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Petitioner: Muhammad Abid Shahzad VS Respondent: Federation of Pakistan & others
Court Name: Sindh High Court Judge(s): Muhammad Shafi Siddiqui, Adnan-ul-Karim Memon Title: Muhammad Abid Shahzad vs Federation of Pakistan & others Case No.:(1) C.P. No. D- 6110 of 2015 (2) C.P. No. D- 7524 of 2015 (3) C.P. No. D- 7530 of
2015 (4) C.P. No. D- 7596 of 2015 (5) C.P. No. D- 7654 of 2015 Date of Judgment:2019-08-29 Reported As: 2019 SHC 320 Result: petition dismissed Judgment ADNAN-UL-KARIM MEMON-J. Basically, the Petitioners have impugned the disciplinary proceedings i.e. dismissal from service orders and issuance of Show Cause Notices by the Respondent-National Database and Registration Authority (NADRA). 2. Learned Counsel for all the Petitioners consented that Petition bearing No. 5200 of 2017 may be treated as leading Petition and same may be disposed of at Katcha Peshi stage along with other connected petitions. 3. At the very outset, we have asked a question from the learned Counsel representing the parties to satisfy this Court with regard to maintainability of the captioned Petitions on the premise that the Rules and Regulations of NADRA are non-statutory. 4. Mr. Muhammad Aqil Awan, learned Counsel for the Petitioners in CP No.D-5200 of 2017 argued that, first of all the instant petitions are maintainable and can be heard and decided on merit by this Court, on the premise that the present Petitions relate to the service issues of the Petitioners, who admittedly, are not a Civil Servants as defined under Section 2(1) (b) of Civil Servants Act 1973, but employees of a Statutory Authority, thus cannot invoke the jurisdiction of the Federal Service Tribunal, the only remedy if any, lies by way of filling the Constitutional Petition under Article 199 of the Constitution, in view of the decision rendered by Full Bench of this Court in Muhammad Dawood and others vs. Federation of Pakistan and others [2007 PLC CS 1046] and the Honorable Supreme Court in the cases of Defence Housing Authority vs. Lt. Col Syed Jawaid [2013 SCMR 1707] and Muhammad Rafi and others vs.Federation of Pakistan and others [2016 SCMR 2146]. He next argued that the employees of a Statutory Authorities, who were proceeded under Government Servants (Efficiency and Discipline) Rules, 1973 can invoke the jurisdiction of this Court under Article 199 of the Constitution. In support of his
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contention, he heavily relied upon the decision given by the Hon?ble Supreme Court in the case of DHA (supra) and argued that the right of Appeal is a substantive right as provided under the law and it was a statutory intervention, thus Constitutional Petitions filed by the Petitioners, seeking enforcement of their fundamental rights are maintainable. He next added that under the aforesaid statutory intervention, he is supported by the decisions of the Honorable Supreme Court in the cases of P.T.C.L. and others Versus Masood Ahmed Bhatti and others (2016 SCMR 1362), Zarai Taraqiati Bank Limited Vs Said Rehman (2013 SCMR 642), Pir Imran Sajid and others Versus Managing Director/General Manager (Manager Finance) Telephone Industries of Pakistan and others (2015 SCMR 1257), Masood Ahmed Bhatti and others Versus Federation of Pakistan through Secretary, M/O. Information Technology and Telecommunication and others (2012 SCMR 152), Mrs. Anisa Rehman versus P.I.A.C. and another (1994 SCMR 2232), Karachi Development Authority And Another Versus Wali Ahmed Khan and others (1991 SCMR 2434) and Justice Khursheed Anwar Bhindar versus Federation of Pakistan and others (PLD 2010 SC 483). He next argued that the Rules and Regulations of NADRA are statutory and in this regard he referred various sections of NADRA Regulations 2002. 5. Learned Counsel for all the Petitioners in the connected Petitions adopted the arguments of Mr. M.M Aqil Awan, learned Counsel for the Petitioners in CP. No. D-5200 of 2017. However, Chaudhary Muhammad Ashraf, learned Counsel for the Petitioners in C.Ps No.D-454/2016, 6001/2016, 2854/2016, 6070/2016, 6342/2016, 2955/2016, 2731/2018, 2129/2019, 2536/2018, 2730/2018, 399/2017, 2129/2018, 7524/2015 and 3879/2016 added that the Respondents have non-suited the petitioners by invoking Rule- 2(2) of Government Servants (Efficiency & Discipline) Rules, 1973 read with Regulation No.24 of NADRA Employees Service Regulations, 2002 whereby some of the Petitioners have been served with Show Cause Notices and in some cases major penalty i.e. dismissal from service has been imposed upon the Petitioners. Per learned Counsel the aforesaid Rules-1973 are statutory, therefore, these Petitions are maintainable and can be heard and decided on merits. 