Bashir-ul-Haq Vs The Federation of Pakistan through Secretary Law & Parliament Affaris, Islamabad & others.

PESHAWAR HIGH COURT, PESHAWAR

(JUDICIAL DEPARTMENT)

WP No. 775-P/2015 Bashir-ul-Haq

...........................Petitioner. Versus The Federation of Pakistan Through Secretary Law & Parliament Affairs, Islamabad and others.

......................Respondents.

For the Petitioner: M/s M. Asif Yousafzai, M. Isa Khan Khalil, Javed Iqbal Gulbela, Fazal Shah Mohmand, Azhar Yousaf Khan & Akhtar Ilyas, Advocates.

For the Respondents: M/s Shumail Ahmad Butt AG, Aamir Javed Addl. Attorney General, Mubashir Manzoor AAG & Hafiz Noor Muhammad Advocate.

Date of Hearing: 30.11.2022

JUDGMENT

SYED ARSHAD ALI, J.:- Through this consolidated judgment, we shall dispose of this petition as well as connected petitions as adjudication of common questions of law and facts are involved therein. Particulars of the said petitions are as under:- S. No. Case Title

1.WP No. 775-P/2015 “Bashir-ul-Haq vs. The Federation of Pakistan through Secretary Law and Parliamentary Affairs, Islamabad and others”.

2.WP No. 1276-P/2016 “Sohail Noor vs. The Federal Government through Federal Secretary Ministry of Science and Technology, Islamabad and others”.

3.WP No. 476-P/2017 “Engineer Saif-ul-Islam vs. Pakistan Council of Scientific & Industrial Research (PCSIR) through its Chairman, PCSIR Head Office, Islamabad and others”.

4.WP No. 1153-P/2017 “Abdul Hakeem vs. The Federal Government through Federal Secretary Ministry of Science and Technology, Islamabad and others”.

5.WP No. 1314-P/2017 “Tufail Ahmed vs. The Federal Government through Federal Secretary Ministry of Science and Technology, Islamabad and others”.

6.WP No. 1385-P/2018 “Muhammad Ilyas and another vs. The Federal Government through Federal Secretary Ministry of Science and Technology, Islamabad and others”.

7.WP No. 6314-P/2018 “Gul Hassan vs. The Federal Government through Federal Secretary Ministry of Science and Technology, Islamabad and others”.

8.WP No. 720-P/2020 “Atif Zeb vs. Chairman PCSIR Headquarters, Islamabad and others”.

9.WP No. 5120-P/2021 “Shamsur Rehman vs. The Federation of Pakistan through Ministry of Science & Technology, Islamabad and others”.

10.WP No. 5167-P/2019 “Zahid Hussain and another vs. Director General Pakistan Council of Scientific and Industrial Research (PCSIR), Peshawar and others”.

11.WP No. 1487-P/2020 “Siraj-ud-Din vs. Chairman, PCSIR Headquarters, Islamabad and others”.

12.WP No. 3279-P/2020 “Niaz Muhammad vs. Pakistan Council of Scientific & Industrial Research through its Director, Peshawar and another”.

13.WP No. 4003-P/2020 “Alif Gul vs. Director General, Pakistan Council of Scientific and Industrial Research (PCSIR), Peshawar and others”.

14.WP No. 4769-P/2020 “Irshad Ali vs. Director General, Pakistan Council of Scientific and Industrial Research (PCSIR), Peshawar and another”.

15.WP No. 1632-P/2021 “Engineer Mehtab Ahmad vs. Govt. of Pakistan through Secretary Ministry of Science & Technology, Pakistan Council of Scientific & Industrial Research, Islamabad and others”.

16.WP No. 3288-P/2021 “Shahid Ullah vs. Director Precision, System Training Center Campus, PCSIR, Peshawar and others.”.

17.WP No. 3675-P/2021 “Syed Rehman vs. Chairman PCSIR, Head Office, Islamabad and others”.

18.WP No. 2813-P/2021 “Muhammad Usman vs. Federation of Pakistan through Secretary Science and Technology, Islamabad and others”.

19.WP No. 3929-P/2022 “Engr: Saif Ul Islam vs. Govt. of Pakistan through Secretary Science & Technology, Islamabad and others”

Writ Petition No. 775-P/2015

2.It is alleged in the petition that the petitioner works as Scientific Assistant in the PCSIR Labs, Complex, Peshawar and as per order dated 19.01.1998 he has completed his training for Glass Blowing at PCSIR Laboratories Complex, Lahore and granted him two advance increments w.e.f. 21.09.1999, however, the same was stopped without any reason. The petitioner submitted an application to the respondents for implementation of order dated 01.12.1999 but they refused; hence, the petitioner has filed the instant writ petition with the prayer to direct the respondents to implement the order dated 01.12.1999 along with all back/future benefits.

Respondents have furnished their parawise comments wherein it is alleged that they have no statutory service rules/regulations and thus, the instant petition is not maintainable. Similarly, the relationship between the petitioner and respondents is that of master and servant; the two advance increments were granted to the petitioner by the Director General, however, keeping in view the observations of Accounts Branch, the same were disallowed. Further, the application of petitioner for implementation of order dated 01.12.1999 is also time barred as the same was filed in the year, 2010.

Writ Petition No. 1276-P/2016

3.It is alleged in the petition that the petitioner had joined the respondent-department as Senior Lab Technician (BPS-11) in the year, 2004 and was promoted to the post of Senior Technician (BPS-14) in the year, 2010, however, it is the claim of petitioner that respondents No. 6 & 7 being not eligible still were promoted to the post of Principal Technician (BPS-16), which is against Regulation-16 of Pakistan Council of Scientific and Industrial Research Employees (Service) Regulations, 1981. Against that, the petitioner filed departmental appeal before respondent No.2 but in vain; hence, the petitioner has filed the instant writ petition with the prayer to set aside the order dated 02.02.2016 to the extent of private respondents No. 6 & 7 and direct respondents No. 2 & 4 to promote him to the post of Principal Technician (BPS-16) w.e.f. 02.02.2016 with all back benefits.

Respondents have furnished their comments wherein it is alleged that they have no statutory service rules/regulations and thus, the instant petition is not maintainable. Similarly, the petitioner is at serial No.8 of the seniority list whereas respondents No. 6 & 7 being on top of the seniority list having prescribed length of service/good ACRs were promoted to the post of BPS-16 by the Departmental Promotion Committee.

