Muhammad Ali Shah etc VS NADRA

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT

W.P No. 3210-P of 2012

JUDGMENT

Date of hearing_____06.03.2014_______ Petitioner______Muhammad Ali Shah etc Respondent _____NADRA ______

NISAR HUSSAIN KHAN, J.- Through this common judgment, we propose to decide two writ petitions, bearing Nos. 3210/2012 and 3437/2012 as common question of law and facts is involved in both these petitions.

2.In W.P.No.3210/2012, the petitioners have asked for the following prayer:- Ishaq Shah,PS WP#3210/2012 (Justices Nisar Hussain Khan & Syed Afsar Shah )

“It is therefore most humbly prayed that on acceptance of this writ petition, the august Court is requested to declare that :-

(i)The new service structure dated 6.3.2012 as without lawful authority, unconstitutional, violation of Article 4, 25 and 27 of the Constitution, violation of decision made in meeting dated 22.2.2012 discriminatory and disadvantageous to the service career of the petitioner, therefore, the same may be set aside.

(ii). The respondents may be directed to restore the name, designation as Deputy Director with pay scale BPS- 18 with all consequential benefits.

(iii). Any other remedy which is not specifically prayed for that may also be awarded in favour of petitioners.”

Almost same prayer has been made in W.P.No.3437/2012, thus, need no reiteration.

Ishaq Shah,PS WP#3210/2012 (Justices Nisar Hussain Khan & Syed Afsar Shah )

3.Precisely stated facts as averred in the petitions are that petitioners joined National Database Registration Authority (hereinafter would be called as “NADRA”) as Assistant

Manager/System Engineer in SPS-0-6 which is equivalent to BPS-17; that petitioners were later on promoted on different dates to the posts of Deputy Manager in SPS-O-7 which is equivalent to BPS-18;

that all the employees of NADRA were regularized, vide Notification dated 17.10.2011 with immediate effect;

that recently, the post of Deputy Manager was re- designated as Deputy Director and was placed in BPS- 18 which was followed by Notification issued by NADRA on 23.2.2012. Likewise, the Provincial Headquarter also issued the same re-

designations on 28.2.2012. However, on 6.3.2012 a new service structure and BPS was issued which was totally in violation of decision taken in meeting dated 22.3.2012 which resulted into demotion of the Ishaq Shah,PS WP#3210/2012 (Justices Nisar Hussain Khan & Syed Afsar Shah )

petitioners to BPS-17 while they were already working in BPS-18(SPS-O-7) and their previous service was taken as service in BPS-16 while they were inducted into service in BPS-17. Consequently, their salaries adjustment was also not done according to BPS-18 but it was according to BPS-16 & BPS-17 which adversely affected the petitioners’ service career, compelling them to knock the doors of this court by filing instant petitions for the redressal of their grievance.

4.Learned counsel for petitioners in

W.P.No.3210/2012 argued that posts of SPS-0-6 are equivalent to BPS-17 and that of SPS-0-7 are equivalent to BPS-18 and petitioners were appointed in BPS-17 as Assistant Manager and later on promoted to BPS-18 as Deputy Manager; that all the petitioners were offered either to opt for new BPS or remain on permanent contract basis; that petitioners opted for BPS equivalent perks, privileges and powers under the Ishaq Shah,PS WP#3210/2012 (Justices Nisar Hussain Khan & Syed Afsar Shah )

existing Government BPS rules and regulations but later on new Service Structure was introduced vide impugned Notification dated 6.3.2012 which resulted into their demotion to the lower scale. Learned counsel for petitioners in W.P.No. 3437/2012 argued that there is no post of Deputy Assistant Director in the original formula which has wrongly been introduced later on, as such the respondents have deceived the petitioners after acceptance of their offer of regular service.

