ABID AZIZ SHEIKH, J. This constitutional petition has been filed seeking following relief:- I- To direct the respondents to act in accordance with law.
II- To direct the respondents to consider the petitioners for promotion as Junior Executive/Data Entry Operators (BPS-7) and Superintendent (BPS-14).
III- To declare the recruitment process being made by respondents No.2 & 3/NADRA are in violation of promotion policy/promotion quota.
2. Relevant facts are that petitioners are regular employees of respondent No.2 (NADRA). The petitioners No.1 to 3 are working against the posts of Naib Qasid whereas petitioner No.4 is serving against the post of Deputy Superintendent. The grievance of the petitioner is that they have improved their qualifications and entitled for promotion to Data Entry Operator (D.E.O) but they have not been promoted in terms of promotion policy notification dated 22.01.2004 (Promotion Policy) rather fresh recruitments have been made against the posts, reserved for promotion quota.
3. The learned counsel for the respondents at the very outset, raised preliminary objection that relevant Service Regulations and Promotion Policy being non statutory, this constitutional petition is not maintainable. Learned counsel for the petitioners in response submits that rules are made by the Federal Government and therefore, this constitutional petition is maintainable. He placed reliance on judgment dated 14.02.2020, passed by this Court in Writ Petition No.7128/2016. On merits, he submits that respondents are bound to promote the petitioners in terms of Promotion Policy.
4. I have heard the learned counsel for the parties.
Before touching the merits of the case, I would like to decide threshold question of maintainability of this petition at the first instance. The NADRA has been established under the National Database and Registration Authority Ordinance, 2000 (Ordinance). Under Section 44 of the Ordinance, the Federal Government may by notification in the official Gazette make rules for carrying out the purpose of this Ordinance, whereas under Section 45 of the Ordinance, the Authority may by notification in official Gazette make regulations, not inconsistent with the provisions of this Ordinance or the rules. Under Section 45 (2) of the Ordinance, the regulations may also provide for appointment of Registration Officers, members of staff, experts, consultants, advisors and other officers and employees and the terms and conditions of their service. For convenience, Section 44 & 45 of the Ordinance is reproduced as under:-
44. Power to make rules. The Federal Government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Ordinance: Provided that till the time any amendments are made or any fresh rules are made in this behalf, the rules made under section 15 of the National Registration Act, 1973 (LVI of 1973) and in force at the time of the establishment of the Authority shall be applied as nearly as practicable in the same manner as before to the extent the same are not inconsistent with the provisions of this Ordinance with any references to the Registrar General, Director General Registration Organization, or any competent authority by whatever nomenclature therein to be deemed to be a reference to the Authority.
45. Regulations.--(1) The Authority may, by notification in the official Gazette, make regulations, not inconsistent with the provisions of this Ordinance or the rules, for the carrying out of its functions under this Ordinance and any other matter for which, under this Ordinance, provision may be made by regulations.
(2) Without prejudice to the generality of the foregoing powers, such regulations may provide for appointment of Registration Officers, members of its staff, experts, consultants, advisers and other officers and employees and the terms and conditions of their service: Provided that, subject to the provisions of section 40 till the time any amendments are; made or any fresh regulations are made in this behalf, any rules or regulations governing the terms and conditions of their service and in force at the time of the establishment of the Authority shall be applied as nearly as practicable in the same manner as before to the extent the same are not inconsistent with the provisions of this Ordinance, with any references to the Directorate General of Registration, or any competent authority by whatever nomenclature therein to be deemed to be a reference to the Authority.
5. From plain reading of Section 44 of the Ordinance, it is manifest that Federal Government may make Rules for carrying out the purpose of Ordinance, whereas the Authority may make Regulations for carrying out the functions of the Ordinance including appointments and terms and conditions of services of the staff of the NADRA. The Authority is defined under Section 2 (b) of the Ordinance, means National Database and Registration Authority established under Section 3 of the Ordinance. It is also admitted position that in pursuance to Section 44 of the Ordinance, Federal Government framed Rules termed as "The National Database and Registration Authority (National Identity Card) Rules, 2002" (Rules), whereas in pursuance to section 45 of the Ordinance, the Authority framed regulations termed as "The National Database and Registration Authority (Application for National Identity Card), Regulations, 2002" (Regulations). On face of it, Rules being framed by the Federal Government under Section 44 of the Ordinance have the statutory force, however, Regulations being framed under Section 45 of the Ordinance by the Authority, without any approval of the Federal Government, does not have any statutory status. The terms and conditions of service of employees of NADRA including their promotion policy vide Notification dated 22.01.2004, are also framed by the Authority under Section 45 of the Ordinance (and not by Federal Government under Section 44 of the Ordinance), therefore, the same are also non-statutory.
6. The question whether Regulations of NADRA are statutory or not came up before Hon'ble Supreme Court of Pakistan in Maj. (Retd.) Syed MUHAMMAD TANVEER ABBAS versus FEDERATION OF PAKISTAN through Secretary Ministry of Interior and anothers (2019 SCMR 984). In said case, constitutional petitions were filed before learned Sindh High Court by various employees of NADRA against their orders of termination. The Division Bench of learned Sindh High Court dismissed the Constitutional Petitions on the ground that Regulations are framed by the Authority under Section 45 of the Ordinance, hence, they are non-statutory. The said judgment was challenged before the Hon'ble Supreme Court of Pakistan, where the appeals were dismissed and the August Supreme Court of Pakistan held that Regulations of NADRA are non-statutory in nature. Relevant observations of the Hon'ble Supreme Court of Pakistan is reproduced hereunder:- "When the DHA case is compared with the appellants' case, there are certain obvious similarities, the first and most important being of course that both involved situations of termination from service. Apart from that, in our view, as held by this Court in relation to DHA, there can hardly be any doubt that NADRA is also a "person" within the meaning of Article 199(1)(a)(ii) read with clause
(5) thereof. Equally, it is also clear that the 2002 Regulations, like the DHA service rules of 2008, were non-statutory in nature. It also cannot be in doubt that the termination clauses involved in the present appeals are in all material respects the same as Rule 8(b)(1) of the DHA service rules.
