Farrukh Nadeem VS OGRA

FORM NO.HCJD/C

JUDGMENT SHEET

IN THE ISLAMABAD HIGH COURT,

ISLAMABAD

JUDICIAL DEPARTMENT

W.P. No. 2557 of 2015

FARRUKH NADEEM/ ETC,

Versus

OIL AND GAS REGUUTORY AUTHORITY, ETC,

Date gf hearing: 02.05,2077.

Petitioners by: Mr. Abdul Rehman Siddiqui, Advocate. Respondents bv:- Mr, YaserAman Khan, Advocate, Mn Rizwan ul Haq, E,D Litigation OGRA.

Athar Minallah J:- The petitioners have invoked the jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, L973, assailing order, dated 31-07- 2015, passed by the Oil and Gas Regulatory Authority (hereinafter referred to as the "Authority'1.

2.The facts, in brief, are that the petitioners are officers of the Executive Cadre of the Authority. Earlier they had filed Writ Petition No. 4488 of 2013 titled "Farrukh Nadeem, etc vs. OGRA, etc". The said petition was disposed of by this Court vide order, dated 23-01-2015, Pursuant to the said order, the Authority after affording an opportunity of hearing to the petitioners, has passed the impugned order, dated 3t-07-2015. The instant petition was placed before the Division Bench to consider the status of the regulations which governs the terms and conditions of the

W.P. No. 2657 of20l5 2

employees of the Authority i.e. whether the status thereof is statutory or non-statutory.

3.The learned counsel for the petitioners has contended that; the Oil and Gas Regulatory Authority Service Regulations, 2005 (hereinafter referred to as the, "Regulations of 2005J are statutory and, therefore, the petition is maintainable; it has been held by the august Supreme Court in the case titled "Pakistan Defence Officers' Housing Authority and others vs. Lt. Col. Syed Jawaid Ahmed" 2073 SCMR 7702 that regulations or rules would be statutory if they have been made/framed in the manner provided under the relevant statute; in the instant case the Regulations of 2005 have been made under Section 42 of the Oil and Gas Regulatory Authority Ordinance, 2002 (hereinafter referred to as the "Ordinance of 2002'); Section 42 does not require approval of the Federal Government for framing of the rules; the Regulations of 2005 are, therefore, r statutory; even if the Regulations of 2005 are declared otherwise even then the petition would be maintainable since the grievance of the petitioners relate to violation of the Regulations of 2005; reliance has been placed on "Muhammad Rafi and another vs. FOP and others" 2016 SCIfiR 2746; all the petitioners hold educational degrees of Master in Business Administration and they are engaged in peforming professional duties in their respective departments; they all qualify for the grant of Professional Allowance; refusal on part of the Authority to grant Professional Allowance in case of the petitioners is illegal; other similarly placed officers in the Executive Cadre are being paid Professional Allowance while the same is being refused to the petitioners; the Authority vide the impugned order has

W.P. No. 2657 of 20t5.

misinterpreted the provisions, particurarry the definition of Professiona I Allowa nce.

4' The rearned counser appearing on beharf of the respondent Authority has argued that; the petitioners are not entitled to the payment of professionar Ailowance; the petitioners are not performing any technicar or professionat duties; the impugned order has been passed by the Authority in the right of the Regulations of 2005; the Regulations of 2005 are non-statutory and the august supreme court has passed various judgments in this regard; the Regutations of 2005 were not approved by the Federal Government and, therefore, they have the status of being non-statutory; professionar Ailowance is given to such emproyees in the Executive cadre who possess a professionar degree and are engaged in professionar duties in the rerevant departments; the petitioners are not performing professionar duties and, therefore, they are not entiiled to payment of profegsionar Ailowance.

5' The rearned counsers have been heard and the record perused with their abte assistance.

6' The controversy raised through the instant petition stems from interpretation of the expression .professionat Allowance, and its explanation given in Appendix-B of the Regutations of 2005.