5.Learned counsel for the respondents

while responding to the respective arguments of learned counsel for petitioners in both the petitions, contended that no employee has been degraded or demoted. He maintained that equivalency and Regularization Notification has not been issued by the competent authority; that the petitioners have themselves opted for regular service, so they cannot turn around at this stage and ask for higher scales. He maintained that in Ishaq Shah,PS WP#3210/2012 (Justices Nisar Hussain Khan & Syed Afsar Shah )

NADRA hierarchy, the highest post is of BPS-20 and in case the petitioners are allowed the pay scale, they asked for, the whole structure would be disturbed and the General Manager will have to be given BPS-21 which is not available in the authority. He maintained that offer form was accompanied by the equivalency schedule which they have consciously accepted, as such they are not entitled to question the same. However, he conceded that the equivalency chart/schedule of the service scales as alleged by the petitioners is not disputed.

6.We have given our anxious

considerations to the arguments of the learned counsel for the parties and have gone through the record with their value assistance.

Ishaq Shah,PS WP#3210/2012 (Justices Nisar Hussain Khan & Syed Afsar Shah )

7.The contention of the petitioners with regard to their appointment as Assistant Manager in SPS-0-6 equivalent to BPS-17 as well as their promotion to the post of Deputy Manager (SPS-0-7) is not disputed by the respondents in their comments. The only controversy is with regard to re-designation of the post in new service structure which according to the petitioners has culminated into their

degradation/demotion to the lower pay scale.

8.For regularization of the employees of NADRA, Regularization of NADRA Employees Scheme 2012, was floated on 23rd February, 2012, vide Case No. NADRA/ HR /

Misc/25/Regularization. It was decided in light of meeting held on 22.2.2012 the Chairmanship of Minister for Interior, to re-designate the services of the NADRA employees to bring them in line with designations of other Government Ishaq Shah,PS WP#3210/2012 (Justices Nisar Hussain Khan & Syed Afsar Shah )

Departments. In view of new service structure, it was suggested that the post of Manager shall be re- designated as Additional Director(BPS-18), Deputy Manager to be re-designated as Deputy Director also BPS-18 while Assistant Manager to be called as Assistant Director in BPS-17. In Regulation 4(b)(1) &

(2)the employees of NADRA were offered, either to opt for BPS equivalent perks, privileges and powers under the existing Government BPS rules and regulations or to avail special NADRA package scales (SNPS), in which contract employees serving in NADRA at the time of regularization scheme were offered open ended (Permanent Regularized Contract) under SNPS scheme on the same terms and conditions of their existing contract. It was followed by Notification No.

NADRA/HR/OR/49/Re-designation dated 23.2.2012, in which the current and new designations were provided.

According to this notification too, the post of Manager was re-designated as Additional Director, Deputy Ishaq Shah,PS WP#3210/2012 (Justices Nisar Hussain Khan & Syed Afsar Shah )

Manager as Deputy Director and Assistant Manager as Assistant Director. To supplement the same, another Notification of re-designation, vide No. PHQ/ NADRA/Policy/14/HR, dated 28.2.2012 was issued from the Provincial Headquarter which also contained the same structure, whereby all the concerned authorities were intimated to mention the new designations for all purposes in future correspondence.

It is pertinent to mention at this juncture that according to Annexure-B, all NADRA employees i.e. category 0-1 to 0-10 and T-1 to T-10 were regularized pursuant to the order of Minister of Interior, vide Notification No.

NADRA //HR/OR/49/ Regularization, dated 17th October, 2011. According to petitioners they had opted for Government Pay Scales, Rules and Regularization.

9.It is strange that when earlier

regularization order was passed on 17.10.2011 then Ishaq Shah,PS WP#3210/2012 (Justices Nisar Hussain Khan & Syed Afsar Shah )

what necessitated to issue another Notification No.

NADRA /HR/Regularization /27, dated 6th March, 2012 qua equivalency of designations/pay scales. It is this notification and particularly the equivalency table which according to the petitioners have offended their service career. As per this schedule of clarification of designation/pay scales, earlier post of Assistant Manager has been equated with Deputy Assistant Director and has been placed in BPS-16. As discussed earlier, none of the proposals contained such posts of Deputy Assistant Director nor it has been placed in BPS-16. According to regularization of NADRA Employees Scheme 2012, formulated on 23.2.2012 and issued by the Chairman NADRA, post of Assistant Manager was re-designated as Assistant Director and was placed in BPS-17 while the post of Senior Supervisor was re-designated as Superintendent in BPS-16. The respondents have failed to justify their deviation from earlier scheme particularly when they Ishaq Shah,PS WP#3210/2012 (Justices Nisar Hussain Khan & Syed Afsar Shah )

have not disputed the equivalency formula of SPS-0-6 to be equivalent to BPS-17. For further clarification, we have noted that the petitioners alleged their original appointment as Assistant Manager in SPS-0-6 which was equivalent to BPS-17. This factum has been conceded by the respondents in their comments as well as learned counsel for the respondents at the bar. In case the new formula is validated it would certainly adversely affect the petitioners’ service career as their original appointment shall be treated in BPS-16.