Writ Petition No. 476-P/2017

4.It is alleged in the petition that initially, the petitioner was appointed in Balochistan University of Engineering and Technology Khuzdar in August, 1994 and then appointed as Assistant Professor in October, 1997, however, after qualifying interview conducted through Selection Board PCSIR, his services were transferred on the basis of deputation and he was posted him as Principal Precision System Training Centre (PSTC) Quetta. Later, the petitioner was absorbed in PCSIR as Principal Engineer (BPS-

19)vide letter dated 28.11.2005 and presently he is working against the post of Grade-20 as Office Incharge of Material Science Centre. The claim of petitioner is that despite availability of post of Director (BPS-20) since long in the respondents-Organization, he has not been considered for promotion having the requisite qualification/experience; hence, the petitioner has filed the instant writ petition with the prayer to direct the respondents to make proper amendment in the existing Rules which should provide constitution of Promotion Board for Grade-20 and above to consider promotion of employees serving in Grade-19 as prevailing Rules are silent regarding Promotion Board in Grade-20 and above with further direction to upgrade and promote the petitioner to the next higher grade since the date of his entitlement with all back benefits.

Respondents No. 1 to 4 have furnished their comments wherein it is alleged that this petition is not maintainable as the PCSIR Service Regulations, 1981 has been declared non-statutory by the Hon’ble Islamabad High Court vide judgments dated 20.06.2012 & 04.10.2012 passed in Writ Petition No. 4087/2010 & ICA No. 560/2012 respectively. The said judgments were upheld by the Apex Court vide order dated 15.04.2013. Further, against the available vacancies of BS-20, the cases of all eligible candidates along with petitioner were accordingly considered

for promotion by the Departmental Promotion Board meeting held on 9th June, 2015, however, the Board did not consider the petitioner for promotion to BS-20.

Writ Petition No. 1153-P/2017

5.It is alleged in the petition that the petitioner, after undergoing through the process of test/interview, was appointed against the post of Office Assistant on contract basis, however, later, his services were regularized w.e.f. 01.12.2012 as L.D.C (BPS-07) vide order dated 14.02.2013. The claim of petitioner is that he has submitted application for change of his designation from L.D.C. to Office Assistant, however, the same was rejected vide order dated 17.11.2016; hence, the petitioner has filed the instant writ petition with the prayer to declare the order dated 17.11.2016 as without lawful authority and direct the respondents to modify the order dated 14.02.2013 by re-designating his post as Office Assistant. Respondents No. 1 to 5 have furnished their comments wherein it is alleged that they have no statutory service rules/regulations, however, the petitioner was initially appointed on contract basis without any designation and regularized by the Cabinet Sub-Committee for Regularization as L.D.C. as per his qualification; hence, requested for dismissal of the Writ Petition.

Writ Petition No. 1314-P/2017

6.It is alleged in the petition that the petitioner was initially appointed as Lab Assistant (BPS-05) in the year, 1996 and from time to time, he was promoted to the post of Technician (BPS-11). The claim of petitioner is that he was shown at serial No. 4 whereas the private respondents were shown at serial No. 5 to 9 in the seniority list of 2015, however, a tentative seniority list was issued on 07.03.2017 wherein the petitioner has been shown at serial No. 7. Against that, the petitioner filed objection/appeal before the competent authority, which was rejected; hence, the petitioner has filed the instant writ petition with the prayer to declare the Office

Memorandum dated 14.03.2017 as well as impugned seniority list of 2017 as illegal and direct the respondents to restore his seniority position at serial No.4 over and above the names of private respondents with all back benefits.

Respondents have furnished their comments wherein it is alleged that PCSIR has no statutory rules/regulations and the petitioner was placed at serial No. 7 in the seniority list keeping in view Notification of Cabinet Division Amendment Rule-6 of the Civil Servants (Seniority) Rules, 1993; hence, requested for dismissal of petition. Writ Petition No. 1385-P/2018

7.It is alleged in the petition that the petitioners were appointed as Senior Lab Technician (BPS-11) in the year, 2007 and promoted to the post of Senior Technician (BPS-14) in the year, 2012 by placing them at serial Nos. 11& 12 in the seniority list respectively, however, the claim of petitioners is that respondents No. 6 to 8 were recommended for promotion as Junior Technician Officers by the Departmental Promotion Committee on 22.12.2017 whereas their orders have been issued as Principal Technician. Similarly, respondent No. 9 is a Senior Draftsman and his name has been included in the seniority list of Lab employees; thus, the petitioners having no other adequate remedy approached this Court through the instant petition with the prayer to declare/set aside the approval order dated 0103.2018 and subsequent promotion order to the extent of private respondents No. 6 & 8 as illegal and direct respondents No. 2 & 4 to act as per Regulation No. 16 of Regulation 1981 and promote him to the post of JTO (BPS-16) from the date of promotion of private respondents with all back benefits and to further direct respondent No.3 to exclude the name of respondent No.9 from the seniority list of Lab side employees. Respondents have furnished their comments wherein it is alleged that they have no statutory service rules/regulations and the instant petition is not maintainable. It

is further alleged that the petitioners were at serial No. 13 & 14 of the seniority list, therefore, they could not be considered for promotion to the next higher grade whereas respondents No. 6 to 8 being at top of the seniority list having good ACRs were promoted to the post of Principal Technician (BPS-16). Similarly, the working strength of PCSIR has been broadly divided into Technical and non-Technical Cadre and accordingly the seniority position of respondent No. 9 was fixed in technical cadre; hence, requested for dismissal of writ petition.

Writ Petition No. 6314-P/2018

8.It is alleged in the petition that the petitioner had joined the PCSIR, Peshawar as Lab Technician (BPS-07) on 19.04.2007 and then promoted to the post of Technician (BPS-

11)on 03.03.2009, however, the claim of petitioner is that a Departmental Promotion Committee meeting was held on 22.12.2017 wherein respondent No. 6 was recommended for promotion to the post of Senior Technician (BPS-14), which is against Regulation-16 of Pakistan Council of Scientific and Industrial Research Employees (Service) Regulations, 1981; hence, the petitioner having no other adequate remedy; approaches this Court through the instant petition with the prayer to set aside the approval order dated 01.03.2018 and subsequent promotion order to the extent of private respondent No.6 as illegal and direct respondents No. 2 & 4 to act as per Regulation, 1981 and promote him to the post of Senior Technician (BPS-14) from the date of promotion of private respondent with all back benefits.

Respondents No. 2 to 5 have furnished their comments wherein it is alleged that they have no statutory service rules/regulations and the instant petition is not maintainable. Similarly, respondent No.6 was promoted to the post of Senior Technician (BPS-14) being at serial No.1 of the seniority list whereas petitioner is at serial No. 4 and quite junior to him.

Writ Petition No. 720-P/2020

9.It is alleged in the petition that the petitioner was appointed against the post of Technical Assistant on daily wages vide office memo dated 09.08.2019, however, due to hardworking, he was granted extension for another spell of 89 days vide office memo dated 17.11.2019. The claim of petitioner is that 67 posts including 04 posts of Technical Assistant at PCSIR were converted from development to non- development side and services of all others including 03 Technical Assistant were regularized whereas the petitioner’s services have not been regularized despite the fact that one post of Technical Assistant remained vacant; hence, the petitioner has filed the instant writ petition with the prayer to regularize his service against the post of Technical Assistant (BPS-14) without any further delay.

