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Official Citation: 2024 IHC 240
Court / Jurisdiction: Islamabad High Court
Year of Decision: 2024
Decision Date: 2024-11-29
Parties: Nawab Ali and others vs National Highway Authority (NHA) and others.
Ruling Summary: This decision was rendered by the Islamabad High Court on 2024-11-29, officially reported as 2024 IHC 240. In this matter between Nawab Ali and others and National Highway Authority (NHA) and others., the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2024IHC240
Court Name: Islamabad High Court Judge(s): Babar Sattar Title: Nawab Ali and others vs National Highway Authority (NHA) and others. Case No.:Execution Petition No. 03 of 2019 , Execution Petition No. 01 of 2021, Writ
Petition No. 3685 of 2018, Writ Petition No. 4429 of 2018 Date of Judgment:2024-11-29 Reported As: 2024 IHC 240 Result: Petition Disposed of Judgment
JUDGEMENT BABAR SATTAR, J.- Through this judgment, this Court will decide (i) above titled Execution Petitions No.03 of 2019 and 01 of 2021 ("Execution Petitions") filed by regular employees of National Highway Authority ("NHA") under Article 187(2) of the Constitution read with Order XLV Rule 15 of the Code of Civil Procedure, 1908 ("CPC"), and (ii) Writ Petitions No.3685 of 2018 and 4429 of 2018 ("Writ Petitions"), wherein office order passed by NHA dated 26.09.2018 recalling office order dated 12.10.2011 was impugned. 2. By office order dated 12.10.2011, NHA sought to give effect to the decision of a Cabinet Sub- Committee on regularization of employees in its meeting dated 13.09.2011 with Syed Khursheed Ahmed Shah, then Federal Minister for Religious Affairs, in the Chair ("Cabinet Sub-Committee"). Pursuant to the aforementioned office order, 222 employees of NHA were regularized in BPS-17 to BPS-19. This resulted in litigation between employees of NHA who were serving against regular posts ("Regular Employees") and employees who were serving against contractual or contingent posts etc., and were regularized pursuant to the decision of the Cabinet Sub-Committee ("Contractual Employees"). The petitions were filed by Regular Employees in various High Courts, including Islamabad High Court. By judgment dated 29.05.2014 in Writ Petition No.1863 of 2013, the regularization of the Contractual Employees pursuant to the decision of the Cabinet Sub- Committee was declared by Islamabad High Court to be without jurisdiction and void ab initio. This judgment was impugned before a Division Bench of this Court, which in Major (R) Waqar Ali Shah vs. Nawab Ali (2015 PLC (C.S) 1137) set aside the order of the Judge-in-Chambers and directed
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that NHA ought to approach the Committee constituted by the Federal Government by notification dated 02.04.2015 with Mr. Haseeb Athar as its Chair ("Haseeb Athar Committee") for regularization of employees subject to fulfillment of the criteria prescribed in an Office Memorandum issued by the Federal Government for purposes of regularization of employees dated 29.08.2008 ("2008 O.M") and that each case of regularization was to be examined on its own merits after affording the employee an opportunity to be heard. While relying on the law laid down by the Supreme Court in Syed Mubashir Raza Jaffri vs. Employees Old Age Benefits Institution (2014 SCM R 949), it was held that legitimacy could not be conferred on an illegally appointed employee. Appeals were filed against the aforementioned judgment of this Court as well as judgments passed by the Sindh High Court and the Peshawar High Court in relation to regularization of Contractual Employees and the Supreme Court in Nawab Ali vs. Federation of Pakistan (Civil Appeal No.1119 of 2015) by a consent order dated 02.06.2016, disposed of the same in the following terms: (a) That the process of regularization in terms of the Judgment dated 09.04.2015 of the learned Division Bench of Islamabad High Court may be conducted by the Competent Authority in accordance with the law without being influenced by any extraneous considerations or directions. (b) After the process is completed, if any, individual has any grievance either for not being regularized or, if any, other person is regularized illegally or with illegal consequence, such individuals may seek their remedies available to them in accordance with law. 3. The Execution Petitions have consequently been filed seeking implementation of the aforementioned order of the Supreme Court. The petitioners in Writ Petitions have similarly impugned office order dated 26.09.2018, purportedly passed by NHA in compliance with the order of the Supreme Court dated 02.06.2016, on the basis that the said order has been misinterpreted and the petitioners who had been regularized by NHA's office order dated 12.10.2011, being part of the cohort comprising Contractual Employees, could not have been de-regularized with their status being reverted back to that of Contractual Employees. 