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Petitioner: Tariq Hussain Shah VS Respondent: Nadra through Chairman and 2 others
Court Name: Peshawar High Court Judge(s): Ikramullah Khan, Ijaz Anwar Title: Tariq Hussain Shah vs Nadra through Chairman and 2 others Case No.: Writ Petition No.4132-P of 2018 Date of Judgment:2020-09-03 Reported As: 2022 PLC (C.S.) 255 Result: Petition dismissed
JUDGMENT
JUDGMENT IJAZ ANW AR, J.---Petitioner , Tariq Hussain Shah, filed this constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and claimed the following relief:- "It is, therefore, prayed that on acceptance of this petition, this Hon'ble Court may be pleased to: (i). Declare the impugned action and conduct of the respondents as illegal, without lawful authority and of no legal ef fect; (ii) Direct the respondents to give effect to the regularization of the petitioner in service from the date of his initial appointment i.e., 14.09.2000 for the purpose of both the seniority and fixation of pay along with back benefits; (iii) Direct the respondents to restore the petitioner on. his original position of Personal Assistant and consider him for promotion to the next higher scale/grade from the relevant time with all the fringe benefits; and (iv) Grant any other relief to which the petitioner is found fit in law , justice and equity ." 2. In essence, the grievances of petitioner in the instant writ petition are that he may be granted seniority from the date of his joining service i.e. 21.09.2000 and he may also be designated as Sr. Personal Assistant Grade-3 in RPB of May , 2010 and Assistant Private Secretary (BPS-16). 3. Learned counsel for the petitioner argued that despite the fact that petitioner was initially appointed with effect from 14.09.2000 in the respondent-Authority albeit when his services were regularized in the year 2012, his service for the purpose of seniority and pension was counted w.e.f. 30.10.2004 which according to the learned counsel for the petitioner is violative of the option sought from the petitioner for his regularization in service. He further argued that matter of regularization from the date of first appointment was agitated departmentally , and lastly when it was regretted vide ' letter dated 16.06.2016 the instant writ petition was filed.
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4. The learned counsel representing the respondent-Authority on his turn argued that this writ petition is not maintainable because the respondent-Authority has got no statutory rules govern ing the terms and conditions of the service of the petitioner . He placed reliance on the judgments reported as 2019 SCMR 984, 2017 SCMR 1979 and an unreported judgment of the Sindh High Court passed in Constitutional Petition No.D-4064 dated 04.09.2019. On merit, he argued that the petitioner was regularized through a uniform policy and thus has got no case of antedating of regularization. 5. Arguments of learned counsel for the parties heard and available record perused. 6. The National Database and Registratio n Authority (NADRA) was established as National Database Organization, an attached department under the Ministry of Interior , Government of Pakistan in 1998. NADRA is an autonomous body to operate independently with the mandate to replace the old Directorate General of Registration with a computerized system of registration. In order to improve and modernize registration and database system National Database and Registration Authority Ordinance, 2000 was promulgated on 10th March, 2000 (hereinafter to referred as NADRA Ordinance. Section 3 of the National Database and Registration Authority Ordinance, 2000 provides for establishment of Authority for carrying out the purposes of the Ordinance. Section 3(2) specifies that the Authority shall be a body corporate. Section 3(3) further clarifies that there shall be a Chairman and five members of the Authority . Section 35 of the Ordinance authorizes the Authority to appoint Registration Officers, members of its staff, experts, consultants, advisers and other officers. Section 36 of the Ordinance provides that the Chairman, the members, Registration Officers and all other officers of the Authority shall be Public Servants. Section 45 empowers the NADRA to frame Regulations, the regulations were accordingly framed under the name of style of NADRA Employees (Service) Regulations, 2002. Thus, admittedly NADRA is a statutory body with its main object to facilitate the registration of all the persons and for establishment and maintenance of multipurpose database, database warehouses, netwo rking, interfacing of database and related facilities. Its purpose was to register persons and classes thereof including citizens. The above referred function s of the Authority are in fact the functions of the Federal Government and therefore it can be validly said that the respondents Authority are carrying functions within the affairs of the Federation. The moot point of the instant case is as to whether NADRA employees have