10.It is settled law that a right accrued to a person or for that matter to an employee, cannot be taken away by a notification giving it a retrospective effect. The respondents have also not assigned any reason for deviation from the original scheme nor have justified the same for creation of a new post of Deputy Assistant Director of BPS-16.

Ishaq Shah,PS WP#3210/2012 (Justices Nisar Hussain Khan & Syed Afsar Shah )

11.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 to appoint Registration Officers, members of its staff, experts, consultants, advisers and other officers and employees on such terms and conditions as it may deem fit in order to carry out the purposes of this Ordinance .

While Section 44 empowers the Federal Government to make Rules for carrying out the purpose of Ordinance and Section 45 empowers the Authority to make regulations by Notification for carrying out its functions under the Ordinance and any other matter.

Sub-Clause (2) of Section 45 clarifies that such regulations may provide for appointment of officers motioned in Section 35. The authority, pursuant to Section 35, 37 and 45 notified its Regulations on 1.11.2002 vide SRO 118(KE)/2002. According to Regulation No.3 of the Regulations, employees of the Ishaq Shah,PS WP#3210/2012 (Justices Nisar Hussain Khan & Syed Afsar Shah )

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. Thus Authority being a statutory body, regulated by its own Rules is amenable to writ jurisdiction of the High Court.

12.The authority on 21.6.2003 issued a Notification No. F&A/ NADRA/HQ/2002/2002 providing equivalency table of the pay scales of NADRA employees and that of the Government Pay Scales. The said Notification is reproduced in extenso as below:- “No.F&A/ NADRA/HQ/2002-2003. In

pursuance of the decision of the Authority, following further amendment in the

Appendix-4 to Regulation 49(2) & (3) to NADRA Employees (Service) Regulations, 2002, notified vide S.R.O. 118(KE)/2002, dated 1st November, 2002 has been approved Ishaq Shah,PS WP#3210/2012 (Justices Nisar Hussain Khan & Syed Afsar Shah )

with immediate effect and until further

orders:-

Management Technical Equivalent Basic Scale pay scale Scale

0-10 T-10 B-20

0-9 T-9 B-19

0-8 T-8 B-18

0-6 & 0-7 T-4 to T-7 B-17

0-5 T-3 B-11

0-4 T-2 B-11

0-2 & 0-3 T-1 B-7

0-1 - B-1

13.According to this table, 0-6 and 0-7 alongwith T-4 to T-7 have been shown equivalent to BPS-17 and 0-8 and T-8 have been made equivalent to BPS-18. The authority can issue Notification for the benefit of subjects but in no way can take away the right already accrued in their favour on the principle of locus penetentiae merely by issuing a notification. The authority could not have gone beyond the table of equivalency provided in the Notification dated 21.6.2003 referred herein above and could not have placed the employees of SPS-0-6 in BPS-16 instead of

BPS-17.

Ishaq Shah,PS WP#3210/2012 (Justices Nisar Hussain Khan & Syed Afsar Shah )

13.In view of the above discussion, we by allowing both the petitions, set aside the impugned Notification No.NADRA/HR/Regulations/27, dated 6th March, 2012 to the extent of equivalency table and direct the respondents to re-designate their pay scales as mentioned in the Notification No. F&A/NADRA/HQ/ 2002-2003, dated 21.6.2003 with all consequential benefits by treating their original appointments of 0-6 in BPS-17, as discussed earlier.

JUDGE

Announced on 6th March,2014 JUDGE

Ishaq Shah,PS WP#3210/2012 (Justices Nisar Hussain Khan & Syed Afsar Shah )