Legal Principle & Question Decided

Ruling Summary: This decision was rendered by the Islamabad High Court on 2024-09-20, officially reported as 2024 IHC 180. In this matter between Dr. Abdur Rashid and Drug Regulatory Authority of Pakistan 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.

Full Judgment Text & Judicial Ruling

Court Name: Islamabad High Court Judge(s): Miangul Hassan Aurangzeb Title: Dr. Abdur Rashid vs Drug Regulatory Authority of Pakistan and others Case No.: W.P.No.541 of 2020 Date of Judgment:2024-09-20 Reported As: 2024 IHC 180, 2025 PLC (C.S.) 268 Result: Petition Disposed of

JUDGMENT

JUDGMENT MIANGUL HASSAN AURANGZEB, J:- Through this judgment, I propose to decide writ petitions No.541/2020, No.558/2020 and No.634/2020 as the petitioners in the said petitions are predominantly seeking the same relief. 2. Through writ petition No.541/2020 filed on 18.02.2020 the petitioner, Dr. Abdur Rashid, who is serving as Deputy Director in the Drug Regulatory Authority of Pakistan ("DRAP") impugns the office order dated 11.02.2020 issued by DRAP whereby a Departmental Promotion Board was constituted to consider Additional Directors serving in DRAP for promotion to the posts of Director. The Board's meeting was scheduled to be held on 20.02.2020. The petitioner has also prayed for a direction to the Federal Government to frame rules pursuant to Section 7(m) of the Drug Regulatory Authority of Pakistan Act, 2012 ("the DRAP Act") besides assailing the vires of the Drug Regulatory Authority of Pakistan Employees Service Regulations, 2015 ("the 2015 Regulations"). 3. Through writ petition No.558/2020 filed on 18.02.2020, eight petitioners serving as Deputy Directors and Federal Inspectors of Drugs in DRAP have sought numerous reliefs including a declaration to the effect that the composition of DRAP under Section 4(1) of the DRAP Act is illegal; and that the 2015 Regulations are ultra vires the provisions of the DRAP Act. These petitioners have also sought a direction to DRAP that they be considered for promotion on the basis of the original seniority existing prior to the establishment of DRAP. 4. Through writ petition No.634/2020 filed on 25.02.2020, three petitioners serving as Assistant Directors in DRAP have sought more or less the same reliefs as the ones sought by the petitioners in