The petitioners assert that they are entifled to payment of Professionar Alrowance and that the same is being denied by the Authority in vioration of the Regurations of 2005. The petitioner,s assertion that they possess educational qualification mentioned in the explanation given in Appendix-B in reration to professionar pHowance is not denied by the respondent Authority. However, it is

W.P. No. 2657 of 2015. 4

the case of the respondent Authority that when Appendix-A and B are read together then it becomes obvious that officers of Executive cadre in the seruice group described as .Generat, are not entitled to payment of professional Allowance. we are, therefore, required to answer two questions i,e. the status of the Regulations of 2005 and whether or ,not the expression ..professional Allowance" and its explanation have been correcUy interpreted by the Authority vide the impugned order.

7.The expressions statutory or non-statutory in the context of Regulations of 2005 have not been defined under the ordinance of 2002. However, these expressions have been considered in a chain of authorities rendered by the august supreme court. It would, therefore, be apt to examine the precedent law and then the provisions of the ordjnance of 2002 so

as to determine the status of the Regulations of 2005. The precedent law in the context pf seryice regulations/rutes being statutory or non-statutory is discussed as follows:- Lt Col, Shrr-,. ' " Ah-ad ,rrsu" Oil & Gas D.rdo^-ent Corporation (7977 SCMR 566r

It was herd that emproyees of a statutory corporation do not acquire the status of Government seruants nor guarantees given by the constitution are attracted in their case. It was further held that contracts of service of such employees are governed by the law of master and servant and such contractual terms cannot be specifically enforced.

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R.T.H, Janjua versus National Shiwing Corporation (PLD

1974 S.C. 746).

It was a case relating to an employee of the National Shipping Corporation, established under the National Shipping Corporation Ordinance, 1963. The apex Court considered whether or not a grievance of an employee of a statutory authority would be competent and in this regard formulated a test which essentially was based on making a distinction between the nature of duties performed by such an employee i.e whether they were duties of a public nature or whether the functions and duties were secretarial or commercial.

Muhammad Yusuf Shah versus Pakishn fnturnational Airlines Corporation (PLD 7981 S,C, 224L

It was held in the context of an empl6yee of Pakistan International Airlines that mere instrilctions issued by a statutory entity for guidance of its officers for their internal use were directory and not immutable.

The Princioal Cadet Colleoe Kohat and another versus Muhammad Shoaib Qureshi (PLD 7984 S.C. t7O).

The matter related to a member of the teaching staff of the Cadet College Kohat and the august Supreme Court held as follows;-

I

"It is, thereforg evident that where the

conditions of seruice of an employee of a

statutory body are governed by statutory

W.P. No. 2657 of20l5. 6

rules/ any action prejudicial taken against him in derogation or in violation of the said rules can be set aside by a writ petition. However, where his terms and conditions are not governed by statutory rules but only by regulations, instructions or directions, which the institution or body, in which he is employed, has issued for its internal use, any violation thereof will notl normally, be enforced through a writ petition'l Anwar Hussain versus Agricultural Development Bank of Pakistan and others (PLD 7984 S.C. t94).

The august Supreme Court, while examining the statute establishing the Agricultural Development Bank of pakistan, has succulently discussed the test reEarding the existence of the relationship of master and servant and has held as follows;- "It follows that if the relationship is the result of a contract freely entered into by the contracting pafties then the principle of master and seruant wiil qpply. The principle, however, will not apply if some law or statutory rule interuenes and places fetters upon the freedom of the parties in the matter of the terms of the contract. It is on this principle that a civil seruant for whom there are constitutional safeguards, is not governed by the principle of master and seruant, for he is possessed of a

W.P. No 2657 of 2015 7

legal character for the enforcement of which he can bring an action. Even where the employee is not a ciuil seruant but there are statutory safeguards governing his relationship with the employer and ptacing restrictions on the freedom of the parties to act, the general law of master and seruant witt not appty. In such cases the employer woutd be bound to follow the procedure provided for in the statute or the statutory rules before terminating the seruice of the employee and in the absence of conformity to such procedurq the termination of seruice would not be ctothed with validity and the employee will be entitted to an action for his re-instatement'i ,

"Where a corpontion is set up by a statute but the Government does not reserue to itself the power to regulate the conditions of seruice of the employees under the corporation and the statute itself also does not prescribe any condition but leaves the maffer entirety in the discretion of the corporation who is given the power to frame rules and regulations in that regard so that the employee is teft with no protection under the statute itself, then the corporation must be held to be the sole arbiter in the matter of prescribing the terms and conditions of its employees and competent to

W,P. No. 2657 ot20t5.

