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Petitioner: Waqas Rafi Awan VS Respondent: National Engineering & Scientific Commission, Islamabad through its Chairman & 2 others
Court Name: Islamabad High Court Judge(s): Athar Minallah, Mohsin Akhtar Kayani, Fiaz Ahmad Anjum Jandran Title:Waqas Rafi Awan vs National Engineering & Scientific Commission,
Islamabad through its Chairman & 2 others Case No.: W.P. No.1502/2019 Date of Judgment:2021-05-06 Reported As: PLJ 2021 Islamabad 330, 2021 IHC 208 Result: Accordingly dismissed Judgment ORDER ATHAR MINALLAH, C.J. Through this consolidated judgment, we will decide the question of maintainability of the petitions listed in "Annexure-A" attached hereto. 2. The petitioners are or had been in the employment of the National Command Authority (hereinafter referred to as the "Authority" ) or one of the Strategic Organizations notified under section 8 of the National Command Authority Act 2010 (hereinafter referred to as the "Act of 2010" ). In all the petitions, the grievances of the petitioners relate to their employment. A preliminary question was raised regarding the jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as the "Constitution of 1973" ) to entertain and adjudicate upon the prayers sought in the petitions. The objection was raised in the context of the amendment made in the Act of 2010 whereby a proviso was inserted in section 15 through the National Command Authority (Amendment) Act, 2016 (hereinafter referred to as the "Amendment Act" ). Before adverting to the arguments raised by the learned counsels for the parties, it would be beneficial to briefly survey the legislative history of the Act of 2010 leading to the insertion of the proviso to section 15 ibid. Legislative History . 3. The Act of 2010 was promulgated and published in the official gazette on 11-03-2010. The object for the enactment of the Act of 2010 was explicitly described in its preamble as the necessity and expediency to establish the Authority for complete command and control over research, development and production and use of nuclear and space technologies and other related applications in various fields and to provide for the safety and security of all personnel, facilities, information, installations or organizations and other activities or matters connected therewith or ancillary thereto. Section 2 defines various expressions. "Employee" is defined in section 2(c) as meaning any official, employee, etc., whether in the service of the Authority or the Strategic Organizations, serving
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or retired and includes those on deputation or secondment within Pakistan or abroad and those studying abroad. Likewise, the expression "Strategic Organization" is defined in section 2(d) as meaning such a body notified by the Authority to be a Strategic Organization and includes the entities mentioned therein. The composition of the Authority has been described in sub section (4) of section 3 while sub section (3) declares the Prime Minister of Pakistan to be its Chairman. Sub section (4) of section 3 describes the other members as follows.- "(4) The other members of the Authority shall be the, (a) Minister for Foreign Affairs; (b) Minister for Defence; (c) Minister for Finance; (d) Minister for Interior; (e) Chairman Joint Chiefs of Staff Committee; (f) Chief of Army Staff; (g) Chief of Naval Staff; and (h) Chief of Air Staff." Section 3(6) provides that the Authority is empowered to form such committees and entities as it may deem fit in order to regulate matters relating to the objects and purposes of the Act of 2010. Section 4 explicitly provides that all the powers and functions shall vest in the Authority . The powers and functions are described in section 7. Clause (a) of section 7 empowers the Authority to exercise complete command and control over all nuclear and space related technologies, systems and matters. The supervision, management and coordination relating to administration, management and control is one of the functions and powers vested in the Authority . Section 7(d) empowers the Authority to prescribe specific terms and conditions of the employees, including but not limited to appointments, removals, promotions, transfers, integrity and reliability assessment and other related matters. Likewise clause (e) empowers the Author ity to create classification amongst emplo yees based on the sensitivity of the functions, nature of assignment, security considerations and having regard to the interest of the security of Pakistan while clause (f) makes it an exclusive domain of the Authority to take measures in relation to the employees in respect of their movement, communication, privacy , assembly or association, in the public interest or in the interest of the integrity , security or defence of Pakistan or friendly relations with foreign states and public order . Section 7(g) explicitly empowers the Authority to prescribe such restrictions and limitations on the employees that may be necessary in the interest of confidentiality of the functions, assignments, jobs etc. performed by them or a class of employees. Ensuring the security and safety of establishments and facilities etc., of the Strategic Organizations, nuclear materials and safeguarding all information and technologies relating thereto is a statutory duty of the Authority . Clause (i) of