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writ petition No.558/2020. Additionally, these petitioners also seek a declaration to the effect that the absorptions of civil servants in DRAP, in the absence of service rules, are illegal. 5. "Authority" is defined in Section 2(iv) of the DRAP Act to mean DRAP established under Section 3 of the said Act. Section 3(1) provides that the Federal Government shall, by notification in the official Gazette, establish an Authority to be known as the Drug Regulatory Authority of Pakistan, to carry out the purposes of this Act, whereas Section 4(1) provides that the Authority shall consist of a full time Chief Executive Officer ("CEO") and thirteen Directors who shall be appointed by the Federal Government on the recommendation of the Policy Board. In exercise of the powers conferred by Section 3, the Federal Government vide notification dated 28.11.2012 established DRAP to carry out the purposes of the DRAP Act. As per Section 9(1) of the said Act, the general direction, administration and monitoring of the Authority shall vest in the Policy Board which shall consist of fifteen members. In the judgment, the word "Authority" shall be referred to as "DRAP." 6. Messrs G.M. Chaudhary and Ali Nawaz Kharal, Advocates, learned counsel for the petitioners, drew the attention of the Court to Section 4 of the DRAP Act, which provides inter alia that DRAP shall consist of a full time Chief Executive Officer and thirteen Directors who shall be appointed by the Federal Government on the recommendations of the Policy Board; that Section 9(1) of the said Act provides that the general direction, administration and monitoring of DRAP/Authority shall vest in the Policy Board; that the composition of the Policy Board is also provided in Section 9(1) ibid; that Section 14 provides inter alia that the criteria for the recruitment and selection of the employees and officers in DRAP will be determined by the Policy Board according to the prescribed rules; that since Section 14 of the DRAP Act requires the criteria for the recruitment and selection of employees and officers to be determined by the Policy Board according to the rules, and since till date, the rules have not been framed for the said purpose, the criteria, if any, made by the Policy Board, cannot be termed as "according to the rules;" that under Section 7(m), one of the functions of the DRAP is to prescribe rules for seniority, promotion, code of conduct, and terms and conditions of service of its employees; that Section 23 provides that DRAP may, with the approval of the Federal Government, by notification in the official Gazette, make rules for carrying out the purposes of the DRAP Act; and that Section 24 provides that DRAP may, by notification in the official Gazette, and with the approval of the Policy Board, make regulations, for its internal working and terms and conditions of service of the employees not inconsistent with the provisions of the DRAP Act or the rules, for the carrying out of its functions under the DRAP Act. 7. Furthermore, it was submitted that till date, rules governing DRAP's employees' terms and conditions of service have not been made by DRAP with the approval of the Federal Government as required by Section 7(m) read with Section 23 of the DRAP Act; that in terms of Section 15(5)(a) of the DRAP Act, every employee of the Drugs Control Administration ("DCA"), its sub-offices and laboratories was to be given an option by the Federal Government either to continue in their existing pay and service structure as civil servants or to opt for absorption in DRAP within a period of 30 days of the enactment of the DRAP Act; that Section 15(5)(b) provided that all employees who opt to be included in DRAP "under its rules" shall be governed by the DRAP Act and the terms and conditions so prescribed; that the petitioners were not called upon within 30 days of the commencement of the DRAP Act to exercise the option under Section 15(5)(b); that since rules had not been made in accordance with Section 23 of the DRAP Act when the petitioners had been called upon vide office order dated 19.05.2015 to exercise an option, the option exercised by the petitioners to continue to remain as civil servants could not have been treated as a meaningful option; that the petitioners cannot be held to be bound by their option since the same was exercised when no rules in terms of Section 23 of the DRAP Act had been framed; that the terms and conditions for the employees of DRAP, including Directors, could not have been made through regulations as Section 4(2) of the DRAP Act provides for the functions, relevant experience,

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qualifications, terms, and mode and manner of appointment of Directors and related staff in each Division of DRAP to be made by the Federal Government on the recommendations of the Policy Board; and that since Section 24 of the DRAP Act does not require the approval of the Federal Government for the making of regulations, the mode and manner of appointment etc. of Directors could only have been prescribed in rules made with the approval of the Federal Government but not regulations which do not require such approval. 8. Learned counsel for the petitioners further submitted that vide the impugned office order dated 11.02.2020, a Departmental Selection / Promotion Board had been constituted to consider the promotion cases for the post of Director, whereas under Section 4(1) of the DRAP Act, the Directors are to be appointed by the Federal Government on the recommendations of the Policy Board; that the appointment of the Directors without the recommendations of the Policy Board would be without lawful authority; that till date, the Policy Board has not been constituted; and that since the Directors can be appointed only on the recommendations of the Policy Board, which has not been constituted as yet, the appointment process of the Directors sans the Policy Board would be of no legal consequence. 9. On the other hand, Mr. Adnan Saboor Rohaila, learned counsel for DRAP, submitted that prior to the enactment of the DRAP Act, the DCA, its field offices and its laboratories were functioning under the administrative control of the erstwhile Ministry of Health; that after the devolution of the said Ministry, the DCA, its field offices and laboratories along with its officers and officials were placed on the strength of the Cabinet Division for further placement in the Drug Regulatory Agency ("DRA") which was yet to be constituted; that on 16.02.2012, the DRA was established through an Ordinance and pursuant to Section 3(5) thereof, the DCA, its field offices and laboratories were to be part of the DRA; that after the promulgation of the Drug Regulatory Agency Ordinance, 2012, the administrative control over the DRA was transferred from the Cabinet Division to the National Regulations Services Division through memorandum dated 03.04.2012; that after DRAP was established on 28.11.2012 pursuant to the provisions of the DRAP Act, the DCA, its field offices and laboratories became part of DRAP; that under Section 15(5)(a) of the DRAP Act, every employee of the DCA, its field offices and laboratories was required to exercise an irrevocable option either to continue in his existing pay and service structure as a civil servant or to opt for absorption in DRAP within a period of thirty days of the commencement of the said Act; that such option was not given to the petitioners within a period of thirty days of the commencement of the said Act; that in order to address this difficulty, notification dated 11.12.2012 was issued by the Ministry of National Regulations and Services, whereby the thirty days levied for exercising the said option was to be counted from the date of the notification of the Rules pertaining to pay, perks, and service structure of DRAP; that the 2015 Regulations made under Section 24 of the DRAP Act were approved by the Policy Board and duly vetted by the Establishment Division, Finance Division and the Law & Justice Division; that the said Regulations were published in the official Gazette on 21.04.2015; that vide letter dated 19.05.2015, the Ministry of National Health Services, Regulations and Coordination ("Ministry of NHSR&C") called upon the officers of the DCA, its field offices and laboratories to exercise an irrevocable option by 18.06.2015 either to continue in their present pay and service structure as civil servants or to be absorbed in DRAP; and that after such employees exercised their options, two separate cadres were created for the employees of DRAP and the employees who opted to remain civil servants through notifications dated 19.04.2016. 10. Learned counsel for DRAP further submitted that at the time when the DCA was operational under the administrative control of the erstwhile Ministry of Health, there were four posts in BS-20 (three posts of Drug Controllers and one post of Costs Accountant); that DRAP has been trying to fill the thirteen vacant posts of Directors and in this regard, the Hon'ble Supreme Court has also issued orders; that in January, 2022, the case of the petitioners/Dr. Abdur Rashid for promotion to the post

