' SHAHID ANWAR BAJWA, J.--- For reasons to be recorded later this constitutional petition was dismissed by short order dictated in open Court on 20-4-2011. The following are reasons of the same.
2. Petitioner is an Aircraft Engineer by profession and was employed by respondent No,2, Pakistan International Airlines Corporation (hereinafter referred to as the respondent Corporation). Petitioner retired from service upon attaining the age of superannuation on July 27, 2010. This petition has been filed by the petitioner with a prayer that he be declared to be entitled to promotion as Deputy Chief Engineer with effect from August, 2007 and that the petitioner be promoted accordingly with consequential benefits.
3. In view of dicta laid down by`the honourable Supreme Court in the case of Pakistan International Airlines Corporation v. Tanweer-ur-Rehman (PLD 2010 SC 676) learned counsel for petitioner was asked to satisfy the Court as to how this petition is maintairfable. Learned counsel submitted that petitioner claims promotion in accordance with PIA Aircraft Engineers Services Rules, 2001 circulated vide Admin. Order No,16 of 2001 on July 17, 2001. He further submitted that in Writ Petition No,D-948 of 2009 (Society of Aircraft Engineers of Pakistan and others v. Federation of Pakistan and another) decided by a Division Bench of this Court on 18-9-2009, the following observations were made:--- "We have given anxious consideration to the arguments, advanced and perused the Act 'Pakistan International Corporation (Suspension of Trade Unions and Existing Agreements) Order, 2001", which was promulgated on 30-8-2008. By virtue of section 2 of the Act 2008 Chief Executive Order No,6 of 2001 was repealed. Subsection (2) of section 2 reads as follows: ' Section 2(2) Notwithstanding the repeal of the C.E.'s Order No,6 of 2001, and without prejudice to the provisions of sections 6 and 24 of the General Clauses Act, 1897 (X of 1897), all administrative orders issued, actions taken and modifications made in settlements shall continue in force until altered or rescinded.'
' From a bare reading of the above, it is clear that while repealing the Chief Executive's Order No,6 of 2001 all administrative orders issued, action taken and modifications made in settlememt are protected and will continue in force until altered or rescinded. Admittedly no rules regulating service of the Aircraft Engineers have so far been promulgated or in force except the ones framed under the Chief Executive's Order No,6 of 2001 and in view of the saving clause of the repealed order such rules have been saved and protected. All such rules framed under the Chief Executive's Order No,6 of 2001 have since been saved and protected, therefore, will remain in force."
4. Learned counsel for petitioner submitted that Admin. Order has been issued in exercise of powers conferred by Chief Executive's Order No,6 of 2001 and therefore the Admin, Order has status of Statutory Rules. In this regard learned counsel relied upon opening paragraph of the Admin.
Order No,16 of 2001 which is in the following words:-- "in exercise of the Powers conferred under the provisions of Chief Executive Order No,6 of 2001 dated 5 July; 2001, the Board of Directors of the Corporation has prescribed fresh terms and conditions of the service for Aircraft Engineers as the Agreements dated 9th May, 1993 and dated 27th January, 1997 and all previous MOUs entered into by and between PIAC and the SAEP which now stand suspended by Article 2 of said Order, shall have effect as modified hereunder and subject to such other modifications and omissions as may be made therein from time to time."
5. Learned Deputy Attorney-General submitted that Pakistan International Airlines Corporation does not have Statutory Rules and, therefore, this petition is not maintainable.
6. We have considered the submissions made by the learned counsel for the parties and perused the record as well as case-law cited at the bar.
7. The Chief Executive's Order 6 of 2001 was promulgated by the then Chief Executive of Pakistan on July 5, 2001 and it is under the title, of "Pakistan International Corporation (Suspension of Trade Unions and Existing Agreements) Order, 2001". It consists of 5 Articles. Article 1 is /Introductory.
Article 3 provides for removal or, retirement from service. Article 4 provides that service under Corporation to be service of Pakistan and declared that every person holding a post under the Corporation not being a person who is on deputation to the Corporation, shall be deemed to be a civil servant for the purposes of the Service Tribunals Act, 1973. Article 5 bars applicability of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and the Industrial Relations Ordinance, 1969. Article 2 provided that all Union, Associations, Organizations or Groups of any type of employees of the A respondent Corporation were suspended and would cease to function forthwith and all the agreements, awards and settlements existing between the corporation and its employees, their unions, associations, organizations or groups shall remained suspended. Thereafter proviso to Article 2, on which the whole emphasis was laid by the learned counsel for petitioner for claiming status of Statutory rules, provides as under:--- "Provided that during the period of suspension of existing agreements, awards and settlements the Board of Directors of the Corporation may, if it deems expedient, prescribe fresh terms and conditions of service of the employees, officers. And advisers of the Corporation in substitution, or partial modification, of the existing agreements, awards and settlements."
8. Above proviso merely confers power on Board of Directors of the Corporation to prescribe terms and conditions of Service etc. It does not provide for creation of any statutory rules. Therefore, rules framed by the Corporation whether by Admin. Order 16 of 2001 or otherwise are not statutory rules.