B

deal with them in accordance with the terms and conditions so prescribed by it In such situation the employee cannot claim to be a person possessed of any legar character within the meaning of section 42 of the Specific Relief

Act and in case of hr_s wrongful dbmissal from or termination of seruicg the princrple of master and seruant wi// fully apply and he can only claim damages but not reinstatement to his post,i

After examining the relevant provisions of the Agricurturar Deveropment Bank of pakistan ordinance , Lg61, parLicularly sections 30 and 39 ibid, it was concruded that the rure of master and seruant was attracted because the Bank had complete contror over its emproyees, their appointments, dismissars and their terms and conditions of service and that such contror was

not fettered by any statutory provision.

It was held that in the absence of statutory rutes, an employee courd not invoke the constitutionarjurisdiction. The Sindh Road Transport corporation service Rures, LgTr,were decrared to be non-statutory in character because approval of the Government was not required for their framing under the rerevant statute. The earlier judgments rendered by the august supreme court in the cases The principar, cadet corege, Kohat and another (supra) and Anwar Hussain (supra) and the raw raid down therein was

W.P. No.2657 ofZ0l5. 9

reaffirmed. The test for determination of whether or not the rules were statutory in nature was to pose the question whether the Government had reserved to itself the power to regulate the conditions of service of the employees under the Corporation.

Karachi Development Authoritv and another versus Wali Ahmed Khan and others (7997 SCMR 2434).

The august Supreme Court, in the context of rules or regulations being statutory or non-statutory, has observed and held as follows;-

"The position so far as the Constitutional remedy under Article 199 of the Constitution is identical, However, in cases where the post held by the employee of a

statutory Corporation, is a public officq as defined hereinabove, thdn retief in the nature of quo waranto to remove a person who is

unlawfully holding the post can be granted in j Co n sti tu tio n a I u ris dicti o n. Th e o th e r excep ti o n to the aforesaid general rule is that if the freedom of contract is placed under statutory feffers, by reseruing controlling power with the Government in the matter of framing of rules or regulations touching the terms and conditions of seruice of the employees of such a statutory body, in such a case the pleasure of the master is taken over by the statutory provisions and the ase would stand outside

W.P. No. 2657 of 2015 10

the master and seruant rulel so that Constitutional jurisdiction would be amenable to any violation of the statutory rules or regulations'i

Raziuddin versus chariman pakisbn rnturnational Airlines Corporation and O2 others (pLD lg92 S.C. isll The august Supreme Court declared the seruice regulations framed by the Board of Directors of the pakistan International Airlines corporation under section 30 of the pakistan International Airlines corporation Act, 1956, as non-statutory because they had not been framed with the previous sanction of the central Government nor gazetted or laid before the National Assembly in terms of section 31 ibid. It was herd, therefore, that in the absence of statutory rules and regulations governing the terms and conditions of seruice relief could not be sought on the ground of breach of statutory provisions.

universiw of the puniab Lahore and o2 others versus ch, Sardar Ali (7992 SCMR t093).