got any statutory rules for service. Admittedly , NADRA is a statutory body being creation of a statute. The question, whether the term 'person' used in Article 199 of the Constitution of Islamic Republic of Pakistan can be applied to the statutory organizations was elaborately dealt with by the august Supreme Court of Pakistan in the case of "Pakistan Defence Officers Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed ( 2013 SCMR 1707 )". Paras 20 to 27 of the judgment, being relevant, are reproduced:- "20. While dilating on this question whether the appellants' organizations are "persons" within the meanings of Article 199(1) (a) (ii) read with Article 199(5) of the Constitution, the expanded functions of the Federation or a Province in contemporary age have to be kept in view . An important dimension of the modern welfare State is that the role of the State and its various institutions has increased manifold. The government is regulator and dispenser of special services. It has the power to create jobs, issue licenses, fix quotas, grant mining rights or lease of estate, sign contracts and provide variety of utility services to the people. Such entrepreneurial activities at times are carried out through companies created under the Statute or under the Companies Ordinance. The functions these compan ies institutions perform have elements of public authority . A public authority is a body which has public or statutory duties to perform and which performs those duties and carries out its transactions for the benefit of the public and not for private gain or profit. Such an authority , however is not precluded from making a profit for the public benefit. The Courts have generally applied what has been classified as a " function test" to consider whether a statutory body is a 'person' within the meaning of Article 199 of the Constitution. In Salahuddin v. Frontier Sugar Mills and Distillery Ltd. (PLD 1975 SC 244), the Court laid down similar test to assess whether a body or authority is a person within the meaning of Article 199 of the Constitution and observed: -- "The primary test must always be whether the functions entrusted to the organization or person concerned are indeed functions of the State involving some exercise of sovereign or public power; whether the
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control of the organization vests in a substantial manner in the hands of Government; and whether the bulk of the funds is provided by the State. If these conditions are fulfilled, then the person, including a body politic or body corporate, may indeed be regarded as a person performing functions in connection with the af fairs of the Federation or a Province; otherwise not. " 21. The afore-referred view was further affirmed in Aitchison College, Lahore through Principal v. Muhammad Zubair (PLD 2002 SC 326), and while not interfering with the judgment of the Lahore High Court whereby the latter court had held that the said college was amenable to the jurisdiction of the High Court under Article 199 of the Constitution, this Court laid down as follows:-- "Applying the above test on the facts of instant cases, we feel no hesitation in drawing inference that the Board of Governors, Aitchison College, Lahore headed by the Governor of the Province as its President along with other officers i.e. Secretari es Education, Finance and General Officer Commanding as well as unof ficial Members are involved in providing education which is one of the responsibility of the State and by taking over its management and control the Board, exercises sovereign powers as well as public powers being a statutory functionary of Government who in order to provide it full legal/Constitutional protection had brought it into the folds of its Education Department by amending the Provincial Rules of Business as back as in 1994 and even if for sake of arguments if it is presumed that no financial aid is being provided to the College from the Provincial Public exchequer , even then, the College remains in dominating control of the Provincial Government through Board of Governors. Therefore, the above test stands fully satisfied and we are persuaded to hold that organization of the Aitchison College, Lahore falls within the definition of a person. " 22. In Pakistan International Airlines v. Tanweer-ur-Rehman (PLD 2010 SC 676), reiterating the earlier view , the Court laid down a similar three pronged test: -- (i) whether the functions entrusted to the organization or person concerned are indeed functions of the State involving some exercise of sovereign or public power; (ii) whether the control of the organization vests in a substantial manner in the hands of Government; and (iii) whether the bulk of funds is provided by the State. 