Iftikhar Ali Haidri VS FOP, etc

JUDGMENT SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

W.P. No.3987 of 2021 Iftikhar Ali Haidri Versus Federation of Pakistan and others

Date of Hearing: 05.07.2022.

Petitioner by: Mr. Fiaz Ahmed Anjum Jandran, Advocate.

Respondents by: Hafiz Arfat Ahmad Ch. and Mr. Tariq Zaman Ch., Advocates for C.D.A.

MIANGUL HASSAN AURANGZEB, J:- Through this judgment, I propose to decide writ petitions No.3987/2021 and 233/2022 since they entail certain common features.

2.Through writ petition No.3987/2021, the petitioner, Iftikhar Ali Haidri, has voiced his grievance against the imposition of a condition to the effect that before processing his case for promotion to the post of Director (BPS-19), it should be verified from the National Accountability Bureau (“N.A.B.”) and the Federal Investigation Agency (“F.I.A.”) as to whether any case is pending against him.

3.Through writ petition No.233/2022, the petitioner, Iftikhar Ali Haidri, assails the order dated 12.01.2022 issued by the Human Resource Development Directorate of the Capital Development Authority (“C.D.A.”), whereby he was informed that his promotion to the post of Director (BPS-19) was deferred on account of a pending inquiry against him as well as an appeal before the Hon'ble Supreme Court of Pakistan against the judgment passed by this Court, whereby he was acquitted and his conviction by the learned Accountability Court, Islamabad, was set-aside.

4.The record shows that presently the petitioner is serving as a Deputy Director (Enforcement) in the C.D.A. The Departmental Promotion Committee (“D.P.C.”), in its meetings dated 28.10.2021 and 07.01.2022, considered the petitioner for promotion to the post of Director (BPS-19) (Enforcement Cadre).

5.Vide letter dated 12.01.2022, the petitioner was informed as to his deferment for the following reasons:- “An investigation is still pending against Mr. Iftikhar Ali Haideri, Deputy Director (BS-18) before NAB (R). Moreover, FIR bearing No.04/2021 dated 07.05.2021 is also registered against him in Federal Investigation Agency 08 months ago which is under investigation, as such exemption given in provision of clause-05 (i) of CDA Promotion Policy-2020 for the post in BS-18 to BS-20 duly notified vide HRD Directorate’s notification No. CDA-1(1)- HRD-2009/Sec-I/368 dated 12.02.2021 in not applicable in his case.”

6.The petitioner has relied on an extract from the note file maintained by the Human Resource Directorate of the C.D.A. Paragraph 16 of the note file shows that the D.P.C., in its meeting dated 28.10.2021, after considering the petitioner for promotion, had recommended that the petitioner be promoted to the post of Director (BPS-19) (Enforcement Cadre) with effect from 28.10.2021. Minutes of the said meeting were prepared and submitted for confirmation by the Members and Chairman of the D.P.C. The Chairman of the D.P.C., in paragraph 18 of the note file, made the following observation:- “Before processing further, it may be clarified from NAB/FIA that whether any case is pending at their end-written report may be obtained in this regard.”

7.On 10.11.2021, the petitioner filed writ petition No.3987/2021 praying for a declaration to the effect that the clarification from N.A.B. / F.I.A. as a condition for the petitioner’s promotion be declared illegal and without lawful authority.

8.Learned counsel for the petitioner, after narrating the facts leading to the filing of the instant petitions, submitted that the petitioner has been eligible for promotion as Director (Enforcement) since the year 2015, but could not be considered for promotion due to unavailability of a vacant post; that the said post became available in October, 2016, whereafter the petitioner requested the C.D.A. to consider him for promotion; that the petitioner’s successive representations to the C.D.A. did not bear any fruit; that the petitioner has successfully completed the Mid-Career Management Course (“MCMC”) by securing first position amongst the officials of C.D.A.; that it was not until 26.10.2021 that a D.P.C. was constituted to consider the