4. Much water has flown under the bridge since the filing of the petitions. While petitioner, Sajjad Ahmad, filed Writ Petition No.4429 of 2018 impugning NHA's order dated 26.09.2018 before this Court, Noor-ul-Hasan and others filed Constitutional Petition No.1225 of 2018 before the Balochistan High Court, which by judgment dated 22.12.2020 allowed the petition and set aside NHA's office order dated 26.09.2018. While doing so, the Balochistan High Court left it open to the Executive Board of NHA ("Executive Board") to consider regularization of Contractual Employees who were petitioners before Balochistan High Court in terms of Para 6 of the judgment of this Court in Major (R) Waqar Ali Shah. While there is some record reflecting that NHA sought to file an appeal against the judgment of Balochistan High Court, nothing has been placed on record to establish that the said judgment was set aside in appeal. As will become evident from the record discussed in this judgment, NHA in effect accepted the judgment of Balochistan High Court and considered the regularization of the Contractual Employees in terms of the judgment of this Court in Major (R) Waqar Ali Shah, read together with the order of the Supreme Court dated 02.06.2016 while treating the Executive Board as the 'competent authority' for purposes of regularization of NHA employees. Meanwhile, Nawab Ali also filed Criminal Original No.226 of 2016 before the Supreme Court seeking compliance with the order of Supreme Court dated 02.06.2016. The Supreme Court by order dated 08.10.2018 chose not to exercise its contempt powers while observing that, "any person having any grievance against his regularization, non-regularization or de-regularization must approach the learned High Court and the learned High Court shall decide the same by independent application of mind without being prejudiced on account of any previous orders passed by this Court." The question of regularization pursuant to the orders of the Supreme Court, Balochistan High Court and Islamabad High Court thus landed back with the NHA. The Executive Board being the authority for purposes of appointing employees in NHA constituted a Committee ("Scrutiny Committee") to
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consider the question of regularization of Contractual Employees. The Scrutiny Committee presented its recommendations in the 376th meeting of the Executive Board held on 31.12.2021. Meanwhile, this Court in the present proceedings, by order dated 13.06.2022 in Execution Petition No.03 of 2019, directed Chairman NHA to submit a report as follows: (i) The status of the employees whose regularization was to be decided in accordance with the policy decision of the Cabinet Sub-Committee in year 2011. (ii) The manner in which the question of their absorption on a permanent basis and/or regularization is to be decided by NHA. (iii) The time-frame within which the order of the august Supreme Court in Civil Appeal No.1119 of 2015, dated 02.06.2016, will be implemented in letter and spirit. Let him call a meeting of the Executive Board that will deliberate the issue and sign off on the decision specifying the time- frame and manner in which the employment decision will be reached by NHA. 5. The Executive Board approved various recommendations made by the Scrutiny Committee in its 399th meeting and an affidavit to such effect was filed before this Court on 22.06.2022 by Chairman NHA. The Executive Board approved the recommendations to be placed before the National Highway Council for its consideration and approval in view of the fact that the ultimate control and direction of NHA was vested in the National Highway Council in terms of Section 6(2) of the National Highway Authority Act, 1991 ("NHA Act"). After considering the recommendations of the Executive Board, National Highway Council in its 38th meeting rendered the following decisions: a. Creation of NHA Special Service Cadre (NSSC) for adjustment of contract/daily wages employees regularized in the year 2011 & 2013 on recommendations of the Cabinet sub-committee and in compliance of the judgment of the Honorable Sindh High Court, Karachi. b. Creation of 1084 supernumerary/temporary posts (details of designation & BS is at Annex-F) for each employee and adjustment of the said employees, which are appointed initially after fulfilling requirements under the NHA's A&P Rules 1995. These posts shall be temporary to adjust employees of NSSC, therefore, no such post be transferred to regular establishment of NHA. c. Inter-se-seniority in NSSC and pay scale of regularized employees be maintained separately in their respective NSSC. Their seniority will have no effect on the seniority of NHA regular establishment of respective cadre. d. In case a post becomes vacant in NSSC, either by retirement or in case of death, the senior most of official/officer in the feeding cadre be promoted to the higher posts. For example, on promotion of an officer to higher post in BS-18, resulting the BS-17 post become vacant and in case no officer in the cadre is available for promotion to BS-17, then the post shall stand abolished. NHA Special Services Cadre (NSSC) will be a dying cadre and on the retirement of the last employee, NSSC shall stand abolished. e. For