TARIQ SALEEM SHEIKH, J. On 30.4.1987 the Petitioner joined the Respondent Pakistan Television Corporation ("PTVC") as an Associate Engineer (Group-4) and is presently working as Senior News Editor (Group-8). Through Office Order No. HPP/145/3794 dated 12.10.2020 (the "Impugned Order") he was directed to proceed on Leave Preparatory to Retirement ("LPR") with immediate effect till the date of his superannuation in terms of Rules 10.20A and 10.22A of the Pakistan Television Corporation Limited Employees Service Rules of 1978 (the "Employees Service Rules"). The Petitioner lfas challenged the said Office Order through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution").
2. The counsel for the Petitioner, Ch. Ishtiaq Ahmad Khan, Advocate, submits that the Petitioner is a regular employee of PTVC and has served for 32 years. He has been forcibly sent on LPR without seeking his option, verbal or in writing. He contends that the Impugned Order is violative of the Employees Service Rules, the Policy Decision of the 225th Board of Directors' meeting and the principle of natural justice. The counsel further contends that the Petitioner's identically-placed colleagues are still performing their duties all over the country, including the Lahore, Islamabad, Peshawar and Karachi Centres, and the allied re-broadcast stations. He contends that the Petitioner has an inalienable right to enjoy the protection of law and to be treated in accordance with law. The Respondents have infringed his rights under Articles 4, 9, 14 and 25 of the Constitution.
3. Barrister Muhammad Ahmad Pansota has raised a preliminary objection that this constitutional petition is not maintainable because the Employees Service Rules which govern the Petitioner's terms of employment are non-statutory. Resultantly, the relationship between the Petitioner and PTVC is that of master and servant.
4. Mr. Pansota submits that the PTVC's Board of Directors (the "BOD") in its 225th meeting held on 12.02.2019 revised the Leave Preparatory to Retirement Policy and amended Rules 10.20A and 10.22A of the Employees Service Rules and extended the LPR period from 365 to 730 days. Consequent thereupon anyone who was 730 days from his retirement was eligible to apply for LPR subject to the approval of the Head of Department/Division concerned. In pursuance of the aforesaid Rules, all the Heads were asked to submit details of the staff that they required on their strength. The employees who were required in the exigency of work were retained while the others were directed to proceed on LPR. The Department Heads made their reports in accordance with the stipulated parameters and the Petitioner was not discriminated. The counsel states that the choice of opting for the LPR is not available to the employees after the amendment. Sending an employee, on LPR is not a punishment because he is entitled to all the perks and privileges during that period.
5. Mr. Pansota submits that Rules 2.05, 2.06 and 2.07 empower the BOD to amend, alter, modify or supplement the Employees Service Rules. Besides, the employees' appointment letters expressly state that they would be governed by the corporation's rules and regulations as amended from time to time. The Petitioner felt aggrieved of the aforementioned amendment and challenged it before this Court in Writ Petition No. 51677/2020 titled "Syed Amjad Ali Shah v. MD PTV and others"
Later he withdrew that petition without permission to file a fresh one and joined other similarly aggrieved employees before the Peshawar High Court in Writ Petition No.619-P/2021 titled "Saalim Barlas and others v. Federation of Pakistan and others". (He was the Petitioner No.9 therein). The Division Bench, of Peshawar High Court vide order dated 1.4.2021 dismissed the said writ petition along with other connected matters for not being maintainable. Mr. Pansota contends that if the Petitioner was dissatisfied with that order he should have assailed it before the Hon'ble Supreme Court. The present petition is barred.
6. In rebuttal, Mr. Khan contends that PTVC is "performing functions in connection with the affairs of the federation" in terms of Article 199 of the Constitution. It is also a public sector company as defined in section 2(54) of the Companies Act, 2017, and Rule 2(g) of the Public Sector Companies (Corporate Governance) Rules, 2013. The National Industrial Relations Commission, vide notification dated 24.5.1978, adopted and approved the Employees Service Rules in exercise of the powers conferred on it under the Pakistan Essential Services (Maintenance) Act, 1952. Hence, they have acquired the status of statutory rules and the Petitioner is competent to file this constitutional petition.
7. The Respondents have raised preliminary objection regarding maintainability of this petition so, in view of the law enunciated by the Hon'ble Supreme Court of Pakistan in Government of Sindh through Secretary Education and Literacy Department and others v. Nizakat Ali and others (2011 SCMR 592), it has to be decided in the first instance.