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of Director (BS-20) was forwarded by the Ministry of NHSR&C to the CSB; that the petitioners have no valid ground to challenge DRAP's decision to constitute a Departmental Promotion Board to fill the posts of Director (BS-20) through promotion; that the 2015 Regulations have no application regarding the promotion of civil servants in DRAP to the post of Director (BS-20); that the two separate cadres of civil servants and DRAP employees are governed by different terms and conditions and have no relation in terms of seniority and promotion; that there are three posts of Directors (BS-20) reserved for civil servants; that the promotion of DRAP employees and civil servants to the post of Director (BS-20) is to be made at the ratio of 80:20; and that the promotion of DRAP's employees to the post of Director did not prejudice the petitioners in any manner. Learned counsel for DRAP prayed for the writ petitions to be dismissed. 11. Learned counsel for the employees of DRAP who had not remained civil servants at any stage or had so remained but had opted for absorption in DRAP adopted the arguments of the learned counsel for DRAP. 12. I have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance. The facts leading to the filing of the instant writ petitions have been discussed in sufficient detail in paragraphs 2 to 5 above and need not be recapitulated. 13. Prior to the enactment of the Constitution (Eighteenth Amendment) Act, 2010, the DCA, its field offices and laboratories were under the administrative control of the erstwhile Ministry of Health. After the devolution of the said Ministry to the Provinces as a consequence of the Constitution (Eighteenth Amendment) Act, 2010, the Cabinet Division issued notification dated 29.07.2011 by virtue whereof Ministries including the Ministry of Health ceased to exist with effect from 01.07.2011 and their functions stood devolved to the Provinces. Furthermore, the officers employed in the DCA, its field offices and laboratories were placed on the strength of the Cabinet Division "for further placement in the proposed Drug Regulatory Agency on its establishment." The list of officers to be placed on the strength of the Cabinet Division was annexed with the said notification. 14. The DRA was established under the provisions of Drug Regulatory Agency Ordinance, 2012, which was promulgated on 16.02.2012. Section 3(5) of the said Ordinance provided that the DCA, its field offices and laboratories shall become part of the DRA. By virtue of notification dated 12.03.2012 issued by the Cabinet Division, the DRA was established to carry out the purposes of the said Ordinance. Furthermore, the said notification provided that all the existing officers and staff of the DCA, its sub-offices and laboratories temporarily stand transferred to the DRA. According to the memorandum dated 03.04.2012 issued by the Cabinet Division, the Prime Minister had transferred the administrative control over DRA from the Cabinet Division to the National Regulations and Services Division. 15. DRAP was established under the provisions of the DRAP Act which was enacted on 13.11.2012. By virtue of Sections 3(4) and 15(1) of the said Act, the DCA, its sub-offices and laboratories became part of DRAP. Furthermore, by virtue of Section 15(5)(a) of the said Act, all employees of the DCA, its sub-offices and laboratories under the Federal Government, who were in employment on the date of the said enactment, were required to exercise an irrevocable option either to continue in their existing pay and service structure as civil servants or to opt for absorption in DRAP within a period of 30 days from the date of commencement of the said Act, i.e. 13.11.2012. Section 15(5)(b) provided that all employees who opt to be included in DRAP "under its rules" shall be governed by the DRAP Act and the terms and conditions so prescribed. Vide letters dated 28.11.2012 and 03.12.2012, the Ministry of National Regulations and Services called upon all the employees of the DCA, its sub- offices and laboratories to exercise their option either to remain civil servants or to be absorbed in DRAP. The option was required to be exercised by 07.12.2012 on a prescribed format. There is nothing on the record to show that options were exercised in terms of Section 15(5)(a) within the said deadline.