Respondents have furnished their comments wherein it is alleged that the petitioner was engaged for FATA Development Authority on 09.08.2019 for specific period of 89 days on daily wages and then terminated his services on 12.11.2019. The petitioner was again engaged for another period of 89 days and terminated his services on 21.01.2020, however, he is still on daily wages and receiving salary as per interim relief granted by this Court vide order dated 11.02.2020. Further, the petitioner’s project has been completed and he has no right to claim regularization; hence, requested for dismissal of the writ petition. Writ Petition No. 5120-P/2021

10.It is alleged in the petition that the petitioner was initially appointed as Junior Scientific Officer (BPS-16) in the year, 1987 and from time to time, he was promoted to the post of Principal Scientific Officer (BPS-19). According to the petitioner, there are 32 posts of Chief Scientific Officer (BPS- 20), amongst which, only six posts were filled and rest are vacant. The said post is to be filled amongst Principal Scientific Officer having five years service as PSO and have

the leadership/capabilities. The petitioner was at serial No. 16 of the seniority list and his promotion case was submitted to the relevant quarter for placing it before the Departmental Promotion Board vide memo dated 19.02.2021 in light of direction of respondent No.3 dated 04.02.2021. Thereafter, the petitioner submitted various requests for early disposal of his promotion case as he was going to retire in April, 2021 but in vain and finally the petitioner got retired from service on 09.04.2021. The claim of petitioner is that the Departmental Promotion Board meeting was scheduled for 21.10.2021 and he submitted an application to the Board for considering his pending promotion case, however, the Board refused him promotion to higher grade as by then the petitioner retired from service. Against that, the petitioner filed appeal on 27.10.2021 before respondent No.2 but no response has been given to him; hence, the petitioner has filed the instant writ petition with the prayer to declare denial of respondents for promotion as illegal and to direct the respondents to consider him for promotion to BPS-20 on notional/proforma basis from his due date.

Respondents No. 2 to 4 have furnished their comments wherein it is alleged that they have no statutory service rules/regulations, however, the Departmental Promotion Board meeting was not delayed intentionally rather it was delayed due to pandemic Covid-19. Besides the petitioner, certain other officers also retired and they could not be considered for promotion in the Departmental Promotion Board meeting held on 21.10.2022.

WP No. 5167P2019

11.It is alleged in the petition that the petitioners were appointed as Computer Operators in the respondents- department on 22.12.2004, however, later, the post of Computer Operator was replaced/renamed as U.D.C. w.e.f. 25.10.2010. The claim of petitioners is that respondents No. 6 & 7 are performing their duties as Computer Operators. The

nomenclature of their post was renamed as U.D.C (BPS-09) and now they are performing their duties as Office Assistant (BPS-15) whereas the post of petitioners have been replaced/renamed from Computer Operators to L.D.C (BPS- 07), now they are promoted to UDC (BPS-09) on 16.08.2012 w.e.f. 31.05.2012 and the post of UDC has been upgraded to BPS-11 vide office order dated 27.12.2016. Similarly, respondents No. 3 to 5, who were placed as UDC (BPS-09), have been shown senior from the petitioners in the seniority list. Against that, the petitioners filed an appeal before respondent No.2, but the same has not been decided till date; hence, the petitioners have filed the instant writ petition with the prayer to direct respondents No. 1 & 2 to place them in BPS-09 from the date of their entitlement and further direct to promote them to BPS-15 like respondents No. 5 & 6 and also direct respondents No. 1 & 2 to place them on top of the joint seniority list over and above the respondents No. 3 to 5. Respondents No. 1 & 2 have furnished their comments wherein it is alleged that they have no statutory service rules/regulations and the instant petition is not maintainable. Similarly, the petitioners were working as Computer Operators (BPS-07) and re-designated as LDCs in the same scale whereas respondents No. 6 & 7 were working as Computer Operators (BPS-09) and re-designated as UDCs in BPS-09; thus, respondents No. 6 & 7 are senior to the petitioners in all respect. Further, the petitioners were appointed as Computer Operators on 22/23.12.2004 and re- designated as LDCs on 25.10.2010 whereas respondents No. 3 to 5 were appointed/promoted as LDCs on 27.09.2000, 02.12.2004 & 22.12.2004 respectively; therefore, they are also senior from the petitioners in all respect. Writ Petition No. 1487-P/2020

12.It is alleged in the petition that the petitioner, after undergoing through the process of selection, was appointed as Technician on Adhoc basis vide office

memorandum dated 02.11.2007. The claim of petitioner is that instead of regularizing his services in view of judgment dated 20.12.2018 passed by this Court in Writ Petition No. 1256/2013, a fresh offer of appointment as Senior Lab Technician (BPS-07) has been issued to him with immediate effect vide letter dated 29.05.2019, against which, a COC is pending before this Court. Similarly, as per PCSIR Employees (Services) Regulations, 1981, the post of Senior Technician is in BPS-14, which requires five years service as Technician while the petitioner has rendered fourteen years as Technician and he has been designed as Senior Lab Technician and that too in BPS-07. Hence, the petitioner has filed the instant writ petition with the prayer to declare the impugned conduct, omission and inaction of respondents as illegal and direct the respondent to grant him BPS-14 as per PCSIR Employees (Services) Regulations, 1981.

Respondents No. 1 to 4 have furnished their comments wherein it is alleged that as per PCSIR Employees (Service) Regulations, 1981, the prescribed criteria for the post of Senior Technician is Intermediate (Science) with at least 2nd Division while the petitioner has 3rd Division both in Matric and Intermediate and has two years certificate. Further, the services of petitioner have been regularized w.e.f. 29.05.2019 as Technician in compliance of decision of Peshawar High Court dated 20.12.2018 and he does not qualify the criteria for promotion i.e. 05 years service as Technician; hence, requested for dismissal of the Writ Petition.

Writ Petition No. 3279-P/2020

13.It is alleged in the petition that the father of petitioner, while serving as Senior Armed Guard in the respondent-department, was declared unfit by the Medical Board for further service having disease of Aplastic Anemia, however, later, he died due to the aforesaid disease. The claim of petitioner is that he being his son is entitled to be inducted

in any post as per his qualification and thus, has filed the instant writ petition with the prayer to direct the respondents to appoint him in any post.

