Asif Iqbal VS CAA etc

ORDER SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

W.P.No.3706 of 2019 Asif Iqbal Versus Civil Aviation Authority through its Director General and another S. No. of order Date of order/ Order with signature of Judge and that of parties or counsel / proceedings Proceedings where necessary. 14.06.2023 Ms. Kashifa Niaz Awan, Advocate for the petitioner.

Mr. Ehsaan Ali Qazi, Advocate for the respondents / C.A.A.

Through the instant writ petition the petitioner, Asif Iqbal, impugns the order dated 17.10.2019 passed by the respondents whereby he was transferred from Islamabad International Airport to Gwadar Airport with immediate effect.

2.Learned counsel for the petitioner submitted that the petitioner has been victimized due to his trade union activities and because he had instituted writ petition No.2403/2019 against the respondents before this Court; that the petitioner’s transfer order has also been issued in contravention of the respondents’ own policy contained in letter dated 15.05.2019; and that under the said policy, non-Baloch employees of the Civil Aviation Authority (“C.A.A.”) could not be transferred to any station in Balochistan. Learned counsel for the petitioner prayed for the writ petition to be allowed in terms of the relief sought therein.

3.On the other hand, learned counsel for the C.A.A. submitted that he had a meeting with the Legal Department of the C.A.A. to explore the possibility of the petitioner’s transfer order to be revisited but he was instructed that since a number of employees of the C.A.A. had been transferred, an exception could not be made for

the petitioner. He further submitted that for posting in Balochistan, the petitioner would receive an additional allowance and that the petitioner’s expertises are required at Gwadar Airport. Learned counsel for the C.A.A. stressed on his objection to the maintainability of the instant petition on the ground that the petitioner’s terms and conditions of service are not governed by any statutory service Rules or Regulations. Learned counsel for the C.A.A. prayed for the writ petition to be dismissed.

4.I have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance.

5.Before delving into the merits of the case, I deem it appropriate to decide the objection of the learned counsel for the C.A.A. to the maintainability of the instant petition.

6.The Civil Aviation Authority Service Regulations, 2000 were made by the Board of the C.A.A. in its 87th meeting held on 15.01.2000. These Regulations were made in exercise of the powers conferred by Sections 12, 14 and 27 of the Civil Aviation Authority, Ordinance, 1982 (“the C.A.A. Ordinance”). Section 12(2) of the said Ordinance provides that the C.A.A. shall prescribe by regulations the procedure for appointment of its officers, servants, experts and consultants, and the terms and conditions of their service. Furthermore, Section 27 of the C.A.A. Ordinance empowers the C.A.A. to make regulations, not inconsistent with the said Ordinance and the rules made thereunder, to provide for all matters for which provision is necessary or expedient for carrying out the purposes of the said Ordinance. Similarly, the Civil Aviation Authority (Efficiency

and Discipline) Regulations, 2014 have not been made or approved by the Federal Government.

7.In the case of Muhammad Zaman Vs. Government of Pakistan (2017 SCMR 571), the Hon'ble’ Supreme Court held that since the State Bank of Pakistan Officers (Pension-cum-Gratuity) Regulations, 1980 were non-statutory therefore the employees of the State Bank of Pakistan could not invoke the Constitutional jurisdiction of the High Court for a direction for the grant of periodical increases in pension in line with those granted by the Federal Government. In the said judgment, it was inter alia held that in order to determine whether the Rules or Regulations of a statutory body were statutory or otherwise, it had to be seen whether the Rules or Regulations “deal with instructions for internal control or management, or they are broader than and are complimentary to the parent statute in matters of crucial importance”. The former were held to be statutory, whereas the latter were to be non- statutory. The C.A.A.’s Service Regulations dealing with procedure for disciplinary proceedings of the employees of the C.A.A. are clearly for the internal control and management of the C.A.A.

8.The provisions of the C.A.A. Ordinance do not require the Service Regulations to be approved by the Federal Government. It is an admitted position that the C.A.A.’s Service Regulations, 2000 have not been approved by the Federal Government. The Hon'ble Supreme Court in the case of Muhammad Nawaz Vs. Civil Aviation Authority and others (2011 SCMR 523) has already declared the Service Regulations of the C.A.A. to be non-statutory. Additionally, in the

case of Muhammad Aslam Khan Vs. Federation of Pakistan (2013 SCMR 747), it was held that the C.A.A. had no statutory rules. Therefore, following the dicta in the above-mentioned judgments, I hold that the objection taken by the learned counsel for the C.A.A. to the maintainability of the instant petition succeeds and consequently, the same is dismissed as not maintainable. I have refrained to express any view on the merits of the case. No order as to costs.

(MIANGUL HASSAN AURANGZEB)

JUDGE

Sultan*