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16. Section 36 of the DRAP Act provided inter alia that if any difficulty arises in giving effect to any of the provisions of the said Act, the Federal Government may make such order by notification in the official Gazette, not inconsistent with the provisions of the said Act for the purposes of removing the difficulty. In exercise of the powers conferred by Section 36 of the DRAP Act, the Federal Government, through notification dated 11.12.2012, extended the date for every employee of the DRA who was required under Section 15(5)(a) and (b) to exercise an irrevocable option either to continue in their existing pay and service structure as civil servants or to opt for absorption in DRAP. Furthermore, it was provided that the said period of 30 days shall be counted from the date of the notification of "all rules" pertaining to pay, perks and service structure of DRAP. The said notification was issued for the removal of difficulties arising out of the application of Section 15(5)(a) and (b) of the DRAP Act. 17. Section 23 of the DRAP Act provides that DRAP may, with the approval of the Federal Government, by notification in the official Gazette, make "rules" for carrying out the purposes of the DRAP Act, whereas Section 24 provides that DRAP may, by notification in the official Gazette, with the approval of the Policy Board, make "regulations" for its internal working and terms and conditions of employees not inconsistent with the provisions of the DRAP Act, or the Rules, for the carrying out of its functions under the said Act. It may also be mentioned that Section 7(m) of the DRAP Act makes it one of the functions of DRAP to prescribe "rules" for seniority, promotion, code of conduct, and terms and conditions of service of its employees. 18. It is an admitted position that at no material stage has DRAP made rules in exercise of the powers conferred by Section 23 or Section 7(m) of the DRAP Act to provide for seniority, promotion, code of conduct, and terms and conditions of service of its employees. However, in exercise of the powers conferred by Section 24 of the DRAP Act, DRAP, with the previous approval of the Policy Board, has made the 2015 Regulations. These regulations were issued on 21.04.2015 through notification (SRO 49(KE)/2015). 19. The preamble to the 2015 Regulations notified on 21.04.2015 mentions the approval of the Federal Government instead of the Policy Board. To cure this anomaly, the 2015 Regulations were amended through notification (SRO 97(KE)/2015), dated 10.09.2015 issued by DRAP. Through the said notification, the preamble of the 2015 Regulations was amended to substitute the words "Federal Government" with the words "Policy Board." The effect of this amendment would be that the 2015 Regulations were made with the previous approval of the Policy Board and not the Federal Government. This is because paragraph 1 of the notification dated 10.09.2015 makes it clear that the substitution of the words "Federal Government" with the words "Policy Board" in the preamble of the 2015 Regulations "shall be deemed always to have been so substituted." 20. Vide office order dated 19.05.2015 (which is within a period of 30 days of the date when the 2015 Regulations were notified), DRAP directed all officers of the DCA, its sub-offices and laboratories to exercise an irrevocable option in terms of Section 15(5)(a) of the DRAP Act either to continue in the existing pay and service structure as civil servants or to be absorbed in DRAP. The option was required to be exercised by 18.06.2015. 21. After options were exercised by such employees including the petitioners, DRAP, on 19.04.2016, issued two notifications bearing No.F.2- 26/2014-Admin-I(1) and No.F.2-26/2014-Admin-I(2) - the former bearing the list of the employees who had opted to become the employees of DRAP and the latter bearing the list of the employees who had opted to continue in their existing pay and service structure as civil servants. These notifications were published in the official Gazette on 19.07.2016. As many as 265 employees in scales ranging from BS-02 to BS-20 opted to continue serving as civil servants. DRAP created two separate cadres - one for its employees who had opted to remain civil servants to be governed by the provisions of the Civil Servants Act, 1973 and the rules made thereunder, and the other for its employees who had opted to be absorbed in DRAP.