8. An aggrieved party can invoke the jurisdiction of this Court under Article 199(1)(a) of the Constitution against a person performing, within its territorial jurisdiction, functions in connection with the affairs of the federation, or a province or a local authority. Article 199(5) elucidates that "person" includes any body politic or body corporate, any A authority under the control of the Federal Government or 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 Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd. and 10 others (PLD 1975 SC 244) the Hon'ble Supreme Court of Pakistan observed: "Now, what is meant by the phrase 'performing functions in connection with the affairs of the Federation or a Province'. It is clear that the reference is to governmental or State functions, involving, in one form or another, an element of exercise of public power. The functions may be the traditional police functions of the State, involving the maintenance of law and order and other regulatory activities; or they may comprise functions pertaining to economic development, social welfare, education, public utility services and other State enterprises of an industrial or commercial nature. Ordinarily, these functions would be performed by persons or agencies directly appointed, controlled and financed by the State, i.e., by the Federal Government or a Provincial Government.
However, in recent years, there has been manifest a growing tendency on the part of governments to create statutory corporations for undertaking many such functions, particularly in the industrial and commercial spheres, the belief -that, free from the inhibiting effect of red-tapism, these semi- autonomous bodies may prove more effective, flexible and also profitable. Inevitably, Government retains effective control over their functioning by appointing the heads and other senior officers of these corporations, by regulating their composition and procedures by appropriate statutes, and by finding funds for financing their activities."
9. The courts generally apply what is called the "function test" to determine whether an organization is a "person" within the meaning of Article 199 of the Constitution. In Salahuddin, supra, the. Hon'ble Supreme Court held: "The primary test must always be whether the functions entrusted to the organization or person concerned are indeed functions of the State involving some exercise of sovereign or public power; whether the control of the organization vests in a substantial manner in the hands of Government: and whether the bulk of the funds is provided by the State. If these conditions are fulfilled, then the person, including a body politic or body corporate, may indeed be regarded as a person performing functions in connection with the affairs of the Federation or a Province; otherwise not."
The above view was reaffirmed in Aitchison College, Lahore through Principal v. Muhammad Zubair and another (PLD 2002 SC 326); Federal Government Employees Housing Foundation and another v. Muhammad Akram Alizai (PLD 2002 SC 1079); Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman and others (PLD 2010 SC 676); Abdul Wahab and others v. HBL and others (2013 SCMR 1383); Pakistan Defence Officers' Housing Authority and others v. Lt. Cola Syed Jawaid Ahmed (2013 SCMR 1707); Pir Imran Sajid and others v. Managing Director/General Manager (Manager Finance) Telephone Industries of Pakistan and others (2015 SCMR 1257); Muhammad Zaman and others v. Government of Pakistan and others (2017 SCMR 571) and Human Rights Case No.3564 of 2018 - In the matter regarding appointment of Managing Director, Pakistan Television Corporation (2019 SCMR 1).
10. Section 2(54) of the Companies Act, 2017, has made the aforementioned determination somewhat easier by defining the "public sector company". It reads:
(54) "public sector company" means a company, whether public or private, which is directly or indirectly controlled, beneficially owned or not less than fifty-one percent of the voting securities or voting power of which are held by the Government or any agency of the Government or a statutory body, or in respect of which the Government or any agency of the Government or a statutory body, has otherwise power to elect, nominate or appoint majority of its directors, and includes a public sector association not for profit, licensed under section 42: Provided that nomination of directors by the Commission on the board of the securities exchange or any other entity or operation of any other law shall not make it a public sector company.
11. Rule 2(1)(g) of the Corporate Governance Rules, which were framed under section 506 of the Companies Ordinance, 1984 read with clause (b) of section 43 of the Securities and Exchange Commission of Pakistan, 1997, provides almost the same criteria. It says:
(g) "Public Sector Company" means a company, whether public or private, which is directly or indirectly controlled, beneficially owned or not less than fifty percent of the voting securities or voting power of which are held by the Government or any instrumentality or agency of the Government or a statutory body, or in respect of which the Government or any instrumentality or agency of the Government or a statutory body, has otherwise power to elect, nominate or appoint majority of its directors, and includes a public sector association not for profit, licensed under section 42 of the Ordinance.