The august Supreme Court obserued that the law enunciated in the case of R.T.H. Janjua versus National shipping corporation (PLD 1974 s.c. 146) was no more relevant after the rendering of the later judgments in the cases of rhe principal, cadet college, Kohat and another (supra) and Anwar Hussain (supra). The law laid down in the last two judgments was, therefore, reaffirmed by the august Supreme couft and it is

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t1

obvious that the earlier test of making a distinction on the basis of the nature of duties pefformed, prescribed in the case of R.T.H Janjua, was overruled

The august supreme cour[ reaffirmed and reiterated the law expounded in the earlier judgments rendered in the cases of "chairman wApDA and 02 others versus Jamir Ahmed,, [1993 scMR 3461 and "Muhammad yusuf shah versus pakistan Internationar Airrines corporation" [pLD 1981 s.c. 224]. The relevant portion is as follows;-

"It is well settled by now that where the Government while seffing up a Corporation does not reserue to itsetf the power to regulate the terms of seruice o'f the Corporation| employees under the releuant statute and does

not prescribed any condition, but leaves it to the discretion of the Corporation by empowering it to frame rules or regulations n respect thereof without the GovernmentS interuention, then the Corporation wi// be the sole arbiter in the matter of prescribing the terms and conditions of its employees and witl be competent to deat with them in accordance with the terms and conditions prescribed by it In such a case neither a suit nor a writ petition for the relief of reinstatement wi// be

.W.P. No. 2657 of2015 t2

competent and the remedy of an employeet for wrongful dismissal from or of teffr, ination of serube will be a suit for damages as the principle of master and seruant wilt be applicable. However, where the terms and conditions of seruice of an employee of a statutory Corporation is regulated by a statute or statutory rules, any action prejudiciat taken against him in derogation or in violation of the statute and / or the statutory rules will give him a cause of action to fite a suit or a writ petition for the relief of reinstatement, as the power of the Corporation will be fettered with the statutory provisions and the principte of master and seruant will not be applicabte. For the purpose of deciding the factum, whether the rules or the regulat)ons of a Corporation have the statutory forcq the determining factor will not be their form or name, but the source under which they have been framed,i It is noted that the review petition fired against the judgment rendered in "pakistan Red crescent society and another

versus syed Nazir Gillani" supra, has recenfly been dismissed by the august supreme court in the case reported as ..syed Nazir Gillani versus Pakistan Red .crescent society and anoth er,, lz0L4 PLC (c.s) 9611. As a corollary the principles and law enunciated in

relation to the test in the context of whether the Government,

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while establishing a statutory entity, had reserved for itself the control of the making the regurations or rules, stood affirmed.

rc.s) 770t.

The august supreme court reiterated the earrier raw in relation to determination of service regulations as statutory or non-statutory. It was held that formal approval of the Government was a condition precedent for treating regulations or rules as statutory and in absence thereof they would be merery internar instructions or domestic rures having no reguratory status.

After examining the precedent law the august Supreme Court observed and held as follows;- "Generally speaking a statutory

regulation means regulations which are legislative (as opposed to executive) made by a rule making authority in *ercise of statutory power with the approual of the central government or provincial government Precisely it is the exercise of the delegated legislative power by the rule making authority.

Ordinarily it is necessary atso that making and promulgation of a rule should be affended by

W.P. No. 2657 of 2015.

t4

certain formalities e.g, pubtication in government gazette as law laid down by this Court in various pronouncemenb/:

n"rtu" Tur*ug u, R"hrrn ,nd oth"r" (pLD 2Ot0 S,C,

676L

The august supreme couft reiterated and reaffirmed its earlier law regarding determination of rules as statutory or non_ statutory within the ambit of the principle of master and servant.

The judgment rendered in the case tifled pakistan Red crescent Society and another (supra) conspicuousry stood out as having

been unambiguously affirmed.

The judgment was rendered by a Bench consisting of five Hon'ble Judges of the august Supreme court and after elaborately examining the earrier judgments the principres were summarized as follows;-

"(0 Wolation of Seruice Rules or Regulations framed by the Statutory bodies under the powers derived from Statutes in absence of any adequate or efficacious remedy can be enforced through writ jurisdiction.

(i0 Where conditions of seruice of employees of a statutory body are not

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regulated by Rules / Regulations framed under the Statute but only Rules or Instruction issued for its internal use, any uiolation thereof cannot normally be enforced through writ jurisdiction and they wou/d be governed by the

principle of 'Master.and Seruanti

(ii)In all the public employments created by the Statutory bodies and governed by the Statutory Rules / Regulations and unless those appointments are purely. contractuat, the principles of natural justice cannot be dispensed with in discrplinary proceedings.