petitioner for promotion; that the D.P.C. , in its meeting held on 28.10.2021, recommended that the petitioner be promoted as Director (BPS-19) (Enforcement Cadre) with effect from 28.10.2021; that despite the said recommendation, no notification for the petitioner’s promotion was issued; that Chairman of the D.P.C. deemed it appropriate to obtain a clarification from N.A.B. / F.I.A. on whether any case is pending against the petitioner; that the imposition of the said condition was assailed by the petitioner in writ petition No.3987/2021 before this Court; that during the pendency of the said petition, the C.D.A. sent letter dated 12.01.2022 to the petitioner informing the latter that his promotion had been deferred due to an investigation against him by N.A.B., and the registration of F.I.R. No.4/2021, dated 07.05.2021 against him in the F.I.A.; that the said decision is wholly unlawful since it is well settled that a person cannot be denied promotion due to the registration of an F.I.R. or a pending inquiry / investigation; that the petitioner has an excellent service record and there have been no adverse remarks against him in his annual confidential reports; and that the petitioner has been at serial No.1 in the seniority list of Deputy Director (Enforcement) since the past twelve years.

9.Learned counsel for the petitioner further submitted that although vide judgment dated 10.01.2017, passed in Accountability Reference No.5/2016 by the learned Judge Accountability Court No.1, Islamabad, the petitioner was convicted and sentenced to undergo rigorous imprisonment for a period of one year and six months, the petitioner’s appeal against the said judgment was allowed by the learned Division Bench of this Court, vide judgment dated 15.01.2018; that the judgment passed by Accountability Court No.1, Islamabad, was set-aside and the petitioner was acquitted from the charge of corruption and corrupt practices; and that since presently there is no conviction against the petitioner, he could not be deprived from his right of promotion. Learned counsel for the petitioner prayed for the writ petitions to be allowed in terms of the relief sought therein. In making his submissions, learned counsel for

the petitioner placed reliance on the judgments reported as 2000 PLC (CS) 1070, 2007 PLC (CS) 716, 2011 PLC (CS) 534, 2012 PLC (CS) 1018, 2017 PLC (CS) 373, 2017 PLC (CS) 404, 2017 PLC (CS) 578 and 2017 PLC (CS) 973.

10.On the other hand, learned counsel for the C.D.A. raised an objection to the maintainability of the instant petitions on the ground that the C.D.A. Employees (Service) Regulations, 1992 are non-statutory in nature and so is the C.D.A. Promotion Policy – 2020; and that the C.D.A. Board, in its meeting dated 20.03.2020, has reaffirmed that the guidelines contained in the C.D.A. Promotion Policy – 2020 shall continue to be followed. Furthermore, it was submitted that vide order dated 05.10.2020 passed in criminal petition No.911/2018, the Hon'ble Supreme Court granted leave to appeal against this Court’s judgment dated 15.01.2018, whereby the petitioner was acquitted and his conviction by the learned Accountability Court, was set-aside; that N.A.B., vide letter dated 25.11.2021, has confirmed that an inquiry against the petitioner was pending, and that he had been accused of accumulating assets beyond his known sources of income; that the said inquiry has been upgraded into an investigation; that vide letter dated 15.11.2021, F.I.A. has confirmed that the petitioner has been nominated as an accused in case F.I.R. No.4/2021; that with the instant petition i.e., W.P. No.3987/2021, the petitioner has annexed an extract from the internal note sheet of the C.D.A.; that the petitioner has obtained the said document by adopting unfair means; that the petitioner brought shame to the C.D.A. when he was caught using unfair means during analysis paper-I of the 30th MCMC; that the National School of Public Policy surrendered him from the said course on 02.12.2020; that the said decision was challenged by the petitioner in writ petition No.3681/2020, which was dismissed as withdrawn; that the petitioner’s representation to the National School of Public Policy was declined; that the C.D.A. again nominated the petitioner for the 31st MCMC, which he has completed; and that on account of the pending investigation by N.A.B. against the petitioner and the registration of F.I.R.

No.4/2021, the D.P.C. committed no illegality by deferring his promotion. Learned counsel for the C.D.A. prayed for the writ petitions to be dismissed.

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

12.The facts leading to the filing of the instant petitions have been set out in sufficient detail in paragraphs 4 to 7 above, and need not be recapitulated.

13.I deem it appropriate, in the first instance, to decide the objection taken by the learned counsel for the C.D.A. to the maintainability of the instant petitions.

14.The C.D.A. Employees (Service) Regulations, 1992 were made by the C.D.A. in exercise of the powers conferred by Section 51 read with Sections 37 and 38 of the Capital Development Authority Ordinance, 1960 (“C.D.A. Ordinance”). The said Sections do not require the Regulations either to be made or approved by the Federal Government. The mere fact that Regulations are required to be published in the official Gazette does not give them statutory status. For the purposes of clarity, Sections 37, 38 and 51 of the C.D.A. Ordinance are reproduced herein below:- “37. Appointment of officers and servants etc.