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22. The expression "for carrying out the purposes of [the DRAP] Act" in Section 23 are not without significance and implies that where the provisions of the DRAP Act require for a certain matter to be prescribed by rules made by DRAP and approved by the Federal Government, it must be a fortiori be so prescribed through rules and not regulations or any other form of subordinate legislation which are not required by the provisions of the DRAP Act to be approved by the Federal Government. Where, however, the provisions of the DRAP Act require something to be done or prescribed by the Federal Government, it is the Federal Government that is to do such a thing or make such prescription regardless of the fact that Section 23 only empowers the Federal Government just to "approve" the rules made by DRAP. For instance, Section 4(1) of the DRAP Act provides that DRAP shall consist of a full CEO and thirteen Directors who shall be appointed by the Federal Government on the recommendations of the Policy Board and "whose qualifications, terms and conditions shall be such as may be prescribed." The word "prescribed" has been defined in Section 2(xxix) of the said Act to mean prescribed by rules or regulations under the DRAP Act. Now, it could be argued that the qualifications and terms and conditions of the Directors could be prescribed through regulations, but this argument would not be in consonance with Section 4(2) of the DRAP Act which provides inter alia that the Federal Government, on the recommendations of the Policy Board, is to "prescribe [the] functions, the relevant experience, qualification, terms, mode and manner of appointment of Directors." Therefore, it is the Federal Government and none other that is to prescribe, on the recommendations of the Policy Board, the Directors' functions, relevant experience, qualifications, terms, and mode and manner of appointment. Although Section 24 does not require the approval of the Federal Government for the regulations made by DRAP, the Federal Government can, in exercise of the powers conferred by Section 4(2) read with Section 23, prescribe rules to provide for the Directors' functions and the relevant experience, qualifications, terms, and mode and manner of appointment, and in doing so, it would be making rules for carrying out the purposes of Section 4(2). Such rules have till date not been made. 23. As per Section 7(l) of the DRAP Act, one of the functions of DRAP is to appoint such employees, consultants, and experts as deemed necessary on "prescribed" terms and conditions including their salaries and remunerations with consultation and approval of the Policy Board. As Section 7(l) does not specifically require such terms and conditions to be prescribed by rules, it could be argued that they could be prescribed by rules made under Section 23 or regulations made under Section 24. The prescription of the terms and conditions etc. of the employees, consultants and experts appointed in DRAP is also one of the functions of DRAP in terms of Section 7(m). This provision specifically empowers DRAP to "prescribe rules for seniority, promotion, code of conduct and terms and conditions of service of its employees." Regulations made by DRAP with the approval of the Policy Board cannot be a valid discharge of DRAP's function under Section 7(m). The prescription required by Section 7(m) is through rules and not regulations. The word "rules" has been defined in Section 2(xxxiii) of the DRAP Act to mean rules made under the said Act, i.e. Section 23 which requires rules to be made by DRAP with the approval of the Federal Government. Without the approval of the Federal Government, the rules made by DRAP even if they have the approval of the Policy Board cannot be held to be rules made under Section 23. Hence, in terms of Section 7(m) rules for the seniority, promotion, code of conduct, and terms and conditions of service of DRAP's employees, can be said to have been prescribed by DRAP only after they have been approved by the Federal Government. 24. Section 14(1) of the DRAP Act provides that DRAP, with approval of the Policy Board, may create posts and appoint such officers, employees, experts, and consultants as it may consider necessary, for the performance of its functions in the prescribed manner. Furthermore, the said Section provides that "the criteria for recruitment and selection of employees and officers will be determined by the Board according to the rules as prescribed." Had the word "regulations" been

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there in Section 14(1) instead of "rules," the Policy Board would have been well within its rights to have provided for the criteria for recruitment and selection of employees and officers in DRAP according to regulations as it has done through the 2015 Regulations. Since the said Section requires the criteria for recruitment and selection…

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