6. At this juncture, we asked from the learned Counsel for the Petitioners, as to how they maintain the instant petitions, in view of the latest decision rendered by the Hon'ble Supreme Court in reported case of Major Retd. Syed Muhammad Tanveer Abbas and other connected appeals vs. Federation of Pakistan through its Secretary, Ministry of Interior & others (2019 SCMR 984) as cited supra, whereby the Appeals of the employees of NADRA were dismissed by the Hon'ble Supreme Court vide Judgment dated 13.5.2019 on the premise that they have no Statutory Rules of service, therefore, Constitutional Petition under Article 199 of the Constitution is not maintainable. In reply, he assisted this Court on the issue of maintainability of the instant Petitions. The learned Counsel argued that the Petitioners are regular employees and not contractual employees of NADRA, therefore, the aforesaid decision is distinguishable from the facts obtaining in the present petitions; that the present matter may be decided on the basis of Judgment passed by the Hon'ble Supreme court in the case of Pakistan Defense Officers Housing Authority vs. Mrs. Itrat Sajjad Khan and others [2017 SCMR 2010]. He next argued that the impugned termination orders and Show Cause Notices are in gross violation of Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973. Further that the action on the part of Respondent-Authority was arbitrary and capricious thus untenable in law; that the Honorable Supreme Court in the case of Mrs. Itrat Sajjad Khan supra declared Rule 8(b) (1) of the Service Rules for the Employees of the Pakistan Defence Officers Housing Authority-2008, which provides dispensation of service of an employee by giving him/her one month's notice or one month's pay in lieu thereof, as ultra vires of the Constitution and law as is the same in the present cases. Learned Counsel, while relying upon the case of Mrs. Itrat Sajjad Khan supra, has also contended that the Honorable Supreme Court in the said case directed to reinstate the employee of DHA, who was terminated in violation of principles of natural justice. He further argued that the case of the present Petitioners and Mrs. Itrat Sajjad Khan supra is on the same footings, hence the Petitioners are entitled to be reinstated in the service and Show Cause Notices served upon some of the Petitioners may be vacated. Lastly, learned Counsel for the Petitioners argued that, the petitioners challenged the
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termination of their service and issuance of Show Cause Notices on the ground that the same were arbitrary and had been issued without giving any reason; that Section 24-A of the General Clauses Act, 1897, obliges every person exercising powers conferred by a statute, to act "reasonably, fairly, justly and for the advancement of the purpose of the enactment." It also stipulates that the person making any order under the power conferred by any enactment shall, so far as necessary or appropriate, "give reasons for making the order". Therefore, unreasoned orders of termination (without holding of enquiry) and issuance of Show Cause Notices to some of the Petitioners are violative of Section 24-A of the General Clauses Act. In support of their contentions, they relied upon the decision of the Honorable Supreme Court rendered in the case of Government of Pakistan v. Farheen Rashid (2011 SCMR 1). They next submitted that there is no other efficacious and adequate remedy available with the Petitioners but to invoke the Constitutional Jurisdiction of this Court for the relief(s) as prayed in the Memo of Petitions. 7. Chaudhry Muhammad Farooq, learned Law Officer of NADRA has referred to his synopsis filed on behalf of Respondent-Authority and argued that the instant petitions are not maintainable and further stated that the case law cited by the learned Counsel for the Petitioners are distinguishable from the facts of these cases, therefore, the Petitioners cannot claim similar treatment in this regard, whereas enforcement of non-statutory rules of service of statutory authority are altogether different and the same cannot be enforced through Constitutional Petition. He added that Rule of `Master and Servant` is attracted in the present cases. He invited our attention to the various decisions of this Court and the Hon? ble Supreme Court of Pakistan on the aforesaid proposition, whereby the Petitions were dismissed; therefore, no interference in the present matters is required by this Court. He lastly prayed for dismissal of the instant Petitions. Upon query of application of Efficiency &Discipline Rules, 1973 in the cases of Petitioners, he replied that the application of Efficiency &Discipline Rules, 1973 is only adoptive as a part of NADRA Service Regulations 2002 to regulate the internal administrative and procedural departmental action but it had not been applied through any statutory provision of law; that the purpose of only to afford opportunity of defence to NADRA employees, otherwise it is neither statutory nor mandatory for external reference. We posted another question to him whether regular enquiry in the cases of Petitioners has been conducted. He replied that in all subject cases the regular enquiry has been conducted and full opportunity of Show Cause Notice and Personal Hearing has been accorded. At this juncture, learned Counsel representing the Petitioners have refuted the claim of Assistant Director (Legal) for NADRA and argued that nothing has been done. 8. We have heard the learned Counsel for the parties on the question of maintainability of the instant petitions and perused the material available on record and case law cited at the bar. 9. The issue of maintainability of the captioned Constitutional Petitions has been raised, in view of the latest