This is apparent on a bare reading of the said provisions. The crucial question therefore is whether the termination clauses involved here can be treated in the same manner as Rule 8(b)(1), and the same or similar relief accorded the present appellants?"
(Emphasis supplied)
The same view was also expressed by honourable Supreme Court in "Chairman NADRA, Islamabad through Chairman, Islamabad and another Vs. Muhammad Ali Shah and others"
(2017 SCMR 1979), "MUHAMMAD ZAMAN and 14 others versus GOVERNMENT OF PAKISTAN through Secretary, Finance Division, (Regulation Wing), Islamabad and others" (2017 SCMR 571), "P.T.C.L. and others versus MASOOD AHMAD BHATTI and others" (2016 SCMR 1362), ZARAI TARAQIATI BANK LIMITED and others versus SAID REHMAN and others" (2013 SCMR 642) and "PAKISTAN DEFENCE OFFICERS' HOUSING AUTHORITY and others versus Lt. Col. Syed JAWAID AHMAD" (2013 SCMR 1707).
7. The learned Sindh High Court in CP No.406 of 2014 titled "Muhammad Yaseen Abbasi versus Federation of Pakistan etc" vide order dated 04.09.2019, after placing reliance on aforesaid case law of Hon'ble Apex Court, held that Constitutional Petition is not maintainable by employees of NADRA for their regularization. Relevant part of the order is reproduced hereunder:- "7. The issue of maintainability of captioned Constitutional Petition has been raised, in view of the latest verdicts by the Honorable Supreme Court of Pakistan in the case of Major Retd. Syed Muhammad Tanveer Abbas and other connected appeal Vs. Federation of Pakistan through its Secretary, Ministry of Interior & others (2019 SCMR 984) and Chairman NADRA, Islamabad through Chairman, Islamabad and other Versus Muhammad Ali Shah and others (2017 SCMR 1979), as such we would confine our self to that issue only and refrain ourselves dilate upon the merits of this case, if we find the instant matter is not maintainable under the law.,
8. The case of the Petitioner is with regard to regularization of his service which has now been de- regularized by means of impugned order dated 14.04.2014. In our view, contract employee cannot claim any vested right, even for regularization of service. The Hon'ble Supreme Court of Pakistan in case of Chairman NADRA, Islamabad through Chairman, Islamabad and anothers Vs. Muhammad Ali Shah and other (2017 SCMR 1979) has held that the writ or Constitutional jurisdiction of High Court under Article 199 of the Constitution cannot be invoked by a contractual employee of a statutory organization, such as NADRA. For convenience sake, the relevant portion of the Judgment passed by Hon'ble Supreme Court of Pakistan is reproduced herein below:- "10. NADRA has opposed the petitions before the High Court. NADRA has 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 in alone competent to employ people, and this is required to be done in accordance with the prescribed mythology. NADRA had also raised the legal objection with regard to the jurisdiction of the High Court. Surprisingly, these legal questions did not receive and 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. Committee (Regulation 10), set out the procedure for initial appointment (Regulation 11), require that merit and provincial quota be observed (Regulation 12), required 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, NADRA 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 scale as mentioned in the Notification No. F&A/ NADRA/ HQ/ 2002- 2003, dated 21.06.2003 with all consequential benefits."
12. The referred to NADRA's letter dated March 6, 2012 had enclosed "Option Form" which was required to be "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 Form. However, before the submission of his/ her Option Form a contractual employees would continue as such, that is remain a person who was employed on contract by NADRA. The private respondents therein, 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 part 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 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 Ahmad reported as 2013 SCMR 1707, Pakistan Telecommunication Co. Ltd. v. Iqbal Nasir reported as PLC 2011 Supreme Court 132 and P.T.C.L v. Masood Ahmad Bhatti reported as 2016 SCMR 1362). It was only after the terms and conditions as 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 shows, both these appeal are allowed and impugned judgment dated March 6, 2014 of the Peshawar High Court is set aside and the petitions (W.Ps Nos.
3210 and 3437 of 2012) filed before Peshawar High Court are dismissed. (Emphasis added)
9. The Honorable Supreme Court in case of Major Retd. Syed Muhammad Tanveer Abbas vs. Federation of Pakistan through its Secretary, Ministry of Interior & others and another connected appeal (2019 SCMR 984) vide common judgment dated 13.05.2019 has clarified the issue involved in the present proceedings.
8. The case law (W.P. No.7128/2016) relied upon by the learned counsel for the petitioners is distinguishable as in said case, there was also involvement of statutory enactment in removal from service process. Further the status of Regulations and Promotion Policy framed by Authority under Section 45 of the Ordinance, without approval of the Federal Government, was not discussed in said judgment. It is also informed that said judgment has already been challenged in Civil Appeal No.1516 to 1526 of 2021 before the Hon'ble Supreme Court of Pakistan, where vide order dated 15.11.2021, leave to appeal has been granted and operation of the said judgment has been suspended. In any case, once the Hon'ble Supreme Court of Pakistan in case of Maj. (Retd.) SYED MUHAMMAD TANVEER ABBAS supra, finally held that Regulations of NADRA are non-statutory, then the Constitutional Petition for enforcement of such non statutory Regulations or Promotion Policy, is not maintainable.
9. In view of above discussion, preliminary objection raised by the respondents is sustained and this Constitutional Petition being not maintainable is dismissed.