section 7 makes it an obligation of the Authority to ensure the security and safety of the establishments and facilities etc., of the Strategic Organizations while clause (j) describes the powers in relation to rendering security and ensuring the safety of serving or retired employees. Section 7(m) describes the functions of the Authority regarding non-proliferation, safety , security , accidents, terrorism and any other related matter . Taking measures in respect of movement, communication and interaction etc. of an employee or person who is suspected of an attempt to commit an offence under the Act of 2010 is a crucial statutory duty of the Authority . Section 9(1) has declared that upon notification of a Strategic Organization, its employees will attain the status as employees in the service of the Authority; section 9(2) exclusively empowers the Authority to regulate all the matters relating to the terms and cond itions of service of the employees in the service of the Authority , including their appointment and removal, promotion, transfer , integrity assessment, reliability , security clearance and other related matters. Section 11 provides a statutory right of appeal to an employee if the latter is aggrieved by any order , action or inaction in respect of the terms and conditions of the latters? service. Section 15 provides that the Authority may make rules for carrying out objects of the Act of 2010. The Authority has so far made various rules in the exercise of its powers vested under section 15, which are as follows.- i. Employees Service Rules, 201 1 (Revised) ii. Employees Service Regulations, 2007 (Revised) iii. Service Regulations National Command Authority , 2004
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iv. Employees Ef ficiency & Discipline Rules, 2010 v. Medical Attendance & Treatment Rules, 2010 vi. Delegation of Financial & Administrative Powers for Strategic Commissions/Organizations under NCA, 2007 vii. "Delegation of Powers" - (Financial & Administrative) NESCOM, December 2000 viii. Security Rules, 201 1 ix. Transport Rules, 2010 x. Accommodation Allocation Rules, 2010 xi. Leave Rules, 2016 xii. NCA Employees (Appeal) Rules, 2019 4. When the Bill that ultimately led to the enactment of the Act of 2010 was moved before the Majlis-e-Shoora (Parliament) for consideration, its mover , the then Minster for Parliamentary Affairs had, inter alia, emphasized the sensitive and classified area of work for the protection whereof the Authority was proposed to be established. Reference was specifically made to the UNSC Resolution 1540 so as to emphasise the necessity of conferring certain extraordinary powers. 5. Prior to the amendments made through the Amendment Act, employees of the Authority had been resorting to invoking the extra ordinary jurisdiction of the High Courts under Article 199 of the Constitution. There was ambiguity regarding the status of employees of the Authority as to whether the relationship was in the nature of "master and servant? or that the rules were statutory . This controversy was finally settled by the august Supreme Court in the case titled "Shafique Ahmed Khan and others v. NESCOM through Chairman, Islamabad and others? [PLD 2016 SC 377]. The august Supreme Court declared and held that the rules/regulations governing the terms and conditions of service of employees of the Authority were "statutory?. The relevant portion of the reasoning is reproduced as follows.- "...Yes, these Rules have not been framed with the intervention and approval of the Federal Government, but that would not prevent them from being statutory . Firstly because, approval of the Federal Government was not required either under Section 9 or Section 15 of the Act; secondly because, all those who call the shots were already on the board while framing the Rules and thirdly because, the scope and area of their efficacy not only stretch beyond the employees of the Authority but overarch many other strategic Organizations including nuclear and space related technologies systems and matters, as are mentioned in Sections 8 and 9 of the Act..." 6. It is noted that subsequently the augus t Supreme Court in the case titled 'Mustafa Impex, Karachi and others v. The Government of Pakistan through Secretary Finance, Islamabad and others? [PLD 2016 SC 808], interpreted the expression "Federal Government" in the light of the constitutional provisions. The said judgment was rendered on 18-08-2016. It was held that the expression "Federal Government" meant the Prime Minister and the members of the Federal Cabinet. Moreover , in the case titled 'Pakistan Medical and Dental Council through President and 3 others v. Muhammad Fahad Malik and 10 others? [2018 SCMR 1956 ], the august Supreme Court has further elaborated that the application of the judgment in the "Mustafa Impex" case, supra, would have prospective ef fect. 7. The Majlis-e-Shoora (Parliament) enacted the Amendment Act whereby a proviso was inserted in section 15 of the Act of 2010. The Amendment Act was promulgated and published in the official gazette on 31-12-2016 i.e after the judgment of the august Supreme Court which declared the rules as statutory was rendered. Section 15 of the Act of 2010, as it stands after insertion of the proviso through the Amendment Act of 2010, is as follows.- "15. Power to make Rules.- The Authority may make rules for carrying out the objectives of this Act. "Provided that notwithstanding anything contained in any judgment decree, order , direction or declaration of any Court including the Supreme Court of Pakistan or in this Act or in any other law for the time being in force, the rules, instructions or employees and strategic organizations of the Authority shall be non-statutory unless approved by the Federal Government and Published in the Official Gazette of Pakistan." 8. The Bill for the Amendment Act was introduced in the Majlis-e-Shoora (Parliament) by the then Minister for Defence. The latter had described the object and reasons for the proposed amendments as follows.-