verdicts by the Honorable Supreme Court of Pakistan in the reported cases of Major Retd. Syed Muhammad Tanveer Abbas and other connected appeals vs. Federation of Pakistan through its Secretary, Ministry of Interior & others (2019 SCMR 984), Chairman NADRA, Islamabad, through Chairman, Islamabad and another Versus Muhammad Ali Shah and others (2017 SCMR 1979) and Pakistan Defence Housing Authority vs. Mrs. Itrat Sajjad Khan & others (2017 SCMR 2010), as such we would confine our self to that issue only and refrain ourselves to dilate upon the merits of the cases, if we find the instant matters are not maintainable under the law. 10. Upon perusal of the pleadings and arguments extended thereon by the learned Counsel for both the parties, an important question of law requires our determination, whether the Respondent-Authority is a statutory authority, having non- statutory rules of service; hence the service matter of NADRA is to be governed by the Principle of `Master` & `Servant`? 11. To proceed with the question of maintainability of the captioned Petitions, we have noticed that the National Database & Registration Authority is the creation of a Statute established under Section 3 of the NADRA Ordinance, 2000. Section 35 of the Ordinance empowers the Authority and its officers and employees on such terms and conditions as it may deem fit in order to carry out the purpose of this
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Ordinance. While Section 44 empowers the Federal Government to make Rules for carrying out the purpose of Ordinance and Section 45 empowers Authority to make Regulations by Notification for carrying out its functions under the Ordinance and any other matter. Sub-Clause (2) of 37 and 45 clarifies that such regulations may provide for appointment of the officers mentioned in Section 35. The Authority pursuant to Section 35, 37 and 45 notified its Regulations on 1.11.2002 vide S.R.O. 118 (KE)/2002. According to Regulation No.3 of the Regulations, employees of the Authority are to be governed by these regulations with regard to their terms and conditions of service. Regulation No.4 of the Regulations empowers the Authority to sanction, create, re-designate or abolish any post, discipline or cadre with the Authority as it may deem fit. Regulation 23 of the NADRA Employees (Service) Regulation, 2002 stipulates that the Government Servants (Efficiency & Discipline) Rules, 1973 are made applicable to NADRA employees. The service rules of the Respondent-Authority lay down the terms and conditions of service of their employees. We may observe here that mere adoption of Statutory Rules of the Government or their application by reference will not automatically lend a statutory cover or content to those rules. In this context, the Honorable Supreme Court of Pakistan has already settled this principle in M.H. Mirza v. Federation of Pakistan through Secretary, Cabinet Division, Government of Pakistan, Islamabad and 2 others (1994 SCMR 1024). The aforesaid Service Rules are basically instructions for the internal control or Management of Respondent-Authority and are therefore non-statutory. 12. The case of the Petitioners is governed by the principle of Master and Servant', therefore the Petitioners do not have any vested right to seek reinstatement in service or call in question the disciplinary proceedings initiated against them in pursuance of the charge sheets. It is well settled law that contract employee cannot claim any vested right, even for regularization of service. The Hon'ble Supreme Court of Pakistan in the case of Chairman NADRA, Islamabad through Chairman, Islamabad and another Vs. Muhammad Ali Shah and others (2017 SCMR 1979) has held that the writ or Constitutional jurisdiction of High Court under Article 199 of the Constitution cannot be invoked by a contractual employee of a statutory organization, such as NADRA. For convenience sake, the relevant portion of the Judgment passed by the Hon'ble Supreme Court of Pakistan is reproduced herein below:- "10. NADRA had opposed the petitions before the High Court. NADRA also took a specific plea that the NADRA Ordinance, and in particular section 35 thereof did not envisage outside interference in the affairs of NADRA and NADRA itself in alone competent to employ people, and this is required to be done in accordance with the prescribed mythology. NADRA had also raised the legal objection with regard to the jurisdiction of the High Court. Surprisingly, these legal questions did not receive and answer from the High Court." 