Respondents have furnished their comments wherein it is alleged that the father of petitioner was a regular employee, who retired from service on medical ground on 09.06.2011 and after his retirement died on 10.06.2012, therefore, the Assistance Package for Families of Government Employees who dies in service issued vide Office Memorandum dated 04.12.2015 is not applicable to the petitioner to appoint him against the post (BPS-1 to BPS-15). Writ Petition No. 4003-P/2020

14.It is alleged in the petition that the petitioner was initially appointed as Naib Qasid in the respondent-department on 03.08.1988 and now serving as Senior Qasid (BPS-05) since 21.05.2007, however, it is his claim that respondent No.3 while serving as Naib Qasid (BPS-04) was transferred from Non-Technical to Technical Cadre and upgraded to the post of Junior Workshop Technician (BPS-07) vide office order dated 07.08.2020. Against that, the petitioner filed appeal on 12.08.2020 but in vain; hence, the petitioner has filed the instant writ petition with the prayer to set aside the impugned office order dated 07.08.2020 and direct the respondents to upgrade his post as per upgradation policy of the Government with all back benefits.

Respondents have furnished their comments wherein it is alleged that they have no statutory service rules/regulations. It is further alleged that the order in question was issued inadvertently and the same was withdrawn on 17.08.2020. It is also alleged that as per instruction of competent authority, the case of respondent No.3 was referred to Departmental Promotion Committee, who in its meeting held on 02.12.2020 recommended him for promotion as Qasid (BPS-05) in Non-Technical Cadre and he is still junior to the petitioner; thus, the plea of petitioner is not tenable.

Writ Petition No. 4769-P/2020

15.It is alleged in the petition that the petitioner was initially engaged on daily wages basis for ninety days against the Industrial Linkage Programme/Project vide office order dated 09.09.2006, however, his period was extended from time to time and later, the petitioner’s services were regularized against the post of Laboratory Attendant (BPS-01) from the date of his joining vide office order dated 12.04.2008. On 31.05.2012, the petitioner was promoted to the post of Senior Lab Attendant (BPS-02). The claim of petitioner is that he qualified his Master Degree in the year, 2014 and approached the respondents time and again to promote him as Lab Technician (BPS-05) but of no avail; hence, the petitioner has filed the instant writ petition with the prayer to declare the omissions/inactions of the respondents by not promoting him to BPS-05 as illegal and direct the respondents to promote/upgrade him as Lab Technician (BPS-

05)from due date with all back benefits.

Respondents have furnished their comments wherein it is alleged that they have no statutory service rules/regulations and the instant petition is not maintainable. It is further alleged that the service of petitioner was regularized as Lab Attendant (BPS-01) and then promoted to the post of Senior Lab Attendant (BPS-02); thus, seeking promotion by the petitioner on the basis of qualification is not tenable under the rules because employees are promoted on the basis of seniority-cum-fitness.

Writ Petition No. 1632-P/2021

16.It is alleged in the petition that the petitioner was appointed as Chemical Engineer (BPS-17) on 23.04.2007 in PCSIR on contract basis and later his services were regularized on 14.02.2013 w.e.f. 01.12.2012, however, it is the claim of petitioner that though his services were regularized but no benefit for the purpose of pay protection/pension has been given to him from the date of his initial appointment. The

petitioner preferred departmental appeal before the respondents for the purpose but till date, no response has been given to him; hence, the petitioner has filed the instant writ petition with the prayer to direct the respondents to regularize his service from the date of his initial appointment i.e. 23.04.2007 to 31.12.2012 till date for the purpose of pay protection/pensionary benefits.

Respondents have furnished their comments wherein it is alleged that they have no statutory service rules/regulations and thus, the instant petition is not maintainable. It is further alleged that the contract employees, under normal circumstances, are regularized from the dates of the conversion of project from Development to Non- Development side whereas the petitioner’s service in the project was neither completed nor converted from development to non-development rather his services were regularized along with other contract employees under the policy of Cabinet Sub-Committee for Regularization constituted by the Federal Government and his salary was fixed as Rs. 16000/- per month with usual allowances as admissible under the Rules. Further, it is clearly mentioned in the offer of appointment of petitioner that his services would be governed by Contributory Pension Payment Scheme (CPPS) of the Federal Government applicable w.e.f. 01.12.2012 till his service in PCSIR; therefore, he is not entitled for the pay protection.

Writ Petition No. 3288-P/2021

17.It is alleged in the petition that the petitioner was appointed against the post of Helper on daily wages basis vide office order dated 05.11.2014 and he has been performing his duties with zeal and devotion, however, it is the claim of petitioner that services of 237 daily wages along with 41 contract employees were regularized by the respondent- department vide orders dated 28.03.2012 and 26.03.2012 and the petitioner has time and again approached the respondents

for his regularization but in vain; hence, the petitioner has filed the instant writ petition with the prayer to declare him as regular employee of respondents-department from the date of his initial appointment with all back benefits. Respondents have furnished their comments wherein it is alleged that they have no statutory service rules/regulations and the instant petition is not maintainable It is further alleged that the petitioner was appointed as Helper on daily wages on 05.11.2014 whereas the employees, whose services were regularized in the year, 2012 on the recommendation of Cabinet Sub-Committee, therefore, the petitioner cannot seek regularization on the basis of contingent/temporary employment.

Writ Petition No. 3675-P/2021

18.It is alleged in the petition that the petitioner was initially appointed as Accounts Officer (BPS-17) at PCSIR Lab Complex, Peshawar vide Office Memorandum dated 12.05.2004 and was promoted to the post of Senior Accounts Officer (BPS-18) vide office order dated 30.01.2012. Through the instant petition, the petitioner, who is now retired, seeks declaration of impugned letters dated 17.06.2019 & 09.4.2021 refusing him upgradation w.e.f. 03.04.2010 as illegal and without lawful authority with direction to the respondents to grant him financial benefits of the said upgradation and release him pension accordingly without any further delay. Respondents No. 1 to 3 have furnished their comments wherein it is alleged that they have no statutory service rules/regulations and the instant petition is not maintainable. It is further alleged that the petitioner was working as Senior Accounts Officer (BPS-18) instead of Accounts Officer (BS-17) on 22.05.2019, therefore, the policy of upgradation was not applicable to him as it was applicable to those employees who were working as Accounts Officer (BS-17) on 22.05.2019; thus, his pay fixation w.e.f. 03.04.2010 to 22.05.2019 was incorrect.

Writ Petition No. 2813-P/2021

19.It is alleged in the petition that the petitioner was appointed as Research Assistant for two years contract period vide office order dated 17.12.2014 under the Prime Minister Assistance Package for families of Government Servants who died in service and his contract period was extended from time to time and lastly was extended for one year vide order dated 18.05.2021. The claim of petitioner is that various entities of the Federal Government have regularized the services of those Civil Servants, who were appointed under the Prime Minister Assistance Package whereas the respondents are reluctant to regularize the services of petitioner. Similarly, under the ibid policy, the petitioner is also entitled for government accommodation but the same has not been allowed to him; hence, the petitioner has filed the instant writ petition with the prayer to declare the inaction/indifference shown by the respondents as illegal and direct the respondents to regularize him in light of policy of Federal Government and further direct the respondents to allow government accommodation as per his entitlement and also to direct the respondents to pay him cost for unnecessary/locking down into litigation. Respondents have furnished their comments contesting the claim of petitioner.