23. A comparative study of constitutional law on issues under consideration would. be instructive. In Sukh Dev Singh and others v. Beghatram Sardar Singh Raghwamshi and another (AIR 1975 SC 1331), the questions mooted before the Court were inter alia whether action of a statutory corporation in derogation to its Rules could be annulled in writ jurisdiction and whether the Rules framed by the corporation under the Statute were statutory . The Court held as follows:-- "33 A regulation framed under a statute applies uniform treatment to every one or to all members of same group or class. The Oil and Natural Gas Commission, the Life Insurance Corporation and Industrial Finance Corporation are all required by the statute to frame regulations, inter alia, for the purpose of the duties and conduct and conditions of service of officers and other employees. These regulations impose obligation on the statutory authorities. The statutory authorities cannot deviate from the conditions of service. Any deviation will be enforced by legal sanction of declaration by Courts to invalidate actions in violation of rules and regulations under statute is to ensure regular conduct with a distinctive attitude to that conduct as a standard. The regulations in the cases under consideration give the employees a statutory status and impose restriction on the employer and the employee with no option to vary the conditions. An ordinary individual in a case of master and servant contractual relationship enforces breach of contractual terms. The remedy in such contractual relationship of master and servant is damages because personal service is not capable of enforcement. In cases of statutory bodies, there is no personal element whatsoever because of the impersonal character of statutory bodies. In the case of statutory bodies it has been said that the element of public employment or service and the support of statute require observance of rules and regulations. Failure to observe requirements by statutory bodies is enforced by Courts by declaring dismissal in violation of rules and regulations to be valid. This Court has repeatedly observed that whenever a man's rights are affected by decision taken unde r statutory powers, the Court
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would presume the existence of a duty to observe the rules of natural justice and compliance with rules and regulations imposed by statute. " 24. Somewhat similar view was taken by this Court in The Evacuee Trust Property Board and another v. Muhammad Nawaz (1983 SCMR 1275 ) and the judgment of this Court in C.P.S.L.A. No.645/74 titled as Chairman Evacuee Trust Property Board Lahore, etc., v. Noon Elahi and C.P.L.S.A. No.646/74, titled as Chairman Evacuee Trust Property Board Lahore, etc v. Muhammad Ramzan, upholding the judgment of the High Court was followed with approval. This Court held:-- "It appears from the order passed by the learned Chief Justice of the High Court on the two Constitution Petitions that the Board at its 6th Meeting held in May 1969, passed the following resolution:-- "Agreed. Central Government Rules would apply to the Board's employees for all intents and purposes. " Under paragraph 43 of the scheme the Board is authorized to make rules to carry out the purposes of the scheme framed under section 16-A(i) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and under section 14(2) of the Displaced Persons (Land Settlement) Act, 1958. Paragraph 16 of the Scheme provides that no employee of the Board shall be dismissed or otherwise punished except in accordance with the rules framed by the Board and approved by the Central Government. In our opinion the aforesaid resolution amounted to making of the rules by the Board." It was not disputed before the learned Chief Justice that till such time the Board framed its own rules, the employees were governed by the Ef ficiency and Discipline Rules, 1960, framed by the Central Government. Admittedly these rules were not followed in the cases of the two respondents and, therefore, no fault can be found with the impugned orders of the learned Chief Justice. Both the petitions are accordingly dismissed." 25. The Court further candidly held, "Even otherwise it is well-settled that where statutory rules govern the service conditions of an employee, then the pleasure of the master stands surrendered to the extent the matter is covered by the relevant rules". 26. Whether a company or authority is an instrumentality of the State has also been subject of debate in constitutional jurisprudence of India. The Indian Supreme Court in Ramana v. I.A. Authority of India (AIR 1979 SC 1628) adverting to the factors which make a corporation or authority an instrumentality of the State held:-- "It will thus be seen that there are several factors which may have to be considered in determining whether a corporation is an agency or instrumentality of Government. We have referred to some of these factors and they may be summarized as under: Whether there is any financial assistance given by the State, and if so, what is the magnitude of such assistance whether there is any other form of assistance, given by the State, and if so, whether it is of the usual kind or it is extraordina ry, whether there is any control of the management