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Petitioner: Shafique Ahmad Khan, etc VS Respondent: NESCOM through its Chairman, Islamabad, JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): Anwar Zaheer Jamali, Mushir Alam, Ejaz Afzal Khan Title:Shafique Ahmad Khan, etc vs NESCOM through its Chairman, Islamabad,
JUDGMENT
Reported As: 2016 P.S.C. 586 Result: Order accordingly Judgment JUDGMENT EJAZ AFZAL KHAN, J. The only controversy articulated at the bar by the learned ASCs for the parties is whether the Rules framed under Section 15 of the National Command Authority Act, 2010 (hereinafter referred to as the Act) are statutory or otherwise. Mr. Ahmer Bilal Soofi, learned ASC appearing on behalf of the National Command Authority contended that the Rules framed under Section 15 of the Act cannot be treated as statutory as they have not been approved by the Federal Government. There are as many as two judgments of this Court rendered in the cases Rector National University of Science and Technology (NUST) Islamabad and others v. Driver Muhammad Akhtar (Civil Appeal No, 495 of 2010, decided on 28th April, 2011) and Muhammad Zubair and others v. Federation of Pakistan through Secretary Mb Defence and others (Civil Petition No, 1563/2013, decided on 26.2.2013) holding them statutory but they are essentially per incuriam inasmuch as the judgments interpreting the provisions of other enactments which are in pari materia with Section 15 of the Act have not been considered. Such precedents, the learned ASC contended, are also sub silentio inasmuch as they have not been fully argued and the judgments interpreti ng the provisions of the other enactments which are in pari materia with Section 15 of the Act have not been cited. 2. The learned ASC by referring to the cases of Muhammad Tariq Badr and another v. National Bank of Pakistan and another (2013 SCMR 314), Zarai Taraqiati Bank Limited v, Said Rehman (2013 SCMR 642), Pakistan Defence Officers Housing Authority and others v, Lt. Col. Syed Jawaid Ahmed (2013 SCMR 1707 ), Shoua Junejo v. PIA (2012 SCMR 1681 ), Muhammad Nawaz v. Civil Aviation Authority and others (2011
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SCMR 523), Pakistan Telecommunication Co. Ltd. through Chairman v. Iqbal Nasir (PLD 2011 SC 132), Abdul Rashid Khan v. Registrar , Bahauddin Zakaria University , Multan (2011 SCMR 944), Pakistan International Airline Corporation v. Tanweer-ur-Rehman, (PLD 2010 SC 676), State Bank of Pakistan v. Muhammad Shafi (2010 SCMR 1994 ), Asad Bashir v. Chairman Board of Intermediate and Secondary Education, Lahore and 2 others (2006 PLC (CS) 110), Pakistan Red Crescent Society v. Syed Nazir Gillani (PLD 2005 SC 806), Zia Ghafoor Pirach v. Chairman, Board of Intermediate and Secondary Education, Rawalpindi (2004 SCMR 35), Muhammad Ishaq Waheed Butt v. Chairman, Bank of Punjab (2003 PLC (C.S.) 963), Pakistan International Airlines Corporation (RAC) v. Nasir Jamal Malik (2001 SCMR 934), Ijaz Hussain Suleri v. The Registrar and another (1999 SCMR 2381 ), Chairman, Pakistan Council of Scientific and Industrial Research, Islamabad v. Khalida Razi (1995 SCMR 698), Chairman WAPDA v. Jameel Ahmed (1993 SCMR 346), Raziuddin v. Chairman, PIA Corpn. (PLD 1992 SC 531), Karachi Development Authority v. Wali Ahmed Khan (1991 SCMR 2434 ), Abdul Ghaf far v. WAPDA (1990 SCMR 1462 ), Sindh Road Transport Corporation Chairman v. Muhammad Ali G. Khohar (1990 SCMR 1404 ), Principal Cadet College v. Muhammad Shoaib Qureshi (PLD 1984 SC 170), Anwar Hussain v. ADBP (PLD 1984 SC 194), Muhammad Yusuf Shah v. Pakistan International Airlines Corporation (PLD 1981 SC 224) and R.T.H. Janjua v. National Shipping Corporation (PLD 1974 SC 146); contended that jurisdiction of the High Court cannot be invoked under Article 199 of the Constitution of Islamic Republic of Pakistan where the Rules are non-statutory . Learned ASC by referring to a two-member bench judgment rendered in the case of Muhammad Nawaz v. Civil Aviation Authority and others (2011 SCMR 523) contended that Rules made without the intervention and approval of the Federal Government cannot be termed as statutory , therefore, their violation is not amenable to the Constitutional jurisdiction of the High Court. The learned ASC by referring to another two-member Bench judgment rendered in the case of State Bank of Pakistan v. Muhammad Shafi (2010 SCMR 1994 ) contended that where by virtue of an amendment in Section 54 of the State Bank of Pakistan Act, 1956, the words"subject to the approval of the Federal Government were omitted " the Rules framed after the said amendment in the Section were not treated as statutory . The learned ASC by referring to a three-member Bench judgment rendered in the case of Pakistan Red Crescent Society v. Syed Nazir Gillani (PLD 2005 SC 806) contended that the Rules framed by the