Writ Petition No. 3929-P/2022

20.It is alleged in the petition that the petitioner was initially appointed as Officer (BPS-19) on 01.10.2004 in the respondent-department and later promoted to the post of Chief Engineer (BPS-20) on 22.10.2021, however, vide office order dated 29.06.2022, he was transferred and posted as Director General PLC PCSIR Peshawar. Later, vide impugned order dated 10.10.2022, the petitioner was not only posted against the post of BPS-19 but respondent No.5, who is junior to him, was also posted in his place; hence, the petitioner has filed the instant writ petition with the prayer to declare the impugned

transfer order dated 10.10.2022 as illegal and allow him to complete the normal tenure of transfer/posting. Respondents No. 2 to 4 have furnished their comments wherein it is alleged that:

“Incorrect. The correct position is that the petitioner was posted as Director General, PCSIR Labs. Complex Peshawar vide office order dated 29.06.2022, where he proves himself to be unworthy of posting, having below average output of the Third largest Institute of PCSIR, the petitioner is again posted to PSTC Peshawar, where he remained posted to B-20 from 22.10.2021 to 2906.2022. Further, in accordance with the provision of Criteria for the appointment and Promotions of Scientists an Technical Staff in the PCSIR, Category ‘A’ of the PCSIR Employees (Service) Regulations-1981 (Annex-V), on the chief Scientific Officer (CSO) could be posted as Director of the Unit, therefore, the Respondent NO.05, who is CSO was posted as Director General on merit”.

21.The learned counsel appearing on behalf of the petitioner has argued that the petitioners are admittedly the employees of Pakistan Council Scientific & Industrial Research (“PSCIR”) which is established under Section 3 of the Pakistan Council of Scientific and Industrial Research Act, 1973(“Act”). The Council is empowered through Section 19 of the Act to frame Rules and Regulations but with the previous sanction from the Federal Government. Under Section 19 of Act, the Council has framed the regulations with the prior approval of the Federal Government. In this regard, the learned counsel for the petitioners has referred to letter available on record. Therefore, the said Rules are indeed statutory. The main reliance of learned counsel, in this regard, is upon the judgment of the Apex Court in the cases of Muhammad Zaman and others vs. Government of Pakistan through Secretary, Finance Division (Regulation Wing), Islamabad (2017 SCMR 571) and Shafiqu Ahmad Khan and others vs. NESCOM through Chairman, Islamabad and others (PLD 2016 SC 377).

22.Conversely, the learned AAG, who were assisted by the learned counsels representing the respondents-Institute,

while controverting the arguments of learned counsel for the petitioners, have produced a letter dated 18.11.2020 which was issued by the Deputy Secretary Government of Pakistan Science & Technology Department wherein it is stated that the impugned Regulation of 1981 was never approved by the Federal Government, thus, has no statutory status. The learned counsels have also provided a good number of reported and unreported case-laws wherein this Court, Hon’ble Islamabad High Court and the Hon’ble Apex Court have held that the Regulations, stated above, have no statutory force. The learned counsels have further argued that even if the Regulations framed by the respondents are considered in view of the law laid down by the Apex Court in the cases of Muhammad Zaman and others vs. Government of Pakistan through Secretary, Finance Division (Regulation Wing), Islamabad (2017 SCMR 571) and Shafiqu Ahmad Khan and others vs. NESCOM through Chairman, Islamabad and others (PLD 2016 SC 377), these Regulations only refers to the internal management/control of PSCIR, therefore, cannot be cloathed with the status of statutory rules.

23.Thus, the main issue before this Court for adjudication is the status of Pakistan Council of Scientific and Industrial Research Employees (Service) Regulations, 1981 (“Regulations”) being statutory and enforceable by a Constitutional Court in case of any violation thereof.

24.The issue of rules having statutory status its enforcement in the court of law has been very elaborately dealt with by the Indian Supreme Court in the case of Sukhdev Singh and others vs. Bhagat Ram and others (AIR 1975 SC 1331). In the said judgment, there was a conflicting view between the three Members Bench regarding the interpretation of Rules/Regulations made by the certain Corporation, which were established through a legislative act. It was held in para- 24 of the said judgment that distinction between the Rules and Regulations on the one hand and administrative instructions

on the other is that unless a Regulation can be made only after reciting the source of power whereas administrative instructions are not issued after reciting source of power. The executive power of the State is not authorized to frame rules under Article 162 of the Indian Constitution. Further in para- 33 of the judgment, it was held that there is no substantial difference between a rule and regulation in as much as both are subordinate legislation under powers conferred by the Statute. A regulation framed under a Statute applies a uniform treatment to everyone or to all members of some group or class. Failure to observe requirement by statutory body is enforced by courts by declaring dismissal in violation of rules and regulations be void. The minority view in this judgment was that only those rules which are framed by the Government has a status of statutory rules, however, the majority view was that rules and regulations framed by the Oil and Natural Gas Commission, (established through Act of Legislature), Life Insurance Corporation (established through Act of Legislature) and Industrial Finance Corporation (established through Act of Legislature) have the force of law.

25.The issue of statutory rules relation of employer and employee relating to the enforcement of the employment were very elaborately discussed and dilated upon by the Apex Court in the case of Pakistan Red Crescent Society and another vs. Syed Nazir Gillani (PLD 2005 SC 806) wherein it was held that:

9.A careful perusal of the said rule would indicate that the "Managing Body" is competent to frame rules for the management, control and procedure of the Society. The rule-making powers has been conferred upon the Managing Body in an unambiguous manner and from whatever angle it is interpreted no role for framing of rules has been assigned to the Government and moreso no such role has been reserved by the Government for itself. It is worth-mentioning that no sanction or approval from any quarter including the Government is required for framing of such rules, which shall be framed by the "Managing Body" alone. It can thus safely be inferred that the powers qua rule-making

exclusively fall within the jurisdictional domain of "Managing Body" and the ultimate conclusion would be that the rules'' or regulations framed by the Managing Body are non-statutory. It is well- settled by now that "where the Government while setting up a Corporation does not reserve to itself the power to regulate the terms of service of the Corporation's employees under the relevant statute and does not prescribe any condition, but leaves it to the discretion of the Corporation by empowering it to frame rules or regulations in respect thereof without the Government's intervention, then the Corporation will be the sole arbiter in the matter of prescribing the terms and conditions of its employees and will be competent to deal 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 will be competent and the remedy of an employee, for wrongful dismissal from or of termination of service will be a suit for damages as the principle of master and servant will be applicable. However, where the terms and conditions of service of an employee of a statutory Corporation is regulated by a statute or statutory rules, any action prejudicial taken against him in derogation or in violation of the statute and/or the statutory rules will give him a cause of action to file 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 principle of master and servant will not be applicable. For the purpose of deciding the factum, whether the rules or the regulations of a Corporation have the statutory force, the determining factor will not be their form or name, but the source under which they have been framed." (Emphasis provided) Chairman WAPDA v. Jamil Ahmed (1993 SCMR 346), Muhammad Yusuf Shah v. Pakistan International Airlines Corporation

(PLD 1981 SC 224).