11. Pursuant to the powers conferred by section 45 read with sections 35 and 37 of the NADRA Ordinance, NADRA had enacted the Regulations. The Regulations attend to the method of appointment and qualification of employees (Regulation 8), designate the appointing authority (Regulation 9), specify the Selection Boards and Selection. Committee (Regulation 10), set out the procedure for initial appointment (Regulation 11), require that merit and provincial quota be observed (Regulation 12), require candidates to be medically fit (Regulation 13) and require verification of the character and antecedents of potential employees (Regulation 14). It is not clear whether the prescribed procedure for the selection and appointment (as mentioned in the Regulations) was followed, however, NADRA had elected to regularize all contractual employees and there is no challenge to such regularization. NADRA, the appellant herein, is aggrieved by the impugned judgment which has struck down NADRA's letter dated March 6, 2012 " to the extent of equivalency table" attached, therewith and given directions to "re-designate their [ the petitioners before the High Court] pay scales as mentioned in the Notifications No. F&A/ NADRA/ HQ/2002-2003, dated 21.6.2003 with all consequential benefits" 12. The referred to NADRA's letter dated March 6, 2012 had enclosed "Option Form" which was required to be "filled by all eligible employees" and the Option Form was to be submitted "latest by 22nd March 2012". The regularization process initiated by NADRA would proceed towards completion after the eligible
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contractual employees had submitted their Option Forms. However, before the submission of his/ her Option Form a contractual employee would continue as such, that is remain a person who was employed on contract by NADRA. The private respondents therein, who were the petitioners before the High Court, however, challenged certain terms./ components of NADRA's letter dated March 6, 2012; in doing so they undermined their own status of becoming regular or permanent employees of NADRA. If they did not accept NADRA's letter dated March 6, 2012, or any part thereof, they would remain as contractual employees of NADRA. The High Court could not renegotiate, alter and / or amend the terms of regularization that were offered by NADRA for the simple reason that the High Court did not have jurisdiction to do so. Therefore, till such time that the employees were regularized they would continue to be governed by the terms and conditions of the contract which they had with NADRA. The writ or constitutional jurisdiction of High Court under Article 199 of the Constitution could not be invoked by a contractual employee of a statutory organization, such as NADRA (see Pakistan Defence Officers Housing Authority v. Jawaid Ahmed reported as 2013 SCMR 1707, Pakistan Telecommunication Co. Ltd. v. Iqbal Nasir reported as PLD 2011 Supreme Court 132 and P.T.C.L v. Masood Ahmed Bhatti reported as 2016 SCMR 1362). It was only after the terms and conditions as offered by NADRA had been accepted and the Option Form had been submitted that the status of a contractual employee would convert to that of a regular employee of NADRA. Before accepting the terms offered by NADRA and submitting the Option Form the status of a contractual employee would remain as such and he/she would not be able to seek recourse to the constitutional jurisdiction of the High Court. 13. Therefore, for all the reasons mentioned shows, both these appeals are allowed and the impugned judgment dated March 6, 2014 of the Peshawar High Court is set aside and the petitions (W.Ps. Nos. 3210 and 3437 of 2012) filed before the Peshawar High Court are dismissed." (Emphasis added) 13. This Court has already decided the cases of similar nature vide common Judgment dated 12.03.2018 passed in the case of Major (R) Syed Muhammad Tanveer Abbas and Mansoor Pasha in Constitution Petition No. D-6555 of 2017 and C.P. No. D-931 of 2016. The relevant portion of the judgment is reproduced as follows:- "13. The next question for our consideration would be the maintainability of a writ filed by an employee of Authority against a statutory body having non statutory rules of service, seeking enforcement of the terms and conditions of his service rules. We are of the considered view that if a service grievance is agitated by a person/employee, who is not governed by the statutory rules of service, in terms of Article 199 of the Constitution; such petition shall not be maintainable. Our view is supported by the case law decided by the Honorable Supreme Court of Pakistan in the case of Abdul Wahab and others v. HBL and others (2013 SCMR 1383). 14. Our view is further strengthened by the case decided by the Honorable Supreme Court of Pakistan in the case of Muhammad Zaman and others v. Government of Pakistan (2017 SCMR 571). The Hon'ble Supreme Court has dilated upon the issue of statutory and non-statutory Rules of Service and held as follows:- "the test of whether rules/regulations were statutory or otherwise was not solely whether their framing required the approval of the Government or not, rather it was the nature and efficacy of such rules/regulations. Court had to see whether the rules/regulations in question dealt with instructions for internal control or management, in which case they would be non-statutory, or they were broader than and were complementary to the parent statute in matters of crucial importance, in which event they would be statutory." 15. In the light of above dicta laid down by the Honorable Supreme Court of Pakistan, we are of the considered view that where conditions of service of employees of a statutory body are not regulated by Rules/Regulations framed under the Statute but only Rules or Instructions issued for its internal uses, any violation thereof cannot normally be enforced through writ jurisdiction and they would be governed by the principle of 'Master and Servant'.