Red Crescent Society under the rule-making powers without the intervention of the Federal Governmen t were held to be non-statutory , therefore, their violation was not amenable to the writ jurisdiction of the High Court. The learned ASC by referring to a three-member Bench judgment rendered in the case of Sindh Road Transport Corporation Chairman v. Muhammad All G. Khokhar (1990 SCMR 1404 ) contended that Sindh Road Transport Corporation Service Rules, 1971 were treated as non-statutory as they were not approved by the Authority delegating such power notwithstanding language used in the rule-making provision of the Ordinance was almost similar to the language used in Section 15 of the Act, therefore, the judgments rendered in the cases of Rector National University of Science and Technology (NUST) Islamabad and others v. Driver Muhammad Akhtar and Muhammad Zubair and others v. Federation of Pakistan through Secretary M/o. Defence and others (Supra) have no binding or even persuasive force. The judgments rendered earlier on similar proposition, the learned ASC maintained, could not be ignored by subsequent benches with the same number of Judges. The learned ASC to support his contention placed reliance on the cases of Pir Bakhsh represented by his legal heirs and others v. The Chairman, Allotment Committee and others (PLD 1987 SC. 145), Multiline Associates v. Ardeshir Cowasjee and two others (PLD 1995 SC 423) and Chaudhry Muhammad Saleem v. Fazal Ahmad and two others (1997 SCMR 315). The learned ASC next contended that while enacting Section 15 of the Act, the legislature was aware of the dicta and trend of the Supreme Court interpreting the provision of different enactments which are in pari materia with Section 15 of the Act, otherwise it would have phrased the section differently . Restraint on the part of the Government, the learned ASC argued, to gazette the Rules in terms of Section 20A of the General Clauses Act would also show as to what status the legislature intended to assign to the Rules. Approval of such Rules, the learned ASC contended, by the Federal Government to give them statutory attire in view of Rule 14 of the Rules of Business is also a must, therefore, in the absence of such approval they cann ot be treated as statutory . The scheme of the Act, the learned ASC maintained, also shows that the legislature intended to make it autonomous on
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all accounts. Sections 9 and 21 of the Act, the learned ASC maintained, further show that the legislature wanted to make the orders of the Authority immune from justiciability . The learned ASC while giving finishing touch to his submissions contended that the purpose behind conferring full autonomy on NCA was to enable it to have effective control over its activities and maintain secrecy of its sensitive programmes in line with Pakistan's International Legal Obligation, in particular UNSC Resolution 1540, which could not have been achieved otherwise. 3. As against that learned ASCs appearing from the other side contended that when it has been held in the cases of Rector National University of Science and Technology (NUST), Islamabad and others v. Driver Muhammad Akhtar and Muhammad Zubair and others v. Federation of Pakistan through Secretary M/o. Defence and others (supra) that Rules framed under Section 15 of the National Command Authority Act, 2010 are statutory , the controversy has been set at rest, therefore, another exercise to determine their status is not called for. The learned ASC by referring to Section 3 of the Act contended that where the Chairman of the Authority is the Prime Minister and its other Members include, besides Minister for Foreign Affairs, Minister for Defence, Minister for Finance, Minister for Interior , Chairman Joint Chiefs of Staff Committee, Chief of Army Staff, Chief of Naval Staff and Chief of Air Staff, approval of the Rules by any other Ministry is hardly called for. The learned ASC next contended that when the provision of this Act by virtue of its provision contained in Section 21 has been given overriding effect over any other law for the time being in force in general and the Civil Servants Act, 1973, Pakistan Atomic Energy Commission Ordinance, 1965, Pakistan' Space and Upper Administration Commission Ordinance, 1981, or any other law or Rules made thereunder in particular , it has to reign supreme. He then contended that when the very purpose of making Rules is to carry out the purposes of the Act it would be a contradiction in terms to shear them of statutory status. The learned ASC next contended that publication of a statutory instrument or a notification in the official Gazette is not mandatory in every case, therefore, its non-compliance cannot rob the instrument or the notification of its statutory force. Reliance was placed on the cases of Saghir Ahmed through legal heirs vs. province of Panjab through Secretary , Housing and Physical Planning Laho re and others (PLD 2004 SC 261). The learned ASCs lastly contended that where the Rules prescribe the terms and conditions of service and provide safeguards against -their violation, they are statutory by all means and have to be treated as such. 4. We have anxiously considered the submissions of the learned ASCs for the parties, their possible import, implication and amplitude and have also gone through the statutes and the case-law cited at the bar . 