates powers conferred on the Ombudsman under the 
Order. In substance, the jurisdiction of the Ombudsman to 
entertain a complaint is dependent on the term “mal-
administration” used in Article 9. He submits that neither the 
Ombudsman has the power to order and recommend any 
appointment in the Petitioner-Company, nor can it implement the 
recruitment policy of the Petitioner-Company, in view of bar 
contained under Article 9 of the Order. In support of his 
contention, he has relied upon the case of Raft Ullah Khan v. 
Settlement Commissioner, Lahore (1998 SCMR 84).  
 
C.P.No.701/16. 
4 
6. 
 
As against this, the learned Additional Attorney 
General while supporting the impugned judgment, has contended 
that the term “mal-administration” includes recruitment policy and 
the Ombudsman can recommend the appointment of this nature. 
He next contended that the Ombudsman can recommend under 
Article 9 of the Order for appointment on the 20% quota of the 
Petitioner’s employees by relaxing the age.  
 
7. 
 
We have heard the learned Counsel for the Petitioner, 
the learned Law Officer and have perused the record with their 
assistance. The legislature has established the office of the Wafaqi 
Mohtasib by introducing the Order of 1983. By an Act XIV of 
2013, called the Federal Ombudsman Institutional Reforms Act, 
the legislature has further supplemented the aforesaid Order. Both 
these legislative instruments are meant to confer powers on the 
Wafaqi Mohtasib to deal with the complaints of mal-administration 
against the public functionaries as provided under Section 2(2) of 
the Order.  
 
8. 
 
It is not possible to mould the term “mal-
administration” used in Article 9(1) of the Order under a rigid 
definition. 
The 
dictionary 
meaning 
of 
the 
term 
‘mal 
administration’ is “to handle a matter inefficiently or improperly”. 
In its wider sense, it refers to various types of mal-practices which 
C.P.No.701/16. 
5 
are opposed to law, fair play and principles of equity and justice. In 
common parlance, the introduction of the office of the 
Ombudsman and the conferment of powers upon it through the 
Order was styled to check administrative excess and abuses of 
bureaucracy. However these powers, within the Order, are not 
absolute and are subject to the restrictions contained in Article 9 of 
the Order. In other words, the Wafaqi Mohtasib can only exercise 
powers which are not in conflict with the language of Article 9 (1) 
and (2) of the Order. The term “mal-administration” has been 
interpreted by this Court in a number of cases reported as 
Muhammad Mumtaz Khan Bhaba vs. Special Court of Mr. Justice 
Munir A Shaikh, (1994 SCMR 728), Shafaatullah Qureshi v. 
federation of Pakistan (PLD 2001 SC 142) and Capital 
Development Authority vs. Zahid Iqbal (PLD 2004 SC 99) 
 
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 
C.P.No.701/16. 
6 
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.  
 
10.  
If, ex facie, the Ombudsman is not conferred with such 
a power, and the order of the nature is passed by it, the High Court 
can always in exercise of its constitutional jurisdiction rectify such 
error. An alternate remedy provided under Article 32 of the Order 
cannot restrict the Constitutional jurisdiction of the High Court 
once it comes to the conclusion that the Order of the Wafaqi 
Mohtasib was outside the domain of Article 9. Sub-Article 2 of 
Article 9 clearly indicates that jurisdiction of Wafaqi Mohtasib is 
expressly excluded in cases of personal grievances of public 
servants or functionaries serving in any “Agency” in respect of the 
matters relating to their service. The term “Agency” has been 
C.P.No.701/16. 
7 
defined in Article 2(1) of the Order which means a Ministry, 
Division, Department, Commission or office of the Federal 
Government or a statutory corporations or other institution 
established or controlled by the Federal Government. The 
Petitioner is a Company and is controlled by the Government and 
clearly falls within the purview of term “Agency”, therefore, the 
jurisdiction of Wafaqi Mohtasib is barred under clause 2 of Article 
9 of the Order.    
 
11.  
The question as to whether the learned High Court can 
entertain a Constitutional Petition against an order of the Wafaqi 
Mohtasib, it is well established law that his order can be interfered 
with by the learned High Court in exercise of its constitutional 
jurisdiction if the Petitioner satisfies that the order of the Wafaqi 
Mohtasib is without jurisdiction. We have not lost sight of Article 
32 of the Order which provides alternate remedy to the aggrieved 
to approach the President of Pakistan by filing a representation 
against the Order of Wafaqi Mohtasib, but where the Order of the 
Wafaqi Mohtasib, on the face of it, is against the language of 
Article 9 of the Order or without jurisdiction, the High Court can 
exercise its constitutional jurisdiction so as to prevent injustice 
done to an aggrieved. 
 
C.P.No.701/16. 
8 
12.  
In this backdrop we are satisfied that the jurisdiction of 
Wafaqi Mohtasib is limited as provided under Article 9 of the 
Order and he cannot order and or recommend appointment of a 
person in the Petitioner-Company under any of the categories 
mentioned hereinabove which power rests with the executive 
authorities. The above are the reasons for our short order which 
reads as under:- 
“For reasons to be recorded later, this petition is 
converted into Appeal and allowed. The impugned 
judgment is set aside.” 
 
Judge 
 
Judge 
 
Judge 
Islamabad the, 
25th July 2015. 
Not approved for reporting. 
Sohail/**