QAZI FAEZ ESA, J.--- Two writ petitions were filed in the Peshawar High Court, Peshawar and both these petitions were decided by a common judgment dated March 6, 2014 of a Division Bench of the High Court ("the impugned judgment"). Leave to appeal the impugned judgment was granted on August 26, 2014, consequently, the instant appeals were filed, and through this common judgment both the appeals are decided.
2. The two petitions that were filed before the High Court were under Article 199 of the Constitution; Writ Petition No. 3210 of 2012 was filed by nineteen persons and Writ Petition No. 3437 of 2012 was filed by eighty-nine persons respectively, that is a total of one hundred and eight persons, who are arrayed herein as respondents. The petitioners before the High Court had sought to change the terms of the letter dated March 6, 2012 titled "Regularization of NADRA Employees" issued by the National Database and Registration Authority, established. under The National Database and Registration Authority Ordinance, 2000 (hereinafter referred to as "NADRA" and "the NADRA Ordinance" respectively).
3. Before attending to the controversy raised before us, it would be appropriate to set out certain in disputed facts. The said one hundred and eight persons ere contractual employees who had been hired by NADRA r specific tasks and for prescribed periods; however, they did not attach, with their petitions filed before the High Court, opies of their contracts nor disclosed the process through which they were employed. Subsequently, NADRA decided to regularize all contractual employees and in this regard issued letters dated March 1, 2012 and March 6, 2012, which are reproduced hereunder:-- Letter dated March 1, 2012: "NATIONAL DATABASE & REGISTRATION AUTHORITY State Bank of Pakistan Building, Shahrah-e-Jamhuriat G-5/2, Islamabad.
NADRA/HR/Misc/27/Regularization 1st March, 2012 To: All PHQs/RHQs All Deptts/Dtes All DAUs.
Subject:Regularization of NADRA Employees
1. The Regularization has been approved by NADRA Authority Board and Ministry of Interior for all NADRA contractual employees with one year service w.e.f 29th February, 2012 as follows:---
(a) All employees will be given an option to get their services regularized under Basic Pay Scales Scheme. Services of such employees will be regularized, subject to their consent in writing. The pay, seniority and other terms and conditions will be regulated in accordance with government rules.
(b)Employees who will not opt Basic Pay Scale will work under existing contract rules and regulations However, following changes will be incorporated in their contracts:--- Notice period will be enhanced from one motif to three months from either side.
(ii) Contract will be open-ended to give security to employees.
2. Detailed in structions and terms and conditions including option form are being formulated, and will be issued to all for exercising their right to opt.
3. Forwarded for maximum dissemination to all, please. Director General HR (Tahir Maqscod Khan)"
Letter dated March 6 2012: "NATIONAL DATABASE & REGISTRATION AUTHORITY State Bank of Pakistan Building, Shahrah-e-Jamhuriat, G-5/2, Islamabad.
NADRA/HR/Misc/27/Regularization 6th March, 2012 To: All PHQs/RHQs All Deptts/Directorates All DAUs. ubject:Regularization of NADRA Employees 'eference: Further to our letter No. NADRA/HR/Misc./27/ Regulation, dated 1st March, 2012.
The Regularization of NADRA contractual employees s been approved by Competent Authority with effect from the February, 2012.
A team of officers including representatives of regions ye finalized the modalities, the terms & conditions which as under:--
(a) All employees having completed one year contractual service as on 29th February, 2012, are eligible to exercise the option to join EPS Cadre.
(b) Option once exercised will not be reversed. All employees are therefore requested to read all the terms & conditions carefully before endorsement.
(c) Equivalence of NADRA pay scales with Basic Pay Scales and designations is attached as Annex-A.
(d) Option Form to opt for NADRA or Basic Pay Scale is attached as Annex-B.
(e) The eligibility conditions as per Government Rules for various grades and designation are attached as Annex-C. Only those employees who fulfill the requisite criteria for BPS scales may opt for the same. However, in case an individual falling short of requisite criteria/length of service may opt for lower BPS scale, if otherwise eligible.
(f) Details of pay fixation under BPS' are attach as Annex-D.
3. Option Form duly filled by all eligible employees mu reach this office latest by 22nd March, 2012.
The form received after this date will not be entertained.