1)The Authority may from time to time, appoint such officers, servants, experts or consultants as it may consider necessary for the performance of its functions, on such terms and conditions as it may deem fit:

Provided that salaried officers and servants whose remuneration exceeds two thousand and five hundred rupees per mensem shall not be appointed except with the previous approval in writing of the (Federal Government).

(2)Subject to the proviso to sub-section (1), the Chairman may, in cases of urgency, appoint such officers, servants, experts or consultants and on such terms and conditions as he deems fit: Provided that every appointment made under this sub section shall be reported to the Authority without unreasonable delay.

38.Recruitment conditions of service and disciplinary powers:- The Authority shall lay down the procedure for the appointment of its officers, servants, experts and consultants, and the terms and conditions of their services including the constitution and management of provident fund for them, and shall be competent to take disciplinary action against them.

51.Power to make regulations: The Authority may make regulations, not inconsistent with the rules, if any, on all matters for which regulations are necessary or expedient; and such regulations shall be published in the official Gazette.”

15.In the case of M.H. Mirza Vs. Federation of Pakistan (1994 SCMR 1024), the Hon'ble Supreme Court held inter alia that the Capital Development Authority Pension Regulations, 1981 which were made by the C.D.A. in exercise of the powers conferred by Sections 37, 38 and 51 of the C.D.A. Ordinance to be non- statutory. For the purposes of clarity, paragraph 6 of the said report is reproduced herein below:- “6. Sections 37, 38, 50 and 51 of the C.DA. Ordinance, 1960 (Ordinance XXIII of 1960) are relevant. An examination of these provisions shows that the CDA was itself to determine the terms and conditions of its employees and that the Government had no say in the matter. None of its Regulations whether framed by it itself or adopted by reference had a statutory basis in law. This view is supported by the view taken in Ch. Abdul Rashid v. Capital Development Authority, Islamabad and another (PLD 1979 Lahore 803) and the Principal, Cadet College, Kohat and another v. Muhammad Shoab Qureshi (PLD 1984 SC 170). The adoption of the rules of the Government or their application by reference will not lend a statutory cover or content to these rules, as held in Lahore Central Co-Operative Bank Limited v. Saif Ullah Shah (PLD 1959 SC (Pak.) 210) and finally very recently in Chairman, Pakistan Council of Scientific and Industrial Research, Islamabad and 3 others v. Dr. Mrs. Khalida Razi (Civil Appeal No. 270 of 1993). There being no statutory Rules in the field, a Constitution petition was not at all competent on the subject.”

16.Placing reliance on the said judgment, this Court has dismissed several writ petitions filed by the employees of the C.D.A. agitating their grievances pertaining to the terms and conditions of their service. Such orders include order dated 09.07.2021 passed by this Court in writ petition No.2722/2020, titled “Javeria Maqbool Vs. Capital Development Authority, etc.”; order dated 19.11.2021 passed by this Court in writ petition No.3377/2021, titled “Rao Muhammad Adil Khan Vs. Capital Development Authority, etc.”; order dated 09.03.2022 passed by this Court in writ petition No.3378/2021, titled “Qaisar Aslam Khan, etc. Vs. Capital Development Authority, etc.”; and order dated 09.05.2022 passed by the Division Bench of this Court in intra Court appeal No.169/2022, titled “Qaisar Aslam Khan, etc. Vs. C.D.A., etc.”. Learned counsel for the petitioner did not come

up with a single judgment where it had been held that the terms and conditions of service of C.D.A.’s employees were governed by any statutory rules or regulations.

17.Through the writ petitions under disposal, the petitioner has agitated grievances purely related to the terms and conditions of the service which are not governed by any statutory rules or regulations.

18.Since I am of the view that the terms and conditions of the petitioner’s service with the C.D.A. are not governed by any statutory rules or regulations, the instant petitions are dismissed as not maintainable. Having held that the instant petitions are not maintainable, it could not be appropriate to delve into the merits of the case. The petitioner is at liberty to avail his remedy before the appropriate forum. There shall be no order as to costs.

(MIANGUL HASSAN AURANGZEB)

JUDGE

ANNOUNCED IN AN OPEN COURT ON 26.07.2022.

(JUDGE)

Ahtesham*