5. Before we appreciate the arguments of the learned ASCs for the parties and answer the questions so raised, it is worthwhile to see the object of the National Command Authority Act, 2010 which is fully enunciated in its preamble and thus reads as under:--- "THE NA TIONAL COMMAND AUTHORITY ACT, 2010 ACT NO. V OF 2010 An Act to provide for the constitution and establishment of National Command Authority WHEREAS, it is necessary and expedient to establish an Authority for complete command and control over research, development, 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 organ izations and other' activities or matters connected therewith or ancillary thereto. It is hereby enacted as follows:--- 1.Short title, commencement, applicatio n and extent. - (1) This Act may be called the National Command Authority Act, 2010. (2) This Act shall come into force at once and shall be deemed to have taken effect on the 13th December , 2007. (3) It extends to the whale of Pakistan and shall apply to any person who commits any offence under this Act, wherever , he may be. Section 2 of the Act defines the key expressions of the Act which reads as below:--- 2.Definitions.-- In this Act, unless there is anything repugnant in the subject or context,-- (a) Authority" means the National Command Authority established under Section 3 of this Act; (b) "Chairman" means the Prime Minister of the Islamic Republic of Pakistan; (c) "employee" means any official, employee etc. whether in the service of the Authority or the Strategic Organizations, serving or retired and includes those on deputation or secondment within. Pakistan or abroad, and
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those studying abroad; (d)"Strategic Organization" means such body notified by the Authority to be a Strategic Organization and includes Pakistan Atomic Energy Commission Dr. A.Q. Khan Research Laboratories (KRL) and Space and Upper Atmosphere Research Commission; and (e) "prescribed" means prescribed by Rules under the Act. 6. Section 3 of the Act deals with constitution and establishment of the Authority which reads as under:--- The Chairman of the Authority- shall be the Prime Minister of Pakistan. (4) The other members of the Authority shall be (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" 7. Section 7 deals with the powers and functions of the Authority which reads as under:-- "Powers and functions of the Authority .-- The Authority shall have the powers to perform all such functions that are necessary to implement the objects and purposes of this Act which include, without being limited, to the following, namely:--- (a) to exercise complete command and control over all nuclear and space related technologies, systems and matters; (b) to supervise, manage and co-ordi nate the administration, management, control and audit of budget, programmes and projects etc., of the Strategic Organizations; (c) to authorize undertaking of specialized scientific grid technological Work; (d) 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; (e) to create classification amongst employees based on the sensitivity of the functions, nature of assignment, security considerations and in the interest of security of Pakistan; to take measures regarding employees in respect of their movement, Communication, privacy , assembly or association, in the public interest or in the interest of integrity , security or defence of Pakistan or friendly relations with foreign states and public order; (g) to place such restrictions and limitation on the employees that are necessary in the interest of the confidentiality of the functions, assignments, jobs etc., being performed by the said employees or the class of employees; (h) to ensure security and safety of nuclear , establishments, nuclear materials and to. safeguard all information and technology relating to said matters; (i) to ensure security and safety establishments and facilities etc of the Strategic Organizations; (j) to render security and ensure safety of serving or retired employees or any other person; (k) authorize possession and use of fire-arms to security force personnel who are in the service of the Authority; to take actions, issue appropriate orders and instructions as it may deem fit or in order to advance or achieve