(iu)Where the action of a statutory authority in a seruice matter is in disregard of the procedural requirements and is vr.olation of the princrples of natural,justicq it can be interfered with in writ junsdiction.

(u)That the Remdud from Seruice (speciar powers) ordinancq 2000 has an overiding effect and after its promulgation (2Vo of May, 2000), atl the discrplinary proceedings which had been initiated under the said Ordinance and any order passed or action taken in disregard to the said law would be amenable to writ jurisdiction of the High Court under Article 199 of the Constitution,i B. Clause (ii) of paragraph 50, reproduced above, was interpreted as having over rured v the earrier raw expounded

W.P. No. 2657 of 2015 l6

in the case of Pakistan Red crescent society and another (supra).

However, the dismissal of the review in the case titled ..syed Nazir Gillani versus Pakistan Red crescent Society and anoth er,, lz0r4 PLC (c.s) 9611 put to rest any doubt regarding the earlier judgment rendered in the case of pakistan Red crescent society and another (supra). The review against the judgment rendered in the case of "Pakistan Red crescent Society and another versus syed Nazir Gillani" was dismissed expressly on the basis of clause

(ii)of paragraph 50 of pakistan Defence officer,s Housing Authority and others (supra). The dismissal of the review against the judgment of Pakistan Red crescent society and another (supra), yet again reaffirmed the test relating to determination of the status of rules or regulations being statutory or non-statutory i.e. the approval of the Federal Government being a condition precedent.

shafioue Ahmed Khan and others,'versus NESC1M throuqh The question before the august Supreme Court was the status of seruice rules/regulations framed under section 15 of the National command Act 2010 (hereinafter referred to as the "Act of 2070J. The august Supreme court declared the rules as statutory despite the fact that they had not been formally approved by the Federal Government. The august supreme court examined the precedent law in great detail. However, it is significant to note that the earlier law laid down in the cases of pakistan Red crescent society and another (supra), The principar, cadet college, Kohat and another (supra) and Anwar Hussain versus Agricultural Development Bank of pakistan and others (supra) were in fact

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affirmed and by no stretch of the imagination over ruled. However, in the context of the scheme of the Act of 2010 they were found distinguishable. The august supreme coult, whire recording its reasons/ inter alia, has expliciUy obserued that the highest officials of the Federal Government were already on the Board which had framed the rules. These observations have been made in response to the contention that rules or regulations which are not approved by the Government cannot be treated as statutory. It is obvious from the said observations that the august supreme couft for the first time has acknowledged that if the authority vested with making the service rules or regulations is controlled by the Government then approval of the latter would be implicit.

Moreover, after eKensively discussing the provisions of the Act of 2010, the august supreme court came to the conclusion that the scope and area of efficacy of the rules framed under the Act of 2010 not only stretches beyond the emproyees of the Authority but has an over arching effect or.r ,Jny other organizations. In forming this conclusion the august Supreme court examined the scheme of the Act of 2010, particularly sections 7,9 and 15 ibid. It is impoftant to note that the Nationar command Authority, established under the Act of 2010, is empowered to make rules or regulations for the employees of other independent and autonomous entities declared as 'strategic organizations', under section B ibid. The service regulations framed under section 15 are, therefore, not restricted to emproyees of the Authority but have an overarching reach by governing the terms and conditions of employees of other independent organizations as well. such rules or regulations obviously could not be termed as having been issued

W.P. No. 2657 of2015.