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16. In view of the foregoing, the Constitutional Petitions in hand are not maintainable, hence, are dismissed with no order as to cost." 14. This Court vide order dated 28.3.2018 passed in CP No.D-571/2016 dismissed the Petition of NADRA Employee on the premise that NADRA has no Statutory Rules of service. The aforesaid judgment was assailed before the Hon'ble Supreme Court of Pakistan in Civil Petition No.653-K/2018, which was dismissed as not pressed vide order dated 06.08.2018, with the following observation:- "Learned ASC for the petitioner states that review petition has been filed by the petitioner against the impugned judgment which is pending in the High Court. He states that he does not press this petition and will approach this Court if the review petition is decided against the petitioner. The petition is dismissed as not pressed." The aforesaid Petitioner being aggrieved by and dissatisfied with the order dated 28.3.2018 passed by this Court in the aforesaid matter preferred Review Application, which was too dismissed vide order dated 26.01.2019. At this stage, Ch. Muhammad Ashraf learned Counsel for the Petitioners in CP No.D- 454/2016 and other connected Petitions in his abortive attempt argued that the aforesaid Petitioner did not press his petition before the Hon?ble Supreme Court on the premise that review application is pending before this Court; that the aforesaid petition has been dismissed by this Court on the sole ground that Petitioner is a contract employee, whereas he was not contract employee but a regular employee of NADRA. We posted him a question that this Court has not decided the aforesaid matter on the sole ground of the status of the petitioner as a contractual employee, but we have decided the issue of statutory and non-statutory Rules of the service of the Petitioner. He again emphasized that the NADRA Regulations-2002 are statutory in its nature and his arguments are same as in the aforesaid matter decided by this Court. 15. To appreciate the contentions raised by the learned Counsel for all the Petitioners in its proper perspective, we think it appropriate to have a glance on various Judgments rendered by the Honorable Supreme Court on the aforesaid proposition. 16. First decision of a five Member Bench of the Honorable Supreme Court in the case of Pakistan Defence Officers' Housing Authority v. Lt. Col. Syed Jawaid Ahmed [2013 SCMR 1707] after examining the statute through which the Respondent-Authority and other statutory bodies were established and functioning, in Para-27 of its judgment held them to be statutory bodies performing some of the functions of the Federation/State and, therefore, "person" within the meaning of Article 199(1)(a)(ii) read with Article 199 (5) of the Constitution and if their actions or orders are violative of the statute creating those bodies or of rules/regulations framed under a statute, the same could be interfered with by the High Court under Article 199 of the Constitution. References are being made to the other decisions rendered by the Honorable Supreme Court in cases of Ramna Pipe and General Mills (Pvt.) Ltd. v. Sui Northern Gas Pipe Lines (Pvt.) [2004 SCMR 1274], Abdul Wahab and others Vs. HBL and others [2013 SCMR 1383], Pakistan Defence Officers' Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed and other connected appeals [2013 SCMR 1707], Khawaja Muhammad Asif v. Federation of Pakistan [PLD 2014 SC 206], Pir Imran Sajid and others Vs. Managing Director/General Manager Telephone Industries of Pakistan and others [2015 SCMR 1257], Pakistan Telecommunication Employees Trust vs. Muhammad Arif and others [2015 SCMR 1472], Shafique Ahmed Khan and others versus NESCOM through Chairman Islamabad and others [PLD 2016 SC 377], P.T.C.L. and others vs. Masood Ahmed Bhatti and others [2016 SCMR 1362], Muhammad Rafi and others Vs. Federation of Pakistan and others [2016 SCMR 2146], Muhammad Zaman etc. versus Government of Pakistan through Secretary,…
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