4. Forwarded for information and further disseminatio to all concerned please. Director General HR (Tahir Maqsood Khan)
4. The petitioners before the High Co contended that, "all the employees of NADRA have b regularized with immediate effect" by notification dated October 17, 2011. NADRA in its comments (filed before the High Court) disputed that the regularization of employees had taken place pursuant to "notification," dated October 17, 2011, NADRA also took a specific plea that Section 35 of the NADRA Ordinance and the National Database and Registration Authority Employees (Service)
Regulations, 2002 (hereinafter "the Regulations") did not envisage outside interference in the affairs of NADRA and employees are to be appointed by NADRA, itself "to the exclusion of all others - to set the terms and conditions of service of NADRA employees without any role or interference of the Federal Government in this regard" (paragraph 3) thereby disputing that the Interior Minister and/or the Ministry of Interior had any authority to order the regularization of NADRA's contractual employees. The concise statement (CMA No, 1001 of 2017) filed by the Government of Pakistan's Ministry of Interior categorically denied issuing the "notification" dated October 17, 2011 and further: "That the Ministry has thoroughly checked its record. There is no summary, order or instructions with regard to the regularization of the employees of NADRA... Moreover, under the Rules of Business, 1973, the Competent Authority to make any such orders is the Cabinet Division and not the Ministry of Interior, although NADRA falls within the function of Ministry concerned." It is however quite surprising that the High Court, without first resolving this factual controversy, assumed that the said "notification" had been issued. The said notification is reproduced hereunder:-- Notification dated October 17, 2011: "GOVERNMENT OF PAKISTAN MINISTRY of INTERIOR NATIONAL DATABASE AND REGISTRATION AUTHORITY (NADRA)
NADRA/HR/OR/49/Reqularization 17th October, 2011 NOTIFICATION In pursuance of orders of the Ministry of Interior, all NADRA employees of the following categories stand regularized with immediate effect. a-O-1 to 0-10. b-T-1 to T-10 Ali Arshad Hakeem Chairman NADRA"
5. 'If the "notification" dated October 17, 2011 had never been issued then the very foundation of the impugned judgment withers away, so too the rhetoric behind the statement in the impugned judgment, that, "It is strange that when earlier regularization order was passed on 17.10.2011 than who it necessitated to issue another Notification No. NADRA/HR/Regularization/27, dated 6th March, 2012 qua equivalency of designations/pay scales." Even, if we were to assume, for the sake of argument alone, that the "notification" of October 17, 2011 was issued it would be immaterial because neither the Interior Minister nor the Ministry of Interior has the legal authority to order regularization of the contractual employees of NADRA. NADRA is a statutory body and is governed by the terms of the NADRA Ordinance, which does not permit either the Interior Minister or the Ministry of Interior to issue an order as mentioned in the said "notification".
6. However, since NADRA had itself elected to regularize its contractual employees, and as there is no challenge to the regularization of its contractual employees, we proceed to consider the merits of the case. The contractual employees of NADRA were offered regularization and they accepted it.
However, the said hundred and eight persons objected to the terms of NADRA's letter dated March 6, 2012 to the extent of their respective designations and pay scales; they stated that the terms offered to them in letter dated March 6, 2012, were not in accordance with the decision which had been taken in a meeting held on February 22, 2012 under the Chairmanship of the Interior Minister and they were not offered what was decided to be granted to them as per the decision arrived at in the said meeting. The minutes of the meeting held on February 22, 2012 are reproduced hereunder:--- "GOVERNMENT OF PAKISTAN MINISTRY OF INTERIOR NATIONAL DATABASE AND REGISTRATION AUTHORITY (NADRA)
Case No. NADRA/HR/Misc/25/Regularization Islamabad, 23rd Feb, 2012.
Subject:Regularization of NADRA Employees Scheme, 2012 Kindly refer to the meeting held on 22nd February, 2012 under the Chairmanship of the Honourable Minister for Interior on the above mentioned subject.
1. A meeting for the Regularization of NADRA employees is scheduled on 28th February, 2012, under the Chairmanship of Honourable Federal Minister for Religious Affairs, Mr. Syed Khursheed Ahmed Shah, Chairman Cabinet Sub-Committee or Regularization of Contract Basis/Daily Wages Employees.
2. Cadres. The Honourable Minister for Interior during the meeting has ordered that NADRA shall have the following cadres:--- a. Executive Cadre. This will consist of all field staff as ' well as the staff engaged in preparation of Identity Cards Project. b. Technical Cadre. Staff dealing with technical areas at NADRA. c. Research and Development, Staff dedicated to strategic research for future business development and enhancing the security of the data. d. Legal and Vigilance. Staff dealing with legal Court matters of NADRA and staff deployed on vigilance duties.