merely for the internal use of the National command Authority. In a nutshell the august supreme court, by referring to the composition of the Board, recognized or acknowledged that depending on the scheme of a statute approval of the Government could also be implicit. Moreover, the Act of 2010, after being examined in detail, was found to have scope or efficacy stretching

beyond the employees of the authority, The Authority is established

under section 3 of the Act of 2010 and the composition thereof is provided under sub-section (a). The chairman of the Authority is the Prime Minister of pakistan, as provided under sub-section (3), while its other Members include four Federal cabinet Ministers besides three other Members. The reasoning of the august supreme court was in consonance with the principles and law enunciated in the earlier judgments of the principal cadet college Kohat, Anwar Hussain, sindh Road Transport corporation, Riazuddin and pakistan Red crescent Society, supra. The august supreme court, rather than revisitinj tne said judgments, has

reaffirmed the law laid down therein, relating to the significance of the approval of the Government for determining the status of the service rules or regulations being statutory or non statutory,

The august supreme court reaffirmed and foilowed the test laid down in the case of shafique Ahmed Khan and others (supra) and has obserued and held as foltows;_

W.P. No. 2657 of ZOts.

'According to the judgment delivered in Civil Appeal No. 654/2010 etc. the test of whether rules / regulations are statutoty or otherwise is not solely whether their framing reguires the approual of the Federat Government or not, rather it is the nature and efficacy of such rules / regulations. It has to be seen whether the rules / regulations in question deal with instructions for internal control or management, or they are broader than and are complementary to the parent statute in matters of crucial importance. The former are non-statutoty whereas the tatter are statutoty,i

scMR 2746).

The august Supreme Court has held as follows;_

"Wg therefore, are of the considered view that issue in hand is fu/ly covered by para-S? of the judgment refered to hereinabove, which prouides that an aggrieved person can invoke the constitutbnal jurisdiction of the Hrgh Court against a public

authority if he satisftes that the act of the authority r's violative of the seruice Regulations even if they are non_statutory,i

W.P. No 2657 of 2015.

9 The above principles, therefore, may be summarized as follows;-

(i)A constitutional petition under Article 199 of the Constitution would be competent if the rules/regulations governing the terms and conditions of the employees are statutory or the act or proceedings are in violation of the releva nt reg ulations/rules.

(ii)Rules/regulations governing the terms and conditions of service would have non statutory status if the legislative intent of the relevant statute is to create a relationship between the employer and its employees based on entering into a contract freely i.e. when no fetters have been placed on the rule making authority in the context of determining the terms and conditions of the employees. If the power is fettered then such seruice regulations would not be treated as having been issued for the internal use of the employer nor a relationship in such a case will be a result of a contract freely entered by the contracting pafties.

(iii)Approval of the Government, formal or implicit, in the relevant statute, is a crucial factor for determination of the status of service rules/regulations, In the absence of such an

approval the relevant regulations/rules woutd be

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non statutory having been issued for the internar use of the employer,

(iv)If it is obvious from the scheme of the relevant statute that the regisrative intent is to empower a rule/regulation making authority to frame rures/regurations which are not restricted for the internal use of employer only but are broader than and complimentary to the parent statute, as is the case of regulations made under the Act of 2010, then such rules or regulations will be statutory.

10.Next, we shall examine the scheme of the ordinance of 2002. The ordinance of 2002 was promulgated and notified in

the official gazette on 28-03-zooz. The object and purpose of enacting the ordinance of 2002 has been explained in its preamble as fostering, increasing private investment and ownership in the midstream and downstream petroreum industry, protecting the public interest while respecting individual rights and provide effective and efficient regulations and for matters connected

therewith. The Authority has been defined as meaning the oir and Gas Regulatory Authority established under section 3. The expression "regulations" has been defined in section 2 (rcuiii) as meaning regulations made under the ordinance of 2002. The composition of the Authority has been provided in subsection (3) of section 3 i.e. the chairman and three additionar Members. The powers and functions of the Authority have been described in Section 6 of the ordinance of 2002. Section 14 empowers the Authority to emproy officers, members of its staff, expefts,

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consultants, advisers and other employees on such terms and conditions as it may deem fit. Subsection (2) of section 14 provides that the Authority shall prescribe by regulations the procedure for appointment, promotion, termination and other terms and conditions of emproyment of persons emproyed by the Authority.

section 21 describes the powers of the Federal Government in the context of issuance of poliry guidelines. Section 41 empowers the

Authority to make rures with the approvar of the Federar

Government. section 42 is in respect of the power to make regulations and it provides that the Authority is excrusivery empowered to make regulations by notification in the official gazette. Pursuant to the powers conferred under section 42 of the ordinance of 2002, the Authority without the approvar of the Federal Government has made the Regulations of 2005.