the purposes of its establishment and in order to facilitate' the performance of actions or functions that are incidental and ancillary thereto; (m) take implementing measures and assist the Federal Government pursuant to any obligation on Pakistan relating to non-proliferation, safety , security , accidents, terrorism and any other related matters; (n) to take measures in respect of the movement, communication and interaction etc., of any employee or person who is suspected of an attempt to commit an offence under this Act; (o) to carry out the functions of fact finding, inquiry , investigation prosecution etc., of offences under the Act and to that end authorize any official of the Authority or entrust any or all of the said functions to any official outside the Authority partly or fully , as the case may be;
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(p) to declare application of any other existing law. provisions of law, Rules, Regulations etc., to its employers, procedures establishment, sites, building. lands, assets, equipments, partly or fully , as the case may be: (q) to acquire property movable or immovable in its own name or in the name of a designated official or a Strategic Organization; and (r) to enter into agreements, contracts and other like transactions; 8. Section 9 of the Act, deals with the employees of the Authority and those who shall be deemed to be its 'employees, their terms and conditions of services and how shall they be categorized. It thus reads as under-- "9. Employees of Authority .-Notwithstanding anything contained in any other law, judgment of any Court or Tribunal for the time being in force or any procedure etc., hitherto followed by the Authority , all employees and officials working in the Strategic Organizations, upon notification of the said Organizations under Section 8, shall with immediate ef fect be deemed to be the employees in the service of the Authority: Provided that no employee shall be treated on terms and conditions less favourable to the ones which he was availing as per his terms and conditions of employment. (2) The Authority shall regulate all the matte rs relating to terms and conditions of the 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: Provided that the employees working in the service of the Authority who are subject to the Pakistan Army Act, 1952 (XXXIX of 1952), Pakistan Air Force Act, 1953 (VI of 1953) and Pakistan Navy Ordinance, 1963 (XXXV of 1963), shall also be governed by this Act and Rules made thereunder: Provided further that the Pakistan Army Act, 1952 (XXXIX of 1952) shall be made applicable in respect of employees in the service of the Authority to whom Section 2 of the said Act applies or employees in the service of the Authority for whom a notification under Section 8 of the aforesaid Act is issued. (3) The Authority shall categorize the nature of service of the employees the basis of the sensitivity of the functions and then shall frame Rules, criterion, assessment basis for each set of employees and no employee shall have a vested right for any post, assignment, emoluments, promotion, privileges, transfer , deputation etc. Section 15 of the Act deals with making Rules for carrying out the purposes of the Act which reads as under:-- "15. Power to make Rules .-- The Authority may make Rules for carrying out the objectives of this Act." 9. A glance at the preamble shows that the Act has been passed to provide for the constitution and establishment of the National Command Authority for complete command and control over research, development, production and use of nuclear and space technologies and other related obligations 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 of the Act besides defining Authority etc., also defines the expression `prescribed' which means prescribed by Rules under the Act. Section 3 deals with the Constitution and establishment of the Authority . Section 7 deals with the powers and functions of the Authority , Section 9 deals with the terms and conditions of the employees of the Authority and those who shall be deemed to be its employees, while Section 15 of the Act deals with the power to make Rules. The Rules are made for carrying out the objectives of the Act. The legislature in its wisdom conferred rule-making power on the Authority . There is not even a single syllable in the Section alluding to the intervention or the approval of the Federal Government and rightly so because here in this case the legislature did not provide for two sets of Rules; one for external and the other for internal management. The legisla ture in its wisdom provided for one set of Rules encompassing all the ins and outs of the Authority as are outlined by Sections 7, 8, 9 and 15 of the Act. Since all the matters they deal with are of crucial importance, no division or distinction of