3. The Honourable Minister for Interior also ordered that the designations of NADRA employees shall be changed with immediate effect, to bring them in line with designations of other Government Departments, Following appointments/designations are hereby re-designated as:--- {{TABLE}} Current Designation New Designation BPS General Manager/Chief OfficerDirector General 20 Deputy General Manager Director 19 Senior Manager Joint Director 19 Manager Additional Director 18 Deputy Manager Deputy Director 18 Assistant Manager Assistant Director 17 Senior Supervisor Superintendent 16 Supervisor Deputy Superintendent 14 Assistant Supervisor Assistant Superintendent14 Office Assistant/Camera Person DEOOffice Assistant 12 Data Entry Operator Data Entry Operator 12 {{TABLE}}
4. Following recommended to be placed before the Honourable Federal Minister for Religious Affairs, Mr. Syed Khursheed Ahmed Shah, Chairman Cabinet Sub-Committee on Regularization of Contract Basis/Daily Wages Employees:--- a. Regularization of Employees. The Minister for. Interior, supported the inalienable right of choice of NADRA employees to a permanent appointment through the process of regularization. There will be two streams under the regularization Scheme - 2012 of NADRA. The NADRA employees will be free to opt for any of the two Schemes provided they have served for at least one year on the date of notification of this Scheme. b. Basic Pay Scales (BPS)
(1)NADRA employees can opt for BPS equivalent perks, privileges and powers under the existing Government BPS rules and regulations. Their pay scales will, be from BPS-1 to BPS-20.
(2)Special NADRA Pay Scales (SNPS). The employees will be offered open ended (Permanent Regularized Contract) 'under SNPS Scheme. The contract of the employees who are serving NADRA at the time of the notification of Regulation scheme will be offered openended contracts with no end date on the same terms and conditions as of their existing contract."
7. The other aspect of this case, which has been stressed by the learned counsel for the private respondents, were the "notification" dated October 17, 2011 stated to have been issued by the Ministry of Interior and the minutes of the meeting held, on February 22, 2012 under the Chairmanship of the Interior Minister. We have already considered and determined, in paragraphs four and five (above), the matter of the "notification" of October 17, 2011.
8. We therefore now proceed to examine the minutes of the meeting dated February 22, 2012 held under the Chairmanship of the Interior Minister. These minutes do not state that it was a meeting of NADRA, let alone a meeting as envisaged under Section 4 of the NADRA Ordinance, in particular the minutes do not state that: (i) it was a meeting of NADRA, (ii) do not record the members present at such meeting, (iii) nor whether the requisite quorum for a NADRA meeting was present, (iv) do not mention that the necessary notices for holding a NADRA meeting were issued and (v) do not record the "determination or decision of the Chairman and each member separately". However, even if non-compliance with Section 4 of the NADRA Ordinance is kept to one side and it be presumed that the Interior Minister had the legal capacity to take a decision with regard to the regularization of NADRA's contractual employees, which the NADRA Ordinance does not envisage, the fact is that such a decision was not taken. The minutes of the meeting held on February 22, 2012 state that another meeting is proposed to be held on February 28, 2012 under the Chairmanship of the Federal Minister for Religious Affairs, the "Chairman of Cabinet Sab Committee of Regularization of Contract Basis/Daily Wages Employees" and that the matter of "Regularization of Employees" is "to be placed before the Honourable Federal Minister for Religious Affairs." It thus transpires that the Interior Minister had merely decided to recommend that the matter of regularization of the contractual employees of NADRA be placed before the Chairman of Cabinet Sub-Committee of Regularization of Contract Basis/Daily Wages Employees for his/their decision. We may further observe that even if the Interior Minister had decided to regularize the contractual employees of NADRA on terms which were more advantageous to them than those offered by NADRA, (through its letters dated March 1 and March 6, 2012) such a decision of the Minister would not prevail over the decision of NADRA.
9. It appears that the Cabinet Sub-Committee had approved the regularization of the contractual employees of NADRA and NADRA followed it which can be seen from the "Minutes of the 25th Meeting of NADRA Authority Members held on Tuesday 28th February, 2012 at 11:30 hours at NADRA Headquarters", relevant portion from which is reproduced hereunder:-- "AM/25/03 REGULARIZATION OF NADRA EMPLOYEES 25/3/01 The Board held its meeting and deliberated the regularization of NADRA employees. All members supported the concept of Regularization of NADRA Employees within the laid down parameters as assigned to Cabinet's Sub-Committee on Regularization of Contract Employees.
The board approved the following two options for the regularization of NADRA employees as appended below:-- a. Grant of Basic Pay Scales All employees will be given an option to regularize their services under BS. Their pay scales will be from BS-1 to BS-20. b. Special NADRA Pay Scales - Contract Employees Employees who will not opt BS Scheme, will work under existing contract rules and regulations.
