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Writ Petition No.3346 of 2010, heard on 19th September, 2012.

----Chapter-V, Appendix-C & Chapter-III---Oil and Gas Development Corporation (Re-organization) Ordinance (XXVIII of 2001), S.5---Constitution of Pakistan, Art.199---Constitutional petition---Promotion policy, change in---Bell Curve Scheme---Petitioners were employees of Oil and Gas Development Corporation and they were aggrieved of Bell Curve Scheme introduced by authorities---Plea raised by petitioners was that Employer Corporation had statutory rules and the Scheme introduced by authorities was without sanction of Federal Government, which would affect their promotion---Validity---No change in terms and conditions of service of petitioners had occurred after introduction of Bell Curve System and the same had been introduced on the analogy of re-organization and restructuring of the Organization in order to improve efficiency of employees---Oil and Gas Development Corporation, under S.5 of Oil and Gas Development Corporation (Re-organization) Ordinance, 2001, could not be stopped from introducing any mechanism in order to bring improvement in working of employees---Petitioners did not bring on record document to show that Annual Confidential Reports and Performance Evaluation Reports of employees of Oil and Gas Development Corporation were not taken into consideration under Bell Curve Scheme at the time of considering any officer/official for promotion against any vacant post---Petitioners failed to point out that Bell Curve Scheme had hindered promotion of petitioners in accordance with procedure as provided under Oil and Gas Development Corporation Employees (Service) Regulations, 1994---Petition was dismissed in circumstances. 2011 SCMR 1912; 2010 PLC (C.S.) 621; PLD 1999 SC 990; PLD 1965 SC 420; 1992 SCMR 1112; 1990 SCMR 1321 and PLD 2003 SC 143 ref. Zafar Iqbal and another v. Director, Secondary Education, Multan Division and 3 others 2006 SCMR 1427 rel. Abdur Rehman Siddiqui for Petitioners. Mushtaq Hussain Bhatti for Respondents. Date of hearing: 19th September, 2012.

Through the instant constitutional petition, the petitioner has made the following prayer:--- "It is respectfully prayed that this Court may very kindly be pleased to set aside the impugned scheme contained under impugned circulars based on bell curve concept, leaving the prevailing scheme 2006-2009 to continue with all consequential and back benefits." 2. Learned counsel for the petitioner has argued that the petitioners are serving officers of the respondent organization/Oil and Gas Development Company Limited and their terms and conditions of service are governed by the Oil and Gas Development Corporation Employees (Service) Regulations, 1994, however, on conversion of Oil and Gas Development Corporation into Oil and Gas Development Company (OGDCL) under section-5 of the Oil and Gas Development Corporation (Re-Organization) Ordinance, 2001, the terms and conditions of the service of the petitioners are protected; that the Hon"ble Supreme Court of Pakistan vide its judgment dated 17-11-2009 passed in Civil Petitions Nos.1359 to 1361 of 2009 has declared the Oil and Gas Development Corporation Employees (Service) Regulations, 1994 as "statutory rules" therefore, this Court has the jurisdiction to adjudicate upon the lis in hand; that as the services of the petitioners are governed by statutory rules, therefore, "Bell Curve Concept" introduced by the respondent Organization is illegal, because the same has been implemented by the respondents without sanction of the Federal Government, particularly Finance Division; that the "Bell Curve Concept" adversely affects the terms and conditions of the petitioners in three ways i.e. (i) that the ACR rating deviates from the prescribed procedure and allows the management to adopt pick and choose policy (ii) that it affects the allocation of annual increments to every employee and it (iii) hinders the way of promotion of the employees in accordance with the previous laid down procedure as provided under Oil and Gas Development Corporation Employees (Service) Regulations, 1994. Learned counsel for the petitioners has relied upon 2011 SCMR 1912 and 2010 PLC (C.S.) 621. 3 Conversely, learned counsel for the respondents has argued that the Bell Curve Scheme, for the first time was introduced in OGDCL on 6th July, 2005 and vide letter dated 6th July, 2005 a system for grant of normal Annual increments and merit Annual increments was introduced and normal Annual increments are allowed to all the Officers; that the instant petition is barred by laches; that the Bell Curve scheme falls within the ambit of re-organization and restructuring of the establishment which is the inalienable right and prerogative of the employer; that the Bell Curve system was introduced before the announcement of the Judgment of Hon"ble Supreme Court of Pakistan, whereby, Oil and Gas Development Corporation Employees (Service) Regulations, 1994 were declared as statutory rules; that the Bell Curve System of appraisal, provides the momentum to the employees to push them forward aiming higher and higher; that the objective of the scheme is to motivate the employees to show best performance. Learned counsel for the respondents has relied upon PLD 1999 Supreme Court 990, PLD 1965 Supreme Court 420, 1992 SCMR 1112, 1990 SCMR 1321, PLD 2003 Supreme Court 143 and 2006 SCMR 1427. 4. I have heard the learned counsel for the petitioners as well as learned counsel for the respondents and perused the record. 5. The petitioners, along with the petition have annexed a photocopy of the letter dated 22-10-2009, which is re-produced hereunder for ready reference:---