external or internal management has been made. The rule- making power in this case is exercised by the Authority consisting of Chairman and 8 other Members enumerated in Section 3 *the Act. It is the Authority which prescribes specific terms and conditions of the employees including but not limited to, appointments, remova l, promotions, transfers, integrity and reliability and other related matters under Section 8 of the Act. It is also the Authority that creates classification among the employees based on the sensitivity of the functions, nature of assignments, security consideration and in the interest of security of Pakistan and takes measures regarding employees in respect of their movement, communication, privacy , assembly or
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association in the public interest or in the interest of integrity , security or defence of Pakistan or friendly relations with foreign States and public order . All these functions being envisioned by Sections 7 and 9 are essentially statutory . The Rules prescribing these functions cannot be short of statutory . They thus do not need intervention or approval of the Federal Government as the Authority itself is the Federal Government incarnate if we see it in the context of the personages adorning it. Not only that the Authority also regulates the matters relating to the terms and conditions 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 under sub-section (1) and (2) of Section 9 of the Act. The framework for doing all this is provided by the Rules. The Rules partaking so much of the statute cannot be non-statutory by any interpretation of the word. It was against this background that this Court in the case of Muhammad Zubair and others v. Federation of Pakistan through Secretary Mbo Defence and others (supra) while dealing with the Rules framed under Sections 7, 9 and 15 of the Act held as under:- "5. We do not find ourselves in agreement with the ground on which the petitioners were non-suited namely , that their Constitution petition was not maintainable as the Authority did not have statutory Rules. The petitioners were not seeking violation of their terms and conditions of service. Their petition was in the nature of quo warranto questioning re-employment of the respondents. Be that as it may, we have noted that the National Command Authority Employees Service Rules, 2011 are statutory in nature as they have been framed by the Authority in exercise of its powers conferred upon it under Section 7 read with Section 9(2) and further read with Section 15 of the National Command Authority Act, 2010. Such Rules making powers have been exclusively conferred upon the Authority and are not subject to approval of the Federal Government or any other authority . The Rules expressly make provision for re-employment of its retired officers in exceptional circumstances. Such power was conferred on the Authority in view of the nature of the work that is carried out by the different Organizations under the Authority , involving research by scientists, the utilization of whose expertise or experience may be useful or vital for any project or task on which they were workin g prior to retirement. Neither we are called upon nor shall we endeavour to examine the work that the respondents are engaged in additionally the direction given by this Court in Suo Motu No, 24 of 2010 essentially related to civil servants and the same also did not completely prohibit re-employment. In the case of Rector National University of Science and Technology (NUST) Islamabad and others v. Driver Muhammad Akhtar rendered in Civil Appeal No, 495 of 2010, decided on 28.04.201 1, this Court held as under:-- "4 The learned counsel produced a copy of the statutes called the National University of Sciences and Technology (Enforcement of Academic, Service, and Financial Matters) Statutes, 2005, made by the Board of Governors in exercise of the powers conferred upon it by sub-section (2) of Section 21 of the University of Sciences and Technology Act, 1997, in order to "regulate the creations of institutes and faculties etc. and for enforcement of academic, service, appointment, discipline and financial matters". Section 21 of the Act provides for making of statutes to regulate, inter alia, service, pension and fringe benefits and other terms and conditions of services of the employees of the University . Sub-section (2) provides the procedure that "Draft of the statutes shall be proposed by the Executive Committee for approval by the Board which may approve them or refer them back for reconsideration". Sub-section (3) further mandates that "no statute shall be valid until it has been approved by the Board/Chancellor ." Section 21 neither requires approval of the Government of the proposed statues or its…
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