' IQBAL HAMEED-UR-REHMAN, C.J.--- Through the instant Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner has made the following prayer:- "It is most respectfully prayed that this honourable Court may be pleased to graciously set aside the decision in letter No,SECPIHR/1D-29 of 2000, dated 31-8-2009 read with letter No, SECP/HR/IDH/2000, dated 6-3-2009 and direct the respondent to take into account the joining time as well as service from 11-4-1978 to 13-3-1985 for the purpose of working out pension and computation of the petitioner, in the best interest of justice."
2. The succinct facts required for the determination of this writ petition are that the petitioner started his career as Instructor in the Directorate of Technical Education on ad hoc basis on 11-4- 1978 and continued the same till 13-3-1985. Thereafter, he applied for the post of Deputy Registrar Corporate Law Authority and on selection by the Federal Public Service Commission, the petitioner was appointed and he joined as Deputy Registrar, Joint Stock Commission, (BS-18) in Corporate Law Authority (Regional Office) Lahore on 19-3-1985 and continued his service till his promotion as Joint Registrar in the Securities and Exchange Commission of Pakistan w.e.f, 24-4-1996. Later on the petitioner was offered appointment as an employee against the post of Joint Registrar vide letter dated 3-5-2000 and the same was accepted by the petitioner. Thereafter, the petitioner was promoted as Addl. Registrar vide letter dated 20-6-2002. The respondent vide letter dated 5-8- 2008 had given the petitioner revised offer for conversion to the new terms and conditions of employment in the Securities and Exchange Commission of Pakistan and the same were accepted by him. Thereafter, the services of the petitioner were converted from the old terms and conditions of employment (governed under SECP Services Manual 1999) to the new terms and conditions of employment (governed under H.R. Hand Book, 2007) by the respondents vide letter dated 7-8-2008 and later on the said letter was cancelled/withdrawn by the respondents vide letter dated 4-9- 2008.The petitioner filed representation on 4-5-2009 before the respondent wherein it was requested to allow regularization of five days as time availed by him as joining time of his appointment as Deputy Registrar, Corporate. Law Authority and the said representation was declined by the respondents vide letter dated 6-5-2009. Thereafter he filed a representation dated 1-6-2009 to the Finance Division (Regulation Wing), Islamabad and the Finance Division advised the respondent vide letter dated 1-7-2009 to examine and settle the issue at their own end. The respondents declined the application dated 1-6-2009 vide letter dated 31-8-2009 with the observations that the earlier decision as already conveyed to the petitioner vide letter dated 6-5- 2009 will hold good. Feeling aggrieved by the said order dated 31-8-2009, the petitioner has filed this Constitutional petition.
3. It is contended by the learned counsel for the petitioner that the respondents cancelled/withdrew the new terms and conditions which had already been allowed vide offer letter dated 5-8-2008 and as such the same cannot be unilaterally withdrawn without any notice to the petitioner and the same is afterthought and has been made mala fidely. It is further contended that the same had been allowed in view of section 43 Clause-G of the Act No,XLII of 1997 of Securities and Exchange Commission of Pakistan wherein it has been held that:- "The service rendered in the Authority such person shall be entitled to such benefits including the transfer of benefits to the Commission as may be prescribed by the rules. But in the event of such a person opting to remain as a civil servant, he shall be entitled to the same remuneration, allowances and other rights and privileges as are admissible to civil servants but in other respects such as organizational structure, right to promotion and discipline, he shall be subject to the regulations made by the Commission, and for the period he served the Commission,. The Commission shall contribute to the pension, gratuity and final payment of provident fund in accordance with the rules."