12. PTVC was founded in 1964 and is one of the biggest media houses of Pakistan. PTV covers a number of "sister channels" such as PTV Sports, PTV News and PTV National. PTVC was registered under the Companies Act, 1913, but now is governed by the Companies Act, 2017. It is owned by the Federal Government and is run by a Board of Directors in terms of section 183 of the Companies Act, 2017, read with Article 89 of its Articles of Association. PTVC not only qualifies the "function test" mentioned above by all standards but also falls within the definition of "public sector company." It is, therefore, a "person" within the meaning of Article 199(1)(a) of the Constitution read with Article 199(5) thereof. However, this is not enough. The employees of only those organizations discharging functions in connection with the affairs of the Federation can invoke the constitutional jurisdiction of the High Court in service matters whose employment is governed by statutory rules.[1]
13. Statutory rules are those which are framed under the powers conferred by an Act. These are in the nature of delegated legislation and, if validly drawn, form part of the parent Act. Generally, they are required to be published in the government gazette before enforcement. On the other hand, non-statutory rules are made by the organization itself for smooth running of its affairs. The question as to whether the rules are statutory or otherwise depends on the source from which they E originate and not on their form or nomenclature. In Chairman, State Life Insurance Corporation and others v. Hamayun Irfan and 2 others (2010 SCMR 1495) the Hon'ble Supreme Court held: "Generally speaking, a statutory regulation means regulations which are legislative (as opposed to executive) made by a rule-making authority in exercise of statutory power with the approval of the central government or provincial government. Precisely it is the exercise of the delegated legislative power by the rule making authority. Ordinarily it is necessary also that making and promulgation of a rule should be attended by certain formalities e.g. publication in government gazette as law laid down by this Court in various pronouncements."
14. In Zarai Taraqiati Bank Limited and others v. Said Rehman and others (2013 SCMR 642) the apex Court held that the statutory rules have the following three characteristics:
(i) Rules or Regulations are framed by statutory or public body;
(ii) They are framed under the authority or powers conferred in the statute;
(iii) They have statutory Governmental approval or statutory sanction.
15. A further reference may be made to Pakistan Defence Officers Housing Authority v. Mrs. Itrat Sallad Khan and others (2017 SCMR 2010) in which the Hon'ble Supreme Court held: "The test to gauge as to whether the service rules are statutory or not was laid down by this Court as far back as in the year 1984 in the case of the Principal Cadet College, Kohat and another v.
Mohammad Shoab Qureshi (PLD 1984 SC 170) by holding that unless rules of service of a statutory body are made or approved by the Government, such rules could not be regarded as statutory but mere instructions for guidance. However, in the case of Shafique Ahmed Khan v. NESCOM through Chairman, Islamabad (PLD 2016 SC 377) as well as in the case of Muhammad Zaman and others v. Government of Pakistan (2017 SCMR 571), this Court while widening the scope of such criterion held that 'the test of whether rules/regulations are statutory or otherwise is not solely whether their framing requires approval of the Federal. Government or not, rather it is the nature and area of efficacy which determine their status. Rules dealing with instructions for internal control or management are treated as non-statutory while those, whose area of efficacy is broader and/or complementary to the parent statute in the matter of crucial importance, are statutory.'
16. It would not be out of place to mention here that the rules do not become statutory merely because an organization has adopted any rules framed by the Government or has made them applicable by reference. Reliance is placed on M.H. Mirza v. Federation of Pakistan through Secretary, Cabinet Division, Government of Pakistan, Islamabad and 2 others (1994 SCMR 1024).
17. The distinction between statutory and non-statutory rules is important because where the organization itself prescribes the terms and conditions of service of its employees, the principle of master and servant applies. Resultantly, neither a suit nor a writ petition for the relief of reinstatement is competent. In University of the Punjab, Lahore and 2 others v. Ch. Sardar Ali (1992 SCMR 1093) the Hon'ble Supreme Court held that if the terms and conditions of an employee are not governed by statutory rules but by regulations, instructions or directions issued for its internal use, any violation thereof would not normally be enforced through constitutional petition. In Pakistan Red Crescent Society and another v. Syed Nazir Gillani (PLD 2005 SC 806) the Court held that if there is wrongful dismissal, the employee may file a suit for damages.
18. The status of the PTVC's Employees Service Rules came up for consideration in Sohail Abbas Bokhari v. Secretary Information and Broadcasting/Chairman, Pakistan Television Corporation, and 2 others [2009 PLC (C.S.) 565]. The Islamabad High Court held: "It is an admitted position that the employees of PTVC are governed by the Pakistan Television Corporation Ltd. Employees Service Rules, those have no legal cover i.e. non-statutory in nature and cannot be enforced through a writ petition. Reliance can be placed on the case The Principal Cadet College, Kohat and another v. Muhammad Shoab Qureshi (PLD 1975 SC 678), M.H. Mirza v.