the purpose of career progression and motivation of the senior officers of NHA Special Services Cadre (NSSC), supernumerary/temporary posts, if required by NHA, may be created later on, after fulfilling the legal and procedural formalities on the recommendations of the Board's Committee to the NHA Executive Board. f. Posts in regular service cadres of NHA officers and officials shall not be reduced on account of the proposed NSSC. The officers and officials belonging to regular services cadre shall also be provided the opportunity of further promotion through restructuring of the NHA service strength after fulfilling the legal and procedural formalities. g. The implementation of the above-mentioned scheme and seniority issues arising out of it shall regularly be monitored and regulated by the NHA Executive Board's committee to ensure that the scheme will be implemented within a period of six months. h. The NHA Executive Board is authorized to take all actions and measures to implement the scheme.
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i. These approvals are subject to clearance of court retraining orders/cases (if any). 6. The National Highway Council referred back to the Scrutiny Committee the remaining 757 cases of Contractual Employees who purportedly had deficient credentials to re-scrutinize the matter on a case-to-case basis and submit its recommendations to the National Highway Council through the Executive Board. The scrutiny process was undertaken once again and the matter was placed before the National Highway Council in its 40th meeting held on 02.02.2023. The Executive Board had decided in its 420th meeting held on 13.01.2023 that the recommendations of the Scrutiny Committee with regard to the 757 cases of purportedly deficient credentials of Contractual Employees be approved. The National Highway Council endorsed the recommendations of the Scrutiny Committee as approved by the Executive Board and also approved the creation of 757 supernumerary/temporary posts to provide for regularization of the employees whose regularization had been endorsed by the National Highway Council. 7. The learned counsels for the petitioners in the Execution Petitions have taken the Court through the factual and litigation background of the matter and have cited precedents to establish that the Contractual Employees could not be regularized as they had been appointed in breach of requirements of the NHA Act read together with the National Highway Authority (Service) Rules, 1995 ("NHA Service Rules") and the National Highway Authority (Appointment and Promotions Rules), 1995 ("NHA Appointment Rules").8. The basic grievance of the execution petitioners and the Regular Employees whose interest they represent was that induction of contractual employees as regular employees of NHA would affect their seniority and their career progression and would impose an undue fiscal burden on NHA and consequently the public exchequer. As detailed written arguments along with relevant precedents form part of the record of this Court, the arguments and the cases cited need not be recapitulated. 9. The learned counsels for the petitioners who impugned office order dated 26.09.2018 submitted that the order of the Supreme Court dated 02.06.2016 had been misinterpreted by NHA. There were various other orders of the Supreme Court where the regularization of contractual employees ordered by the Cabinet Sub-Committee was upheld. They submitted that in the decisions rendered by the National Highway Council it had ordered the creation of a special services cadre within NHA ("NSSC") and the supernumerary/temporary posts were created within such cadre to cater to the regularization of Contractual Employees. They submitted that while the orders of National Highway Council had annulled the impugned office order dated 26.09.2018, placement of Contractual Employees after their regularization in NSSC would place a glass ceiling over their career progression and they would be at a disadvantage in relation to Regular Employees. 10. The learned counsel for NHA submitted that details of the factual background and the litigation background had been recorded in great detail in the minutes of the 38th and 40th meeting of the National Highway Council. In the minutes had also been recorded the discussion reflecting how the competing interests of Regular Employees and Contractual Employees had been balanced by the Executive Board and the National Highway Council through the decisions rendered in the 38th and 40th meeting of the National Highway Council. He submitted that NHA was a statutory body and the control and management of NHA ultimately vested in the National Highway Council. He submitted that the Executive Board was vested with authority to make appointments and to create new posts and the NSSC had been newly created in exercise of the statutory power vested in the National Highway Council and the Executive Board. He submitted that NHA had taken into account the fact that Contractual Employees had continued to serve NHA for over a decade and any relaxation in terms of not convening a written test prior to their appointment was a decision taken by the Executive Board and the employees appointed as a consequence of such recruitment process could not be left to bear the burden of such decision. He submitted that the Supreme Court, the Islamabad High Court and the Balochistan High Court had left the issue of regularization