4. It is further contended that since the pensionary benefits had already been allowed to the petitioner which had been calculated on the basis of his service w.e.f, 11-4-1978 as such, the same cannot be withdrawn on the basis of documents. Reliance in this regard has been placed on the case of Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi (PLD 1969 Supreme Court 407) and Chief Secretary, Government of Sindh v. Sher Muhammad Makhdoom and 2 others (PLD 1991 Supreme Court 973). It is further contended that his lien in service as Instructor in the Directorate of Technical Education on ad hoc basis has duly been considered by the respondents and now through their comments they have controverted the same which cannot he taken into consideration as such the same cannot be raised at this stage when the respondents have duly considered the same and calculated the pension of the petitioner on the basis of service of 25 years. At this stage the principle of promissory estoppel will apply on the respondents and in this regard learned counsel for the petitioner has relied upon the case of Messrs United Kashmir Flour Mills (Pvt.) Limited Company through Chief Executive v. Government of Azad Jammu and Kashmir through Secretary Ministry of Food and 2 otheri (2003 YLR 2835). It is further contended that the respondent while ignoring the observations of the Finance Division mentioned in the letter dated 1-7-2009 declined the application dated 1-6.2009 of the petitioner vide letter dated 31-8-2009.
5. Further the learned counsel for the petitioner has relied upon office memorandum dated 25-1- 2006 of the Federal Directorate of Education wherein it is stated that on the recommendation of the Federal Public Service Commission and legal advice of the Law, Justice and Human Rights Division, the period of ad hoc appointment can be taken into consideration for pay and pensionary benefits.
In view of the same the instant writ petition has been filed by the petitioner seeking the letter dated 31-8-2009 and 6.3-2009 to be declared as illegal and against the fundamental rights guaranteed by the Constitution of Pakistan and the respondents be directed to calculate the pensionary benefits already allowed to the petitioner on the basis of the offer letter dated 5.8-2008 be continued and the impugned letters be set aside.
6. On the other hand learned counsel for the respondents has vehemently controverted the contentions of learned counsel for the petitioner. At the very outset it is argued that the petitioner had been appointed on ad hoc basis as instructor in the Directorate of Technical Education, N.- W.F.P. On 6 monthly basis and during this period the petitioner did not contribute anything towards the pensionary benefits and the said post does not entail any pensionary benefits, in view of which the period w.e.f, 11-4-1978 to 13-3-1985 cannot be taken into consideration and cannot be calculated towards the length of service of the petitioner as such the petitioner is less that 25 years of service, in view of the same, the issued revised offer letter dated 4-9-2008 was issued which option the petitioner did not accept. As such, the offer was cancelled. Thereafter the petitioner enjoyed the benefits admissible to him under the terms of his service, which he duly availed and received the commutation as well as pension accordingly thus the petitioner got his pensionary benefits for the service he rendered except the services on ad hoc basis in the Directorate of Technical Education under the Government of N.-W.F.P. As the same were on ad hoc 6 monthly basis and if the same is to be taken into consideration the petitioner should have first obtained a certificate from the Audit Office of the Provincial Government to the effect that the service was counted towards pension and that the Government of N.-W.F.P. Was prepared to pay proportionate share of pension under Article 45 of the Civil Service Regulations and the agreement reached between the Federal and Provincial Government etc. As contained in Appendix 3 of Account Code Volume-I in which it is stated that:-- "Pension is said to be chargeable according to the "Rule of Proportions" when the charge is debitable to several accounts in the proportions in which the aggregate pay drawn by the officer during the whole of his qualifying service has been paid from them,"
' It is contended that taking the same into consideration the respondents were constrained to issue the impugned letter dated 4-9-2008 cancelling/withdrawing the office order dated 7-8-2008 regarding the conversion of the petitioner's service from old terms and conditions of employment to new terms and conditions of employment. It is further contended that the petitioner did not agitate the matter immediate. He impliedly accepted the same by accepting the pensionary benefits. Calculated thereon by the respondents as well as the commutation made on the basis of the same. As such, the instant petition cannot be accepted. The principle of estoppel will apply against the petitioner after having been obtained all the pensionary benefits. He has acquiescence to the same as such, the estoppel will apply against the petitioner and the principle of promissory estoppel be invoked, as held by the apex Court in the case of Messrs Gadoon Textile Mills and 814 others v. WAPDA and others (1997 SCM R 641). The respondents were within their lawful rights to pass the impugned order dated 4-9-2008 whereby the offer dated 7-8-2008 had been withdrawn as the same would result in the violation of the settled rules framed in this regard. Moreover, under General Clauses Act the Authority which can pass an order can also subsequently withdraw the same.