and policies of the corporation by the State and what is the nature and extent of such control, whether the corporation enjoys State conferred or State protected monopoly status and whether the functions carried out by the corporation are public functions closely related to Governmental functions. This particularization relevant factors is, however , not exhaustive and by its very nature it cannot be because with increasing assumption of new tasks, growing complexities of management and administration and the necessity of continuing adjustment in relations between the corporation and Government calling for flexibility , adaptability and innovative skills, it is not possible to make an exhaustive enumeration of the tests which would invariably and in all cases provide an unfailing answer to the question whether a corporation is Gover nment instrumentality or agency . Moreover , even amongst these factors which we have described, no one single factor will yield a satisfactory answer to the question and the Court will have to consider the cumulative effect of these various factors and arrive at its decision on the basis of a particularized inquiry into the facts and circumstances of each case. 'The dispositive question in any State action case', as pointed out by Dougles, J., in Jackson v. Metropolitan Edison Co. (1974) 419 US 345 (supra) is not whether any single fact or relationship presents a sufficient degree of State involvement, but rather whether the aggregate of all relevant factors compels a finding of State responsibility . It is not enough to examine seiatim each of the factors upon which a corporation is claimed to be an instrumentality or agency of Government and to
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dismissed each individually as being insuf ficient to support a finding to that effect. It is the aggregate or cumulative effect of all the relevant factors that is controlling. " 27. Keeping in view the Statutes which established and the functions of the appellants' authorities, and having considered in the light of " function test", we hold and declare that these are statutory bodies, performing some of the functions which are functions of the Federation/ State and through the exercise of public power , these bodies create public employments. These bodies are therefore " persons" within the meanings of Article 199(1)(a)(ii) read with Article 199(5) of the Constitution. If their actions or orders passed are violati ve of the Statute creating those bodies or of Rules/Regulations framed under the Statute, the same could be interfered with by the High Court under Article 199 of the Constitution. 7. Section 44 of the NADRA Ordinance, 2000, empowers the Federal Government to make rules duly notified in the official gazette for carrying out the purpose of the Ordinance ibid. As referred to above, the purpose for which the Ordinance is promulgated is to provide for the establishment of NADRA authority so as to facilitate the registration of all persons and the establishment and maintenance of multipurpose database, data warehouses etc but this Section does not deal with the employment in the NADRA; however , Section 45 of the Ordinance ibid provides the mode under which the regulations pertaining to the appointment of registratio n officers/members of its staff, experts, advisors, consultants and other officers and employees or their terms and conditions of service, can be framed. Unlike Section 44 of the Ordinance ibid where the Federal Government is supposed to notify the rules, under Section 45 the authority is /empowered to make regulations duly notified in the of ficial gazette. 8. We examined the National Database and Registration Authority Employees (Service) Regulations, 2002, and find that it was made by the authority and was published in the official gazette, Gazette of Pakistan, Extraordinary , Ordinance Part-II, Karachi dated 1 1th. November , 2002 vide SRO 1 18(KE)/2002. 9. Similarly , employee has been defined under Regulation 2 of Sub-Regulation (i) as follows:- "Employee" means any Registration Officer, member of its staff, office or employee of NADRA holding a post in NADRA, but does not include a person; (i) Employed on a short-term contract for a period not exceeding twelve months; or (ii) Employed on work-charge basis; or (iii) Paid from of fice contingencies. 