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to be decided by NHA, which had done so by constituting the Scrutiny Committee that had diligently reviewed the credentials of Contractual Employees and had decided to regularize them. And in doing so, the NSSC had been created to ensure that the regularization of Contractual Employees does not disturb the seniority of Regular Employees and such scheme did not offend the provisions of the NHA Act or the Rules framed thereunder and serve the requirements of equity. 11. This Court is satisfied that the decisions rendered by the National Highway Council in its 38th and 40th meeting with regard to the regularization of Contractual Employees has given effect to the order of the Supreme Court dated 02.06.2016 in proper perspective as has been sought through the Execution Petitions. This Court is further satisfied that in view of the decisions rendered by the National Highway Council in its 38th and 40th meeting, W.P Nos. 3685 of 2018 and 4429 of 2018 that impugned NHA's office order dated 26.09.2018 have become infructuous, as the employees affected by such office order, which was previously set aside by the Balochistan High Court, have been considered along with other Contractual Employees and have been regularized in terms of the aforementioned decisions of the National Highway Council. 12. The National Highway Authority was established pursuant to the NHA Act. The NHA has a two-tier management structure that is common to statutory public authorities. The National Highway Council, constituted under Section 5 of the NHA Act, forms the policy tier, its powers and functions are listed under Section 6 of the NHA Act and include, inter alia, "to lay down the national policies and guidelines to be followed by the Authority in the performance of its functions", and "to consider and approve the proposals, schemes and projects costing sixty million rupees or more submitted by the Authority in the prescribed format." Section 6(2) provides that, "the Council shall have power to control, direct and regulate the affairs of the Authority." The second tier of NHA comprises an Executive Board established pursuant to Section 7 of the NHA Act. Section 7(1) provides that, "the general direction and administration of the Authority and its affairs shall vest in the Executive Board, which may exercise all powers, perform all functions and do all acts and things which may be exercised, performed or done by the Authority." The powers of the Authority are then listed under Section 10 of the NHA Act. Section 11(2)(iv) vests in the Authority the power to frame schemes for the welfare of the authority's employees. Section 13(1) states that, "the Authority may from time to time employ such officers and servants, or appoint such experts or consultants, as it may consider necessary for the performance of its functions, on such terms and conditions as it may deem fit." Section 14 then provides that, "the Authority shall, with the approval of the Council, prescribe the procedure for appointment and terms and conditions of service of its officers and servants." Section 31 vests in the Federal Government the power to make rules for purposes of carrying out the Act and Section 32 vests in NHA the Authority to make regulations. 13. What emerges from the above is that the Executive Board is the authority "competent" to make appointments pursuant to Section 13(1) of the NHA Act. And pursuant to Section 14, the Executive Board has the Authority to lay down the procedure for appointment as well as the terms and conditions of service for the employees of NHA with the approval of the National Highway Council. The Federal Government may make rules in exercise of its authority under Section 31 of the NHA Act. Rule 3 of the NHA Service Rules vests in the Executive Board the authority to create permanent and temporary posts and/or abolish the same for the efficient performance of functions of NHA subject to any instructions issued by the Federal Government from time to time. Rule 9 of the NHA Service Rules provides that appointments to various posts shall be made in accordance with provisions of the Appointment Rules. Rule 12(1) states that initial appointments ought to be made from amongst persons who possess the educational qualifications and experience as prescribed in Schedule IV of the NHA Appointment Rules and further that all vacancies to be filled by initial appointments must be advertised. Rule 13 provides for establishment of Selection Committees for purposes of appointment. Rule 6 of the NHA Appointment Rules identifies the authorities within NHA competent