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"It is necessary and expedient to amend the National Command Authority Act, 2010 (V of 2010) (hereinafter the Act) to provide more clearly that the Federal Government shall ensure provision of funds and to further reiterate the original intent of the NCA Ordinance 2007 and NCA Act 2010 that the employees in service of the Authority are not civil servants and that legal relationship of the Authority with its employees is governed under the doctrine of master and servant and further the proposed amendment shall also prevent the abuse of legal process in respect of affairs of state." 9. The respondents, during the course of arguments, had placed before us copies of the parliamentary debates relating to the proposed amendments. Perusal of the parliamentary debates, particularly in the Upper House i.e. the Senate of Pakistan, shows that the Bill was passed after extensive deliberations and was considered by the Standing Committee on Defence twice. In a nutshell, the entire emphasis of the debate was the need to safeguard the Authority from being exposed to weakening of its control and command over the sensitive activities and functions entrusted to it. The stress was in relation to the necessity of protecting the internal administrative management and discipline. The discussion had unambiguously affirmed the intent and purpose of the legislature. There was specific reference to the 'original intent' behind the promulgation of the Act of 2010 and it was explicitly stated that through the amendments the intent was being clarified. The paramou nt object was to affirm that the legislature had intended to declare that 'the employees of the Authority were not civil servants and that the legal relationship of the Authority with its employees was governed under the doctrine of master and servant ...". The concerns regarding security and protection of sensitive information, including details of the personnel engaged in the highly classified activities, had dominated the debate in the Majlis-e-Shoora (Parliament). The legislature, through the amendments, unambiguously wanted its intent to be known and declared with clarity . The intention was to remove any ambiguity regarding the status of the employees. The object was obvious; the Majlis-e-Shoora (Parliament), by inserting the proviso in section 15 of the Act of 2010, intended to remove doubts or ambiguities which had led to rendering the judgment by the august Supreme Court in the case titled "Shafique Ahmed Khan and others v. NESCOM through Chairm an, Islamabad and others? [PLD 2016 SC 377]. It was extraordinary and exceptional for the Majlis-e-Shoora (Parliament) to exercise its competent jurisdiction under the Constitution to remove the ambiguities and explicitly declare the rules relating to employees as non-statutory . It was a legislative fiat to neutralize and overcome the ef fect of the judgments of the superior courts. Contentions of the Petitioners. 10. With the consent of the learned counsels, the arguments on behalf of all the petitioners were advanced by Mr Muhammad Shoaib Shaheen, ASC. He has contended that; the law laid down by the august Supreme Court in the case of 'Shafique Ahmed Khan and others v. NESCOM through Chairman, Islamabad and others? [PLD 2016 SC 377] continues to be operative and in the field despite the insertion of the proviso to section 15 through the Amendment Act; paragraph 9 of the said judgment remains unaffected because the insertion of the proviso without amending the other relevant provisions is of no consequence; the Amendment Act was promulgated to nullify the law laid down by the august Supreme Court and by doing so the legislature has violated the fundamental rights guaranteed under Articles 9, 10A, 18 and 25 of the Constitution; a law laid down by the august Supreme Court cannot be nullified or annulled through an amendment unless it is for bonafid e reasons and intent; the vested right of the employees could not be taken away by giving retrospective effect to the amendment; the Amendment Act and the insertion of the proviso to section 15 is ultra vires the Constitution and the law laid down by the august Supreme Court in the cases titled 'Muhammad Tariq Badr and another v. National Bank of Pakistan and others? [2013 SCMR 314], 'Contempt Proceedings Against Chief Secretary , Sindh and others? [2013 SCMR 1752 ], 'Shafique Ahmed Khan and others v. NESCOM through Chairman, Islamabad and others? [PLD 2016 SC 377]; the accrued rights could not have been taken away and reliance in this regard has been placed on the case titled 'Muhammad Tariq Badr and another v. National Bank of Pakistan and others? [2013 SCMR 314]; the insertion of the proviso was beyond the scope of an amendment; the amendment, whereby the proviso was inserted, was not a bonafide legislative act of the Majlis-e-Shoora (Parliament). 11. Mr Sajeel Sheryar Swati, AHC, has appeared on behalf of some of the petitioners and has contended that; the latter have raised grievances relating to refusal on the part of the Authority and the Strategic Organizations to