11.when the ordinance of 2002 is read as a whore it becomes obvious that to the exteni of appointment of the employees of the Authority and determination of their terms and conditions of service, the Federal Government has not reserued to itself any role or power. The Authority is excrusivery empowered to make the regulations in respect of the terms and conditions of the employees. Moreover, the regulations made by the Authority under section 42 read with section 14 of the ordinance of 2002 definitely extends only to the emproyees of the Authority. The Regurations of 2005 do not have an overarching reach, as is the case of the Regulations, which were considered by the august supreme court in the case of "shafique Ahmed Khan and others vs.

NESCOM

through chairman, Isramabad and others,, supra. The regisrative

W.P. No. 2657 of 20t5.

intent of the ordinance of zoo2 unambiguousry creates a

relationship between the Authority and its emproyees based on entering into a contract freely i.e. there being no fetters placed on the rule making authority in relation to determination of the terms and conditions. Approvar of the government is not required. The composition of the Authority is free from control of the Federal Government. The power to make rules under section 42 vests in the Authority without seeking approval from the government. The Regulations of 2005 have, therefore, been made by the Authority without formal or impricit approvar of the government. w€, therefore, hold that the status of the Regutations of 2005 is non_ statutory.

t2. The grievance of the petitioners is in respect of the refusal on part of the Authority to pay professionar Alrowance. The petitioners are, therefore, essentially asserting that the act of the

Authority is viorative of the Reguration's of 2005. Despite having declared the Regurations of 2005 as non-statutory, the petition is yet maintainable on the touchstone of the law laid down by the august supreme couft in the case of .,Muhammad Rafi and another

vs. FoP and others", supra. we shail know advert to the grievance raised through this petition.

13.The controversy stems from the interpretation of the expression professional Allowance and its exptanation given in Appendix-B. The various allowances are enumerated in Appendix_B of the Regulations of 2005. professional Allowance i.e. 40olo basic pay is included as one of the allowances. The explanation regarding Professional Ailowance mentioned in Appendix-B as foilows:-

W.P. No. 2657 of20t5.

"Permissible only in case of Engineerc, Scientists, Chartered Accountants, MBAs, ACMAs, MCSs, Lawyers, Economists etc., engaged to perform professional duties in the Executive cadre in the relevant field."

14.It is obvious from the above, that in order to craim entitlement for payment of Professional Allowance two conditions have to be met. Firsuy, possessing one of the quarifications mentioned in the explanation and secondly, that such a person is engaged to perform professional duties in the Executive cadre in the relevant fierd, The person must, therefore, be in the Executive cadre i.e. in grade E-6 to E-1 and that he or she ought to be engaged in peforming professional duties in the relevant field. The expressions "performing professional duties,, and ..relevant field,, have not been defined either in the ordinance of z00z nor in the Regulations of 2005. Likewise, the language is vague and gives rise

to absurdity. The Authority vide the impugned order has interpreted the expranation given in Appendix-B in the right of Appendix-A' Appendix-A describes the seruice Groups with nomenclature of posts. Thg minimum criteria required for appointment in the respective service Groups has arso been prescribed. Appendix-$oir.r the description of the pay scares and allowances made applicabre from 1'r December zoo4. we have not been able to pursued ourserves that there is a nexus between Appendix-A and B. we have also not been able to understand as to how the Authority has estabrished a rink between Appendix-A and B

W.P. No. 2657 of 2015.

while interpreting the explanation of the expression professional Allowance. The reasoning of the Authority in the impugned order is based on reading into the provisions of the Regulations of 2005 something not provided therein. The Authority has interpreted the expression "professional duties" in the relevant field which has the effect of excluding the seruice group titled ,.General,,. Reading the Regulations of 2005 as a whole also does not support the conclusions reached by the Authority that a person transferred from one seruice group to the other would not be entifled to payment of Professional Allowance. The expression professional Allowance and the explanation reproduced above are independent and distinct provisions having no nexus with Appendix-A on the basis of the language thereof. The language of the explanation appears to have given rise to an absurd and anomalous situation.