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to make appointments to various posts. The Chairman NHA is the authority competent to make appointments in BS-16 and 17. And the Executive Board is competent to make appointments in BS- 18 and 19. Rule 12 of the NHA Appointment Rules states that initial appointments in BS-16 to BS 20 shall be made, "on the basis of tests, and interviews, and on the recommendations of the respective selection committees after the vacancies have been advertised in newspapers." Rule 13 provides that a candidate for initial appointment must possess the educational qualifications and experience provided in Schedule IV. 14. The litigation at hand is rooted in the fact that Contractual Employees may have been appointed in certain cases without having been administered written tests and solely on the basis of interviews. It has not been posited before the Court that the Contractual Employees lacked the educational qualification or experience required for purposes of initial appointment to posts against which they are serving. The question that arises, therefore, is whether the lack of subjecting some of the Contractual Employees to a written test is such fatal flaw in their recruitment process that despite having served NHA for over a decade and a half they ought not be regularized in service. 15. In view of the statutory provisions cited above, the Executive Board is the Authority competent to create posts and make appointments. It is not in contention that the appointments of Contractual Employees were made by the Executive Board and/or an authority competent to make the appointments pursuant to the NHA Appointment Rules. The question, therefore, is whether the procedure adopted by NHA while making such appointments, which procedure had the approval of the Executive Board, was such that the Contractual Employees could never have been considered for regularization. The answer that this Court has come to is in the negative. 16. The decision of the Cabinet Sub-Committee to order regularization of some of the Contractual Employees was not backed by law. It was held by the Supreme Court in Syed Mubashir Raza Jafri that the Cabinet Sub-Committee lacked the authority to direct regularization of employees in statutory bodies. It was one thing for the Cabinet Sub-Committee to order regularization of contractual employees or daily wagers within the Federal Government. But where the employees being considered for regularization were serving within a statutory body, a decision with regard to their regularization could only have been made in accordance with the statutory framework under which the statutory body functions. The statutory framework for purposes of NHA has been discussed above. It was for the Executive Board guided by the National Highway Council to make policy decisions with regard to the regularization of Contractual Employees. In doing so, NHA could seek guidance from policies of the Federal Government in view of Sections 13 and 14 of the NHA Act, whereby the legislature has vested the authority to make appointments and prescribe the terms and conditions of service in the Executive Board subject to approval of the National Highway Council. It was for NHA to make such policy decision with regard to its human resource and not the Federal Government. 17. Similarly, to the extent that Rule 3 of the NHA Service Rules vests in the Federal Government the authority to issue instructions to NHA with regard to creation of permanent or temporary posts or abolish the same, such rule would have to be read down to the extent that it seeks to confer on the Federal Government an authority to direct employment of officials within NHA in conflict with Sections 13 and 14 of the NHA Act. Consequently, the Islamabad High Court in the previous round of litigation correctly held that it was not for the Cabinet Sub-Committee to order regularization of employees within NHA, but for NHA to do so as a policy measure in the interest of efficient functioning of NHA as an organization. Likewise, to the extent that the Supreme Court ordered in its order dated 02.06.2016, that the matter of regularization of Contractual Employees be considered by the competent authority. The competent authority for purposes of NHA was the Executive Board, which was to prescribe the procedure for appointment and terms and conditions of service of
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Contractual Employees with the approval of the National Highway Council in terms of Section 14 of the NHA Act. 18. The Executive Board and the National Highway Council have now undertaken an extensive exercise. The Executive Board constituted a Scrutiny Committee to scrutinize the credentials of Contractual Employees. In view of the recommendations of the Scrutiny Committee, the Executive Board then made its own recommendations to the National Highway Council, which have been endorsed and approved in the 38th and 40th meeting of the National Highway Council. In terms of the process adopted, there was created a Scrutiny Committee, which can be considered comparable to a Selection Committee conceived by the NHA Appointment Rules. The Scrutiny Committee then considered the credentials of the Contractual…
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