' KHILJI ARIF HUSSAIN, J.---This appeal, by leave to the Court, granted on 24-12-2008 is directed against the judgment of Federal Service Tribunal dated 29-7-2008 whereby, Appeal No, 877(K)(CE) of 2001, filed by the appellant, was dismissed.
2. Shortly narrated, the facts are that the appellant is employee of the respondent No, 1 i,e,, Civil Aviation Authority (CAA), which has been established under Civil Aviation Authority, Ordinance 1982, (hereinafter referred as Ordinance, 1982). The appellant filed appeal under section 4 of the Service Tribunal Act, 1973 before the Federal Service Tribunal to declare that the respondent No,1 had appointed two - officers as Facilitation Officer PG-8 against the Government Rules and Civil Aviation Authority policy. The appeal was dismissed on the ground that the regulations framed by respondents have no statutory backing and Service Tribunal has thus no jurisdiction to entertain the appeal.
3. Heard Mr. Shahid Anwar Bajwa, Advocate Supreme Court for the appellant, Mr. Aain-ud-Din Khan, Advocate Supreme Court for the respondent No, 1.
4. Mr. Shahid Anwar Bajwa, Advocate Supreme Court for the appellant vehemently argued that appeal before the Federal Service Tribunal was maintainable in view of the principle laid down by this Court in the case of Muhammad Idrees v. Agricultural Development Bank of Pakistan and others (PLD 2007 SC 681). Learned counsel further contended that the regulations in respect of service of respondent's employee were framed by the Board of the Civil Aviation Authority constituted under section 7(2) of the Civil Aviation Authority, Ordinance 1982 in exercise of power under section 27 of the said Ordinance.
5. On the other hand, Mr. Aain-ud-Din Khan, Advocate Supreme Court for the respondent No,1 contended that regulations made by the authority in exercise of power under section 27 of the Ordinance are not statutory in nature as only the Rules framed under section 26 of the Ordinance are statutory rules.
6. We have taken into consideration arguments advanced by the learned counsel for the parties and have perused the record. In order to appreciate question involved we would like to reproduce sections 26 and 27 of the Ordinance 1982 which read as under:-- "26. Power of Federal Government to make rules.---The Federal Government may, by notification in the official Gazette, make rules for carrying out the purposes of this Ordinance.
27. Power of the Authority to make regulations.---The Authority may make regulations, not inconsistent with this Ordinance and the rules made thereunder, to provide for all matters for which provision is necessary or expedient for carrying out the purposes of this Ordinance."
7. From careful perusal of the sections 26 and 27 of the Ordinance 1982, it appears that the Federal Government by a notification in the official Gazette can make rules for carrying out the purpose of the Ordinance whereas, the Authority establish under section 3 of the Ordinance, in exercise of the powers conferred under section 27 of the Ordinance 1982 can make regulations, not inconsistent with the Ordinance to provide or all matters for which provision is necessary or expedient for carrying out the purposes of the Ordinance.
8. We feel that pivotal question which needs determination would be as to whether Service Regulations framed by the Authority in excess of power under section 27 of the Ordinance, 1982 are statutory in nature so as to invoke jurisdiction of the Service Tribunal. The question regarding statutory rules and regulations framed by a Corporate Body/Authority etc. Was considered by the High Court and by this Court in various cases. In the case of Pakistan Red Crescent Society and another v. Syed Nazir Gillani, (PLD 2005 SC 806), a three Members Bench of this Court approved the view taken in the case of Chairman, WAPDA and 2 others v. Syed Jamil Ahmed, (1993 SCM R 346) and we would like to reproduce paras 9 of the said judgment as under:-- "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 manlier and from whatever angle it is interpreted no role for framing of rules has been assigned to the Government and more so 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 matte 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 factory will not be their form or name, but the source under which they have been framed."
' It may be advantageous to reproduce paragraph 4 from the judgment of National Bank of Pakistan v. Manzoor-ul-Hassan, 1998 SCMR 842, which deals with the question as to the status of the Staff Service Rules framed by the Central Board of the National Bank of Pakistan with the approval of the Government and which reads as follows:-- "4. It has been contended on behalf of the appellant that the Staff Service Rules not having been framed by virtue of the delegated rule making power vesting in the Central Board under section 32 of the Ordinance, these rules do not have effect as statutory rules but are only instructions for the guidance of the officers of the Bank in regard to the internal management of the Bank administration. There is no doubt that as previously observed, the National Bank of Pakistan (Staff)
Service Rules purport to be rules made by the Central Board under Bye-Law 18 of the National Bank of Pakistan Bye-Laws: However, in our view this fact makes no material difference as to the effect of these rules. The vires of the legal effect of the rules cannot be judged by the mere form in which the rules are framed or the title by which they are called. In substance and in legal effect the said Service Rules for all intents and purposes are Bye-Laws framed under section 32 of the Ordinance.
The legal requirements for giving effect to the subordinate legislation contemplated under section 32 have been complied with in framing the Service Rules, inasmuch as, the rules have been framed by the Central Board and it is not denied that the prior approval of the Central Government was accorded."
' In another case Principal, Cadet College, Kohat and another v. Muhammad Shoab Qureshi (PLD 1984 SC 170), it was held that:- "It is, therefore, evident 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."
8-A. In view of the principle laid down in the various cases referred hereinabove, this appeal has no merit and accordingly dismissed. No order as to costs.