26.The issue of interpretation of the rules made by Board of Directors of Pakistan International Airlines Corporation pursuant to Section 30 of Pakistan International Airlines Corporation Act, 1956 came up before the Apex Court in the case of Pakistan International Airline Corporation vs. Tanweerur Rehman (PLD 2010 SC 676). Para-18 of the said judgment is reproduced as under:-

18.Next question for consideration, in the instant case, is somewhat different, keeping in view the facts and circumstances of the cases narrated hereinabove. No doubt section 10 of the Act, 1956 provides that appointment of the officers etc. is to be made by the appellant- Corporation as it considers necessary for the

efficient performance of its functions on such terms and conditions, as it may see fit. Similarly, under section 30 of the Act, 1956, the Board of Directors has been authorized to make regulations with the previous sanction of the Federal Government, not inconsistent with the Act, 1956 to provide for all matters for which provision is necessary or expedient for the purpose of giving effect to the provisions of the Act, 1956. Admittedly, the appointments of the respondent-employees had not been made under the regulations framed by the Board with the prior approval of the Federal Government as it is evident from letters of their appointment and retirement. Therefore, question for consideration would be as to whether in absence of any breach of statutory provision, the employees of appellant-corporation can maintain an action for reinstatement etc. This Court when faced with the same question in the case of Principal Cadet Collage Kohat and another v. Mohammad Shoab Qureshi (PLD 1984 SC 170), held that "where the conditions of service of an employee of a statutory body are governed by statutory 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 not, normally, be enforced through a writ petition". Likewise, in Raziuddin v. Chairman, PIAC (PLD 1992 SC 531), this Court has held that "the legal position obtaining in Pakistan as to the status of employees of the Corporations seems to be that the relationship between a Corporation and its employees is that of Master and Servant and that in case of wrongful dismissal of an employee of the Corporation, the remedy, is to claim damages and not the remedy of reinstatement; however, this rule is subject to a qualification, namely, if the relationship between a Corporation and its employees is regulated by statutory provisions and if there is any breach of such provisions, an employee of such a Corporation may maintain an action for reinstatement". It was further held that "the PIAC has the Regulations which have been framed by the Board of Directors of the PIAC, pursuant to the power contained in section 30 of the Act; however, there is nothing on record to indicate that the above 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 Act; in this view of the matter, the Regulations cannot be treated as statutory rules of the nature which would bring the case of the PIAC within the above qualification as to entitle the employees of the PIAC to claim relief of reinstatement on the ground of breach of the statutory provisions". The above view has been reiterated in Habib Bank Ltd, v. Syed Zia-

ul-Hssan Kazmi (1998 SCMR 60) and Pakistan Red Crescent Society v. Nazir Gillani (PLD 2005 SC 806). In the last mentioned pronouncement, it has been held that "an employee of a Corporation in the absence of violation of law or any statutory rule could not press into service the Constitutional jurisdiction or civil jurisdiction for seeking relief of reinstatement in service; his remedy against wrongful dismissal or termination is to claim damages".

27.In the case of Pakistan Defence Officer Housing Authority and others vs. Lt. Col. Syed Jawaid Ahmed (2013 SCMR 1707), the Hon’ble Five Members Bench of the Apex Court has thoroughly examined the law relating to the rules made by the Statutory Corporation having the status of statutory rules and its enforceability before a Constitutional Court. This judgment has provided a very wide scope of the rules/regulations made by a Corporation under the delegated legislation. The salient feature elaborated in the said judgment for rules having the force of law or otherwise can be summarized as follows:- “(i) Violation of Service Rules or Regulations framed by the Statutory bodies under the powers derived from Statutes in absence of any adequate or efficacious remedy can b enforced through writ jurisdiction.

(ii)Where conditions of service of employees of a statutory body are not regulated by Rules/Regulations framed under the Statute but only Rules or Instructions issued by its internal use, any violation thereof cannot normally be enforced through writ jurisdiction and they would be governed by the principle of ‘Master and Servant’.

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

(iv)Where the action of a statutory authority in a service matter is in disregard of the procedural requirements and is violation of the principles of natural justice, it can be interfered with in writ jurisdiction.

(v)That the Removal from Service (Special Powers) Ordinance, 2000 has an overriding effect and after its promulgation (27th of May, 2000), all the disciplinary 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”.

28.In the case of Shafique Ahmad Khan and others vs. NESCOM through Chairman, Islamabad and others (PLD 2016 SC 377), the Apex Court while reaffirming the law laid down by it in the case of Syed Jawaid Ahmad has declared the rules/regulations framed under Section 15 of the National Command Act, 2010 having the force of law despite the fact that the same lacked the approval of the Federal Government. The noticeable feature of this judgment is that the Apex Court while rendering the reasons for holding the aforesaid Regulations having the force of law has observed that the highest officials of the Federal Government were already on the Board which had framed the rules. Hence, the said rules had the status of law.

29.In the case of Muhammad Zaman and others vs. Government of Pakistan through Secretary, Finance Division (Regulation Wing), Islamabad and others (2017 SCMR 571), the statutory force of a rules was viewed yet through an another angle i.e. the application of the rules whether the same is only limited to the instructions for internal control or management or they are broader than and are complementary to the parent statute in the matter of crucial importance. It was observed in para-7 of the judgment that: “According to the judgment delivered in Civil Appeal No. 654/2010 etc. titled Shafique Ahmed Khan, etc. vs. NESCOM through its Chairman, Islamabad, etc. the test of whether rules/regulations are statutory or otherwise is not solely whether their framing requires the approval of the Federal Government or not, rather it 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-statutory whereas the latter are statutory. In the case before us, the Regulations were made pursuant to section 54(1) of the Act and section 54(2) thereof goes on to provide the particular matters for which the Board can frame regulations [while saving the generality of the power under section 54(1) of the Act]. Out of all the matters listed in section 54(2) of the Act, clause (j) is the most relevant which

pertains to the “recruitment of officers and servants of the Bank including the terms and conditions of their service, constitution of superannuation, beneficial and other funds, with or without bank’s contribution, for the officers and servants of the Bank; their welfare; providing amenities, medical facilities, grant of loans and advances, their betterment and uplift”. A perusal of the Regulations suggests that they relate to pension and gratuity matters of the employees of SBP and therefore it can be said that the ambit of such Regulations is not broader but narrower than the parent statute, i.e. the Act. Thus the conclusion of the above discussion is that the Regulations are basically instructions for the internal control or management of SBP and are therefore non- statutory. Hence the appellants could not invoke the constitutional jurisdiction of the learned High Court which was correct in dismissing their writ petition”.