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regularize their services; regularization does not come within the ambit of "terms and conditions? of service; reliance has been placed on the judgment of the august Supreme Court, dated 21-01-2020, passed in Civil Petitions No.1762 and 1763 of 2016, titled 'Administrative Officer, KCP Workshops (PAEC), Khushab and Another v. Nazir Ahmed and others?, "Messrs State Oil Company Limited v. Bakht Siddique and others? [2018 SCMR 1181], 'Syed Faisal Ali and 16 others v. Federation of Pakistan through Secretary Water and Power Development Authority Islamabad and 4 others? [2019 PLC (CS) 751], "Pir Imran Sajid and others v. Managing Director/General Manager (Manager Finance) Telephone Industr ies of Pakistan and others? [2015 SCMR 1257 ], "Pakistan International Airlines Corporation through Chairman and others v. Samina Masood and others? [PLD 2005 SC 831], "The Chairperson, National Commission for Human Development and others v . Abdul Jabbar Memon and others? [2018 PLC (C.S.) Islamabad 73]. 12. One of the petitioners, namely Ghulam Murtaza Dahir , has appeared in person and has adopted the arguments advanced on behalf of the petitioners. Contentions on behalf of the Respondents. 13. Mr Ahmer Bilal Soofi, ASC, has appe ared on behalf of the Authority and has argued that the insertion of the proviso through the Amendment Act was validly made because the Majlis-e-Shoora (Parliament) was competent to do so; the effect of the judgment of the august Supreme Court in the case titled "Shafique Ahmed Khan and others v. NESCOM through Chairman, Islamabad and others? [PLD 2016 SC 377] was to declare the rules/regulations governing the terms and conditions of service of employees of the Authority as statutory; the said declaration had excluded the employees of the Authority from the ambit of the expression "master and servant"; the Authority and the notified Strategic Organ izations under its jurisdiction are entruste d with highly sensitive functions on behalf of the State; the work and activities carried out by the Authority and the Strategic Organizations is of paramount public importance; it is relatable to national security; the employees of the Authority are selected after careful scrutiny and their salary and privileges are more favourable than persons employed in other organizations; the employees, in order to redress their grievances relating to their employment, have been provided with various forums; the right of appeal and review is provided under the law; the amendm ent, whereby the proviso was inserted, was not intended to deny remedies to the employees but was for the purpose of safeguarding the security of the highly sensitive programmes; judicial review of grievances relating to employment disputes of the employees could expose the Authority and the Strategic Organizations to leakage of sensitive information and relating to personnel working in the organizations; the Authority has always taken care of its employees and their welfare; the empathy of the Authority towards its employees is evident from the fact that multip le forums have been created for resolution of disputes/grievances relating to employment; the Majlis-e-Shoora (Parliament) is competent to declare the status of employees and determine their relationship with their employers, as established under the Act of 2010; the right of access to justice is not denied to the employees merely because they have a relationship of "master and servant?; the Majlis-e-Shoora (Parliament) is competent to overturn a pronouncement or judgment of the superior judiciary; reliance has been placed on the cases titled 'Haji Ghulam Rasul and others v. Government of the Punjab through Secretary , Auqaf Department, Lahore? [2003 SCMR 1815 ], 'Zaman Cement Company (Pvt) Ltd v. Cent ral Board of Revenue and others? [2002 SCMR 312], 'Messrs Mamukanjan Cotton Factory v. The Punjab Province and others? [PLD 1975 SC 50], 'Baz Muhammad Kakar v. Federation of Pakistan through Ministry of Law and justice and others? [PLD 2012 SC 923]; it is the prerogative of the Majlis-e-Shoora (Parliament) to declare the status of the employees and the latters' relationship with an entity established through a statute; reliance has been placed on the case titled "Anwar Hussain v. Agricultural Development Bank of Pakistan and others'[ PLD 1984 SC 194], "Pakistan Red Crescent Society and another v. Syed Nazir Gillani' [PLD 2005 SC 806]; it was essential for the purposes of effective management and control of the employees and compliance with the UNSC Resolution 1540 to prevent information relating to the personnel etc. of the Authority and its strategic organizations from becoming public; in order to achieve the said purpose, it was inevitable to declare the status of the employees and relationship with the employer as being in the nature of 'master and servant'; the scheme of the Act of 2010 and the proviso inserted through the Amendment Act unambiguously establishes the intent of the legislature.
