AHMAD ALI, J.----Petitioner filed instant constitutional petition seeking addition of the period, served with respondents as daily wages employment, with the period served as a regular employee, for the purpose of pensionary benefits.
2. A brief account of the facts of present writ petition are that the petitioner was appointed as Cleaner on daily wages basis in the year 2000 in the Civil Aviation Authority Peshawar and after completion of 09 years as such, the services of petitioner were regularized in PG-01 w.e.f. 1st June-2009. That the petitioner on attaining the age of 60- years awarded superannuation w.e.f. 01.06.2018, thus petitioner served the Civil Aviation Authority (hereinafter referred as CAA) for about 09 years on daily wages and then 09 years on regular basis i.e. for a total period of about 18 years. But respondents are not paying the pensionary benefits to petitioner on the score that his regular service was only nine years and they are not adding the period served on daily wages by the petitioner into his qualifying service.
3. Respondents submitted comments wherein they contended that the regularization order was subject to the condition that petitioner will not assert any benefits on the basis of his previous daily wages' employment prior to the effective date of regularization i.e. 01.06.2009. The petitioner had assented to the said conditions and as token thereof he had signed the acceptance letter . Thus, the daily wages employment cannot be counted toward his qualifying service. The main objection of respondents was that the CAA owing to not having statutory service rules is not amenable in the writ jurisdiction.
4. Learned counsel for the petitioner argued that the petitioner served Civil Aviation Authority for a period of 09 years on daily wages continuously and without any break in service. The career of petitioner during these 09 years was unblemished, therefore, respondents awarded him regularization w.e.f. 01.06.2009. After his regularization too the petitioner served the department for nine years and then attained the age of superannuation. Respondents are not ready to include 09 years daily wages employment of petitioner in his regular service so as to meet the criteria of qualifying service for pension.
5. Conversely , the learned counsel appea ring on behalf of respondents denied the stance of petitioner on the score that the High Court has no jurisdiction not entertain present writ petitioner as the CAA has no statutory service rules, therefore, petitioner cannot invoke the powers of the High Court under Article 199 of the Constitution. He argued, petitioner himself had accepted his regularization by accepting the condition that he shall not claim any benefits of his previous daily wages' employment. Thus, the petitioner is estopped to claim such benefits through the present constitutional petition.
6. We have heard arguments and have carefully perused the record. To determine as to whether me Rules of the CAA are statutory or non-statutory , we deem it appropriate to observe that CAA is a statutory Authority , established under CAA Ordinance of 1982. Subsectio n (2) of the Section 3 of ibid Ordinance, 1982 provides that the authority shall be a body corporate, having perpetual succession and a common seal with power , subject to the provisions of this Ordinance, to acquire and hold property , both movable and immovable and shall sue and be sued by the name assigned to it by subsection (1). Section 4 of the Ordinance provides that the Federal Government may, as and when it considers necessary , issue directives to the Authority on matters of policy and such directives shall be binding on the Authority , and if a question arises whether any matter is a matter of policy or not, the decision of the Federal Government shall be final. According to Section 7 of the said Ordinance, the general direction and administration of the Authority and its affairs shall vest in a Board which may exercise all powers, perform all functions and do all action and things which may be exercised, performed or done by the Authority . The said Board is consisting of seven members, out of which four members, including a Chairman, are from Federal Government.
Industrial Relations Act, any suit, prose cution or other legal proceedings against Authority are barred under Sections 23 and 24 of the ibid Ordnance. According to Section 26, the Federal Government may make rules for carrying out the purpose of said ordinance whereas
7. The most important section of the Ordinance, directly dealing with the controversy regarding maintainability of the instant writ petition, is Section 27 of the Ordinance which confers powers to Authority to make regulations, non- 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. Section 27, for ready reference, is reproduced here under:
27. Powers of the Authority to make regulations :- The Authority may make regulations, non-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.
8. In pursuance of power conferred upon the authority under the supra section, the Authority has approved the Rules, namely , Aviation Authority Service Regulations" to govern the terms and conditions of the service of employees of the CAA.
There is no denial of the far: that that section 27 of the Ordinance, 1982, empowered the Authority to make regulations. It is also pertinent to mention that the dominant control and management under the ibid Ordinance of 1982, vests in the Federal Government as is manifest from the composition of the Board. According to section 7 (2) of the Ordinance, majority of the members belong to Federal Government. Overall superintendence and directions of the affairs and the business of the Authority have been entrusted and vested in the Board. The Director General is also to be appointed by the Federal Government. The perusal of Sections 3, 7, 23, 24, 26 and 27 leads to an irresistible conclusion that not only the CAA is creation of the Statute but effective and substantial role of the Federal Government in its af fairs is also directly involved.
