Through the instant constitutional petition under Article-199 read with Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973 the petitioners have made the following prayer:-- "It is respectfully prayed that by accepting this constitutional writ petition of the petitioners the respondents may kindly be directed to withdraw/set aside the impugned Letter/Order No, 998/I/Cop/ Accts/NESCOM dated 16-04-2010, and Office Order No, 510/2010, dated 27-06-2010 and may also kindly be declared the said letters/orders Illegal, unlawful and against the fundamental rights of the petitioners guaranteed in the Constitution of Islamic Republic of Pakistan 1973, therefore, the letters/orders dated 16-04-2010 and order dated 27-06-2010 may kindly be set aside and the petitioners he paid their salaries, allowances, pensions and other benefits alongwith increments according to their revised pay scales as mentioned in OM No, 938/2K5/SWDD/AF/PAY dated 17th August, 2005.
Any other relief may also be awarded to the petitioners which this Honorable Court deems fit and proper."
2. The Petitioners, in brief, have alleged that they are employees in non-technical cadre of Strategic Plans Division (S.P.D.), a subsidiary of NESCOM and are working in different pay scales in the respondents' establishment. All the petitioners are presently working in revised Special Pay Scales
(SPS) but on 16-04-2010 the respondents had issued impugned letter dated 16-04-2010, wherein, it was mentioned that the extra advantage got by non-technical employees of NESCOM as a result of double conversion of their pay scales is frozen with immediate effect and this extra advantage is to be treated as their personal allowance. The petitioners have alleged that due to the implementation of the impugned order, they will suffer irreparable loss, hence, the instant writ petition.
3. In response to the notice issued to the respondents, report and para-wise comments have been filed.
4. Learned counsel for the petitioners argued that National Engineering & Scientific Commission (NESCOM) falls under the command and control of National Command Authority, which was created vide National Command Authority Act, 2010 and as the petitioners have no alternate remedy for redressal of their grievances, hence, the instant writ petition is maintainable; that the petitioners are the drivers working in NESCOM and in the year 2005, Basic Pay Scales (BPS) of the petitioners were converted into Special Pay Scales (SPS) and from 1st January, 2006 the petitioners were getting their salaries and other emoluments under those Special Pay Scales (SPS) but suddenly on 16th April, 2010 without any notice to the petitioners impugned letter was issued, whereby, the Basic Pay of the petitioners, which they were drawing under SPS has been reduced and the difference of the reduced Basic Pay and the Basic Pay which the petitioners were drawing under Special Pay Scales (SPS) has been converted into personal allowance of the petitioners, as such, the petitioners have been subject to a discriminatory treatment in violation of the fundamental rights guaranteed under Article-25 of the Constitution and the act of the respondents will adversely affect the petitioners because in future if the salaries of the Federal Government Employees are increased by the Federal Government, the said increase would be calculated from the Basic Pay, which the petitioners would be drawing at that moment, as such, the petitioners shall suffer irreparable loss; that the petitioners were asked to give their option that whether they are willing to adopt Special Pay Scales or Basic Pay Scales and in the light of consent of the petitioners their basic pay was adjusted under Special Pay Scales (SPS), as such, valuable rights have been accrued in favour of the petitioners which could not be taken away by the respondents; that principle of Locus Poenitentiae applies to the petitioners, hence, they could not be deprived from the Basic Pay which they were drawing under Special Pay Scales. Learned counsel for the petitioners has relied upon PLD 1969 S.C, 407, 2003 SCM R 819, P.LJ. 2005 S.C. 323, 1992 SCM R 1652 and NLR 2005 (Civil) 458.