10. The earlier view of the Superior Cour t was that in order to have the status of statutory rules, the Autonomous Body must be a creation of the Statute and their rules are to be framed by the Federal Government. However , after many authoritative judgments, the Hon'ble Supreme Court of Pakistan resolved the controversy in the case of "Masood Ahmed Bhatti and others v. Federation of Pakistan through Secretary , Ministry of Information Technology and Telecommunication and others( 2012 SCMR 152)" while commenting upon its earlier view rendered in the case of "Pakistan International Airlines v. Tanweer-ur-Rehman (PLD 2010 SC 676)". Paras 5 and 6 of the aforesaid judgment, being relevant in the present controversy , are, reproduced as under: 5. Since the judgment of the High Court is based on the case of Tanweer-ur-Rehman supra, it firstly is to be seen if indeed the principle of law enunciated therein supports the conclusion in the impugned judgment. Para 18 of the cited precedent is of particular relevance in this context. It sets out the circumstances which led to the Court's finding that the regul ations which were under consideration in the said case could not be treated as being statutory in nature. The test laid down for deciding if the regu lations were in fact statutory , was stated with great clarity . These regulations had been framed by the Board of Directors of the Pakistan International Airlines Corporation ('PIAC') under the PIAC Act, 1956. It was observed by the Court that "if the relationship between the (PIAC] and its employees is regulated by statutory provisions and if there is any breach of such provisions, an employee ... may maintain an action for reinstatement". It was further observed that "the PIAC has regulations which have been framed by the Board of Directors of the PIAC, pursuant to the power contained in section 30 of the [PIAC] Act; however , there is nothing on record to indicate that these regulations have been framed with the previous sanction of the Central Government or that they were gazetted and laid before the National Assembly in terms of section 31 of the [PIAC] Act". This finding of the apex Court was, in turn, based on the case titled Raziuddin v. Chairman, PIAC (PLD 1992
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SC 531). In short, the reason for holding that the regulations in question were not statutory was that the requirements of sections 30 and 31 of the PIAC Act had not been complied with. 6. The observations in the case of Tanweer-ur-Rehman supra have necessitated an examinatio n of sections 30 and 31 of the PIAC Act to see if these provisions have any parallel or relevance in the present appeals. It is quit.: clear from the PIAC Act that in order for the regulations to have statutory force, it was necessary that the same be framed "with the previous sanction of the Central Government". Additionally , under section 31 of the PIAC Act, the regu lations were required to be gazetted and laid before the National Assembly . It is only because these contentious regulations had not been framed with the previous sanction of the Central Government and had not been published in the official Gazettee, that the Court came to the conclusion the regulations were not statutory in nature. It follows from the cited judgment that if in fact the regulations had fulfilled the requirements of sections 30 and 31 of the PIAC Act, there would have been no dispute or contention as to the statutory status of the said regu lations. The circumstances of the present appeals (considered below) are very dif ferent from the facts in Tanweer-ur-Rehman 's case. 11. Similarly , the Hon'ble Supreme Court of Pakistan in the case of "Shafique Ahmad Khan and others v. NESCOM through Chairman, Islamaba d and others (PLD 2016 SC 377)" also explained the same view that where framing of rules by the Federal Government is not the requirement of the Statute, such, rules cannot be declared as non-statutory merely because it is framed under certain provisions of that statute. Relevant para of the aforesaid judgment is reproduced as under:- "Fact that certain Rules or Regulation were framed without the approval of the Federal Government was not the sole criteria to term them as non- statuto ry in nature. It was indeed their nature and area of efficacy which were determinative of their status. Rules dealing with instructions of internal control or management were treated as non- statutory while those, whose area of efficacy was broader and were complemen tary to the parent statute in the matters of crucial importance were statu tory. The Rules framed under sections 7, 9 and 15 of the Act fell in the latter category as they were not only broader in their area of efficacy but were also complementary to the parent statute in matters of crucial importance. It would rather be naive and even myopic to equate the Rules of the Authority dealing with matters of crucial importance having so wide a scope and area of efficacy with the instructions meant for internal management and thereby depriving them for their statutory status. Although, said rules have not been framed with the intervention and approval of the Federal Government, but that would not prevent them from being statutory . First, because approval of Federal Government was not required either under section 9 or 15 of the Act; secondly because, all those who called the shots were already part of the Authority while framing the Rules, and thirdly because; the scope and area of their efficacy not only stretched beyond the employees of the Authority but overreache d many other strategic organizations including nuclear…
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