30.The similar view was expressed by the Apex Court in the case of Pakistan Defence Officers Housing Authority vs. Mrs. Itrat Sajjad Khan and others (2017 SCMR 2010). Para-8 of the said judgment is reproduced as under:- “The test to gauge as to whether the service rules are statutory or not was laid down by this Court as far back as in the year, 1984 in the case of the Principal Cadet College, Kohat and another v. Muhammad Shoaib Qureshi (PLD 1984 SC 170) by holding that unless rules of service of a statutory body are made or approved by the Government, such rules could not be regarded as statutory but mere instructions for guidance. However, in the case of Shafique Ahmed Khan v. NESCOM through Chairman, Islamabad (PLD 2016 SC 377) as well as in the case of Muhammad Zaman and others v. Government of Pakistan (2017 SCMR 571), this Court while widening the scope of such criterion held that “the test of whether rules/regulations are statutory or otherwise is not solely whether their framing requires approval of the Federal Government or not, rather it is the nature and area of efficacy which determine their status. Rules dealing with instructions for internal control or management are treated as non-statutory while those, whose area of efficacy is broader and/or complementary to the parent statute in the matter of crucial importance, are statutory”.

31.The Pakistan Council of Scientific and Industrial Research Act, 1973 (“Act”) established the Council as a body corporate having perpetual succession and a common seal. The composition of the Council is the Chairman appointed by

the Federal Government and other twenty members as provided under section 4 of the Act. The expression “council” has been defined in section 2 (b) as “Council” means the Pakistan Council of Scientific and Industrial Research established under section 3. Functions of the council have been defined in section 6.

32.Section19 of the Act empowers the Council to make regulations which provides that “the Council may, with the previous sanction of the Federal Government, make such regulations, not inconsistent with this Act or the Rules made thereunder, as may, in its opinion, be necessary or expedient for the achievement of its aims and objects or for the performance of its functions.”

33.The status of the Regulations being non-statutory has remained the subject of various judgments of different High Courts including the Hon’ble Apex Court. The precedent law in the context of service Regulations/Rules being statutory or non-statutory is discussed as follows: -

CHAIRMAN, PAKISTAN COUNCIL OF

SCIENTIFIC AND INDUSTRIAL RESEARCH,

ISLAMABAD AND 3 OTHERS V/S DR. MRS.

KHALIDA RAZI (1995 SCMR 698). THE RELEVANT

PARA IS REPRODUCED AS UNDER:

“6. Section 12(1) of the Act empowered the Council to appoint officers, advisors and other employees as it considered necessary for the efficient performance of its functions on such terms and conditions as it may deem fit. However, the power to make rules for carrying out the purpose of the Act and regulations vested in the Federal Government (see section 18). Similarly, subject to the previous sanction of the Federal Government, the Council was competent to make regulations as in its opinion were necessary or expedient for achievement of its aims and objects or for the performance of its functions. (See section 19). It was the case of the respondent that the Federal Government had framed any rules in exercise of its powers under section 18 or the Council had made any regulations in pursuance of section 19 to regulate disciplinary proceedings against its employees. In the circumstances, even if the Council had adopted the Government Servants (Efficiency and Discipline) Rules in respect of its employees these did not bear the character of statutory

Rules and had to be treated as mere instructions for the guidance of its officers. Reference in this context is invited to the judgment of this Court in the case of Principal, Cadet College, Kohat v. Muhammad ShoabOureshi (PLD 1984 SC 170). The High Court therefore was not right in regarding the said Rules as of statutory nature in so far as the respondent was concerned so as to furnish it with the basis for restoring her to her post on account of their alleged violation”.

UNREPORTED JUDGMENT OF AUGUST

SUPREME COURT OF PAKISTAN TITLED RIAZ

AHMAD ETC V/S PAKISTAN AGRICULTURE

RESEARCH COUNCIL, ISLAMABAD AND OTHERS

CIVIL APPEALS NO. 584 TO 590 OF 2008. THE

RELEVANT PARA IS REPRODUCED AS UNDER:

“Notwithstanding, the argument that there are regulations to regulate the services of the employees of the Council but under section 16 of the Ordinance reproduced above, it clearly demonstrates that all civil servants who have been serving in the Council in deputation or in any other capacity ceased to be civil servants and they shall be in the service of Council but on the same terms and conditions as they were holding before their getting into the Council either by way of transfer or on deputation. It is admitted legal position that rules and regulations are always subservient to the Act/Ordinance which is the parent law.

Under section 26 of the Ordinance, Council can make regulations with previous sanction of the Federal Government whereas section 25 of the Ordinance rules making powers is given to the Federal Government and not to the council.

In view of the above factual and legal position, where service regulations are made by the Council and not by the Federal Government such regulation cannot beheld to be statutory rules”.

UNREPORTED JUDGMENT OF ISLAMABAD HIGH

COURT IN ICA NO. 560 OF 2012 TITLED RAJA

SHEHRYAR, EXPERIMENTAL OFFICER V/S

PCSIR THRU ITS CHAIRMAN. THE RELEVANT

PARA IS REPRODUCED AS UNDER:

“Admittedly, PCSIR is an autonomous body and its rules are neither approved by the Federal Government, nor published in the official gazette, therefore, its rules are non-statutory. There is also no denial to the fact that the appellant had himself written a letter to the Project Director “establishment of Nano-Technical Lab at PCSIR” that he will bear all the expenditure of study from his own

resources and, therefore, now the appellant cannot take on altogether different stand after availing the leave without pay for study abroad on his own expenses. His claim for payment of expenditure during his foreign study and conversion of leave without pay into study leave with full pay is without any justification”.

UNREPORTED JUDGMENT OF PESHAWAR HIGH

COURT IN WP NO. 1938 OF 2009 TITLED LIAQUAT

ALI V/S PCSIR. THE RELEVANT PARA IS

REPRODUCED AS UNDER:

“Admittedly, PCSIR is an autonomous body and its rules are neither approved by the Federal government, nor published in the official gazette, therefore, its rules are non-statutory in nature. Thus, in absence of statutory rules, the principle of ‘master and servant’ would be applicable and such employees would be entitled to seek remedy permissible before the court of competent jurisdiction. Thus, on this point too, the petition in hand is not maintainable”.

UNREPORTED JUDGMENT OF PESHAWAR HIGH

COURT IN WP NO. 547 OF 2012 TITLED Dr.