5. Conversely learned counsel for the respondents argued that service rules of NESCOM are non- statutory, hence, the petitioners could not invoke the Constitutional jurisdiction of this Court under Article-199 of the Constitution of the Islamic Republic of Pakistan, 1973; that cases regarding the determination of rules of Organizations falling under the National Command Authority are pending before the Hon'ble Supreme Court of Pakistan and it has been held in a number of Judgments that the service rules of the Organizations which fall under the control of National Command Authority are non-statutory. Learned counsel in this regard has relied upon PLD 2010 S.C. 676, 2010 SCM R 1484 and 2012 SCM R 1912. Learned counsel for the respondents further argued that: initially the salaries of the non-technical employees were fixed under Basic Pay Scales, however, subsequently when their salaries were fixed under Special Pay Scales, it gave rise to a situation that the petitioners obtained double benefit, however, the excess amount already received by the petitioners has not been recovered by the department. Learned counsel for the respondents further argued that an illegal benefit drawn by a Government servant can be taken back by the authority.
In this regard learned counsel has relied upon PLD 1992 S.C. 207 and 2000 SCM R 907.
6. I have heard the learned counsel for petitioners as well as learned counsel for the respondents and perused the documents appended with the writ petition.
7. National Command Authority was created under National Command Authority Act, 2010 (Act No, V of 2010). However, Section 2 of the Act ibid reads as under:--
2. Deffnitions.--In this Act, unless there is anything repugnant in the subject or context.-- (a)"Authority" means the National Command Authority established under Section 3 of this Act; (b)"Chairman" means the Prime Minister of the Islamic Republic of Pakistan;
(c) "employee" means any official, employee etc., whether in the service of the Authority or the Strategic Organizations, serving or retired and includes those on deputation or secondment within Pakistan or abroad and those studying abroad; Section 8 of the National Command Authority Act, 2010 reads as under:-
8. Strategic Organizations.---All the Organization working under the control, regulations and directions of the Authority and such bodies as may be notified by the Authority shall be the Strategic Organizations under this Act.
Section 9 of the Act ibid reads as under:--
9. Employees of Authority. -------------------------------
(2) The Authority shall regulate all the matters relating to terms and conditions of the service of the employees in the service of the Authority, including their appointment and removal, promotion, transfer, integrity assessm ent, reliability, security clearance, and other related matters: Provided that the employees working in the service of the Authority who are subject to the Pakistan Army Act, 1952 (XXXIX of 1952), Pakistan Air Force Act, 1953 (VI of 1953) and Pakistan Navy Ordinance 1963 (XXXV of 1963), shall also be governed by this Act and rules made thereunder: Provided further that the Pakistan Army Act, 1952 (XXXIX of 1952) shall be made applicable in respect of employees in the service of the Authority to whom Section 2 of the said Act applies or employees in the service of the Authority for whom a notification under Section 8 of the aforesaid Act is issued.
(3)The Authority shall categorize the nature of service of the employees on the basis of the sensitivity of the functions and then shall frame rules, criterion, assessment basis for each set of employees and no employee shall have a vested right for any post assignment, emoluments, promotion, privileges, transfer, deputation etc. (underlining and emphasizing is mine).
8. From the bare reading of Section 9(3) of the National Command Authority Act, 2010, it is evident that the National Command Authority shall frame rules for each set of employees, however, in the said Act, it is nowhere mentioned that the National Command Authority shall frame rules for its employees with prior permission of the Federal Government, as such, inference can safely be drawn that the rules of the respondent Organization are non-statutory, therefore, the petitioners cannot invoke the constitutional jurisdiction of this Court under Article-199 of the Constitution of the Islamic Republic of Pakistan, 1973. Similar view has also been taken by the Hon'ble Supreme Court of Pakistan in Civil Appeal No, 479 of 2010 titled as Director General, National Development Complex, Government of Pakistan, Islamabad versus Kashif Ayub Khan. Moreover, this Court in Writ Petition No, 251 of 2010 titled as. Khalil-ur-Rehman versus Secretary National Command Authority & 2 others and in ICA No, 247 of 2010 titled Director (Admn) PAEC Islamabad etc. versus Nasir Mehmood, has also held that services of the employees of PAEC (which also falls under the control of National Command Authority) are not governed by statutory rules and principle of "Master and servant" would be applicable for such employees.
9. In view of the above perspective, instant writ petition under Article-199 of the Constitution of the Islamic Republic of Pakistan, 1973 is not maintainable and the same is hereby dismissed. The petitioners may avail alternate remedy available tc them under the law. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.