No. Board0l-06/ 1068.1 October 22, 2009 SUBJECT:--- ACR"s results and implementation of revised performance rating %age distribution using Bell curve. The Board of Directors in its 109th meeting held on October, 14, 2009 resolved as follows:---

With the provisions of 5% variance for all rating level and for outstanding it is only 2-1/2%. The performance level to be translated and equated with the promotion grading, as under:--- Outstanding = Excellent Exceeds job = Very Good Meets Job = Good Needs Improvement = Average Unsatisfactory = Below Average The performance rating of the MD/CEO is elevated to "Outstanding" and performance increment and bonus payout should be given in the context of increase applicable on all employees. 2. Forwarded for further necessary action please.

Sd/-

(Eram Ali Aziz)

Company Secretary From the bare reading of the above re-produced letter, it is quite apparent that the respondent Organization has introduced a system with the term "Bell Curve" for grant of bonus to the employees keeping in view their performance level. In the said letter, it is also mentioned that the performance level shall be equated with the promotion grading in the terms that "Outstanding Performance level" is equal to "Excellent", "Exceeds Job" is equal to "Very Good", "Meets Job" is equal to "Good", "Needs Improvement" is equal to "Average" and Unsatisfactory is equal to "Below Average", as such, there is no major change in the terms and conditions of service of the employees of OGDCL by the implication of Bell Curve system and only a criteria for grant of Bonus to the employees has been introduced by the Organization. 6. Learned counsel for the respondents has also placed on record a copy of the letter dated 6th July, 2005 with the subject "PAY PACKAGE FOR OFFICERS IN REGULAR OFFICER CADRE" wherein, it is mentioned that "Normal Annual Increment" will be allowed to all officers. I have also perused the Chapter-V of the Oil and Gas Development Corporation Employees (Service) Regulations, 1994, which relates to the "Confidential Report" and " Appendix-C", Chapter-III of the Regulations which relates to Promotion and recruitment criteria. After perusal of the same, I have reached to the conclusion that there is no change in the terms and conditions of service of the petitioners after the introduction of Bell Curve System and the same has been introduced on the analogy of re-organization and restructuring of the Organization in order to improve the efficiency of the employees. 7. It is also pertinent to mention here that keeping in view, section 5 of Oil and Gas Development Corporation (Re-organization) Ordinance, 2001, respondent Organization cannot be stopped from introducing any mechanism in order to bring improvement in the working of the employees. Moreover, the petitioners have not brought on record any document to show that ACRs (Annual confidential Reports) and PERs (Performance Evaluation Reports) of the employees of OGDCL would not be taken into consideration under the Bell Curve Scheme at the time of considering an Officer/official for promotion against any vacant post. The petitioners have also failed to point out that the Bell Curve Scheme hinders the promotion of the petitioners in accordance with the procedure as provided under Oil and Gas Development Corporation Employees (Service) Regulations, 1994. Learned counsel for the petitioners has also not placed on record any document to show that by introducing/adopting "Bell Curve Scheme" the respondents have changed the terms and conditions of service of the petitioners. Learned counsel for the petitioners has, though, argued that by adopting Bell Curve Scheme the ACR rating deviates from the procedure, as provided under Oil and Gas Development Corporation Employees (Service) Regulations, 1994, however, from the perusal of the letter dated 22-10-2009, reproduced in the preceding paragraph of this judgment, it is quite apparent that the performance level mentioned in the said letter is equated with the grading i.e. "Outstanding Performance level" is equal to "Excellent", "Exceeds Job" is equal to "Very Good", "Meets Job" is equal to "Good", "Needs Improvement" is equal to "Average" and Unsatisfactory is equal to "Below Average" which remarks a reporting Officers writes in the Annual Confidential Report (ACR) of an official. Learned counsel for the petitioners has also taken the stance that Bell Curve Scheme allows the management to adopt pick and choose policy but could not explain that how Bell Curve Scheme allows the management to adopt pick and choose policy, rather, in my view, the said scheme has been introduced by the respondent organization in order to boost up the working of the officers/officials by offering incentives to them. Furthermore, the Hon"ble Supreme Court of Pakistan in the judgment Zafar Iqbal and another v. Director, Secondary Education, Multan Division and 3 others (2006 SCMR 1427) has held that:--- "The Government is always empowered to change the promotion policy and the domain of the Government to prescribe the qualification for a particular post through amendment in the relevant rules, is not challengeable. This is also a settled law that notwithstanding fulfillment of the requirement qualification and other conditions contained in the rules, the promotion cannot be claimed as a vested right." 8. In view of the above perspective, I find no force in the instant writ petition, therefore, the same stands dismissed. MH/64/Isl. Petition dismissed.

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