9. Now, it is to determine as to whether the CAA can be defined as "Person" within the purview of Article 199 of the Constitution of Pakistan, 1973? In this regard we deem it appropriate to reproduce sub-article 1(a)(i) and sub-article 1(c) of Article 199 of the Constitution: 1(a)(i) Directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority , to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or 1(c) on the application of any aggrieved person, make an order giving such direc tions to any person or authority , including any government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter I of Part-II.
Besides, term "Person" has also been defined in Article 199 (5) of the Constitution in the following manner:- "Person" includes any body politic or corporate, any authority of or under the contr ol of the Federal Government or of a Provincial Government, and any Court or tribunal, other than the Supreme Court, a High Court or a Court or tribunal established under a law relating to the Armed Forces of Pakistan.
In order to ascertain the term "Person" the august Supreme Court of Pakistan in case titled, Salah ud Din v.
Frontier Sugar Mill Ltd. (PLD 1975 SC 244) formulated a test fulfilling the following three conditions in order to consider it as "Person" performing function in connection with the af fairs of the Government. i. Function of the State including some exercise of the severing of public powers; ii. Control of organization of person shall be substantially in the hand of Government; and iii. The bulk of the fund is provided by the State.
Thereby the august Appeal. Court was pleased to hold that the Service Rules framed by the Pakistan Red Crescent Society are statutory as these had been framed under section 5 of the Red Crescent Act, but the argument was repelled by the august Court by holding that Rules not approved by the Federal Government were non-statutory .
10. The above quoted criteria was further adopted by the august Apex Court in cases titled, Aitcheson College v.
Muhammad Zubair (PLD 2002 SC 326) and Pakistan International Airlines v. Tanweer-ur-Rehman (PLD 2010 SC 676). Moreover , in a case titled Shafique Ahmad Khan and others v. NESCOM through Chairman, Islamabad and others (PLD 2016 Supreme. Court 377) it was held by the august Supreme Court that where approval of the Rules is not the requirem ent of Statute, the Rules cannot be declared non-statutory and relevant excerpt of the judgment of august Apex Court is reproduced as under: Fact that certain Rules or Regulation were framed without the approval of the Federal Government was not the sole criteria to term them as non-statutory in nature. It was indeed their nature and area of efficacy which were determinative of their status. Rules dealing with instructions of internal control or management were treated as non- statutory while those, whose area of efficacy was broader and were complemen tary to the parent statute in the matters of crucial importance were statu tory. The Rules framed under sections 7, 9 and 15 of the Act fell in the latter category as they were not only broader in their area of efficacy but were also complementary to the parent statute in matters of crucial importance. It would rather be naiv and even myopic to equate the Rules of the Authority dealing with matters of crucial importance having so wide a scope and area of efficacy with the instructions meant for internal management and thereby depriving them for their statutory status. Although, said rules have not been framed with the intervention and approval of the Federal Government, but that would not prevent them from being statutory . First, because approval of Federal Government was not required either under section 9 or 15 of the Act; secondly because, all those who called the shots were already part of the Authority while framing the Rules, and thirdly because; the scope and area of their efficacy not only stretched beyond the employees of the Authority but overreache d many other strategic organizations including nuclear and space related technologies systems and matters, as mentioned in sections 8 and 9 of the Act. Rules enacted and approved by members of the Authority under sections 7, 9 and 15 of the Act also did not require another approval of yet any other personage."
11. Thus under Section 27 of the Ordina nce, 1982, there is no requirement of the legislature that the regulations framed by the Authority are subject to the approval of government and publication in the official gazette. Guidance derived from: a. Muhammad Zaman and 14 others v. Government of Pakistan through Secretary , Finance Division (Regulation W ing), Islamabad and others (2017 SCMR 571 ) b. Pakistan Defence Of ficers Housing Authority v . Mrs. Itrat Sajjad Khan and others (2017 SCMR 2010 ) c. Bahadar Khan and others v. Federatio n of Pakistan through Secretary Ministry of Finance, Islamabad and others (2017 SCMR 2066 ) d. Pakistan Defence Officer, Housing Authority and others v. Lt. Col. Syed Jawaid Ahmad (2013 SCMR 1707 ) e. Saghir Ahmad through Legal Heirs v. Province of Punjab through Secreta ry, Housing and Physical Planning Lahore and others (PLD 2004 SC 261 )
12. Thus, in wake of above discussion, we are firm in our view to A hold that the Civil Aviation Authority is a statutory body having statutory Rules, therefore, the present writ petition is maintainable.