In Writ Petition No,D-948 of 2009 a Division Bench of this Court merely held that with repeal of the Chief Executive's Order No,6 of 2001 orders framed thereunder stood saved and protected unless altered or rescinded. No such protection can change status of the rules of Admin. Orders which are and remain non-statutory in nature.
9. There is another aspect of the matter. The honourable Supreme Court of Pakistan in case of Chief/ Manager, State Bank of Pakistan Lahore and another v. Muhammad Shafi (2010 PLC [C.S.] 1088) had held that rules framed without approval of Federal Government even if framed in pursuance of power given by a Statute are not Statutory Rules. Relevant observations of the Supreme Court are as under:---
6. We have given our anxious consideration to the contentions of the learned counsel of the parties and perused the record. First of all we will decide the status of regulations of the petitioner qua statutory or non statutory regulations. For this purpose section 54 of the State Bank of Pakistan Act, 1956 is reproduced hereinbelow:--
54. Powers of the Central Board to make regulations.--- (1) Subject to the approval of the Central Government, the Central Board may make regulations consistent with this Act to provide for all matters for which provision is necessary or convenient for the purpose of giving effect to the provisions of this Act.
2(j) 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; 7 The words "subject to the approval of the Federal Government were omitted vide Act II of 1994.
The regulations were framed under section 56 in the year, 1999 as is evident from the source on the basis of which the said regulations were framed which is to the following effect:--- "In exercise of the powers conferred by section 54 of the State Bank of Pakistan Act, 1956 (XXXIII of 1956) the Central Board of Directors, hereby makes the following Regulations, to define the conditions of service of the employees of the Bank."
8. The omission of the aforesaid words subject to the approval from section 54 is meaningful. Rules framed by the Central Board of Directors which does not require approval of the Government, therefore aforesaid regulations may be termed as internal instructions or domestic rules/ regulations having no status of statutory rules/ regulations as law laid down by this Court in various pronouncements which are as follows:
(i) Cadet College Kohat's case PLD 1984 SC 170
(ii) Zia Ghafoor Paracha's case 2004 SCM R 35"
10. In Muhammad Nawaz v. Civil Aviation Authority and others (2011 SCM R 523) the honourable Supreme Court has held that rules framed by Civil Aviation Authority since they do not have approval of Federal Government are not statutory rules. Therefore looking at from this angle also any rules framed by the Corporation in pursuance of the powers conferred by the Chief Executive's Order 6 of 2001 would not be statutory rules because no permission of Federal Government has been obtained or is even required to be obtained. We must hasten to add that neither Chief Executive's Order nor it repealing legislation conferred any power for framing statutory rules or any status of statutory rules on any orders, instruction or rules framed by the Corporation for its internal matters.
11. There is yet another aspect of the case. It may be noticed that Chief Executive's Order 6 of 2001 was promulgated, as observed above, on July 5, 2001 and it was repealed by Pakistan International Corporation (Suspension of Trade Unions and Existing Agreements) Order (Repeal) Act, 2008 which Act was promulgated on 28-8-2008. In Industrial Relations Advisors' Association through General Secretary v. Federation of Pakistan through and others Ministry of Labour and Manpower, Islamabad and others (2010 PLC 359) this Court considered the provisions contained in Article 270- AA and in respect of legislative instrument made between 12-10-1999 and October 31, 2003 and not in existence on 18-4-2010 observed as under:--- "65. Reading of the above indicates the position as under:---
1. Promulgation of Emergency of 14th day of October, 1999 and the Provisional Constitution Order of 1999 as well as other instruments. Named in Article 270-AA(1) have been, notwithstanding judgment of any Court including the Supreme Court (for example, the judgment of the Supreme Court in the case of Zafar ALI Shah v. Pervaiz Mushuraf, Chief Executive of Pakistan, PLD 2000 SC 869) to the contrary, have been declared as Having been made without lawful authority and therefore are of no legal effect.
2. Except, as protected by sub-Article (2) all legislative instruments made during the period between October 12th, 1999 and October, 31st, 2003 except those protected under sub-Article (2) are instruments which were made without lawful authority and therefore of no legal effect.
3. Under Sub-Article (2) only such instruments made between October 12th, 1999 and October 31st, 2003 that are still in force are protected and are to continue in force.
4. Therefore in respect of any legislative instrument such as a Presidential Order, Act, Ordinance, Chief Executive Order etc., made during above stated period, if it was not still in force it can not continue. In fact, except for transactions past and closed, it is now void ab initio because legitimacy given to it by 17th Amendment has been withdrawn and the very instruments (PCO etc.) on which it was based, have been declared as without lawful authority.
5. Still in force refers to the date of 19-4-2010.
6. I.R.O., 2002 was not in force on April 19th 2010.
7. I..R.O., 2002 is thus without lawful authority and of no legal effect, except for the protections provided under Article 264 of the Constitution, it is to be deemed and presumed as never having been made.
12. The malady which afflicted the Industrial Relations Ordinance, 2002 also afflicts the Chief Executive's Order 6 of 2001. Consequently, this petition is held to be not maintainable and is dismissed in limini.
13. These are our reasons for the short order dictated in open Court on 20-4-2011.