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14. The learned counsels have been heard and the record perused with their able assistance. This Court' s Opinion.- 15. The petitioners are serving or had served as employees of the Authority or one of its notified Strategic Organizations. They have invoked the extra ordinary jurisdiction of this Court under Article 199 of the Constitution, raising grievances which relate to their employment. As already noted above, the controversy regarding the status of the rules framed by the Authority' as to whether they were statutory and, thus, as a corollary that the grievances relating to employment disputes were amenable to the jurisdiction of a High Court under Article 199 of the Constitution, was settled by the august Supreme Court in the judgment titled "Shafique Ahmed Khan and others v. NESCOM through Chairman, Islamabad and others? [PLD 2016 SC 377]. The reasoning of the apex Court for declaring the rules as statutory have been reproduced above. The said judgment was rendered on 21-01-2016. Subsequently a Bill was introduced in the Majlis-e-Shoora (Parliament). It was referred to the Standing Committee on Defence twice. After being debated extensively , the Bill was passed by both the Houses and, consequently , it was assented to by the President and notified in the official gazette on 31-12-2016 as the Amendment Act. A proviso was inserted in section 15 of the Act of 2010. It is obvious from the parliamentary debates and the language used by the legislature that the intent was to explicitly declare the status of the rules relating to employees and by implication the effect of the judgment of the august Supreme Court was neutralized and overcome. The Majlis-e-Shoora (Parliam ent), in fact, intended to unambiguously clarify and reiterate its 'original intent' in promulgating the Act of 2010. It was obvious from the statement of the mover of the Bill which led to the enactment of the Amendment Act that it had always been the intention of the Majils-e-Shoora (Parliament) that the employees of the Authority would enjoy the status of 'master and servant'. The expression 'master and servant' is not in any manner demeaning nor connotes a degrading status. It refers to a generic legal phrase having specific consequences such as employment disputes are not amenable to the jurisdiction of a High Court under Article 199 of the Constitution or that when such a relationship exists between an employer and employee then in case of termination the latter cannot claim a right to be reinstated but would be entitled to ask for damages if he/she is able to establish being wrongfully removed. These principles are imbedded in our jurisprudence and reference in this regard may be made to the cases of 'The Principal, Cadet College, Kohat and another v. Muhammad Shoab Qureshi' [PLD 1984 SC 170], 'Sindh Road Transport Corporation through its Chairman v. Muhammad Ali G. Khokhar' [1990 SCMR 1404 ], 'Raziuddin v. Chairman, Pakistan International Airlines Corporation and 2 others' [PLD 1992 SC 531], 'Muhammad Umar Malik v. The Muslim Commercial Bank Ltd. through its President, Karachi and 2 others' [1995 SCMR 453], 'Pakistan Red Crescent Society and another v. Syed Nazir Gillani' [PLD 2005 SC 806], 'Chairman, WAPDA and 2 others v. Syed Jamil Ahmed' [1993 SCMR 346], "Anwar Hussain v. Agricultural Development Bank of Pakistan and others' [PLD 1984 SC 194], 'Gohar Ali and another v. Messrs Hoechst Pakistan Limited' [2009 PLC (CS) 464], 'Messrs Malik and Haq and another v.…
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