IN THE HIGH COURT OF SINDH AT KARACHI
CP. No. D-3257 of 2010
(Hafiz Muhammad Tariq v Federation of Pakistan & others)
Date Order with signature of Judge
Before:
Mr. Justice Muhammad Karim Khan Agha
Mr. Justice Adnan-ul_Karim Memon
Date of hearing and Order: 21.01.2025
Mr. Naveed Ahmed advocate for the Petitioner a/w Mr. Ubaid-ur-Rehman
advocate.
Ms. Wajiha Aman, advocate/Associate of Ms. Zahrah S. Vayani, advocate
for respondent No.3.
Ms. Wajiha Mehdi, Additional Attorney General.
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ORDER
Adnan-ul_Karim Memon, J: The petitioner Hafiz Muhammad Tariq
requests this court to:
1. set aside the impugned appellate order dated 09.07.2009 and
10.11.2008.
2. direct the respondents to place/fix the petitioner in SPS-7 of
revised Special Pay Scales 2001 w.e.f. 01.12.2001 and then
promote him in SPS-8 w.e.f. 30.04.2008.
3. direct the respondents to correct the impugned promotion order
dated 10.11.2008 by placing the petitioner in SPS-7 BPS-16-
Gruup-IV and then promoting him in SPS-8, BPS-17.
4. direct the respondents to all back benefits and consequential
benefits may also be granted.
2. In 2016 in Supreme Court judgment (Shafique Ahmed Khan v/s
NESCOM PLD 2016 SC 377 ), it was held that rules framed under the
National Command Authority Act, 2010 were/ are statutory. The
petitioner claims to be an employee of Pakistan Space and Upper
Atmosphere Research Commission (SUPARCO), which is a strategic
organization of the National Command Authority (NCA), but was wrongly
non-suited by this Court, in the earlier round of litigation, vide order dated
21.1.2011. His appeal before the Supreme Court was allowed vide order
dated 21.4.2016, and the matter was remitted to this court for fresh
consideration under law.
3. Petitioner's grievance is that respondent No. 3 and other officials
repeatedly modified rules, negatively impacting employees' careers,
including the petitioner's. He made complaints to respondents No. 2-5 but
to no avail leading to further problems and retaliation. As per the
petitioner, this constitutes a violation of his fundamental rights.
Petitioner's employment history is that he was employed since 1982 as
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Sub-Engineer II (Group II, BPS-11) and was promoted to Sub-Engineer I
(Group III, BPS-13) in 1991, again promoted to Principal-Tech (Group
IV, BPS-16) in 2001. However, his designation was changed to Junior
Technical Officer (Group IV) in 2001, with no change in salary or duties.
4. Petitioner has submitted that despite repeated representations to
resolve grievances, the respondent authority consistently failed to issue
proper and lawful orders. This has resulted in significant financial and
positional detriment to the petitioner. He further submitted that he faced
irrelevant decisions without legal basis, leading to demotion and
degradation since 1-12-2001. He added that his post, grade, and status
belong in one category and pay scale (16), but he has been placed in
another category, depriving him of promotions and entitlements. This
unlawful conversion of grade and scale has caused significant prejudice
and loss. He submitted that despite a promotion order dated 10-11-2008,
to a newly created grade 7A (equivalent to his current pay scale) without
any actual advancement, this is considered illegal and detrimental, as it
offers no real benefits while potentially hindering future promotions. The
petitioner requests a rightful promotion to a higher position with a
corresponding grade and improved financial benefits, based on merit. He
next submitted that his appeal was rejected on 14-5-2009 and again on
9-7-2009. This repeated denial, coupled with threats and forced demotion,
constitutes unlawful harassment and a deprivation of due process; the
respondent's refusal to consider the appeal and subsequent actions were
malicious and in violation of the law. Petitioner claims that he was
underpaid for 9.5 years due to delayed promotion. The expected
promotion path was likely Sub Engineer-II to Sub Engineer-I (Group-III)
and then potentially to a higher grade (Group-IV).
5. Learned counsel for the petitioner has prayed for allowing the
instant petition on the analogy put forward by the petitioner in his memo
of the petition.
6. Keeping in view the aforesaid stance of the petitioner, learned
counsel for the respondents was asked to address the question of the
maintainability of this petition. Learned counsel submitted that the petition
against the National Command Authority (NCA) under the National
Command Authority (Amendment) Act, 2016, is not maintainable which
envisaging a Master-Servant relationship for the employees of
organizations under NCA and ousting the jurisdiction of this court from
the entertaining petition of employees; and, prayed for dismissal of the
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petition on the analogy that the National Command Authority has no
statutory rules of service.
7. The learned Assistant Attorney General is of the same view and
added that the order of the Supreme Court remanding the matter to this
Court for a fresh decision has been taken care of under the National
Command Authority (Amendment) Act, 2016 declaring the rules of NCA
as non-statutory. Besides, there is no accrued right in favor of the
petitioner so far as the question of his promotion is concerned, which falls
within the terms and conditions of service, which are non-statutory, in
terms of the latest amendment as discussed supra.
8. Petitioner who is present in court has refuted the claim of
respondents by referring to the grounds agitated by him in the memo of
the petition and submitted that this petition is maintainable and can be
heard and decided on merits.
9. We have heard the petitioner who is present in person along with
his counsel and learned counsel representing the respondents as well as the
Assistant Attorney General and have perused the material available on
record with their assistance.