SHAKILA BEGUM V/S SECRETARY MINISTRY OF

SCIENCE AND TECHNOLOGY AND OTHERS. THE

RELEVANT PARA IS REPRODUCED AS UNDER:

“No doubt, the respondent-department, in which, the petitioner was performing her duties, is an autonomous statutory body, performing its functions in connection with the affairs of Pakistan but the services of its employees are not governed by any statutory rules and when there is absolutely nothing on the record to suggest that the services of the petitioner are regulated by a statute or a provision of the statute has been violated by the employer while dealing with her, her case would be clearly and squarely one of ‘Master’ and ‘Servant’, therefore, resort can’t be had to the constitutional jurisdiction of the High Court notwithstanding, at present, if she is given promotion that would be totally a proforma promotion, not affecting the rights of anyone”.

UNREPORTED JUDGMENT OF PESHAWAR HIGH

COURT IN RP NO. 11-P OF 2014 IN WP NO. 547 OF

2012 TITLED Dr. SHAKILA BEGUM V/S

SECRETARY MINISTRY OF SCIENCE AND

TECHNOLOGY AND OTHERS. THE RELEVANT

PARA IS REPRODUCED AS UNDER:

“No doubt, a judgment can be reviewed, if there is a mistake or an error apparent on the face of the record but, when an error, which is not self-evident and has to be detected by a process of reasoning, can’t be said to be an error justifying the Court to exercise its power of review, that too, when the issue in hand has already been decided in the judgments under review, thus, in these circumstances, the petitioner couldn’t make out a case for review of judgment of this Court dated 05.11.2013”.

UNREPORTED JUDGMENT OF PESHAWAR HIGH

COURT IN WP NO. 1223 OF 2014 TITLED Dr. IJAZ

GUL V/S GOVERNMENT OF PAKISTAN

THROUGH SECRETARY SCIENCE AND

TECHNOLOGY AND OTHERS. THE RELEVANT

PARA IS REPRODUCED AS UNDER:

“Admittedly respondents PCSIR have no statutory Service Rules/Regulation and it has been confirmed by the august Supreme Court in reported judgments”.

UNREPORTED JUDGMENT OF SINDH HIGH

COURT IN WP NO. 3658 OF 2015 TITLED DR.

RIAZUDDIN V/S GOVERNMENT OF PAKISTAN

THROUGH SECRETARY SCIENCE AND

TECHNOLOGY AND OTHERS. THE RELEVANT

PARA IS REPRODUCED AS UNDER:

“The matter of promotion was properly dealt with by the Respondents in accordance with the letter dated 13.01.2012, whereby, the Selection/Promotion Board was notified. The petitioner case was also considered but he was not found fit. The petitioner has challenged the composition and constitution of Selection Board and not claimed that he was not considered properly. The Regulations are also non-statutory, therefore, the petition is not maintainable which is dismissed accordingly”.

UNREPORTED JUDGMENT OF LAHORE HIGH

COURT IN WP NO. 7883 OF 2012 TITLED HAFIZ

EHSAN ALI ETC. V/S DIRECTOR GENERAL ETC.

THE RELEVANT PARA IS REPRODUCED AS

UNDER:

“The issue of status of employees of PCSIR for the purposes of invoking jurisdiction of the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 also came up before a Division Bench of the

Peshawar High Court in WP No 547-P/2012, which was also dismissed as being not maintainable. For reference relevant para is reproduced below:

“No doubt, the respondent-department, in which, the petitioner was performing her duties, is an autonomous statutory body, performing its functions in connection with the affairs of Pakistan but the services of its employees are not governed by any statutory rules and when there is absolutely nothing on the record to suggest that the services of the petitioner are regulated by a statute or a provision of the statute has been violated by the employer while dealing with her, her case would be clearly and squarely one of ‘Master’ and ‘Servant’, therefore, resort can’t be had to the constitutional jurisdiction of the High Court notwithstanding, at present, if she is given promotion that would be totally a proforma promotion, not affecting the rights of anyone”.

The petitioner filed Review petition which was also dismissed.

Learned counsel for the petitioner when confronted with the above position, has not been able to convince this court that the employees of PCSIR are governed by statutory rules and they are amenable to writ jurisdiction of this Court”.

UNREPORTED JUDGMENT OF ISLAMABAD HIGH

COURT IN WP NO. 2150 OF 2013 TITLED ALI

AKBARMAHESAR V/S PCSIR. THE RELEVANT

PARA IS REPRODUCED AS UNDER:

“The Service Regulations of the respondent are non- statutory thus the petition under Article 199 of the Constitution is not maintainable due to the said reason. However, under the dictum of Hon’ble Supreme Court of Pakistan in Anisa Rehman’s case (1994 SCMR 2232) and 2013 SCMR 1707, a petition under Article 199 is maintainable where there is violation of law, even if Rules of service of an organization are non-statutory”.

UNREPORTED JUDGMENT OF PESHAWAR HIGH

COURT IN WP NO. 156-P OF 2013 TITLED NAJEEB-

UL-ISLAM V/S PCSIR. THE RELEVANT PARA IS

REPRODUCED AS UNDER:

“Pakistan Council of Scientific and Industrial Research is a creation of a statute and vide SRO 103(K)/63 dated 15th March 1963, with the approval of Central Government, Rules for regulating the affairs of the council have been published. Admittedly, there is no service rules on record,

however, the Council is admittedly created under a statute, commonly known as PCSIR Act No. XXX of 1973”.

34.The perusal of the aforesaid survey of case-law as well as the Act would show that Council is a body corporate having perpetual succession and a common seal which has been denied in Section 2 (b) of the Act. Section 19 of the Act empowers the Council to make regulations, inter alia, including the terms and conditions of the services of its employees but with the previous approval of the Federal Government. As evident from the letter dated 18.11.2020 that the Federal Government has not accorded any approval to the impugned Regulations made by the Council; hence, keeping in view the above, we hold that the Regulations are not statutory in nature.

35.We have also considered the status of enforceability of the Regulations keeping in view the law laid down by the Apex Court in the cases of Pakistan Defence Officer Housing Authority and others vs. Lt. Col. Syed Jawaid Ahmed (2013 SCMR 1707) and Shafiqu Ahmad Khan and others vs. NESCOM through Chairman, Islamabad and others (PLD 2016 SC 377). The ratio of the said judgments are that when an authority competent under Statutes framed Regulations without intervention of the Government still it would be enforceable by a court of law, however, in the present case, Section 19 of the Act empowers the Council to make Regulations but with the previous sanction of the Federal Government. Since in the present case, no sanction was obtained from the Federal Government, therefore, these Regulations were not framed in accordance with the mandate of Section 19 of the Act; thus, the ratio of the aforesaid judgments of the Hon’ble Apex Court too is inapplicable to the present case.

36.In view of the above, this petition as well as the connected petitions being not maintainable are accordingly dismissed.

ANNOUNCED.

Dated: 30.11.2022 JUDGE

JUDGE

JUDGE

Nawab Shah CS (Larger Bench) Justice Lal Jan Khattak, Justice S.M. Attique Shah & Justice Syed Arshad Ali