13. Now, adverting to the facts of case, meticulous sifting of the record reflects that the daily wages' employment of petitioner has not been denied by respondents. However , his services were regularized vide order dated 26.02.2010 retrospectively w.e.f. 1st June, 2009. The clause-7 of the said order depicts a clarification whereby it was clarified to petitioner that regularization of daily wages employment on regular basis in PG-01 in CAA is effective from 1st June 2009 without any seniority or financial/ other benefits of previous daily wages employment, if any, in CAA prior to effective date. The petitioner accepted the regularization order while acceding to all its terms and conditions. However , in our view such an acceptance by the petitioner cannot debar him from claiming his legal rights. After a nine years daily wages employment, respondents offered regulariza tion to petitioner but with certain conditions to prevent him from claiming his legal rights and thereby he was compelled to accept this conditional regularization. Had he not accepted the same, he would remain on daily wages employment and thereby petitioner was having no other option but to accept his regularization order with all its conditions even disadvantageous to him. Thus, we hold that the accepting of condition preventing petitioner from claiming the benefit of his previous daily wages' employment was the outcom e of compulsion and the same cannot get in the way of petitioner to claim the benefit of his previous employment In a case titled Azad Government of the State of Jammu and Kashmir through its Chief Secretary and 4 others v. Muhammad Hussain (2018 PLC (C. S.) Note 202) the august Supreme Court (AJ&K) was pleased to hold: "Appointment on contingent basis---Pensionary benefits, payment of---Scope---Petitioner-employee was appointed on contingent basis and on attaining age of superannuation he was discharged from service without payment of pensionary benefits--Petitioner-employee filed writ petition which was accepted by the High Court---Contention of department was that employee was never appointed against post of normal budget---V alidity---Contingent paid employees had been brought on normal budget with entitlement to pension---Petitioner-Employee served from 1984 to 2005 with some break but after his removal from service he had been reinstated in service thus had long service of more than two decades at his credit---Department could not kick out the employee on the pretext of his non-satisfactory performance which was not in its interest ---No illegality had been committed by the High Court while allowing the writ petition ---Appeal was dismissed in circumstances."
14. Even otherwise, the condition clause-7 is violative of the Article 3.55 of Civil Aviation Authority Service Regulations, which provides that if an employee who, during the period of his service, was eligible to be confirmed against any post, retires form service before being confirmed, shall not, merely by reason of such retirement be refused confirmation in such a post or any benefits accruing there-from. The Apex Court in the case of Secretary , Government of the Punjab, Finance Department and 269 others v. M. Ismail Tayer and 269 others (2014 SCMR 1336 ) and (2015 PLC (C.S.) 296) was pleased to hold that with regard to a retired Civil Servant, pension forms a part of his retirement benefits. It is not a bounty or an ex-gratia payment but a right acquired in consideration of past services. Such right to pension is conferred by law and cannot be arbitrarily abridged or reduced except in accordance with such law, as it is a vested right and legitimate expectation of a retiring Civil Servant. This view was reiterated in the case of Pakistan Telecommunication Employees Trust (PTET) through M.D., Islamabad and others v . Muhammad Arif and others (2015 SCMR 1472 ).
15. According to Article 3.38 of. Civil Aviation Authority Service Regulations, the Federal Government Rules relating to retirement from service and admissibility of terminal benefits including pension, gratuity , invalidation etc, as applicable to Federal Governments employees shall mutatis mutandis apply to CAA employees. It means that all the rules and regulations governing pension matters of Federal Government employees are also applicable to the employees of CAA. The rights of petitioner for the purpose of qualifying service for pension are to be evaluated within the purview of Articles 358 and 371-A of Civil Service Regulations. Article 358 of C.S.R. states, unless it be otherwise provided by special rule or contract, the service of an officer begins to qualify for pension from the date he takes charge of the office to which he is first appointed. Article 371-A of CSR provides that a government servant not employed in a substantive permanent capacity who has rendered more than 5 years continuous temporary service counts such service for the purpose of pension or gratuity excluding broken periods of service, if any, rendered previously . Continuous temporary and officiating service of less than five years immediately followed by confirmation shall also count for gratuity or pension, as the case may be.
16. Petitioner was first appointed in the year 2000 on daily wages basis and he continuously served as such for nine years and then his daily wages employment was converted into regular service w.e.f. 01.06.2009; and therefore, according to Articles 358 and 371-A of Civil Service Regulations his previous service is countable to his regular service for the purpose of pensionary and other fringe benefits. While deciding a case titled Civil Aviation Authority thrcugh Director General CAA and 3 others v. Mst. Gul Yasim 2019 PLC (C.S.) 130 it was held by the Gilgit Baltistan Chief Court that if a government servant without any break continuously remained in service then he had the right that his service be counted towards pay , pension and promotion.
17. In case the State functionaries failed to exercise their authority in the benefit of the employees of their department then their action and negligence are not immune from judicial scrutiny by this Court and this Court is under legal obligation to exercise its Constitutional jurisdiction to redress the grievance of the poor and helpless employees.
18. In view of the above discussion, this writ petition is allowed as prayed for and respondents are directed to include the daily wages employment of petitioner as his substantive service in regular PG-01 for the purpose of pension and other allied pensionary bene fits. Respondent are further directed to process and complete the pension case of petitioner within 60 days from receiving this judgment. No order as to cost.