10. In the first place, we would like to examine the issue of
maintainability of the instant Petition under Article 199 of the
Constitution, 1973. The Supreme Court in the case of Shafique Ahmed
Khan and others v. NESCOM through Chairman Islamabad and others
(PLD 2016 SC 377), has settled the aforesaid proposition and held that
“the rules framed under Sections 7, 9, and 15 of the Act are statutory on
all accounts and by every attribute. They are thus declared as such”.
However, in subsequent events, the legislative body has declared the rules
of NCA as non-statutory vide Notification dated 30.12.2016. Section 3 of
the National Command Authority (Amendment) Act 2016 reads as under:-
“Amendment of section 15, Act V of 2010… In the said Act, in section
15, for the full stop occurring a the end, a colon shall be substituted
and thereafter, the following new proviso shall be added namely---
“Provided that notwithstanding anything contained in any
judgment decree, order, direction or declaration of any Court
including the Supreme Court of Pakistan or in this Act or in
any other law for the time being in force, the rules,
instructions or orders already made, or which may made, in
respect of the employees and strategic organizations of the
authority shall be non-statutory unless approved by the
Federal Government and published in the official Gazette of
Pakistan.”
11. At this stage, the petitioner has pointed out that the review petition
was preferred in the case of Shafique Ahmed Khan and others, which was
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also dismissed by the Supreme Court as such rules of NCA are still
statutory. However the learned counsel for the petitioner after going
through the amendment brought on 30.12.2016, submitted that the rules
have been declared non-statutory.
12. Progressing further on the subject issue, we have noticed that the
(Amendment) Act, 2016, and the decision of the Supreme Court in the
case of Shafique Ahmed Khan and others supra came on 21st January
2016, which clarified the status of NCAES Rules, 2011 of National
Command Authority. Therefore, there is no further discussion on the
aforesaid proposition required on our part. It is well settled that the
Government and control organization fall within the ambit of "person"
within the meaning of Article 199(1)(a)(ii) read with Article 199 (5) of the
Constitution and if their actions or orders are violative of the statute
creating those bodies or of rules/regulations framed under a statute, the
same could be interfered with by the High Court under Article 199 of the
Constitution. It is also well settled that when the service issues of the
employees of such organizations/authorities are non-statutory then its
enforcement has been restricted by the Supreme Court in the case of
Pakistan Electric Power Company v Syed Salahuddin (2022 SCMR 991).
13. In the present case, the petitioner alleges that the respondent
establishment has consistently acted unlawfully, causing significant harm
through misleading designation changes, unjustified grade downgrades,
denial of rightful promotions, and violation of established rules and
procedures. On this issue, the Supreme Court has also held that service
rules determine eligibility for promotion, while fitness is a subjective
evaluation based on objective criteria. While consideration for promotion
is a right, it cannot be claimed as a matter of right. The government has
the authority to determine eligibility criteria, amend rules, and decide on
promotions in the interest of service efficiency. The Courts generally
avoid interfering with the government's decisions on promotion unless
there's a violation of law or infringement of vested rights. The questions
raised are answered accordingly. Besides, the issue of promotion and
demotion falls within the terms and conditions of service and the
petitioner cannot claim the same as a matter of right.
14. Time and again, the Supreme Court laid down in various dictums
that in the absence of statutory rules of service, the aggrieved employee
cannot invoke the writ jurisdiction of the High Court. In the case of PIAC v.
Tanweer-ur-Rehman (PLD 2010 SC 676), it was held by the Supreme Court that
due to non-statutory rules of service, the constitution petition under Article
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199 does not lie in the High Court. Whereas in another judgment rendered
by the Supreme Court in the case of PIAC v. Syed Suleman Alam Rizvi
(2015 SCMR 1545), while referring to the case of Tanweerur-Rehman
(supra), Abdul Wahab v. HBL (2013 SCMR 1383), Pakistan Defence
Officers' Housing Authority v. Lt.Col. Syed Jawaid Ahmed (2013 SCMR
1707) and Syed Nazir Gilani v. Pakistan Red Crescent Society (2014
SCMR 982), reaffirmed that no writ petition lies in the High Court in the
matters where the terms and conditions of service are not governed by
statutory rules.
15. Insofar as the argument of the Petitioner’s Counsel regarding
enforcement of fundamental rights and principle of natural justice is
concerned, there cannot be any cavil to that; but it must be kept in mind
that there is an exception. If a writ is filed for enforcement of any
fundamental right against the authority owned by the Government and
engaged in the discharge of any public duty, then it still can be maintained
and the Court in the given facts and circumstances of a particular case can
still exercise its jurisdiction in terms of Article 199 of the Constitution.
However, it may be of relevance to further observe that this function test
applied and settled by the Supreme Court is limited to a writ petition filed
under Article 199 of the Constitution of Pakistan by an employee against
an Authority owned and operated by the Government in respect of its
terms and conditions of service. For that in the absence of any Statutory
Rules of Employment, the principle of master and servant will apply and
the test has already been laid down by the Supreme Court way back in the
year 1984 in the case reported as Principal Cadet College, Kohat and
another v Mohammad Shoaib Qureshi (PLD 1984 SC 170) and thereafter
followed in the case of Pakistan International Airline Corporation v
Tanveer-Ur-Rehman (PLD 2010 SC 676) and Pakistan
Telecommunication Co. Ltd., v Iqbal Nasir (PLD 2011 SC 132) by
holding that if the Rules of Employment are non-statutory then no writ
would be maintainable under Article 199 of the Constitution of Pakistan.
16. In view of hereinabove facts and circumstances of this case, this
petition appears to be meritless is therefore, dismissed. However, the
Petitioner is at liberty to seek any other appropriate remedy as may be
available to him under law.
JUDGE
JUDGE
Shafi
