Through this constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 petitioners seek a declaration from this Court that the Executive Board's decision made in the 224th meeting dated 07.01.2013 regarding creation of 1976 posts in different cadres was illegal on the grounds that Board is neither competent nor authorized to create such posts of BS-16, and, that, in this way, the right of promotion of the officials will be seriously prejudiced. Places reliance upon Massrs Mehraj Flour Mills and others versus Provincial Government and others (2001 SCM R 1806). 2.Brief facts giving rise to the filing of this writ petition are that in the year 2008, the National Highway Authority advertised recruitment of the posts in pay scales (BS-1 to BS-20) in different temporary projects. According to rules of business of Federal Government, BS-20 post could only be filled through Central Selection Board and not by any other authority but the executive board/Respondent No, 2 decided to relax the rules of appointment through written test. Since the National Highway Council, did not approve the relaxation of rules, therefore, its selection by the executive board and regularization of the employees were challenged.
3.In the report and parawise comments submitted, by Respondents No, 1, 3, 4,5 and 6, it was stated that regularization of the employees will not affect the seniority of the regular employees who will be promoted against their respective quotas. It was added that powers to control, manage and formulate the policy decision were within the domain of Board which include the provision of employment and recruitment of the officials. Further adds that respective High Courts of Peshawar, Karachi and Islamabad have dismissed such petitions, therefore, the same view be observed by this Court.
4.Arguments heard. File perused.
5.After hearing the learned counsel for the parties and perusing the available file, it is straightway observes that under Rule 2 of the National Highway Authority (Appointment .& Promotion) Service Rules, 1995 competent authority means "Executive Board" and under Rule 3 it is the Executive Board which creates posts and their designation, and under Rule 6, the appointment to various post are made by designated authorities. Rules 2, 3 and 6 are reproduced as under:--
2. DEFINITIONS
(1) Unless there is anything repugnant in the subject or context the terms used in the rules are defined hereunder:-- (a)"Authority" Means National Highway Authority established under National Highway Authority Act 1991.
(b)"Competent Authority"Means the Executive Board of National Highway Authority or any officer to whom powers under these rules are designated.
(c)"Employee" Means a person regularly appointed by the competent authority for service of the Authority.
3. CREATION OF POSTS AND THEIR DESIGNATIONS.
The competent authority may create such permanent and or temporary posts and designate and or abolish the same as it may deem expedient for the efficient performance of function of the Authority within the orbit of powers originally held or delegated, subject to observance of instructions issued by Federal Government from time to time.
6.The authorities competent to make appointments to the various posts shall be as follows: - S. No.Post Appointing Authority
1. Posts in basic pay scales 20 and above.President National Highway Council.
2. Posts in basic pay scales 18 & 19 Executive Board of NHA
3. Posts in basic pay Scales 16 & 17 Chairman, NHA
4. Posts in basic pay scales 11 to 15 Member (Admn)
5. Posts in basic pay scales 11 to 15 (1) Regional GMs
(2) Director (Admn) or nominee of chairman NHA at head office.
6. In view of what has been stated above, this writ petition has been found merit less and is therefore dismissed.