Federation of Pakistan through Secretary, Cabinet Division, Government of Pakistan, Islamabad and 2 others, (1994 SCMR 1024) and the case of Asad Bashir v. Chairman, Board of Intermediate and Secondary Education, Lahore and 2 others [2006 PLC (C.S.) 110]."
The above view was followed in Muhammad Ramzan v. Federation of Pakistan through Ministry of Information and 3 others [2017 PLC (C. S.) Note 71]; Khawar Azhar Safrer and others v.
Federation of Pakistan and others (Writ Petition No. 3912/2020 decided by the Islamabad High Court on 21.12.2020); Safdar Ali v. Federation of Pakistan and others (C .P. No.1411/2019 decided by the Balochistan High Court on 7.12.2020).
19. PTVC is covered by Pakistan Essential Services (Maintenance) Act, 1952. In Pakistan Television Corporation v. M. Babar Zaman and others (1989 SCMR 1549) the Hon'ble Supreme Court was called upon to consider the question as to whether the said Act excluded the jurisdiction of the Labour Court in respect of certain PTVC employees and they could invoke the constitutional jurisdiction of the High Court. The apex Court held that the provisions of the Act supersede every other provision to the extent of contrariety and not beyond. The matters not covered by the provisions of the Act would be governed by the ordinary law. Relevant excerpt is reproduced below: "The provisions of the [Pakistan Essential Services (Maintenance) Act] and their examination in the KESC's case[2] establish a distinction between the regulatory powers (exercisable by the Federal Government or an authority specified by it under section 6 of the Act) punitive powers (exercisable by a servant of the Government empowered to file a criminal complaint in writing under section 7 of the Act) and the adjudicatory powers in other respects left untouched by the. Act. The regulatory power was held in that decision not to extend, encroach upon or affect in any manner the adjudicatory set up. When it is provided in section 7-A of the Act that 'the provisions of this Act shall have effect, notwithstanding anything to the contrary contained in the Industrial Relations Ordinance, 1969 (XXIII of 1969) or any other law' the impact is created only to the extent of contrariety and not in the domain where there is no contrariety. Section 3 applies the Act to every employment under the Federal Government and in spite of the Act there is an established adjudicatory system of Service Tribunals for Civil Servants. Similarly, those who fall in the category of workmen and are not exempted from application of Industrial Relations Ordinance can have recourse to the Labour Courts. Those who are excluded from the Labour Courts also can resort to Constitutional jurisdiction if the rules governing them happen to be statutory as recognized in the case of the Principal, Cadet College Kohat and another v. Muhammad Shoaib Qureshi (PLD 1984 SC 170)."
20. In view of the above, the mere fact that the Member, National Industrial Relations Commission, as the Specified Authority under the above-mentioned Act, has adopted and approved Employees Service Rules vide notification dated 25.5.19783 does not change their status and make them statutory rules. The Islamabad High Court also held so in Sultan Khan Naeem and others v.
Pakistan Television Corporation Limited and others (I.C.A. No.280 of 2020 decided on 8.10.2020).
21. Mr. Khan contends that the amendments in Rules 10.20A and 10.22A are ex fade discriminatory and are violative of Article 25 of the Constitution. Therefore, the Petitioner can assail them before this Court under Article 199 of the Constitution. For this proposition he has relied upon Syed Amjad Ali Shah v. Federation of Pakistan and 5 others [2005 PLC (C.S.) 199] and Muzammal Ahmed Khan v. Imran Meer and others [2010 PLC (C.S.) 1023]. However, perusal of the record shows that the Petitioner has not prayed for striking down the said amendment in his petition. He cannot be permitted to travel beyond his pleadings.
22. Mr. Pansota has produced documents which reflect that the Petitioner earlier filed Writ Petition No. 51677/2020 in this Court on the same cause of action which he withdrew without permission to file a fresh one. Thereafter, he instituted Writ Petition No. 619-P/2021 in the Peshawar High Court along with other identically-placed employees. A Division Bench of that Court dismissed it vide Order dated 1.4.2021. I agree with Mr. Pansota that the present petition is not maintainable in these circumstances as well.
23. In view of what has been discussed above, the preliminary objection raised by the Respondents is sustained and the petition is dismissed being not maintainable.
1. Executive Council, Allama lqbal Open University, Islamabad and another v. Muhammad Tufail Hashmi (2010 SCMR 1484) and Zarai Taraqiati Bank Limited and others v. Said Rehman and others (2013 SCMR 642).
2. Karachi Electric Supply Corporation Ltd. v. National Industrial Relations Commission and another (PLD 1982 SC 113)