An employee in the Executive cadre transferred or appointed in the service Group tifled "Technical" or ..Finance,, has been held as not entitled despite performing the same ouiies as others.

15.As arready noted the expression .,professionar duties,, has not been defined either in the ordinance of 2002 nor the Regulations of 2005. The Brack's Law Dictionary Ninth Edition defines 'profession' as a vocation requiring advance education and

training while 'professional'as a person who belongs to a learned profession or whose occupation requires a high level of training and proficiency. Likewise, the Advanced Law Lexicon 2009 Edition defines a 'profession'as an activity carried on by an individual by his personal skill, intelligence, while .professional, has been defined

as peftaining to, or connected with a profession. .professional duty,

W.P. No.2657 of20l5. 26

has been defined as a duty pertaining to or connected with one's profession. The Concise Oxford English Dictionary Twelfth Edition defines 'profession' as a paid occupation, especially one involving training and a formal qualification and 'professional' as relating to or belonging to a profession, worthy of a professional person, skilful or competent; engaged in an activity as a paid occupation rather than as an amateur.

16.The dictionary meanings of the expression 'professional'is wide enough to include the duties performed by the persons recruited and performing duties in the seruice group titled "General". We have failed to understand as to how a person engaged in performing duties in the departments of Human Resources, Public Relation, Administration or Secretariat can be declared as not being engaged in performing professional duties. In the instant case, all the petitioners hold MBA degrees and, therefore, they fulfill the first condition. The Professional Allowance has been denied to them for the sole reason that despite holding a MBA qualification, they have been appointed and are performing duties in the respective depaftments of the seruice group titled "General". A plain reading of the explanation reproduced above, clearly shows that any person who possesses the qualifications mentioned therein and is engaged in performing duties in any one of the departments of the service group including "General" would be entitled to payment of Professional Allowance. Neveftheless, the impugned order has been passed by the Authority. The latter is also vested with the exclusive power and jurisdiction to make regulations under section 42 of the Ordinance of 2002. The , Regulations of 2005 have been framed by the Authority and,

W.P. No.2657 of2015 27

therefore, the latter is also the sole judge to make a determination in relation to the intent thereof. The Authority has interpreted and declared its intention vide impugned order, dated 31-07-2015.

According to the interpretation of the Authority, the expression "engaged in professional duties in the relevant field" has a specific meaning. We can obviously not ignore the said interpretation since the framer of the Regulations of 2005 has declared as to what was intended in the context of Professional Allowance.

17.As already noted above, the language of the explanation of "Professional Allowance" is vague and does not support the interpretation of the Authority declared in the impugned order, dated 31-07-2015, However, it would be just and proper to dispose of the instant petition in the following terms;

(a)If the language of the explanation of the expression "Professional Allowance" in Appendix-B of the

Regulations of 2005 is not in consonance with the intent of the Authority i.e. the entity vested with unfettered and exclusive power and jurisdiction to frame regulations under section 42 of the Ordinance of 2002, then the latter shall be at libefi to amend the same so as to bring it in line with the intended object and purpose.

(b)In the event that the explanation of the expression "Professional Allowance" is not amended by the Authority till 30-08-2017 then the petitioners shall be entitled and paid the "Professional Allowance" with effect from 01-09- 20L7. In such an eventuality it would be presumed that the Authority treats the petitioners entitled despite

W.P. No. 2657 of 2015 28

having interpreted the provisions of the Regulations of 2005 vide order, dated 31-07-2015.

18.We, therefore, allow this petition in the above terms.

Kavauf) Judge Judge

Announced in the open Court on 22-od -t .luag

Asif Mughal/*

Uploaded By: Engr. Umer Rasheed Dar