7. Further learned counsel for the respondents has vehemently argued that as per the terms in the said offer it has been categorically made clear vide clause-C " Pension will be disbursed as per applicable rules", as such according to the rules the petitioner was not entitled to the pensionary benefits. As per the rules the services rendered by the petitioner as Instructor in the Directorate of Technical Education, N.-W.F.P. Were not to be taken into consideration and the .Respondents had inadvertently taken the same into consideration while initially calculating the date of appointment of the petitioner as 9-4-1978.
8. Arguments of learned counsel for the petitioner as well as learned counsel for the respondents taken into consideration and the material made available on the file perused.
9. The prayer of the petitioner is for the grant of joining time for the period from 11-4-1978 to 13-3- 1985. Admittedly, the petitioner had served in the Government of N.-W.F.P. As Instructor in BPS-17 on ad hoc basis from 11-4-1978 to 13-3-1985. Thereafter, on 31-3-1985 he was appointed as Deputy Registrar, Joint Stock Companies (BPS-18) in Corporate Law Authority, Lahore and he joined the said post w.e.f, 19-3-1985. It does not appear from the said order dated 31-3-1985 that he was given any joining time. The petitioner through his application dated 4-5-2009 had made the following request:-- "It is therefore, requested to kindly approve allowing regularization of five (5) days availed by me as joining time on my appointment as Deputy Registrar Corporate Law Authority please."
' The said application had been declined by the respondent in view of which a further representation was made by the petitioner before the Finance Division (Regulation Wing), Islamabad and the same was not responded to and finally the respondent declined the request of the petitioner for allowing joining time. The same has been declined by the respondent in view of Fundamental Rule 105 of FR and SR which is as under:--- "(4) it has been decided that joining time and joining time pay should be granted as follows to Government servants appointed to post under the Central Government on the results of a competitive examination open to both Government servant and others."
(a) "Joining time should ordinary be permitted for all Government servants serving under the Central Government and for Provincial Government servants who hold permanent posts in a substantive capacity."
Since the petitioner was holding post of Instructor on ad hoc basis under the Provincial Government of N.-W.F.P., therefore, he could not be considered to hold a permanent post in a substantive capacity under the said rule (Rule 105 of FR and SR), he was not entitled to any joining time. Under the Rules only continuous service is counted towards pension.
10. Further, the petitioner being employed on ad hoc basis was not required to make any contribution toward pensionary benefits and did not contribute anything towards pensionary benefits. So far as the contention of the learned counsel for the petitioner that period of ad hoc appointment can be taken into consideration for pay and pensionary benefits is concerned, suffice it to say that the petitioner was required to produce certificate from the Audit Office of the Provincial Government to the effect that service was counted towards pension and the Government of N.-W.F.P. Was prepared to pay proportionate share of pension under Article 45 of the Civil Service Regulations and the agreement reached between the Federal and Provincial Government as contained in Selection A of appendix 3 of Account Code Vol. 1 but no such certificate had been produced by the petitioner and in view of the same, he did not qualify for pensionary benefits and commutations for period of his ad hoc service.
11. The contention of the learned counsel for the petitioner that the pensionary benefits already allowed to the petitioner cannot be withdrawn has no force because the authority which can pass an order can vary, amend and rescind, that order as has been held in The Engineer in Chief Branch v. Jalaluddin (PLD 1992 SC 207). Moreover, the petitioner had impliedly accepted the subsequent proposal of the respondent towards pensionary benefits and in pursuance of the same, he had received the same pensionary benefits, as such, the principle of estoppel would rather apply on the petitioner.
12. Even otherwise this writ petition is not maintainable as the rules cited in the order dated 5-6- 2009 by the respondent are non-statutory rules and it is settled principle of law that autonomous bodies or organizations having non-statutory rules, the employees could not seek remedy under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and in this respect reliance is placed on Pakistan Telecommunication Co. Ltd. Through Chairman v. Iqbal Nasir and others (PLD 2011 SC 132), as such this writ petition merits dismissal also on the question of maintainability.
13. In view of what has been discussed above, the instant writ petition stands dismissed.