However, following changes will be incorporated in the contract to make it more prudent and practical for giving job security:--- Termination of Contract (Clause 13) of existing contract will be changed, as follow:--- (1)Notice period will be enhanced from one month to three months from either side.
(2)Contract will be open ended to give the job security to employees.
Note:- However, FA (Interior), JS Adam. (Interior) and JS (Law) have difference of opinion. They were of the opinion that the contract should not be open ended and be limited for three to five years period extendable based on the need. c. Sanctioned Strength All employees opting for option (a) or (b) will be the sanctioned strength of NADRA."
It is pertinent to note that the aforesaid minutes do not mention the specific designation/pay scale which were to be offered to the contractual employees in case they opted to become regular employees of NADRA. Consequently, there was nothing before the High Court, nor for that matter before this Court, to suggest that different designations and/or pay scales were to be offered to the contractual employees than those that were offered in NADRA's letter dated March 6, 2012.
10.NADRA had opposed the petitions before the High Court NADRA also took a specific plea that the NADRA Ordinance, and in particular Section 35 thereof did not envisage outside interference in the affairs of NADRA and NADRA itself is alone competent to employ people, and this is required to be done in accordance with the prescribed methodology. NADRA had also raised the legal objection with regard to the jurisdiction of the High Court. Surprisingly, these legal questions did not receive an answer from the High Court.
11.Pursuant to the powers conferred by Section 45 read with Sections 35 and 37 of the NADRA Ordinance, NADRA had enacted the Regulations. The Regulations attend to the method of appointment and qualification of employees (Regulation 8), designate the appointing authority (Regulation 9), specify the Selection Boards and Selection Committees (Regulation 10), set out the procedure for initial appointment (Regulation 11), require that merit and provincial quota be observed (Regulation 12), require candidates to be medically fit (Regulation. 13) and require verification of the character and antecedents of potential employees (Regulation 14). It is not clear whether the prescribed procedure for the selection and appointment (as mentioned in the Regulations) was followed, however, MADRA had elected to regularize all contractual employees and there is no challenge to such regularization. NADRA, the appellant herein, is aggrieved by the impugned judgment which has struck down NADRA's letter dated March 6, 2012 "to the extent of equivalency table" attached therewith and given directions to "re-designate their [the petitioners before the High Court] pay scales as mentioned in the Notification No. F&A/NADRA/HQ/2002-2003, dated 21.6.2003 with all consequential benefits."
12.The referred to NADRA's letter dated March 6, 2012 had enclosed "Option Form" which was require: "filled by all eligible employees" and the Option Form was to be submitted "latest by 22nd March, 2012". The regularization process initiated by NADRA would proceed towards completion after the eligible contractual employees had submitted their Option Forms. However, before the submission of his/her Option Form a contractual employee would continue as such, that is remain a person who was employed on contract by NADRA. The private respondents herein, who were the petitioners before the High Court, however, challenged certain terms/components of NADRA's letter dated March 6, 2012; in doing so they undermined their own status of becoming regular or permanent employees of NADRA. If they did not accept NADRA's letter dated March 6, 2012, or any par+ thereof,, they would remain as contractual employees of NADRA. The High Court could not renegotiate, alter and/or amend the terms of regularization that were offered by NADRA for the simple reason that the High Court did not have jurisdiction to do so. Therefore, till such time that the employees were regularized they would continue to be governed by the terms and conditions of the contract which they had with NADRA. The writ or Constitutional jurisdiction of the High Court under Article 199 of the Constitution could not be invoked by a contractual employee of a. statutory organization such as NADRA (see Pakistan Defence Officers' Housing Authority v. Jawaid Ahmed reported as 2013 SCM R 1707, Pakistan Telecommunication Co. Ltd. v. lqbal Nasir reported as PLD 2011 Supreme Court 132 and P.T.C.L. v. Masood Ahmed Bhatti reported as 2016 SCM R 1362). It was only after the terms and conditions offered by NADRA had been accepted and the Option Form had been submitted that the status of a contractual employee would convert to that of a regular employee of NADRA. Before accepting the terms offered by NADRA and submitting the Option Form the status of a contractual employee would remain as such and he/she would not be able to seek recourse to the Constitutional jurisdiction of the High Court.
13. Therefore, for all the reasons mentioned above, both these appeals are allowed and the impugned judgment dated March 6, 2014 of the Peshawar High Court is set aside and the petitions (WP Nos. 3210 and 3437 of 2012) filed before the Peshawar High Court are dismissed.